HomeMy WebLinkAboutCOM 0059.000 1998-2000 OJNVV OF N~fi
,1
Stephen K. Yamashiro f \~W~i; Harry A. Takahashi
Mayor Director
m•. ~ S. K. Schutte
17TE OF+N'' Deputy
~Couutp of ~abuaii ~ c
DEPARTMENT OF FINANCE r
25 Aupuni Slreet, Room 118 Hilo, Hawaii 9b720-4252
(808)961-6234 Fax (808)961-8298
December 18, 1998
Honorable James Arakaki, Chairperson and
Members of the County Council
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
Re: Amendment to Operating Budget
Enclosed is a bill for an ordinance to appropriate $13,565 to conduct DARE
Leadership Institutes, Parents Program and DARE day activities. Funding also
includes sending officers for training and provides instructional supplies and
materials for classrooms.
A resolution authorizing the Mayor to enter into an agreement for this grant is
also enclosed.
If there are any questions, please do not hesitate to call the Police Department.
~~G~~~~~~,(`ti
Harry A. Takahashi
Director of Finance
APPROVED:
~r u,,, ~.1L._
t phen ~amashiro
Mayor
Encs.
(311 Ib
r° i ~ -
F7I~ No. FND/aPR,
Aet. Ta F C. +
R.i. D.rs OEC 9 R 14oa
Form B-52
7/18/91
DEPARTMENT OF FINANCE
REQUEST FOR COUNCIL ACTION
DEPARTMENT: POLICE DATE: 11/13/98
STAFF CONTACT: LAWRENCE K. MAHUNA, MAJOR PHONE: 961-2247.
A. REQUEST
To appropriate an additional $13,565.00 under the DARE/DOE Grant
account number 010-201-5219.49-115.
B. BACKGROUND AND JUSTIFICATION (USE ADDITIONAL SHEETS AS NEEDED):
The State of Hawaii Department of Education is providing funding to conduct
the DARE Leadership Institutes, Parents Proyram and DARE day activities.
Funding is also included to send officers for training and provide
instructional supplies and materials for classrooms.
The Hawaii County Police Department is to provide sufficient manpower to
teach, implement and provide necessary support the the DARE Program in all
public and participating private schools with in the County of Hawaii.
SIGNED: G. l~~ll~~U DATE: 1-~=L-
YNE G. CARVALHO
P LICE CHIEF
~,,,y., c,m, ,e. as se-e.oe
purchase Order No.
Contract Number
MEMORANDUM OF AGREEMENT
This AGREEMENT made this 28th day of October ,1998 , by and between the DEPARTMENT
OF EDUCATION, STATE OF HAWAII, whose business and mailing address is 1390 Miller Street, Honolulu,
Hawaii 96813, hereinaftei'sometimes referred to as "Department", and Count; of Hawaii Police Deo4rt-
whose business (or residence) and mailing address is 349 Kapiolani Street ment
Numpet and Street
Hilo, Hawaii 96770-3998
Ciry and Sute Zip Code
hereinafter sometimes referred to as "Contractor",
WITNESSETH:
For and in consideration of the covenants hereinafter set forth, the parties hereto mutually agree as follows:
t. SCOPE OF SERVICES. The Contractor agrees to perform or provide the following described work or work
products and to supply at the Contractor's expense all labor, materials, equipment, supplies and other
incidentals in connection therewith (Give detailed explanation of work. Attach exhibit, i( necessary):
The County of Hawaii Police Department will provide sufficient manpower
to teach, implement and provide necessar;~ support for the Druy Abuse
Resistance Education (DARE) Program in all public and participating
privcte schools within the Count. of Hawaii.
2. TIME OF PERFORMANCE. The term of this Agreement shall be from and to the dates specified below,
or, as applicable. The Contractor agrees to complete said work on or before the following date (Attach
exhibit, if necessary):
Duration of services: From date Gf approval to September 30, 1999.
Page 2
3. SPECIAL PROVISIONS. Special Provisions (Attach exhibit, if necessary):
For agreements 510,000 or more the following additional General Condition applies: Any agreement
arising out of this offer is subject to the approval of the Department of the Attorney General as to form, and
to all further approvals, including the approval of the Governor, required by statute, regulation, rule, order,
or other directive.
The following paragraphs of the General Conditions are not applicable and have no operative effect
between the parties: 2b, 2e, 7, 8, 9, 13, 14c, 17c and 17d.
4. CONTRACT FORMS AND ATTACHMENTS. The complete contract includes this Agreement Face Sheet,
Standards of Conduct Declaration, the General Conditions, and Exhibits ,all of which are
attached hereto and made a part hereof by reference.
5. COMPENSATION AND PAYMENT SCHEDULE. The Department agrees to pay, and the Contractor agrees
to accept, in full and complete payment for all work and work products and all labor, equipment, supplies
and other costs and expenses incurred by the Contractor in performance of the obligations hereunder the
total and complete sum of
DOLLARS (5 )which includes the travel and perdiem expenses set forth below, if applicable.
a. Professional Fee 5 Per .............................S
(HOUr/Oay/Etc.)
b. Travel and Per Diem Expenses as follows:
Air transportation S
Ground transportation S
Per Diem (Daily rate: ) 5
TOTAL TRAVEL AND PER DIEM EXPENSES .......................................................5
c. Other Expenses as follows:
DARE Leadership Institutes $ R.SOn_nn
DARE Day Rallys/Middle School Celeb. 5 5,500.00
DARE for Parents Program $ 2,000.00
DARE Instructional Supplies/Mat. S l~nnn_nn
DARE Officer Traininos/Seminars/Conf. 15,565.00
TOTAL OTHER EXPENSES ...................................................................................5 32.565.00
TOTAL COMPENSATION .......................................................................................5 32.565.00
d. Said sum shall be payable in one lump sum upon completion of the work or services, or as work
progresses, as follows (Attach exhibit, if necessary):
Payment schedule: 516,283.00 upon contract approval
$16,282.00 upon contract completion
(COntiru=9
GENERAL CONDITIONS
Table of Contents
paQe(sl
1. ~gordination of Services by the STATE 1
2. Relationship of Parties: Independent Contractor Statue
and ReS.ponsibilities. Inclttdin~ Tax Responsibilities 1
3. Personnel Requirements 2
4. Nondiscrimination 2
~gnflicts of Interest 2
6. Subcontracts and Ass(~Irten[s 3
7. indemnification and Defense 4
8. Cost of Litigation 4
9. Liquidated Damaees 4
10. State's Ri;ht of Offset 4
11. Disputes 5
12. ~cpension of A~eement 5
13. Termination for Default 6
14. Termination for Convenience 8
15. Claims Based on the A~encv Procurement
Officer's Actions or Omissions 10
16. Costs and Ex e~ 11
17. Pavment Procedures: Final Pavment:. Clearance 12
18. Federal Funds 12
1 Form AG2-GC(!/9~
19. i•'rodifications of Agreement 12
20. ~anae Order 14
21. pCice Ad~stment 15
22. Variation in Ouanti(y for Definite Quantity
Agreements.. 16
23. hangPS in Cost-Reimbursement Agreement 16
24. Qonfidentiality of Material 17
2~. Pyblicirv 17
26. Ownership Rights and Co~vriQht 17
27. T.iens and Warranties 17
28. Audit of Books and Records of the CONTRACTOR 18
29. Cost or Pricing ata 18
30. Altdit of Cost or Pricing Data 18
31. Records Retention 18
32. Antitrust Claims 18
33. Minimi ingsone se_tion 18
34. overning aw 18
35. Compliance with Laws 19
36. r'^^flict between General Conditions and
Procurement Rules 19
37. Entire Agreement . 19
38. Severabilitv 19
39. W fiver 19
11 Form AG2-GC(1/96)
GENERAL CONDITIONS
1. Coordination of Services lzy 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 Agreement. The CONTRACTOR shall maintain communications with the
head of the purchasing agency at all stages of the CONTRACTOR'S work, and submit to
the head of the purchasing agency for resolution any questions which may arise as to the
performance of this Agreement. "Purchasing agency" as used in these General Conditions
means and includes any governmental body which is authorized under chapter 103D, HRS,
or iu implementing rules and procedures, or by way of delegation, to enter into contracu
for the procurement of services.
2. Relationship of Parties• Independent Contractor Statue and Responsibilities Including Tax
Re~.ponsibilities.
a. In the performance of services required under this Agreement, the CONTRACTOR
is an "independent contractor," with the authority and respotuibility to control and
direc[ the performance and details of the work and services required under this
Agreement; however, the STATE shall have a general right to inspect work in
progress to determine whether, in the STATE'S opinion, the services are being
performed by the CONTRACTOR in compliance with this Agreement. Unless
otherwise provided by special 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 agenu are not by
reason of this Agreement, agents or employees of the State for any purpose, and
the CONTRACTOR and the CONTRACTOR'S employees and agenu shall not be
entitled to claim or receive from the State any vacation, sick leave, retirement,
workers' compensation, unemployment insurance, or other benefiu provided to
state employees.
c. The CONTRACTOR shall be responsible for the accuracy, completeness, and
adequacy of the CONTRACTOR'S performance under this Agreement.
Furthermore, the CONTRACTOR intentionally, voluntarily, and knowingly
assumes the sole and entire liability to the CONTRACTOR'S employees and
agenu, and to any individual not a party to this Agreement, for all loss, damage,
or injury caused by the CONTRACTOR, or the CONTRACTOR'S employees or
agenu in the course of their employment.
1 Form AG2-GC(1/96)
d. The CONTRACTOR shall be responsible for payment of all applicable federal,
state, and county [axes and fees which may become due and owing by the
CONTRACTOR by reason of this Agreement, 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
Agreement.
e. The CONTRACTOR shall obtain a general excise tax license from the Department
of Taxation, State of Hawaii, in accordance with section 237-9, HRS, and shall
comply with all requirements thereof. The CONTRACTOR shall obtain a tax
clearance certificate from the Director of Taxation, State of Hawaii, showing that
all delinquen[ taxes, if any, levied or accrued under state law against the
CONTRACTOR have been paid and submit the same to the STATE prior to
commencing any performance under this Agreement. The CONTRACTOR shall
also be solely responsible for meeting all requirements necessary to obtain the tax
clearance certificate required for fatal payment under sections 103-53 and 237-45,
HRS, and paragraph 17 of these General Conditions.
f. The CONTRACTOR is responsible for securing all employee-related insurance
coverage for the CONTRACTOR and the CONTRACTOR's employees and agents
that is or may be required by law, and for paymen[ 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 Agreement.
b. The CONTRACTOR shall ensure that the CONTRACTOR'S employees or agents
are experienced and fully qualified to engage in the activities and perform the
services required under this Agreement, and that all applicable licensing and
operating requirements imposed or required under federal, state, or county taw,
and all applicable accreditation and other standards of quality generally accepted
in the field of the activities of such employees and agenCS are complied with and
satisfied.
4. Nondiscrimination No person performing work under this Agreement, including any
subcontractor, employee, or agent of the CONTRACTOR, shall engage in any
discrimination that is prohibited by any applicable federal, state, or county law.
Conflicts of Interest The CONTRACTOR represents that neither the CONTRACTOR,
nor any employee or agent of the CONTRACTOR, presently has any interest, and
2 Forth AG2-GCQ/9~
promises that no such interest, direct or indirect, shall be acquired, that wouid or might
conflict in any manner or degree with the CONTRACTOR'S performance under this
Agreement.
6. Subcontracu and Assignments. The CONTRACTOR shall not assign or subcontract any
of the CONTRACTOR'S duties, obligations, or interesu under this Agreement 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 ]aw against the CONTRACTOR'S assignee or subcontractor have been paid.
Additionally, no assigrunent by the CONTRACTOR of the CONTRACTOR'S right to
compensation under this Agreemen[ 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. Recogtition of a cuccesaor in Lnterect When in the best interest of the State, a
successor in interest may be recognized in an assigtunent agreement in which the
STATE, the CONTRACTOR and the assignee or transferee (hereinafer 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
Agreement but waives all rights under this Agreement as against the
STATE; and
(3) The CONTRACTOR shall continue to furnish, and the Assignee shall also
furnish, all required bonds.
b. Chan;e of name. When the CONTRACTOR asks to change the name in which it
holds this Agreemen[ 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
Agreement with the CONTRACTOR to effect such a change of name. The
amendment to this Agreement changing the CONTRACTOR'S name shall
specifically indicate that no other terms and conditions of this Agreement are
thereby changed.
c. AeRorts. All assignment agreements and amendments to this Agreement effecting
changes of the CONTRACTOR'S name or novations hereunder shall be reported
3 Form AG2•GC(l/96)
to the CPO within thirty days of the date that the assignment agreement or
amendment becomes effective.
d. Actions affectin; more than one purchasing a; n v Notwithstanding the
provisions of subparagraphs 6a through 6c herein, when the CONTRACTOR holds
agreements with more than one purchasing agency of the State, the assignment
agreements and the novation and change of name amendmenu 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 Agreement. The provisionu of this pazagraph
shall remain in full force and effect notwithstanding the expiration or early termination of
this Agreement.
8. Cost of LitVation. 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
Agreement, the CONTRACTOR shall pay all costs and expenses incurred by or imposed
on the STATE, including attorneys' fees.
9. Liquidated Damages. When the CONTRACTOR is given notice of delay or
nonperformance as specified in paragraph 13 (Termination for Defaul[) 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 Agreement per calendar day from the date set for cure until either
(i) the STATE reasonably obtains similar goods or services, or both, if the
CONTRACTOR is terminated for default, or (ii) until the CONTRACTOR provides the
goods or services, or both, if the CONTRACTOR is not terminated for default. To the
extent that the CONTRACTOR'S delay or nonperformance is excused under pazagraph 13d
(Excuse for Nonperformance or Delay Performance), liquidated datnages shall not be
assessable against the CONTRACTOR. The CONTRACTOR shall remain 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 Agreement, any amounts owed to the
State of Hawaii by the CONTRACTOR under this Agreement or any other agreements or
pursuant to any law or other obligation owed to the State of Hawaii by the
CONTRACTOR, including, without limita[ion, 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
4 Form AG2-GC(1/9V7
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. )~.Futes• Disputes shall be resolved in accordance with section 103D-703, HRS, and
chapter 126, Procurement Rules, as the same tray be amended from time to time.
12- pension of Agreement. The STATE reserves the right at any time and for any reason
to suspend this Agreemen[ 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 Agreement. This order shall be for a specified period not exceeding sixty
(60) days afrer the order is delivered to the CONTRACTOR, unless the parties
agree to any further period. Any such order shall be identified specifically as a
stop performance order issued pursuant to this section. Upon receipt of such an
order, the CONTT2ACTOR shall forthwith comply with its terms and suspend all
performance under this Agreement at the time stated, provided, however, the
CONTRACTOR shall take all reasonable steps to min;m;~r the occurrence of costs
allocable to the performance covered by the order during the period of performance
stoppage. Before the stop performance order expires, or within any further period
to which the parties shall have agreed, the Agency procurement officer shall either:
(1) Cancel the stop performance order; or
(2) Terminate the performance covered by such order as provided in the
termination for default provision or the termination for convenience
provision of this Agreement.
b. cancellation or expiation of the order. If a stop performance order issued under
this section is cancelled at any time during the period specified in the order, or if
the period of the order or any extension thereof expires, the CONTRACTOR shall
have the right to resume performance. An appropriate adjustment shall be made
in the delivery schedule or Agreement price, or both, and the Agreement shall be
modified in writing accordingly, if:
(1) The stop performance order results in an increase in the time required for,
or in the CONTRACTOR'S cost properly allocable to, the performance of
any part of this Agreement; and
5 Fonn AG2-GCQ/96)
(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 tray be received and acted upon at any time
prior to final payment under this Agreement.
' c. Termination of stoRpgd performance. If a stop performance order is not cancelled
and the performance covered by such order is terminated for default or
convenience, the reasonable cosu resulting from the stop performance order shall
be allowable by adjustment or otherwise.
d. A¢iuctment of pri Any adjustment in contract price made pursuant to this
paragraph shall be determined in accordance with the price adjustrnent provision
of this Agreement.
13. Termination for Default.
a, p~fault. If the CONTRACTOR refuses or fails to perform any of the provisions
of this Agreement with such diligence as will ensure its completion within the time
specified in this Agreement, or any extension thereof, otherwise fails to timely
satisfy the Agreement provisions, or commie any other substantial breach of this
Agreement, the Agency procurement officer may notify the CONTRACTOR in
writing of the delay or non-performance and if not cured in ten (10) days or any
longer time specified in writing by the Agency procurement officer, such officer
may terminate the CONTRACTOR'S right to proceed with the Agreement or such
part of the Agreement as to which there has been delay or a failure to properly
perform. In the event of termination in whole or in part the Agency procurement
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 Agreement to the extent it is not terminated and
shall be liable for excess costs incurred in procuring similar goods or services.
b. ~QNTRACTOR's duties. Notwithstanding termination of the Agreement and
subjec[ to any directions from the Agency procurement officer, the
CONTRACTOR shall take timely, reasonable, and necessary action to protect and
preserve property in the possession of the CONTRACTOR in which the STATE
has an interest.
c. Compensation. Payment for completed goods and services delivered and accepted
by the STATE shall be at the price set forth in the Agreement. Payment for the
protection and preservation of property shall be in an amount agreed upon by the
CONTRACTOR and the Agency procurement officer. If the parties fail to agree,
the Agency procurement officer shall set an amount subject to the
b Forth AG2•GC(1/96)
CONTRACTOR'S rights under chapter 126, Procurement Rules. The STATE may
withhold from amounts due the CONTRACTOR such sums as the Agency
procurement officer deems to be necessary to protect the STATE against loss
because of outstanding liens or claims and to reimburse the STATE for the excess
costs expected to be incurred by the STATE in procuring similar goods and
services.
d. F_xcuse for nonperformance or delav~performance The CONTRACTOR shall
not be in default by reason of any failure in performance of this Agreement in
accordance with its terms, including any failure by the CONTRACTOR to make
progress in the prosecution of the performance hereunder which endangers such
performance, if the CONTRACTOR has notified the Agency procurement officer
within 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 Stale and any other
governmental body in its sovereign or contractual capacity; fires; floods;
epidemics; quarantine restrictions; strikes or other labor disputes; freight
embargoes; or unusually severe weather. If the failure to perform is caused by the
failure of a subcontractor to perform or to make progress, and if such failure arises
out of causes similar to those set forth above, the CONTRACTOR shall not be
deemed to be in default, unless the goods and services to be furnished by the
subcontractor were reasonably obtainable from other sources in sufficient time to
permit the CONTRACTOR to meet the requirements of the Agreement. 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 Agreement, the delivery schedule shall be revised
accordingly, subject to the rights of the STATE under this Agreement. As used
in this paragraph, the term "subcontractor" means subcontractor at any tier.
e. _F.rroneous termination for default If, after notice of termination of the
CONTRACTOR'S right to proceed under this paragraph, it is determined for any
reason that the CONTRACTOR was not in default under this paragraph, or that the
delay was excusable under the provisions of subparagraph 13d, "Excuse for
nonperformance or delayed performance," the rights and obligations of the parties
shall be the same as if the notice of termination had been issued pursuant to such
provision.
f. Additional rights and remedies The rights and remedies provided in this
paragraph are in addition to any other rights and remedies provided by law or
under this Agreement.
~ Form AGDGG(l/96)
14. Termination for Convenience.
a. Termination. The Agency procurement officer may, when the interests of the
STATE so require, terminate this Agreement in whole or in part, for the
convenience of the STATE. The Agency procurement officer shall give written
notice of the termination to the CONTRACTOR specifying the pan of the
Agreement 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 duect 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. $i,ht to roods and work rp oduct• 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:
(I) 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 (hereinafrer
called "manufacturing material") as the CONTRACTOR has specifically
produced or specially acquired for the performance of the terminated part
of this Agreement.
The CONTRACTOR shall, upon direction of the Agency procurement officer,
protect and preserve property in the possession of the CONTRACTOR in which
the STATE has an interest. If the Agency procurement officer does not exercise
this right, the CONTRACTOR shall use best efforts to sell such goods and
manufacturing materials. Use of this pazagtaph in no way implies that the STATE
has breached the Agreement by exercise of the termination for convenience
provision.
d. ~4mpensation.
8 Form AG2-GC(I/96)
(1) The CONTRACTOR shall submit a termination claim specifying the
amounu due because of the termination for convenience together with the
cost or pricing data, submitted to the extent required by subchapter 15,
chapter 3-122, Procurement Rules, bearing on such claim. If the
CONTRACTOR fails to file a termination claim within one year from the
effective date of termination, the Agency procurement officer may pay the
CONTRACTOR, if at all, an amount set in accordance with subparagraph
14d(3) below.
(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 Agreement price plus settlement cosu
reduced by paymenu previously made by the STATE, the proceeds of any
sales of goods and manufacturing materials under subparagraph 14c, and
the Agreement price of the performance not terminated.
(3) Absent complete agreement under subparagraph 14d(2) the Agency
procurement officer shall pay the CONTRACTOR the following amounu,
provided paymenu a;reed to under subparagraph 14d(2) shall not duplicate
paymenu under this subparagraph for the following:
(A) Contract prices for goods or services accepted under the
Agreement,
(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 amounu
paid or to be paid for accepted goods or services; provided,
however, [hat if it appears that the CONTRACTOR would have
sustained a loss if the entire Agreement would have been
completed, no profit shall be allowed or included and the amount of
comperuation shall be reduced to reflect the anticipated rate of loss;
(C) Cosu of settling and paying claims arising out of the termination of
subcontracu or orders pursuant to subparagraph 14b. These costs
must not include cosu paid in accordance with subparagraph
14d(3)(B);
(D) The reasonable settlement cosu of the CONTRACTOR including
accounting, legal, clerical, and other expenses reasonably necessary
for the preparation of settlement claims and supposing data with
9 Forth AG2-GC(1/96)
respect to the terminated portion of the Agreement and for the
termination of subcontracts thereunder, together with reasonable
storage, transportation, and other cosu incurred in connection with
the protection or disposition of property allocable to the terminated
portion of this Agreement. The total sum to be paid the
CONTRACTOR under this subparagraph shall not exceed the total
Agreement price plus the reasonable settlement costs of the
CONTRACTOR reduced by the amount of payments otherwise
made, the proceeds of any sales of supplies and manufacturing
materials under subparagraph 14d(2), and the Agreement price of
performance not terminated.
(4) Costs claimed, agreed to, or established under subparagraphs 14d(2) and
14d(3) shall be in accordance with Chapter 3-123 (Cost Principles) of the
Procurement Rules.
I~. Claims Based on the A~encv Procurement Officer's Ar•rinna nr nmicc~n
a. Chanoes in scone If any action or omission on the part of the Agency
procurement officer (which term includes the designee of such officer for purposes
of this paragraph 15) requiring perfotrrtance changes within the scope of the
Agreement 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 Agreement 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 of time for completion; provided:
(1) Written notice required The CONTRACTOR shall give written notice to
the Agency procurement officer:
(A) Prior to the commencement of the performance involved, if at that
time the CONTRACTOR knows of the occurrence of such action
or omission;
(B) Within thirty (30) days afrer the CONTRACTOR knows of the
occurrence of such action or omission, if the CONTRACTOR did
not have such knowledge prior to the commencement of the
performance; or
(C) Within such further time as may be allowed by the Agency
procurement officer in writing.
10 Form AG2•GCQ/9~
(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) Maim must be justified. The CONTRACTOR must maintain and, upon
request, make available to the Agency procurement officer within a
reasonable time, detailed records to the extent practicable, and other
documentation and evidence satisfactory to the STATE, justifying the
claimed additional costs or an extension of time in connection with such
changes.
b. CONTRACTOR not excused Nothing herein contained, however, shall excuse
the CONTRACTOR from compliance with any rules or laws precluding any state
officers and CONTRACTOR from acting in collusion or bad faith in issuing or
performing change orders which are clearly not within the scope of the Agreement.
c. price adjustment. Any adjustment in the price made pursuant to this paragraph
shall be determined in accordance with the price adjustment provision of this
Agreement.
16. Costs and Expenses. Any reimbursement due the CONTRACTOR for per diem and
transportation expenses under this Agreement shall be subject to chapter 3-123 (Cost
Principles) of the Procurement Rules and the following guidelines:
a. Reimbursement for air transportation shall be for actual cost or coach class air
fare, whichever is less.
b. Reimbursement for ground transportation cosu shall not exceed the actual cost of
renting an intermediate-sized vehicle.
c. Uriless prior written approval of the DIRECTOR is obtained, reimbursement for
subsistence allowance (i.e., hotel and meals, etc.) shall not exceed the applicable
daily authorized rates for interisland or out-of-state travel that are set forth in the
current Governor's Executive Order authorizing adjustments in salaries and
11 Form .~G2-GC(1/96)
benefits for state officers and employees in the executive branch who aze excluded
from collective bargaining coverage.
17. P~vment Procedures: Final Payment: Tax Clearance
a. Ori;'nal
ink voices required. All payments under this Agreement shall be made otily
upon submission by the CONTRACTOR of original invoices specifying the amount
due and certifying that services requested under the Agreement have been
performed by the CONTRACTOR according to the Agreement.
b. Subject to available funds. Such payments aze 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. Promo[~ymen[.
(1) Any money, other than retainage, paid to the CONTRACTOR shall
be dispersed to subcontractors within ten days afer receipt of the
money in accordance with the terms of the subcontract; provided
that the subcontractor has met all the terms and conditions of the
subcontract and there are no bona fide disputes; and
(2) Upon final payment to the CONTRACTOR, full payment to the
subcontractor, including retainage, shall be made within ten days
after receipt of the money; provided that there are no bona fide
disputes over the subcontractor's performance under the
subcontract.
d. Final p~~ment. Final payment under this Agreement shall be subject to sections
103-53 and 237115, 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 If this Agreement is payable in whole or in part from federal funds,
CONTRACTOR agrees that, as [o the portion of the compensation under this Agreement
to be payable from federal funds, the CONTRACTOR shall be paid only from such funds
received from the federal government, and shall not be paid from any other funds.
19. Modifcations of Agreement.
12 Form AG2-GC(I/96)
a. w ' ' o Any modification, alteration, amendment, change, or extension of any
term, provision, or condition of this Agreement permitted by this Agreement shall
be made by written amendment to this Agreement, signed by the CONTRACTOR
and the STATE, provided that change orders shall be made in accordance with
paragraph 20 herein.
b. No oral modification. No oral modification, alteration, amendment, change, or
extension of any term, provision or condition of this Agreement shall be permitted.
c. Aoencv pSOSUrement officer By a written order, at any time, and without notice
to any surety, the Agency procurement officer, subject to mutual agreement of the
parties to this Agreement and all appropriate adjustments, may make modifications
within the general scope of this Agreement to include any one or more of the
following:
(A) Drawings, designs, or specifications;
(B) Method or place of delivery;
(C) Descrip[ion 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
Other provisions of the Agreement accomplished by mutual action of the
parries to the Agreement.
d. Adjustments of price or time for nerforman P If any modification increases or
decreases the CONTRACTOR'S cost of, or the time required for, performance of
any part of the work under this Agreement, an adjustment shall be made and this
Agreement modified in writing accordingly. Any adjustment in Agreement price
made pursuant to this clause shall be determined, where applicable, in accordance
with the price adjustment clause of this Agreement or as negotiated.
e. Claim barred after fina!_pavment No claim by the CONTRACTOR for an
adjustment hereunder shall be allowed if written agreement of modification is not
made prior to final payment under this Agreement.
f. Claims not barred. In the absence of an Agreement modification, nothing in this
clause shall be deemed to restrict the CONTRACTOR'S right to pursue a claim
under this Agreement or for a breach of contract.
13 Forth AG2-GC(I/96)
g. APO ,~proval. If a modification, alteration, amendment, change or extension of
any term, provision or condition of this Agreement increases the amount payable
to the CONTRACTOR by at least $25,000.00 or ten per cent (10%) of the initial
Agreement price, whichever increase is higher, the prior approval of the CPO is
required.
h. Tax clearance. The STATE may, at 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 Agreement, a tax clearance from the Duector 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. $ole source agrgements. Amendmenu to sole source agreements that would
change the original scope of the contract may only be made with the approval of
the CPO. Annual renewal of a sole source agreement for services should not be
submitted as an amendment.
20. ~han;e Order The Agency procurement officer may, by a written order signed otily by
the STATE, at any [ime, and without notice to any surety, and subject to all appropriate
adjustments, trtake changes within the genera! scope of this Agreement in any one or more
of the following:
(1) Drawings, designs, or specifications, if the goods or services to be
furnished are to be specially provided to the STATE in accordance
therewith;
(2) Method of delivery; or
(3) Place of delivery.
a. Adjustments o(_grice 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 Agreement, whether or not changed by the order,
an adjustment shall be made and the Agreement modified in writing accordingly.
Any adjustment in the Agreement price made pursuant to this provision shall be
determined in accordance with the price adjustment provision of this Agreement.
Failure of the parties to agree to an adjustment shall not excuse the
CONTRACTOR from proceeding with the Agreement as changed, provided that
the Agency procurement officer promptly and duly makes the provisional
adjustments in payment or time for performance as may be reasonable. By
proceeding with the work, the CONTRACTOR shall not be deemed to have
14 Forth AG2-GC(1196~
prejudiced any claim for additional compensation, or any extension of time for
completion.
b. CPO approval. If a contract change order increases the amount payable to the
CONTRACTOR by at least $25,000.00 or ten per cent (10%) of the initial
Agreement price, whichever increase is higher, the prior approval of the CPO is
required. -
c. Tim~eriod for claim. Within thirty (30) days after receipt of a written change
order under subpazagraph 20a, unless the period is extended by the Agency
procurement officer in writing, the CONTRACTOR shall file notice of intent to
assert a claim for an adjustment. Later notification shall not bar the
CONTRACTOR'S claim unless the STATE is prejudiced by the delay in
notification.
d. Claim barred after final payment No claim by the CONTRACTOR for an
adjustment hereunder shall be allowed if notice is not given prior to final payment
under this Agreement.
e. Other claims not barred In the absence of a change order, nothing in this
paragraph 20 shalt be deemed to restrict the CONTRACTOR'S right to pursue a
claim under the Agreement or for breach of contract.
21. Price Adjustment
a. Price adjustment Any adjustment in the Agreement price pursuant to a provision
in this Agreement shall be made in one or more of the following ways:
(1) By agreement on a fixed price adjustment before cotnmencement of the
pertinent performance or as soon thereafter as practicable;
(2) By unit prices specified in the Agreement 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 Agreement 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 siruation covered by the provision, plus appropriate profit
or fee, all as computed by the Agency procurement officer in accordance
I $ Form AG2-GC(I /9~
with generally accepted accounting principles and applicable sections of
chapters 3-123 and 3-126 of the Procurement Rules.
b. Submission of cost or pricin; data. The CONTRACTOR shall provide cost or
pricing data for any price adjustments subject to the provisiotu of subchapter 15,
chapter 3-122 of the Procurement Rules.
22. Variation in Ouanti for Definite Ouantitv Agreements. Upon the agreement of the
STATE and the CONTRACTOR, the quantity of goods or services, or both, if a definite
quantity is specified in this Agreement, may be increased by a maximum of ten per cent
(10%); provided the unit prices will remain the same except for any price adjustments
otherwise applicable; and the CPO [Hakes a written determination that such an increase
will either be more economical than awarding another Agreement or that it would not be
practical to award another Agreement.
23. hanoes in Cost-Reimbursement A;reement. If this Agreement is acost-reimbursement
Agreement, the following provisions shall apply:
a. The Agency procurement officer may at any time by written order, and without
notice to the sure[ies, if any, make changes within the general scope of the
Agreement in any one or more of the following:
(1) 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;
(4) Drawings, desigru, or specifications when the supplies to be furnished are
to be specially manufactured for the STATE in accordance with the
drawings, designs, or specifications;
(5) Method of shipment or packing of supplies; or
(6) Place of delivery.
b. If any change causes an increase or decrease in the estimated cost of, or the time
required for performance of, any part of the performance under this Agreement,
whether or not changed by the order, or otherwise affects any other terms and
conditions of this Agreement, the Agency procurement officer shalt make an
equitable adjustment in the (1) estimated cost, delivery or completion schedule, or
both; (2) amount of any fixed fee; and (3) other affected terms and shall modify the
Agreement accordingly.
16 Forth AG2-GC(U96)
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 Agreement.
d. Failure to agree to any adjustment shall be a dispute under paragraph 11 of this
Agreement. However, nothing in this provision shall excuse the CONTRACTOR
from proceeding with the Agreement as changed.
e. Notwithstanding the terms and conditions of subparagraphs 23a and 23b, the
estimated cost of this Agreement and, if this Agreement is incrementally funded,
the funds allotted for the performance of this Agreement, shall not be increased or
considered to be increased except by specific written modification of the
Agreement indicating the new Agreement estimated cost and, if this Agreement is
incrementally funded, the new amount allotted to the Agreement.
24. C'onfidentialirv_gf Material
a. All material given to or made available to the CONTRACTOR by virtue of this
Agreement, which is identified as proprietary or confidential information, will be
safeguarded by the CONTRACTOR and shall not be disclosed to any individual
or organization without the prior written approval of the STATE.
b. All information, data, or other material provided by the CONTRACTOR to the
STATE shall be subject to the Uniform Information Practices Act, chapter 92F,
HRS.
25. Publicity. The CONTRACTOR shall not refer to the STATE, or any office, agency, or
officer thereof, or any State employee, including the head of the purchasing agency, the
CPO, the DIRECTOR, the Agency procurement officer, or to the services or goods, or
both, provided under this Agreement, 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 Agreement shall be referred to the
Agency procurement officer.
26. Ownership Rights and Coov 'o t 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 Agreement, and all such material shall
be considered "works made for hire." All such material shall be delivered to the STATE
upon expiration or termination of this Agreement. The STATE, in 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 Agreement.
17 Form AG2-GC(l/9o~
27. T iens and Warranties. Goods provided under this Agreement shall be provided free of all
liens and provided together with all applicable warranties, or with the warranties described
in the Agreement documents, whichever are greater.
28. Audit of Books and Records of the CONTRACTOR The STATE may, at reasonable
times and places, audit the books and records of the CONTRACTOR, prospective
contractor, subcontractor or prospective subcontractor which are related to:
a. The cost or pricing data, and
b. A State contract, including subcontracts, other than a firm fixed-price contract.
29. Cost or Pricino Data. Cost or pricing data must be submitted to the Agency purchasing
officer and timely certified as accurate for contracts over S100,000 unless the contract is
for amultiple-term or as otherwise specified by the procurement officer. Unless otherwise
required by the Agency procurement officer, cost or pricing data submission is not
required for agreements 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 cenificate, 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 cos[ or pricing data increased the contract price in the
amount of the defect plus related overhead and profit or fee. Therefore, 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.
31. Records Retention. The CONTRACTOR and any subcontractors shall maintain the books
and records that relate to the Agreement and any cost or pricing data for three (3) years
from the date of final payment under the Agreement.
32. Antitrust 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 [o STATE any and all claims
for overcharges as to goods and materials purchased in connection with this Agreement,
except as to overcharges which result from violations commencing after the price is
established under this Agreement and which are not passed on to the STATE under an
escalation clause.
18 Form AG2-GC(1/96)
33. Minimizing Congestion. The CONTRACTOR shall undertake all necessary precautions
to trtinirrtize any adverse impact the performance under this Agreement may have on traffic
conges[ion.
34. ov rnin; .aw. The validity of this Agreement and any of its terms or provisions, as
well as the rights and duties of the parties to this Agreement, shall be governed by the
Taws of the State of Hawaii. Any action at law or in equity to enforce or interpret the
provisions of this Agreement shall be brought in a state court of competent jurisdiction in
Honolulu, Hawaii.
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 Agreement.
36. Conflict between General Conditions and Procurement Rules, In the event of a conflict
between the General Conditioru and the Procurement Rules, the Procurement Rules in
effect on the date this Agreement became effective shall control and are hereby
incorporated by reference.
37. Entire Agreement. This Agreement sets forth all of the agreements, conditions,
understandings, promises, warran[ies, and representations between the STATE and the
CONTRACTOR relative to this Agreement. This Agreement supersedes all prior
agreements, conditions, understandings, promises, warranties, and representations, which
shall have no further force or effect. There are no agreements, conditions,
understandings, promises, warranties, or representations, oral or written, express or
implied, between the STATE and the CONTRACTOR other than as set forth or as
referred to herein.
38. Severability. In the event that any provision of this Agreement is declared invalid or
unenforceable by a court, such invalidity or unenforceabiliry shall not affect the validity
or enforceabi]iry of the remaining terms of this Agreement.
39. Waiver. The failure of the STATE to insist upon the strict compliance with any term,
provision, or condition of this Agreement shall not constitute or be deemed to constitute
a waiver or relinquishment of the STATE'S right to enforce the same in accordance with
this Agreement. The fact that the STATE specifically refers to one provision of the
Procurement Rules or one section of the Hawaii Revised Statutes, and does not include
other provisions or statutory sections in this Agreement shall not cottitute a waiver or
relinquishment of the STATE'S rights or the CONTRACTOR'S obligations under the
Procurement Rules or statutes.
19 Form AG2-GCp/9~
Page 3
6. REQUESTING OFFICE. Name the school/district, complex district, or section/branch office.
Safe and Drug-Free Schools and Communities Program/Office of Accountabilit~r and
School Instructional Support
7. CONTRACTOR. If more than one signature is required, use the space provided.
1Vayne G. Carvalho, Police Chief 11-10-98
Name & Official Title (Typed) Signature Date
Name & Official Title (Typed) Signature Date
8. APPROVED AS TO FORM
By
Deputy Attorney General (Signature) Date
9. DEPARTMENT OF EDUCATION
sy
Superintendent or Designee (Signature) Date