HomeMy WebLinkAboutCOM 0062.000 1998-2000 tr w~
ALAN S. KONISHI DONALD IKEDA
County Clerk Deputy County Clerk
R~°'~"~+' CONSTANCE R. KIRIU
Legislative Audimr
OFFICE OF THE COUNTY CLERK
County of Hawaii
Hawaii County B~ulding
25 Aatpuni Stree[
Hilo, Hawaii 96720
December 24, 1998
TO: Chairman James Arakaki & Members
of the Hawaii County Council
FROM: Constance Kiriu~-~~~
Legislative Auditor
SUBJECT: LIMITED SCOPE PERFORMANCE REVIEW -Glass Recycling and Diversion Program
Attached is a Limited Scope Performance Review of Hawaii County's Glass Recycling and Diversion
Program dated October 1998. This review was conducted by my office in response to Hawaii County
Council Resolution 209-98.
Should you have any questions on this matter, please feel free to contact Gerald Monden or myself at
extension 8386.
Att.
Cmvn. Nw-ICJ-~---•
File Ne.
n,,s o~ z s
Limited Scope Performance Review of Hawaii
County's Glass Recycling and Diversion Program
for Fiscal Year 1997-1998
Hawaii County Legislative Auditor's Office
October 1998
TABLE OF CONTENTS
PURPOSE 1
METHODOLOGY 1
PROGRAM HISTORY l
ENABLING LEGISLATION 2
AGREEMENT WITH STATE OF HAWAII 4
COUNTY OF HAWAI'I'S GLASS RECYCLING & DIVERSION PROGRAM 5
Funding levels for Diversion Grants 5
Eligibility 5
Application Form and Criteria for Approval 5
Payment 6
CONTRACT ADMINISTRATION 6
QUALIFYING GLASS RECYCLERS FY 1997-1998 7
Club Shoyu Brewery, Inc. 7
Environmental Recycling Hawaii 7
Recycling Systems Hawaii 7
REVIEW OBJECTIVES 9
1. Were the payments for the glass diversions during the fiscal year 9
made in accordance with the contracts(s)?
i
2. Has the Department of Public Works taken adequate measures to 10
assure that the purpose and objectives of the Glass Recycling and
Diversion Program have been met, particularly with respect to the
legitimacy of the end-market entity and the re-use of the glass?
3. Are the safeguards in place to monitor the terms of the contract 10
adequate?
4. Are there other findings noted beyond the scope of the above study 11
objectives?
SUMMARY OF FINDINGS 11
Documenting Glass Diversion 11
Reporting 12
County's Role in Demonstrating Processed Glass Application 12
ATTACHMENTS
A. Hawaii County Resolution 209-98 A
B. Act 201-94, Session Laws of Hawaii 1994. B
C. Agreement with the State Department of Health C
D. Hawaii County Glass Recycling and Diversion Program D
Guidelines FY 1997-1998.
E. Listing of Persons Contacted E
ii
PURPOSE
This report is submitted in response to Hawaii County Council Resolution 209-98
(Attachment A), which directed the Legislative Auditor's Office to conduct a limited
scope performance review of Hawaii County's Glass Recycling and Diversion Program
for Fiscal Year 1997-1998.
Objectives of this review aze: 1) to determine whether payments for the glass diversions
during the fiscal year were made in accordance with the contract(s); 2) to examine
whether the Department of Public Works has taken adequate measures to assure that the
Glass Recycling and Diversion Program's purpose and objectives have been met,
particularly with respect to the legitimacy of the end-market entity and the re-use of the
glass; and 3) to evaluate the adequacy of the safeguazds which are in place to monitor the
terms of the contract.
METHODOLOGY
In examining these objectives, it was also necessary to review the enabling legislation For
the Glass Recycling Program, the contractual agreements between the State of Hawaii
and the County of Hawaii, Hawaii County's Glass Recycling and Diversion Program
Guidelines, the contractual agreements between the County of Hawaii and individual
glass recycling firms, applications, and claim forms, end mazket verification forms, and
program activity forms.
A listing of persons contacted during this review is provided (Attachment E). Site visits
to the glass recycling facilities were also conducted.
PROGRAM HISTORY
The County of Hawai'i's Glass Recycling and Diversion Program (GRDP) came about as
a result of Act 201-94 (Attachment B) which established glass recycling as a statewide
program. Goals of this Statewide program call fora 25% recovery of the glass being
disposed of as solid waste by 1996 and a 50% glass recovery rate by 1998. This
Statewide program was patterned after an ongoing City and County of Honolulu
program. Every glass container imported into the State of Hawaii was assessed a fee of
$0.015. Funds collected by the State From these assessments were then allotted to the
counties to fund individual county glass recovery programs.
Using these allotted funds, the County of Hawaii first attempted to develop a Glass
Collection and Recovery Program (GCRP). In response to a request for proposal (RFP),
Recycling Systems of Hawaii (RSH) was selected and, beginning in November 1995, a
county glass collection and recovery program was established. For a consideration of
$216,000, RSH established an islandwide GCRP. The program included the operation of
five drop off points which were located in Keaau, Puna, Waimea, Kealekehe, and Hilo.
1
The contract also provided that the glass be crushed using an Andela Glass Pulverizer.
This program was funded through June 30, 1996.
The County of Hawaii, upon finding an acceptable proposal to its RFP, entered into an
agreement with the State of Hawaii on September 1, 1995. The State-County agreement
mirrored the county's contract with RSH. In 1996, and effective July 1, 1996, this
agreement was extended for an additional 12 months.
In 1996, the County of Hawaii solicited proposals for its FY1996-1997 glass recycling
contract. After reviewing and considering the proposals, the County determined that it
was in its best interest to cancel this solicitation and to develop and advertise a glass
recycling and incentives program. This program was not implemented until January
1997. In the interim, the County's GCRP was extended on a month to month basis
through December 1996.
The County of Hawai'i's GRDP, which began in January 1997, paid qualified vendors
$0.08 per pound for recycled glass which is processed to an on-oroff-island end market
or out~f-state. Reimbursements were to be requested within the specified time limits
and with specified forms and documentation. The GRDP guidelines were made a part of
the individual contract with qualified vendors. Subsequent contracts made reference to
the guidelines.
For fiscal year 1997-1998, the County of Hawaii continued its GRDP. This program
continued to pay an incentive of $0.08 per pound for recycled glass diverted to an on- or
off-island end market or out of state. Under revised GRDP guidelines (Attachment D),
the county program stipulated that all payments require submittal of three forms: 1) a
claim form; 2) an end market verification form; and 3) a glass recovery program activity
form.
In 1997, the County of Hawaii also entered into another agreement with the State of
Hawaii (Attachment C) for Glass Recovery. This agreement essentially mirrored the
County's September 1, 1995 agreement with the Department of Health except that it no
longer required the processing of glass with an Andela Pulverizer. This agreement,
effective July 1, 1997 was for $216,000.
ENABLING LEGISLATION
The provisions of Act 201-94 (Attachment B) have since been codified as
Sections 342G-81 through 89 of the Hawaii Revised Statutes and as amendments to
Section ] 03D-407 of the Hawaii Revised Statutes. Significant portions of this act are as
follows:
Section 342G-81 Definitions. "Glass recovery program" means a program for
glass recovery and reuse for purposes including but not limited to: (1) glass
container reuse or recycling whereby containers are refilled, processed for
shipment out of State, or crushed into aggregate substitute; and (2) use in
2
roadway materials or concrete as provided in this part "
Section 342G-82 sets program goals of recovering " 25% (of the glass being
disposed of as solid waste) by the end of 1996, and 50% by the end of 1998: '
Act further calls For an evaluation by the department of health. "In Januazy 1995,
the department (of health), with assistance from the county solid waste division,
shall evaluate the amount of glass recovered during the first fifteen months of the
program and recommend to the legislature any modification in the fee structure to
meet county glass recovery program funding requirements. Thereafter, prior to
the convening of the legislative session in each subsequent even-numbered year,
the department of health, in coordination with the counties, shall report to the
legislature on the effectiveness of the program and make appropriate
recommendation for modification of the fee."
Section 342G-86 sets requirements for County glass recovery programs.
"(a) All county glass recovery programs shall include: (1) Some form of
glass incentive or "buy-back" providing a means of encouraging
participation by the public or private collectors; and (2) The paving
during each of the first two years of the equivalent of one mile of two lane
asphalt roadway as part of a research and demonstration program using
glassphalt."
"(b) In addition, county programs may include but shall not be limited
to: (1) Funding of the collection and processing of glass containers
either through existing county agencies or through external contracts
for services; (2) Subsidizing the transportation [ofJ processed material to
off-island markets; (3) The development of collection facilities or the
provision of containers for glass recycling, or the incremental portions of
multi-material programs, (4) Additional reseazch and development
programs, including grants to private sector entrepreneurs, especially
those activities developing higher value uses for the material; and (5)
Public education and awareness programs focusing on glass recovery, or
the incremental portions ofmulti-material programs."
Section 3 of Act 201-94 also amended Act 8, Special Session Laws of
Hawaii 1993, (the Procurement Code). Anew section was added to part IV of
the Procurement Code. The provisions of this new section have since renumbered
as Section ] 03D-407 and provides that:
"(a) When purchasing roadway materials or other high value, end-use
applications for public projects, state agencies shall, and county agencies
may, purchase materials with minimum recycle glass content meeting
specification adopted by the policy office which, at a minimum, shall
provide for:
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(1) A minimum recycled glass content often per cent crushed
aggregate in treated or untreated basecourse in paving
material that shall not reduce the quality standards for
highway and road construction; and .
(2) The use of one hundred percent aggregate in nonstructural
capital improvement applications."
"(b) All highway and road construction and improvement projects funded
by the State or a county or roadways that are to be accepted by the State or
a county as public roads shall utilize a minimum often percent crushed
glass aggregate, with one hundred percent passing aone-fourth inch sieve,
in all basecourse (treated or untreated) and subbase when the glass is
available to the quarry or contractor at a price no greater than that of the
equivalent substitute aggregate."
"(c) All state and county construction projects calling for nonstructural
backfill shall utilize one hundred percent crushed glass when available at a
cost equal or lower than the equivalent aggregate."
AGREEMENT WITH THE STATE OF HAWAII
In 1995, and again in 1997, the County of Hawaii entered into an agreement with the
State of Hawaii (Attachment C) for the purpose of establishing a Glass Recovery
Program. Both agreements essentially provide that the County of Hawaii:
1) Operate and maintain five (5) recycling drop-off facilities for the public on
the island of Hawaii.
2) Develop and maintain a public education an informational campaign to
promote the glass recovery program and encourage participation. The
public education campaign shall incorporate radio advertisement, flyer
distribution, proper signage and on-site promotion, a public relations
representative to oversee the public education campaign, and to work with
community groups to address concerns about the program and its
operations.
3) Monitor and record all activity at the glass recovery sites and adjust
weekly pick up schedules as needed to maximize recovery.
4) Maintain records of all volumes processed, diverted, and collected at each
recycling drop-off site.
5) Evaluate recovery volumes from each of the five (5) recycling drop-off
sites and address measures to increase participation and increase volumes
at each site.
6) Submit quarterly written reports to the STATE documenting the volume of
glass collected through buy-back and other incentive programs throughout
the County of Hawaii, assessing successes or areas for improvement, and
the status of tasks identified in this scope of services.
4
7) Pave the equivalent of one mile of two lane asphalt roadway as part of a
research and demonstration project as stipulated in Act 201, HSL, 1994.
This provision is based upon paving either a roadway or bikeway, and is
conditioned upon the availability of pulverized glass collected and
processed on the island of Hawaii suitable for use in asphalt repaving or
bikeway repaving.
With the exception of no longer requiring that glass be processed with an Andela
Pulverizer, there has been no significant changes in the agreement between the County of
Hawaii and the State of Hawaii since the inception of the State Glass Recovery Program.
The County of Hawaii however, has changed its program from GCRP to a GRDP.
COUNTY OFHAWAI'I'S GLASS RECYCLING & DIVERSIONPROGRAM
FY 1997-1998
Significant portions of the County of Hawai'i's GRDP (Attachment D) for fiscal yeaz
1997-1998 are cited:
FUNDING LEVELS FOR DIVERSION GRANTS
"Payment will be made at a rate of $.08 per pound, up to a maximum amount
equivalent to available State monies. To be eligible for payment, approved
glass processors must show proof that glass has been diverted to an on- or
off-island market or out-of-state."
ELIGIBILITY
"All participants must have completed an application form and received approval
to be deemed a glass processor. Glass processors must submit accurate and
complete claim forms, (Exhibits I, II, III), bill of lading for the material sent out-
of-state and proof of acceptance by an end market entity for in-state use. If the
glass processor meets the eligibility criteria, monthly payments will be
determined according to certified weight scales receipts consistent with the
number of pounds reported."
APPLICATION FORM AND CRITERIA FOR APPROVAL
"All interested parties must complete an application form (attached) with
appropriate documentation. To meet the state glass recovery program
requirements and to develop a County program which will have continuity and
long-term benefits for out entire community, all pazticipants in this program shall
submit a plan or proposal which shall include:
1) Some form of glass incentive or "buy back" program providing a
means of encouraging participation by the public and private
collectors.
2) Development of programs which actively sponsor public education
and awareness of glass recovery re-use. The public education program
shall incorporate radio advertisement, flyer distribution, proper
5
signage, on -site promotion, work with community groups to address
concerns about the programs and its operations.
3) Monitoring and recording of all activity at the glass recovery sites and
adjustment of weekly pick up schedules as needed to maximize
recovery.
4) Maintenance of records of all volumes processed, diverted and
collected at each recycling drop-off site.
5) Evaluation of recovery volumes at each recycling drop-off site and
develop measures to increase participation and increased volumes
recovered at each site. (Exhibit III)
6) A listing, description and proof of end markets. (Exhibit II)
7) Information on the participant's prior experience and technical
capability to operate a glass recycling/processing program.
8) Participants will also be required to provide some proof of insurance
policies naming the County as additionally insured, for the duration of
the agreement, in the following coverages and amounts:
a) Automobile liability Insurance ...minimum $300,000 bodily injury
and $50,000 property damage.
b) General Liability Insurance.... minimum $300,000 bodily injury
and $50,000 property damage."
PAYMENT
"Payments may be made monthly. Total payments shall not exceed quarterly
estimated totals. If all funds encumbered are not used, contract will be closed and
unused funds will lapse back for further use."
"If payment requests are greater than the amount encumbered, applicant can
submit the difference in the next quarter based on the availability of funds."
"Payment request shall be made by submitting all attached Claim Forms
(Exhibit I), End Market Verification Form (Exhibit II) and the Glass Recovery
Program Activity Form (Exhibit III). Any payment request submitted without the
required forms shall be returned for completion."
"The County will review the claim forms and documentation to determine
whether the amount of glass listed will be approved. If conflicts arise within
documentation, participants will be informed of the error."
CONTRACT ADMINISTRATION
The County Of Hawaii Glass Recycling And Diversion Program is administered by the
Deparhnent of Public Works. Contracts with the vendors are monitored by the
Department's Fiscal Section. Payments are authorized by the Deputy Chief Engineer. A
staff engineer is also assigned to the GRDP for technical supervision. Funding for the
contracts are provided from an agreement with the State of Hawaii.
6
QUALIFYING GLASS RECYCLERS FISCAL YEAR 1997-1998
CLUB SHOYUBREWERY, INC. (CSB)
CSB is a manufacturer who purchases empty 3 liter bottles for reuse. CSB pays $0.25 for
each empty bottle brought in for redemption at its manufacturing plant in Hilo. CSB
maintains a log of bottles purchased from the general public and uses this log as
supporting documentation when claiming for reimbursement as a glass recycler.
Repurchased bottles aze stored at the plant until a workable quantity is accumulated.
These bottles aze then washed, dried and then reused to package the manufacturer's
product. CSB is experiencing less than a 50% return of bottles.
During FY 1997-1998, CSB submitted claims of diverting 11,027 bottles or
24,259.4 pounds of glass from county landfills. A total of $1,940.92 was paid CSB.
ENVIRONMENTAL RECYCLING OF HAWAII, LTD (ERH)
ERH operates out of two locations --one in Hilo and one in Kona (Atlas Recycling).
Glass is purchased from the public at both locations and also in Hawi once a month.
Glass is sorted by color and then cracked into pieces. The cracked glass is then stored in
large cazdboard boxes on pallets. When sufficient quantities have been crushed and
collected, the glass is then loaded into containers, scaled, and shipped to a buyer. To
date, ERH has shipped all of its processed glass to the West Coast.
During FY 1997-1998, ERH has submitted claim forms for diverting 191,460 pounds. of
glass from county landfills. ERH has also submitted documentation in support of the
shipment of 191,460 pounds of glass to Los Angeles, with Island Recycling, a Honolulu
finn, as consignee. A total of $15,316.80 was paid ERH.
RECYCLING SYSTEMS HAWAII (RSH)
RSH operates and maintains recycling drop-off points at the Keaau, Pahoa, Waimea, and
Kealekehe Transfer Stations. Glass is picked up weekly from these sites. RSH purchases
glass at its Hilo Recycling center from the public. Glass which has been collected is
taken to RSH's processing facility which is located at the facilities of Business Services
of Hawai'i'i. Here the glass is segregated by color, then crushed with an Andela Glass
Pulverizer. The Andela Pulverizer pounds the glass into a granular product which is
without cutting edges. Bottle caps and labels are separated in the process. The crushed
glass is then loaded onto trucks, weighed at an approved scale, then stockpiled on private
property for resale to third parties.
During FY 1997-1998, RSH submitted claims of diverting 2,595,820 pounds of glass
from county landfills. RSH has also submitted documentation in support of sales of
1,121,307 pounds of glass to third parties. A total of $190,057.60 was paid RSH for
glass diverted in FY 1997-1998. RSH was also due $17,608.00 for glass diverted in
FY 1997-1998.
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QUARTERLYPAYMENTS TO VENDOR(S)
FISCAL YEAR 1997-1998
QTR CLUB SHOYU ENVIRONMENTAL RECYCLING SYSTEMS
RECYCLING HAWAII HAWAII
July- Purchased 416.5 cases of Balance due from prior quarter
Sept bottles @ $1.00 per case. $4,473.60
Diverted 3,665.2 ]bs. of glass. Diverted 706,6901bs. of glass.
Paid $293.22 Sold/donated to third parties
128,767 ]bs. of glass.
Paid $60,000
Balance due, $982.40
Oct-Dec Purchased 827.5 cases of Balance due from prior quarter
bottles @$1.00 per case. $982.40
Diverted 7,282 lbs. of glass. Diverted 919,3601bs. of glass.
Paid $582.56 Sold/donated to third parties
45,4091bs. of glass.
Paid $74,531.20
Jan-Mar Purchased 595.75 cases of Diverted 93,8601bs. of glass. Diverted 634,2801bs. of glass.
bottles @ $1.00 per case.
Shipped/sold out of state 93,860 Sold/donated to third parties
Diverted 5,242.6 lbs. of glass. lbs. of glass. 870,5791bs. of glass.
Paid $419.41 Paid $7,508.80 Paid $40,000
Balance due: $10,742.40
Apr-Jun Purchased 917 cases of bottles Diverted 97,600.1bs. of glass Balance due from prior quarter
@ $1.00 per case. $10,742.40
Shipped/sold out of state 97,600
Diverted 8,069.6 pounds of lbs. of glass. Diverted 335,820 pounds of
glass. glass.
Paid $7,808.00
Paid $645.57 Sold/donated to third parties
132,472 lbs. of glass.
Paid $20,000.00
Due: $17,608.00
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8
REVIEW OBJECTIVES
L HAVE THE PAYMENTS FOR THE GLASS DIVERSION DURING THE FISCAL
YEAR 1997-1998 BEEN MADE INACCORDANCE WITH THE CONTRACT(S)?
A. The GRDP provides that "[g]lass processors must submit accurate and
complete claim forms (Exhibits I, II, III), bill of lading for the material
sent out-of--state and proof of acceptance by an end market entity for in-
state use."
YES. After an inspection of vendor invoices, it was found that all
vendors submitted complete claim forms.
B. The GRDP further provides that "to be eligible for payment, approved
glass processors must show proof that glass has been diverted to an on- or
off-island market or out-of-state."
NO. From an inspection of the claim forms, it was found that the
County paid RSH for some 1,474,500 pounds of the recycled and
processed glass that has not been "diverted to an on- oroff-island
market" as provided for in the GRDP. This amounts to some
$1 17,960.00. During this review, several stockpiles were observed
on private property. During fiscal year 1997-1998, personnel from
the Deparhnent of Public Works continued to process and
authorize claims under the GRDP just as they did when glass was
being processed under the County's GCRP.
C. The GRDP provides that "after the glass processor meets the eligibility
criteria, monthly payments will be determined according to certified
weight scales receipts consistent with the number of pounds reported."
CSB: NO. Certified weight scale receipts were not being
submitted by CSB. CSB calculates weight based on a formula of
8.8 pounds per case of (4) recycled bottles redeemed from its
buyback program.
ERH: NO. Certified weight scale receipts were not being
submitted by ERH. Weights on the Bill of Ladings were being
used to meet this requirement.
There are no operational weight scales at the Hilo and Kawaihae
Tenninals. Weights on the Bill of Ladings, unless supported by
weight scale receipts obtained elsewhere, are only estimates that
are supplied by the shipper or the shipping agent.
It should also be noted that the usual method of shipping
commodities by container is by palletized loads within a container.
9
To determine the actual amount of glass that is being diverted from
the landfill and is being shipped to anoff-island destination by a
container, it is necessary to deduct the weight of the pallets and
packing materials.
2. HAS THE DEPARTMENT OF PUBLIC WORKS TAKEN ADEQUATE
MEASURES TO ASSURE THAT THE GRDP'S PURPOSE AND OBJECTIVES
HAVE BEEN MET, PARTICULARLY WITH RESPECT TO THE LEGITIMACY
OF THE END-MARKET ENTITY AND THE RE-USE OF THE GLASS?
The reuse market:
YES. With respect to the reuse market, the County of Hawaii has
both a glass processor and a glass reuser in CSB. Having selected
the 3-liter glass bottle as a container for its product, it is to the
financial advantage of CSB to reuse as many bottles as it can. A
new 3-liter bottle costs CSB approximately $1.75. CSB purchases
used 3-liter bottles for $0.25. The cost of this recycled bottle to
CSB is further reduced by a diversion incentive from the County of
$0.176. (2.21bs/bottle x $0.08 /bottle).
In- or out-of--state processed glass markets:
NO. With respect to the marketing of glass to in-or out-of--state
markets, the County of Hawaii can do much more to develop, if
not solidify, the in-state mazkets for glass. Provisions of our State
Integrated Solid Waste Management Code and of our State
Procurement Code as amended by Act 201-94 provide several
courses of action. The Department needs to look at ways of
working and complying with these provisions including a
glassphault demonstration program and the utilization of glass
aggregate in construction projects and backfill.
The County of Hawaii has yet to pave the equivalent of one mile
of two lane asphalt roadway as part of a research and
demonstration project as stipulated in Act 201-94 and in the
State-County Agreement. It is suggested that this project will
stimulate our construction industry to begin using crushed glass
with their basecourse materials.
3. ARE THE SAFEGUARDS IN PLACE ADEQUATE TO MONITOR THE TERMS
OF THE CONTRACT?
CSB: NO. Periodic on-site visits by the Department can be
conducted to monitor the program and to reconcile used bottled
inventories to the purchase logs.
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ERH, RSH: NO. The Department needs to verify the receipt of
recycled glass by third parties in order to confirm sales. For local
sales, the Department should also verify use by third parties. This
verification should discourage stockpiling. For out of state
shipments, the Department could either inspect shipping containers
or require receipts from out-of--state third parties.
Periodic on-site visits by the Department can be conducted to
monitor the program.
Finally, because it is osp Bible to reuse existing stockpiled material
for purposes of reimbursement, the Department needs to develop
control procedures that would prevent existing stockpiled material
from being double-counted. A suggestion would be to require that
all stockpiles be moved to a neutral or county controlled temporary
storage area.
4. ARE THERE OTHER FINDINGS NOTED BEYOND THE SCOPE OF THE
ABOVE STUDY OBJECTIVES?
YES: The State-County Agreement provides that the County
submit quarterly written reports to the State documenting the
volume of glass collected through buy-back and other incentive
programs throughout the County of Hawaii, assessing successes or
areas for improvement, and the status of tasks identified in this
scope of services. According to the Department of Public Works,
these quarterly reports are not being submitted to the Department
of Health. Likewise, the Deparhnent of Health has also been
remiss in not enforcing this provision.
YES: The State Department of Health did not specifically report
its evaluation of the glass recovered and recommendation of any
fee structure modification to the Legislature, pursuant to Act
201-94. While the Deparhnent of Health provided its annual
"Integrated Solid Waste Management Report" to the Legislature in
1997, it only references compliance with Act 324-91 as amended
by Act 312-93. If this report was meant to comply with Act
201-94, the evaluation on program effectiveness should be more
systematic.
SUMMARY OF FINDINGS
DOCUMENTING GLASS DIVERSION
When the County of Hawaii transitioned from a Glass Recycling and Collection Program
(GRCP) to a Glass Recycling and Diversion Program (GRDP) in 1997, it failed to
11
implement its own contractual provisions which required that glass be diverted to an on-
or off-island market. Consequently, by not achieving this program objective, the county
created an accountability problem whereby a glass processor could possibly claim for a
reimbursement for glass that was previously diverted, processed, and stockpiled on
private property and for which the processor had already been reimbursed.
In insuring that glass is being diverted, it would also be prudent for the Department to
verify vendor sales to third parties. For local sales, the Department could do telephonic
and/personal followups. For off-island sales, the Department could require receipts from
the off-island buyer. These verifications will dissuade stockpiling and help to insure that
the glass is being diverted to third parties.
Further, in the administration of its contracts, the County has not been consistent in how
glass diversions are being measured. In one case, and in pursuant to the contract, a
vendor submits the required weight tickets from a certified scale as documentation in its
reimbursement claims. In a second case, the vendor does not submit the required weight
tickets but instead utilizes the estimated weights on Bill of Ladings as documentation in
its reimbursement claims. Included, as part of the estimated weight on Bill of Ladings, is
the weight of pallets and packing. Finally, a third vendor computes weight using a
Formula of 2.2 pounds for each 3-liter bottle redeemed as part of its reimbursement
claims.
REPORTING
Additionally, in examining the State-County relationship, we found that the County of
Hawaii was not submitting regular written reports to the State Department of Health
documenting its activities and assessing its participation in the State Glass Recycling
Program. The State Department of Health was also overlooking this inaction.
We were also unable to find a specific evaluation of the Glass Recycling Program by the
Department of Health as directed by Act 201-94. While the Department of Health
provided its annual "Integrated Solid Waste Management Report" to the Legislature in
1977, it only references compliance with Act 324-91 as amended by Act 312-93. If this
report was meant to comply with Act 201-94, then the evaluation on program
effectiveness should have been more systematic.
CO UNTY'S ROLE IN DEMONSTRATING PROCESSED GLASS APPLICATION
Finally, as a recipient of state funds from Act 201-94, the County should have also been
promoting the developmental uses of processed glass, first in roadway demonstration
construction, and then in other construction applications as provided for by the
Procurement Code and the State-County Agreement.
The use of processed glass for construction related purposes has yet to be established on
the Big Island. The enforcement of the glass diversion objectives would surely influence
the use of recycled glass in the construction industry. In continuing its GRDP, the
Department of Public Works needs to reestablish its accountability and controls. As with
its other solid waste diversion programs, the Department of Public Works must insure
that the recyclable material is being diverted.
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COUNTY OF HAWAII STATE OF HAWAII
RESOLUTION N0. 209 g8
RESOLUTION REQUESTING THE LEGISLATIVE AUDITOR'S OFFICE TO CONDUCT A
LIMITED SCOPE PERFORMANCE REVIEW OF THE COUNTY OF HAWAII'S GLASS
RECYCLING AND DIVERSION PROGRAM.
WHEREAS, the County has established a Glass Recycling and Diversion Program, which
derives its funding Y'rom advanced disposal fees established by the State legislature in 1994,
pursuant to Chapter 342G, Hawaii Revised S[a[ules; and
WHEREAS, at its meeting of December 2, 1997, the Committee on Public Works and
Parks received written and oral testimony from the Coalition of Concerned Recyclers who asked
for an audit of the Program and raised questions about (l) the sufficiency of documentation to
prove that glass has been diverted to an on- oroff-island market and (2) whether subsequent
payments were made based on complete claims and appropriate end market verification; and
WHEREAS, the Department of Public Works concurred with the request for a review of
the Glass Recycling and Diversion Program to improve accountability and program
administration; and
WHEREAS, the Council finds that a limited scope performance review of the County of
Hawaii's Glass Recycling and Diversion Program is warranted to determine whether the
payments made to the contractor are being made and documented in accordance with the
approved contract during the fiscal year 1997-98.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF
HAWAII that it requests the Legislative Auditor's Oftice to conduct a limited scope performance
review of the County of Hawaii's Glass Recycling and Diversion Program during the fiscal year
1997-98. The scope and objectives of the performance review shall include, but may not be
limited to, the following:
I. To determine whether payments to the contractor for the glass diversion during
fiscal year 1997-98 were made in accordance with the contract(s).
2. To examine whether the Department of Public Works has taken adequate
measures to assure that the Glass Recycling and Diversion Program's purpose and
objectives have been met, particularly with respect to the legitimacy of the end-
market entity and the re-use of the glass.
3. To evaluate the adequacy of the safeguards which arc in place to monitor the
terms of the contract.
ATTACHMENT A
BE IT FURTHER RESOLVED that the Legislative Auditor's Office may conduct further
examination into major discrepancies or concerns that may arise during the course of the review
beyond the scope and objectives listed above.
BE IT FINALLY RESOLVED that a copy of this resolution be transmitted to Connie
Kiriu, Legislative Auditor; the Honorable Stephen K. Yamashiro, Mayor; and Ms. Donna Fay
Kiyosaki, Chief Engineer.
Dated at Hilo, Hawaii, this 4th day of February, 1998.
INTRODUCED BY
U~.--
COUNCIL MEMI~'E ,~C(~UI~`~Y OF HAWAII
COUNTY COUNCIL ROLL CALL VOTE
County of Hawaii AYES NOES ABS EX
Hilo, Hawaii ARAKAIii
crtunc X
1 hereby certify that the foregoing RESOLUTION way by the LEITNEA0.TODD X
cote indicated to the right hereof adopted by the COUNCIL of the R,~Y X
County of Hawaii on February 4 , 199 8 . REYNOLDS X
ATTEST: sArrrANCELO X
SMITH X
TYLER X
' YAGONG
~ 7 t) 2 t)
'n Refereece C-655/PW~PC A
COUNTY CLERK CHAIRMAN & PRESU)ING OFFICER RESOLUTION NO. 2 O 9 9 H
~r h. Ay
~ t A
~ ry -P
,
"1
Af ~ ~lt~
SECTION 14. Nothing ?rising oui of the Hawaiian convention provided
~rwisc know? lur in this Act, or any resulLs of the ratification vote on proposah li'um [hc
~M the corm Hawaiian convention, shall be opplicd or interpreted ut supersede, conllict.
7H-4. Hawaii waive, alter, or alfecl the constitution, charters, statutes. laws, rule,<, regulWions,
ul compena- ur ordinances of the Stale of Ihnvaii or its pnlilical eubdivisions, includine its
I subsistence respective deparunents, agencies, hoards, and commission.
SHCTION I5. If any provision of this Ael, or the upplicmiun thereat to any
.vaii 1991, is person ur circumstance is held invalid, the invalidity does not affect other pro-
vision or applicalinm of [hu Act which can he given cllea without the inrulid
provision or application, and to This end the provision of this Act arc severable.
~mmission."~
SP.CTION 16. Slat utory material to he repealed is bracketed. New suuulo-
~-s of Ilawaii ry material is underscored.
SF.CfION 17. This Act shall take eflect on July I, 199-1, and shall he
the Billowing repealed un December 11, 1997. u
xeanic docu- [Approved hmc iona.~
v
icstion. Upon
submitted to ~
ACT 20l S.H. NO. _170
A Bill for an Act Relating ro Recycled Mulerialy.
cnnunission
~otcrs and the Be lI Fanned be the Legislahtre u(dte Slmr n(lhnruiF:
xoviding that
SI?CTION I. 'Phc legislature lindn that Ilawaii's cnereg resources and
physical environment must he managed and piatecicd in a manner that ensures
cgute,e Ut the dte heoldt, safety, and well:ve of the citicens ul the StWI' nail prexrves our limit-
ba~thc cum- ed natural resources lia'luture generations.'fhe 1991 Enrrgy and I?nrironntenud
Summit was convened by [he Icgieloture on October K, 1993, to identil)~ iuuca
;mil build broad-h:ued support liir initiatives that will naive Iluvv~aii limvard in the
tiler Act 359, areas of energy and the unvironmenl. "this Act is the reudl of the cullaburali~e
[he Hawaiian cllorts ul participants of the summit.
shall serve as
ct. SECTION ('haptcr 3=F"_'G, Ilawaii Rcviud Stwutcs, is mnatdrd by
adding a new earl hi he apps iipriatcly designated and to read ?s lid lu~a s:
revues ul the
necessary tier "PAIL"P GI,AtiS CON"f:11N1?It K1~:('OVbatl'
ut lands vhall
irv piirv ides a ti;.y3C-A Uel'initions. As uud in This part. miles. ihr rontr<t rcyuires
noes general- other" iac:
..Glass container importer' means any penun uhu is cngagrd in the nwn-
te departmem ufncture of glass conlui ners within the Slule ui ho intporh glass cunutlnen Innn
outride [hc SLUC lin~ sale or ux ~ci~hin the Slate. The Icrm includes li~dcral agen-
t audl necex- ties and military distribwon, hw does not include airlines :wd shlpping canipa-
esempi from nits that muely transport class cumainen.
..Glass inecntive'~ nte:uu an Incentive paid to licensed rreyclcrs liir rec~-
cling glass containers. Such incentives may he svucwrrd w Inchide the costa ul
wire [he State adlectiun and processing, and a "buy back" incemice io increase participation by
t [hc public and priv:dc haulm.
ATTACHMENT B ax3
AC'f 2111
..Glass recocep~ progrom° mane a progrun lix Blau reroven and reuse
liv purposes including but not limited lu:
111 <ilavs comainer reuse ur recycling ~s hereby amlainers ore retitled.
processed lirr shipment out of the Sink. ur crushed info ue^_rcaale
xibstitutc: and
1-') Uxc in roadway materials or amaric us provided in this part.
"Glassphah° means an asph;illic concrete mirlure uliliiine crushed glass,
under controlled gradation conditions, us a xibsiilute fora percentage of the
~I aggrcealc in the arts.
ti3d2G-13 Advance disposal fee. lul liver} ~=1us~ comuincr importer shall
p;iy to the deparunem an advance dispusd Ice. "fhe lee shall he imposed unh~
once on the same ,Jars container and ehall not he oseeurd un drin6ine glaxce.
cups, bo~s~ls, plmes, ash Iroys. and similar tempared gloss containers. Ivrr the peri-
od September I. 199-}. Io September I. 1996. the IrC shall he nne and one-half
cans per elavv cunwincr. 'I'hcrcultcr. the ice shall he sci hs the Iceisl:uure m u
rate the legislature dclcnnines rv~ill permit funding ul nnmiv elas< rcars~ci ~ pro-
grams as required in achieve the lirllm~inc glass rcruccn prugnim goals:
(I) "hwcm~-live per cent by the end of 1906;
f21 Pitly per cent by the end of 199N: and
131 B~~ the end of '_UUO and ihcrealler, the masinuuu unxmnl pr;iclieuMc
considering the economic and cnvirunmcnl;il benefits u, he realised.
~ lbl In January 1995. tha drporlnicnl, with assisuurre lium the aanlly solid
waste divisions, shall evaluate the anunmt ul glass recovered during the lust lit-
leen months of the progr:un and rearnnnend kr the egislulure anv nurdilicaliun in
the ice xtructurc to meet county glass recovery pi ~ierum lundinc rcyuirrnunh.
Thercafier, prior io the convening of the Iegislutise .arson in each suhsryucm
even-numbered year. the department ul health. in cunrdin:uinn ~ruh the counties.
shall report kr the Icgivlauire on the cflxtivencas ul the prugr:un and mal.c appro-
pri;uc rccununcndatiuns Ibr nxulific:uiun ul the tic.
fcl l~he legislature shall hove eaclushr um horih~ uvrr all muucn whject
lu chin chapter.
Idl No counlp .hull impnsc nr collect ;urv uucsvnrm ur li~c un class cnn-
tamers Inr the some ar similar pmpo<e shat is whjecl of Ibis chapter.
~3a2G-C Glass arotainer importers; registration, record keeping
i requirements. l:U 13y Septrm her I. 1991, all elan enntuiner impuncn opci,uing
within the Suuc shall rceistcr ~n ilh the dcparlnicnl. urine limm prr.crihcd hs the
deparlnicnL ;uxl shall nosily the deport nicnl nl un}' rh:urge in uddrrss. rAIler
- Sepicnrher I. 1991, nap person ssho desires w rnnduei business In Ihie Suuc :n a
glass comuincr imparter shall rcgistcr with the drpunnrcni nn Imcr Ihun unc
nuimh prior io the conuncna•nicni ul the husinru.
(h; All gloss container iny~urlco recisicrcd s~ith nc~ dcp;irlnicm shall
maintain records rcllraine the m:mul~ucnur ul their class cnnwincn as ssrll as
the impnnmion and rvpon;u inn of products earl.uerd in glu,,. l he rcumis ,hull
he made ;n ;iihihle. upon req ucsi, Ibr inspeeiiun h~ the depurlniene procidnl Thai
i
any pnryiriciary inlixuru sun obtained b~ Ihr deparuucni shall he Lept cunlidenuul.
i ;uxl .hull nut br disclosed iu ;un' other prrs[m creeps:
~ U1 As arty br rcuum;ihly required in an udniinistrwise nr judiriul prn-
cccding In enlnrce unq prtrvision of Ibis rhnplcr ur um tort adopted
purui:uu lu ibis chapter. or
t31 Under un order issued he a cnun ur ?dminislruuce ueencs hairinu
olfcrr.
.~x.r
AC"P 2111
~ecnvery and reuse ~342G-U Deposit into envinnunenlal management special fund; dis-
iribulion to counties. lal Revenue, ecnerucd lion the advmice disposal fee
ainers arc refilled, shall he deposited into a special account in the environmental management fund.
hnl into aggregate Moneys Iron the special a¢ounl shall be used Ia land county glass recovery pro-
grams estahlishal in uccordmu~c with the reyuiremenls under section 3-1_'GP;
in This earl. provided th;n no numcys shall be mode availnhle w u county unless the count)
pine cruvhed glass, h.rs Iirsl submiucd its lormally adopted integrated solid waste management plan
pcrccnwgc of the w the dcparuncm for review. In the event of anq surplus in the spcclnl account,
the deparimem shall recommend ;I reduction in the Ice as deemed necessary.
finer importer ehall (bl The department shall dill rihulc the moneys contained in the speci:d
I he impoud only account lu the caustics in proporlum to the auuwnt of glass imported into each
~ drinkine glosses, anulty bated on the county's do facto population. ~hhc distribution shall he in the
Incrs. Par the prii_ loan ofdirect comracls with the depurunem us permitted under chapter Ill3 and
one and one-h;df IUID.
he Icei,elanire m a (cl Nu more Ihun Ica per rent. in the aegregate. o(the revenue collected in
Jasv rrcovcry pro- ?ny one year may be used by the depaltmrnl lix administrative and eduattional
tom ~_oals. Purposes ;uul to promote glass recovery, recycling. and reuse in Ilawaii Ihrough
research and dcnxnulrwion projccu.
unount practic;lhle ti3~l2Gd? Container inventory report and payment. l;u Payment of the
file to be rcaliicd. advance Class disposal fee shall be made quanerlp based on inventory reports of
nl the county solid the glass comainer importers. Roc the I'irxl payment. all ,_la<s cnmainer importers.
lurine the lire lil~- on ur bclare January I5, 1995, shall wbmit to the dep;u'tmcm documentation in p
ny nuxliliullion in stdllcient detail Ihal idemil'ies the nundmr of glum containers m:uwhlcwrrd or ~
ling rcyuircmems. imported to the State and veld or diwributcrl, by manufacturer or distributor. dur-
I each xibxyuent 'mg the calendar quarter ending December 31, 199-1.
ti~llh the counties, (b1 The unxnult due li~om Blass container imposers Iesp glass containers
n and make aggro- exported liar the calendar yuascr ending December 31, 199-1. shall be the sum I
equal w the number of glass container provided in subsection U0 multiplied by
all muucrs subject the adv;uue disposal ice of .015 crnls. Pas mem shall be made by cltec4. or nunx•s
Ice on ghtss con- order payable to the "Dep:u1mem al Ile:dlh, Slate ul I law uii". All subsequent
Ipler. inventory reporh :uul payment,. shall he made not later than the liftecmh d:n of
the numth liillosving the end of the precious calendar quarter.
rcamdkec tin
nportrrs opcruun~ §3~2C-1' County glass rccuscry' progr:nns; rcyuircmcnts, Is All coun-
prcscrihcd b~ Ihr ly glass recovery prop rams shall include:
in nddrex<. After ~ ll l Soinr limn of gla,e, inccmirc or ..buy buck" pmeranl pros iding a
in This Slate as :I means of nxouragme puniapauan b~ the public or pr'rvale collco-
lU :IIC I' Ulan UOC IUI'1; ;Intl
l~l 'fhe paving during each of the lirsl ncu year of the ryuis alem al oar
depurlmenl ehall mile of tuna lone asphalt roudw;p- us pas of a research and denuln-
I;lincn as well as ~ stl;ulon program utiliiinp glassphall.
"Phe retards shall lhl In addition. counl~ programs may include hw shall not be IinuteJ to:
col: pmvidcd Ihal ~ III Ivndinp ol,the adlrcuon and prams,ing of ^_luss canwincrs rithrr
Lept tonlidenlitll, Ihrough costing counts agencies or Ihnni_h rslrrnal tool earls for
i services:
:c of judicial pro- ~ (_'1 Subsidiiine the tr:ulspun;uion ul procrsscd nlulcrial to ail-island
- um rule adopted murkch:
f31 'I~hc decclupmcnl of collccnon luciliur, ar the pros isian al amwin-
r agency belting i cits lilt glass recytling, or the irerenlrnlul portion, of nnllli-nullrriul
Proerums:
i gli5
AC"I' 201
f4) Additional research ?nd devclopntent programs, including grants to
private sector entrepreneurs. especially Ihuse actis~iiies developing
higher v:due uses tin the nuucrial; and
~i l51 Public education and awareness programs (i~cusing on glass recov-
ery, or the incremental portions pf nudti-nutterial progtams.
53a2G-(: Contract for adminisirati~~e ser~~ices. The dep;u'tmenl may
contract the services of a third parry to administer the advance disposal tee pro-
gram under this port.
a ti3d?G-H Penalties. Any person who violates any provision of [his part_
or any rule adopted (hereunder, shall he fined not more than $IO,000 for each
separate o(fenxe. Each day of each violation shall constitute a sep;u'ate offense.
AnY action taken io impose or collect the penalty provided for in this section
shall he considercJ a civil action.
ss'3~12G-1 H;nforcement. The dep;irtment of hrilih shall enl~xce this part"
;
SEC"PION 3. Acl H, Special Session Low,v of Hawaii 1993, is amended by
adding a new section to pan IV of (he clutpler established in section ? of the Act,
to read as follows:
y
V
~ - Construction ~rrnjects. rnndwav materials: recycled Blass
v' content rec~irements. When purchasing roadway materials or other high-
value, end-uae a~lications for,~ubli~rojec[s, state a ~encics shall and county
a encic< nw urchuse materials with mininnun recycled ,~~eti ccontent meeting
s~cifications adopted bite nolZy office w tich. at a minimum. sh:dl provide
~ Irn_.
A minimum recvcled glass content of ten per cent crushed aeereeate
'iii Ire;ited or unlre:ucd h:tsecoume in n;irin~nnierialx that shall not
reduce the uu_di~ suuxhods liar hi~~a and road construction: and
The me of one hruxlred~ centi„~
~~e in nonstructural capit:d
improyemcm ap~lica7ionti_
(bl All hi~~hwav and road construction and inmm~~entent pro,Lcis landed
by the Stale or a cuhnly ar ro;id ways [hut arc w he acccpied~te Slane or u
c~~unty as wMic roads shall u,tiliie a minimum of Iep~ier cent crushed class
acereealc, wish one hundred~cenl pauine a ono-limnh inch sieve. in all
basecouisc (reared or uutrcated) and uibb~ise when the class is a~uilahic to Ilu
c
ua~~~r aul[raclor m a price nu greater Ihait
tl[hat of the euuiealeitt ~i~r •~~~ue,
~cl All Mate ?nd county construction nro~cc[s cullim~ liir noustructurul
hacklill sh_tll utilize one 6undrec~mr cent crushed ~i_s when availabl=ut a cost
ec ual to or lower than the c~i~alem :a~r_~alc.
~dl Ae used in this section:
F3a~ccour~e" nirins hltc Igycr or I:~crs of spccilie~l
materiol or selecicd
nuuerial of n desired thickness io u~ nxi
;i
wsurface anii±c.
"Gnvironmen.uil mona~~mem ~ecial land" ratans
the (imd established h~
I ~eciion 7.12Ci-63.
..Nonstructural back fill" mc:~ns use u9 fill in areas not subject to structural
lo_idiit R. incliulin,~bu( nia_ limited to wilier line beddinedrainaee hucl.lill behind
rcluininc w_ills.~~lraina ~c line hnck~ill in Icachfelds
~rc french drains and sinlilui
i uses.:.
i til'C"(ION I. Section ?6~! K.S. Ilnwnii Recieed S[ntrnes, i. repealed.
J7ifi
ACT 2112
ams, including grants to SECTION 5. In codifying the new part added to chapter 3-12G. Hawaii
use activities developing Revised Statutes, by section 2 ul this Acl. the revisor of stanncs shall xtbstitutc
appropriate section nwnhera for the levers used in desienuting the new elections in
lxvsing on glass reaiv- this Act.
serial programs.
SE("fION 6. Statutory material to be repealed is bracketed.' New stnlmo-
"fhe department may ry material is underscored.
Iv:uur disposal lee pro-
SGCTION 7. This Act shall utke el feet upon its appnrval: except Ihat erc-
tions 3 and 4 shall lake effect on .luly I. 199-f.
ry provision of this pan.
Ihan $IO,000 for each tApprt,vedJwic_'~, iew.t
tone a separate oflense.
~ided for in This section N~~t~
L GdiicJ punuunl to HRS §'-7(1-I65.
i shall enforce this part"
ACT 202 S.I3. NO.'_IT_ y
aii 1993, is amended by
I in section 2 of the Act, A Rill for an Act Relating to the Clean Hawaii Center.
Re ll fllutrled by the Legislahtre nC dte .Store o(Hantrii:
~~aterialy: recycled ehsc SEC"PION I. The Ie~>islature find, th:u Hawaii'. energy resources and
nmerials or other hi ~h- t
•ncies shall and count physical environment nulxt be numaged and protected in a manner Ihat ensures
d Mass cumem meclinc the health, s;d~ety, ;md welLlre of the citizem of the State and presen~es ollr limit- ;
ninimum shall mrvic~e eel oat w'al resources for future generations. The 1993 Enerey and I:nvirnnmrntal
Summit was convened by the legislature on October H, 1193, to idcmily issues
r cent crushed ucereeate and build broad-based support Ibr initiatives tltal will move Ilawaii (onvard in Ihr
nutierials that shall nut areas of energy and the environment. This Act is the reeult of the collubur;nicc
I roil construction and efforts of participants of the Summit.
in noltslruclund cunihtl The legislature Im'ihcr finds that Act 312, Sexiun Lnws of Hawaii 1993,
established a system of landing hi wpport wlid waste management programs and
vemenl projects funded activities of the depanment of health, and to place the cost u( the uctivilics on the
c ~ted by the Stale or a waste generwor. 'fhe environmental management speei:d fund created hs~ Acs 3 C
net cem cru~ehed claims receives moneys from a Solid waste disposal xu~chargc paid by the entih~ duim•
ninlt inch sieve in ;ill the dispasol bused un the tonnage of waste dig>postd of at Ihr hucility. As udnlinis-
dlass is available to the ~ iruor ul the special liuuh the deparment of hcahh is rcyuired to use ihr munr~s
Uuiv:dent ~tecr~~ule to partially fund the upertling costs ul' the uilid nnste munagenlrnl pruer;un.
.thing for nonvlructur'd ~ annual training Ibr municipal wlid waste operator. noel st;uru'ide education.
vhen ovailahie nl a cost ~ demonsi ration, and market de~~clupmem pi ~ierums tlu iiu~h direct contracts nh
the coumirs and the depnrlmrnl of business, economic drvelopntent. :un unin,m_
Act 32d, Srssiun Laws of Ilawaii 199E cudilicd the Sou e's goal of rcdur
eel material or selected ing the solid waste stream by twrnty-live prr cent hp Junuun I, 19V5. ;unl h~
silty per cent ny Januan' I. 30U11. Although stair and county ugrncirs as nets us
Ihc_lund c_siablishci~' pris-;uc induetry have worked earnestly to encourage rrcycline, thr currrm tnlius-
Iruct w~e tix collecting. processing, and ututspuninc puss-amunnrr rrc~cl;lhr
nu~cct to xlrucluril i m:ueriul is still inadeq uatr. Only uhaw riot per crm ul Ihr solid n:tsre erncr:ur~l
Irtmagc hacklill behind ~ in the Slate is Beim, recycled. Onc reason is that must ul Ilan uii~s rresrled in;ur
nch drains.:md similar ~ ri;tls arc currently esponed, since local markeh stir req•ulyd „cods urr alnin,i
nunexislenl.
~fhc Iccinlamrc believes Ihat if there Is to be sienil'i c;uu pro ~ress in the
ales. is reprded. diverainn of a larger portion of solid ~rnstr tium lundlllls. local markrh lur
axe
oJMTY N h,4''
Stephen K. Yamashiro c; Donna Fay K. Kiyosaki
Mayor - ~ Chief Engineer
r
Jiro A. Sumada
Yj~•••oi'+kt~ Deputy Ch~eJ Engin ee.
~ixixixtu a£ ~ttiuttii
DEPARTMENT OF PUBLIC WORKS
25 Aupuni Sneel, Room 202 • Hilo, Hawaii 96T10A252
(808)961-8321 • Fax (808)961-8630
August 28, 1997
MR LAWRENCE MIIKE
DIRECTOR OF HEALTH
ADMINISTRATIVE SERVICES OFFICES RM 312
STATE DEPT OF HEALTH
HONOLULU HI 96801
SUBJECT: AGREEMENT FOR NON-BID PURCHASE OF GOODS AND SERVICES
GLASS RECOVERY PROGRAM
Adm. Serv. Office Log No. 98-003
Enclosed is the executed original of the subject agreement for
further execution. Please send us an executed copy for our
files.
DONNA FAY K. KIYOSA P.E.
Chief Engineer
Enclosure
ATTACHh1EPJT C
STATE OF HAWAII
eruFFNiF1VT FOR NON-BID PURCHASE
OF GOODS AND SERVICES
This Agreement, executed on the respective dates of the signatures of the parties
shown hereafter, is effective az of July 1 ~ lg 97 ~ betwern the
DEPARTMENT OF HEALTH ,
n., r"..r. w>. . ~ a..rl
State of Hawaii (hereinafter "STATE by lts DIRECTOR OF HEALTH
(hereinafter "DIRECTOR"), and the County of Hawaii ,
(hereinafter 'CONTRACTOR'), a body politic and corporate
under the laws of the State of HAwArr ,whose business address and
taxpayer identification number are az follows: county of Hawaii, Dept- of public works,
25 Aupuni St. Room 202, Hilo, HI, 96720 Taxpayer ID # 99-6000567
RECITALS
A. The STATE is in need of the goods or service, or both, (also referred to az
"goods and services'), described in this Agreemrnt and its attachmrnu. The CONTRACTOR
is agreeable to providing the goods and services.
B. This Agreement is for (check one box):
? (1) an emereencv procuremrnt of goods and services az set forth in section
103D-307, Hawaii Revised Statute ('HRS'), and the rules adopted by the Procurement Policy
Office, hereinafter referred to az 'Procurement Rules'; or
0 (2) a sole source procurement of goods and services az set forth in section
103D-306, HRS, and the Procurement Rules; or
U (3) a small yurchase procurement of goods and services az set forth in section
103D-305, HRS, and the Procurement Rules; or
® (4) a procurement ezprnditure of public funds for goods and services that is
otherwise expressly xemvt from public bidding by the following law or regulation:
section 103D-102 (b), Hawaii REvised Statutes
C. Money is available to fund this Agnxment pursuant to:
Item D-1, Act 1997 HSL_-0r (2)
Or both, in the following amounts: Stale ~ 216,000.00 (Special funds)
Federal 5
ADM. SERV. OFFICE
LOG N0. ~ 98-003 Form Alas-IC(2) (IA6)
D Pursuant to section 342Cr84, IiRS ,the STATE is authorized [o
...r . r..'.~..,
rntcr into this Agreement.
NOW, T~REFORE, in consideration of the promises contained in this Agreement, the
STATE and the CON'TRACT'OR agree as follows:
1. of Services. The CONTRACTOR shall, in a proper and satisfactory
manner as determined by the STATE, provide all the goods and services set forth in Attachment
1, which is hereby made a part of this Agreemrnt.
2. Time of Perform nrr 'The performance required of the CONTRACTOR under
this Agreement shall be completed in accordance with the Time Schedule set forth in Attachment
2, which is hereby made a part of this Agreement.
3. Comprnsation. The CONTRACTOR shall be compensated in a total amount not
to exceed TWO HONORED SI%TEEN T90IISAND AND NO/00 DOLLARS 216,000.00 ~
including approved costs incurred and razes, according to the Compensation and Payment
Schedule set forth in Attachment 3, which is hereby made a part of this Agreement.
4. T3onds• The CONTRACTOR (is)C(is not) required to provide a (performance)
(payment) (performance and paymrnt) bond in the amount of NONE
DOLLARS
5. Standards of Conduct Decl *ation The Standards of Conduct Declaration of the
CONTRACTOR is attached and is made a part of this Agreement.
6. Other Terms and Condition The General Conditions and any Special Conditions
aro attached hereto and made a part of this Agreement. In the event of a conflict betwxn the
General Conditions and the Special Conditions, the Special Conditions shall control.
7. Liquidated Damages Liquidated damages shall be assessed in the amount of
Not applicable DOLLARS 1 ~ day, in
acrordana with paragraph 9 of the General Conditions.
ADM. SERV. OFFICE
I.OG N0. 98-003 _ c~ • r-, vn~ i, ~
Nodces• Any written notice rzgttired to be given by a parry to this Agnxment
shall be (a) delivered personally, or (b) unt by United Stairs first class mail, posrage prepaid.
Notice required to be given to the DIRECTOR shall be sent to the DIRECTOR's office in
ADMINISTRATIVE
Honolulu, Hawall. Notrce t0 thr agency procllremcnt Officer Shall be unt t0: SERVICES OFFICES,
ROOM 312, STATE DEPT. OF HEALTH,
P.O. ,BOX 3378, HON. , HI 96801 Notice to the CONTRACTOR shall be Sent [o the
CONTRACTOR at the CONTRACTOR'S addrtss as indicated in this Agreement. 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 addreu.
IN VIEW OF THE ABOVE, the parties execute this Agreement by thew signatures, on
the dates below, to be effective as of the date first above written.
STATE
By
PIIIIt Name LAWRENCE MAKE
Tl[lC DIRECTOR OF HEALTH
Date
Anx. ssxv. orFic$
I.OG N0. 98-003 3 Foam AGZ. K(2)
CONTRACTOR
RECONMEL]D APPROVAL: By titi
' ' Pnnt NaR1e STEPHEN K. YAMASHIRO
DONNA FA K KIY P.E,
Chief Eng~ ear
Tlue MAYOR, COUNTY OF HAWAII •
Date ~ I ~o /9 `I
APPROVED AS TO FORM:
Deputy Attorney General
•Evidence of authority of the CONTRACTOR's representative to sign this Agreement for the
CONTRACTOR must be attached.
APPROVED AS TO FORM AND LEGALITY:
~GC.Ctf
cc-'UTY Cop ration Counsel
Dated: Qll~ - S 1997
ADM. SERV. OFFICE Foam A132-K(~ (1/96)
LOG N0. 98-003 4
STATE OF HAWAII )
ss:
COUNTY OF HAWAII )
On this ~ ~ day of 19 9'1 ,
before me, QYtvrltw, K K.o~~1 the undersigned Notary
Public, personally appeared STEPHEN K. YAMASHIRO, to me
personally known, who, being by me duly sworn, did say that
he is the Mayor 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 on behalf of 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 (1991), as amended; and said
STEPHEN K. YAMASHIRO acknowledged said instrument to be the
free act and deed of said COUNTY OF HAWAII.
~ . ~~e;
Notar Public, S ate of Hawaii
My commission expires: (6 xoo
L_ S-
(THIS FOR' ~ DELETED AND INOPERATIVE)
STANDARDS OF CONDUCT DECLARATION
For the purposes of this declaration:
'Agemry' means and includes the State. the legislature and its committees, all executive
departments, boards. commissiotu, committees, b~~*+~+~~. offices. the University of FIawaii, and
all inde:per[dent commissions and other establishments of the start governmen[ but excluding
the couru.
'Controlling intestst' means an interest in a business or other undertaling which is sufficient
in fact to control, whether the interest is greater or less than fifty per arrt (50%).
'Employee' means any nominated, appointed. or eiecrtd offiar or employer of the Stet,
including members of boards, commissions, and committees, and employers under contract to
the Stott or of the constitutional convention, but excluding legislators, ddegatrs to the
constitutional convention, justiar, and judges.
On behalf of ,CONTRACTOR, the undersigned don
declare as follows:
1. CONTRACTOR f sl fir noel a legislator or an employer or a business in which
a legislator or an employee has a controlling interest. •
2. CONTRACTOR has na hart assisted or represented by a legislator or employer for
a fee or other compensation to obtain this Agreement and will not be assisted or represatttd by
a kgtslaror or employee for a fer or other comper[sation in the performance of the Agreement,
if the legislator or employer had bean involved in the development or award of the Agreement.
3. CONTRACTOR has not hero assisted or tspresenttd for a fee or other compensation
in the award of this Agreement by an Agency employer or, in the case of the Legislature, by
a legislator.
4. CONTRACTOR has not bern teprrserrted or assisted personally on matters related to
the Agreement by a person who has been an employee of the Agenry within the preceding two
(2) years and who participated while in state office or employment on the matter with which the
Agreement is directly .
5. CONTRACTOR has not beret represented or assisted on marten related to this
Agreement, for a fex of other rAnsideradon by an individual who, within the past twelve (12)
months, has beret an Agenry employee, or in the case of the T.LglslaIIlIe, a legislator.
6. CONTRAC'T'OR has not beer[ rep:estrnted or assisted in the award of this Agreanent
for a fee or other catsideation by an individual who, a) within the past twelve (12) months,
saved as as Agency employee ar in the are of the Itgisiantre, a legislator, and b) participated
while an employee or legislator on rtnatters related to this Agttrrneat
r~ wet-te(a) tiss?
CONTRACTOR understands that the Agreement tv which this document is attached is voidable
on behalf of the STATE if this Agreement was entettd into in violation of nay provision of
chaptc 84, HRS, commonly ttferred to as the Code of Flh~, including the provisions which
ats the source of the declatatiotu above. Additionally, any fee, compensation, gift. or profit
ttxeivcd by any person as a rrsttlt of a violation of the Code of Ethia tray be rtxmered by the
STATE.
DATED: Honolulu, Hawaii, ~ 19_•
CONTRACTOR
sy
Title
'Reminder to Agency: If'is' is circled, the Agency is requitzd, undo section 84-15, HRS, to
file with the State Ethics Commission, ten (10) days before the Agrzetnent is entered into, a
wrinen justification as to why the Agreement was not tzquited to be compcdtively bid.
F'oim AG'2-[(4) 1/96)
Attachment 1
SCOPE OF SERVICES
The CONTRACTOR shall:
1. Operate and maintain five (5) recycling drop-of;'
facilities for the public on the island of Hawaii.
2. Develop and maintain a public education and
informational campaign to promote the glass recovery program and
encourage participation. The public education campaign shall
incorporate radio advertisement, flyer distribution, proper
signage and on-site promotion, a public relations representative
to oversee the public education campaign, and to work with
community groups to address concerns about the program and its
operations.
3. Monitor and record all activity at the glass recovery
sites and adjust weekly pick up schedules as needed to maximize
recovery.
4. Maintain records of all volumes processed, diverted,
and collected at each recycling drop-off site.
5. Evaluate recovery volumes from each of the five (5)
recycling drop-off sites and address measures to increase
participation and increase volumes recovered at each site.
6. Submit quarterly written reports to the STATE
documenting the volume of glass collected through buy-back and
other incentive programs throughout the County of Hawaii,
assessing successes or areas for improvement, and the status of
tasks identified in this scope of services.
7. Pave the equivalent of one mile of two lane asphalt
roadway as part of a research and demonstration project as
stipulated in Act 201, HSL, 1994. This provision is based upon
paving either a roadway or bikeway, and is conditioned upon the
availability of pulverized glass collected and processed on the
island of Hawaii suitable for use in asphalt repaving or bikeway
repaving.
ADM. SERV. OFFICE
LOG NO. 98-003
ATTACHMENT 2
TZME OF PERFORMANCE
1. The CONTRACTOR shall provide the services required
under this Agreement from July 1, 1997, to and including June 30,
1998, unless this Agreement is sooner terminated as hereinafter
provided.
2. Option to Extend Agreement. Unless terminated, this
Agreement may be extended for not more than three (3) additional
twelve (12) month periods, upon mutual agreement in writing at
least sixty days prior to expiration of this Agreement and the
execution of a supplemental agreement.
This Agreement may be extended provided that the Agreement price
shall remain the same or is adjusted per the Agreement Price
Adjustment provision stated herein.
The CONTRACTOR or the STATE may terminate the extended Agreement
at any time upon sixty (60) days prior written notice.
3. Agreement Price Adjustment. The Agreement price may
be adjusted at the beginning of each extension period and shall
be subject to the availability of special funds.
ADM. SERV. OFFICE
LOG NO. 98-003
ATTACHMENT 3
COMPENSATION AND PAYMENT SCHEDULE
In full consideration for the services performed by the
CONTRACTOR under this Agreement, the STATE agrees, subject to
allotments to be made by the Director 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 TWO HUNDRED
SIXTEEN THOUSAND AND NO/100 DOLLARS ($216,000.00), which shall be
paid from Appropriation Account No. S 98 348 H 000 331 372 and in
accordance with and subject to the following:
a. Payments shall be made in quarterly advance
installments upon the quarterly submission by the
CONTRACTOR of invoices in triplicate for the services
to be provided in accordance with Attachment 1, "Scope
of Services." The first payment shall be an advance
installment of approximately one-half (1/2) of the
total compensation due to high start-up costs of the
program, and shall be made within approximately thirty
(30) calendar days after execution of this Agreement.
The STATE shall withhold payment of approximately one-
twelfth (1/12) of the total compensation from the last
advance installment until final settlement of this
Agreement.
b. Final settlement of this Agreement 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
performance of services, and completion of all other
outstanding matters under this Agreement.
ADM. SERV. OFFICE
LOG NO. 98-003
GENERAL CONDITIONS
Table of Contents
Eae~151
1. Coordination of Ser: ices by Lhe STATE I
2. Relationship of Parties: Ind4pendrnt Contractor Status
and Responsibilities. Including Tax Responsibilities 1
3. Personnel Renuiremrnts 2
4. Nondiscrimination 2
5. Conflicts of Interest 2
6. Subcontracts and Assignments 3
7. Indemnification and Defrnse 4
8. Cost of Litieation 4
9. LiQuidated Damages 4
10. State's Right of Offset 4
11. D~putes 5
12. Suspension of Agreement 5
13. Termination for Default 6
14. Termination for Convrnience 8
15. Claims Based on the Agency Procurement
Officer's Actions or Omissions 10
16. Costs and Expenses 11
17. P~ymrnt ProcN+ures: Final Payment: Ta? Clearance , , , , , , , , , , , , , , , , , , 12
18. Federal Funds 12
i rrono wcz-cc(tro~)
19. Modifications of Aezeement . 12
20. Chance Order 14
21. Psicx Adiustment 15
22. Variation in Ou?ntity for Definite Quantity
AEa&mIrIILS .......................................:...16
23. Cha"Ees 'n Coc_t-Reimb ~rc_rment Aereement 16
24. Confidentialiq~ of Material 17
25. PubliFilx 17
26. Ownership~Ehtc and Coovneht 17
27. Liens and Warranties 17
28. Audit of Books and Records of the CONTRACTOR 18
29. Cost or i?ricinE Data 18
30. Audit of Cost or i?rici~p Data 18
31. Records Retention 18
32. Antitrust Claims 18
33. Minimirine ConEestion 18
34. GoverninE Law 18
35. Compliance with Laws 19
36. Conflict between General Condition and
I'mcurement Rules 19
37. Entire At'~ment 19
38. SeverabiLtv 19
39. Waiver .........................................'.....19
ii ~ nc2~;c{troa) .
GENERAL CONDITIONS
1. Coo_*dir~tion of Setvice_c by Lhe CTATE. The 'head of the purchasing agenry,' (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 sh :l 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, HI2S, or its implementing rules and procedures, or by way of delegation, to enter
into contracts for the procurement of services.
2. Relationship of ParNes• Indrt+rndent Contractor Statue end Re.4ponc;h;l;Nrc t~~t„~;n,
Tax Remonsibilities.
a. In the performance of services required under this Agreement, 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 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 otherwix 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 endtics while under contract with the STATE.
b. The CONTRACTOR and the CONTRACTOR'S employees and agents are not by
mason of this Agreement, agents or employees of the State for any purpox, and
the CONTRACTOR and the CONTRACTOR'S employers and agenu shall not
be entitled to claim or receive from the State any vacation, sick lave, retirement,
worker' 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 Agreement.
Furthermore, the CONTRACTOR intentionally, voluntarily, and knowingly
assumes the sole and entire liability to the CONTRACTOR'S employers and
agents, and t0 any individual not a party to this Agreement, for all loss, damage,
or injury caused by the CONTRACTOR, or the CONTRACTOR'S employxs or
agents in the courx of their employment.
I From AG2•GC(1/96)
d. The CONTRACTOR shall be responsible for payment of all applicable federal,
state, and county fazes and fees which may become due and awing by the
CONTRACTOR by reason of this Agreement, including but not limited to (i)
income fazes, (ii) employment related fees, assessments, and fazes, and (iii)
general excise razes. The CONTRACTOR also is responsible for obtaining all
licenses, permits, and certificates that may be rcquircd in order W 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 rrquirements thereof. The CONTRACTOR shall obtain
a tax clearance certificate from the Director of Taxation, Start of Hawaii,
showing that all delinquent taxes, if any, levied or aarued 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 final 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
agenu that is or may be required by law, and for payment of all premiums, costs,
and other liabilities associated with securing the insurance coverage.
3. Personnel Requirements
a. The CONTRACTOR shall secure, at the CONTRACTOR'S own expense, all
personnel required to perform this 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 law,
and all applicable accreditation and other standards of quality generally accepted
in the field of the activities of such employers and agents are complied with and
satisfied.
4. Nondiscrimination. No person performing work under this Agreement, including any
subcontractor, employs, or agent of the CONT'RACT'OR, shall engage in any
discrimination that is prohibited by any applicable federal, state, or county law.
5. Conflicu of Interest. The CONTRACTOR represents that neither the CONTRACTOR,
nor any employee or agent of the CONTRACTOR, presently as any interest, and
promises that no such interest, direct or indirect, shall be acquire.. that would or might
2 rrorm wc2-cctt~)
conflict in any manner or degree with the CONTRACTOR'S performance under this
Agtexment.
6. Subcontracts and Assienmen c, The CONTRACTOR shall rat assign or subcontract any
of the CONTRACTOR'S dudes, obligations, or interests under this Agreement and no
such assignment or subcontract shall be effective unless C) the CONTRACTOR obtains
the prior written consent of the STATE arrd (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 Agreement shall be effective unless and until the assignment is
approved by the Comptroller of the State of Hawaii, az provided in section 40-58, HRS.
a. Recognition of a c_uccessnr in interest. When in the best interest of the State, a
successor in intrsrst may be recognized in an assignment agreement in which the
STATE, the CONTRACTOR and the azsignee or transferee (hereinafter referred
to az the "Assignee") agree that:
(1) The Assignce 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 az against the
STATE; and
(3) The CONTRACTOR shall continue to furnish, and the Assignee shall also
funish, all required bonds.
b. Chance of name. When the CONTRACTOR azks to change the name in which
it holds this Agreement with the STATE, the procurement officer of the
purchasing agency (hereinafter referred to az 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: $~pQ~, All assignment agreements and amendments to this Agreement effecting
changes of the CONTRACTOR'S name or novations hereunder shall be reported
to the CPO within thirty days of the date that the azsignment agreement or
amendment becomes effective.
3 Foy wcs-cc(tro~
d. Actio s affectir~ more than one putchasng aerncv 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 agrxmrnts 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' fern, and all claims, suits, and demands therefor, arising out of or resulting
from the acts or omissions of the CONTRACTOR or the ~~ONTRACTOR's employees,
officers, agents, or subcontractors under this Agreement. The provisions of this
paragraph shall remain in full force and effect notwithstanding the ezpirdtion or early
termination of this Agreement.
8. Cost of ration. 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 Agreemrnt, the CONTRACTOR shall pay all costs and expenses incurred by or
imposed on the STATE, including attorneys' fees.
9. ) iquidated Damaeg,, 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 Agreemrnt 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 shall remain liable for
damages caused other than by delay.
10. State's Right of Offset. The STATE may offset against any monies or other obligations
the STATE owes to the CONTRACTOR under this Agreemrnt, 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 limitation, the payment of any taxes or levies of any
land 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 w by
the CONTRACTOR, and are covered by an installmrnt 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
Q Frorm AGZ1iC(1/96)
not delinquent on, any payments or obligations owed to the State of Hawaii under such
payment or other settlement plan.
11. I2imttt~. Disputes shall be resolved in accordance with section 103D-703, HRS, and
chapter 126, Procurement Rules, as the same may be amended from time to time.
12. Suq+ension of Agreement. The STATE reserves the right at any time and for any reason
to suspend this Agreement for any reasonable period, upon written nodix to the
CONTRACTOR in accordance with the provisions herein.
a. Order to stop
nerf~ The Agency procurement officer, may, by written
order to the CONTRACTOR, at any dme, and without notice to any surety,
require the CONTRACTOR to step 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 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. Upon receipt of such an
order, the CONTRACTOR shall forthwith comply with its terms and suspend all
perforrance under this Agreement at the time stated, provided, however, the
CONTRACTOR shall take all reasonable steps to minimize the occurrence of
costs allocable to the performance covered by the order during the period of
performance stoppage. Before the stop performance order expires, or within any
further period to which the parties shall have agreed, the Agency procurement
officer shall either.
(1) Cancel the stop performance ordcr; 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. C?ncellation or exyitadon 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 therwf 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 dme required for,
or in the CONTRACTOR'S cost properly allocable to, the performance of
any part of this Agreement; and
(2) The CONTRACTOR asserts a claim for such an adjustment within thirty
(30) days after the end of the period of performance stoppage; provided
S Forto wc2-cc(t/9~
that, if the Agency procurement office decides that the face justify such
action, any such claim asserted may be received and acted upon at any
time prior to final payment under this Agreement.
c. Termination of stoor~t performances If a stop performance order is trot
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 otherwix.
d. A~,justment of Drier. Any adjustment in contract price made pursuant to this
paragraph shall be determined in accordance with the price adjusunent provision
of this Agreement.
13. Termination for Default.
a. I2Gfiylt, If the CONTRACTOR refuxs 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, otherwix fails to
timely satisfy the Agreement provisions, or commits 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 xrvices in a
manner and upon the terms deemed appropriate by the Agency procurement
office. The CONTRACTOR shall continue performance of the Agreement to the
extent it is not ttrtninated and shall be liable for excess cosu incurred in
procuring similar goods or xrvices.
b. CONTR.ACTOR's duties Notwithstanding termination of the Agreement and
subject to any directions from the Agency procurement officer, the
CONTRACTOR shall take timely, rmsonable, and necessary action to protect and
P~'e Property in the possession of the CONTRACTOR in which the STATE
has an interest.
c• ~.41D1~t14p. 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 Agen~~ procurement officer shall set an amount subject to the
CONTRA•.:OR's righu under chapter 126, Procurement Rules. The STATE
may withh~4d from amounts due the CONTRACTOR such sums as the Agency
6 >n~ ~c2-ac(t~
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
cosu expected to be incurred by the STATE in procuring similar goods and
services.
d. F.rc~ce~ for nonperformance or dela~~rformance. The CONTRACTOR shall
not be in default by reason of any failure in performance of this Agreement in
accordancx 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 az: acts of God; acts of a public enemy; acts of the State and any
other governmental body in its sovereign or contractual capacity; furs; floods;
epidemics; quarantine restrictions; strikes or other labor disputes; freight
embargoes; or unusually severe weather. Tf the failure w 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 melt 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. Erroneous termination for default If, after notice of termination of the
CONTRACTOR'S right to proceed under this paragraph, it is determined for any
reason that the CONT'RACT'OR 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 az if the notice of termination had been issued pursuant to such
provision.
f. Additional right 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
7 Fong AG2-0C(IN6)
14. Termination for Convenience.
a. T'ctmination. 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 part 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 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 perforrnarrtx 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
(2) The partially completed goods and materials, parts, tools, dies, jigs,
fixtures, plans, drawings, information, and contract rights (hereinafter
called 'manufacturing material') as the CONTRACTOR has specifically
produced or specially acquired for the performance of the terminated part
of this 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 paragraph in no way implies that the
STATE has breached the Agreement by exercise of the termination for
convenience provision.
d. Com~sation.
(1) The CONTRACTOR shall submit a termination claim specifying the
amounts due because of the termination for convenience together with the
$ Form A(321,C(1/%)
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 offiar tnay pay the
CONTRACTOR, if at all, an amount set in accordance with subparagraph
14d(3) below.
(2) The Agency procurement offiar 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 costs
reduced by paymrnu 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 agreemrnt under subparagraph 14d(2) the Agency
procurement officer shall pay the CONTRACTOR the following amounu,
provided paymrnu agrsed 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
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 consequrntial damages, less amounts
paid or to be paid for accepted goads or services; provided,
however, that 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 compensation shall be reduced to reflect the anticipated rate of
loss;
(C) Cosa of settling and paying claims arising out of the termination
of subcontracts er orders pursuant to subparagraph 14b. These
cosu must not include costs paid in accordance with subparagraph
14d(3)(B);
(D) The reasonable settlement costs of the CONTRACTOR- including
accounting, legal, clerical, and other expenses reasonably
necessary for the preparation of settlement claims and supporting
data with respect to the terminated portion of the Agreement and
for the termination of subcontracts thereunder, together with
9 r~ wcz-cc(rrse>
reasonable storage, transportation, and other costs incurred in
connection with the protection or disposition of property allocable
to the terminated portion of this Agreemrnt. 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 paymrnu 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 accordantx with Chapter 3-123 (Cost Principles) of the
Procuremrnt Rules.
15. Claims cr11 on h Ashy Procurement Officrr'c Actions or Omicsion~
a. Chanties in scotx. 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 Agreement constitutes the basis for a claim by the CONTRACTOR for
additional comprnsation, 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
comprnsadon, damages, or an extension of time for completion; provided:
(1) Writtrn notice rea sired The CONTRACTOR shall give written notice
to the Agrncy procurement officer.
(A) Prior to the commencement of the performance involved, if at that
time the CONTRACTOR knows of the occurrence of such action
of 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 Agrncy
procuremrnt officer in writing.
(2) Notice content. This notice shall state that the CONTRACTOR regards
the act or omission as a reason which may rndHe the CONTRACTOR to
additional comprnsation, damages, or an extrnsion of time. The Agrncy
10 Form ~cz~ccttroa)
procurement officer, upon raxipt of such notice, may rescind such action,
remedy such omission, or take such other steps az may be deemed
advisable in the discretion of the Agency procurement officer;
(3) )basis must be exml ia_ned The notice required by subparagraph 15a(1)
describes az clearly az practicable at the time the reasons why the
CONTRACTOR believes that additional compensation, damages, or an
extension of dme may be remedies to which the CONTRACTOR is
entitled; and
(4) C aim mace 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. rONTRACTOR not excuse: 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 adiustmen . Any adjustment in the price made pursuant to this paragraph
shall be determined in accordance with the price adjustment provision of this
Agreement.
16. Coc_L end Ex erc 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 costs shall not exceed the actual cost of
rnrtting an intermediate-sized vehicle.
c. Unless prior written approval of the DIRECTOR is obtained, reimbursement for
subsistence allowance (i.e., hotel and meals, etc.) shall not exceed the applicable
daily authorized rates for interisland or out-of-state travel that are set forth in the
current Governor's Exxutive Order authorizing adjustments in salaries and
benefits for slate officers and employees in the executive branch who are excluded
from collective bargaining coverage.
11 r-~ AG2-0C(rN6)
17. Payment Procedures: Fin i Paymrnr Taz Clearance
a. Orittinal invoices ren sired All payments under this Agreement shall be made
only upon submission by the CONTRACTOR of original invoices specifying the
amount due and artifying that services requested under the Agreement have been
performed by the CONTRACTOR according to the Agreement.
b. Subject to availabl and Such payments art 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. Promnt y~vment.
(I) Any money, other than retainage, paid to the CONTRACTOR
shall be dispersed to subcontractors within ten days after receipt of
the money in accordance with the terms of the subcontract;
provided that the subcontractor has met all the terms and
conditions of the subcontract and there are no bona fide disputes;
and
(2) Upon final payment to the CONTRACTOR, full payment to the
subcontractor, including retainage, shall be made within ten days
after receipt of the money; provided that them are no bona fide
disputes over the subcontractor's performance under the
subcontract.
d. Final yayment. Final payment under this Agreement shall be subject to sections
103-53 and 237-45, HRS, which require a tax clearance from the Director of
Taxation, State of Hawaii, showing that all delinquent taxes, if any, levied or
accrued under state law against the CONTRACTOR have been paid.
18. Federal Funds. If this Agreement is payable in whole or in part from federal funds,
CONTRACTOR agrees that, as to 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. Modifications of AQrrrm ~I~
a. Ind 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
12 rrorm Acz-ccltrsst
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. Agency procurement 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) Description of services to be performed;
(D) Time of performance (i.e., hours of the day, days of the week, etc.);
(E) Piece of performance of the services; or
(F) Other provisions of the Agreement accomplished by mutual action of the
parties t0 the Agreement.
d. Adjustments of price or time for p~rfotTna_ncr 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 fins vm nt 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.
g• S~pltttzl'al. 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 525,000.00 or ten per cent (10%) of the initial
13 trorm ~o7~cctro~) ~ .
Agreemrnt price, whichever increase is higher, rho prior approval of the CPO is
required.
h. Tax clearance. The STATE may, at its discretion, require the CONTRACTOR
to submit w the STATE, prior w the STATE's approval of any modification,
alteration, amendment, change, or extension of any term, provision, or condition
of this Agrt;emrnt, a tax clearance from the Director of Taxation, State of
Hawaii, showing that all delinquent fazes, if any, levied or accrued under state
law against the CONTRACTOR have been paid.
i. Sole sourer agreement. Amendments to sole source agreemrnu that would
change the original scope of the contract may only be made with the approval of
the CPO. Annual rrnewal of a sole source agreemrnt for services should not be
submitted as an amrndmrnt.
20. C_gDEe Order. The Agrncy procurement officer tnay, by a written order signed only by
the STATE, at any time, and without notice to any surety, and subject w all appropriau
adjustments, make changes within the general 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. Adiustmrnts of Drive or time fp,LDerfottnance 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 patties 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 adjustment 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
extrnsion of time for completion.
b. CPO gp~troval. If a contract change order increases the amount payable to the
CONTRACTOR by at least 525,000.00 or ten per cent (10%) of the initial
14 Form wC2-0C(1/96)
Agreemrnt price, whichever increase is higher, the prior approval of the CPO is
requirtd.
c. '?ime Deriod for clam. Within thirty (30) days afar receipt of a written change
order under subparagraph 20a, unless the period is extended by the Agency
procuremrnt officer in writing, the CONTRACTOR shall file notice of intent to
assert a claim for an adjustmeru. Inter notification shall not bar the
CONTRACTOR's claim unless the STATE is prejudiced by the delay in
notification.
d. Claim barred after fin 1 pgyment No claim by the CONTRACTOR for an
adjustmrnt hereunder shall be allowed if notice is not given prior w final paymrnt
under this Agreemrnt.
e. Other claims not bared. In the absrnce of a change order, nothing in this
paragraph 20 shall 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 adiustment. 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 pritx adjustment before commencement of the
pertinrnt performance or az soon thereafter az 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 az specified in the Agreement or
subsequrntly agreed upon;
(4) In such other manner az 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 Agrncy procuremrnt officer in accordance
with generally accepted accounting principles and applicable sections of
chapters 3-123 and 3-126 of the Procurement Rules.
b. Submie_sion of cosr_ or pricing data The CONTRACTOR shall provide cost or
pricing data for any price adjustmrnts subject to the provisions of subchapter 15,
chapter 3-122 of the Procurement Rules.
15 wcz-cc(t~)
22. Variation in Ouandty for Definite Otrantity AvreemenLc 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 Agreemrnt, may be increased by a maximum of ten per crnt
(10%); provided the unit prices will remain the same except for any price adjustments
otherwise applicable; and the CPO makes a writtrn determination that such an increase
will either be more economical than awarding another Agreemrnt or that it would not be
practical to award another Agreement.
23. Chaneec in ['opt-Reimbur~-ment Agreement If this Agreement is acost-reimbursement
Agreement, the following provisions shall apply:
a. The Agency procurement officer may at any time by writtrn order, and without
notice to the sureties, if any, make changes within the grneral 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, designs, or specifications when the supplies to be furnished are
to be specially manufactured for the STATE in accordance with the
drawings, designs, or specifications;
(5) Method of shipment or packing of supplies; or
(6) Place of delivery.
b. If any change causes an increase or decrease in the estimated cost of, or the time
required for performance of, any part of the performance under this Agreement,
whether or not changed by the order, or otherwise affecu any other terms and
conditions of this Agreement, the Agency procurement officer shall maloe 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.
c. T'he 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 face justify
it, the Agency procunemrnt officer may receive and act upon a proposal submitted
before final payment under the Agreemrnt.
16 troy wcz-cc(tiva>
d. Failure to agree to any adjustment shall be a dispute undo paragraph 11 of this
Agreemrnt. 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 Agreemrnt and, if this Agreemrnt is incrementally funded,
the funds allotted for the performance of this Agreemrnt, stall not be increased
or considered to be increased except by specific written modification of the
Agreement indicating the new Agreement esdmatcd cost and, if this Agreement
is incremrntally funded, the new amount allotted to the Agreemrnt.
24. Confidentiality of Maters
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 organisation without the prior writtrn 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,
FIRS.
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 agrncy, the
CPO, the DIRECTOR, the Agency procurement officer, or to the services or goods, or
both, provided under this Agreemrnt, 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 Agreemrnt shall be referred to the
Agency procurement officer.
26. Ownership~ghts and Ccmy~,g~ 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 Agreemrnt. 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.
27. Lirns 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.
17 ~c2-cc(troe)
28. Audit of Books and Recordc of tl+e ONTRACTOR The STATE may, at reasonable
rimes 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 feed-price contract.
29. Cost or Pricine Data. Cost or pricing data must be submitted to the Agency purchasing
officer and timely certified as accurate for contracts over 5100,000 unless the contract
is for amultiple-trnn or as otherwise sperifi~d 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 certifirau, 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 Retrntion. 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 fural 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 to STATE any
and all claims for overcharges as to goods and materials purchased in connection with
this Agreemrnt, 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.
33. Minimizine~opE cfion The CONTRACTOR shall undertake all necessary precautions
to minimize any adv-rse impact the performance under this Agreement may have on
traffic congestion.
34. Oovernine tt 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
18 Form wcz~cc(rrob>
laws 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 Genera! Conditions and Procurement Rule. In the event of a conflict
between the General Conditions 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, warranties, and ttpresentadons between the STATE and the
CONTRACTOR relative to this Agreement. This Agreement supetxdes all prior
agreements, conditions, understandings, promises, warranties, and representations, which
shall have no further force or effect. There are no agtxments, conditions,
understandings, promises, warranties, or representations, oral or written, ezprrss 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 unenforceability shall nut affect the validity
or enforceability 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 enforre 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 constitute a waiver or
relinquishment of the STATE'S rights or the CONTRACTOR'S obligations under the
Procurement Rules or statutes.
19 troy ~cz-cctt~>
SPECIAL CONDITIONS
1. For purposes of this Agreement, paragraph 7, titled,
"Liquidated Damages," on page 2 of the Agreement is hereby
deleted from the Agreement and has no operative effect between
the parties.
2. Deletion of Portion of Agreeme For purposes of this
Agreement, paragraph 5 on page 2 of the Agreement, "Standards of
Conduct Declaration," together with the attached Standards of
Conduct Declaration form are hereby deleted and the parties agree
that paragraph 5 of the Agreement and its attached form are not
operative.
3. Deletion of General Condi i nc. For purposes of this
Agreement, the following General Conditions are hereby deleted
from the General Conditions and have no operative effect between
the parties:
a. Subparagraph 2.e.
b. Subparagraph 17.d.
c. Subparagraphs 19.g. and 19.h.
d. Subparagraph 20.b.
4. Mod i ation o ene a onditions. For purposes of
this Agreement, subparagraph 20.c. and paragraphs 22 and 29 on
pages 15, 16, and 18 respectively, of the General Conditions are
modified to read as follows:
"20.c. Time period for 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 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."
"22. Variation in Ouantit~ for Definite Ouant'ty
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 Agency procurement officer makes a written
ADM. SERV. OFFICE
LOG NO. 98-003 1
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."
"29. Cost or Pricing Data. Cost or pricing data must be
submitted to the Agency procurement officer and timely certified
as accurate for contracts over $100,000 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 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."
ADM. SERV. OFFICE
LOG NO. 98-003 2
GLASS RECYCLING AND DIVERSION PROGRAM
1997-1998
DEPARTMENT OF PUBLIC WORKS
COUNTY OF HAWAII
BACKGROUND
The County of Hawaii controls two municipal solid waste landfills that receive
approximately 150,000 tons of solid waste every year. In 1994, the State legislature passed Act
201, S.B. No. 2170, codified as part of Chapter 342G Hawaii Revised Statutes, which established
an advanced disposal fee to fund County glass recovery programs.
The Department of Public Works will utilize these funds to operate a Glass Recycling and
Diversion Program to provide an incentive for the diversion of glass to re-use markets. Through
this program, monies will be awazded to approved glass processors who divert glass, to in- or out-
of-state. Payments will be based on reported amounts of glass diverted to an end market or out-of-
state from either landfill. Contracts will be awazded on a quarterly basis with monthly payments
based on approved invoices. The County reserves the right to terminate or revise the program at
any time if it is in the best interest of the County.
Each quarter will be defined as Jufy to September, October to December, January to March,
and April to June.
INTRODUCTION
Enclosed with these guidelines is an application form which needs to be completed and
approved prior to award of any contract. Funding fot this program is subject to the availability of
advanced disposal fees for the State. It is the approved glass processor's responsibility to check
with the County regarding the availability of funds and the fund balance. The monies will be
awarded at a rate of $.08 per pound of recycled glass, with required documentation showing proof
that the glass was diverted to an off- or on-island mazket orout-of-state.
These guidelines describe:
• funding eligibility and how to apply,
• documentation required to complete the application, and
• procedures and criteria for evaluating and approving glass processors.
ATTACHMENT D
FUNDING LEVELS FOR DIVERSION GRANTS
Payments will be made at the rate of $.08 per pound for glass, up to a maximum amount
equivalent to the available State monies. To be eligible for payment, approved glass processors
must show proof that glass has been diverted to an on- or off-island market orout-of-state. The
County reserves the right to revise or terminate the program at any time, if it is in the best interest
of the County.
ELIGIBILITY
All pazticipants must have completed an application form and received approval to be
deemed a glass processor. Glass processors must submit accurate and complete claim forms,
(Exhibits I, II, III), bill of lading for the material sent out-of--state and proof of acceptance by an
end mazket entity for in-state use. If the glass processor meets the eligibility criteria, monthly
payments will be determined according to certified weight scales receipts consistent with the
number of pounds reported.
ELIGIBLE PARTIES
Any business, partnership, corporation, or non-profit organization is eligible to complete an
application for pazticjpation in the glass program. Said entity must have a General Excise Tax
number with the State of Hawaii.
APPLICATION FORM AND CRITERIA FOR APPROVAL
All interested pazties must complete an application form (attached) with appropriate
documentation. To meet the state glass recovery program requirements and to develop a County
program which will have continuity and long-term benefits for our entire community, all
participants in this program shall submit a plan or proposal which shall include:
(1) Some form of glass incentive or "buy back" program providing a means of
encouraging participation by the public and private collectors.
(2) Development of programs which actively sponsor public education and awareness
of glass recovery re-use. The public education program shall incorporate radio
2
advertisement, flyer distribution, proper signage, on-site promotion, work with
community groups to address concerns about the programs and its operations.
(3) Monitoring and recording of all activity at the glass recovery sites and adjustment of
weekly pick up schedules as needed to maximize recovery.
(4) Maintenance of records of all volumes processed, diverted, and collected at each
recycling drop-off site.
(5) Evaluation of recovery volumes at each recycling drop-off site and develop
measures to increase participation and increased volumes recovered at each site.
(Exhibit [II).
(6) A listing, description and proof of end markets. (Exhibit II)
(7) Information on the participant's prior experience and technical capability to operate
a glass recycling/processing program.
(8) Participants will also be required to provide proof of insurance policies naming the
County as additionally insured, for the duration of the agreement, in the following
coverages and amounts:
a) Automobile Liability Insurance, with minimum limits of not less than Three
Hundred Thousand Dollazs ($300,000) for bodily injuries or death per
person and not less than Fify Thousand Dollars ($50,000) per occurrence for
property daznages.
b) General Liability Insurance, with minimum limits of not less than Three
Hundred Thousand Dollazs ($300,000) for bodily injuries or death per
person and not less than Fifty Thousand Dollars ($50,000) per occurrence for
property damages.
Applicant may also provide proof that the glass processor is capable of producing an aggregate
product which is certified for use in road paving projects and discussion regarding development of
community programs in cooperation with local businesses to promote glass separation and
recycling as additional information to be considered in reviewing and approving the application.
CONTRACTS
The County will not review or pay any claim form until a contract exists between the glass
processor and the County. The County reserves the right not to approve any payments for which
3
back-up documentation or reporting is not complete. The County also reserves the right not to pay
on documentation that is received after the last working day of the contract period. In the event of
any delay beyond the control of the County or glass processor, the County, at its sole discretion,
may extend the agreement in the amount equal to the period of said delay.
If no payment requests aze received within 30 calendar days after the end of each quarter,
contract will be closed.
PAYMENT
The County intends to make payments no later than 30 days after receipt of monthly claim
forms. Participants must attach all necessary documentation with their invoices.
Payments may be made monthly. Total payments shall not exceed quarterly estimated
totals. If all funds encumbered are not used, contract will be closed and unused funds will lapse
back for further use.
If payment requests aze greater than the amount encumbered, applicant can submit the
difference in the next quarter based on the availability of funds.
Payment requests shall be made by submitting all attached Claim Forms (Exhibit End
Mazket Verification Form (Exhibit II) and the Glass Recovery Program Activity Form (Exhibit III).
Any payment request submitted without the required forms shall be returned for completion.
The County will review the claim forms and documentation to determine whether the
amount of glass listed will be approved. If conflicts arise within documentation, participants will
be informed of the error. Corrections to invoices or documentation must be returned to the
Department of Public Works, within ten (10) calendar days from the postmazk date on the County's
request for correction. Corrections received by the County after the required date will not be
allowed.
TAX CLEARANCE
For contracts $10,000 and over, the successful bidder before entering into a contract with
the County of Hawaii, will be required to provide the County with a current State and Federal tax
clearance certificate from the Director of Taxation to the effect that all delinquent taxes levied or
accrued under State and Federal statutes against said person, firm or corporation have been paid,
and any other evidence requested by and acceptable to the contracting officer to demonstrate that
4
the prospective bidder is not in default of any obligations due to the State or Federal or any of its
political subdivisions. The tax clearance must be valid on the date the contract is signed by the
contractor.
In accordance with Sections 103-53 and 237-45, Hawaii Revised Statutes, the final payment
on this contract shall not be settled until the Consultant obtains receipt of a tax clearance from the
Department of Taxation to the effect that all delinquent taxes levied or accrued under State statutes
against the Consultant have been paid.
NON-GRATUITY AFFIDAVIT
A release form will be required to be executed by the Consultant before final payment will
be authorized. A sample of the release form is made a part of the contract.
AUDITS
Participants aze subject to audit by the County to assure that the activities were in
accordance with the terms of the Glass Recycling and Diversion Program and the executed
contract.
[f a participant is found to have falsified documentation, the participant will be responsible
to return to the County all grant money received with I S% interest, compounded daily, from the
time the participant received the money.
QUESTIONS
Any explanation desired by an applicant regazding the meaning or interpretation of this
solicitation must be requested in writing and with sufficient time allowed for the County's reply to
reach all prospective applicants before the submissions of their application. Oral explanations or
instructions will not be binding.
Applicants may request clazification by submitting questions to:
County of Hawaii
Department of Public Works
25 Aupuni Street
Hilo, Hawaii 96720
5
COUNTY OF HAWAII
DEPARTMENT OF PUBLIC WORKS
APPLICATION FOR GLASS RECYCLING AND DIVERSION PROGRAM
FY
Business Name: Bus. Ph.:
Contact Person:
Business Address:
No. and Street City State Zip Code
State of Hawaii General Excise Tax License Number:
Owners and Officers:
Percentage of
Name Residence Address Position Ownership
Number of yeazs in business in Hawaii:
Number of yeazs recycling glass:
Amount of glass recycled each year in the last two yeazs:
Attach a proposal which addresses Items I-8 plus any additional information as outlined in the
"Application Form and Criteria for Approval" section of the program guidelines.
Signature of Owner/Officer
Print Name
Date
Approved:
Chief Engineer Date
EXH[E3[T [
7/2 I /97
CLAIM FORM
FOR
GLASS RECYCLING AND DIVERSION PROGRAM
COUNTY OF HAWAII
DEPARTMENT OF PUQLIC WOKS
SOLD WASTE DIVISION
DATE: CLAIM PER10D:
CLAIMAN"(:
GENERAL EXCISE TAX NUMF3ER:
MAILING ADDRESS:
DIVERTED P S E3UYER
Glass
"(OTAL POUNDS x $.08 = (Grant Duc)
CLAIMANT SIGNATURE
Please attach required documentation to Exhibit II as specified in the Glass Recycling and
Diversion Program Guidelines.
END MARKET VERIFICATION FO[ZM POR GLASS E\H[BIT
7/ f 7/97
NAME OF BUYER:
ADDRESS:
CONTACT PERSON(S):
TEGEPI{ONE:
POUNDS OF GLASS SOLD: ,TRANSACTION DATE:
TRANSACTION DATE:
TRANSACTION DATE:
Note: Attach receipt, bill of lading, or invoice as proof for each transaction.
Complete separate form for each buyer.
GLASS [NCF.NTfVE OR "BiJY BACK" PROGRAM:
Explanation:
GLASS RECOVERY PRO RAM ACTIVITY FORM EXHIBIT
FOR PERIOD FROM: TO
GLASS COLLECTION LOG(item 61*
I. LOCATION: NO. OF POUNDS DATE:
2. LOCATION: NO. OP POUNDS DATE:
3. LOCATION: NO. OF POUNDS: DATE:
4. LOCATION: N0. OF POUNDS: DATE:
DESCRIBE MEASURES, AS REQUIRED BY AGREEMENT, TAKEN DURING THIS
REPORT PERIOD FOR EACH IT TO INCREASE PARTICIPATION AND
VOLUMES(item 7)*:
PUBLIC EDUCATION ACTIVITIE PROMOTING CLASS RFCOVFRY(item 3~*
1. Radio advertisement
2.Newspapcr advertisement:
3. Flyer distribution:
4. On-site promotion:
5. Proper signage:
G. Community group meetings:
Note: *item number refers to Application Form and Criteria for Approval.
LISTING OF PERSONS CONTACTED:
Mr. Michael J. Allen, President
Environmental Recycling of Hawaii, Ltd.
P.O. Box, 5294
Hilo, Hawaii 96720
Ms Nancy Crawford
Business Manager
Department of Public Works
25 Aupuni St.
Hilo, Hawaii 96720
Mr. Byron Fujimoto
Glover, Inc.
890 Lelani St
Hilo, Hawaii 96720
Mr. J. Anthony Hanley
District Manager - Hawaii
Matson Navigation Company, Inc.
Pier One
Hilo, Hawaii 96720
Mr. Ben Ishii
Department of Public Works
25 Aupuni St.
Hilo, Hawaii 96720
Mr. Galen Kuba
Department of Public Works
25 Aupuni St.
Hilo, Hawaii 96720
Ms Carrie McCabe
Office of Solid Waste Management
State Department of Health
P. O. Box 3378
Honolulu, Hawaii 96801
Mr. Wayne Onomura
Department of Public Works
25 Aupuni St.
Hilo, Hawaii 96720
ATTACHMENT E
Ms. Mazgazet Pahio
Recycling Systems Hawaii
485 Railroad Avenue
Hilo, Hawaii 96720
Ms Illinois "Ululani" Rosario
Recycling Systems Hawaii
485 Railroad Avenue
Hilo, Hawaii 96720
Ms. Hanna Steel
County of Maui
200 South High St
Wailuku, Maui, Hawaii 96793
Mr. Robert Taira
Highways Division
Department of Transportation
50 Makaala St
Hilo, Hawaii 96720
Mr. Troy Tanigawa,
County of Kauai
4444 Rice St
Lihue, Kauai, Hawaii 96766
Ms Irobela Wreagh
Recycling Specialist
City & County of Honolulu
650 S. King St, 6`h Floor
Honolulu, Hawaii 96813
Mr. Bruce Yamada
Club Shoyu Brewery, Inc.
45 Omao St.
Hilo, Hawaii 96720
Mr. Robert Yanabu
Department of Public Works
25 Aupuni St.
Hilo, Hawaii 96720