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HomeMy WebLinkAboutCOM 0367.000 1998-2000 ~1Y Oi._'~1 Stephen K Yamashiro W Mayor ~ Jiro A. Sumada Deputy Chief Engineer ~4 Ol~MS . 7L_~, (~nrunfg JUL 1 Ail 9 ~f3 , DEPARTMENT OF PUBLIC W~ ~ 25 Aupuni Street, Room 202 • Hilo, Hawaii 96T~0-4 6~ ~ i L r i v';11I (808) 961-8321 • Fax (808) 961-8630 June 30, ]999 HONORABLE JAMES Y ARAKAKI CHAIR HAWAII COUNTY COUNCIL HAWAII COUNTY BUILDING HILO HI 96720 SUBJECT: AGREEMENT WITH THE STATE DEPARTMENT OF HEALTH FOR PARTICIPATION IN A GLASS RECOVERY PROGRAM The State Departrnent of Health has authorized funding for a Glass Recovery Program and has provided the County of Hawaii with an agreement for participation in its program. A copy of the agreement is enclosed for your perusal. In accordance with HRS, section 46-7, we submit the attached resolution for your consideration and approval to allow the County of Hawaii to enter into the agreement with the State Department of Health. The resolution further authorizes the Mayor to sign the subject agreement and related documents on behalf of the Department of Public Works pursuant to the Hawaii County Charter. Should you have any questions on this matter, please feel free to contact me at 961-8321. JIRO A. UMA A Deputy ief gineer APPROVED: Enclosures CC: SWD PHEN K. SHIRO ADM Mayor Finance Director ReS. /IS-99 Comm, No. ~47 File No. ~,I(~'~ Ref. To: p~ti~C Ref. Date.~_'J 5 1999 1 A' ~ O i N1 r~ts ~i O ~ ^yF BENJAMIN J. CAVEfANO T GOVERNOR OF HAWAII ! BRUCE 5. ANDERSON, Rh.O., M.P.H. DIRECTOR OF HEALTH a~4..m.w®.~$ STATE OF HAWAII DEPARTMENT OF HEALTH In reRl Filgleasa ra/er to: PO. BOX 3378 HONOLULU, HAWAII 96801 County of Hawaii Department of Public Works 25 Aupuni Street, Suite 202 Hilo, Hawaii 96720 Subject: Adm. Serv. Office Log No. YO-009 This is to inform you that you are awarded a contract for the subject solicitation. The award is conditioned upon your executing the attached contract per the accompanying Instructions. Should you have any questions on the execution of the contract, please contact our contracts processing unit, phone no. (808) 586-4551 (fax no. 586-4649). Please return the agreement, fully executed, to the Administrative Services Office within fifteen (15) calendar days from receipt of this notice. After the contract is signed by the Department of Health (Department), you will receive a "Notice to Proceed" that will designate the official starting date. This notice of award is issued as the first step in the award process. For a variety of reasons, the Department may find cause for cancellation of the award, therefore the Department is not liable for any work, contract, costs, expenses, loss of profit, or any damages whatsoever incurred by your company until the contract has been fully executed by the Department and the Notice to Proceed is issued. All information concerning this award shall remain confidential until the contract has been fully executed by the Department and the Notice to Proceed is issued. A copy of the fully executed agreement will be sent to you. Sin relyJJ, ~(l~ CALVIN KUN A Fiscal Officer Administrative Services Office Attachment c: EMD-SHWB INSTRUCTIONS 1. Signature by an authorized official of your organization is required on the fourth page. 2. Return the signed agreement and required documents to the Administrative Services Office, Room 312, State Department of Health, P.O. Box 3378, Honolulu, Hawaii 96801-3378. STATE OF HAWAII AGREEIVIDVT 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 as of July 1 19~, betwern the DEPARTMENT OF HEALTH , M+. rsr. . ~ State of Hawaii (hereinafter `STATE"), by 1[S DIRECTOR OF HEALTH (hereinafter "DIItECTOR"), and the County of Hawaii (hereinafter 'CONTRACTOR"), a body politic and corporate , under the laws of the State of HAWAII ,whose business address and taxpayer identifieadon number are as follows: county of Hawaii, Department of Public Works, 25 Aupuni Street, Room 202, Hilo, HI, 96720, Taxpayer IDI) 99-6000567 RFI'iTAT A. The STATE is in nerd of the goods or services, or both, (also referred to as 'goods and services'), described in this Agreement and its attachments. The CONTRACTOR is agreeable to providing the goods and services. B. This Agreement is for (check one box): ? (1) an r~pencv procurement of goods and services as set forth in section 103D-307, Hawaii Revised Statutes (`HRS'), and the rules adopted by the Procurement Policy Office, hereinafter referred to as "Procurement Rules`; or 0 (2) a sole source procurement of goods and services as set forth in section 103D-306, HRS, and the Procurement Rules; or U (3) a small purchase procurement of goods and services as set forth in section 103D-305, HRS, and the Procurement Rules; or ® (4) a procurement expenditure of public funds for goods and services that is otherwise expressly exempt from public bidding by the following law or regulation: Section 103D-102(b), Hawaii Revised Statutes C. Money is available to fund this Agreement pursuant to: Item D-1, Act , 1999 HSL~~) W'i~~~/ ~~~fyfAw~~. or both, in the following amounts: State $ 216,000.00 (Special Funds) Federal S ADM. SERV. OFFICE Fo+m AG2-K(2) (1/96) LOG N0. YO-009 D Pursuant to Section 342G-82, HRS STATE is authorize! to enter into this Agreement. _ NOW, TFIF.REFORE, in consideration of the promises contained in this Agreement, the STATE and the CONTRACTOR agree as follows: I, ~C~ 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 Agreement. 2. Mme of Performance. 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. Compensation. The CONTRACTOR shall be compensated in a total amount not TWO HUNDRED SIXTEEN THOUSAND AND NO/100 D~II.AR$ 216,000.00 to exceed including approved costs incurred and taxes, according to the Compensation and Payment Schedule set forth in Attachment 3, which is hereby made a part of this Agreement. 4. Bonds• The CONTRACTOR (~c(is not) required to provide a (performance) (payment) (performance and payment) bond in the amount of NONE DOLLARS 1• 5. 4ranrlardc of Conduct Declaration. The Standards of Conduct Declaration of the CONTRACTOR is attached and is made a part of this Agreement. 6. Other Terms and Conditions. The General Conditions and any Special Conditions are attached hereto and made a part of this Agreement. In the event of a conflict between the General Conditions and the Special Conditions, the Special Conditions shall control. 7. j~uidated Damaees. Liquidated damages shall be assessed in the amount of Not applicable DOi,T"ARC )per day, rn accordance with paragraph 9 of the General Conditions. ADM. SERV. OFFICE ~ o......,,~. LOG N0. YO-009 8. No.~,a Any written notice required to be given by a party to this Agreement shall be (a) delivered personally, or (b) sent by United States fast class mail, postage Prepaid. Notice required to be given to the DIRECTOR shall be sent to the DIRECTOR'S office in ADMINISTRATIVE Honolulu, Hawaii. Notice to the agency Procurement officer shall be sent to: sERV1cES oFfilcss, ROOM 312, STATE. DEPT. OF HEALTH, P.O. BOX 3378, HON., HI 96801 Noticx [o the CON'T'RACTOR shall be-sent to the CONTRACTOR at the CONTRACTOR'S address 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 address. IN VIEW OF THE ABOVE, the parties ezecnte this Agreement by their signatures, on the dates below, to be effective as of the date fast above written. STATE By Print NamC BRUCE S. ANDERSON, Ph.D., M.P.H. T1t1C DIRECTOR OF HEALTH Date ADM. SERV. OFFICE Fenn AG7.K(2) (3/96) LOG N0. YO-009 CON'T'RACTOR RECOMMEND APPROVAL: By Print Name STEPHEN K. YAMASHIRO JIRO A. SU DA Deput Chi Engineer Tl~e MAYOR, COUNTY OF HAWBII ~ Date APPROVED AS TO FORM: Deputy Attorney General - •Evidenee of authorrty of the CONTRACTOR's reprnsentMivs to sign this Agreement for the CONTRACTOR must be attached. APPROVED AS TO FORM AND LEGALITY: DEPUTY CORPORATION COUNSEL Date: ADM. SERV. OFFICE Form AQ-K(2) (t/46) LOG N0. y0-009 4 CO State of ~ SS. - County of ) " ~ this ~y of , 19 ore me personally appeared to me personally wn, who being by me duly sworn, did say that he/she is the ~ o the CONTRACTOR named in the fo mg instrument, and that he/she is. authorized to sign said instrument on behalf of ONTRACTOR, and acknowledges that he/she executed said instrument as the and deed of the CONTRACTOR. Notary Public, DIRECTOR'S CERTIFICATE OF EREIVIPTION FROM CIVIL SERVICE I certify that the services to be provided under this Agreement by the CONTRACTOR may be .performed concurrently with the CONTRACTOR's private business or profession or other privau employment, and that it is impracticable to ascertain or anticipate the portion of time to be devoted to the service of the STATE. Pursuant to section 76-16, HRS, the services are exempt from the state civil service. Date (signature) PlintName ARUCE S. ANDERSON, Ph.D., M.P.H. Tltle DIRECTOR OF HEALTH State of Hawaii ADM. SERV. OFFICE From AG2-1C(Z) (1/96) LOG N0. 5 ('IIfIS FORM IS DELETID AMID INOPERATIVE) STANDARDS OF CONDUCT DECLARATION For the purposes of this declaration: "Agency" means and includes the State, the legislature and its committees, all executive departments, boards, commissions, wmmitters, bureaus, offices, the University of Hawaii, and all independent commissions and other establishmenu of the state government but excluding the courts. "Controlling interest" means an interest in a business or other undertaking which is sufficient in fact to control, whether the interest is greater or less than fifty per cent (50°.b). "Employee" means any nominated, appointed, or elected officer or employee of the State, including members of boards, commissions, and committees, and employees under contract to the State or of the constitutional convention, but excluding legislators, delegates to the constitutional convention, justices, and judges. On behalf of ,CONTRACTOR, the undersigned does declare as follows: 1. CONTRACTOR (isl (is notl a legislator or an employee or a business in which a legislator or an employee has a controlling interest.' 2. CONTRACTOR has not been assisted or represented by a legislator or employer for a fee or other compensation to obtain this Agreement and will not be assisted or represented by a legislator or employee for a fee or other compensation in the performance of the Agreement, if the legislator or employee had been involved in the development or awazd of the Agreement. 3. CONTRACTOR has not been assisted or represented for a fee or other compensation in the awazd of this Agreement by an Agency employee or, in the case of the Legislature, by a legislator. 4. CONTRACTOR has not been represented or assisted personally on matters related to the Agreement by a person who has been an employer of the Agency within the preceding two (2) years and who participated while in state office or employment on the matter with which the Agreement is directly concerned. 5. CONTRACTOR has not been represented or assisted on matters related to this Agreement, for a fee or other consideration by an individual who, within the past twelve (12) months, has been an Agency employee, or in the case of the Legislature, a legislator. 6. CONTRACTOR has not been represented or assisted in the award of this Agreement for a fee or other consideration by an individual who, a) within the past twelve (12) months, served as an Agency employer or in the case of the Legislature, a legislator, and b) participated while an employee or legislator on matters related to this Agreement: Forth AC2-K(Z) (1/96) Attachment 1 SCOPE OF SERVICES The CONTRACTOR shall: 1. Operate and maintain at a minimum, five (5) recycling drop-of facilities for the public on the island of Hawaii. 2. Provide glass "buy-back" opportunities for generators of glass within Hawaii County. 3. Develop and maintain a public education and informational campaign to promote the glass recovery program and encourage participation. 4. Conduct educational efforts to familiarize commercial establishments that generate glass with glass recycling options. 5. Maintain records of all volumes of glass processed, diverted, and collected at each recycling drop-off 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; the status of tasks identified in this scope of services; and evaluating recovery volumes from each of the recycling drop-off sites and address measures to increase participation and increase volumes recovered at each site. 8. Pave the equivalent of two miles of a 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. 9. Develop and implement educational efforts, research and development, or mandates to expand the use of recycled glass product and promote recycled glass product for use as an aggregate or sand substitute in County of Hawaii, Public Works bid specifications. ADM. SERV. OFFICE LOG NO. YO-009 Attachment 2 TIME OF PERFORMANCE _ 1. The CONTRACTOR shall provide the services required under this Agreement from the commencement date of the STATE's Notice to Proceed, to and including June 30, 2000, unless this Agreement is extended or sooner terminated as hereinafter provided. 2. Option to Extend Agreement. Unless sooner 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 (60) 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. YO-009 Attachment 3 COMPENSATION AND PAYMENT SCNEDULE 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 00 348 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 made within approximately thirty (30) calendar days after execution of this Agreement and receipt of an invoice from the CONTRACTOR. 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. YO-009 GENERAL CONDTI'IONS Table of Contents P.agg151 1. Coordination of Services by the STATE 1 2. Relationshjp of Parties: Independent Contractor Status and Rettis?nsibilities. Including Ta? Re.~ponsibilities , , , , , , , , , , , , , , , , , , , 1 3. Personnel Requirements 2 4. Nondiscrimination 2 5. Conflicts of Interest 2 6. Subcontracts and Assignments 3 7. Indemnification and Defense 4 8. Cost of LitiYation 4 9. Liquidated Damages 4 10. State's Right of Offset 4 11. I?~ASISId 5 12. Sy,Syension of Agreement 5 13. Termination for Default 6 14. Termination for Convenience . . 8 15. Claims Based on the Ae~ Procurement Officer's Actions or Omissions 10 16. Costs and E:eenses 11 17. ~vment Procures: Final Payment: Ta_: Clea*ance 12 18. Federal Funds 12 i tronn wcz~cctt~ GENERAL CONDITIONS 1. Coordination of Services by the STATE. The "head of the purchasing agency,' (which term includes the designee of the head of the purchasing agency), shall coordinate the services to be provided by the CONTRACTOR in order to complete the performance required in the Agreement. The CONTRACTOR shall maintain communications with the head of the purchasing agency at all stages of the CONTRACTOR'S work, and submit to the head of the purchasing agency for resolution any questions which may arise as to the performance of this Agreement. "Purchasing agency" as used in these General Conditions means and includes any governmental body which is authorized under chapter 103D, HItS, or its implementing rules and procedures, or by way of delegation, to enter into contracts for the procurement of services. 2. Relationship of Parties: Independent Contractor Status and Resnonsibitities. Includine Tax Responsibilities. a. In the performance of services required under this Agreement, the CONTRACTOR is an "independent contractor," with the authority and r+esponsibiliry 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 otherwise provided by special condition, it is understood that the STATE does not agree to use the CONTRACTOR exclusively, and that the CONTRACTOR is free to contract to provide services to other individuals or entities while under contract with the STATE. b. The CONTRACTOR and the CONTRACTOR'S employees and agents are not by reason of this Agreement, agents or employees of the State for any purpose, and the CONTRACTOR and the CONTRACTOR'S employees and agents shall not be entitled to claim or receive from the State any vacation, sick leave, retirement, workers' compensation, unemployment insurar?ce, 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 employees and agents, and to any individual not a party to this Agreement, for all loss, damage, or injury caused by the CONTRACTOR, or the CONTRACTOR'S employees or agents in the course of their employment. 1 1=oew ~cz-ccttivsl d. The CONTRACTOR shall be responsible for payment of all applicable federal, state, and county taxes and fees which may become due and owing by the CONTRACTOR by reason of this Agreement, including but not limited to (i) income taxes, (ii) employment related fets, assessments, and taxes, and (ui) general excise taxes. The CONTRACTOR also is responsible for obtaining all licenses, permits, and certificates that may be required in order to perform this Agreement. e. The CONTRACTOR shall obtain a general excise tax license from the Department of Taxation, State of Hawaii, in accordance with section 237-9, HRS, and shall comply with all requirements thereof. The CONTRACTOR shall obtain a tax clearance certificate from the Director of Taxation, State of Hawaii, showing that all delinquent taxes, if any, levied or accrued under state law against the CONTRACTOR have been paid and submit the same to the STATE prior to commencing any performance under this Agreement. The CONTRACTOR shall also be solely responsible for mceting all requirements necessary to obtain the tax clearance certificate required for final payment under sections 103-53 and 2375, 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 anc( agents that is or may be required by law, and for payment of all premiums, costs, and other liabilities associated with securing the insurance coverage. 3. Personnel Requirements. a. The CONTRACTOR shall secure, at the CONTRACTOR'S own expense, all personnel required to perform this 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 employees and agents arc complied with and . satisfied. 4. No person performing work under this Agreement, including any subcontractor, employee, or agent of the CONTRACTOR, shall engage in any discrimination that is prohibited by any applicable federal, state, or county law. S. Conflicts of Interest. The CONTRACTOR represents that neither the CONTRACTOR, nor any employee or agent of the CONTRACTOR, presently has any interest, and promises that no such interest, direct or indirect, shall be acquired, that would or might 2 rro,m wcz-gc(t~ss) conflict in any manner or degree with the CONTRACTOR'S performance under this Agreement. 6. Subcontracts and Assignments. The CONTRACTOR shall not assign or subcontract any of the CONTRACTOR'S duties, obligations, or interests under this Agreement and no such assignment or subcontract shall be effective unless (i) the CONTRACTOR obtains the prior written consent of the STATE and (ii) the CONTRACTOR'S assignee or subcontractor submits to the STATE a tax clearance certificate from the Director of Taxation, State of Hawaii, showing that all delinquent taxes, if any, levied or accrued under state 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, as provided in section 40-58, HRS. a. Recognition of a successor in interest. When in the best interest of the State, a successor in interest may be recognized in an assignment agreement in which the STATE, the CONTRACTOR and the assignee or transferee (hereinafter referred to as the 'Assignce') agrce that. (1) The Assignee assumes all of the CONTRACTOR'S obligations; (2) The CONTRACTOR remains liable for all obligations under this Agreement but waives all rights under this Agreement as against the STATE; and (3) The CONTRACTOR shall continue to furnish, and the Assigner shall also furnish, all required bonds. b. Change of name. When the CONTRACTOR asks to change the name in which it holds this Agreement with the STATE, the procurement officer of the ptuchasing agency (hereinafter referred to as the 'Agency procurement officer') shall, upon receipt of a document acceptable or satisfactory to the Agency procurement officer indicating such change of name (for example, an amendment to the CONTRACTOR'S articles of incorporation), enter into an amendment ro this Agrament 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. All assignment agrcements and amendments to this Agreement effecting changes of the CONTRACTOR'S name or novations hereunder shall be reported W the CPO within thirty days of the date that the assignment agreement or amendment becomes effective. 3 zrom, Acz-cctt~ d. Actions affecting more than one yurchasinE agencv. Notwithstanding the provisions of subparagraphs 6a through 6c herein, when the CONTRACTOR holds agreements with more than one purchasing agency of the State, the assignment agreements and the novation and change of name 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 contacting agency, and their officers, employers, and agents from and against all liability, loss, damage, cost, and expense, including all attorneys' fees, and all claims, suits, and demands therefor, arising out of or resulting from the acts or omissions of the CONTRACTOR or the CONTRACTOR'S employers, officers, agents, or subcontractors under this Agreement. The provisions of this patagaph shall remain in full force and effect notwithstanding the expiation or early termination of this Agreement. 8. Cost of Litigation. In case the STATE shall, without any fault on iu part, be made a party to any litigation commenced by or against the CONTRACTOR in connection with this Agreement, the CONTRACTOR shall pay all costs and expenses incurred by or imposed on the STATE, including attorneys' fees. 9. Liquidated Damages. When the CONTRACTOR is given notice of delay oc nonperformance as specified in paragaph 13 (Termination for Default) and fails to cure m the time specified, it is agreed the CONTRACTOR shall pay to the STATE the amount, if any, set forth in this Agreement per calendar day from the date set for cure until either (i) the STATE reasonably obtains similar goads 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 paragaph 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 ieht of Offset. The STATE may offset against any monies or other obligations the STATE owes to the CONTRACTOR under this Agreement, any amounts owed to the State of Hawaii by the CONTRACTOR under this Agreement. or any other agreements or pursuant to any law or other obligation owed to the State of Hawaii by the CONTRACTOR, including, without limitation, the payment of any taxes or levies of any kind or nature. The STATE will notify the CONTRACTOR in writing of any offset and the nature of such offset. For purposes of this paragraph, amounts owed to the State of Hawau shall not include debts or obligations which have been liquidated, agreed to by the CONTRACTOR, and are covered by an installment payment or other settlement plan approved by the State of Hawaii, provided, however, that the CONTRACTOR shall be entitled to such exclusion only to the extent that the CONTRACTOR is currant with, and 4 troy ~c2-cc(trssl not delinquent on, any payments or obligations owed to the State of Hawaii under such payment or other settlement plan. 11. Dilutes. 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 notice to the CONTRACTOR in accordance with the provisions herein. a. Order to sto,Rperformance. The Agency procurement officer, may, by written order to the CONTRACTOR, at any time, and without notice to any surety, require the CONTRACTOR to stop all or any part of the performance called for by this Agreement. This order shall be for a specified period not exceeding sixty (60) days after the order is delivered to the CONTRACTOR, unless the parties agree W 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 performance under this Agreement at the time stated, provided, however, the CONTRACTOR shall take all teasonable 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 order, or (2) Terminate the performance covered by such order as provided in the termination for default provision or the termination for convenience provision of this Agreement. b. Cancellation or ezyjration of the order. If a stop performance order issued under this section is cancelled at any time during the period specified in the order, or if the period of the order or any extension thereof expires, the CONTRACTOR shall have the right to resume performance. An appropriate adjustment shall be made in the delivery schedule or Agreement price, or both, and the Agreement shall be modified in writing accordingly, if: (1) The stop performance order resulu in an increase in the time required for, or in the CONTRACTOR'S cost properly allocable to, the performance of any part of this Agreement; and (2) The CONTRACTOR asserts a claim for such an adjustment within thirty (30) days after the end of the period of performance stoppage; provided 5 troy ~cz-cc(risa) ' that, if the Agency procurement officer 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 stoQ~performance. If a stop performance order is not cancelled and the performance covered by such order is terminated for default or convenience, the reasonable cosu resulting from the stop performance order shall be allowable by adjustment or otherwise. d. ~,justment o[yrice. Any adjustment in contract price made pursuant to this paragraph shall be determined in accordance with the price adjustment provision of this Agreement. 13. Termination for Default. a. p~faulL If the CONTRACTOR refuses or fails to perform any of the provisions of this Agreement with such diligence as will ensure iu completion within the time specified in this Agreement, or any extension thereof, otherwise fails to timely satisfy the Agreement provisions, or commie any other substantial breach of this Agreement, the Agency procurement officer may notify the CONTRACTOR in writing of the delay or non-performance and if not cured in ten (10) days or any longer time specified in writing by the Agency procurement officer, such officer may terminate the CONTRACTOR'S right to proceed with the Agreement or such part of the Agreement as to which there has bean delay or a failure to properly perform. In the event of termination is whole or in part the Agency procurement officer may procure similar goods or servicxs in a manner and upon the terms deemed appropriate by the Agency procurement offiar. The CONTRACTOR shall continue performance of the Agreement to the extent it is not terminated and shall be liable for excess costs incurred in procuring similar goods or services. b. SONTRACCOR's duties. Notwithstanding termination of the Agreement and subject to any directions from the Agency procurement officer, the CONTRACTOR shall take timely, reasonable, and necessary action to p;otcct and preserve property in the possession of the CONTRACTOR in which the STATE has an interest. c. t~lpmsation. 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 offiar. If the parties fail to ague, the Agency procurement officer shall set an amount subject to the CONTRACTOR'S righu under chapter 126, Procurement Rules. The STATE may withhold from amounu due the CONTRACTOR such sums as the Agency 6 r~ Acz-ccct~l procurement officer deems to be necessary to protect the STATE against loss because of outstanding liens or claims and to reimburse the STATE for the excess costs expected to be incurred by the STATE in procuring similar goods and services. d. Excuse for noppsrformance or delayed ,performance. The CONTRACTOR shall not be in default by reason of any failure in performance of this Agreement in accordance with its terms, including any failure by the CONTRACTOR to make progress in the prosecution of the performance hereunder which endangers such performance, if the CONTRACTOR has notified the Agency procurement officer within fifteen (15) days after the cause of the delay and the failure arises out of causes such as: acts of God; acts of a public enemy; acts of the State and any other governmental body in its sovereign or contractual capacity; fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes; freight embargoes; or unusually severe weather. If the failure to perform is caused by the failure of a subcontractor to perform or to make progress, and if such failure arises out of causes similar to those set forth above, the CONTRACTOR shall not be deemed to be in default, unless the goods. and services to be furnished by the subcontractor were reasonably obtainable from other sources in sufficient time to permit the CONTRACTOR to meet the requiremenu 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 CONTRACTOR was not in default under this paragraph, or that the delay was excusable under the provisions of subparagraph 13d, 'Excuse for nonperformance or delayed performance,' the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to such provision. f. Additional rights and remedies. The rights and remedies provided in this paragraph are in addition to any other rights and remedies provided by law or under this Agreement. 7 w~ ~cz-ccttAa> 14. Termination for Convenience. a. Termination. The Agency procurement officer may, when the interesu 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. CONTRAGTOR's obl' conc. 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 W 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 terminaton of subcontracts and orders connected with the terminated performance. The Agency procurement officrs may direct the CONTRACTOR to assign the CONTRACTOR'S right, title, and interest under terminated orders or subcontracts to the STATE. The CONTRACTOR must still complete the performance not terminated by the notice of termination and may incur obligations as necessary to do so. a Right to goods and work yroduct. The Agency procurement officer may require the CONTRACTOR to transfer title and deliver to the STATE in the manner and W the extent directed by the Agency procurement officer: (1) Any completed goods or work product; and (Z) 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 maziufacturirig materials. Use of this paragraph in do way implies that the STATE has benched the Agreement by exercise of the termination for convenierce provision. d. Co~ensation. (1) The CONTRACTOR shall submit a termination claim specifying the amounts due because of the termination for conveniencx together with the $ Form ~cz-cc(trva) cost or pricing data, submitted to the extent required by subchapter 15, chapter 3-122, Procurement Rules, bearing on such claim. If the CONTRACTOR fails to file a termination claim within one year from the effective date of termination, the Agency procurement officer may pay the CONTRACTOR, if at all, an amount set in accordance with subparagraph 14d(3) below. (2) The Agency procurement officer and the CONTRACTOR may agree to a settlement provided the CONTRACTOR has filed a termination claim supported by cost or pricing data submitted as required and that the settlement does not exceed the total Agreement price plus settlement costs reduced by payments previously made by the STATE, the procceds of any sales of goods and manufacturing materials under subparagraph 14c, and the Agreement price of the performance not terminated. (3) Absent complete agreement under subparagraph 14d(2) the Agency procurement officer shall pay the CONTRACTOR the following amounts, provided payments agreed to under subparagraph 14d(2) shall not duplicate payments under this subparagraph for the following: (A) Contract prices for goods or services accepted under the Agreement; 1B) Costs incurred in preparing to perform and performing the terminated portion of the performance plus a fair and reasonable profit on such portion of the performance, such profit shall not include anticipatory profit or consequential damages, less amounts paid or W be paid for accepted goods 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) Costs of settling and paying claims arising out of the termination of subcontracts or orders pursuant to subparagraph 14b. These costs must not include costs paid in accordance with subparagraph 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 tn~ ~c2-cctt~ reasonable storage, transportation, and other costs incurred in connection with the protection or disposition of property allocable to the terminated portion of this Agreement. The total sum to be paid the CONTRACTOR under this subparagraph shall not excetd the total Agreement price plus the reasonable settlement cosu of the CONTRACTOR reduced by the amount of payments otherwise made, the proceeds of any sales of supplies and manufacturing materials under subparagraph 14d(2), and the Agreement price of performance not terminated. (4) Costs claimed, agreed to, or established under subparagraphs 14d(2) and 14d(3) shall be in accordance with Chapter 3-123 (Cost Principles) of the Procurement Rules. 15. ('l~imc ac.d nn eho eienCV p*nc~!rement Officer's Actions or Omissions. a. Cha ges in c_r_nce. 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 Agnxment constitutes the basis for a claim by the CONTRACTOR for additional compensation, damages, or an extension of time for completion, the CONTRACTOR shall continue with performance of the Agreement in compliance with the directions or orders of such officials, but by so doing, the CONTRACTOR shall not be deemed to have prejudiced any claim for additional compensation, damages, or an extension of time for completion; provided: (1) Written notice required. The CONTRACTOR shall give written notice to the Agency procurement officer: (A) Prior to the commencement of the performance involved, if at that time the CONTRACTOR Irnows of the occurrence of such action or omission; (B) Within thirty (30) days after the CONTRACTOR latows of the occurrence of such action or omission, if the CONTRACTOR did not have such ]mowledge prior to the commencement of the performance; or (C) Within such further time as may be allowed by the Agency procurement officer in writing. (2) Notice content. This notice shall state that the CONTRACTOR regards the act or omission as a reason which may entitle the CONTRACTOR to additional compensation, damages, or an extension of time. The Agency 10 row wcz~ctrASt procurement officer, upon receipt of such notice, may rescind such action, remedy such omission, or take such other steps as may be deemed advisable in the discretion of the Agency procurement officer; (3) Basis must be explained. The notice required by subparagraph 15a(1) describes as clearly as practicable at the time the reasons why the CONTRACTOR believes that additional compensation, damages, or an extension of time may be remedies to which the CONTRACTOR is entitled; and (4) Claim must be justified. The CONTRACTOR must maintain and, upon request, make available to the Agency procurement officer within a reasonable time, detailed records to the extent practicable, and other documentation and evidence satisfactory to the STATE, justifying the claimed additional costs or an extension of time in connection with such changes. b. CONTRACTOR not excused. Nothing herein contained, however, shall excuse the CONTRACTOR from compliance with any rules or laws precluding any state officers and CONTRACTOR from acting in collusion or bad faith in issuing or performing change orders which are clearly not within the scope of the Agreement. c. Price a 'ustment. Any adjustment in the price made pursuant to this paragraph shall be determined in accordance with the price adjustment provision of this Agreement. 16. Costs and Expenses. Any reimbursement due the CONTRACTOR for per diem and transportation expenses under this Agreement shall be subject to chapter 3-123 (Cost Principles) of the Procurement Rules and the following guidelines: a. Reimbursement for air transportation shall be for actual cost or coach class air fare, whichever is less. b. Reimbuusement for ground transportation costs shall not exceed the actual cost of renting an intermediate-sized vehicle. c. Unless prior written approval of the DIRECTOR is obtained, reimbursement for subsistence allowance (i.e., hotel and meals, etc.) shall not exceed the applicable daily authorized rates for interishtnd or out~f--state travel that are set forth in the current Governor's Execuive Order authorizing adjustments in salaries and benefits for state officers and employees in the executive branch who are ezcludcd from collective bargaining coverage. 11 Form ~czrc(tAal 17. payment Procedures: Final Payment: Ta.? Cle?*ance. a. Origins! invoices required. All payments under this Agreement shall be made only upon submission by the CONTRACTOR of original invoices specifying the amount due and certifying that services requested under the Agreement have been performed by the CONTRACTOR according to the Agreement. b. Subject to available funds. Such payments are subject to availability of funds and allotment by the Director of Finance in accordance with chapter 37, HRS. Further, all payments shall be made in accordance with and subject to chapter 40, HRS. c. Prompt y~yment. (1) Any money, oche than retainage, paid to the CONTRACTOR shall be dispersed t0 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 tea days after receipt of the money; provided that there are no bona fide disputes over the subcontractor's performance under the subconaact. d. Final lgyment. 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 scented under state law against the CONTRACTOR have bcen 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 Aereement. a. In writine. 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 Foam wcs-cc(troa) 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) Desctiption of services to be performed; (D) Time of performance r.e., hours of the day, days of the week, etc.); (E) Place of performance of the services; or Other provisions of the Agreement accomplished by mutual action of the parties to the Agreement. d. ~justments of price or time for performance. If any modification increases or decreases the CONTRACTOR's cost of, or the time required for, performance of any part of the work under this 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 final payment. 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. CPO approval. 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 Form ~cz-cctvva) - Agrcement price, whichever increase is higher, the prior approval of the CPO is required. h. Taz clearance. The STATE may, at its discretion, require the CONTRACTOR to submit to the STATE, prior to the STATE's approval of any modification, alteration, amendment, change, or extension of any term, provision, or condition of this Agreement, a tax clearance from the Director of Taxation, State of Hawaii, showing that all delinquent taxes, if any, levied or accrued under state law against the CONTRACTOR have been paid. i. Sole source agreements. Amendments to sole source agreements that would change the original scope of the contract may only be made with the approval of the CPO. Annual renewal of a sole source agreement for services should not be submitted az an amendment. 20. ~J)gnge Order. The Agency procurement officer may, by a written order signed only by the STATE, at any time, and without notice to any surety, and subject to all appropriate adjustments, make changes within the general scope of this Agreement in any one or more of the following: (1) Drawings, designs, or specifications, if the goods or services to be ate to ~ ~~Y P~d~ to the STATE in accordance therewith; (2) Method of delivery; or (3) Place of delivery. a. ~iustments of price or time for performance. If any change order increases or decreases the CONTRACTOR'S cost of, or the time required for, performar?ce 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 axordingly. Any adjustment in the Agreement price made pursuant to this provision shall be determined in atcordance with the price adjustment provision of this Agreement. Failure of the parties to agree to an adjustment shall not exarse the CONTRAf: TOR from protxcding with the Agreement az changed, provided that the Agency procurement officer promptly and duly makes the provisional adjustments in payment or time for performance az may be reasonable. By proceeding with the work, the CONTRACTOR shall not be deemed to have prejudiced any claim for additional compensation, or any extension of time for completion. b. CPO approval. If a contract change order increases the amount payable to the CONTRACTOR by at least 525,000.00 or ten per cart (10%) of the initial 14 troy ~c2-cc(tro6) Agreement price, whichever increase is higher, the prior approval of the CPO is required. c. Time period for claim. Within thirty (30) days after receipt of a written change order under subparagraph 20a, unless the period is extended by the Agency procurement officer in writing, the CONTRACTOR shall file notice of intent to assert a claim for an adjustment. Inter notification shall not bar the CONTRACTOR'S claim unless the STATE is prejudiced by the delay in notification. d. Claim barred after final payment. No claim by the CONTRACTOR for an adjustment hereunder shall be allowed if notice is not given prior to final payment under this Agreement. e. Other claims not barred. In the absence of a change order, nothing in this paragraph 20 shall be deemed to restrict the CONTRACTOR'S right to pursue a claim under the Agreement or for breach of contract. 21. Price A~jpstment. a. Price adjustment. Any adjustment in the Agrcement price pursuant to a provision in this Agreement shall be made in one or more of the following ways: (1) By agreement on a fined price adjustment before commencement of the pertinent performance or as soon thereafter as practicable; (2) By unit prices specified in the Agreement or subsequently agreed upon; (3) By the costs attributable to the event or situation covered by the provision, plus appropriate profit or foe, all as specified in the Agreement or subsequently agreed upon; (4) In such other manner as the parties may mutually agree; or In the absence of agreement between the parties, by a unilateral determination by the Agency procurement officer of the costs attributable to the event or situation covered by the provision, plus appropriate profit or fee, all as computed by the Agency procurement officer in accordance with generally accepted accounting principles and applicable sections of chapters 3-123 and 3-126 of the Procurement Rules. b. Submission of cost or DricinE data. The CONTRACTOR shall provide cost or pricing data for any price adjustments subject to the provisions of subchapter I5, chapter 3-122 of the Procurement Rules. 15 t=orm ~cz-cctt~) 22. Variation in Ouantitv for Definite Ouantitv Agreements. Upon the agreement of the STATE and the CONTRACTOR, the quantity of goods or services, or both, if a definite quantity is specified in this Agrcement, may be increased by a maximum of ten per cent (1096); provided the unit prices will remain the same except for any price adjustments otherwise applicable; and the CPO makes a written determination that such an increase will either be more economical than awarding another Agreement or that it would not be practical to award another Agreement. 23. h nges i_n Cost-Reimbursement Agreement. If this Agreement is acost-reimbursement Agreement, the following provisions shall apply: a. The Agency procurement officer may at any time by written order, and without notice w the sureties, if any, make changes within the general scope of the Agreement in any one or more of the following: (1) Description of performance (Attachment 1); (2) Time of performance (i.e., hours of the day, days of the week, etc.); (3) Place of performance of services; (4) Drawings, 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; (S) Method of shipment or packing of supplies; or Place of delivery. b. If any change causes an increase or decrease in the estimated cost of, or the time required for performance of, any part of the performance under this Agreement, whether or not changed by the order, or otherwise affects any other terms and caaditions of this Agreement, the Agency procurement officer shall make an equitable adjustment in the (1) estimated cost, delivery or completion schedule, or both; (2) amount of any fixed fee; and (3) other affected terms and shall modify the Agnxment accordingly. c. The CONTRACTOR must assert the CONTRACTOR'S rights to an adjustment under this provision within thirty (30) days fmm the day of receipt of the written order. However, if the Agency procurement officer decides that the facts justify it, the Agency procurement offar may receive and act upon a proposal submitted before final payment under the Agreement. 16 ~c2.cctrro~ d. Failure to agree to any adjustment sha11 be a dispute under paragraph 11 of this Agreement. However, nothing in this provision shall excuse the CONTRACTOR from proceeding with the Agreement as changed. e. Notwithstanding the terms and conditions of subparagraphs 23a and 23b, the estimated cost of this Agreement and, if this Agreement is incrementally funded, the funds allotted for the performance of this Agreement, shall not be increased or considered to be increased except by specific written modification of the Agreement indicating the new Agreement estimated cost and, if this Agreement is incrementally funded, the new amount allotted to the Agreement. 24. Confidentiality of Material. a. All material given to or made available to the CONTRACTOR by virtue of this Agreement, which is identified as proprietary or confidential information, will be safeguarded by the CONTRACTOR and shall not be disclosed to any individual or organiration without the prior written approval of the STATE. b. All information, data, or other material provided by the CONTRACTOR to the STATE shall be subject to the Uniform Information Practices Act, chapter 92F, HRS. - 25. py¢jj~pt, The CONTRACTOR shall not refer to the STATE, or any office, agency, or officer thereof, or any State employee, including the head of the purchasing agency, the CPO, the DIRECTOR, the Agency procurement offiar, or to the services or goods, or both, provided under this Agreement, in any of the CONTRACTOR'S brochures, advertisements, or other publicity of the CONTRACTOR. All media contacts with the CONTRACTOR about the subject matter of this Agreement shall be referred to the Agency procurement officer. 26. Ownershjp Rights and Convrieht. The STATE shall have complete ownership of all material,. both finished and unfinished, which is developed, prepared, assembled, or conceived by the CONTRACTOR pursrant to this Agreement, and all such material shall be considered "works made for hire.' All such material shall be delivered to the STATE upon expiration or termination of this Agreement. The STATE, in its sole discretion, shall have the exclusive right to copyright any product, concept, or material developed, prepared, assembled, or conceived by the CONTRACTOR pursuant to this Agreement. 27. Liens 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 is the Agreement documents, whichever are greater. 17 Form ~c2-cctt~vs) 28. Audit of Books a_nd Records of the CONTRACTOR_ 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 fined-price contract. 29. Cost or Pricing Data. Cost or pricing data must be submitted to the Agency purchasing officer and timely certified as accurate for contracts over 5100,000 unless the contract is for amultiple-term or as otherwise specified by the procurement officer. Unless otherwise required by the Agency procurement officer, cost or pricing data submission is not required for agreements awarded pursuant to competitive sealed bid procedures. If certified cost or pricing data are subsequently found to have been inaccurate, incomplete, or noncurrent as of the date stated in the 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 fat, 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 Pricing Data. When cost or pricing principles are applicable, the STATE may require an audit of cost or pricing data. 31. Records Retention. The CONTRACTOR and any subcontractors shall maintain the books and records that relate to the Agreement and any cost or pricing data for thret (3) years from the date of fmal payment under the Agreement. 32. Antitrust Claims. The STATE and the CONTRACTOR rxognize that in actual economic practice, overcharges resulting from antitrust violations are in fact usually borne by the purchaser. Therefore, the CONTRACTOR hereby assigns W STATE any and all claims for overcharges as to goods and materials purchased in connection with this Agreement, except as to overcharges which result from violations commencing ofter the price is established under this Agreement and which are not passed on to the STATE under an escalation clause. 33. Minimizing Congestion. The CONTRACTOR shall undertake all ne<xssary preraudons W minimize any adverse impact the performance under this Agreement may have on traffic congestion. 34. Governing Law. The validity of this Agreement and any of its terms or provisions, as well as the rights and dudes of the parties to this Agreement, shall be governed by the I8 Poem wG2GC(1l96) 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 coup 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_1 Conditions a_nd 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 incorporattd by reference. 37. Entire APreement. This Agreement sets forth all of the agreements, conditions, understandings, promises, warranties, and representations between the STATE and the CONTRACTOR relative to this Agreement. This Agreement supersedes all prior agreements, conditions, understandings, promises, warranties, and representations, which shall have no further force or effect. There are no agreements, conditions, understandings, promises, warranties, or representations, oral or written, express or implied, between the STATE and the CONTRACTOR other than as set forth or as referred to herein. 38. Severability. In the event that any provision of this Agreement is declared invalid or unenforceable by a wurt, such invalidity or unenforceability shall not 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 AgrcemenRshall not constitute or be deemed to constitute a waiver or relinquishment of the STATE'S right to enforce the same in accordance with this Agreement. The fact that the STATE specifically refers to one provision of the Procurertrnt 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 wren ~cz-ccttroe> The following provision is a general condition for this Agreement: If this Agreement was entered into between July 20. 1998, and July 1, 2001, and extends beyond June 30, 2001, it is subject to a single review pursuant to the managed process developed pursuant to part III, section 6 of Act 230, 1998 Haw. Sess. Laws. 785, 787. Pursuant to the managed process review, this Agreement may be cancelled, continued. or extended by the State. Form AG-GC(1/99) 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. De ion o Po ti.,ns o Agreement, 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. De a ion o G n al Conditions. 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. Modi i a ion o n al Condi iona. 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 fo laim. 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. Va iation in Oran ; y o D inito n„anti} 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. YO-009 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 o P ~c~ng ata. 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 Agnncy 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. YO-009 2