DEPARTMENT OF EDUCATION
FACILITIES DEVELOPMENT BRANCH
Contract No. Cl 000538

AWARDED PURSUANT TO
§103D-304, HAWAII REVISED STATUTES (“HRS”)
& SECTION 3-122, HAWAII ADMINISTRATIVE RULES (“HAR”).

PROFESSIONAL SERVICES
PROJECT No. PS D013-501
WITH
JACOBS PROJECT MANAGEMENT CO.
TO PROVIDE
ARCHITECTURAL AND ENGINEERING SERVICES
FOR
FACILITIES MASTER PLAN

—

SYSTEM-WIDE

FOR THE HAWAII DEPARTMENT OF EDUCATION
(DOE JOB NO. Q61 004-1 3)

PC: KM

 STATE OF HAWAII
CONTRACT FOR PROFESSIONAL SERVICES
This Contract, executed on the respective dates indicated below, is effective
upon issuance of a Notice to Proceed, between the DEPARTMENT OF EDUCATION, State of
Hawaii (“STATE”), by its SUPERINTENDENT (hereafter also referred to as the HEAD OF THE
PURCHASING AGENCY or designee (“HOPA”)), whose address is 1390 Miller Street,
Honolulu, Hawaii 96813

and JACOBS PROJECT MANAGEMENT CO.

(“CONTRACTOR”), a

corporation

insert ‘corporation”, “partnership”, “joint venture”, “sole proprietorship”, or other legal form of the Contractor)

under the laws of the State of

Delaware

taxpayer identification number are as follows:

whose business address and

,

3161 Michelson Drive, Suite 500, Irvine

California 92612, Federal Employee ID No. 35-2321289,

Hawaii G.E.T. License No.

W79748056-01.
RECITALS
A.

The STATE desires to retain and engage the CONTRACTOR to provide

the services described in this Contract and its attachments, and the CONTRACTOR is
agreeable to providing said services.
B.

This Contract is for professional services as defined in section 103D-104,

Hawaii Revised Statutes (“H RS”).
C.
(1)

Money is available to fund this Contract pursuant to:

Act 164/SLH 2011, G-13, Act 106/SLH 2012. G-1 & G-13, Act 134/SLH 2013. G-3
(Identify state sources)

or (2)
(Identify federal sources)

or both, in the following amounts:

AG-001 Rev 11/15/2005

State

$

Federal

$.

4,615,000.00

 Pursuant to 1 03D and 302A-1 111, HRS, the State is authorized to

D.

(Legal authority to enter into this contract)

enter into this contract.
NOW, THEREFORE, in consideration of the promises contained in this Contract,
the STATE and the CONTRACTOR agree as follows:
Scope of Services. The CONTRACTOR shall, in a proper and satisfactory

1.

manner as determined by the STATE, provide all the services set forth in Attachment-Si, which
is made a part of this Contract.
2.

Term of Contract. This Contract starts upon

and ends upon

completion of construction

with

issuance of a Notice to Proceed
0

option(s) to extend for

(insert no. of options)

0

each.

(insert no. of mos. or yrs.)

3.

Compensation. The CONTRACTOR shall be compensated for services

rendered and costs incurred under this Contract for a total amount not to exceed

FOUR

MILLION SIX HUNDRED FIFTEEN THOUSAND AND 00/1 00--- DOLLARS ($4,615,000.00),
including approved costs incurred and taxes, according to the Compensation and Payment
Schedule set forth in Attachment-S2, which is made a part of this Contract.
4.

Time of Performance. The services or goods required of the CONTRACTOR

under this Contract shall be performed and completed in accordance with the Time of
Performance set forth in Attachment-S3, which is made a part of this Contract.
5.

Standards of Conduct Declaration. The Standards of Conduct Declaration by the

CONTRACTOR is attached hereto and made a part of this Contract.
6. Other Terms and Conditions. The General Conditions and any Special
Conditions are attached hereto and made a part of this Contract. In the event of a conflict
between the General Conditions and the Special Conditions, the Special Conditions shall
control.
7. Liquidated Damages. Liquidated damages shall be assessed in the
amount of

not applicable

DOLLARS

AG-OO1 Rev 11/15/2005

2

 ($

n/a

) per day, in accordance with paragraph 9 of the General Conditions.

8.

Notices. Any written notice required to be given by a party to this

Contract shall be (a) delivered personally, or (b) sent by United States first class mail, postage
prepaid. Notice to the STATE shall be sent to the HOPA’S address indicated in the Contract.
Notice to the CONTRACTOR shall be sent to the CONTRACTOR’S address as indicated in this
Contract. A notice shall be deemed to have been received three (3) days after mailing or at the
time of actual receipt, whichever is earlier. The CONTRACTOR is responsible for notifying the
STATE in writing of any change of address.

AG-OOt Rev 11/15/2005

3

 IN VIEW OF THE ABOVE, the parties execute this Contract by their signatures,
on the dates below:

STATE
(Signature)

KATHRYN S. MATAYOSHI
(Print Name)

SUPERINTENDENT OF EDUCATION
(Print Title)

MAR 2 1 2014
(Date)

CORPORATE SEAL
(If available)
CONTRACTOR

JA ,s PZoJ- fr’IAN4 rEJT cr2.
(NameContractor)

(Signature)

i c4fr

HAr4-.#j

(Print Name)

vc’,

ot-4L 1AJA&

(Print Title)

(Date)

APPROVED AS TO FORM:

Ii
Deputy Attorney General

*Evidence of authority of the CONTRACTORS representative to sign this Contract for the CONTRACTOR must be
attached.

AG-OO1 Rev 11/15/2005

4

*

 _____
____
_________
__________
____
___o
_____
f
__
_____

,

STATE OF HAWAII

CONTRACTORS ACKNOWLEDGMENT

CO cc)rfl I
)
) SS.
Crve

STATE OF

<c

On this

‘.LYI Cj-

day of

before me appeared

and
to me
known, to be the person’s)described in and, who, being by me duly sworn, did say that
heIhçItbty is/b
-

,

\C’

Ycç

and

acL c()\k A& ([)
CONTRACTOR named in the fuigoing instrum

,the
ent, and th4)he/she/they is/are authorized to sign said
instrument on behalf of the CONTRACTOR, and acknowledges that
he/ke/thc’ executed said
instrument as the free act and deed of the CONTRACTOR.

I

Notary
Commission # 1922426
Notary Public California
Orange County
MyCornn res Feb 172O1j
-

-

(Pini Name)

(i

Notary Public, State of
My conunission expires:

Doe. Date:

(Y)8-f’ \7 O’)4 # Pages:
L4 tJj c-t \€‘Jy\

Notary Name:

Doe. Description:

o

NOTARY C

lI

2.1)1

hou )(U
(Noa’ v stamp •‘r -Seal)

3 7 14
Date

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-‘__-

Circuit

3o -7) hdA- r. o
Notary Signatur

rfl

,

ULI STAPLETON
Commission # 1922426
Notary Public - California
Oran a Count
My-Comm.
Feb O1

‘

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ATION

AG-009 Rev. 11/15/2005
5

 STATE OF HAWAII

CONTRACTOR’S
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, committees, bureaus, offices; and all independent
commissions and other establishments of the state government but excluding the courts.
“Controlling interest” means an interest in a business or other undertaking which is sufficient in
fact to control, whether the interest is greater or less than fifty per cent (50%).
“Employee” means any nominated, appointed, or elected officer or 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. (Section 84-3, HRS).
On behalf of J4s ?g2oJ9t fr
CONTRACTOR, the
HIJT cO
undersigned does declare as follows:
,

1.

CONTRACTOR fl is
is not a legislator or an employee or a business in which a legislator
or an employee has a controlling interest. (Section 84-15(a), HRS).

2.

CONTRACTOR has not been represented or assisted personally in the matter by an individual
who has been an employee of the agency awarding this Contract within the preceding two years
and who participated while so employed in the matter with which the Contract is directly
concerned. (Section 84-15(b), HRS).
CONTRACTOR has not been assisted or represented by a legislator or employee for a fee or other
compensation to obtain this Contract and will not be assisted or represented by a legislator or
employee for a fee or other compensation in the performance of this Contract, if the legislator or
employee had been involved in the development or award of the Contract. (Section 84-14 (d),
HRS).
CONTRACTOR has not been represented on matters related to this Contract, 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, and participated while an employee or
legislator on matters related to this Contract. (Sections 84-18(b) and (c), HRS).

3.

4.

CONTRACTOR understands that the Contract to which this document is attached is voidable on behalf
of the STATE if this Contract was entered into in violation of any provision of chapter 84, Hawaii
Revised Statutes, commonly referred to as the Code of Ethics, including the provisions which are the
source of the declarations above. Additionally, any fee, compensation, gift, or profit received by any
person as a result of a violation of the Code of Ethics may be recovered by the STATE.
CONTRACTOR
Reminder to Agency: If the ‘is’ block is
checked and if the Contract involves goods or
services of a value in excess of $10,000, the
Contract must be awarded by competitive
sealed bidding under section 103D-302, HRS,
or a competitive sealed proposal under section
103D-303, HRS. Otherwise, the Agency may
not award the Contract unless it posts a notice
of its intent to award it and files a copy of the
notice with the State Ethics Commission.
(Section 84-15(a), HRS).

AG-001 Rev 05/06/2004

B
(Signature)

SA fr fri. II-4.4L.4F

Print Name
Print Title

oPAL 44tJA4f.Z.

VP

Name of Contractor

J/4
Date

6

I IA JJ
‘

—

—

.A’n,...ç

(p

 JACOBS
155 N. Lake Avenue
Pasadena, CA 91101
626-S7S3500

CERTIFICATE OF AUTHORITY
I, Michael S. Udovic, do hereby certify that I am the Secretary of Jacobs Prolect Management
Co., a corporation duly organized under the laws of the State of Delaware, in the United States of
America (the “Company”). I do further certify that issam M. Khalaf is a Vice President of the
Company and is duly authorized by the By-Laws, Certificate of Incorporation, general resolutions
and other authority of the Company to enter into Client Contracts on behalf of the Company or
any of its subsidiaries pursuant to the attached resolutions. I further certify that such authority
has not been repealed, rescinded or amended. I do further certify that the By-Laws have not been
amended and remain in full force and effect.
IN WiTNESS WHEREOF, I have hereunto set my hand and attached the Corporate Seal of the
Company on this JL1! day of March 2014.

Michael S. Udovic
Secretary
SEAL

Poec( Mar acjncnt Co.

 Delegation of Authority

—

Client Contracts

WHEREAS, in the ordinary course of business the Company enters into contracts
with customers with respect to, among other things, the provision of professional service
s
by the Company to such clients (“Client Contracts”); and
WHEREAS, the Board deems it to be desirable and in the best interests of the
Company to formalize the delegation of certain power and authority to enter into Client
Contracts on behalf of the Company or any of its subsidiaries to any officer of the Company
with the title of President, Chief Executive Officer, or Vice President (collectively, the
“Designated Officers”) or to the delegates of a Designated Officer.
NOW, THEREFORE, BE IT RESOLVED, that the Board hereby delegates to the
Designated Officers the full power and authority to authorize, approve and enter into Client
Contracts, in the name of, for and on behalf of the Company or any of its subsidiaries,
and
that such delegation of authority be and hereby is, authorized and approved in all respec
ts;
RESOLVED FURTHER, that each of the Designated Officers be and hereby is,
authorized and empowered in the name of, for and on behalf of the Company or any of
its
subsidiaries, to execute, certify, file and record such additional agreements, documents
and
instruments as may be or become reasonably necessary or desirable in the judgment of
such Designated Officers to carry out the purposes of the foregoing resolutions;
RESOLVED FURTHER, that the Board hereby authorizes and approves the power
and authority of each Designated Officer to further delegate the power and authority
delegated thereto in the foregoing resolutions to employees of the Company who are
not
Designated Officers;
RESOLVED FURTHER, that each Designated Officer shall provide to the Board
such information as requested by the Board from time to time regarding the actions taken
by the Designated Officers in respect of the matter for which authority has been delegated
hereunder; and
RESOLVED, FURTHER, that all acts and deeds heretofore done by any Designated
Officers for and on behalf of the Company or any of its subsidiaries in entering into,
executing, acknowledging or attesting to any such contracts in the ordinary course of
business or in carrying out the terms and intentions of these resolutions are hereby ratified,
approved and confirmed.

 Attachment-Si
STATE OF HAWAII
SCOPE OF SERVICES

PROJECT:

FACILITIES MASTER PLAN

-

SYSTEM-WIDE

FOR THE HAWAII DEPARTMENT OF EDUCATION
D.O.E. Job No.

Q61004-13

The CONTRACTOR agrees to perform professional services for the Project in accordance with
the following:
A. The terms and conditions of the Agreement.
B. PROGRAM REQUIREMENTS:
1. GENERAL DESCRIPTION:
a. The CONTRACTOR shall provide the Department of Education, State of Hawaii,
with planning services for the development and execution of a system-wide
Facilities Master Plan.
b. The manual entitled Policies and Procedures Governing Design Consultant
Contracts (PPGDCC), dated November 1981, as revised, not physically attached
hereto but hereby made a part of this Agreement to the extent that such
requirements are not inconsistent with the terms and conditions of this Agreement.
See Appendix “A” dated January 1999 for revisions to said manual. Upon request,
said document/manual/etc. is available for viewing at Facilities Development
Branch, Project Management Section, Kalanimoku Building, 1151 Punchbowl
Street, Room 431.
c. All facilities and site and utility improvements shall be designed to comply with DOE
guide specifications; the American with Disabilities Act Accessibilities Guidelines,
as adopted by Hawaii Revised Statutes (HRS) 130-50; the State of Hawaii
Department of Health, the National Electrical Code and any other applicable codes;
the current versions of the International Building Code, as amended and adopted
by the appropriate County and any amended requirements as adopted by the
appropriate County and/or the State.
2. DETAILED DESCRIPTION:
The CONTRACTOR shall work in consultation with the Contract Manager (i.e. Hawaii
State Department of Education DOE) to create a “Facilities Master Plan.” The
Facilities Master Plan shall serve as a cohesive planning instrument for the future
restoration and development of Hawaii public schools. The project shall be divided into
the following phases and services:
-

AG 011 Rev. 1/29/2013
7

 Attachment-Si
a. PHASE I
1.1 Preliminary Planning: CONTRACTOR to gather all relevant project information and
data, to include previous planning studies, floor plans, available CAD documentation,
maintenance records, educational specifications (DOE Ed Spec), school evacuation
plans, teacher rosters, etc. for evaluation, translation, and input into provided Capital
Planning software (M.A.P.P.STM to be employed to execute assessment), this process
entails the development of an organization hierarchy and form packages for each
facility to be assessed.
1 .2 Planning and Policy Research: CONTRACTOR to provide up to eight (8) research
“white papers” addressing major elements of capital planning. Research to include:
overview of select issues, executive summary & talking points, an appendix with
recommendations for additional study, and recommendations. Preliminarily topics
identified in priority order include:
-

-

-

-

-

-

-

-

-

-

-

-

21st Century Schools
Hawai’i DOE Educational Specifications Review
Sustainability in Schools
Pre-Kindergarten Initiatives Impact
Land Use Regulatory Impacts
Energy Consumption and Net-Zero
Public Private Partnership Market Opportunities
Current School Construction Cost Analysis (including soft costs)
Analysis of Regional Development Hot-Spots
Capital Construction Funding Structures & Strategies
Development Impact Fee Analysis
Transportable/Portable Facilities / Temporary Building Use

1.3 Standards Development / Educational Specifications and Guidelines:
CONTRACTOR to develop a standards-based approach to facilities assessment to
ensure objective and credible findings. Standards to be based on DOE stakeholder
input, current DOE Ed Spec, national best practices for educational facilities, and 21st
Century instructional trends from leading K-12 school districts throughout the United
States. CONTRACTOR shall lead DOE personnel in the establishment of educational
adequacy standards for incorporation into a comprehensive educational adequacy
survey. These standards are to include (but not be limited to) assessment components,
priorities and weightings, square footage parameters, and a detailed quantification of
elements of instructional spaces. The standards shall also include area programs and
target enrollments for each school type. Component areas to be evaluated include:
-

-

-

-

-

-

-

-

-

Capacity
Support for Programs
Equity
Technology
Supervision
Instructional Aids
Physical Characteristics
Learning Environment
Relationship of Spaces

AG 011 Rev. 1/29/2013
8

 Attachment-Si

1.4 CAD Conversion and Space Inventory: CONTRACTOR to execute CAD plan
conversion and space inventory task (from existing CAD files). Source plans to be
utilized to recreate CAD floor plans depicting the location of building components such
as walls, doors, and windows and site plans with existing buildings. These plans will
be schematic representations that are to be verified during initial facility walk-throughs
to identify where source plans differ significantly from actual conditions. Resulting
mark-ups will be incorporated into the CAD file so that accurate plans of each school
building and school site are captured. Final plans will be linked to software database
(M.A.P.P.STM) such that, room inventories are linked to corresponding spaces on plans
to support square footage area calculation for storage in the assessment database.
Information about the space such as room number, and use, will be conveyed to the
drawing and displayed through specialized routines programmed into the software
) application. The end result will include a link between the spatial data
TM
(M.A.P.P.S
within the drawings and the functional data associated with the rooms themselves. An
accurate inventory of spaces within each facility will then be produced. The information
obtained from the field verification, and resulting space inventory calculations, will be
used during the Building Condition Assessment (per item 1.7) to refine the depiction of
areas for cost estimating.
1.5 Pilot Assessment: CONTRACTOR to fast-track facilities assessments for up to
eight (8) schools as a pilot for the overall Facility Master Plan. These pilot
assessments will include early policy and planning support, CAD conversion and space
inventory for each school to be assessed, a space inventory, educational adequacy
survey, and capacity and utilization analysis. Additionally, each campus will have a
comprehensive Building Condition Assessment (per item 1.7) completed with a life
cycle forecast and summary level reporting. These pilot assessments will be used to
calibrate future assessment efforts and provide an initial evaluation of DOE facilities
across the statewide inventory.
1.6 Educational Adequacy Assessment: CONTRACTOR to survey the Educational
Adequacy (EA) of 75% school facilities by comparing inventoried facility components to
standards developed and adopted through the DOE Ed Specs, standards and
guidelines as described in item 1.3. Educational adequacy surveyor teams will collect
information on instructional spaces and school attributes at site, building, and room
level for comparison to the standards prepared in conjunction with DOE stakeholders.
The items that are correctable within normal repairs or renovations will be incorporated
into the condition assessment database with associated costs and will reflect additional
requirements over and above what is discovered by the condition assessment staff.
1.7 Buildinci Condition Assessment: CONTRACTOR will perform a Building Condition
Assessment (BCA) of 67% of school facilities. These assessments will be conducted
by as many as six assessment teams with as many as three assessors per team; one
assessor will focus on architectural systems, one will focus on electrical systems, and
the other on mechanical and plumbing systems. Additionally, a civil/structural assessor
will focus on site items as required. The assessments will address building systems
and identify current and near-term deficiencies. In addition, the assessors will collect
life-cycle data related to the fixed equipment inventory to project capital replacement
requirements over the next ten years.

AG 011 Rev. 1/29/2013
9

 Attachment-Si
Building Condition Assessment levels will be established for school facilities based on
the building date of construction provided by the DOE. Building Condition Assessment
forms will be used to document both current deficiencies and life-cycle data at both site
and building levels. CONTRACTOR will coordinate with STATE personnel to obtain
existing assessment data prior to field assessments. CONTRACTOR will input
deficiencies and life-cycle data identified by the assessment team into the assessment
and capital planning software (M.A.P.P.S
) database. CONTRACTOR will also
TM
prepare updated replacement and soft cost models for use in calculating the total
deficiency budget and for calculating the Facility Condition Index (FCI) for each building
and campus assessed.
1.8 Enrollment Evaluation and GIS: CONTRACTOR will collect, review, and analyze
demographic data for statewide school system, including an overview of each school
district, population trends and projections, birth counts, migration patterns, and a
review of previous projections. Additionally, information from the state, city, county,
and/or township agencies, as well as the US Census will be evaluated. CONTRACTOR
will utilize current Geographic Information System [GIS] to organize data regarding
schools, students, development patterns, and student attendance boundaries. GIS
graphically conveys information regarding locations of schools, where students live,
and other layers of data to assist in the decision-making process. Breakdowns by age,
neighborhood, socio-economic, ethnicity, language and gender will be provided (to the
extent data is available).
Data collection process will include:
-

-

-

-

Collecting data from the District, city, township, county and federal sources,
including student databases, attendance boundaries, geographic layers, ortho
photography, historical housing development, street centerlines, water, and other
identified factors, as available.
Converting current student databases into GIS format by a process called
geocoding. This process will “address match” all students in the District
Arranging data and ensuring it is in a compatible and like coordinate system, so
information is accurately portrayed in the area
Appending other relevant information to databases for ease of analysis in further
planning stages

Enrollment for each elementary school and secondary school will be analyzed
to depict:
-

-

-

Students who live and attend in boundary
Students who live in but attend out of boundary
Students who live out but attend in boundary

Population and housing demographics from the US Census and local sources will be
analyzed to determine trends in different areas of the district. Analysis of these trends
will assist the decision-making process regarding future facilities and locations of
programs.
Maps will be produced to illustrate:
-

Current attendance boundaries

AG 011 Rev. 1/29/2013
10

 Attachment-Si
-

-

Where students live in relation to the boundaries
Distribution of students with identified attributes in relation to the boundaries

CONTRACTOR will develop and analyze documents, including (but not limited
to) the following:
-

-

-

School Attendance Maps
Census Block Group Maps, identifying population characteristics and
Projections
Other documents, as identified

After compiling the GIS into an overall planning tool, CONTRACTOR will review Hawaii
developed enrollment projections. Based on that review, the team will provide
commentary on the projection process and make recommendations as applicable to
refine school-by-school projections. Assuming no additional analysis is required, the
relevant projections will be used as a basis for capacity and utilization calculations.
b. PHASE II
2.1 Policy Research (Continued): CONTRACTOR to provide up to four (4) additional
research “white papers” addressing major elements of capital planning (per item 1.2).
2.2 Standards Development! Educational Specifications and Guidelines (Continued):
CONTRACTOR shall assemble a representative group of stakeholders to conduct a
series of work sessions to review and revise standards (per item 1.3). CONTRACTOR
will conduct work sessions across the seven (7) Hawaii school districts to further
develop and review standards. Work sessions will include one-on-one, and small
group, discussions among stakeholders to consider such educational topics as
curriculum, special education, art, music, athletics, safety and security, technology,
library skills, and career and technology education, etc. The end product will serve to
establish a web-based educational specification intended to bridge current standards to
a 21st Century learning environment.
2.3 Educational Adequacy Assessment (Continued): CONTRACTOR to survey the
Educational Adequacy (EA) of the balance of all school facilities (additional 25%
beyond, and per, item 1 .6).
2.4 Building Condition Assessment (Continued): CONTRACTOR will periorm a Building
Condition Assessment (BCA) of the balance of all school facilities (additional 33%
beyond, and per, item 1.7).
2.5 Enrollment Evaluation and GIS (Continued): After compiling the GIS into an overall
planning tool (per item 1.8), CONTRACTOR will review Hawaii developed enrollment
projections. Based on that review, the team will provide commentary on the projection
process and make recommendations as applicable to refine school-by-school
projections. Assuming no additional analysis is required, the relevant projections will
be used as a basis for capacity and utilization calculations. GIS will be utilized in
working group meetings (both District and community based), options work sessions
and in development of the Facilities Master Plan recommendations.

AG 011 Rev. 1/29/2013
11

 Attachment-Si
2.6 Capacity and Utilization: CONTRACTOR will prepare, at the completion of the
educational adequacy assessment, and in conjunction with the space inventory and
room usage data, a detailed capacity and utilization analysis that includes permanent
and temporary space, current and recoverable instructional classrooms, and an area
adjustment for small classrooms. The capacity will be based upon a consistent formula
incorporating DOE criteria and will be calculated at the school level from the database.
The utilization, calculated by dividing the enrollment by the campus capacity, will then
be mapped to identity under and over utilization on the islands.
2.7 Facility Option Planning: CONTRACTOR will develop Facility options from the data
collected and input gathered from the facility condition review, educational framework
work session, GIS, cost estimates and community input. Appropriate costs associated
with options will also be developed based on cost estimates of the scope of work
determined by condition and educational adequacy assessment. CONTRACTOR will
develop options in conjunction with DOE and the steering committees before
presenting them to the community. These options identify the basic scope of the
renovations, replacements, additions, new construction, and closures! consolidations,
as well as macro costs. CONTRACTOR to develop an options packet to include all
pertinent planning data and describes each option including basic project scope and
cost.
2.8 Community Engagement: CONTRACTOR to assemble Community Steering
Committees that will assist in the development and implementation of the Facilities
Master Planning process. The Committee shall represent a broad cross-section of
school and non-school members of the community. The Steering Committees will meet
up to five (5) times throughout the process and will include representatives from all
school districts. CONTRACTOR will engage up to seven (7) Steering Committees
throughout the state to achieve a broad based coverage of community needs.
CONTRACTOR will conduct a series of community dialogues to share facility options
with the community. During these sessions, participants will be able to share opinions
on each of the options in a small group format and develop a collective response as to
preferred options. At the conclusion of the dialogue, results will be posted on wall
charts and all questionnaires collected and tallied.
Public Meeting Approach This effort will be developed through a series of five
meetings in each complex:
-

1
2
3
4
5

The initial meeting will convey the overall process and the capacity data
(Steering Committee).
The second meeting will include a presentation of underlying condition data and
the facility options by complex (Steering Committee).
The third meeting will focus on individual options at each school (Steering
Committee).
Then the team will hold a series of community dialogues in each complex to
review options and build consensus on the preferred option at each location
(Community).
Following the facility options planning, the team will focus on recommendations
by school (Steering Committee).

2.9 Economic Analysis: Following development of facility options, CONTRACTOR will
identity potential funding solutions for DOE capital programs. Funding options may
AG 011 Rev. 1/29/2013
12

 Attachment-Si
include traditional bonding, P3 and other alternative solutions. CONTRACTOR will
facilitate discussions with DOE to determine which solutions are viable for DOE to
pursue. It is anticipated that CONTRACTOR will document results of the discussions to
provide a basis for pursuing preferred funding strategies
2.10 Presentation and Relortinci: Upon completion of the assessment, and the entry of
assessment data in M.A.P.P.S
, CONTRACTOR will develop an overall analysis of
TM
DOE facilities. Analysis will include current deficiency costs for each building and
campus, a 10-year life cycle capital renewal forecast, and a FCI for each facility. The
building condition assessment data will be available via reports from the M.A.P.P.STM
database with a printed report for each school. A district wide summary will be
developed for presentation to the administration and/or Board of Education and in its
final form shall include long range Facility Master Plan recommendations.
CONTRACTOR will prepare a written facilities pre-funding plan that includes the results
and findings from the assessment, as well as the capacity analysis for district
enrollment growth. This plan will be a multi-year, prioritized plan of action that sets
forth the timeline and cost for meeting DOE facilities and capital improvement
requirements. The plan’s assessment of requirements and recommendations for action
will be based on the combination of demographic analysis, enrollment projections,
educational mission, and facility condition.
One hard-copy draft report per school, along with a district summary will be provided to
DOE, in addition to electronic copies. Per the schedule below, DOE will have two
weeks to review and comment on the draft report. CONTRACTOR will then prepare a
final report over a time period of one week. The final report will be presented at Board
of Education Board meeting (date to be determined).
2.11 M.A.P.P.S
TM Implementation &Training: M.A.P.P.S
TM software application will be
provided to the DOE following the completion of this study with a perpetual license for
ongoing use. A two-day training session for up to ten people will be conducted upon
conclusion of the project. Follow-on technical support, training, RSMeans®cost
updates, and maintenance may be provided at the districts option for an additional
annual fee of $ 44,200.00 per year according to the M.A.P.P.STM Software License
Agreement beginning one year after following the completion of the project.
C. CONTRACTOR’S RESPONSIBILITY:
1. To the extent required by reasonable professional standards governing licensed
architects and engineers within the State of Hawaii, the CONTRACTOR shall be
responsible for the professional and technical accuracy and the coordination of all
services required under this agreement. Neither the State of Hawaii, Department of
Education’s review, approval or acceptance of, nor payment for any of the services
required under this agreement shall relieve the CONTRACTOR from such responsibility.
The CONTRACTOR shall be held liable for damages sustained by the STATE as a
result of CONTRACTOR’S negligence, errors, omissions or breach of contract in
carrying out such responsibility. In the event of a conflict within the CONTRACTOR’S
RESPONSIBILITY requirements with the Indemnification provision contained the
Special Conditions, Attachment-S5 to the contract, the Indemnification provision in the
Special Conditions shall control.
AG 011 Rev. 1/29/2013
13

 Attachment-S2
STATE OF HAWAII
COMPENSATION AND PAYMENT SCHEDULE

PROJECT:

FACILITIES MASTER PLAN

-

SYSTEM-WIDE

For the Hawaii Department of Education
D.O.E. Job No.

061 004-13

The STATE shall compensate the CONTRACTOR in accordance with the terms and
conditions of this Agreement.
A.

For Basic Services, as described in the manual entitled “Policies and Procedures
Governing Design Consultant Contracts”, dated November 1981, as revised,
compensation shall be on the basis of a Lump Sum Fixed Fee in the amount of
$4i 92,125.00. Such compensation may be paid monthly for services performed so that
the compensation at the completion of each phase of service shall be the following of the
Lump Sum Fixed Fee.
PHASE I Planning Services

AMOUNT

$

1.1. Preliminary Planning
1 .2. Planning & Policy
Research
1.3. Standards Development /
Educational Specifications
and Guidelines
1.4. CAD Conversion &
Space Inventory
1.5. Pilot Assessment
1.6. Educational. Adeguacy
Assessment
1.7. Building Condition
Assessment
1.8. Enrollment Evaluation
andGlS

—

AG 012 Rev. 9/18/2008
14

219 275 00
194,750.00

—

511 375 00
—

45,150.00
—

505 400 00

—

933 500 00
—

12 1000
.0
—

SUB TOTAL

PHASE II Planning Services
2.1. Cont. Planning & Policy
Research
2.2. Standards Development I
Educational Specifications
and Guidelines

84,350.00

$

2,505,900.00

AMOUNT

$

140,650.00

—

21,150.00

 Attachment-S2
2.3. Cont. Educational
Adequacy Assessment
2.4. Cont. Building Condition
Assessment
2.5. Enrollment Evaluation
and GIS
2.6. Capacity& Utilization

76,000.00
—

694,500.00
33,800.00
—

100,175.00

2.7. Facility Option Planning

155,850.00

2.8. Community Engagement

326,750.00

2.9. Economic Analysis
2.10. Presentation &
Reporting
2.11. M.A.P.P.STM
Implementation & Training

59,100.00
42,550.00
—

35,700.00
—

SUB TOTAL

$

1 ,686,225.00

GRAND TOTAL

$

4,192,125.00

B.

For Additional Services and/or Reimbursable Expenses as described in the manual
entitled, “Policies and Procedures Governing Design Consultant Contracts,” dated
November 1981, as revised, the total amount reserved by the STATE shall be
$422,875.00.

C.

The STATE Engineer has overall responsibility for the management of this contract as
he/she knows specifically what needs to be done and completed at the end of each
phase of work. If any of the scope of work criteria and requirements listed and described
in the DETAILED DESCRIPTION is/are not met, then the work of that particular phase
will be considered incomplete and payment will be withheld until the work is satisfactorily
completed; satisfactory completion is to be determined by the STATE Engineer.

D.

This contract is subject to the availability of funds.

AG 012 Rev. 9/18/2008
15

 Attachment-S3
STATE OF HAWAII
TIME SCHEDULE
PROJECT:

FACILITIES MASTER PLAN

—

SYSTEM-WIDE

FOR THE HAWAII DEPARTMENT OF EDUCATION
D.O.E. Job No.

Q61004-13

Time is considered to be of the essence, and the CONTRACTOR shall execute the work with
due efficiency and diligence to complete the work within the specified time.
The CONTRACTOR shall begin work on the contract immediately upon written notification to
proceed.
The schedule of basic services for this contract is as follows:
ESTIMATED COMPLETION DATE*

PHASE I
1 .1 Preliminary Planning

60 days after NTP

1 .2 Policy Research

240 days after NTP

1.3 Standards Development

180 days after NTP

1.4 CAD Development

180 days after NTP

1.5 Pilot Assessment

120 days after NTP

1.6 Educational Adequacy Survey

240 days after NTP

1.7 Building Condition Assessment

240 days after NTP

1 .8 Enrollment Evaluation

120 days after NTP

PHASE II

ESTIMATED COMPLETION DATE

2.1 Continued Policy Research

90 days after completion of
Phase I

2.2 Education Specification Development

60 days after completion of
Phase I

AG-015 Rev. 11/15/2005
16

*

 Attachment-S3
2.3 Continued Educational Adequacy Survey

60 days after completion of
Phase I

2.4 Continued Building Condition Assessment

60 days after completion of
Phase I

2.5 Enrollment GIS Assessment

60 days after completion of
Phase I

2.6 Capacity and Utilization

120 days after completion of
Phase I

2.7 Facility Option Planning

180 days after completion of
Phase I

2.8 Community Engagement

240 days after completion of
Phase I

2.9 Economic Analysis

240 days after completion of
Phase I

2.10 Presentation and Reporting

240 days after completion of
Phase I

2.11 M.A.P.P.S
TM Implementation & Training

240 days after completion of
Phase I

Note:

(*) Term The contract shall continue until issuance of the Contract Completion
Notice.
-

In the event, during the prosecution of the work, that the CONTRACTOR finds that he
cannot complete the work by the date agreed upon, the CONTRACTOR shall submit to
the STATE in writing, prior to the completion date, a request for time extension, citing the
reasons for requiring the additional time.

AG-015 Rev. 11/15/2005
17

 Attach ment-S5

STATE OF HAWAII
SPECIAL CONDITIONS
GENERAL CONDITIONS
The General Conditions (GC) for the State of Hawaii, (AG-008 Rev. 4/15/2009) and its
subsequent amendments are also to be used for the implementation of Department of
Education (DOE) projects. However, it is hereby understood and agreed to by and between the
parties hereto to amend the GC as follows:
A.

Paragraph 7 of the General Conditions is deleted in its entirety and replaced with the
paragraph below:
Indemnification
The CONTRACTOR shall 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 reasonable attorney’s fees,
and all claims, suits, and demands therefore, arising out of or resulting from the
negligent, reckless, intentional, or wrongful acts, errors, or omissions of the
CONTRACTOR or the CONTRACTOR’s employees, officers, agents, or
subcontractors under this Contract. The provisions of this paragraph shall remain in
full force and effect notwithstanding the expiration or early termination of this
Contract.

POLICIES AND PROCEDURES GOVERNING DESIGN CONSULTANT CONTRACTS
The Policies and Procedures Governing Design Consultant Contracts (PPGDCC) and its
subsequent amendments are also to be used for the implementation of DOE projects.
However, it is hereby understood and agreed to by and between the parties hereto to amend
the Policies and Procedures Governing Design Consultant Contracts as follows:
A.

Chapter II, General Requirements
1.

Delete Paragraph ll.B.1, Comptroller, Paragraph ll.B.4, Department and
Paragraph lI.B.5, Engineer; in their entirety and replace them with the
following:
“1.

Superintendent The Superintendent, State of Hawaii, the legally
appointed head of the Department of Education (DOE), or its
representative(s), designated in writing.

4.

Department

5.

Engineer The STATE Engineer, acting for the Superintendent, either
directly or through an assistant or representative.

—

—

The Department of Education (DOE)

—

AG-015 Rev. 11/15/2005
18

 Attachment-S5
All references to these names shall be changed globally throughout the
PPGDCC.”
B.

Chapter Ill, Administration
Delete Paragraph B, The Department of Accounting and General Services
(DAGS) and its Division of Public Works (DPW) in its entirety and replace
with the following:
“B.

The Department of Education (DOE)

All references to this name shall be changed globally throughout the
PPG DCC.”

AG-015 Rev. 11/15/2005
19

 GENERAL CONDITIONS
Table of Contents
Page(s)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.

Coordination of Services by the STATE
Relationship of Parties: Independent Contractor Status and Responsibilities, Including Tax
Responsibilities
Personnel Requirements
Nondiscrimination
Conflicts of Interest
Subcontracts and Assignments
Indemnification and Defense
Cost of Litigation
Liquidated Damages
STATE’S Right of Offset
Disputes
Suspension of Contract
Termination for Default
Termination for Convenience
Claims Based on the Agency Procurement Officer’s Actions or Omissions
Costs and Expenses
Payment Procedures; Final Payment; Tax Clearance
Federal Funds
Modifications of Contract
Change Order
Price Adjustment
Variation in Quantity for Definite Quantity Contracts
Changes in Cost-Reimbursement Contract
Confidentiality of Material
Publicity
Ownership Rights and Copyright
Liens and Warranties
Audit of Books and Records of the CONTRACTOR
Cost or Pricing Data
Audit of Cost or Pricing Data
Records Retention
Antitrust Claims
Patented Articles
Governing Law
Compliance with Laws
Conflict between General Conditions and Procurement Rules
Entire Contract
Severability
Waiver
Pollution Control
Campaign Contributions
Confidentiality of Personal Information

AG-008 Rev 4/15/2009

1

2
2
3
3
3
3
4
4
4
4
4
4
5
6
8
8
9
9
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14

 GENERAL CONDITIONS
Coordination of Services by the STATE. The head of the purchasing agency (“HOPA”) (which term
includes the designee of the HOPA) shall coordinate the services to be provided by the CONTRACTOR in
order to complete the performance required in the Contract. The CONTRACTOR shall maintain
communications with HOPA at all stages of the CONTRACTOR’S work, and submit to HOPA for resolution
any questions which may arise as to the performance of this Contract. “Purchasing agency” as used in these
General Conditions means and includes any governmental body which is authorized under chapter 1 03D,
HRS, or its implementing rules and procedures, or by way of delegation, to enter into contracts for the
procurement of goods or services or both.
2.

Relationship of Parties: Independent Contractor Status and Responsibilities, Includiun Tax Responsibilities.
a.

In the performance of services required under this Contract, the CONTRACTOR is an “independent
contractor,” with the authority and responsibility to control and direct the performance and details of
the work and services required under this Contract; however, the STATE shall have a general right to
inspect work in progress to determine whether, in the STATE’S opinion, the services are being
performed by the CONTRACTOR in compliance with this Contract. Unless otherwise provided by
special condition, it is understood that the STATE does not agree to use the CONTRACTOR
exclusively, and that the CONTRACTOR is free to contract to provide services to other individuals
or entities while under contract with the STATE.

b.

The CONTRACTOR and the CONTRACTOR’S employees and agents are not by reason of this
Contract, agents or employees of the State for any purpose, and the CONTRACTOR and the
CONTRACTOR’S employees and agents shall not be entitled to claim or receive from the State any
vacation, sick leave, retirement, workers’ compensation, unemployment insurance, or other benefits
provided to state employees.

c.

The CONTRACTOR shall be responsible for the accuracy, completeness, and adequacy of the
CONTRACTOR’S performance under this Contract. Furthermore, the CONTRACTOR intentionally,
voluntarily, and knowingly assumes the sole and entire liability to the CONTRACTOR’S employees
and agents, and to any individual not a party to this Contract, for all loss, damage, or injury caused by
the CONTRACTOR, or the CONTRACTOR’S employees or agents in the course of their
employment.

d.

The CONTRACTOR shall be responsible for payment of all applicable federal, state, and county
taxes and fees which may become due and owing by the CONTRACTOR by reason ofthis Contract,

including but not limited to (i) income taxes, (ii) employment related fees, assessments, and taxes,
and (iii) general excise taxes. The CONTRACTOR also is responsible for obtaining all licenses,
permits, and certificates that may be required in order to perform this Contract.
e.

The CONTRACTOR 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, and the Internal Revenue Service, U.S. Department of the Treasury, showing that all
delinquent taxes, if any, levied or accrued under state law and the Internal Revenue Code of 1986, as
amended, against the CONTRACTOR have been paid and submit the same to the STATE prior to
commencing any performance under this Contract. The CONTRACTOR shall also be solely
responsible for meeting all requirements necessary to obtain the tax clearance certificate required for
final payment under sections 103-53 and 103D-328, HRS, and paragraph 17 of these General
Conditions.

f.

The CONTRACTOR is responsible for securing all employee-related insurance coverage for the
CONTRACTOR and the CONTRACTOR’S employees and agents that is or may be required by law,
and for payment of all premiums, costs, and other liabilities associated with securing the insurance
coverage.

AG-008 Rev. 4/15/2009

2

 3.

g.

The CONTRACTOR shall obtain a certificate of compliance issued by the Department of Labor and
Industrial Relations, State of Hawaii, in accordance with sectionl03D-3 10, HRS, and section 3-122112, HAR, that is current within six months of the date of issuance.

h.

The CONTRACTOR shall obtain a certificate of good standing issued by the Department of
Commerce and Consumer Affairs, State of Hawaii, in accordance with section 1 03D-3 10, HRS, and
section 3-122-1 12, HAR, that is current within six months of the date of issuance.

i.

In lieu of the above certificates from the Department of Taxation, Labor and Industrial Relations, and
Commerce and Consumer Affairs, the CONTRACTOR may submit proof of compliance through the
State Procurement Office’s designated certification process.

Personnel Reciuirements.
a.

The CONTRACTOR shall secure, at the CONTRACTOR’S own expense, all personnel required to
perform this Contract.

b.

The CONTRACTOR shall ensure that the CONTRACTOR’S employees or agents are experienced
and fully qualified to engage in the activities and perform the services required under this Contract,
and that all applicable licensing and operating requirements imposed or required under federal, state,
or county law, and all applicable accreditation and other standards of quality generally accepted in
the field of the activities of such employees and agents are complied with and satisfied.

4.

Nondiscrimination. No person performing work under this Contract, including any subcontractor, employee,
or agent of the CONTRACTOR, shall engage in any discrimination that is prohibited by any applicable
federal, state, or county law.

5.

Conflicts of Interest. The CONTRACTOR represents that neither the CONTRACTOR, nor any employee or
agent of the CONTRACTOR, presently has any interest, and promises that no such interest, direct or indirect,
shall be acquired, that would or might conflict in any manner or degree with the CONTRACTOR’S
performance under this Contract.

6.

Subcontracts and Assignments. The CONTRACTOR shall not assign or subcontract any of the
CONTRACTOR’S duties, obligations, or interests under this Contract and no such assignment or subcontract
shall be effective unless (i) the CONTRACTOR obtains the prior written consent of the STATE, and (ii) the
CONTRACTOR’S assignee or subcontractor submits to the STATE a tax clearance certificate from the
Director of Taxation, State of Hawaii, and the Internal Revenue Service, U.S. Department of Treasury,
showing that all delinquent taxes, if any, levied or accrued under state law and the Internal Revenue Code of
1986, as amended, against the CONTRACTOR’S assignee or subcontractor have been paid. Additionally, no
assignment by the CONTRACTOR of the CONTRACTOR’S right to compensation under this Contract shall
be effective unless and until the assignment is approved by the Comptroller of the State of Hawaii, as
provided in section 40-58, HRS.
a.

b.

Recognition of a successor in interest. When in the best interest of the State, a successor in interest
may be recognized in an assignment contract in which the STATE, the CONTRACTOR and the
assignee or transferee (hereinafter referred to as the “Assignee”) agree that:
(1)

The Assignee assumes all of the CONTRACTOR’S obligations;

(2)

The CONTRACTOR remains liable for all obligations under this Contract but waives all
rights under this Contract as against the STATE; and

(3)

The CONTRACTOR shall continue to furnish, and the Assignee shall also furnish, all
required bonds.

Change of name. When the CONTRACTOR asks to change the name in which it holds this Contract
with the STATE, the procurement officer of the purchasing agency (hereinafter referred to as the
“Agency procurement officer”) shall, upon receipt of a document acceptable or satisfactory to the

AG-008 Rev. 4/15/2009

3

 Agency procurement officer indicating such change of name (for example, an amendment to the
CONTRACTOR’S articles of incorporation), enter into an amendment to this Contract with the
CONTRACTOR to effect such a change of name. The amendment to this Contract changing the
CONTRACTOR’S name shall specifically indicate that no other terms and conditions of this Contract
are thereby changed.
c.

Reports. All assignment contracts and amendments to this Contract effecting changes of the
CONTRACTOR’S name or novations hereunder shall be reported to the chief procurement officer
(CPO) as defined in section 103D-203(a), HRS, within thirty days of the date that the assignment
contract or amendment becomes effective.

d.

Actions affecting more than one purchasing agency. Notwithstanding the provisions of
subparagraphs 6a through 6c herein, when the CONTRACTOR holds contracts with more than one
purchasing agency of the State, the assignment contracts and the novation and change of name
amendments herein authorized shall be processed only through the CPO’s office.

7.

Indemnification and Defense. The CONTRACTOR shall defend, indemnify, and hold harmless the State of
Hawaii, the contracting agency, and their officers, employees, and agents from and against all liability, loss,
damage, cost, and expense, including all attorneys’ fees, and all claims, suits, and demands therefore, arising
out of or resulting from the acts or omissions of the CONTRACTOR or the CONTRACTOR’S employees,
officers, agents, or subcontractors under this Contract. The provisions of this paragraph shall remain in full
force and effect notwithstanding the expiration or early termination of this Contract.

8.

Cost of Litigation. In case the STATE shall, without any fault on its part, be made a party to any litigation
commenced by or against the CONTRACTOR in connection with this Contract, the CONTRACTOR shall
pay all costs and expenses incurred by or imposed on the STATE, including attorneys’ fees.

9.

Liciuidated Damages. When the CONTRACTOR is given notice of delay or nonperformance as specified in
paragraph 13 (Termination for Default) and fails to cure in the time specified, it is agreed the CONTRACTOR
shall pay to the STATE the amount, if any, set forth in this Contract per calendar day from the date set for
cure until either (i) the STATE reasonably obtains similar goods or services, or both, if the CONTRACTOR is
terminated for default, or (ii) until the CONTRACTOR provides the goods or services, or both, if the
CONTRACTOR is not terminated for default. To the extent that the CONTRACTOR’S delay or
nonperformance is excused under paragraph 13d (Excuse for Nonperformance or Delay Performance),
liquidated damages shall not be assessable against the CONTRACTOR. The CONTRACTOR remains liable
for damages caused other than by delay.

10.

STATE’S Right of Offset. The STATE may offset against any monies or other obligations the STATE owes
to the CONTRACTOR under this Contract, any amounts owed to the State of Hawaii by the CONTRACTOR
under this Contract or any other contracts, or pursuant to any law or other obligation owed to the State of
Hawaii by the CONTRACTOR, including, without 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 Hawaii shall not include debts or obligations
which have been liquidated, agreed to by the CONTRACTOR, and are covered by an installment payment or
other settlement plan approved by the State of Hawaii, provided, however, that the CONTRACTOR shall be
entitled to such exclusion only to the extent that the CONTRACTOR is current with, and not delinquent on,
any payments or obligations owed to the State of Hawaii under such payment or other settlement plan.

11.

Disputes. Disputes shall be resolved in accordance with section 103D-703, HRS, and chapter 3-126, Hawaii
Administrative Rules (“HAR”), as the same may be amended from time to time.

12.

Suspension of Contract. The STATE reserves the right at any time and for any reason to suspend this
Contract for any reasonable period, upon written notice to the CONTRACTOR in accordance with the
provisions herein.
a.

Order to stop performance. The Agency procurement officer may, by written order to the
CONTRACTOR, at any time, and without notice to any surety, require the CONTRACTOR to stop
all or any part of the performance called for by this Contract. This order shall be for a specified

AG-008 Rev. 4/15/2009

4

 period not exceeding sixty (60) days after the order is delivered to the CONTRACTOR, unless the
parties agree to any further period. Any such order shall be identified specifically as a stop
performance order issued pursuant to this section. Stop performance orders shall include, as
appropriate: (1) A clear description of the work to be suspended; (2) Instructions as to the issuance of
further orders by the CONTRACTOR for material or services; (3) Guidance as to action to be taken
on subcontracts; and (4) Other instructions and suggestions to the CONTRACTOR for minimizing
costs. Upon receipt of such an order, the CONTRACTOR shall forthwith comply with its terms and
suspend all performance under this Contract at the time stated, provided, however, the
CONTRACTOR shall take all reasonable steps to minimize the occurrence of costs allocable to the
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:

b.

13.

(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 Contract.

Cancellation or expiration of the order. If a stop performance order issued under this section is
cancelled at any time during the period specified in the order, or if the period of the order or any
extension thereof expires, the CONTRACTOR shall have the right to resume performance. An
appropriate adjustment shall be made in the delivery schedule or contract price, or both, and the
Contract shall be modified in writing accordingly, if:
(1)

The stop performance order results in an increase in the time required for, or in the
CONTRACTOR’S cost properly allocable to, the performance of any part of this Contract;
and

(2)

The CONTRACTOR asserts a claim for such an adjustment within thirty (30) days after the
end ofthe period of performance stoppage; provided that, ifthe Agency procurement officer
decides that the factsjustify such action, any such claim asserted may be received and acted
upon at any time prior to final payment under this Contract.

c.

Termination of stopped performance. If a stop performance order is not cancelled and the
performance covered by such order is terminated for default or convenience, the reasonable costs
resulting from the stop performance order shall be allowable by adjustment or otherwise.

d.

Adjustment of price. Any adjustment in contract price made pursuant to this paragraph shall be
determined in accordance with the price adjustment provision of this Contract.

Termination for Default.
a.

Default. If the CONTRACTOR refuses or fails to perform any of the provisions ofthis Contract with
such diligence as will ensure its completion within the time specified in this Contract, or any
extension thereof, otherwise fails to timely satisfy the Contract provisions, or commits any other
substantial breach of this Contract, the Agency procurement officer may notify the CONTRACTOR
in writing of the delay or non-performance and if not cured in ten (10) days or any longer time
specified in writing by the Agency procurement officer, such officer may terminate the
CONTRACTOR’S right to proceed with the Contract or such part of the Contract as to which there
has been delay or a failure to properly perform. In the event of termination in whole or in part, the
Agency procurement officer may procure similar goods or services in a manner and upon the terms
deemed appropriate by the Agency procurement officer. The CONTRACTOR shall continue
performance of the Contract to the extent it is not terminated and shall be liable for excess costs
incurred in procuring similar goods or services.

b.

CONTRACTOR’S duties. Notwithstanding termination ofthe Contract and subject to any directions
from the Agency procurement officer, the CONTRACTOR shall take timely, reasonable, and

AG-008 Rev. 4/15/2009

5

 necessary action to protect and preserve property in the possession of the CONTRACTOR in which
the STATE has an interest.

14.

c.

Compensation. Payment for completed goods aid services delivered and accepted by the STATE
shall be at the price set forth in the Contract. Payment for the protection and preservation of property
shall be in an amount agreed upon by the CONTRACTOR and the Agency procurement officer. If
the parties fail to agree, the Agency procurement officer shall set an amount subject to the
CONTRACTOR’S rights under chapter 3-126, HAR. The STATE may withhold from amounts due
the CONTRACTOR such sums as the Agency procurement officer deems to be necessary to protect
the STATE against loss because of outstanding liens or claims and to reimburse the STATE for the
excess costs expected to be incurred by the STATE in procuring similar goods and services.

d.

Excuse for nonperformance or delayed performance. The CONTRACTOR shall not be in default by
reason of any failure in performance of this Contract in accordance with its terms, including any
failure by the CONTRACTOR to make progress in the prosecution of the performance hereunder
which endangers such performance, if the CONTRACTOR has notified the Agency procurement
officer within fifteen (15) days after the cause ofthe 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 requirements of the Contract.
Upon request of the CONTRACTOR, the Agency procurement officer shall ascertain the facts and
extent of such failure, and, if such officer determines that any failure to perform was occasioned by
any one or more of the excusable causes, and that, but for the excusable cause, the CONTRACTOR’S
progress and performance would have met the terms of the Contract, the delivery schedule shall be
revised accordingly, subject to the rights of the STATE under this Contract. As used in this
paragraph, the term “subcontractor” means subcontractor at any tier.

e.

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
I 3d, “Excuse for nonperformance or delayed performance,” the rights and obligations of the parties
shall be the same as if the notice of termination had been issued pursuant to paragraph 14.

f.

Additional rights and remedies. The rights and remedies provided in this paragraph are in addition to
any other rights and remedies provided by law or under this Contract.

Termination for Convenience.
a.

Termination. The Agency procurement officer may, when the interests of the STATE so require,
terminate this Contract in whole or in part, for the convenience of the STATE. The Agency
procurement officer shall give written notice of the termination to the CONTRACTOR specifying the
part of the Contract terminated and when termination becomes effective.

b.

CONTRACTOR’S obligations. The CONTRACTOR shall incur no further obligations in connection
with the terminated performance and on the date(s) set in the notice of termination the
CONTRACTOR will stop performance to the extent specified. The CONTRACTOR shall also
terminate outstanding orders and subcontracts as they relate to the terminated performance. The
CONTRACTOR shall settle the liabilities and claims arising out of the termination of subcontracts
and orders connected with the terminated performance subject to the STATE’S approval. The
Agency procurement officer may direct the CONTRACTOR to assign the CONTRACTOR’S right,
title, and interest under terminated orders or subcontracts to the STATE. The CONTRACTOR must
still complete the performance not terminated by the notice of termination and may incur obligations
as necessary to do so.

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6

 c.

Right 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 Contract.

The CONTRACTOR shall, upon direction of the Agency procurement officer, protect and preserve
property in the possession ofthe CONTRACTOR in which the STATE has an interest. Ifthe Agency
procurement officer does not exercise this right, the CONTRACTOR shall use best efforts to sell
such goods and manufacturing materials. Use of this paragraph in no way implies that the STATE
has breached the Contract by exercise of the termination for convenience provision.
d.

Compensation.
(1)

The CONTRACTOR shall submit a termination claim specifying the amounts due because of
the termination for convenience together with the cost or pricing data, submitted to the extent
required by chapter 3-122, HAR, 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 Contract price plus
settlement costs reduced by payments previously made by the STATE, the proceeds of any
sales of goods and manufacturing materials under subparagraph 1 4c, and the Contract price
of the performance not terminated.

(3)

Absent complete agreement under subparagraph 14d(2) the Agency procurement officer
shall pay the CONTRACTOR the following amounts, provided payments agreed to under
subparagraph 14d(2) shall not duplicate payments under this subparagraph for the following:

AG-008 Rev. 4/15/2009

(A)

Contract prices for goods or services accepted under the Contract;

(B)

Costs incurred in preparing to perform and performing the terminated portion of the
performance plus a fair and reasonable profit on such portion of the performance,
such profit shall not include anticipatory profit or consequential damages, less
amounts paid or to be paid for accepted goods or services; provided, however, that if
it appears that the CONTRACTOR would have sustained a loss if the entire
Contract would have been completed, no profit shall be allowed or included and the
amount of compensation shall be reduced to reflect the anticipated rate of loss;

(C)

Costs of settling and paying claims arising out 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 Contract and
for the termination of subcontracts thereunder, together with reasonable storage,
transportation, and other costs incurred in connection with the protection or
disposition of property allocable to the terminated portion of this Contract. The total
sum to be paid the CONTRACTOR under this subparagraph shall not exceed the
7

 total Contract price plus the reasonable settlement costs of the CONTRACTOR
reduced by the amount of payments otherwise made, the proceeds of any sales of
supplies and manufacturing materials under subparagraph I 4d(2), and the contract
price of performance not terminated.
(4)
15.

Claims Based on the Agency Procurement Officer’s Actions or Omissions.
a.

Changes in scope. If any action or omission on the part of the Agency procurement officer (which
term includes the designee of such officer for purposes of this paragraph 15) requiring performance
changes within the scope of the Contract constitutes the basis for a claim by the CONTRACTOR for
additional compensation, damages, or an extension oftime for completion, the CONTRACTOR shall
continue with performance of the Contract in compliance with the directions or orders of such
officials, but by so doing, the CONTRACTOR shall not be deemed to have prejudiced any claim for
additional compensation, damages, or an extension of time for completion; provided:
(1)

16.

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.

Written notice required. The CONTRACTOR shall give written notice to the Agency
procurement officer:
(A)

Prior to the commencement of the performance involved, if at that time the
CONTRACTOR knows of the occurrence of such action or omission;

(B)

Within thirty (30) days after the CONTRACTOR knows of the occurrence of such
action or omission, if the CONTRACTOR did not have such knowledge prior to the
commencement of the performance; or

(C)

Within such further time as may be allowed by the Agency procurement officer in
writing.

(2)

Notice content. This notice shall state that the CONTRACTOR regards the act or omission
as a reason which may entitle the CONTRACTOR to additional compensation, damages, or
an extension of time. The Agency procurement officer, upon receipt of such notice, may
rescind such action, remedy such omission, or take such other steps as may be deemed
advisable in the discretion of the Agency procurement officer;

(3)

Basis must be explained. The notice required by subparagraph 1 5a( 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 Contract.

c.

Price adjustment. Any adjustment in the price made pursuant to this paragraph shall be determined in
accordance with the price adjustment provision of this Contract.

Costs and Expenses. Any reimbursement due the CONTRACTOR for per diem and transportation expenses
under this Contract shall be subject to chapter 3-123 (Cost Principles), HAR, and the following guidelines:

AG-008 Rev. 4/15/2009

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 17.

a.

Reimbursement for air transportation shall be for actual cost or coach class air fare, whichever is less.

b.

Reimbursement for ground transportation costs shall not exceed the actual cost of renting an
intermediate-sized vehicle.

c.

Unless prior written approval of the HOPA is obtained, reimbursement for subsistence allowance
(i.e., hotel and meals, etc.) shall not exceed the applicable daily authorized rates for inter-island or
out-of-state travel that are set forth in the current Governor’s Executive Order authorizing adjustments
in salaries and benefits for state officers and employees in the executive branch who are excluded
from collective bargaining coverage.

Payment Procedures: Final Payment; Tax Clearance.
a.

Original invoices required. All payments under this Contract shall be made only upon submission by
the CONTRACTOR of original invoices specifying the amount due and certifying that services
requested under the Contract have been performed by the CONTRACTOR according to the Contract.

b.

Subject to available funds. Such payments are subject to availability of funds and allotment by the
Director of Finance in accordance with chapter 37, HRS. Further, all payments shall be made in
accordance with and subject to chapter 40, HRS.

c.

Prompt payment.

d.

(1)

Any money, other than retainage, paid to the CONTRACTOR shall be disbursed to
subcontractors within ten (10) days after receipt ofthe money in accordance with the
terms of the subcontract; provided that the subcontractor has met all the terms and
conditions of the subcontract and there are no bona fide disputes; and

(2)

Upon final payment to the CONTRACTOR, full payment to the subcontractor,
including retainage, shall be made within ten (10) days after receipt of the money;
provided that there are no bona fide disputes over the subcontractor’s performance
under the subcontract.

Final payment. Final payment under this Contract shall be subject to sections 103-53 and 103D-328,
HRS, which require a tax clearance from the Director of Taxation, State of Hawaii, and the Internal
Revenue Service, U.S. Department of Treasury, showing that all delinquent taxes, if any, levied or
accrued under state law and the Internal Revenue Code of 1986, as amended, against the
CONTRACTOR have been paid. Further, in accordance with section 3-122-112, HAR,
CONTRACTOR shall provide a certificate affirming that the CONTRACTOR has remained in
compliance with all applicable laws as required by this section.

18.

Federal Funds. Ifthis Contract is payable in whole or in part from federal funds, CONTRACTOR agrees that,
as to the portion of the compensation under this Contract to be payable from federal funds, the
CONTRACTOR shall be paid only from such funds received from the federal government, and shall not be
paid from any other funds. Failure of the STATE to receive anticipated federal funds shall not be considered
a breach by the STATE or an excuse for nonperformance by the CONTRACTOR.

19.

Modifications of Contract.
a.

In writing. Any modification, alteration, amendment, change, or extension of any term, provision, or
condition of this Contract permitted by this Contract shall be made by written amendment to this
Contract, signed by the CONTRACTOR and the STATE, provided that change orders shall be made
in accordance with paragraph 20 herein.

b.

No oral modification. No oral modification, alteration, amendment, change, or extension of any
term, provision, or condition of this Contract shall be permitted.

AG-008 Rev. 4/15/2009

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 c.

20.

Agency procurement officer. By written order, at any time, and without notice to any surety, the
Agency procurement officer may unilaterally order of the CONTRACTOR:
(A)

Changes in the work within the scope of the Contract; and

(B)

Changes in the time of performance ofthe Contract that do not alter the scope of the Contract
work.

d.

Adjustments of price or time for performance. If any modification increases or decreases the
CONTRACTOR’S cost of, or the time required for, performance of any part of the work under this
Contract, an adjustment shall be made and this Contract modified in writing accordingly. Any
adjustment in contract price made pursuant to this clause shall be determined, where applicable, in
accordance with the price adjustment clause of this Contract or as negotiated.

e.

Claim barred after final payment. No claim by the CONTRACTOR for an adjustment hereunder
shall be allowed if written modification of the Contract is not made prior to final payment under this
Contract.

f.

Claims not barred. In the absence of a written contract modification, nothing in this clause shall be
deemed to restrict the CONTRACTOR’S right to pursue a claim under this Contract or for a breach of
contract.

g.

CPO approval. If this is a professional services contract awarded pursuant to section 103D-303 or
103D-304, HRS, any modification, alteration, amendment, change, or extension of any term,
provision, or condition of this Contract which increases the amount payable to the CONTRACTOR
by at least $25,000.00 or ten per cent (10%) of the initial contract price, whichever increase is higher,
must receive the prior approval of the CPO.

h.

Tax clearance. The STATE may, at its discretion, require the CONTRACTOR to submit to the
STATE, prior to the STATE’S approval of any modification, alteration, amendment, change, or
extension of any term, provision, or condition of this Contract, a tax clearance from the Director of
Taxation, State of Hawaii, and the Internal Revenue Service, U.S. Department of Treasury, showing
that all delinquent taxes, if any, levied or accrued under state law and the Internal Revenue Code of
1986, as amended, against the CONTRACTOR have been paid.

i.

Sole source contracts. Amendments to sole source contracts that would change the original scope of
the Contract may only be made with the approval of the CPO. Annual renewal of a sole source
contract for services should not be submitted as an amendment.

Change Order. The Agency procurement officer may, by a written order signed only by the STATE, at any
time, and without notice to any surety, and subject to all appropriate adjustments, make changes within the
general scope of this Contract in any one or more of the following:

a.

(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.

Adjustments of price or time for performance. If any change order increases or decreases the
CONTRACTOR’S cost of, or the time required for, performance of any part of the work under this
Contract, whether or not changed by the order, an adjustment shall be made and the Contract
modified in writing accordingly. Any adjustment in the Contract price made pursuant to this
provision shall be determined in accordance with the price adjustment provision of this Contract.
Failure ofthe parties to agree to an adjustment shall not excuse the CONTRACTOR from proceeding
with the Contract as changed, provided that the Agency procurement officer promptly and duly
makes the provisional adjustments in payment or time for performance as may be reasonable. By

AG-008 Rev. 4/15/2009

10

 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.

21.

b.

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 respond with a claim for an adjustment. The requirement for a timely written
response by CONTRACTOR cannot be waived and shall be a condition precedent to the assertion of
a claim.

c.

Claim barred after final payment. No claim by the CONTRACTOR for an adjustment hereunder
shall be allowed if a written response is not given prior to final payment under this Contract.

d.

Other claims not barred. In the absence of a change order, nothing in this paragraph 20 shall be
deemed to restrict the CONTRACTOR’S right to pursue a claim under the Contract or for breach of
contract.

Price Adjustment.
a.

b.

Price adjustment. Any adjustment in the contract price pursuant to a provision in this Contract shall
be made in one or more of the following ways:
(1)

By agreement on a fixed price adjustment before commencement of the pertinent
performance or as soon thereafter as practicable;

(2)

By unit prices specified in the Contract or subsequently agreed upon;

(3)

By the costs attributable to the event or situation covered by the provision, plus appropriate
profit or fee, all as specified in the Contract or subsequently agreed upon;

(4)

In such other manner as the parties may mutually agree; or

(5)

In the absence of agreement between the parties, by a unilateral determination by the Agency
procurement officer of the costs attributable to the event or situation covered by the
provision, plus appropriate profit or fee, all as computed by the Agency procurement officer
in accordance with generally accepted accounting principles and applicable sections of
chapters 3-123 and 3-126, HAR.

Submission of cost or pricing data. The CONTRACTOR shall provide cost or pricing data for any
price adjustments subject to the provisions of chapter 3-122, HAR.

22.

Variation in Quantity for Definite Quantity Contracts. Upon the agreement of the STATE and the
CONTRACTOR, the quantity of goods or services, or both, if a definite quantity is specified in this Contract,
may be increased by a maximum often per cent (10%); provided the unit prices will remain the same except
for any price adjustments otherwise applicable; and the Agency procurement officer makes a written
determination that such an increase will either be more economical than awarding another contract or that it
would not be practical to award another contract.

23.

Changes in Cost-Reimbursement Contract. If this Contract is a cost-reimbursement contract, the following
provisions shall apply:
a.

The Agency procurement officer may at any time by written order, and without notice to the sureties,
if any, make changes within the general scope of the Contract in any one or more of the following:
(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;

AG-008 Rev. 4/15/2009

11

 24.

(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 Contract, whether or not changed by the
order, or otherwise affects any other terms and conditions of this Contract, the Agency procurement
officer shall make an equitable adjustment in the (1) estimated cost, delivery or completion schedule,
or both; (2) amount of any fixed fee; and (3) other affected terms and shall modi1,’ the Contract
accordingly.

c.

The CONTRACTOR must assert the CONTRACTORS rights to an adjustment under this provision
within thirty (30) days from the day of receipt of the written order. However, if the Agency
procurement officer decides that the facts justify it, the Agency procurement officer may receive and
act upon a proposal submitted before final payment under the Contract.

d.

Failure to agree to any adjustment shall be a dispute under paragraph 11 of this Contract. However,
nothing in this provision shall excuse the CONTRACTOR from proceeding with the Contract as
changed.

e.

Notwithstanding the terms and conditions of subparagraphs 23a and 23b, the estimated cost of this
Contract and, if this Contract is incrementally funded, the funds allotted for the performance of this
Contract, shall not be increased or considered to be increased except by specific written modification
of the Contract indicating the new contract estimated cost and, if this contract is incrementally
funded, the new amount allotted to the contract.

Confidentiality of Material.
a.

All material given to or made available to the CONTRACTOR by virtue of this Contract, which is
identified as proprietary or confidential information, will be safeguarded by the CONTRACTOR and
shall not be disclosed to any individual or organization without the prior written approval of the
STATE.

b.

All information, data, or other material provided by the CONTRACTOR to the STATE shall be
subject to the Uniform Information Practices Act, chapter 92F, HRS.

25.

Publicity. The CONTRACTOR shall not refer to the STATE, or any office, agency, or officer thereof, or any
state employee, including the HOPA, the CPO, the Agency procurement officer, or to the services or goods,
or both, provided under this Contract, in any of the CONTRACTOR’S brochures, advertisements, or other
publicity of the CONTRACTOR. All media contacts with the CONTRACTOR about the subject matter of
this Contract shall be referred to the Agency procurement officer.

26.

Ownership Rights and Copyright. The STATE shall have complete ownership of all material, both finished
and unfinished, which is developed, prepared, assembled, or conceived by the CONTRACTOR pursuant to
this Contract, and all such material shall be considered “works made for hire.” All such material shall be
delivered to the STATE upon expiration or termination of this Contract. The STATE, in its sole discretion,
shall have the exclusive right to copyright any product, concept, or material developed, prepared, assembled,
or conceived by the CONTRACTOR pursuant to this Contract.

27.

Liens and Warranties. Goods provided under this Contract shall be provided free of all liens and provided
together with all applicable warranties, or with the warranties described in the Contract documents, whichever
are greater.

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 28.

29.

Audit of Books and Records of the CONTRACTOR. The STATE may, at reasonable times and places, audit
the books and records of the CONTRACTOR, prospective contractor, subcontractor, or prospective
subcontractor which are related to:
a.

The cost or pricing data, and

b.

A state contract, including subcontracts, other than a firm fixed-price contract.

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 unless the contract is for a multiple-term or as otherwise
specified by the Agency procurement officer. Unless otherwise required by the Agency procurement officer,
cost or pricing data submission is not required for contracts awarded pursuant to competitive sealed bid
procedures.
If certified cost or pricing data are subsequently found to have been inaccurate, incomplete, or noncurrent as
of the date stated in the certificate, the STATE is entitled to an adjustment of the contract price, including
profit or fee, to exclude any significant sum by which the price, including profit or fee, was increased because
of the defective data. It is presumed that overstated cost or pricing data increased the contract price in the
amount of the defect plus related overhead and profit or fee. Therefore, unless there is a clear indication that
the defective data was not used or relied upon, the price will be reduced in such amount.

30.

Audit of Cost or Pricing Data. When cost or pricing principles are applicable, the STATE may require an
audit of cost or pricing data.

31.

Records Retention.
(1)

Upon any termination of this Contract or as otherwise required by applicable law,
CONTRACTOR shall, pursuant to chapter 487R, HRS, destroy all copies (paper or electronic
form) of personal information received from the STATE.

(2)

The CONTRACTOR and any subcontractors shall maintain the files, books, and records that relate to
the Contract, including any personal information created or received by the CONTRACTOR on
behalf of the STATE, and any cost or pricing data, for at least three (3) years after the date of final
payment under the Contract. The personal information shall continue to be confidential and shall
only be disclosed as permitted or required by law. After the three (3) year, or longer retention period
as required by law has ended, the files, books, and records that contain personal information shall be
destroyed pursuant to chapter 487R, HRS or returned to the STATE at the request of the STATE.

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 Contract, except as to overcharges which result from violations
commencing after the price is established under this Contract and which are not passed on to the STATE
under an escalation clause.

33.

Patented Articles. The CONTRACTOR shall defend, indemnify, and hold harmless the STATE, and its
officers, employees, and agents from and against all liability, loss, damage, cost, and expense, including all
attorneys fees, and all claims, suits, and demands arising out of or resulting from any claims, demands, or
actions by the patent holder for infringement or other improper or unauthorized use of any patented article,
patented process, or patented appliance in connection with this Contract. The CONTRACTOR shall be solely
responsible for correcting or curing to the satisfaction of the STATE any such infringement or improper or
unauthorized use, including, without limitation: (a) furnishing at no cost to the STATE a substitute article,
process, or appliance acceptable to the STATE, (b) paying royalties or other required payments to the patent
holder, (c) obtaining proper authorizations or releases from the patent holder, and (d) furnishing such security
to or making such arrangements with the patent holder as may be necessary to correct or cure any such
infringement or improper or unauthorized use.

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 34.

Governing Law. The validity of this Contract and any of its terms or provisions, as well as the rights and
duties of the parties to this Contract, shall be governed by the laws of the State of Hawaii. Any action at law
or in equity to enforce or interpret the provisions of this Contract shall be brought in a state court of
competent jurisdiction in Honolulu, Hawaii.

35.

Compliance with Laws. The CONTRACTOR shall comply with all federal, state, and county laws,
ordinances, codes, rules, and regulations, as the same may be amended from time to time, that in any way
affect the CONTRACTOR’S performance of this Contract.

36.

Conflict Between General Conditions and Procurement Rules. In the event of a conflict between the General
Conditions and the procurement rules, the procurement rules in effect on the date this Contract became
effective shall control and are hereby incorporated by reference.

37.

Entire Contract. This Contract sets forth all of the agreements, conditions, understandings, promises,
warranties, and representations between the STATE and the CONTRACTOR relative to this Contract. This
Contract 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 Contract is declared invalid or unenforceable by a court,
such invalidity or unenforceability shall not affect the validity or enforceability of the remaining terms of this
Contract.

39.

Waiver. The failure of the STATE to insist upon the strict compliance with any term, provision, or condition
of this Contract shall not constitute or be deemed to constitute a waiver or relinquishment of the STATE’S
right to enforce the same in accordance with this Contract. The fact that the STATE specifically refers to one
provision of the procurement rules or one section of the Hawaii Revised Statutes, and does not include other
provisions or statutory sections in this Contract shall not constitute a waiver or relinquishment of the
STATE’S rights or the CONTRACTOR’S obligations under the procurement rules or statutes.

40.

Pollution Control. If during the performance of this Contract, the CONTRACTOR encounters a “release” or
a “threatened release” of a reportable quantity of a “hazardous substance,” “pollutant,” or “contaminant” as
those terms are defined in section 128D-1, HRS, the CONTRACTOR shall immediately notify the STATE
and all other appropriate state, county, or federal agencies as required by law. The Contractor shall take all
necessary actions, including stopping work, to avoid causing, contributing to, or making worse a release of a
hazardous substance, pollutant, or contaminant, and shall promptly obey any orders the Environmental
Protection Agency or the state Department of Health issues in response to the release. In the event there is an
ensuing cease-work period, and the STATE determines that this Contract requires an adjustmentf the time
for performance, the Contract shall be modified in writing accordingly.

41.

Campaign Contributions. The CONTRACTOR is hereby notified of the applicability of 11-205.5, HRS,
which states that campaign contributions are prohibited from specified state or county government contractors
during the terms of their contracts if the contractors are paid with funds appropriated by a legislative body.

42.

Confidentiality of Personal Information.
a.

Definitions.
“Personal information” means an individual’s first name or first initial and last name in
combination with any one or more of the following data elements, when either name or data
elements are not encrypted:
(1)

Social security number;

(2)

Driver’s license number or Hawaii identification card number; or

AG-008 Rev. 4/15/2009

14

 (3)

Account number, credit or debit card number, access code, or password that would permit
access to an individual’s financial information.

Personal information does not include publicly available information that is lawfully made
available to the general public from federal, state, or local government records.
“Technological safeguards” means the technology and the policy and procedures for use of the
technology to protect and control access to personal information.
b.

c.

d.

Confidentiality of Material.
(I)

All material given to or made available to the CONTRACTOR by the STATE by virtue
of this Contract which is identified as personal information, shall be safeguarded by the
CONTRACTOR and shall not be disclosed without the prior written approval of the
STATE.

(2)

CONTRACTOR agrees not to retain, use, or disclose personal information for any
purpose other than as permitted or required by this Contract.

(3)

CONTRACTOR agrees to implement appropriate “technological safeguards” that are
acceptable to the STATE to reduce the risk of unauthorized access to personal
information.

(4)

CONTRACTOR shall report to the STATE in a prompt and complete manner any
security breaches involving personal information.

(5)

CONTRACTOR agrees to mitigate, to the extent practicable, any harmful effect that is
known to CONTRACTOR because of a use or disclosure of personal information by
CONTRACTOR in violation of the requirements of this paragraph.

(6)

CONTRACTOR shall complete and retain a log of all disclosures made of personal
information received from the STATE, or personal information created or received by
CONTRACTOR on behalf of the STATE.

Security Awareness Training and Confidentiality Agreements.
(1)

CONTRACTOR certifies that all of its employees who will have access to the personal
information have completed training on security awareness topics relating to protecting
personal information.

(2)

CONTRACTOR certifies that confidentiality agreements have been signed by all of its
employees who will have access to the personal information acknowledging that:
(A)

The personal information collected, used, or maintained by the CONTRACTOR
will be treated as confidential;

(B)

Access to the personal information will be allowed only as necessary to perform
the Contract; and

(C)

Use of the personal information will be restricted to uses consistent with the
services subject to this Contract.

Termination for Cause. In addition to any other remedies provided for by this Contract, if the
STATE learns of a material breach by CONTRACTOR of this paragraph by CONTRACTOR, the
STATE may at its sole discretion:

AG-008 Rev. 4115/2009

15

 (1)

Provide an opportunity for the CONTRACTOR to cure the breach or end the violation; or

(2)

Immediately terminate this Contract.

In either instance, the CONTRACTOR and the STATE shall follow chapter 487N, HRS, with
respect to notification of a security breach of personal information.
e.

Records Retention.
(1)

Upon any termination of this Contract or as otherwise required by applicable law,
CONTRACTOR shall, pursuant to chapter 487R, HRS, destroy all copies (paper or
electronic form) of personal information received from the STATE.

(2)

The CONTRACTOR and any subcontractors shall maintain the files, books, and records
that relate to the Contract, including any personal information created or received by the
CONTRACTOR on behalf of the STATE, and any cost or pricing data, for at least three
(3) years after the date of final payment under the Contract. The personal information
shall continue to be confidential and shall only be disclosed as permitted or required by
law. After the three (3) year, or longer retention period as required by law has ended, the
files, books, and records that contain personal information shall be destroyed pursuant to
chapter 487R, HRS or returned to the STATE at the request of the STATE.

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