H ADDL GEN CON rev 8.pdf

AGC-1

Revised 8-12

ADDITIONAL GENERAL CONDITIONS FOR

GOODS AND SERVICES CONTRACTS

INTENT OF CONTRACT:

The intent of the contract is to provide for the service, complete in every detail, of the work described. The Contractor shall furnish all labor, materials, equipment, tools, transportation and supplies required to complete the work in accordance with the specifications and terms of the contract.

INTERPRETATION OF SPECIFICATIONS:

Should it appear that the work to be done or any of the matters relative thereto are not sufficiently detailed or explained in the specifications, the Contractor shall apply to the

Contracting Officer for such further explanations as may be necessary and shall conform to same as part of the contract, so far as may be consistent with the original specifications; and in the event of any doubt or questions arising respecting the true meaning of the specifications, reference shall be made to the Contracting Officer whose decision thereon shall be final.

LIABILITY INSURANCE:

The Contractor shall not commence any work until it obtains, at its own expense, all required liability insurance. Such insurance must have the approval of the State as to limit form and amount and must be maintained with a company acceptable to the State. Such insurance must be maintained for the full period of the contract and shall provide protection from claims arising out of or resulting from the Contractor's operations under the Contract itself

Subcontractor or by anyone directly or indirectly employed by any of them or by anyone for whose acts any of them may be liable.

The contractor shall take out and maintain during the life of this contract broad form public liability (Bodily Injury) and broad form property damage liability insurance in a combined single limit not less than $1,000,000 and not less than $2,000,000 in the aggregate to protect such contractor and all his subcontractors from claims for damages for personal injury, accidental death and property damage which may arise from operations under this contract, whether such operations be by himself or anyone directly or indirectly employed by either of them.

The insurance described herein will be maintained by the Contractor for the full period of the Contract and in no event will be terminated or otherwise allowed to lapse prior to final acceptance of the work by the State.

A certificate of insurance acceptable to the State shall be filed with the State prior to commencement of the work. Such certificate shall contain a provision that coverage afforded under the policy will not be canceled or changes until at least thirty days written notice has been given to the State by registered mail at the address denominated for the State in the Contract for

AGC-2

Revised 8/12 official communications to it should any policy be canceled before final acceptance by the State, and the Contractor fails to immediately procure replacement insurance as specified, the State reserves the right to procure such insurance and to deduct the cost thereof from any sum due the

Contractor.

LAWS TO BE OBSERVED:

The Contractor at all times shall observe and comply with all Federal, State and local laws or ordinances, rules and regulations which in any manner affect those engaged or employed in the work, the materials used in the work, and the conduct of the work. The Contractor shall also comply with all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the work. Any reference to such laws, ordinances, rules and regulations shall include any amendments thereto.

The Contractor shall protect and indemnify the State and its Departments and Agencies and all their officers, representatives, employees or agents against any claim or liability arising from or based on the violation of any such laws, ordinances, rules and regulations, orders and decrees, whether such violation is committed by the Contractor or his subcontractor or the employee of either or both. If any discrepancy or inconsistency is discovered in the contract for the work in relation to any such laws, ordinances, rules and regulations, orders or decrees, the Contractor shall forthwith report the same to the State of Hawaii, Department of Defense, Engineer in writing.

Attention is directed to the Hawaii Employment Relations Act, Chapter 377, HRS; Hawaii

Employment Security Law, Chapter 383, HRS; Wage and Hour Law, Chapter 387, HRS;

Payment of Wages, Chapter 388, HRS; and Worker's Compensation Law, Chapter 386, HRS.

Workers' Compensation - The Contractor shall, in accordance with Sections 386-121 to

386-129 Hawaii Revised Statutes, inclusive, take out adequate worker's compensation insurance for all of his employees who will be engaged in work at the site of the project.

PERMITS AND LICENSES:

The Contractor shall procure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work.

CHARACTER OF WORKERS OR EQUIPMENT:

A. Character and Proficiency of Workers - All workers must have sufficient skill and experience to perform the work assigned to them and in the operation of the equipment.

Any worker employed on the project by the Contractor who, in the opinion of the Engineer or his authorized representative, is not careful and competent, does not perform his work in a proper and skillful manner or is disrespectful, intemperate, disorderly or neglects or refuses to comply with directions given, or is otherwise objectionable shall, at the written request of the

AGC-3

Engineer, be removed forthwith by the Contractor employing such worker and shall not be employed again in any portion of the work without the written consent of the Engineer. Should the Contractor continue to employ, or again employ such person(s) on the project, the Engineer will withhold all estimates which are or may become due, or the Engineer will suspend the work until such orders are complied with.

B. Insufficient Workers - In the event that the Engineer, in his judgment, finds the condition whereby insufficient workers are present to accomplish the work and no corrective action is taken by the Contractor after being informed, the Engineer reserves the right to terminate the contract.

C. Equipment Requirements - All equipment furnished by the Contractor and used shall be of such size and of such mechanical condition that the work can be prosecuted in an acceptable manner.

RIGHT TO AUDIT RECORDS

Pursuant to Section 103D-317 HRS the State, at reasonable times and places, may audit the books and records relating to the contractor’s cost or pricing data. The books and records shall be maintained for a period of three years from the date of final payment under the contract, unless another period is otherwise authorized in writing.

Additionally, Sections 231-7, 235-108, 237-39 and other HRS chapters through reference, authorizes the Department of Taxation to audit all taxpayers conducting business within the

State. Contractors must make available to the Department of Taxation all books and records necessary to verify compliance with the tax laws.

The following sections of the Hawaii Administrative Rules, Chapter 3-125 are amended as shown below.

CHANGE ORDERS TO GOODS AND SERVICES CONTRACTS – HAR 3-125-2

1. Change clause. By written order, at any time, and without notice to any surety, the 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 of the contract that do not alter the scope of the contract work.

2. 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, an adjustment shall be made and the 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.

Failure of the parties to agree to an adjustment shall not excuse the contractor from

AGC-4

proceeding with the contract as changed, provided that the procurement officer promptly and duly makes the provisional adjustments in payment or time for the direct costs of the work as the State deems reasonable. The right of the contractor to dispute the contract price or time required for performance or both shall not be waived by its performing the work, provided however, that it follows the written notice requirements for disputes and claims established by the contract or these rules.

3. Time Period for Claim. Within 10 days after receipt of a written change order, unless the period is extended by the procurement officer in writing, the contractor shall respond with a claim for an adjustment. The requirement for a timely written response cannot be waived and shall be a condition precedent to the assertion of a claim.

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

5. Claims not barred. In the absence of a change order, nothing in this clause shall be deemed to restrict the contractor’s right to pursue a claim under the contract or for breach of

MODIFICATIONS TO GOODS AND SERVICES CONTRACTS – HAR 3-125-3

1. Contract Modification. By a written order, at any time, and without notice to any surety, the procurement officer, subject to mutual agreement of the parties to the contract and all appropriate adjustments, may make modifications within the general scope of this contract to include any one or more of the following:

a. Drawings, designs, or specifications, for the goods to be furnished;

b. Method of shipment or packing;

c. Place of delivery;

d. Description of services to be performed;

e. Time of performance (i.e., hours of the day, days of the week, etc.);

f. Place of performance of the services; or

g. Other provisions of the contract accomplished by mutual action of the parties to the

2. 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 the 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.

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

AGC-5

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

PRICE ADJUSTMENT FOR GOODS AND SERVICES CONTRACTS – HAR 3-125-12

1. Price adjustment. Any adjustment in contract price pursuant to a clause in this contract shall be made in one or more of the following ways;

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

b. By unit prices specified in the contract or subsequently agree upon;

c. By the costs attributable to the event or situation covered by the clause, plus appropriate profit or fee, all as specified in the contract or subsequently agreed upon;

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

e. In the absence of agreement between the parties, by a unilateral determination by the procurement officer of the costs attributable to the event or situation covered by the clause, plus appropriate profit or fee, all as computed by the procurement officer in accordance with generally accepted accounting principles and applicable sections of chapters 3-122 and

3-126, Hawaii Administrative Rules.

2. Submission of cost or pricing data. The contractor shall provide cost or pricing data for any price adjustments subject to the provision of subchapter 15, chapter 3, 122, Hawaii

Administrative Rules.

PROMPT PAYMENT BY CONTRACTORS TO SUBCONTRACTORS – HAR 3-125-23

1. Prompt payment clause. Any money, other than retainage, paid to a contractor shall be dispersed to subcontractors within ten days after receipt of the money in accordance with the terms of the subcontract; provided that the subcontractor has met all the terms and conditions of the subcontract and there are no bona fide disputes; and, upon final payment to the contractor, full payment to the subcontractor, including retainage, shall be made within ten days after receipt of the money; provided that there are no bona fide disputes over the subcontractor’s performance under the subcontract.