Research Corporation of the University of Hawaiʻi

AGREEMENT BETWEEN
THE RESEARCH CORPORATION OF THE UNIVERSITY OF HAWAII
and

THIS AGREEMENT, entered into this       day of      , 200      by and between The Research Corporation of the University of Hawaii, hereinafter called “RCUH”, a governmental agency of the State of Hawaii, whose post office address is 2800 Woodlawn Drive, Suite 200, Honolulu, Hawaii 96822, for the benefit of      , hereinafter called the “Project”, and      , hereinafter called “SUBCONTRACTOR”, whose business address and tax identification number are as follows:

WITNESSETH THAT:

WHEREAS, the Project and the Funding Agency are parties to a Grant/Contract Number       and the CFDA number, if applicable,       entitled “     “, a copy of which is attached hereto as Attachment 1 and by reference made a part hereof; and
WHEREAS, the Project has requested RCUH to provide administrative services for their benefit in support of the Grant/Contract referenced above, in accordance with the Internal Agreement between UH and RCUH, and
WHEREAS, RCUH for the benefit of the Project and the Principal Investigator of said grant/contract will provide financial support to the SUBCONTRACTOR to provide the Services detailed in the Statement of Work attached hereto as Attachment 2; and
WHEREAS, RCUH desires to compensate the SUBCONTRACTOR for their Subcontract work in accordance with the applicable budget attached hereto as Attachment 3 and by reference made a part hereof; NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the parties hereto agree:
1. The SUBCONTRACTOR agrees to perform the necessary services for the implementation and completion of that portion of the contract above referred to as relates to the Project.
2. The SUBCONTRACTOR agrees to conform to all federal rules and regulations that may apply to the conduct and performance of this Agreement.
3. Period of Agreement and Amount: The period of performance of this Agreement shall be       through      , as listed in the Project Budget which is attached hereto as Attachment 3 and made a part hereof by reference, and provided, further, that expenditures from monies to be provided by RCUH pursuant to this Agreement shall not exceed the total amount of $     .
4. Method of Payment: RCUH shall reimburse the SUBCONTRACTOR for expenses incurred by the project on a monthly basis. Such reimbursement will be made in accordance with the submission or completion of required deliverables, monthly billings prepared and submitted by the SUBCONTRACTOR, broken down by expense categories reflected in the budget, and must be consistent with the rules and regulations contained in Attachment 1 of this subcontract. Failure to submit invoices on a timely basis may result in delayed reimbursement. RCUH may withhold reimbursement payments if quarterly financial reports are not submitted on a timely basis or if reported cost sharing data is not current or proportional to the annual estimated obligation.
5. Audit Requirements: The provisions of Office of Management and Budget (OMB) Circular A-133, “Audits of States, Local Governments, and Nonprofit Organizations,” apply to this contract. The SUBCONTRACTOR agrees to comply with the requirements of OMB Circular A-133. SUBCONTRACTOR further agrees to provide the University of Hawaii (UH) with timely access to any independent auditors’ reports that describe instances of noncompliance with federal laws and regulations that bear directly on the performance or administration of this sub-award. In cases of such noncompliance, SUBCONTRACTOR will provide copies of responses to auditors’ reports and associated corrective action plans. All reports prepared in accordance with the requirements of OMB Circular A-133 shall be available for inspection by representatives of UH or the government during normal business hours. The SUBCONTRACTOR shall cooperate with UH in resolving questions that UH may have concerning any audit reports and plans for corrective action(s). Failure to submit the audit report and corrective actions may result in delayed reimbursement to SUBCONTRACTOR for costs incurred under the contract.
6. Examination of Records: The SUBCONTRACTOR agrees that the U.S. Comptroller General, University of Hawaii, RCUH, or any of their duly authorized representatives shall have access to, and the right to inspect or audit any directly pertinent books, documents, papers and records of the SUBCONTRACTOR involving transactions related to this Agreement. The SUBCONTRACTOR agrees that it shall keep for a period of three (3) years following completion of the project, or until all litigation, claims or audit findings have been resolved and final action is taken, such records as may be reasonably necessary to facilitate an effective audit.
7. Termination: The RCUH shall have the privilege, with or without cause, to cancel or annul this Agreement at any time upon written notice given thirty (30) days in advance of such termination.
8. Disallowed Costs: The SUBCONTRACTOR shall be responsible for reimbursement to the prime SUBCONTRACTOR, UH, a sum of money equivalent to the amount of any expenditures disallowed should the funding agency or an authorized agency rule through audit exception or some other appropriate means that expenditures from funds allocated to the SUBCONTRACTOR for direct and/or indirect costs were not made in compliance with the applicable cost principles, regulation of the funding agency, or the provisions of this Subcontract.
9. Disputes: Any disputes concerning a matter of fact arising under this Agreement, which is not disposed of by mutual agreement within thirty (30) calendar days, shall be determined by the Executive Director of RCUH, or said Executive Director’s designated representative who shall reduce the decision to writing and mail or otherwise furnish a copy of the decision to the SUBCONTRACTOR. Pending final decision of such a dispute, the SUBCONTRACTOR shall proceed diligently with the performance of services under this Agreement in accordance with RCUH’s request.
10. Federal Funds: If this Agreement is payable in whole or in part from federal funds, the SUBCONTRACTOR agrees that, as to the portion of the compensation under this Agreement to be payable from federal funds, the SUBCONTRACTOR shall be paid only from such federal funds received from the federal government, and shall not be paid from any other funds.
11. Ownership Rights and Copyright. RCUH shall have complete ownership of all material, both finished and unfinished, which is developed, prepared, assembled, or conceived by the SUBCONTRACTOR pursuant to this Agreement, and all such material shall be considered “works made for hire”. All such material shall be delivered to the RCUH upon expiration or termination of this Agreement. RCUH, at its discretion, shall have the exclusive right to copyright any product, concept, or material developed, prepared, assembled, or conceived by the SUBCONTRACTOR pursuant to this Agreement. The SUBCONTRACTOR, however, reserves the right to use thereafter any ideas and techniques that may be developed during the performance of this Agreement.
12. Governing Law: The validity of the Agreement and any of its terms or provisions, as well as the rights and duties of the parties to this Agreement, shall be governed by the laws of the State of Hawaii. Any action at law or in equity to enforce or interpret the provisions of this Agreement shall be brought in a state court of competent jurisdiction in Honolulu, Hawaii.
13. Indemnification and Defense: SUBCONTRACTOR shall defend, indemnify, and hold harmless RCUH, the University of Hawaii, 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 thereof, arising out of or resulting from the acts or omissions of the SUBCONTRACTOR or its employees, officers, agents, or SUBCONTRACTORs under this Agreement. The provisions of this paragraph shall remain in full force and effect notwithstanding the expiration or early termination of this Agreement.
14. Modifications of Agreement: Any modification, alteration, amendment, change, or extension of any term, provision, or condition of this Agreement shall be made only by written amendments to this Agreement, signed by both the SUBCONTRACTOR and RCUH.
15. Relationship of Parties; Independent SUBCONTRACTOR Status and Responsibilities:
a. In the performance of services, or delivery of goods, or both, required under this Agreement, the SUBCONTRACTOR is an “independent SUBCONTRACTOR,” with the authority and responsibility to control and direct the performance and details of the work and services required under this Agreement; however, RCUH shall have a general right to inspect work in progress to determine whether, in RCUH’s opinion, the services are being performed or the goods are being provided, or both, by SUBCONTRACTOR.
b. The SUBCONTRACTOR and the SUBCONTRACTOR’s employees and agents are not by reason of this Agreement, agents or employees of RCUH for any purpose, and the SUBCONTRACTOR and the SUBCONTRACTOR’s employees and agents shall not be entitled to claim or receive from RCUH any vacation, sick leave, retirement, workers’ compensation, unemployment insurance, or other benefits provided to RCUH employees.
c. The SUBCONTRACTOR shall be responsible for the accuracy, completeness, and adequacy of its performance under this Agreement. Furthermore, the SUBCONTRACTOR intentionally, voluntarily, and knowingly assumes the sole and entire liability to the SUBCONTRACTOR’s employees and agents, and to any individual not a party to this Agreement, for all loss, damage, or injury caused by the SUBCONTRACTOR, or the SUBCONTRACTOR’s employees or agents in the course of their employment.
d. The SUBCONTRACTOR shall be responsible for payment of all applicable federal, state, and county taxes and fees which may become due and owing by the SUBCONTRACTOR by reason of this Agreement, including but not limited to (i) income taxes, (ii) employment related fees, assessments, and taxes, and (iii) general excise taxes. The SUBCONTRACTOR is responsible for obtaining all licenses, permits, and certificates that may be required in order to perform the Agreement.
e. The SUBCONTRACTOR is responsible for securing all employee-related insurance coverage for the SUBCONTRACTOR and the SUBCONTRACTOR’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.
16. Tax Clearances: In accordance with Section 103-53, Hawaii Revised Statutes, if the amount of this Agreement is $25,000 or more, a tax clearance from the Director of Taxation, State of Hawaii and the Internal Revenue Service is required before this subcontract can become effective. Tax clearances are also required prior to the release of final payment.
17. General Conditions: The terms, conditions, provisions, and special requirements of the Prime Grant/Contract will apply to this Agreement and are attached hereto as Attachment 1 and made a part hereof by reference.
18. Standards of Conduct Declaration. The Standards of Conduct Declaration by SUBCONTRACTOR, set forth in Attachment 4, is hereby made a part of this Agreement.
19. Federal Provisions. If federal grant funds are expended under this contract, the SUBCONTRACTOR shall comply with the applicable provisions of Attachment 32a. If federal contract funds are expended under this contract, the SUBCONTRACTOR shall comply with the applicable provisions of Attachment 32b, 32c, or 32d.
20. It is understood that this Agreement represents the sole and entire Agreement between the parties.
IN WITNESSETH WHEREOF, The SUBCONTRACTOR and The Research Corporation of the University of Hawaii have executed this Agreement at Honolulu, Hawaii on       with retroactive effect as of and from the date first above written.

RECOMMENDED BY:

__________________________________ Date: _____________________________
PRINCIPAL INVESTIGATOR OR
PROJECT AUTHORITY

EXECUTED BY:

SUBCONTRACTOR

___________________________________
Date: _____________________________

THE RESEARCH CORPORATION OF
THE UNIVERSITY OF HAWAII

___________________________________
Date: ______________________________

Attachment 4

STANDARDS OF CONDUCT DECLARATION

For the purposes of this declaration:

“Employee” means any nominated, appointed, or elected officer or employee of the State, including members of boards, commissions, and committees, and employee under contract to the State or of the Constitutional Convention, but excluding legislators, delegates to the Constitutional Convention, justices and judges.

“Controlling interest” means an interest in a business or other undertaking which is sufficient in fact to control, whether the interest be greater or less than fifty per cent.

On behalf of      , SUBCONTRACTOR, the undersigned does declare, under penalty of perjury, as follows:

1. SUBCONTRACTOR (is) (is not) a legislator or an employee or a business in which a legislator or an employee has a “controlling interest”.

2. SUBCONTRACTOR has not been assisted or represented by a legislator or employee for a fee or other compensation to obtain this Agreement and will not be assisted or represented by a legislator or employee for a fee or other compensation in the performance of the Agreement, if the legislator or employee had been involved in the development or award of the Agreement.

3. SUBCONTRACTOR has not been assisted or represented for a fee or other compensation in the award of this Agreement by a RCUH employee, or in the case of the Legislature, by a legislator.

4. SUBCONTRACTOR has not been represented or assisted personally on matters related to the Agreement by a person who has been an employee of the RCUH within the preceding two years and who participated while in state office or employment on the matter with which the contract is directly concerned.

5. SUBCONTRACTOR has not been represented or assisted on matters related to the Agreement, for a fee or other consideration by an individual who, within the past twelve months, has been a RCUH employee.

6. SUBCONTRACTOR has not been represented or assisted in the award of this Agreement for a fee or other consideration by an individual who, (a) within the past twelve months, served as a RCUH employee, and (b) participated while an employee on matters related to this Agreement.

SUBCONTRACTOR understands that the Agreement to which this document is attached is
voidable on behalf of the RCUH if this Agreement 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 RCUH.

Dated:      , 20     .

SUBCONTRACTOR

_________________________________________
By

Its (Title)