ESBD_361723_1717799937389_01_580-25-RFP-0002_FINANCIAL CUSTODIAN.pdf

REQUEST FOR PROPOSALS NO. 580-25-RFP-0002

FOR

FINANCIAL CUSTODIAN SERVICES

CLASS-ITEM CODE(S): 946-30

RELEASE DATE: JUNE 7, 2024

DEADLINE FOR SUBMISSION: JUNE 28, 2024

Solicitation Point of Contact:

Bid-room@twdb.texas.gov

You, the Respondent, are responsible for checking the Electronic State Business Daily (ESBD) website, http://www.txsmartbuy.com/sp, for any addenda to this Solicitation. Please search under Agency Code 580 (Texas Water Development Board). Respondent’s failure to periodically check the ESBD will in no way release that Respondent from addenda or additional information resulting in additional requirements of the Solicitation.

The issuing office believes that the services requested in this Request for Proposals may be proprietary to one vendor under Texas Government Code § 2155.067;

however, the issuing office strongly encourages offers from all qualified respondents that may be able to provide the requested services.

mailto:Bid-room@twdb.texas.gov http://www.txsmartbuy.com/sp

580-25-RFP-0002 Page 2 of 28

TABLE OF CONTENTS

SECTION I – EXECUTIVE SUMMARY, DEFINITIONS, AND AUTHORITY 3

SECTION II – STATEMENT OF WORK 4

SECTION III – DELIVERABLES 7

SECTION IV – GENERAL INFORMATION 8

SECTION V – GENERAL TERMS AND CONDITIONS 13

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SECTION I – EXECUTIVE SUMMARY, DEFINITIONS, AND AUTHORITY

1.1 EXECUTIVE SUMMARY

The Texas Water Development Board (TWDB) requests responses to this Request for Proposals (RFP) for the award of a service contract for Financial Custodian Services.

The Texas Water Development Board (TWDB) registers political subdivision obligations (PSOs) issued by entities participating in its financing programs with the Depository Trust and Clearing Corporation (DTCC) and uses its clearing services for processing principal and interest payments of its PSOs. Utilization of DTCC's clearing services improves agency efficiency by eliminating manual processing and facilitating financial reporting. Because TWDB is not formally classified as a banking institution, it accesses the DTCC system via a contractual relationship with a Financial Custodian.

1.2 DEFINITIONS

“Addendum” means a written clarification or revision to the solicitation issued by the Texas Water Development Board. Respondents must acknowledge receipt of any addenda in the submission of the Solicitation Response.

“Contract/Contract Documents” means all documents that govern this Solicitation and any resulting contract(s). This RFP, any Addendum issued in conjunction with this RFP, the successful Respondent’s proposal, any Best and Final Offer (BAFO), and subsequent submission by Respondent will all be fully incorporated therein as exhibits.

“Contractor” means Respondent(s) awarded a contract under this Solicitation.

“CUSIP” A unique identifier assigned to a bond at the time it is issued. The acronym CUSIP typically refers to both the Committee on Uniform Security Identification Procedures and the 9-character alphanumeric security identifiers assigned to all North American securities for the purpose of facilitating clearing and settlement of trades.

“ESBD” means the Electronic State Business Daily, http://www.txsmartbuy.com/sp.

“HUB” means Historically Underutilized Business as defined by Chapter 2161 of the Texas Government Code.

“Issue” The entire amount of bonds sold at a particular time and identifiable by date of maturity.

“PIA” means the Public Information Act, Chapter 552 of the Texas Government Code.

“Project” means the work solicited under this Solicitation.

“Respondent” means the entity responding to this Solicitation.

“RFP” means Request for Proposals.

“Solicitation” means this RFP.

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“Solicitation Response” means Respondent’s entire response to this Solicitation, including all documents requested.

“State” means the State of Texas and any state agency; the Texas Water Development Board or state agency identified in this Solicitation, its officers, employees, or authorized agents.

“TAC” means Texas Administrative Code.

“Termination” TWDB may terminate the agreement if TWDB in its sole discretion believes the Contractor is not satisfactorily meeting its service requirements as specified herein. TWDB reserves the right to extend the due date, amend this RFP, cancel this RFP or waive minor technicalities.

“TWDB” means the Texas Water Development Board.

1.3 AUTHORITY

TWDB is posting this Solicitation pursuant to the State Purchasing and General Services Act, Texas Government Code Chapter 2155, and Texas Water Code § 6.190.

1.4 BACKGROUND

The Texas Water Development Board (TWDB) registers political subdivision obligations (PSOs) issued by entities participating in its financing programs with the Depository Trust and Clearing Corporation (DTCC) and uses its clearing services for processing principal and interest payments of its PSOs.

TWDB needs custodian services for its bond portfolio. Contractor will need to be able to service TWDB’s portfolio of a large and growing number of securities without loss of service quality.

SECTION II – STATEMENT OF WORK

2.1 DESCRIPTION OF SERVICES

The selected Contractor will provide services including but not limited to the requirements contained in this RFP. Requested services that contain the words "must" are mandatory and must be provided as specified with no alterations, modifications, or exceptions. Requested services that contain the words "may" or "can" allow Respondent to propose alternatives to the way the requested services are provided.

Qualified firms must provide financial custodian services for registration, safekeeping, delivery, securities valuation, investment performance reporting, securities lending and other services in connection with the investments of TWDB.

2.2 PROJECT REQUIREMENTS

Respondents to this RFP must provide a narrative stating the following:

2.2.1 Qualifications and Experience:

(a) Describe the Respondent’s organization and its organizational structure, to include

580-25-RFP-0002 Page 5 of 28 services provided, date founded, ownership, and other business affiliations;

(b) Provide the address of the office location that will service the account;

(c) Describe the experience of the financial institution in providing similar custodian services for public agency clients;

(d) List the number and market value of Respondent’s public agency custodian accounts for the past three years and the average length of service;

(e) Describe the method proposed to maintain TWDB assets separate and apart from the assets of others;

(f) Explain whether the TWDB will have access to an automated system that will enable it to see the activity in its accounts(s);

(g) Verify whether wires received before 1 p.m. will be posted to TWDB’s account(s) on the same day and wires received after 1 p.m. will be posted to TWDB’s account(s) on the following day;

(h) Describe the time frame in which redemption notices will be forwarded to TWDB and the method of communication that will be used to inform TWDB of pending redemptions;

(i) Describe the monthly statements that will be available for TWDB accounts(s) each calendar month and when they will be provided;

(j) Explain the format in which original records are maintained, how long they are maintained, and if the TWDB will have access to electronic copies via an on-line system;

(k) Verify that original records will be available for inspection by federal or state auditors;

(l) Verify that original records will be maintained for a minimum of three years.

(m) Respondents other than the incumbent, if awarded, will be responsible for any and all

DTCC registration changes, report setup and all other infrastructure setup associated with this appointment.

2.2.2 Qualifications and Experience:

(a) Attach your most recent quarterly financial statements for the most recent twelve (12) quarters;

(b) Provide evidence of financial strength as measured by credit rating and key financial

2.2.3 Personnel Assigned:

(a) Provide biographical information on bank officers who will be directly involved in the management of TWDB’s account: identify the primary contact(s), and describe any experience these officers have in working with the public sector, their areas of expertise, and years of experience;

(b) Provide an organizational chart for the personnel who will be associated with the TWDB account, including the roles of each person and illustrating the relationships among the personnel;

(c) Obtain TWDB written approval prior to any substitution of personnel from those named in the response.

2.2.4 DTCC Participant Membership:

(a) Provide a letter or other printed statement or document from DTC evidencing the

Respondent’s current DTC participant membership. Failure to provide this information with the RFP will disqualify the Respondent from evaluation and potential contract award.

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2.2.5 Fees and Billings:

(a) Respondent must complete and submit the information found in CONTENT ITEM 7 specifying the fees Respondent will assess the TWDB;

(b) Respondent must specifically state how much of the fee will be assessed to the TWDB and the process for payment;

(c) Respondent must state the frequency (monthly, quarterly, semi- annually, annually, etc.) that billings will be submitted to the TWDB;

(d) The selected Contractor(s) will be responsible for billing the issuer directly for any DTC fees that are assessed to the issuer. In addition, it is the TWDB’s preference that any initial underwriting fee required at closing be assessed to the issuer;

(e) Respondent must specify whether the fees are per issue, per CUSIP, or some other computational method;

(f) Respondent must indicate how often it has revised its fee schedule in the past five years and whether Respondent can guarantee a fee schedule for a period of time;

(g) In conjunction with their bond issuance, entities that borrow funds from the TWDB also contract for paying agent services and escrow agent services. The choice of paying agent and escrow agent depository is entirely at the issuer’s discretion. However, Respondent may include information on the type of DTC fees the issuer may incur, should the issuer choose to use the Respondent as the paying agent and/or the escrow agent.

2.2.6 Litigation and Regulator Investigations:

(a) Please disclose as any material litigation, administrative proceeding, violation of or investigation for violation of any regulatory agency rules (SEC, MSRB, NASD, NYSE) in which Respondent has been involved, whether currently ongoing or concluded in the past ten (10) years.

2.2.7 Litigation and Regulator Investigations:

(a) Please describe Respondent’s proposed plan to provide for an efficient transition of outstanding bond issues.

2.2.8 Business Practice:

(b) Please describe efforts made by Respondent to encourage and develop the participation of minorities and women.

2.3 SUBCONTRACTORS

Notwithstanding anything herein to the contrary, no subcontracts are allowed under this Contract.

2.4 CONTRACT TERM

The Services requested will begin upon execution of the contract through August 31, 2025, with up to four (4) optional renewal terms, as follows:

September 1, 2025, through August 31, 2026 - First Optional Renewal Period September 1, 2026, through August 31, 2027 - Second Optional Renewal Period September 1, 2027, through August 31, 2028 - Third Optional Renewal Period.

September 1, 2028, through August 31, 2029 - Fourth Optional Renewal Period

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2.5 COMPENSATION

Please provide the proposed fees in CONTENT ITEM 7. The prices quoted must include all anticipated expenses, including travel. Unless otherwise approved in writing by TWDB, payments will be made based on the invoicing and payment terms of the resulting Contract.

2.6 LIQUIDATED DAMAGES

If a selected Contractor breaches its obligation to provide deliverables in accordance with (state criteria for deliverables or reference Statement of Work), the selected Contractor agrees to pay TWDB $500.00 per day for each day of delay as liquidated damages. The parties agree that quantifying losses arising from a selected Contractor’s delay is inherently difficult, and stipulate that the sum agreed upon for liquidated damages is not a penalty, but rather a reasonable measure of damages based on the parties’ experience in the industry and the nature of the losses that may result from delay.

SECTION III – DELIVERABLES

3.1 CONTRACT DELIVERABLES

The requested Services and corresponding deliverables for a contract resulting from this RFP are as follows:

A. DTC Participant: Contractor must be a direct participant in the Depository Trust

Company of New York (DTC) and must maintain this participatory position throughout the term of the Contract.

B. Master Custody Account(s): Contractor must establish and maintain a master custody account(s) to receive all debt service payments of political subdivision bonds owned by the TWDB which are DTC book entry. All securities and cash held by Contractor shall be segregated from the assets of others and shall be and remain the sole property of the TWDB.

C. Distribute Payments: Contractor must distribute by wire to the TWDB’s depository account on the same business day all debt service payments received before 1 p.m.

Central Time. Debt service payments received by Contractor after 1 p.m. Central Time must be wired to the TWDB’s depository account on the next business day. Contractor must reconcile and confirm to the TWDB’s anticipated debt service payments at least five (5) business days prior to payment due date. Contractor has no duty to disburse funds to the TWDB or any other party until such funds have been collected by Contractor and those funds are available in accordance with normal banking procedures.

D. Communication: Contractor must promptly, upon receipt, forward to the TWDB all notices of redemptions and communications received by Contractor that may affect the

TWDB.

E. Statements of Transactions: Contractor will provide TWDB monthly statements of transactions within the master custody account(s) and assist the TWDB, as requested, in reconciling its records to those of Contractor and DTC. The statement cut off must be

580-25-RFP-0002 Page 8 of 28 the last day of the month. Statements must be sent by no later than the 20th business day of the following month.

F. Accounting Principles: Contractor will create, maintain and retain all records relating to securities held in custody to meet the requirements and obligations under generally accepted accounting principles and practices. Contractor shall allow TWDB, the State Auditor’s Office, or any of their duly authorized representatives access to such records and documents for inspection, audit, and copying during Contractor’s regular business hours. Contractor shall maintain all required records for not less than three (3) years after the final payment under the Contract is made by the TWDB.

SECTION IV – GENERAL INFORMATION

4.1 RFP REQUIREMENTS

A brief transmittal letter must accompany each proposal, summarizing the proposal’s key points, and must be signed by an authorized representative who is responsible for committing the firm’s resources. The font size must be no smaller than 12-point.

Telephone, facsimile or emailed submissions will not be considered. Please restate the question at the beginning of each response and provide a separate section for that response or indicate why no response is given.

A. Submittals:

The Respondent must submit the proposal as described below:

1) One (1) complete ELECTRONIC Portable Document Format (PDF) file of the proposal;

2) Pricing must be included in CONTENT ITEM 7;

3) Proposal must be delivered to the address noted in the RFP (Section 4.3);

4) Proposal must be clearly marked “RESPONSE TO RFP [RFP NUMBER]

B. Contents:

The Respondent must submit all information listed below, in the order given, separated by labeled and tabbed sheets, as the proposal to this RFP. The proposal will only be considered if all items are submitted as required. Incomplete/late responses to this RFP will not be considered.

1) CONTENT ITEM 1: Signed/dated Execution of Response to the Solicitation (1-page maximum);

2) CONTENT ITEM 2: Company Profile Summary and History (2-page maximum) Response should include:

1) Company name, address, phone number, and legal status (i.e., sole proprietorship, partnership, etc.), and state in which entity was formed or incorporated;

2) Name and title of person submitting the proposal with the authority to bind the company;

3) Name, phone number, and email address of contact person;

4) A description of the general nature of previous work, the number of years in business, size and scope of operation.

3) CONTENT ITEM 3: Resumes of Individuals (no page maximum; does not count towards response page limit). Submit resumes for each staff person who will

580-25-RFP-0002 Page 9 of 28 work on this project;

4) CONTENT ITEM 4: Name(s) and Social Security Number(s) of Each Person with at least 25 percent ownership of the business entity submitting the response (1-page maximum);

5) CONTENT ITEM 5: Project Requirements (listed in Section 2.2 under Statement of Work);

6) CONTENT ITEM 6: Fees and Billings (1-page maximum);

7) CONTENT ITEM 7: References (4-page maximum);

1) Respondents must provide four (4) references (including organization’s name, contact, phone number, and scope of services provided) from organizations that have utilized Respondent’s DTC custodian services within the past two (2) years;

2) References related to DTC book-entry registered municipal bonds are preferred and should be specified;

3) TWDB checks references via e-mail. Respondents who do not provide accurate e-mail addresses waive the right to have those references considered in the evaluation of their solicitation response.

4.2 PROPOSAL SUBMISSION

A. All responses are due no later than the deadline posted in the Schedule of Events.

TWDB will not and cannot accept late submittals.

B. Responses must be correctly identified with the RFP number and submittal deadline.

It is Respondent’s responsibility to appropriately mark and deliver the proposal to TWDB by the specified date and time.

C. Only emailed responses will be accepted.

D. Receipt of all addenda to this response are to be acknowledged by returning a signed copy of each addendum with the submitted response.

NOTE: Failure to return the required items with the response will result in rejection of your proposal.

TWDB will not be responsible for locating or securing information that is not included in your proposal.

4.3 DELIVERY OF SUBMISSION

Proposals may be submitted to TWDB by email at bid-room@twdb.texas.gov with copy to cameron.turner@twdb.texas.gov.

mailto:bid-room@twdb.texas.gov mailto:cameron.turner@twdb.texas.gov

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4.4 SCHEDULE OF EVENTS

The solicitation process for this RFP will proceed according to the following schedule:

EVENT DATE (Central Daylight Time)

EVENT DATE/TIME

Solicitation Release Date June 7, 2024

Deadline for Submitting Questions June 14, 2024

Anticipated Release of Written Answers June 20, 2024

Deadline for submission of Solicitation Responses [NOTE: Responses must be RECEIVED by TWDB by the deadline.]

June 28, 2024 at 5:00PM CT

Evaluation Period June 28, 2024, thru July 12, 2024

Anticipated Contract Start Date September 1, 2024

Contract End Date August 31, 2025

4.5 REVISIONS TO SCHEDULE

TWDB reserves the right to change the dates in the Schedule of Events above upon written notification to prospective Respondent(s) as an addendum posted on the Electronic State Business Daily.

4.6 RESPONSE SUBMITTAL

All submitted responses become the property of TWDB after the submittal deadline.

Responses submitted constitute an offer for a period of ninety (90) days or until selection is made by TWDB, whichever occurs first.

4.7 RESPONSE PREPARATION COSTS

Respondents are responsible for all costs incurred in the preparation and delivery of the Statement of Qualifications to TWDB.

4.8 TRAVEL EXPENSES

Any travel requirements under this Contract may include travel throughout the State of Texas to perform the tasks therein. Any travel expenses will be reimbursed in accordance with the state travel and per diem allowances detailed at https://fmx.cpa.texas.gov/fmx/travel/.

4.9 MEETINGS

Any meetings and or/conference calls will be held on regular business days, Monday https://fmx.cpa.texas.gov/fmx/travel

580-25-RFP-0002 Page 11 of 28 through Friday, during regular business hours (8:00 AM – 5:00 PM), or on other mutually agreed dates and times.

4.10 INQUIRIES

A. Contact

All requests, questions, or other communications about this Solicitation must be made in writing to the TWDB Procurement and Contract Services Division, addressed to the person listed below.

Name: Cameron Turner Title: Director, Procurement and Contract Services Email: bid-room@twdb.texas.gov with a copy to cameron.turner@twdb.texas.gov Subject: Ensure the RFP number is included in all correspondence.

B. Clarifications

Except as otherwise provided in this section, upon issuance of this RFP, employees and representatives of TWDB will not answer questions or otherwise discuss the contents of this RFP with any potential Respondent or its representatives, except as hereinafter provided. Failure to observe this restriction may result in disqualification of the proposal. This restriction does not preclude discussions unrelated to this RFP.

TWDB will allow written requests for clarification of this Solicitation. Questions may be e-mailed to the contact listed above. Respondents’ names will be removed from questions when the written answers are released. Questions must be submitted in the following format. Submissions that deviate from this format may not be accepted:

1) Identifying Solicitation number

2) Section number

3) Text of passage being questioned

4) Question

5) Provide company name, address, phone number, e-mail address, and name of contact person when submitting questions.

Note: The deadline for submitting questions is noted in Section 4.4, Schedule of Events, above.

C. Responses

All accepted questions will result in a written response posted to the ESBD at:

http://www.txsmartbuy.com/sp. Responses will be posted as an Addendum to the Solicitation. It is Respondent’s responsibility to check the ESBD for updated responses.

D. Prohibited Communications

On issuance of this Solicitation, except for the written inquiries described in Section 4.10 above, TWDB, its representative(s), or partners will not answer questions or otherwise discuss the contents of this Solicitation with any potential Respondent or their representative(s). Attempts to ask questions by phone, email, or in person will not be allowed or recognized as valid. Failure to observe this restriction may disqualify Respondent. Respondent should rely only on written statements and information issued mailto:bid-room@twdb.texas.gov mailto:cameron.turner@twdb.texas.gov

580-25-RFP-0002 Page 12 of 28 through or by TWDB’s purchasing staff. This restriction does not preclude discussions between affected parties for the purposes of conducting business unrelated to this Solicitation.

4.11 PROPOSAL EVALUATION AND AWARD

A. TWDB is not obligated to accept the lowest priced response but will make an award to a

Respondent that provides the “best value” to the State of Texas, as defined by Texas Government Code § 2155.074.

B. A committee will be established by TWDB (including TWDB employees) to evaluate the proposals.

The evaluation committee will determine best value by applying the following criteria:

Available Points Criteria

50 Ability to Meet Project Requirements 20 Proposed Cost 15 Responsiveness to RFP 15 Overall Services and Resources Available

100 Total Points Possible

C. The evaluation committee will determine if a Best and Final Offer (BAFO) is necessary.

Award of a contract may be made without a BAFO. TWDB may, at its discretion, elect to have Respondents provide oral presentations and respond to inquiries from the evaluation committee related to their response. A request for a BAFO is at the sole discretion of TWDB and will be extended in writing.

D. A Respondent’s performance will be measured by a Grade of A-F in the Texas

Comptroller’s Vendor Performance Tracking System. The selected Contractor(s) will be evaluated on performance both during and at the conclusion of the Contract, and that information may be considered in the selection of future contracts.

Contractor performance information is located on the CPA web site at:

http://www.txsmartbuy.com/vpts.

4.12 CONTRACT AWARD

It is the intent of TWDB to award one contract under this Solicitation. An award notice will be sent to the selected Respondent(s). Any award is contingent upon the successful negotiation of final contract terms and upon approval of the TWDB Executive Administrator.

Negotiations will be confidential and not subject to disclosure to competing Respondents unless and until an agreement is reached. If contract negotiations cannot be concluded successfully, TWDB may negotiate a contract with the next highest scoring Respondent or may withdraw this Solicitation.

http://www.txsmartbuy.com/vpts

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SECTION V – GENERAL TERMS AND CONDITIONS

5.1 GENERAL TERMS AND CONDITIONS

Any contract awarded as a result of this RFP will contain the general terms and conditions provided in this document. Subcontractors must also comply, if applicable. Contractor is required to make any information created or exchanged with the state pursuant to this contract, and not otherwise excepted from disclosure under the Texas Public Information Act (PIA), available in a format that is accessible by the public at no additional charge to the state.

5.2 PATENTS OR COPYRIGHTS

The selected Contractor agrees to protect the State and TWDB from claims involving infringement of patents or copyrights. TWDB will not consider any RFP that bears a copyright. RFPs will be subject to the Texas Public Information Act, Texas Government Code Chapter 552, and may be disclosed to the public upon request. Subject to the Act, Respondents may protect trade and confidential information from public release. Trade secrets or other confidential information submitted as part of a SOQ must be clearly marked in boldface type and at least 14-point font.

5.3 CONTRACTOR ASSIGNMENTS

Respondent hereby assigns to TWDB any and all claims for overcharges associated with the Contract arising under the antitrust laws of the United States, 15 U.S.C.A. Section 1 et seq., and the antitrust laws of the State of Texas, Tex. Bus. & Com. Code § 15.01 et seq.

5.4 HISTORICALLY UNDERUTILIZED BUSINESSES SUBCONTRACTING PLAN

It is the policy of TWDB to make a good faith effort to achieve the annual program goals by contracting directly with HUBs or indirectly through subcontracting opportunities in accordance with Texas Government Code Chapter 2161, Subchapter F, and HUB Rules promulgated by the Comptroller of Public Accounts (CPA), 34 TAC Chapter 20.

HUBs are strongly urged to respond to this RFP. Under Texas law, state agencies are required to make a good faith effort to assist HUBs in receiving certain percentages of the total value of contract awards. Contractors who meet the qualifications are strongly encouraged to apply for certification as HUBs.

5.5 HUB RESOURCES AVAILABLE

A list of certified HUBs is available on the Texas Comptroller of Public Accounts (CPA) website at: https://mycpa.cpa.state.tx.us/tpasscmblsearch/tpasscmblsearch.do. For additional information, contact the CPA’s HUB program office at Texas4hubs@cpa.state.tx.us. If contractors know of any businesses that may qualify for certification as a HUB, they should encourage those businesses to contact the CPA HUB program office.

5.6 REQUIRED AFFIRMATIONS AND CERTIFICATIONS

Submitting a Response (CONTENT ITEM 1 - Execution of Response to the Solicitation) with a false statement or material misrepresentations made during the performance of a contract is a material breach of contract and may void the submitted response or any https://mycpa.cpa.state.tx.us/tpasscmblsearch/tpasscmblsearch.do mailto:Texas4hubs@cpa.state.tx.us

580-25-RFP-0002 Page 14 of 28 resulting contract(s). By signing CONTENT ITEM 1, Respondent hereby represents and warrants that:

A. Antitrust. Respondent represents and warrants that, in accordance with Texas Government Code § 2155.005, neither Respondent nor the firm, corporation, partnership, or institution represented by Respondent, or anyone acting for such firm, corporation, partnership or institution, has (1) violated any provision of the Texas Free Enterprise and Antitrust Act of 1983, Texas Business and Commerce Code Chapter 15, or the federal antitrust laws; or (2) communicated directly or indirectly the contents of its proposal to any competitor or any other person engaged in the same line of business as Respondent.

B. Child Support Obligation. Under Texas Family Code § 231.006, Respondent certifies that the individual or business entity named in its proposal is not ineligible to receive the specified payment and acknowledges that any Contract resulting from this Solicitation may be terminated, and payment may be withheld if this certification is inaccurate.

C. COVID-19 Vaccine Passport Prohibition. Respondent certifies that it does not require its customers to provide any documentation certifying the customer’s COVID- 19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the Respondent’s business. Respondent acknowledges that such a vaccine or recovery requirement would make Respondent ineligible for a state-funded contract.

D. Dealings with Public Servants. Pursuant to Texas Government Code § 2155.003, Respondent represents and warrants that it has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the goods or services being supplied.

E. Debts and Delinquencies. Respondent agrees that any payments due under the

Contract will be applied towards any debt or delinquency that is owed to the State of Texas, including but not limited to delinquent taxes, delinquent student loan payments and delinquent child support.

F. Energy Company Boycotts. Respondent represents and warrants that: (1) it does not and will not for the duration of any Contract resulting from this Solicitation, boycott energy companies or (2) the verification required by Texas Government Code §

2274.002 does not apply to the Contract. If circumstances relevant to this provision change during the course of the Contract, Respondent must promptly notify TWDB.

G. Entities that Boycott Israel. Pursuant to Texas Government Code § 2271.002, Respondent certifies that either (i) it meets one of the exemption criteria under § 2271.002; or (ii) it does not boycott Israel and will not boycott Israel during the term of any contract resulting from this Solicitation. Respondent must state any facts that make it exempt from the boycott certification in its Response.

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H. E-Verify Program. Respondent certifies that for contracts for services, Respondent will utilize the U.S. Department of Homeland Security’s E-Verify system during the term of the Contract to determine the eligibility of: (1) all persons employed by Respondent to perform duties within Texas; and (2) all persons, including subcontractors, assigned by Respondent to perform work pursuant to the contract within the United States of America.

I. Excluded Parties. Respondent certifies that it is not listed on the federal government’s terrorism watch list as described in Executive Order 13224, “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”, published by the United States Department of the Treasury, Office of Foreign Assets Control.

J. Executive Head of a State Agency. Under Texas Government Code § 669.003, Respondent certifies that it does not employ, or has disclosed its employment of, any former executive head of TWDB. If § 669.003 applies, Respondent must provide the following information:

Name of Former Executive: _________________________ Name of State Agency: _________________________ Date of Separation from State Agency: _________________________ Position with Respondent: _________________________ Date of Employment with Respondent: _________________________

K. Financial Participation Prohibited. Pursuant to Texas Government Code § 2155.004(a), Respondent certifies that neither Respondent nor any person or entity represented by Respondent has received compensation from TWDB or any agency of the State of Texas for participation in the preparation of the specifications for this bid or proposal. Pursuant to Texas Government Code § 2155.004(b), Respondent certifies that the individual or business entity named in this bid or response is not ineligible to receive the specified contract and acknowledges that the Contract may be terminated, and payment withheld if this certification is inaccurate.

L. Firearm Entities and Trade Associations Discrimination. Respondent verifies that: (1) it does not and will not for the duration of any contract resulting from this Solicitation, have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association or (2) the verification required by Texas Government Code § 2274.002 does not apply to the Contract. If circumstances relevant to this provision change during the course of the Contract, Respondent must promptly notify TWDB.

M. Foreign Terrorist Organizations. Respondent represents and warrants that it is not engaged in business with Iran, Sudan, or a foreign terrorist organization, as prohibited by Texas Government Code § 2252.152.

N. Human Trafficking Prohibition. Under Texas Government Code § 2155.0061, Respondent certifies that the individual or business entity named in this Response or Contract is not ineligible to receive the specified contract and acknowledges that this

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Contract may be terminated, and payment withheld if this certification is inaccurate.

O. Lobbying Prohibition. Respondent represents and warrants that TWDB’s payments to Respondent and Respondent’s receipt of appropriated or other funds under any contract resulting from this Solicitation are not prohibited by Texas Government Code §§ 556.005 or 556.0055, related to the prohibition on payment of state funds to a lobbyist or for lobbying activities.

P. No Conflict of Interest. Respondent represents and warrants that the provision of goods and services or other performance under the Contract will not constitute an actual or potential conflict of interest or reasonably create an appearance of impropriety.

Q. Prior Disaster Relief Contract Violation. Texas Government Code §§ 2155.006 and 2261.053 prohibit state agencies from accepting a Response or awarding a contract that includes proposed financial participation by a person who, in the past five years, has been convicted of violating a federal law or assessed a penalty in connection with a contract involving relief for Hurricane Rita, Hurricane Katrina, or any other disaster occurring after September 24, 2005, as defined by Texas Government Code § 418.004. Under Texas Government Code §§ 2155.006 and 2261.053, Contractor certifies that the individual or business entity named in this Response is not ineligible to receive the specified contract and acknowledges that any contract resulting from this Solicitation may be terminated, and payment withheld if this certification is inaccurate.

R. Restricted Employment for Certain State Personnel. Pursuant to Texas Government Code § 572.069, Respondent certifies that it has not employed and will not employ a former state officer or employee who participated in a procurement or contract negotiations for Agency involving Respondent within two (2) years after the date that the Contract is signed, or the procurement is terminated or withdrawn. This certification only applies to former state officers or employees whose state service or employment ceased on or after September 1, 2015.

S. Suspension and Debarment. Respondent certifies that it and its principals are not suspended or debarred from doing business with the state or federal government as listed on the State of Texas Debarred Vendor List maintained by the Texas Comptroller of Public Accounts and the System for Award Management (SAM) maintained by the General Services Administration.

T. Texas Bidder Affirmation. Respondent certifies that if a Texas address is shown as the address of Respondent on its Response, Respondent qualifies as a Texas Bidder as defined in Texas Government Code § 2155.444(c).

U. Buy Texas. In accordance with Texas Government Code § 2155.4441 Respondent agrees that during the performance of a contract for services it will purchase products and materials produced in Texas when they are available at a price and time comparable to products and materials produced outside this state.

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5.7 INDEMNIFICATION

RESPONDENT AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE STATE

OF TEXAS AND TWDB, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES,

REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY

AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED

COSTS, ATTORNEY FEES, AND EXPENSES ARISING OUT OF, OR RESULTING FROM

ANY ACTS OR OMISSIONS OF RESPONDENT OR ITS AGENTS, EMPLOYEES,

SUBCONTRACTORS, ORDER FULFILLERS, OR SUPPLIERS OF SUBCONTRACTORS

IN THE EXECUTION OR PERFORMANCE OF THE CONTRACT AND ANY PURCHASE

ORDERS ISSUED UNDER THE CONTRACT. THE DEFENSE MUST BE COORDINATED

BY RESPONDENT WITH THE OFFICE OF THE TEXAS ATTORNEY GENERAL WHEN

TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT, AND

RESPONDENT MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING

CONCURRENCE FROM THE OFFICE OF THE TEXAS ATTORNEY GENERAL.

RESPONDENT AND TWDB AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH

OTHER OF ANY SUCH CLAIM.

5.8 ADDITIONAL TERMS

Any terms and conditions attached to your Response will not be considered unless specifically referred to in the Response.

5.9 DISPUTE RESOLUTION

The dispute resolution process provided for in Texas Government Code Chapter 2260 must be used by TWDB and Respondent to attempt to resolve all disputes arising under any contract resulting from this Solicitation.

5.10 EXCESS OBLIGATIONS PROHIBITED

Any contract resulting from this Solicitation is subject to termination or cancellation without penalty to TWDB, either in whole or in part, subject to the availability of state funds.

5.11 PUBLIC INFORMATION ACT

Information, documentation, and other material in connection with this Solicitation or any resulting contract may be subject to public disclosure pursuant to Texas Government Code Chapter 552 (the “Public Information Act”). In accordance with Texas Government Code § 2252.907, Respondent is required to make any information created or exchanged with the State pursuant to the Solicitation or Contract and not otherwise excepted from disclosure under the Public Information Act available in a format that is accessible to the public at no additional charge to the State.

5.12 GOVERNING LAW AND VENUE

Any contract resulting from this Solicitation will be governed by the laws of the State of Texas, without regard to the conflicts of law provisions. The venue of any suit arising under a contract resulting from this Solicitation is fixed in any court of competent jurisdiction of Travis County, Texas, unless the specific venue is otherwise identified in a statute which directly names or otherwise identifies its applicability to TWDB.

5.13 ETHICS

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Under Texas Government Code Section 2155.003, an individual who interacts with public purchasers in any capacity is required to adhere to the Ethics Laws and Professional Standards in the State of Texas Procurement and Contract Management Guide, which outlines the ethical standards required of public purchasers, employees, and bidders who interact with public purchasers in the conduct of state business, and with any opinions of or rules adopted by the Texas Ethics Commission. Entities who are interested in seeking business opportunities with the state must be mindful of these restrictions when interacting with public purchasers of TWDB or purchasers of other state agencies. Specifically, a TWDB employee may not have an interest in, or in any manner be connected with a contract or bid for a purchase of goods or services by an agency of the state; or in any manner, including by rebate or gift, accept or receive from a person to whom a contract may be awarded, directly or indirectly, anything of value or a promise, obligation, or contract for future reward or compensation.

5.14 FRAUD STATEMENT

Respondents understand that TWDB does not tolerate any type of fraud. TWDB’s policy is to promote consistent, legal, and ethical organizational behavior by assigning responsibilities and providing guidelines to enforce controls. Any violations of law, agency policies, or standards of ethical conduct will be investigated, and appropriate actions will be taken. Contractors are expected to report any possible fraudulent or dishonest acts, waste, or abuse to the agency’s Internal Audit division at 512-463-7978 or Nicole.Campbell@twdb.texas.gov.

5.15 CONFLICT OF INTEREST

A Respondent will not be selected if there is a conflict of interest that will or may arise during the performance of its obligations under any Contract resulting from this Solicitation. For this reason, the submission in response to this RFO must disclose all business interests and all relationships that could reasonably be considered to pose possible conflicts of interest in Respondent’s performance of the contract obligations. In addition, respondents must represent and warrant in the response to this RFP and in the Contract that in the performance of services under the Contract, (1) Respondent does not have and will not have any actual or potential conflict of interest, and (2) Respondent will take whatever reasonable actions may be necessary and prudent to avoid even the appearance of impropriety.

5.16 RIGHT TO AUDIT

The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under a contract or indirectly through a subcontract under the Contract.

The acceptance of funds under a contract or subcontract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, an entity that is the subject of an audit or investigation by the state auditor must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit.

5.17 CONTRACT ADMINISTRATION

TWDB will designate a contract manager for the Contract. The contract manager will serve as the point of contact between TWDB and the selected Contractor(s). The TWDB contract https://comptroller.texas.gov/purchasing/publications/procurement-contract.php mailto:Nicole.Campbell@twdb.texas.gov

580-25-RFP-0002 Page 19 of 28 manager will supervise TWDB's review of Contractor’s technical work, deliverables, draft reports, final report, payment requests, schedules, financial and budget administration, and similar matters. The contract manager does not have any express or implied authority to vary the terms of the Contract, amend the Contract in any way, or waive strict performance of the terms or conditions of the Contract.

5.18 CONTRACT AMENDMENT/TERMINATION

Any contract resulting from this Solicitation may be altered or amended by mutual written consent or terminated by the Executive Administrator at any time by written notice to Contractor. Upon receipt of such termination notice, Contractor must, unless the notice directs otherwise, immediately discontinue all work in connection with the performance of the Contract and promptly cancel all existing orders chargeable to the Contract. Contractor must submit a statement showing in detail the work performed under the Contract to the date of termination. TWDB will pay Contractor for the work actually performed under the Contract, less all payments that have been previously made. Thereupon, copies of all work accomplished under the Contract must be delivered to TWDB.

5.19 STOP WORK ORDER

The Executive Administrator may issue a Stop Work Order to Contractor at any time.

Upon receipt of such order, Contractor must discontinue all work under the Contract and cancel all orders pursuant to the Contract, unless the order directs otherwise. If the Executive Administrator does not issue a Restart Order within 60 days after Contractor of the Stop Work Order, the Contract is terminated in accordance with the foregoing provisions.

5.20 DISASTER RECOVERY PLAN

Upon request of TWDB, Respondent must provide descriptions of its business continuity and disaster recovery plans.

5.21 DEFAULT

If Contractor is found to be in default under any provision of the Contract, TWDB may cancel the Contract without notice and either re-solicit or award the Contract to the next best responsive and responsible Respondent. In the event of abandonment or default, Contractor will be responsible for paying damages to TWDB, including but not limited to re-procurement costs, and any consequential damages to the State of Texas or TWDB resulting from Contractor’s non-performance. The defaulting contractor will not be considered in the re-solicitation and may not be considered in future solicitations for the same type of work unless the specification or scope of work is significantly changed.

5.22 FORCE MAJEURE

Neither Respondent nor TWDB will be liable to the other for any delay in or failure of performance of any requirement included in the Contract caused by force majeure. The existence of such causes of delay or failure will extend the period of performance until after the causes of delay or failure have been removed, provided the non-performing party exercises all reasonable due diligence to perform. Force majeure is defined as acts of God, war, fires, explosions, hurricanes, floods, failure of transportation, or other causes that are beyond the reasonable control of either party and that by exercise of due foresight such

580-25-RFP-0002 Page 20 of 28 party could not reasonably have been expected to avoid, and which, by the exercise of all reasonable due diligence, such party is unable to overcome.

5.23 OWNERSHIP/INTELLECTUAL PROPERTY, INCLUDING RIGHTS TO DATA,

DOCUMENTS AND COMPUTER SOFTWARE

For the purposes of the Contract, the term “Work” is defined as all reports, statistical analyses, work papers, work products, materials, approaches, designs, specifications, systems, documentation, methodologies, concepts, research, materials, and intellectual property or other property developed, produced, or generated in connection with the Contract. All work performed pursuant to the Contract is made the exclusive property of TWDB. All right, title, and interest in said property will vest in TWDB upon creation and will be deemed to be a work for hire and made in the course of the services rendered pursuant to the Contract. To the extent that title to any such work may not, by operation of law, vest in TWDB, or such work may not be considered a work made for hire, all rights, title, and interest therein are hereby irrevocably assigned to TWDB. TWDB has the right to obtain and to hold in its name any and all patents, copyrights, registrations, or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Contractor must give TWDB and/or the state of Texas, as well as any person designated by TWDB and/or the state of Texas, all assistance required to perfect the rights defined herein without any charge or expense beyond those amounts payable to Contractor for the services rendered under the Contract.

Contractor must maintain and retain supporting fiscal and any other documents relevant to showing that any payments under the Contract were expended in accordance with the laws and regulations of the state of Texas, including but not limited to, requirements of the Comptroller of the state of Texas and the State Auditor. Contractor must maintain all such documents and other records relating to the Contract and the State’s property for a period of four (4) years after the date of submission of the final invoices or until a resolution of all billing questions, whichever is later. Contractor must make available at reasonable times, upon reasonable notice, and for reasonable periods, all documents and other information related to the “Work” as defined as work products developed by Contractor and subcontractor using funds provided under the Contract or otherwise rendered in or related to the performance in whole or part of the Contract, including but not limited to reports, drafts of reports, or other material, data, drawings, studies, analyses, notes, plans, computer programs and codes, or other work products, whether final or intermediate. Contractor and any subcontractor(s) must provide the State Auditor with any information that the State Auditor deems relevant to any investigation or audit. Contractor must retain all work and other supporting documents pertaining to the Contract, for purposes of inspecting, monitoring, auditing, or evaluating by the TWDB and any authorized agency of the state of Texas, including an investigation or audit by the State Auditor.

Contractor must cooperate with any authorized agents of the state of Texas and must provide them with prompt access to all of such State’s work as requested. Contractor’s failure to comply with this Section will constitute a material breach of the Contract and will authorize TWDB and the State of Texas to immediately assess appropriate damages for such failure.