RFP JC 2026-02.pdf

New Hampshire Judicial Council Request for Proposals for

Public Defender Services Pursuant to RSA 604-B

March 21, 2025

Issued by:

New Hampshire Judicial Council One Granite Place – Suite 226 Concord, New Hampshire 03301

Contact:

Jay M. Buckey, Executive Director Telephone: 603-271-3592 Facsimile: 603-271-1112 Email: jay.m.buckey@jc.nh.gov

1.0 OVERVIEW

1.1 Introduction

Pursuant to RSA 604-B:4, the State of New Hampshire, acting through the New Hampshire Judicial Council, (hereinafter “the Council”), and with the approval of the Governor and the Executive Council, shall contract with any organization or group of lawyers approved by the board of governors of the New Hampshire Bar Association to operate a public defender program and to provide indigent-defense representation. The representation shall include capital murder cases and civil commitment of sexually dangerous persons pursuant to RSA 135-E. The public defender program shall also provide such other representation of indigents as is necessary and consistent with normal criminal defense as required by the New Hampshire and United States Constitutions, and as may be required by subsequent acts of the Legislature.

Bidders are required to submit proposals to provide indigent defense services in all New Hampshire courts and in each New Hampshire county. As noted above, approval of any Bidder’s proposal shall be further dependent upon the separate approval of the Governor and Executive Council and the organization or group of lawyers by the New Hampshire Bar Association Board of Governors.

1.2 Background

In 1977, a Public Defender Program was established in New Hampshire as an independent entity under RSA 604-B. Consistent with Part I, Article 15 of the New Hampshire Constitution, the program was established to provide a cost-effective means of delivering the constitutionally mandated right to the assistance of appointed counsel to citizens who were unable to afford the cost of legal representation in those criminal cases in which their liberty is at stake.

The Journal of the Constitutional Convention in 1964, at which the resolution proposing the amendment to Article 15 was adopted, indicates that the resolution was proposed in response to the United States Supreme Court’s March 16, 1963 decision in Gideon v. Wainright. In Gideon, the court extended to the States a defendant’s right to counsel in felony cases through the fourteenth amendment to the United States Constitution. RSA 604-A, adopted in 1965, extended the right to counsel to certain misdemeanors and, for the first time, appropriated state funds to provide counsel to indigent defendants in criminal cases. It also relieved the counties of this responsibility. With the passage of the amendment to the State Constitution in 1966, the right to counsel in New Hampshire was extended to all crimes “punishable by deprivation of liberty.”

Beginning in 1977 the Legislature has directed that it shall be the policy of this State to continue a public defender program for representation of indigent criminal defendants in Belknap, Merrimack, Hillsborough and Rockingham Counties and to extend that program to the remaining counties in the State. Currently public defender services are available in all counties of the State.

By virtue of legislation enacted in 1977 and 1985, responsibility for overseeing and administering the indigent-defense delivery system was vested in the New Hampshire Judicial Council through RSA 604-B:4, 604-B:5; 604-A:2-b and 494:3.

1.3 Communication

This Request for Proposals (RFP) is issued by the State of New Hampshire, acting through the Council. From the issue date of this RFP until a contractor is selected, approved by the Governor and Executive Council, and approved by the N.H. Bar Association Board of Governors, Bidders shall not communicate with any Council staff, volunteers or elected officials, other than the identified contact person, or her designee, as it relates to this RFP process.

Bidders may send written questions to the contact person by mail, e-mail or FAX no later than March 31, 2021. Failure to comply with this communication restriction may result in a Bidder being deemed non-compliant with the RFP.

Bidders should submit all communication to the designated contact person: Jay M. Buckey, Executive Director, Judicial Council, Suite 226, One Granite Place, Concord NH 03301.

Jay.M.Buckey@jc.nh.gov.

1.4 RFP Time Schedule

The procurement schedule is as follows:

RFP Release: Monday, March 21, 2025 Question Submission Close Date: Friday, March 28, 2025 Proposal Receipt Date: Friday, April 18, 2025 by 4:00 p.m.

Evaluation Completion Date: No later than May 15, 2025 Contractor Selection: No later than May 15, 2025 Contract Start Date: July 1, 2025

*or on the date of approval of the Governor & Executive Council, whichever is later.

2.0 STATEMENT OF THE WORK

2.1 Scope of Services

The successful Bidder shall provide statewide legal representation at all stages of criminal proceedings, for all criminal defendants, juveniles in delinquency cases and respondents in involuntary commitment proceedings under RSA 135-E, qualifying as indigent. Such other services as are necessary to assure constitutionally-effective assistance for the indigent criminal defendants shall be provided as part of this representation. Legal representation must comply with the Rules of Professional Conduct.

The Bidder will provide criminal defense representation in the Family, District, Superior and Supreme Courts. The Bidder will also staff the court calendars for incarcerated felony arraignments, Drug Court, Mental Health Court, Veterans Court, New Hope Court and other specialty courts that may be established unless such representation is a violation of the Rules of Professional Conduct.

Bidder is expected to accept appointment to capital cases and must appoint appropriately qualified attorneys to represent indigent clients in such cases. Representation in trial-level capital cases will require additional funding.

Bidder must accept all court appointments except in those cases in which the Rules of Professional Conduct would bar the representation and except in those cases in which caseload limits – as defined in a Council approved caseload management plan – have been exceeded.

2.2 Subcontracting

Bidder must describe if its work plan or business plan includes the use of subcontractors. Bidder must:

a. Specify the role subcontractors will play and how subcontractors will be used, assigned cases, monitored, evaluated, supervised, and paid.

b. Describe the methods it will use to ensure quality control among its subcontractors.

c. Include a copy of the written agreement that will be used to hire or retain subcontractors.

d. All subcontractors are to carry professional liability insurance covering all services to be performed pursuant to this Agreement in an amount of not less than $100,000 per claim and $300,000 aggregate.

2.3 Specifications

A contract will be awarded to the Bidder deemed to be the most capable, reliable and cost effective means of providing to the State an efficient system for the delivery of indigent defense services and to assist the state in meeting its requirement to provide constitutionally-effective representation of indigent defendants in all criminal cases where incarceration may result.

The successful Bidder will be responsible for communication with the Council in a timely fashion and to provide the Council with quarterly and annual reports, including caseload data. The successful Bidder must provide answers to inquiries by the Council and provide additional information in such form as the Council shall from time to time require.

These services for indigent defendants shall be provided in all ten counties of the State, in offices located throughout the state enabling appropriate client-attorney meetings. The location of such offices shall not be modified during the execution of the contract without the written approval of the Council.

No portion of this contract may be subcontracted, except as authorized or noted in the original agreement, without the specific approval of the Council by and through the Executive Director, and in all cases any subcontracting shall be consistent with the provisions of RSA 604-B:4.

The Bidder must provide detailed plans and assurances in its proposal addressing the following:

A. The Bidder shall provide a clear and satisfactory description of its supervision and management plan, including the management and oversight structure and procedures;

hiring qualifications and procedures; employment conditions; educational and experience requirements; and employee evaluation.

B. The Bidder must provide a detailed plan for accepting all available cases except where the

Rules of Professional Conduct preclude acceptance. This plan, which must be approved by the Council, shall address caseload limits for public defender attorneys in accordance with professional standards under the code of professional responsibility. Adherence to standards of the American Bar Association and the National Association of Criminal Defense Attorneys should be part of the proposed caseload plan. The plan will describe expected case levels by type and will detail the proposal for handling appellate cases.

C. The Bidder must detail the number of attorneys to be employed, and must describe in detail the necessary administrative, investigative and support staffing to be employed.

The minimum assignment of attorneys by county must be part of the proposal.

D. The Bidder must describe the Bidder’s capacity to be in a position on the first day of the contract to assume responsibility for all cases currently open and being handled by the prior contractor. Bidder must provide a plan for contacting all clients of the prior contractor with open cases, and all clients of the prior contractor whose cases are closed but who have future case-related obligations, on or before July 15, 2025, so as to ensure unbroken continuity of representation and to ensure that the legal needs of clients are attended to.

E. Bidders must provide a description of the experience and education of the principal person in charge of the overall execution of the contract. Bidders must provide the names and job descriptions of the key personnel whose resumes are included in the Bidder’s proposal under Section 4.1.8 (below).

F. Bidders must provide a plan of operation showing the schedule for securing the necessary locations throughout the State from which the services required can be delivered. Bidders must provide a plan detailing the organization’s anticipated training budget and detailing the specific number and variety of in-house and outside training opportunities provided for its attorneys and, separately, for its support staff, investigators and administration, and in addition, what electronic and paper resources the organization will create and maintain to support the work of attorneys, investigators and support staff.

G. Bidders must provide a description of its conflict-avoidance policy and the affirmative steps it will take to minimize the incidence of conflict withdrawals, and must describe the organization’s plan for employing staff and resources to support a Conflict Case Administrator Office to ensure the speedy distribution of conflict cases to qualified counsel.

H. Bidders must provide a description of the process in place for dealing with complaints made to the New Hampshire Supreme Court Attorney Discipline Office regarding allegations of attorney professional misconduct.

I. Bidders must provide assurance that the Bidder will obtain and provide to the Council certificates of insurance for General Liability in coverage amounts of not less than $250,000 per claim and $2,000,000 per incident or $1,000,000 per occurrence and $1,000,000 umbrella; and certificates of insurance for Professional Liability in coverage amounts of not less than $100,000 per occurrence and $300,000 in the aggregate.

2.4 Terms

2.4.1 Effective Dates: The Contract resulting from the successful award of this RFP shall become effective on July 1, 2025, or on the date of Governor and Executive Council approval, whichever is later, and will run through June 30, 2027, subject to the availability of appropriated funds. The Council, on behalf of the State, shall be under no obligation to reimburse the Bidder for any work undertaken before the award of the contract.

2.4.2 Payments: In no event shall the State be obligated to make any payments in excess of the actual costs of administration of the public defender over the 2026-2027 biennium and in no event shall the total of payments hereunder exceed the amounts appropriated by the State for Fiscal Years 2026 and 2027. The payment schedule shall be in accordance with state practices or as directed in the budget process.

2.4.3 Compliance with Law: The contractor agrees to comply with all statutes, laws, regulation and orders of Federal, State, County or municipal authorities that impose any obligation or duty upon a contractor.

2.4.4 Executed Documents: In additional to any other requirements in this RFP, the Bidder shall provide all documents that are part of this proposal with original signatures, signed by the corporate officers duly authorized to execute said documents.

2.4.5 Cancellation of Procurement: The Council reserves the right to cancel this RFP at any time.

2.4.6 Governing Law: Any legal proceedings against the State of New Hampshire regarding this RFP or any resultant contract shall be brought in State administrative or judicial forums.

Venue shall be Merrimack County, New Hampshire.

2.4.7 Conflict of Interest: The Bidder represents and covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with performance of its services hereunder.

2.4.8 Offer of Gratuities or Kickbacks: It is a breach of ethical standards for a payment, gratuity, or offer of employment to be made by or on behalf of a contractor. The State of New Hampshire may terminate any contract if it is determined that gratuities of any kind were offered by and/or received by any official, employees or agent of the contractor.

3.0 REQUEST FOR PROPOSAL GUIDELINES

The Bidder’s Proposal shall contain the following contents in the following order:

1. A Cover Sheet

2. A Transmittal Letter

3. An Executive Summary of the Proposal

4. The Bidder’s Profile

5. The Bidder’s Financial Statements

6. Subcontractors’ Profiles, (if applicable)

7. The Bidder’s Background and Experience

8. The Resumes of Key Personnel

9. A Detailed Response and Scope of Work

10. Three Letters of Reference

11. The cost of the Proposal in Each Year of the Biennium

Specific Proposal Requirements by Section:

1. The Cover Sheet will identify the Bidder’s name, address, phone and FAX numbers and email address.

2. The Transmittal Letter will be signed in ink by an official of the bidding entity who is authorized to bind the Bidder to the provisions of the proposal. The letter shall identify an authorized representative of the Bidder who is responsible for all matters relating to the RFP.

The letter shall include the following statement:

“The Bidder acknowledges that the Bidder has read the N.H. Standard Form Contract (Form P-37) and all applicable exhibits and forms for a contract resulting from this RFP, understands them, agrees to all terms and conditions (unless otherwise mutually agreed upon terms supersede them), and if selected will provide all applicable exhibits and forms required to execute a contract with original signatures.”

A copy Form P-37 is attached to this RFP as Exhibit A.

3. The Executive Summary will summarize the proposed services to be performed by the Bidder and the methods and technology to be employed.

4. The Bidder Profile will provide a general organization overview, number of employees, and an organization chart, if applicable, or a description of the consulting services and work of the Bidder, if the Bidder is not a company or organization.

5. The Bidder’s Annual Financial Report of each of the Bidder’s last two fiscal years shall be included if the Bidder is a corporate or partnership entity, or a copy of Schedule C of a Bidder’s last two tax returns if the Bidder is a sole proprietor.

6. Subcontractor Profiles must be provided if the Bidder proposes to employ a subcontractor or subcontractors to perform part of the work specified in the RFP. This profile shall identify the subcontractor(s) and describe their background and experience in providing the specific part of the work the subcontractor will be employed to perform. The subcontractor profile shall also provide a general organization overview, number of employees and an organization chart, if applicable.

7. The Bidder’s Background and Experience will provide a comprehensive and detailed description of the services offered by the Bidder. The Bidder Background and Experience shall describe the Bidder’s specific background and experience in providing indigent-defense-related representation. It shall include evidence of the Bidder’s capability, including the identification of similar projects, to carry out the performance required by the State of New Hampshire. It shall include evidence of financial ability of the Bidder and any parent organization to perform contracted services. Proposals shall include evidence of the Bidder’s experience in working with government agencies, the courts, or other nonprofit or educational organizations relevant to the tasks required by the RFP. The proposal shall specifically address the following questions:

• What knowledge and experience does the Bidder have specifically regarding providing indigent defense representation in all levels of case type and complexity?

• What knowledge and experience does the Bidder have specifically regarding the training, on-going supervision and development of quality control for staff required to provide services within the scope of the RFP?

• What knowledge and experience does the Bidder have related to identifying and calculating the cost effectiveness of indigent defense representation costs?

8. Resumes of Key Personnel who will have primary responsibility for the delivery of contracted services, day-to-day operations and contract administration must be included with the Proposal.

9. The Detailed Response and Scope of Work will address all of the rules, specifications, plans, descriptions and requirements contained in this RFP (See Section 2, above).

10. Three (3) Letters of Reference must accompany the proposal and must include the name, address and phone number of the individual providing the reference. References should include government agencies including the courts, businesses, or nonprofit or educational organizations currently receiving the services of the Bidder. The Council may contact the references directly when evaluating the Proposals.

11. The Cost Proposal must fix a firm contract price for services provided up to the completion of the contract on an annualized basis. The Cost Proposal should also specify the portion of the firm fixed price to be billed each agreed upon period for the services specified in the RFP.

Failure to submit a Cost Proposal shall disqualify the Bidder.

4.0 Proposal Evaluation

4.1 Evaluation of Proposals

The Council shall conduct a comprehensive, fair and impartial evaluation of proposals received in response to this Request for Proposals, conducted by the Council through its Indigent Defense Sub-Committee in concert with the Executive Director.

The total price of the proposal shall not be the sole determinate factor for the selection of the contractor. Completeness and thoroughness of the proposal, the Bidder Background and Experience and the Detailed Response and Scope of Work offered by the Bidder shall be given appropriate weight as determined by the Council. In addition, demonstrated experience and knowledge in the provision of indigent defense representation pursuant to RSA 604-A shall be given appropriate weight, as determined by the Council.

End of document

Contractor Initials_______

Date_______

FORM NUMBER P-37 (version 2/23/2023)

AGREEMENT

The State of New Hampshire and the Contractor hereby mutually agree as follows:

GENERAL PROVISIONS

1. IDENTIFICATION.

1.1 State Agency Name 1.2 State Agency Address

1.3 Contractor Name 1.4 Contractor Address

1.5 Contractor Phone

Number

1.6 Account Unit and Class 1.7 Completion Date 1.8 Price Limitation

1.9 Contracting Officer for State Agency 1.10 State Agency Telephone Number

1.11 Contractor Signature

Date:

1.12 Name and Title of Contractor Signatory

1.13 State Agency Signature

Date:

1.14 Name and Title of State Agency Signatory

1.15 Approval by the N.H. Department of Administration, Division of Personnel (if applicable)

By: Director, On:

1.16 Approval by the Attorney General (Form, Substance and Execution) (if applicable)

By: On:

1.17 Approval by the Governor and Executive Council (if applicable)

G&C Item number: G&C Meeting Date:

Notice: This agreement and all of its attachments shall become public upon submission to Governor and Executive Council for approval. Any information that is private, confidential or proprietary must be clearly identified to the agency and agreed to in writing prior to signing the contract.

EXHIBIT A

Date_______

2. SERVICES TO BE PERFORMED. The State of New Hampshire, acting through the agency identified in block 1.1 (“State”), engages contractor identified in block 1.3 (“Contractor”) to perform, and the Contractor shall perform, the work or sale of goods, or both, identified and more particularly described in the attached EXHIBIT B which is incorporated herein by reference (“Services”).

3. EFFECTIVE DATE/COMPLETION OF SERVICES.

3.1 Notwithstanding any provision of this Agreement to the

contrary, and subject to the approval of the Governor and Executive Council of the State of New Hampshire, if applicable, this Agreement, and all obligations of the parties hereunder, shall become effective on the date the Governor and Executive Council approve this Agreement, unless no such approval is required, in which case the Agreement shall become effective on the date the Agreement is signed by the State Agency as shown in block 1.13 (“Effective Date”).

3.2 If the Contractor commences the Services prior to the Effective Date, all Services performed by the Contractor prior to the Effective Date shall be performed at the sole risk of the Contractor, and in the event that this Agreement does not become effective, the State shall have no liability to the Contractor, including without limitation, any obligation to pay the Contractor for any costs incurred or Services performed.

3.3 Contractor must complete all Services by the Completion Date specified in block 1.7.

4. CONDITIONAL NATURE OF AGREEMENT.

Notwithstanding any provision of this Agreement to the contrary, all obligations of the State hereunder, including, without limitation, the continuance of payments hereunder, are contingent upon the availability and continued appropriation of funds. In no event shall the State be liable for any payments hereunder in excess of such available appropriated funds. In the event of a reduction or termination of appropriated funds by any state or federal legislative or executive action that reduces, eliminates or otherwise modifies the appropriation or availability of funding for this Agreement and the Scope for Services provided in EXHIBIT B, in whole or in part, the State shall have the right to withhold payment until such funds become available, if ever, and shall have the right to reduce or terminate the Services under this Agreement immediately upon giving the Contractor notice of such reduction or termination. The State shall not be required to transfer funds from any other account or source to the Account identified in block 1.6 in the event funds in that Account are reduced or unavailable.

5. CONTRACT PRICE/PRICE LIMITATION/ PAYMENT.

5.1 The contract price, method of payment, and terms of payment are identified and more particularly described in EXHIBIT C which is incorporated herein by reference.

5.2 Notwithstanding any provision in this Agreement to the

contrary, and notwithstanding unexpected circumstances, in no event shall the total of all payments authorized, or actually made hereunder, exceed the Price Limitation set forth in block 1.8. The payment by the State of the contract price shall be the only and the complete reimbursement to the Contractor for all expenses, of whatever nature incurred by the Contractor in the performance hereof, and shall be the only and the complete compensation to the Contractor for the Services.

5.3 The State reserves the right to offset from any amounts

otherwise payable to the Contractor under this Agreement those liquidated amounts required or permitted by N.H. RSA 80:7 through RSA 80:7-c or any other provision of law.

5.4 The State’s liability under this Agreement shall be limited to monetary damages not to exceed the total fees paid. The Contractor agrees that it has an adequate remedy at law for any breach of this Agreement by the State and hereby waives any right to specific performance or other equitable remedies against the State.

6. COMPLIANCE BY CONTRACTOR WITH LAWS AND

REGULATIONS/EQUAL EMPLOYMENT

OPPORTUNITY.

6.1 In connection with the performance of the Services, the

Contractor shall comply with all applicable statutes, laws, regulations, and orders of federal, state, county or municipal authorities which impose any obligation or duty upon the Contractor, including, but not limited to, civil rights and equal employment opportunity laws and the Governor’s order on Respect and Civility in the Workplace, Executive order 2020-01. In addition, if this Agreement is funded in any part by monies of the United States, the Contractor shall comply with all federal executive orders, rules, regulations and statutes, and with any rules, regulations and guidelines as the State or the United States issue to implement these regulations. The Contractor shall also comply with all applicable intellectual property laws.

6.2 During the term of this Agreement, the Contractor shall not discriminate against employees or applicants for employment because of age, sex, sexual orientation, race, color, marital status, physical or mental disability, religious creed, national origin, gender identity, or gender expression, and will take affirmative action to prevent such discrimination, unless exempt by state or federal law. The Contractor shall ensure any subcontractors comply with these nondiscrimination requirements.

6.3 No payments or transfers of value by Contractor or its

representatives in connection with this Agreement have or shall be made which have the purpose or effect of public or commercial bribery, or acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business.

6.4. The Contractor agrees to permit the State or United States access to any of the Contractor’s books, records and accounts for the purpose of ascertaining compliance with this Agreement and all rules, regulations and orders pertaining to the covenants, terms and conditions of this Agreement.

7. PERSONNEL.

7.1 The Contractor shall at its own expense provide all personnel necessary to perform the Services. The Contractor warrants that all personnel engaged in the Services shall be qualified to perform the Services, and shall be properly licensed and otherwise authorized to do so under all applicable laws.

7.2 The Contracting Officer specified in block 1.9, or any

successor, shall be the State’s point of contact pertaining to this Agreement.

Date_______

8. EVENT OF DEFAULT/REMEDIES.

8.1 Any one or more of the following acts or omissions of the Contractor shall constitute an event of default hereunder (“Event of Default”):

8.1.1 failure to perform the Services satisfactorily or on schedule;

8.1.2 failure to submit any report required hereunder; and/or

8.1.3 failure to perform any other covenant, term or condition of this Agreement.

8.2 Upon the occurrence of any Event of Default, the State may take any one, or more, or all, of the following actions:

8.2.1 give the Contractor a written notice specifying the Event of Default and requiring it to be remedied within, in the absence of a greater or lesser specification of time, thirty (30) calendar days from the date of the notice; and if the Event of Default is not timely cured, terminate this Agreement, effective two (2) calendar days after giving the Contractor notice of termination;

8.2.2 give the Contractor a written notice specifying the Event of Default and suspending all payments to be made under this Agreement and ordering that the portion of the contract price which would otherwise accrue to the Contractor during the period from the date of such notice until such time as the State determines that the Contractor has cured the Event of Default shall never be paid to the Contractor;

8.2.3 give the Contractor a written notice specifying the Event of Default and set off against any other obligations the State may owe to the Contractor any damages the State suffers by reason of any Event of Default; and/or

8.2.4 give the Contractor a written notice specifying the Event of Default, treat the Agreement as breached, terminate the Agreement and pursue any of its remedies at law or in equity, or both.

9. TERMINATION.

9.1 Notwithstanding paragraph 8, the State may, at its sole

discretion, terminate the Agreement for any reason, in whole or in part, by thirty (30) calendar days written notice to the Contractor that the State is exercising its option to terminate the Agreement.

9.2 In the event of an early termination of this Agreement for any reason other than the completion of the Services, the Contractor shall, at the State’s discretion, deliver to the Contracting Officer, not later than fifteen (15) calendar days after the date of termination, a report (“Termination Report”) describing in detail all Services performed, and the contract price earned, to and including the date of termination. In addition, at the State’s discretion, the Contractor shall, within fifteen (15) calendar days of notice of early termination, develop and submit to the State a transition plan for Services under the Agreement.

10. PROPERTY OWNERSHIP/DISCLOSURE.

10.1 As used in this Agreement, the word “Property” shall mean all data, information and things developed or obtained during the performance of, or acquired or developed by reason of, this Agreement, including, but not limited to, all studies, reports, files, formulae, surveys, maps, charts, sound recordings, video recordings, pictorial reproductions, drawings, analyses, graphic representations, computer programs, computer printouts, notes, letters, memoranda, papers, and documents, all whether finished or unfinished.

10.2 All data and any Property which has been received from the State, or purchased with funds provided for that purpose under this Agreement, shall be the property of the State, and shall be returned to the State upon demand or upon termination of this Agreement for any reason.

10.3 Disclosure of data, information and other records shall be governed by N.H. RSA chapter 91-A and/or other applicable law.

Disclosure requires prior written approval of the State.

11. CONTRACTOR’S RELATION TO THE STATE. In the performance of this Agreement the Contractor is in all respects an independent contractor, and is neither an agent nor an employee of the State. Neither the Contractor nor any of its officers, employees, agents or members shall have authority to bind the State or receive any benefits, workers’ compensation or other emoluments provided by the State to its employees.

12. ASSIGNMENT/DELEGATION/SUBCONTRACTS.

12.1 Contractor shall provide the State written notice at least fifteen

(15) calendar days before any proposed assignment, delegation, or other transfer of any interest in this Agreement. No such assignment, delegation, or other transfer shall be effective without the written consent of the State.

12.2 For purposes of paragraph 12, a Change of Control shall

constitute assignment. “Change of Control” means (a) merger, consolidation, or a transaction or series of related transactions in which a third party, together with its affiliates, becomes the direct or indirect owner of fifty percent (50%) or more of the voting shares or similar equity interests, or combined voting power of the Contractor, or (b) the sale of all or substantially all of the assets of the Contractor.

12.3 None of the Services shall be subcontracted by the Contractor without prior written notice and consent of the State.

12.4 The State is entitled to copies of all subcontracts and

assignment agreements and shall not be bound by any provisions contained in a subcontract or an assignment agreement to which it is not a party.

13. INDEMNIFICATION. The Contractor shall indemnify, defend, and hold harmless the State, its officers, and employees from and against all actions, claims, damages, demands, judgments, fines, liabilities, losses, and other expenses, including, without limitation, reasonable attorneys’ fees, arising out of or relating to this Agreement directly or indirectly arising from death, personal injury, property damage, intellectual property infringement, or other claims asserted against the State, its officers, or employees caused by the acts or omissions of negligence, reckless or willful misconduct, or fraud by the Contractor, its employees, agents, or subcontractors. The State shall not be liable for any costs incurred by the Contractor arising under this paragraph 13. Notwithstanding the foregoing, nothing herein contained shall be deemed to constitute a waiver of the State’s sovereign immunity, which immunity is hereby reserved to the State. This covenant in paragraph 13 shall survive the termination of this Agreement.

Date_______

14. INSURANCE.

14.1 The Contractor shall, at its sole expense, obtain and

continuously maintain in force, and shall require any subcontractor or assignee to obtain and maintain in force, the following insurance:

14.1.1 commercial general liability insurance against all claims of bodily injury, death or property damage, in amounts of not less than $1,000,000 per occurrence and $2,000,000 aggregate or excess;

and

14.1.2 special cause of loss coverage form covering all Property subject to subparagraph 10.2 herein, in an amount not less than 80% of the whole replacement value of the Property.

14.2 The policies described in subparagraph 14.1 herein shall be on policy forms and endorsements approved for use in the State of New Hampshire by the N.H. Department of Insurance, and issued by insurers licensed in the State of New Hampshire.

14.3 The Contractor shall furnish to the Contracting Officer

identified in block 1.9, or any successor, a certificate(s) of insurance for all insurance required under this Agreement. At the request of the Contracting Officer, or any successor, the Contractor shall provide certificate(s) of insurance for all renewal(s) of insurance required under this Agreement. The certificate(s) of insurance and any renewals thereof shall be attached and are incorporated herein by reference.

15. WORKERS’ COMPENSATION.

15.1 By signing this agreement, the Contractor agrees, certifies and warrants that the Contractor is in compliance with or exempt from, the requirements of N.H. RSA chapter 281-A (“Workers’ Compensation”).

15.2 To the extent the Contractor is subject to the requirements of N.H. RSA chapter 281-A, Contractor shall maintain, and require any subcontractor or assignee to secure and maintain, payment of Workers’ Compensation in connection with activities which the person proposes to undertake pursuant to this Agreement. The Contractor shall furnish the Contracting Officer identified in block 1.9, or any successor, proof of Workers’ Compensation in the manner described in N.H. RSA chapter 281-A and any applicable renewal(s) thereof, which shall be attached and are incorporated herein by reference. The State shall not be responsible for payment of any Workers’ Compensation premiums or for any other claim or benefit for Contractor, or any subcontractor or employee of Contractor, which might arise under applicable State of New Hampshire Workers’ Compensation laws in connection with the performance of the Services under this Agreement.

16. WAIVER OF BREACH. A State's failure to enforce its rights with respect to any single or continuing breach of this Agreement shall not act as a waiver of the right of the State to later enforce any such rights or to enforce any other or any subsequent breach.

17. NOTICE. Any notice by a party hereto to the other party shall be deemed to have been duly delivered or given at the time of mailing by certified mail, postage prepaid, in a United States Post Office addressed to the parties at the addresses given in blocks 1.2 and 1.4, herein.

18. AMENDMENT. This Agreement may be amended, waived or discharged only by an instrument in writing signed by the parties hereto and only after approval of such amendment, waiver or discharge by the Governor and Executive Council of the State of New Hampshire unless no such approval is required under the circumstances pursuant to State law, rule or policy.

19. CHOICE OF LAW AND FORUM.

19.1 This Agreement shall be governed, interpreted and construed in accordance with the laws of the State of New Hampshire except where the Federal supremacy clause requires otherwise. The wording used in this Agreement is the wording chosen by the parties to express their mutual intent, and no rule of construction shall be applied against or in favor of any party.

19.2 Any actions arising out of this Agreement, including the breach or alleged breach thereof, may not be submitted to binding arbitration, but must, instead, be brought and maintained in the Merrimack County Superior Court of New Hampshire which shall have exclusive jurisdiction thereof.

20. CONFLICTING TERMS. In the event of a conflict between the terms of this P-37 form (as modified in EXHIBIT A) and any other portion of this Agreement including any attachments thereto, the terms of the P-37 (as modified in EXHIBIT A) shall control.

21. THIRD PARTIES. This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer any legal or equitable right, benefit, or remedy of any nature upon any other person.

22. HEADINGS. The headings throughout the Agreement are for reference purposes only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.

23. SPECIAL PROVISIONS. Additional or modifying provisions set forth in the attached EXHIBIT A are incorporated herein by reference.

24. FURTHER ASSURANCES. The Contractor, along with its agents and affiliates, shall, at its own cost and expense, execute any additional documents and take such further actions as may be reasonably required to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby.

25. SEVERABILITY. In the event any of the provisions of this Agreement are held by a court of competent jurisdiction to be contrary to any state or federal law, the remaining provisions of this Agreement will remain in full force and effect.

26. ENTIRE AGREEMENT. This Agreement, which may be executed in a number of counterparts, each of which shall be deemed an original, constitutes the entire agreement and understanding between the parties, and supersedes all prior agreements and understandings with respect to the subject matter hereof.