RFP TREAS 2024-01.pdf

THE STATE OF NEW HAMPSHIRE

STATE TREASURY

25 CAPITOL STREET, ROOM 121

CONCORD, NH 03301

(603) 271-2621

FAX (603) 271-3922

TDD Access: Relay NH 1-800-735-2964

REQUEST FOR PROPOSALS

TO PROVIDE

FINANCIAL ADVISORY SERVICES

TO THE

STATE OF NEW HAMPSHIRE

OFFICE OF THE NEW HAMPSHIRE STATE TREASURER

Issued: March 22, 2024

Submission Deadline: April 12, 2024 by 4:00 p.m.

Request for Proposals –To Provide Financial Advisory Services To the State of New Hampshire

SECTION I: PURPOSE

The New Hampshire State Treasurer is soliciting proposals from highly qualified and experienced firms (“Firm(s)”) to provide expert, independent and objective financial advisory services and advice to the State of New Hampshire, the New Hampshire State Treasury and, possibly, to other State of New Hampshire agencies, programs and organizations (collectively, the “State”) in ongoing debt management and debt financing activities. The State Treasurer expects to enter into a contract with a single Firm for the services described below in this Request for Proposals (“RFP”).

Responses to this RFP should, therefore, provide a clear understanding of the proposing Firms’ qualifications, objectivity and capabilities (e.g. expertise, experience and service delivery).

Proposals shall be received by the State Treasurer no later than 4:00 p.m. (Eastern) on April 12, 2024 so that the winning Firm may be selected by April 19, 2024. The State Treasurer expects that a contract will be effective on July 1, 2024 or upon approval of the Governor and Executive Council (if applicable). The term of the contract is expected to be five years with an option for a three-year renewal, at the sole discretion of the State Treasurer.

Proposed Timetable:

RFP Release 3/22/2024 Questions due from Firms 3/29/2024 Answers due back to Firms 4/5/2024 RFP responses due no later than 4:00 pm 4/12/2024 RFP Selection Committee selects Firm by 4/19/2024 Governor & Council submission 5/29/2024 Governor & Council approval 6/12/2024 Services Begin 7/1/2024

SECTION II: STATEMENT OF NEEDS

Authority of Issuer – The following New Hampshire Revised Statutes Annotated (RSA) defines the State Treasurer and the appropriate statutory authority for debt financings:

Reference Subject Matter

RSA 6:13 State Treasurer’s authorization for issuing debt, subject to the direction of the Governor and Executive Council

RSA 6-A State Bonds

RSA 6-B Investment and Debt Management

RSA 6-C Debt Management

RSA 237-A Turnpike System Revenue Bonds

There are also periodic New Hampshire legislative session laws that authorize a variety of specific capital projects for which debt may be issued.

Recent Official Statements for debt issues and the State’s Annual Comprehensive Financial Report are available for review on the following web site:

https://www.nh.gov/treasury/forms-publications/index.htm#bonds https://www.das.nh.gov/accounting/ACFR.aspx

Scope of Services - As the sole debt-related financial advisor to the State and to the New Hampshire State Treasurer and Treasury staff (“Treasury”), the selected Firm shall be capable of providing all of the following independent and objective services throughout this engagement:

A. Debt issue financing planning and structure;

B. Assessment of current debt market conditions;

C. Review and evaluation of legislation (State and federal) to determine the fiscal impact on the State’s debt policy, capacity, credit rating, and future debt issues;

D. Assistance in the preparation of required disclosure documents, sales documents, bid information and other relevant documents, working in concert with the State’s bond counsel;

E. Assistance in the marketing and sale of debt securities;

F. Preparation of a written analysis of the results of the sale, subsequent to a debt issue, including an analysis of market conditions prior to, during and subsequent to the sale;

G. Analysis of projects being proposed for debt financing;

H. Assistance and advice in the most appropriate approach to financing the projects and structuring the securities to ensure the lowest cost to the State;

I. Coordination of rating requests and presentations to rating agencies;

J. Collaboration with various working groups within the State and other required communications and meetings;

K. Verification of bids and certain yield calculations;

L. Guidance and support in the administration of the State’s Energy Performance Contract

Program (RSA 21-I:19-d)

M. Guidance and support with respect to financing issues for the New Hampshire Turnpike System or other agency debt financing programs;

https://www.nh.gov/treasury/forms-publications/index.htm#bonds https://www.das.nh.gov/accounting/ACFR.aspx

N. Delivery of debt affordability analysis (RSA 6-C:2) to assist in strategic financial planning;

O. Review of underwriter's proposals, financing options and financial products; and

P. Guidance and support with respect to the issuance of Federal Highway Grant Anticipation Revenue Bonds.

Duration of Engagement – The selected Firm shall serve as sole financial advisor for the Treasury and the State, with respect to debt issues, debt financing and debt management, continually for a period of five (5) years, beginning July 1, 2024 with an option for a three (3) year extension, at the sole discretion of the State Treasurer.

SECTION III: PROPOSAL PREPARATION AND SUBMISSION REQUIREMENTS

Overview:

1. Organization of the Proposal - Proposals shall be organized in the order in which the requirements are presented in the Information Requirements section. All pages of the proposal shall be numbered and the requirement repeated in the response.

2. Submission of Materials - Proposals shall be signed by the representative of the Firm who is authorized to bind the Firm to all statements, including services and prices, contained in the proposal. All information requested should be submitted in a single package. Failure to submit all information requested may result in the State requiring prompt submission of missing information and/or lowering the evaluation of the proposal. Proposals which are substantially incomplete or lack key information may be rejected by the State, at its sole discretion.

3. Clarity of Proposal – Narratives in the proposal should be prepared in clear language and provide a straightforward, concise description of capabilities to satisfy the requirements of the RFP. Responses to the Information Requirements below will demonstrate the Firm’s ability to provide the services required by the State. In the event that the Firm has no previous experience with, or is unable to satisfy one or more of, the following requirements, that fact should be clearly stated.

Information Requirements - Firms are required to submit the following information in the order presented below:

1. Provide a brief transmittal letter prepared on the Firm's letterhead to accompany the original and required copies of the proposal. The transmittal letter shall include a statement that the Firm has read and understands all of provisions of this RFP and agrees to comply with these provisions. The letter should also indicate that, if selected, the firm will execute a contract materially the same as provided in Appendix A (Form Number P-37) to this RFP. The letter shall be signed by a representative of the Firm who is authorized to bind the Firm to all statements, including services and prices, contained in the proposal. The full name, e-mail address, mailing address, telephone number and facsimile number of the primary contact person for the Firm, if other than the signatory, should also be included in the letter.

2. Provide a description of the Firm, including history, organizational structure and qualifications necessary to serve as debt financial advisor to the State such as evidence of being a Registered Municipal Advisor. The qualifications shall reference each of the service needs listed under Scope of Services section. Include in this description, if applicable, a description of whether the Firm is independent from dealers, underwriters and buyers of debt instruments, as well as the Firm’s ability to deliver objective and independent guidance to the State.

3. Describe the Firm's experience in state-level or other large municipal general obligation and revenue (e.g. transportation and toll roads) financings for which it served as the sole or primary financial advisor for the last three years. Include information on any other debt financings which may be applicable to the State. Information shall include:

a. issue date;

b. name of issuer;

c. amount of issue;

d. type of financing;

e. purpose of sale;

f. method of sale;

g. ratings;

h. credit structure; and

i. the Firm’s specific role in the issue.

4. Drawing from the examples identified in item (3) above, provide a brief description of the role of the Firm in at least three engagements most relevant to the State.

5. Provide contact name, title, address, telephone number, and e-mail address for at least five

(5) municipal clients, including other states, the Firm wishes to offer as references.

6. Identify, by name and title, the individual(s) to be responsible for this engagement, including the individual who will serve as the primary lead and point of contact for the State, as well as the primary back-up contact in support of this engagement. Describe the role of each individual and the division of duties among the individuals to be assigned. Also specifically identify those individuals who may be responsible for transportation-related financings, if different. A summary resume should be included for each of the individuals listed.

7. Provide a certification that the Firm and key personnel assigned to this engagement have no conflicts of interest, and will not engage in any activities during the engagement that would give rise to a conflict of interest, pursuant to New Hampshire Statutes RSA 21- G:21-35.

8. The State has an active energy performance contracting program pursuant to New

Hampshire Revised Statutes Annotated (RSA) 21-I:19-d. Describe the Firm’s experience, if any, with energy performance contracting, including a summary of the financing mechanism(s).

9. The State occasionally utilizes an external short-term financing program of tax exempt commercial paper (e.g. bond anticipation notes) for funding initial phases of capital projects.

Describe any suggestions and the methodology the Firm would utilize in evaluating strategies that could enhance or replace this program.

10. Describe the methodology the Firm uses to monitor and analyze outstanding general obligation and revenue bonds to identify potential refunding candidates.

11. Describe the Firm’s understanding of how investors view the State’s debt. Provide any suggestions or the methodology to be used in evaluating strategies that would help the State enhance its relationship with investors.

12. Provide comments regarding the credit quality of the State. Describe any suggestions or the methodology to be used in evaluating strategies that would help the State further strengthen its relationships with the rating agencies and obtain rating upgrades.

13. Provide a brief statement regarding any litigation in which the Firm has been involved during the past three years. Please identify each entity which took such action and the reasons for such action.

14. Provide a brief statement regarding any pending litigation against the Firm and identify each entity taking such action and the reasons for such action.

Proposed Fee Structure:

The State recognizes that there is a cost associated with high-quality financial advisory services and, while cost will not be the most significant consideration in the evaluation process (See Section IV), it will be an essential component of the evaluation. It is important, therefore, that the proposed fee structure is clearly presented. Special or unique circumstances which may generate a fee not normally charged should also be clearly identified and described. Fees applicable to individuals, groups of individuals at similar professional levels (please specify by title) and blended “engagement team” rates, if any, should be clearly described. Any minimum fees or ceiling caps on fees should be disclosed and any expected increases or changes in the proposed fee structure or amounts throughout the engagement should also be described.

Proposed fees and fee structures should include, at a minimum, the following:

1. Retainer – the type of services for which a retainer, if any, may be applicable, the amount and relevant period covered for such a retainer, and any special or unique circumstances for which a retainer may be appropriate or not appropriate.

2. Per Debt Issue – a description and accounting of such fees or range of fees applicable to an individual debt issue, if any, and a description of any unique circumstances in which such a billing arrangement would be applicable to or not appropriate for a debt issue.

3. Hourly Fee – the type of services and amount of such fees, if any, which may be appropriate for an hourly fee billing and any special circumstances or services applicable to hourly fees.

4. Other Fees or Billed Expenses – any other unique or special services and the related fee, if any, applicable to such services.

Appendices, Data and Other Submissions: Include any clearly referenced appendices, data and other submissions necessary to support the Firm’s proposal.

Format, Organization & Submission Requirements:

1. To be considered, Firms must submit a complete response to this RFP. One (1) original and three (3) copies of each proposal must be submitted to the following RFP designated Point of Contact:

Richard M. Bowen, Assistant Treasurer New Hampshire State Treasury State House Annex, Room 121 25 Capitol Street Concord, NH 03301

The State Treasury accepts no responsibility for mislabeled mail or mail that is not delivered or undeliverable for whatever reason. Any damage that may occur due to shipping shall be the Proposer’s responsibility.

In addition, an electronic version in a PDF format must be sent via e-mail:

TO: Richard Bowen, Assistant Treasurer: richard.bowen@treasury.nh.gov CC: Rachel Miller, Chief Deputy Treasurer: rachel.miller@treasury.nh.gov

Unless waived as a non-material deviation, late submissions will not be accepted and will be returned to the proposers unopened. Delivery of the Proposals shall be at the Proposer’s expense. The time of receipt shall be considered when a Proposal has been officially documented by the State Treasury, in accordance with its established policies, as having been received at the location designated in this RFP. The Agency accepts no responsibility for mislabeled mail or mail that is not delivered or undeliverable for whatever reason. Any damage that may occur due to shipping shall be the Proposer’s responsibility.

2. Responses shall be limited to fifteen (15) pages plus appendices on 8-1/2” x 11” paper using at least 12 point type. Faxed proposals will not be accepted. It is the sole responsibility of mailto:richard.bowen@treasury.nh.gov mailto:rachel.miller@treasury.nh.gov the Firms responding to the RFP to ensure that their responses arrive at the designated location by the due date and time. Any cost associated with the development or delivery of this proposal is entirely the responsibility of the Firm submitting the proposal.

3. The Treasury is a public agency and its records, including responses to this RFP, will be deemed a public record and subject to public disclosure under the State’s Right-to-Know laws, pursuant to New Hampshire Statute RSA 91-A. If a Firm considers any portion of the documents, data, or any other records submitted in response to solicitation to be exempt from disclosure under New Hampshire law, the Firm must clearly mark each submission, or portions of the submission, considered to be exempt from disclosure as “confidential,” “proprietary,” or “trade secret.” All such markings must be conspicuous (e.g., use of color, capitalization, or bold or underlined typeface) in order to distinguish the marking from the other text in the submission. Wholesale designation of a submission, or substantial parts of a submission, as “confidential” will not be accepted by the Treasury.

Each Firm must also specify the applicable statutory provision for each part of its submission for which it seeks confidential treatment, along with a brief explanation as to why the information is exempt from disclosure under RSA 91-A. Notwithstanding the foregoing, the Treasury shall retain the absolute right and obligation to independently assess the legal and factual validity of any information designated as exempt from disclosure.If the Treasury concludes that any information properly designated as “confidential” or “proprietary,” is subject to disclosure under RSA 91-A, the Firm will be notified prior to the release of this information.

4. If the Firm is selected to give an oral presentation, such Firm shall provide additional copies of its proposal as may be requested. Oral presentations are an option of the State Treasurer and may or may not be conducted. If conducted, oral presentations will be held in Concord, New Hampshire. Any expense incurred is entirely the responsibility of the Firm selected for oral presentation.

5. A Firm may withdraw its proposal by notifying the Treasury in writing at any time prior to the deadline for proposal submittal. After the deadline, all proposals, once opened, become the property of the Treasury and will not be returned to the firms.

6. All questions by prospective bidders concerning any aspect of this RFP must be directed to the designated Point of Contact, Richard M. Bowen, and Rachel Miller via e-mail by March 29, 2024 at 4:00 PM.

The Treasury will post all inquiries and responses as an Addendum to this RFP on the Administrative Services Bureau of Purchase and Property website on or before the date and time specified in the Schedule section. No communication with any other State employee is allowed to take place regarding this RFP during the RFP process.

7. Restriction of Contact with Agency Employees. From the date of release of this RFP until an award is made and announced regarding the selection of a Proposer, all communication with personnel employed by or under contract with the Treasury regarding this RFP is forbidden. Treasury employees have been directed not to hold conferences and/or discussions concerning this RFP with any potential contractor during the selection process, unless otherwise authorized by the RFP Point of Contact. Proposers may be disqualified for violating this restriction on communications.

8. Proposals must be valid for one hundred and eighty (180) days following the deadline for submission as listed in the Schedule herein or until the effective date of any resulting contract, whichever is later.

SECTION IV: EVALUATION PROCESS

All proposals received will be reviewed and evaluated by a Selection Committee (Committee). The Committee will recommend the proposal which meets all of the requirements of this RFP and most closely meets the requirements of the State based on the following criteria listed in descending order of importance:

1. Overall expertise, experience and reputation of the Firm and of the personnel to be assigned to this engagement, as relating to the service requirements of the State (35% weighting);

2. Soundness of approach in meeting the needs of the State and understanding the nature and scope of the work involved, including the ability to deliver objective, high-quality and timely services (35% weighting); and

3. Proposed cost of services (30% weighting).

This RFP does not constitute an offer or a contract with the Treasury or the State of New Hampshire. A contract shall not be deemed to exist until proposals are reviewed, the best proposal has been identified, negotiations with the Firm have been authorized and completed, and a contract has been executed by parties and all required governmental approvals, including, but not limited to, Governor and Executive Council of the State of New Hampshire (if required) received.

In the event the parties are unable to negotiate terms acceptable to the Treasury, the Treasury may choose to accept the next highest-rated proposal determined by the Committee to be in the best interests of the State, or it may re-solicit proposals.

The Treasury reserves the right to reject all RFP responses, to waive non-material, technical variances or infirmities in the RFP responses, to abandon the project, or to solicit and re-advertise for other proposals.

SECTION V: OTHER RFP REQUIREMENTS

Review Process - After reviewing the proposals, the Committee retains the right to conduct interviews before awarding the final contract. The State also retains the right, however, to award a contract based solely upon the written proposals received without prior discussions or negotiations.

If selected for an interview, each finalist will be notified of the date and time of their interview at the Treasury in Concord, New Hampshire. The interview should continue to demonstrate the Firm's ability to provide the required services. The proposed engagement lead, as well as any other key personnel who would be responsible for providing financial advisory services to the State, including key back-up personnel, should be present and participate in the interview. The purpose of the interview is to demonstrate to the Committee an understanding of how specified requirements will be satisfied.

Further information with regard to the format of this stage of the evaluation will be provided to the finalists prior to their interview. The interview will be evaluated on the basis of whether it substantiates the characteristics and attributes claimed by the Firm in the written response to the

RFP.

Ethics in Public Contracting - By submitting their proposals, Firms certify that their proposals are made without collusion or fraud and that they have not offered or received any kickbacks or inducements from any other Firm, supplier, manufacturer or subcontractor in connection with their proposal, and that they have not conferred on any public employee having official responsibility for this procurement transaction any payment, loan, subscription, advance, deposit of money, services or anything of more than nominal value, present or promised unless consideration of substantially equal or greater value was exchanged.

Debarment Status - By submitting their proposals, Firms certify that they are not currently debarred from submitting proposals on contracts by any agency of the State, nor are they an agent of any person or entity that is currently debarred from submitting proposals on contracts by any agency of the State. Proposers who are ineligible to bid on proposals, bids or quotes issued by the Department of Administrative Services, Division of Procurement and Support Services pursuant to the provisions of RSA 21-I:11-c shall not be considered eligible for an award under this proposal.

Mandatory Use of State Form, Terms and Conditions - Modification of or additions to any portion of the RFP may be cause for rejection of the proposal; however, the State reserves the right to decide, on a case by case basis, in its sole discretion, whether to reject such a proposal as nonresponsive.

Qualification of Firms - The State may make such reasonable investigations as deemed proper and necessary to determine the ability of the Firm to perform the work/furnish the item(s), and the Firm shall deliver to the State all such information and data for this purpose as may be requested. The State reserves the right to inspect the Firm's physical facilities prior to award to satisfy questions regarding the Firm's capabilities. The State further reserves the right to reject any proposal if the evidence submitted by, or investigations of, such Firm fails to satisfy the State that such Firm is properly qualified to carry out the obligations of the contract and to complete the work/furnish the item(s) contemplated therein.

Non-Commitment - Notwithstanding any other provision of this RFP, this RFP does not commit the Agency to award a Contract. The Agency reserves the right, at its sole discretion, to reject any and all Proposals, or any portions thereof, at any time; to cancel this RFP; and to solicit new Proposals under a new acquisition process.

Proposal Preparation Cost - By submitting a Proposal, a Proposer agrees that in no event shall the Treasury be either responsible for or held liable for any costs incurred by a Proposer in the preparation of or in connection with the Proposal, or for Work performed prior to the Effective Date of a resulting Contract.

Conflict of Interest - Firms must disclose to the State any relationship(s) which may be a conflict of interest for the Firm.

Termination of Agreement - The obligation to continue services under the contract resulting from this RFP may be terminated for cause by either party upon seven (7) days written notice of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminated party. The Treasury shall have the right to terminate the contract or suspend performance thereof without cause for the Treasury’s convenience upon fourteen (14) days written notice to the Firm, and the Firm shall terminate or suspend performance of services on a schedule acceptable to the Treasury or at the end of this fourteen (14) day period, at the option of the Treasury. In the event of termination or suspension for the Treasury’s convenience, the Treasury shall pay the Firm for all services performed through the date of notice of termination or suspension. These options shall be in addition to any other remedies the State have.

Personnel Changes: Unless changes in key personnel are made by the Firm at the request of the State, the State reserves the right to terminate the engagement upon changes in key personnel which may result from, among other things, merger of the Firm with another or reductions in force by the Firm.

No Self Dealing - Any Firm selected to act as debt financial advisor with respect to a particular debt sale by the State will be prohibited from participating, either directly or indirectly in or with any syndicate underwriting or bidding on such sale.

SECTION VI: CONTRACT TERMS AND AWARD

Non-Exclusive Contract - Any resulting Contract from this RFP will be a non-exclusive Contract. The State reserves the right, at its discretion, to retain other Contractors to provide any of the Services or Deliverables identified under this procurement or make an award by item, part or portion of an item, group of items, or total Proposal

Standard Contract Terms - By submitting a proposal, the Firm agrees to the State of New Hampshire’s terms and conditions in the attached Agreement (Form Number P-37) in the Appendix. The selected Firm will be required to execute this agreement. The State of New Hampshire reserves the right to modify its standard contract Form P-37 in the course of negotiations with the selected Firm, however to the extent any Firm seeks substantial modifications of or additions to the standard contract Form P-37, such requests must be submitted by means of the Firm inquiry process pursuant to the deadline noted in Section III:

Format, Organization, and Submission Requirements, item (7).

Assignment of Contract - A contract shall not be assignable by the Firm in whole or in part without the written consent of the State.

Additional Contract Documents - The Contract award is subject to the selected Firm providing the following documentations:

- State of New Hampshire Vendor Application and W-9 Form

The selected Firm must have a completed Vendor Application and a W-9 Form must be on file with the NH Bureau of Purchase and Property. See the following website for information on obtaining and filing the required forms (no fee):

https://das.nh.gov/purchasing/vendorresources.aspx

- Organizational and Authority Documents

• A certified copy of the Firm’s articles of incorporation, certificate of formation, or its equivalent;

• A certified copy of the Firm’s certificate of good standing;

• If a foreign entity, a certified copy of the Firm’s certificate of authority or registration to transact business in New Hampshire;

• A certified copy of the Firm’s resolutions, officer’s certificate, or its equivalent approving the transactions contemplated by the Contract and vesting the individual to sign the Contract with the authority to bind the Firm to the terms and conditions thereunder.

- Certificate of Insurance

The Firm must provide a certificate of insurance on a standard ACORD form (or the equivalent) evidencing the Firm’s insurance coverage as set forth at Paragraph 14 Form P-37 (see Appendix) and as specified herein below. This insurance coverage shall be secured by the Firm, and maintained throughout the term of the Contract, at the Firm’s expense; provided, however, any insurance policies written on a claim-made basis (as opposed to occurrence -based coverage) shall be maintained for a period not less than two-years following the expiration or termination of the Contract, at the Firm’s expense.

Specific Minimum Coverage for this Contract

• Fiduciary liability insurance of at least $10,000,000.00 per occurrence, and as an annual aggregate, with respect to claims alleging breach of fiduciary obligations and any acts, errors, or omissions committed in https://das.nh.gov/purchasing/vendorresources.aspx connection with the financial advisor services under the Contract.

• Errors and omissions, professional liability, or insurance by any other name covering all acts, errors, omissions, and negligence arising from the Contract in an amount of at least $10,000,000.00 per occurrence, and as an annual aggregate.

• Network risk and cyber liability insurance to including coverage for losses arising from unauthorized access failure of security in an amount of at least $10,000,000.00 per occurrence, and as an annual aggregate.

APPENDIX A

STATE OF NEW HAMPSHIRE CONTRACT

FORM P-37

By submitting a proposal, the Firm agrees to the State’s terms and conditions listed under the heading “GENERAL PROVISIONS” in the attached form P-37. Prior to the approval of a contract, the Firm will be required to execute this form. Please note any suggestions or additions the Firm wishes to be considered.

In responding to this proposal, the Firm may substitute professional liability insurance for comprehensive general liability insurance in Paragraph 14 of Form P-37.

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

Click or tap here to enter text.

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.

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…