2. Clients and References


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2. Clients and References

  1. 1. The Regents of the University of California Request for Proposal #SS/OP/TREASURER/092404 Consulting Services For Private Equity Investment Program The Regents of the University of California is requesting proposals from qualified firms interested in providing consulting services, as further specified herein, for its private equity investment program. If you are interested in submitting a proposal, please submit five copies (four bound and one in a loose-leaf three-ringed binder) + 1 e-mailed copy of your proposal by 3:00 PM, PT, on Friday, September 24, 2004, to: Melvin Stanton The Assistant Treasurer Re: SS/OP/TREASURER/092404 University of California P.O. Box 24000 Oakland, CA 94623-1000 E-mail: RFP.TO@ucop.edu Please submit the original proposal in a sealed package by 3:00, PM, PDT, on Friday, September 24, 2004 to: Stuart Davis Director, Strategic Sourcing Re: SS/OP/TREASURER/092404 1111 Franklin Street, 10th Floor Oakland, CA 94607-5200 The original must contain original signatures, be labeled “Master Copy”, and placed in a loose-leaf, three- ringed binder, which displays the Investment Manager’s name on the outside front cover. (Do not submit the Master Copy with spiral binding.) In responding to the questions or requests of this RFP, the proposer shall restate such questions or requests as a preface to the proposer’s response. The proposal must be accompanied by a cover letter that should be signed by at least one individual who is legally authorized to bind the firm contractually. The cover letter must include: a) the firm name, address, E-mail address and telephone/fax numbers; b) the proposer’s contact person; c) the title or position which the signer of the cover letter holds in the firm; and d) a statement to the effect that the proposal is a firm and irrevocable offer of the firm. 1
  2. 2. The Representations and Warranties contained in Section X of this Request for Proposal, signed by an authorized officer of the firm, must be included as an attachment to the cover letter referenced in the prior paragraph. Questions concerning the Request for Proposal must be submitted via email by 3:00 PM, PT, Wednesday, September 8, 2004, to: Email address: RFP.TO@ucop.edu All questions received by this date will be answered by the University in writing on the University website: www.ucop.edu/treasurer. Sources of the questions will not be revealed. Questions submitted after the deadline will not be considered. I. DESCRIPTION OF THE UNIVERSITY Under the California Constitution, the University of California is recognized as a public trust to be administered by The Regents of the University of California. Since 1868, The Regents of the University of California has been recognized as a corporation. Presently, the Board of Regents includes twenty-six members: seven ex-officio, eighteen appointed by the Governor with the approval of the State Senate for staggered terms, and one student appointed by the board. The Board of Regents appoints the University of California President, and, with the President's advice, certain officers, including Vice Presidents, Chancellors, and Directors of the national laboratories. The Board also appoints its principal officers: the General Counsel and Vice President, Secretary, and Treasurer and Vice President for Investments, who is responsible to the Board as Treasurer and to the Office of the President as Vice President for Investments. The Treasurer and Vice President for Investments is responsible for managing the funds in the University's retirement plan ("University of California Retirement System" or "UCRS"), endowment, and the University's cash assets. The Treasurer and Vice President for Investments is also responsible for all investment management, investment accounting, portfolio reporting and cash management for the University system, including the ten campuses, five teaching hospitals, and three national laboratories. These activities are carried out under the policies established by the Board of Regents. The current investment portfolio is approximately $59 billion in total assets. II. SCOPE OF SERVICES The private equity consultant (“Consultant”) will have a non-discretionary advisory relationship ultimately reporting to the Investment Advisory Committee (“IAC”) of the Board of Regents of the University of California (“Board”). The Consultant, while independent, will work with the Treasurer’s private equity staff and assist the Treasurer with the management of the private equity portfolio. The Consultant will provide the following services: 1. Review of Private Equity Program Objectives. Evaluate the University’s existing investment policies and objectives and if changes are to be proposed, will recommend revisions and will assist in the preparation of meeting materials regarding the proposed revisions. 2
  3. 3. 2. Investment Plan Implementation. Assist in ongoing assessment of the multi-year strategic investment plan. On an ongoing basis, identify potential investment opportunities and create a watch-list of funds for the University to consider even if the funds are not currently open for investment. Evaluate and compare private equity funds and fund managers, including key decision makers, fund’s investment strategies and organizational structures. Any recommendation for investment should be supported by appropriate written due diligence summaries in a format and detail agreed upon by the University’s private equity staff. At the request of the University’s private equity staff, perform due diligence on investment opportunities identified by the University. 3. Investment Performance Tracking: Track the progress and the performance of the private equity funds that either the University or the consultant would choose to evaluate, even if the University would ultimately decide to not to invest in those funds. 4. Portfolio Oversight and Industry Analysis: Provide Venture Capital and Private Equity quarterly benchmarks for those industries. If requested by the University, create a custom benchmark appropriate for the University’s portfolio. 5. Attendance at meetings: Upon request of the University, appropriate representatives should attend meetings with the University’s Board or IAC. As of June 30, 2004, the Treasurer’s Office managed $59 billion in total Regents’ assets. The Regents’ policies allocate approximately 5.6% of the total of University of California Retirement Plan, General Endowment Pool, and 403(b) Equity Fund assets (collectively referred to as “Pool”) to private equity investments. Under The Regents’ policy, 50% of the private equity investments are targeted to be in the form of U.S. venture capital investments and 50% are targeted to be in the form of U.S. buyouts. Non-U.S. private equity have a 0% target, but are allowed on an opportunistic basis up to 10% of private equity investments. Investments in fund-of-funds are permitted, but co-investments and direct investments are not permitted. Approximately 1.5% of the Pool assets are currently invested in private equity. III. BASIS FOR SELECTION OF CONSULTANT It is the intention of the University that, if it accepts a proposal, it will accept the proposal that it considers to be in the best interest of the University. While cost is a consideration in selecting a Consultant to provide these services, the University will consider all information made available to the University. Such information will include, without limitation, the proposer's knowledge, experience, professional reputation, and responsiveness to this Request for Proposal. The University will evaluate all such information in an effort to determine which, if any, of the proposals serve the University's needs and objectives. The University may request that proposers participate in an oral interview as a part of the selection process. The selection will be based on the best "value" proposal, not strictly on the lowest cost proposal. IV. TERM OF AGREEMENT The contract for the Consultant's services will be a one year contract, which may be renewed annually for up to three years, containing a provision giving the University the right to terminate the agreement, without cause, with a 30 day notification. V. QUALIFICATIONS OF THE CONSULTANT 3
  4. 4. The Consultant should meet the following minimum qualifications in order to be considered for this assignment: 1. As of June 30, 2004, the firm should have been in business for a period of at least five consecutive years. 2. Investments recommended by the firm and placed in private equity partnerships or limited liability companies during this time should exceed $1 billion. 3. Investments recommended by the firm and placed in venture capital partnerships or limited liability companies during this time should exceed $500 million. 4. The Consultant should have at least five institutional pension or endowment clients, each with total assets exceeding $1 billion. 5. The key investment professional(s) assigned to work with the University should have 3 years with the firm and 7 years in activities related to sourcing, screening, evaluating, and recommending investment partnerships (and similar structures) including venture capital, special situation, buyout, and non-U.S. VI. CONTENT OF PROPOSALS 1. Company Background and General Description A. A brief description of the firm, including background, location, experience, ownership structure, as well as other factors the proposer considers relevant. B. Describe the ownership structure of your firm. Provide a chart describing the ownership structure including the names of directors, if applicable, and the percentage ownership of each entity. Include biographies for all directors and owners. Identify affiliated or subsidiary organization(s). Do investment professionals participate in equity ownership? If equity ownership is not available, is there a specific arrangement for sharing in the profits earned by the enterprise (e.g., salary, bonus, group/individual performance incentives, profit sharing, etc.)? Please describe. C. List your firm’s lines of business and approximate contributions of each business to your firm’s total revenue. If you are an affiliate or subsidiary of another company, what percentage of the firm’s total revenue does your division generate? Please describe the organizational structure and your relationship to the parent company and any other subsidiaries. D. Describe the financial condition of your firm and include a copy of the firm’s financial statement for the most recent annual reporting period. E. Describe any significant developments in your organization which have occurred since January 1, 2001 (changes in ownership, personnel, reorganization, etc.). Describe any anticipated near term changes as well. F. Is your firm, its parent or affiliate a registered investment advisor with the SEC under the Investment Advisers Act of 1940? If not, what is your fiduciary classification? State whether your firm is or is not a fiduciary (as the term is defined by the Employee Retirement Income Security Act of 1974). G. Describe the levels of errors and omissions insurance and any other fiduciary or professional liability insurance your firm carries. List the insurance carriers supplying the coverage. 4
  5. 5. H. Please describe your firm’s plans for future growth in consulting or managing in the area of alternative investments, including:  Total number of accounts, discretionary and non-discretionary, which will be accepted.  Total assets that will be accepted on a discretionary and non-discretionary basis.  Plans for additions to professional staff and approximate timing in relation to growth of account and/or assets.  Plan to offer fund-of-funds. I. Over the past five years, has your organization or any of its affiliates or parent, or any officer or principal been involved in any business litigation, regulatory or legal proceedings? If so, provide a detailed explanation and indicate the current status. If available, also provide complete Form ADV (Parts I and II). J. Describe in detail any potential conflicts of interest your firm may have in providing consulting services to the University. Include any activities of affiliated or parent organizations, brokerage activities, investment banking activities, or any past or current relationships with The Regents and investment staff. Include any other pertinent activities, actions, or relationships not specifically outlined in this question. K. As an advisor, state the amount of assets your firm, or staff of your firm, has recommended for commitment or has invested: Dollars Recommended for Commitment To: Number of Client Number of Venture Year Accounts Partnerships Total Capital Buyout Non-US 2003 $ $ $______ $______ 2002 $ $ $ _____ $______ 2001 $ $______ $ $______ 2000 $ $______ $______ $______ 1999 $ $______ $______ $______ L. Does your firm receive carried interest on any of its discretionary accounts? If so, how much? M. Please describe the size, strategy, terms and conditions for any partnership or similar structure in which you or an affiliate acts as the general partner and how conflicts of interest will be resolved. [Attach separate sheets to fully explain these items.] 2. Clients and References A. List the total number of clients and amount of assets for which you provide non-discretionary consulting services as of June 30, 2004. Provide the same information for any discretionary services and/or fund-of-funds services you provide. 5
  6. 6. B. List your 10 largest clients for whom you provide consulting services to as of June 30, 2004. Include the contact name, title, telephone number, asset value, the number of years the client has retained your firm, and what types of services you provide the client (i.e. discretionary or non- discretionary). C. Please list three institutional clients as references for whom the primary advisor and principal assistant to be assigned to The Regent’s account have provided alternative investment consulting services. For each reference listed, include client name, address, and name , telephone number, and e-mail address of contact person. D. List all clients and asset, discretionary and non-discretionary, amounts gained over the past three years as of June 30, 2004. E. List all clients and asset, discretionary and non-discretionary, amounts lost over the past three years as of June 30, 2004. F. Provide the name, address, phone number, contact name and title of three similar type clients that can be contacted as references. Also indicate the length of your relationship and assets under management for each reference. Provide the same information for three clients that have terminated your services over the past three years. 3. PEOPLE/ORGANIZATION A. List all principal personnel in the organization. Highlight the person(s) who would be responsible for this account. This information must be provided in the following format: Total Years Years of With Education Name Title Responsibilities 1 Experience Firm School Degree2 Yr. B. Indicate when and why any senior personnel or key professionals left or joined the firm in the last five years. (For personnel who have left indicate job titles and years with the firm and who replaced them). C. Discuss your organization’s compensation and incentive program.  How are professionals evaluated and rewarded? What incentives are provided to attract and retain superior individuals? If equity ownership is possible, on what basis is it determined and distributed? D. Describe your firm’s backup procedures in the event the key consultants assigned to this account should leave the firm. E. What personnel or organizational improvements are planned over the next year? F. Provide biographies of no longer than one page on each of the persons listed in Question 3A. G. Provide an organizational chart showing functions, positions and titles of all professionals in your organization. 1 Please indicate whether individual has responsibilities for products other than the subject product. 2 2 Most advanced degree only 6
  7. 7. 4. CONSULTING SERVICES A. Please describe your alternative assets investment philosophy as it applies to a client's total portfolio, alternative investments, risk, and expected returns. B. Describe the experience your firm has in analyzing and recommending the following types of investments: venture capital, corporate restructuring/buyout, special situations, non-U.S., and any other classification (if applicable, please specify). Note whether this experience was as a consultant, discretionary manager, both or other. C. Describe the database and sources of the database your firm uses in identifying potential investments for clients. Discuss how your firm verifies the accuracy and appropriateness of the data submitted. Describe the number of advisors in the database and segregate the advisors by investment type (i.e. venture capital, buyout, non-U.S., etc.). What is your firm's ability to proactively assess deal flow and introduce the University to new opportunities and/or general partners with whom the University does not already have a relationship? D. Describe your firm's due diligence process for identifying and recommending investments to clients. How are decisions made within the firm, communicated, and implemented? Include a description of how the firm evaluates the organization, personnel, investment philosophy, research capabilities, financial condition, assets under management, types of clients, fees and interest carry. E. Discuss your firm's policy regarding the analysis and recommendation of "brand name" funds vs. first time funds. F. Discuss your firm's policy for allocating commitments among client accounts. Address how the firm handles any conflicts of interest regarding direct or co-investment programs. G. How does your firm resolve potential conflicts of interest in recommending or making investments among clients? Specifically describe resolving conflicts between discretionary and non-discretionary accounts. H. Provide a sample due diligence or recommendation report for a venture, a buyout, and a non- U.S. partnership investment. I. For each of the calendar years 2001, 2002 and 2003, provide the following information:  The total asset value of capital committed by or on behalf of your clients on your recommendation or discretion. Provide a breakdown by venture capital, buyout and non- U.S.  The five largest partnership investments in venture capital, in buyouts, and non-U.S. private equity (provide the total dollars committed by your clients in each partnership).  A list of the "first-time" funds you committed to. J. Describe your firm's process for handling negotiations regarding fees and partnership terms. Include a description of the individuals in the process and whether or not outside counsel is involved in the negotiation process. 7
  8. 8. K. Describe your firm's monitoring process once investments are made, including overseeing performance, risk, contract compliance, account restrictions, and activities creating potential conflicts of interest. Also describe your frequency of contact with the general partners of funds in which your clients are invested and your policy regarding sitting on investor advisory boards (list the boards you are currently on). L. Describe your firm's back-office and reporting capabilities. Include a description of the individuals involved and provide sample reports. M. How many opportunities do you expect to analyze per year, and how many transactions do you expect to recommend to The Regents? N. What distinguishes your firm from others in providing the subject services to the University? VII. ADDITIONAL PROPOSAL SPECIFICATIONS 1. Communications with The Regents of the University of California. The University's procurement officer for this RFP is: Melvin Stanton The Assistant Treasurer Re: SS/OP/TREASURER/092404 University of California P.O. Box 24000 Oakland, CA 94623-1000 With the following exception, firms that intend to submit a proposal should not contact any member of The Office of the Treasurer, or members of the Board of Regents' Investment Committee, or members of the University's Board of Regents. The exception to this rule would be those firms that currently do business with the University and have a regular need for such contacts, or are requested by the Treasurer and Vice President for Investments, the Board of Regents, or individual members of the Board, for such contact, but then only in the capacity, course, and scope of their current contract engagement. Such contact made by such firms must not relate to this RFP. 2. Rejection of Proposals The University reserves the right to reject any and all proposals. 3. Withdrawal/Irrevocability of Responses A proposer may withdraw its proposal at any time prior to acceptance by the University. A proposer withdrawing a proposal may resubmit a proposal prior to the Proposal Deadline. No re-submissions received after the Proposal Deadline will be considered unless the University rejects all proposals received prior to the Deadline. 4. Waiver/Cure of Informalities, Errors and Omissions 8
  9. 9. The University reserves the right to waive or permit cure of informalities, errors or omissions prior to its acceptance of an offer, and to conduct discussions with any proposers, and to take any other measures with respect to this RFP in any manner which the University, in its exclusive discretion, deems to be in the best interests of the University and its beneficiaries. VIII. EQUAL OPPORTUNITY EMPLOYER The University of California is an equal opportunity employer and as such does not engage in unlawful discriminatory employment or contracting practices and undertakes affirmative action to ensure that employees and applicants are treated without regard to their race, color, ancestry, religion, marital status, national origin, sex, sexual orientation, physical or mental handicaps, medical condition, special disabled or Vietnam era veteran status, or (within the limits of the law and University regulations) age or citizenship. The University requires its contractors to follow these same practices in both employment and contracting matters and to communicate these policies within its organization. As a federal contractor, the University may incorporate by reference the Equal Opportunity clause required by 41 CFR § 60.1.4 (a)1 - 7. IX. OTHER REQUIREMENTS 1. The University will not reimburse proposers for costs they incur in preparing their proposals. 2. Consultant's Use of Materials and Information. In the event the Consultant wishes to use in some other capacity or for some other client, or in the proposer's marketing of its services, any aspect of the services provided to the University of California, or the fact that it is providing services to the University, such use will require the University's prior written approval. 3. Consultant as an Independent Contractor Consultant will be an independent contractor and not an employee of the University. 9
  10. 10. X. REPRESENTATION AND WARRANTIES 1. All proposers are required to submit an executed copy of the following Representations and Warranties: A. Proposer warrants that it will not delegate its fiduciary responsibilities if it is selected as the Consultant. B. Proposer warrants that it has completed, obtained, and performed all registrations, filings, approvals, authorizations, consents or examinations required by a governmental authority in order to perform the services offered in the proposal. C. The proposer must be SEC-registered or exempt from registration and provide proof of the basis of the exemption. _____________________ Name of Firm Date _____________________ Signature Title 10
  11. 11. XI. PROPOSED FINANCIAL ARRANGEMENT As stated previously in part IV of this Request for Proposal, the engagement for which this RFP is being issued, will be documented in a one year contract between the University and the selected Consultant. The contract may be renewed annually on mutual agreement. The proposer offering to perform services in response to this RFP shall clearly state the amount of professional fees it would charge for its services under this engagement. The statement of fees should be stated for a one year contract. In addition, the proposer shall state the fees it would charge for these same services should the University determine to extend or renew the contract for a second year, and the fees it would charge for these same services should the University determine to extend or renew the contract for a third year. The proposer understands and agrees in submitting the financial proposal for years one, two, and three, that 1. the University is not obligated to offer any contract extension or renewal; and 2. that a contract extension or renewal for year two does not obligate the University to offer a contract extension or renewal for year three; and 3. that in the event that a contract extension or renewal is offered, and is accepted by the Consultant, the Consultant’s fee for the second year, and, if a contract extension or renewal is offered by the University and accepted by the Consultant for the third year, then for the third year also, shall in no event exceed the fee shown in the response to this RFP for the second year, nor, if appropriate, for the third year, respectively; and 4. that this understanding will be documented in the contract with the successful proposer. In responding to the requirements of this part XI of this RFP, the proposer shall offer the proposed fee for professional services for years one, two, and three of this one year contract. This offer shall be made in terms of a flat fee, and, if applicable, also in terms of an hourly rate. The proposer shall include a statement justifying the fee. As a part of the fee proposal, but shown separately, the proposer shall also describe all categories and qualifications of costs and expenses anticipated to be charged in this engagement, including any “cap” on their size or otherwise. XII. TENTATIVE TIME TABLE The following is the tentative time schedule for the University’s search for firms to provide investment management services. All dates are subject to modification by the University. Issuance of RFP: August 27, 2004 RFP Question Deadline: September 8, 2004 (Firm) 3:00 PM, PT Response to E-mailed Questions: September 15, 2004 RFP Response Deadlines: September 24, 2004 (Firm) 3:00 PM, PT Notification of Finalists: Week of October 4, 2004 (Tentative) 11
  12. 12. Treasurer’s Staff Interviews: Week of October 18, 2004 and (Tentative) Week of October 25, 2004 IAC Meeting Notification: Week of November 8, 2004 (Tentative) Projected Commencement Date: December 1, 2004 Attachments: APPENDIX A 12
  13. 13. Appendix A FOR ACCOUNTING PURPOSES ONLY Agreement Number: _________________________ Location(s)/Account(s)/Fund(s)/Subaccount(s) M663600-69590-03-3455 (100%) (____%) UNIVERSITY OF CALIFORNIA INDEPENDENT CONSULTANT AGREEMENT This agreement ("Agreement") to furnish certain consulting services is made as of this xx day of xx, xx, by and between THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California public corporation (hereinafter called "the University") and hereinafter called (the "Consultant") located at xx I. NATURE AND PLACES(S) OF SERVICE A. The Consultant shall furnish to the University the following described services: B. In addition to the services described in subparagraph A. above, the Consultant's proposal to the University shall be incorporated herein by reference and made part of this Agreement. C. Places(s) of performance will be: D. The Consultant shall use recording devices in discussions with University employees only when the University and said employees so authorize; this authorization shall be in writing. If applicable, the Consultant's use of recording devices in such discussion is proposed as follows: II. TERM OF AGREEMENT A. The period of performance for this Agreement shall be from xx through xx. B. Either the University or the Consultant may terminate this Agreement for convenience at any time by giving the other 30 calendar days' written notice of such action. Appendix A 1
  14. 14. C. If one party gives 30 days notice to the other of a breach of this Agreement and the breaching party fails to cure said breach within said 30-day period, this Agreement may be terminated by the non-breaching party. III. COMPENSATION AND REIMBURSEMENT OF EXPENSES A. The University will pay the following to the Consultant for services performed: (see attached proposal) 1. Professional Fees: $ 2. Other Expenses: Other expenses: MAXIMUM TO BE PAID UNDER THIS AGREEMENT: TOTAL $ B. Payments. Payment will be made upon submission of an invoice by the Consultant indicating the Agreement Number and setting forth charges in accordance with rates detailed in paragraph A above and the performance schedule in Article IV. below. The invoice must include the Consultant's taxpayer identification number. Consultants shall submit invoices to person named in V., below. Payments will be made on a monthly or periodic basis without invoice provided a schedule of specific payment has been made a part of this Agreement and is in accordance with the performance schedule set out in Article IV. below. No payments shall be made in advance of work performed, except as specified in the Agreement. IV. PERFORMANCE SCHEDULE Consulting services to be provided during xx to xx. V. REPORTING In performing consulting services hereunder, the Consultant shall report to Appendix A 2
  15. 15. VI. NOTIFICATION Any written notification required hereunder shall be personally served or mailed by certified mail, return receipt requested, to the following: For the University: For the Consultant: VII. TAXES The compensation stated in Article III. of this Agreement includes all applicable taxes and will not be changed hereafter as the result of Consultant's failure to include any applicable tax, or as the result of any changes in the Consultant's tax liabilities. VIII. ASSIGNMENT OR SUBCONTRACTING The Consultant may not assign or transfer this agreement, or any interest therein or claim thereunder, or subcontract any portion of the work thereunder, without the prior written approval of the University. If the University consents to such assignment or transfer, the terms and conditions of this Agreement shall be binding upon any assignee or transferee. IX. PATENTS Whenever any invention or discovery is made or conceived by the Consultant in the course of or in connection with this Agreement, the Consultant shall promptly furnish the University complete information with respect thereto and the University shall have the sole power to determine whether and where a patent application shall be filed and to determine the disposition of title to and all rights under any application or patent that may result. The Consultant will, at University expense, execute all documents and do all things necessary or proper with respect to such patent applications. The Consultant is specifically subject to an obligation to assign all right, title and interest in any such patent rights to the University as well as all right, title and interest in tangible research products embodying such inventions whether the inventions are patentable or not. X. COPYRIGHT The University shall own, solely and exclusively, the copyright and all copyright rights to any written or otherwise copyrightable material delivered under this Agreement. The Consultant warrants that all creators of copyrightable material delivered under this Agreement to the University are, at the time of the material’s creation, bona fide employees or subcontractors of the Consultant, and that such creation is within the course and scope of the creator’s employment. XI. CONSULTANT'S LIABILITY AND INSURANCE REQUIREMENTS 1. The Consultant shall defend, indemnify, and hold the University, its officers, employees, and agents harmless from and against any and all liability, loss, expense Appendix A 3
  16. 16. (including reasonable attorneys' fees), or claims for injury or damages that are caused by or result from the negligent or intentional acts or omissions of the Consultant, its officers, agents, or employees. 2. The Consultant, at its sole cost and expense, shall insure its activities in connection with the work under this Agreement and obtain, keep in force, and maintain insurance as follows: a. Comprehensive or Commercial Form General Liability Insurance (contractual liability included) with limits as follows: (1) Each Occurrence $ (2) Products/Completed Operations $ 0 Aggregate (3) Personal and Advertising Injury $ (4) General Aggregate (Not applicable $ to the Comprehensive Form) If the above insurance is written on a claims-made form, it shall continue for three years following termination of this Agreement. The insurance shall have a retroactive date of placement prior to or coinciding with the effective date of this Agreement. b. Workers' Compensation as required by California State law. It is understood that the coverage and limits referred to under a., b., and c. above shall not in any way limit the liability of the Consultant. The Consultant shall furnish the University with certificates of insurance evidencing compliance with all requirements prior to commencing work under this Agreement. Such certificates shall: (1) Provide for thirty (30)-days advance written notice to the University of any modification, change, or cancellation of any of the above insurance coverage. (2) Indicate that The Regents of the University of California has been endorsed as an additional insured under the coverage referred to under a. and b. (3) Include a provision that the coverage will be primary and will not participate with nor be excess over any valid and collectible insurance or program of self- insurance carried or maintained by the University. It should be further understood that the provisions under (2) and (3) above shall only apply in proportion to and to the extent of the negligent acts or omissions of the Consultant, its officers, agents, or employees. Appendix A 4
  17. 17. XII. RECORDS ABOUT INDIVIDUALS The State of California Information Practices Act of 1977, as well as University policy, sets forth certain requirements and safeguards regarding records pertaining to individuals, including the rights of access by the subject individual and by third parties. If the Consultant creates records about an individual of a confidential or personal type, including notes or tape recordings, the information shall be collected to the greatest extent practicable directly from the individual who is the subject of the information. When collecting the information, the Consultant shall inform the individual that the record is being made and the purpose of the record. Use of recording devices in discussions with employees is permitted only as specified in this Agreement. XIII. OWNERSHIP AND ACCESS TO RECORDS While ownership of confidential or personal information about individuals shall be subject to negotiated agreement between the University and the Consultant, records will normally become the property of the University of California and subject to state law and University policies governing privacy and access to files. XIV. EXAMINATION OF RECORDS The University, and if the applicable contract or grant so provides, the other contracting party or grantor (and if that be the United States, or an agency or instrumentality thereof, then the Controller General of the United States) shall have access to and the right to examine any pertinent books, documents, papers, and records of the Consultant involving transactions and work related to this Agreement until the expiration of five years after final payment hereunder. The Consultant shall retain project records for a period of five years from the date of final payment. XV. CONFLICT OF INTEREST 1. The Consultant shall not hire any officer or employee of the University to perform any service covered by this Agreement. If the work is to be performed in connection with a Federal contract or grant, the Consultant shall not hire any employee of the United States government to perform any service covered by this agreement. 2. The Consultant affirms that to the best of his/her knowledge there exists no actual or potential conflict between the Consultant's family, business, or financial interests and the services provided under this Agreement, and in the event of change in either private interests or service under this agreement, any question regarding possible conflict of interest which may rise as a result of such change will be raised with the University. 3. The Consultant shall not be in a reporting relationship to a University employee who is a near relative, nor shall the near relative be in a decision-making position with respect to the Consultant. Appendix A 5
  18. 18. XVI. AFFIRMATIVE ACTION The Consultant recognizes that as a federal and state government contractor or subcontractor, the University of California is obligated to comply with certain laws and regulations of the federal and state government regarding equal opportunity and affirmative action. When applicable, the Consultant agrees that, as a government subcontractor, the following are incorporated herein as though set forth in full: the non-discrimination and affirmative action clauses contained in Executive Order 11246, as amended by Executive Order 11375, relative to equal employment opportunity for all persons without regard to race, color, religion, sex or national origin, and the implementing rules and regulations contained in Title 41, part 60 of the Code of Federal Regulations, as amended; the non- discrimination and affirmative action clause contained in the Rehabilitation Act of 1973, as amended, as well as the Americans With Disabilities Act relative to the employment and advancement in employment of qualified individuals with disabilities, and the implementing rules and regulations in Title 41, part 60-741 and 742 of the Code of Federal Regulations; the non-discrimination and affirmative action clause of the Vietnam Era Veterans Readjustment Assistance Act of 1974 relative to the employment and advancement in employment of qualified special disabled veterans and Vietnam era veterans without discrimination, and the implementing rules and regulations in Title 41, part 60-250 of the Code of Federal Regulations; and the non-discrimination clause required by California Government Code Section 12900 relative to equal employment opportunity for all persons without regard to race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status, age, or sex, and the implementing rules and regulations of Title 2, Division 4, Chapter 5 of the California Code of Regulations. The Consultant, as a government subcontractor, further agrees that when applicable it shall provide the certification of non-segregated facilities required by Title 41, part 60-1.8(b) of the Code of Federal Regulations. XVII. CONFIDENTIALITY The Consultant shall use his or her best efforts to keep confidential for five years after termination or expiration of the Agreement any information provided by the University and marked "Confidential Information," or any oral information conveyed to the Consultant by the University and followed by a written communication within thirty (30) days that said information shall be considered Confidential Information. This non-disclosure provision shall not apply to any of the following: 1. Information which the Consultant can demonstrate by written records was known to him or her prior to the effective date of this Agreement; 2. Is currently in, or in the future enters, the public domain other than through a breach of this Agreement or through other acts or omissions of Consultant; or 3. Is obtained lawfully from a third party. Appendix A 6
  19. 19. XVII. NON-WAIVER Waiver or non-enforcement by either party of a term or condition shall not constitute a waiver or a non-enforcement of any other term or condition or of any subsequent breach of the same or similar term or condition. XIX. NO THIRD-PARTY RIGHTS Nothing in this Agreement is intended to make any person or entity who is not signatory to the agreement a third-party beneficiary of any right created by this Agreement or by operation of law. XX. TIME IS OF THE ESSENCE Time is of the essence in this Agreement. XXI. STANDARD FOR PERFORMANCE The parties acknowledge that the University, in selecting the Consultant to perform the services hereunder, is relying upon the Consultant's reputation for excellence in the performance of the services required hereunder. The Consultant shall perform the services in the manner of one who is a recognized specialist in the types of services to be performed. All deadlines set forth in the Agreement are binding and may be modified only by subsequent written agreement of the parties. The Consultant shall devote such time to performance of its, her, or his duties under this Agreement as is reasonably necessary for the satisfactory performance of such duties within the deadlines set forth herein. Nothing in the foregoing shall be construed to alter the requirement that time is of the essence in this Agreement. XXII. DISPUTE RESOLUTION Any dispute arising regarding the interpretation or implementation of this Agreement, including any claims for breach of this Agreement, shall be resolved by submitting the claim for arbitration to the American Arbitration Association in accordance with its rules and procedures applicable to commercial disputes. The location of any arbitration hearing shall be 1111 Franklin Street, Oakland, California, and any enforcement of the arbitrator's decision shall be brought in the Superior Court of Alameda County, California. XXIII. ATTORNEY'S FEES In any action brought by a party to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs. The prevailing party shall be entitled to the reasonable value of any services provided to it by in-house counsel. The reasonable value of services provided by in-house counsel shall be calculated by applying an hourly rate commensurate with prevailing market rates charged by attorneys in private practice for such services. Appendix A 7
  20. 20. XXIV. REPRESENTATIVES Any changes to this Agreement may be made only by the following representatives of the University, or their successors as designated in writing: XXV. ENTIRE AGREEMENT This Agreement contains the entire Agreement between the parties and supersedes all prior written or oral agreements with respect to the subject matter herein. Any modification to this Agreement must be on Amendment forms (Appendix 1), attached hereto and incorporated herein. Appendix A 8
  21. 21. XXVI. APPLICABLE LAW This agreement shall be governed by the laws of the State of California. CONSULTANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (Signature) (Date) (Signature) (Date) Social Security or Employer Title Identification Number* Responsible Administrative Official (Signature) (Date) Title Program Review Official Retention Period: Office of Record, Accounting, Executing Office, 5 years following termination, subject to Federal contract and grant requirements. Other Copies, 0-5 years. *PRIVACY NOTICE If the Employer Identification Number is not used, the Social Security Number must be shown. Pursuant to Federal Privacy Act of 1974, you are hereby notified that disclosure of your Social Security number is required pursuant to Sections 6011 and 6051 of Subtitle F of the Internal Revenue Code and Regulation 4, Section 404, 1256, Code of Federal Regulations, under Section 218, Title II of the Social Security Act, as amended. The Social Security Number is to verify your identity. The principal use of the number shall be to report payments you have received to Federal and State governments. Appendix A 9
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