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HomeMy WebLinkAboutU3 Advisors; 2014-04-30;AMENDMENT N0.2 TO EXTEND THE AGREEMENT FOR HIGHER EDUCATION CONSULTING SERVICES U3 ADVISORS, INC. This Amendment No. 2 is entered into and effective as of the~ day o~2otS: extending the agreement dated May 28, 2013 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and U3 Advisors, Inc., a Delaware S-Corporation ("Contractor") (collectively, the "Parties") for higher education consulting services. RECITALS A. On May 29, 2014, the Parties executed Amendment No. 1 to the Agreement to extend the Agreement and provide additional services related to higher education recruitment and planning; and B. On April 30, 2014, the Parties executed an Assignment and Assumption Agreement to allow U3 Advisors, Inc. to assume the agreement after K. Backus & Associates, Inc. merged with U3 Ventures, Inc. to form U3Advisors, Inc.; and C. The Parties desire to extend the Agreement for a period of one (1) year. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. The Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on May 26, 2016. 2. All other provisions of the Agreement, as may have been amended from time to time, shall remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, shall include coverage for this Amendment. Ill Ill Ill Ill Ill City Attorney Approved Version 1/30/13 4. The individuals executing this Amendment and the instruments referenced on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions hereof of this Amendment. CONTRACTOR -k ~ n here) CITY OF CARLSBAD, a municipal corporation of the State of California By· By:~ ~ .tAICCeJ ~A-ci<Lf 5 f!1E5!D6NT (print name/title) I ATTEST: /~ A __....-, ~/ L/" ~__, (sign here) .r 1 f. v£,J J A Co I] s s Vf City Clerk (print name/title) or If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation !!!.!:!!1 attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: 4JJ2.A a/ ssistant City AttOJlle~ City Attorney Approved Version 1/30/13 2 AMENDMENT NO. 1 TO EXTEND AND AMEND AGREEMENT FOR HIGHER EDUCATION CONSULTING SERVICES U3 ADVISORS, INC. This Amendment No. 1 is entered into and effective as of the c2.# day of May , 2014, extending and amending the agreement dated May 28, 2013 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and U3 Advisors, Inc., a Delaware S-Corporation ("Contractor") (collectively, the "Parties") for higher education consulting services. RECITALS A. On April 30, 2014, the Parties executed an Assignment and Assumption Agreement to allow U3 Advisors, Inc. to assume the agreement after K. Backus & Associates, Inc. merged with U3 Ventures, Inc. to form U3 Advisors, Inc.; and B. The Parties desire to alter the Agreement's scope of work to provide: Request for Expressions of Interest evaluation assistance, additional coordination services with potential universities and institutions, and a formal recruitment process in the form of a Request for Proposals; and D. The Parties desire to extend the Agreement for a period of one (1) year; and E. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated in by this reference as Exhibit "A", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". With this Amendment, the total annual Agreement amount shall not exceed one hundred ten thousand dollars ($11 0, 000). 2. City will pay Contractor for all work associated with those services described in Exhibit "A" on a time and materials basis not-to-exceed ninety five thousand dollars ($95,000). In addition, up to fifteen thousand dollars ($15,000) for reimbursable expenses (travel, etc.) will be paid to the contractor for a total contract maximum of one hundred ten thousand dollars ($11 0,000). Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3. Contractor will complete all work described in Exhibit "A" by May 27, 2015. 5. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 6. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version 1/30/13 7. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR U3 Advisors, Inc., a Delware corporation By://_ '\=:~e) By:i/rintn ./"""' CITY OF CARLSBAD, a municipal corporation of the State of California By~ {'J(_ c~birector Kathryn B. Dodson ATTEST: c t;-?.cU/I~Ca~C"'""--- BARBARA ENGLES City Clerk If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney ,. City Attorney Approved Version 1/30/13 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT who proved to me on the basis ot satisfactory evidence to be the person(s) whose name(s) is/are subscnbed to the within mstrument and acknowledged to me that he/she/they executed the same in his/her/their authonzed capaCity(ies). and that by hrs/her/their signature(s) on the mstrument the person(s). or the entity upon behalf of which the person(s) acted. executed the instrument. I certify under PENALTY _Qf PERJUR_Y under t~eJaw§ ot the State of a "that the torego\ng p agraph rs ') true and correct tl w ~~lk:.. I IJiJiow nol reaw:eo by law. 1t .'nay prove valui:ible to tne documv'·:t couicJ prevent fraudulent rernova! and reattaclvnenr of thJS forrn to another docurr;tNJt. Capacity(ies) ~lai d b~ S'9ners Name . _ ~ jL::. .... =c __ _ /indiVIdUal a /Corporate Officw ~rtie(;;;J Partner-Urnrted m Fact Trustee Guardtar·· or Conservator Other fo -CEo General Narr~e lndiVJdua! Corporate Off,cer Tr!le(s\ Partner Lrmited General Attorney rn Fact Trustee Guardran Ott1EH Conservator NEW YORK 'ALL-PURPOSE' ACKNOWLEDGMENT REAL PROPERTY LAW §309·a State of New York County of Nw U MALIA D. CHATMAN Notary Public, State Of New York Qualified in Bronx County No. 01 CH6189098 1Y COMMISSION EXPIRES JUNE 23, 2016 Place Notary Seal and/or Stamp Above On the ~ay od ~ in the year ,d{)~ before Year me, the appeared (and ------:-:-:-.,-,--..,.--:c------,-,---------•) Name of Additional Signer, if Any personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/ her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which -------<-----. -------------------------OPTIONAL------------------------------- Though the information in this section is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer(s) Other Than Named Above: __________________ _ I © 2009 National Notary Association • 9350 DeSoto Ave., P.O. Box 2402 • Chatsworth, CA 91313·2402 • www.NationaiNotary.org Item #5925 Reorder: Call Toll-Free 1·800-876-6827 EXHIBIT "A" SCOPE OF SERVICES AND FEE Task 1. Coordination and support related to RFEI Following the release of the RFEI but prior to receipt of responses, U3A will assist the City of Carlsbad with the following: • Serving as point person for all information requests • Drafting responses to questions received from institutions • Coordinating information meetings and dissemination of materials • Outreach to leadership at candidate universities • Follow up discussions with university candidates' faculty and leadership, as necessary Deliverables: Written responses to all questions received by the City of Carlsbad plus any required follow up. Schedule: U3A would commence this task immediately upon release of the RFEI document. Task 2. Review and Analysis of Responses to RFEI Based on current assumptions, responses to the RFEI will be received by the City of Carlsbad by late summer or early fall. It will be important to carefully review each of the responses received within the framework of goals and objectives set forth in the RFEI. U3A brings extensive experience assisting clients with developer solicitations and understanding of research universities, their institutional structure and unique needs. We will work closely with project leadership to undertake the following: • Upon receipt of responses to RFEI, prepare a summary matrix for review by project leadership. Matrix will include summaries of each response's major components, including proposed program, partners, approach, timeframe and significant issues • Work with project leadership to organize and manage interviews with candidates and prepare requests for additional information and clarifications. Prepare a short list of respondents and suggest additional rounds of clarification letters or interviews as necessary • Perform due diligence as required, including potential visits to responding institutions • Develop a comprehensive analytical framework for selection of the best candidate(s) • Present analysis and recommendations to project leadership and other stakeholders, as necessary • Outreach to university candidates regarding potential partnerships and consortia, based on proposed programs and levels of interest City Attorney Approved Version 1/30/13 Deliverables: U3A would prepare an initial matrix summarizing the most relevant components of all submissions received for review by project leadership. U3A will develop interview questions and briefing memos in advance of interviews and will develop summary memos of each interview. A detailed recommendation memo would be provided to project leadership for review. Schedule: U3A assumes that an RFEI solicitation released by the City of Carlsbad in late April/early May would have at least a four-month response time because of summer schedules. Depending on the volume of responses, U3A assumes a schedule of four to five weeks to analyze responses, interview respondents and develop recommendations for the next steps. Task 3. Outreach to Institutions Once the RFEI is issued and both before and after the City of Carlsbad receives responses, U3A will reach out to leadership at targeted universities. If appropriate, U3A will organize meetings at targeted universities with City of Carlsbad and university leadership. Based on levels of interest, U3A will also engage institutions in discussions regarding partnerships and joint programs. Deliverables: U3A will work closely with project leadership and keep them informed about all discussions with institutions via joint conference calls, emails and memos. Schedule: U3A will begin outreach to institutions immediately following release of the RFEI and will continue to facilitate discussions with institutions within the limits allowed by the City of Carlsbad's procurement rules. Once RFEI responses are received and expressions of interest are assessed, U3A can engage in more targeted and detailed discussions with institutions. Task 4. Second Solicitation Document Based on the quality of responses to the RFEI, should project leadership and U3A determine that second more comprehensive solicitation document is optimal and beneficial, then U3A will work closely with project leadership to develop a detailed Request for Proposals document and assist with the selection process. • Draft detailed Request for Proposals (RFP) document. This RFP will be informed by responses received from the RFEI and will require respondents to more clearly outline their detailed proposed academic program, project financing and other requirements • Upon receipt of responses, summarize and analyze all proposals for project leadership and develop requests for clarifications and follow up for respondents • Schedule and manage interview process, including briefing memos for project leadership and questions for respondents • Develop financial analysis of proposed occupancy structures • Present analysis and recommendations to project leadership and facilitate selection of academic institution or consortium of institutions City Attorney Approved Version 1/30/13 Deliverables: U3A would prepare a full RFP document in addition to preparing summary materials, interview questions, briefing memos and recommendations similar to those provided in the initial solicitation, with additional financial analysis, if necessary. Schedule: U3A assumes that a Request for Proposals document would be completed within two months of designating a shortlist of responses from the RFEI. Depending on the release date of the RFP, U3A recommends a three to four-month response time. Analysis of the responses, interviews, and institution selection are expected to take place over a three-month period following receipt of the RFP responses. Task 5. Development of Occupancy Structure and Requirements for Faraday Property While the 13.5-acre site that comprises the Faraday property offers a unique opportunity for academic institutions that wish to situate themselves in the heart of the Carlsbad Research Center, the optimal terms under which one or more academic institutions may wish to occupy this facility are currently uncertain. Informed by responses received to both the RFEI and RFP, U3A would work closely with City of Carlsbad leadership to evaluate and determine key terms and conditions of a potential lease agreement or purchase option. Such terms and conditions may include: • Potential transaction and conveyance structures • If ground lease, required term and options • Payment structure • Required capital commitments by academic institution(s), including square footage of fit-out or new construction, construction commencement and completion dates, and phasing plan • Required operating commitments by academic institution(s), including academic uses, permitted non-academic uses, program and degree commitments and timing of implementation, and enrollment and hiring commitments • Conditions related to interest in the Faraday Property after the lease has expired Deliverables: U3A would work with the City of Carlsbad to develop a detailed description of desired terms and conditions that could be included as an attachment to the RFP document and serve as a framework during negotiation with academic institution candidates. Schedule: Analysis and evaluation of occupancy structure, options and required commitments could commence upon receipt of the RFEI responses and take place concurrently with development of the RFP document. Task 6. Negotiation Support U3A will provide negotiation support to the City of Carlsbad following designation of a preferred academic institution or consortium of institutions, including transaction and conveyance structures and terms. City Attorney Approved Version 1/30/13 Project Timeline The following is a summary timeline of the project schedule as identified in the above scope of work. We are assuming that the RFEI is released in late April or early May and that our contract extension begins on May 28, 2014. May-Aug. 2014 Sept.-Oct. 2014 Coordination and support related to RFEI, including outreach to institutions Review and analysis of responses to RFEI, including completion of summary matrix and support for candidate interviews Late Fall/Early Winter 2014: Targeted outreach to universities Late Fall/Early Winter 2014: Draft and release of RFP document Spring 2015: Late Spring 2015: Receive responses to RFP document and interview candidates Designation and negotiation with preferred candidate(s) City Attorney Approved Version 1/30/13 ASSIGNMENT AND ASSUMPTION AGREEMENT FOR HIGHER EDUCATION CONSULTING SERVICES U3 ADVISORS, INC. THIS ASSIGNMENT AND ASSUMPTI N AGREEMENT ("Assignment Agreement") is made and entered into this ·~fl.-day of I 20~ by and between the CITY OF CARLSBAD, a political subdivision of the ate of California ("City"), K. BACKUS & ASSOCIATES, INC., a New York sole proprietorship, ("Assignor") and U3 ADVISORS, INC., a Delaware $-Corporation, ("Assignee"), and is made with reference to the following facts: RECITALS A On May 28, 2013, the City and Assignor entered into that certain Professional Services Agreement concerning higher education consulting services, (the "Agreement"). B. Paragraph 24 of the Agreement allows Assignor to assign rights and obligations under the Agreement upon written approval of the City. C. Assignor desires to assign its interest in the Agreement to Assignee. Further, Assignee desires to accept assignment of Assignor's interest in the Agreement and City consents to the assignment of the interest in the Agreement from Assignor to Assignee. NOW THEREFORE, incorporating the above recitals and in consideration of the covenants and obligations set forth herein, the parties hereto agree as follows: 1. Assignment. Assignor hereby assigns to Assignee all of Assignor's rights and obligations as set forth in the Agreement. 2. Assumption. Assignee hereby assumes all of Assignor's rights and obligations as set forth in the Agreement. 3. City Consent. City hereby agrees and consents to the assignment of all of Assignor's rights and obligations as set forth in the Agreement to Assignee. 4. General Terms and Conditions. The following general terms and conditions shall apply to this Assignment Agreement. 4.1 Hold Harmless. In addition to the hold harmless provisions contained within the Agreement, and except as to the sole negligence, or willful misconduct of City, Assignee shall defend, indemnify and hold the City, its officers and employees, harmless from any and all loss, damage, claim for damage, liability, expense or cost, including attorneys fees, which arises out of or is in any way connected with this Assignment Agreement, notwithstanding that City may have benefitted from this Assignment Agreement. The hold harmless provision shall apply to any acts or omissions, wilfull misconduct or negligent conduct, whether active or passive, on the part of Assignee. The parties expressly agree that this section shall survive the expiration or early termination of this Agreement. 4.2. Counterparts. This Assignment Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and CA 4/1113 the same instrument. 4.3. Successors and Assigns. It is mutually understood and agreed that this Assignment Agreement shall be binding upon City, Assignor and Assignee and their respective successors. Neither this Assignment Agreement or any part hereof nor any monies due or to become due hereunder may be assigned by Assignee without the prior consent of City. 4.4. Governing Law. This Assignment Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State of California. 4.5. Venue. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Assignment Agreement shalt be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county. 4.6. Notices. Service of any notices, bills, invoices or other documents required or permitted under this Assignment Agreement shall be sufficient if sent by one party to the other by United States mail, postage prepaid and addressed as follows: City: Assignor: Assignee: City Manager City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Karen Backus, President K. Backus & Associates 230 W. 41st Street, Suite 11 02 New York, NY 1 0036 Karen Backus, Co-CEO U3 Advisors, Inc. 230 W. 41st Street, Suite 11 03 New York, NY 1 0036 Tel: 212-460-8601 4.7. Nondiscrimination. During the term of this Assignment Agreement, the parties shall comply with the state and federal laws regarding non-discrimination. 4.8 Authority. The parties executing this Assignment Agreement on behalf of City, Assignor and Assignee each represent and warrant that they have the legal power, right and actual authority to bind the City, Assignor and Assignee, respectively, to the terms and conditions hereof. 4.9 Severability. Each provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement shall be considered severable. In the event any provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this Assignment Agreement and shall not affect any other provision, term, condition, covenant, and/or restriction, of this Assignment Agreement and the remainder of this Assignment Agreement shall continue in full force and effect. 2 CA 4/1113 4.10 Effective Date. This Assignment Agreement shall be effective upon the date and year first above written. ASSIGNOR: *By: CITY OF CARLSBAD, a municipal corpo~tate of California By:~ ~~~C~i~cy~M~a-n-ag-e~r~~----------(. !+~ltl {l(S,vf~l\ ~~--~~~~~~~~ **By: --------77~--~------(sign here) (print name/title) ASSIGNEE: U3 Advisors, Inc. BAR ~ CityCierk *By: --~{~ a;ioiL ~ . OKEV RIZOR l:_A-tli3N f!::,trt:I{M5 /ft<-Cf5i-PuBUC, ATEOFNEW¥011< (print me/title) I UC.I01AR81 .... , **B / COMM. EXP. 081301201'-6 y: (IIA COMMISSIONED IN BRONX COUNTY (s1 n h re) I ~6 {Y\ L us eV\ \-1 u ~ 5e L-v~--\-L..v'-1 (print name/title) \ If required by City, proper notarial acknowledgment of execution by contractor must be attached . .!!.E. Corporation, Agreement must be signed by one corporate officer from each of the following two groups: *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BR W R, City Attorney By: ~ f-,2 f-/f/ 3 CA 4/1113