ESBD_File_344233_Attachment D - Sponsorship Agreement - Draft.pdf

ATTACHMENT D

SPONSORSHIP AGREEMENT - DRAFT

DEPARTMENT OF ATHLETICS

This Sponsorship Agreement (Agreement) is hereby entered into by and between Prairie View A&M University, a member of The Texas A&M University System (A&M System”), an agency of the State of Texas with a principal place of business located at 100 University Dr, Prairie View, Texas (“University”) and [Sponsor] a [corporation, limited liability company, etc.] with a principal place of business located at [Address] (“Sponsor”) (each a “Party” and collectively the “Parties”).

1. PURPOSE:

The purpose of this Agreement is to provide for terms, provisions, and conditions whereby University, by and through its Department of Athletics, shall receive the sponsorship, support, and consideration herein described from Sponsor in exchange for the right of Sponsor to sponsor and support Department of Athletics programs as described in this Agreement.

2. TERM AND TERMINATION:

A. This Agreement shall commence on the Effective Date and continue for five (5) years (the “Initial Term”) unless earlier terminated in accordance with the provisions of this Agreement. The Parties may renew this Agreement for [#] additional 1-year terms (each, a “Renewal Term”, and collectively with the Initial Term, the “Term”) upon mutual written agreement signed by authorized representatives of both Parties.

B. This Agreement may be terminated by the University upon ninety (90) days’ written notice to Sponsor.

C. Either Party may terminate this Agreement effective upon written notice to the other Party if the other Party materially breaches any term of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach.

3. CONSIDERATION:

A. Consideration to be received by the University from Sponsor shall be as follows [or as described in the Sponsorship Terms, attached as Exhibit A]:

B. Consideration to be received by Sponsor from University shall be as follows [or as described in the Sponsorship Terms, attached as Exhibit A]:

4. PAYMENTS BY SPONSOR:

Any payment made by Sponsor, pursuant to this agreement shall be made by check payable to Prairie View A&M University, and such payment shall be mailed to the following address:

Prairie View A&M University

Attention:

100 University Drive Prairie View, Texas 77446

5. DUTIES AND OBLIGATIONS OF PARTIES:

The duties and obligations of Parties, in the performance of this contract are as follows:

A Duties and Obligations of Sponsor:

1. University shall ensure fulfillment of all benefits to Sponsor listed above in section 3A.

B. Duties and Obligations of University:

1. University shall ensure fulfillment of all benefits to Sponsor listed above in section 3B.

6. AUTHORIZATION AND INDEMNIFICATION REGARDING TRADEMARKS:

Sponsor represents and warrants that it is authorized to grant University the right to use marks, logos, insignias and other promotional designations as may be furnished to University. Sponsor agrees to indemnify and holds harmless University, its regents, employees, and agents in connection with the utilization of such marks, logos, and/or insignias in the herein described manner.

7. NON-ENDORSEMENT:

This Agreement shall not be deemed or construed as an endorsement by University of Sponsor or its products or services. This Agreement represents the sponsorship agreement by and between Sponsor and University.

Sponsor may not use the name or any adaptation of the name of University or any of its employees in any way except in factual statements that, in context, are neither misleading nor imply an endorsement by University or its employees as to the Sponsor or any other party, product, or process.

8. NOTICE:

Any notices required or permitted under this Agreement must be in writing and will be deemed given: (a) three (3) business days after it is deposited and post-marked with the United States Postal Service, postage prepaid, certified mail, return receipt requested, (b) the next business day after it is sent by overnight carrier,

(c) on the date sent by email transmission with electronic confirmation of receipt by the Party being notified, or (d) on the date of delivery if delivered personally. The Parties may change their respective notice address by sending to the other Party a notice of the new address. Notices should be addressed as follows:

A. UNIVERSITY:

Prairie View A&M University Attention: Contract Administration 100 University Drive Prairie View, Texas 77446

E-mail: contracts@pvamu.edu

A. SPONSOR:

9. INDIVIDUAL FOR DEPARTMENTAL CONTRACT ADMINISTRATION:

The following individuals shall be deemed as the departmental contact person for the purposes of administration of this Agreement. Each Party shall have the right to change said designated contact person from time-to-time and any Party changing the designated contract person shall give notice to the other Party as such changes occur. The designated contact person for administration for each Party is as follows:

A. UNIVERSITY:

Prairie View A&M University Attention: Contract Administration 100 University Drive Prairie View, Texas 77446

E-mail: contracts@pvamu.edu

B. SPONSOR:

10. SEVERABILITY:

In case any one or more of the provisions contained in this resultant agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and the Agreement shall be construed as if such invalid, illegal, and unenforceable provisions had never been contained herein. The Parties agree that any alterations, additions, or deletions to the provisions of the Agreement that are required by changes in federal or state law or regulations are automatically incorporated into the Agreement without written amendment hereto and shall become effective on the date the designated by such law or by regulation.

11. NO PARTNERSHIP:

Sponsor is an independent contractor, and neither Sponsor nor any employee of Sponsor shall be deemed to have employee-employer, partnership, agency or joint venture relationship with the University. Sponsor (and its representatives, agents, employees and subcontractors) will not represent themselves to be an agent or representative of the University or A&M System, or incur any obligation on the part of the University without written authorization of the University. As an independent contractor, Sponsor is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort, including but not limited to workers’ compensation insurance. Sponsor and its employees shall observe and abide by all applicable University regulations, policies and procedures, including but not limited to those applicable to conduct on its premises.

12. DISPUTE RESOLUTION:

The dispute resolution process provided in Chapter 2260, Texas Government Code, and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260, shall be used by University and Sponsor to attempt to resolve any claim for breach of contract made by Sponsor that cannot be resolved in the ordinary course of business. Sponsor shall submit written notice of a claim of breach of contract under this Chapter to the Vice President for Finance and Administration of the University, who shall examine Sponsor’s claim and any counterclaim and negotiate with Sponsor in an effort to resolve the claim. Neither the non-occurrence nor occurrence of an event nor the pendency of a claim constitutes grounds for the suspension of performance by Sponsor, in whole or in part.

13. NON-WAIVER

Sponsor expressly acknowledges that University is an agency of the state of Texas and nothing in this Agreement will be construed as a waiver or relinquishment by University of its right to claim such exemptions, privileges, and immunities as may be provided by law.

14. COMPLIANCE WITH LAWS

Each Party hereto will comply with all federal, state, and local laws, rules, and regulations applicable to its performance of this Agreement.

15. PUBLIC INFORMATION

Sponsor acknowledges that the University is obligated to strictly comply with the Public Information Act, Chapter 552, Texas Government Code, in responding to any request for public information pertaining to this Agreement, as well as any other disclosure of information required by applicable Texas law. Upon the University’s written request, Sponsor will promptly provide specified contracting information exchanged or created under this Agreement for or on behalf of the University to the University in a non-proprietary format acceptable to the University that is accessible by the public. Sponsor acknowledges that the University may be required to post a copy of this fully executed Agreement on its Internet website in compliance with Section 2261.253(a)(1), Texas Government Code. The requirements of Subchapter J, Chapter 552, Texas Government Code, may apply to this Agreement, and Sponsor agrees that this Agreement can be terminated if Sponsor knowingly or intentionally fails to comply with a requirement of that subchapter.

16. INSURANCE

Sponsor shall obtain and maintain, for the duration of this Agreement or longer, the minimum insurance coverage set forth on Exhibit 2 attached hereto.

17. INDEMNIFICATION

Sponsor shall indemnify and hold harmless A&M System, University and their regents, employees and agents (collectively, the “A&M System Indemnitees”) from and against any third-party claims, damages, liabilities, expense or loss asserted against A&M System Indemnities arising out of any acts or omissions of Sponsor or its employees or agents pertaining to the activities and obligations under this Agreement, except to the extent such liability, loss or damage arises from an A&M System Indemnitee’s gross negligence or willful misconduct.

18. MISCELLANEOUS

A. Delinquent Child Support Obligations. A child support obligor who is more than 30 days delinquent in paying child support and a business entity in which the obligor is a sole proprietor, partner, shareholder, or owner with an ownership interest of at least 25 percent is not eligible to receive payments from state funds under an agreement to provide property, materials, or services until all arrearages have been paid or the obligor is in compliance with a written repayment agreement or court order as to any existing delinquency. The Texas Family Code requires the following statement: “Under Section 231.006, Texas Family Code, the vendor or applicant certifies that the individual or business entity named in this contract, bid, or application is not ineligible to receive the specified grant, loan, or payment and acknowledges that this contract may be terminated and payment may be withheld if this certification is inaccurate.”

B. Payment of Debt or Delinquency to the State. Pursuant to Section 2252.903, Texas Government Code, Sponsor agrees that any payments owing to Sponsor under this Agreement may be applied directly toward certain debts or delinquencies that Sponsor owes the State of Texas or any agency of the State of Texas regardless of when they arise, until such debts or delinquencies are paid in full.

C. Previous Employment. Sponsor acknowledges and understands that Section 2252.901, Texas Government Code, prohibits the A&M System from using state appropriated funds to enter into any employment contract, consulting contract, or professional services contract with any individual who has been previously employed, as an employee, by the agency within the past twelve (12) months.

D. Not Eligible for Rehire. Sponsor is responsible for ensuring that its employees involved in any work being performed for the A&M System under this Agreement have not been designated as “Not Eligible for Rehire” as defined in System policy 32.02, Discipline and Dismissal of Employees, Section 4 (“NEFR Employee”). In the event the University becomes aware that Sponsor has a NEFR Employee involved in any work being performed under this Agreement, the University will have the sole right to demand removal of such NEFR Employee from work being performed under this Agreement. Non-conformance to this requirement may be grounds for termination of this Agreement by the University.

E. Franchise Tax Certification. If Sponsor is a taxable entity subject to the Texas Franchise Tax (Chapter 171, Texas Tax Code), then Sponsor certifies that it is not currently delinquent in the payment of any franchise (margin) taxes or that Sponsor is exempt from the payment of franchise (margin) taxes.

F. State Auditor’s Office. Sponsor understands that acceptance of funds under this Agreement constitutes acceptance of the authority of the Texas State Auditor's Office, or any successor agency (collectively, “Auditor”), to conduct an audit or investigation in connection with those funds pursuant to Section 51.9335(c), Texas Education Code. Sponsor agrees to cooperate with the Auditor in the conduct of the audit or investigation, including without limitation, providing all records requested. Sponsor will include this provision in all contracts with permitted subcontractors.

G. Headings. Headings appear solely for convenience of reference. Such headings are not part of this Agreement and shall not be used to construe it.

H. Non-Assignment. Sponsor shall neither assign its rights nor delegate its duties under this Agreement without the prior written consent of the University.

I. Subcontracting. It is the policy of the state of Texas and University to encourage the use of Historically Underutilized Businesses (“HUB”) in our contracts, purchasing transactions and through subcontracting opportunities. The goal of the HUB program is to promote equal access and equal opportunity to HUB vendors in University contracting and purchasing. Sponsor will use good faith efforts to subcontract work performed under this Agreement in accordance with the HUB Subcontracting Plan attached hereto (“HSP”). Except as specifically provided in the HSP, Sponsor will not subcontract any of its duties or obligations under this Agreement, in whole or in part.

Furthermore, Sponsor will comply with all of its duties and obligations under Section 20.285 of the Texas Administrative Code.

J. Force Majeure. Neither Party shall be held liable or responsible to the other Party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any obligation under this Agreement if and to the extent such failure or delay is caused by or results from causes beyond the affected Party’s reasonable control, including, but not limited to, acts of God, strikes, riots, flood, fire, epidemics, natural disaster, embargoes, war, insurrection, terrorist acts or any other circumstances of like character; provided, however, that the affected Party has not caused such force majeure event(s), shall use reasonable commercial efforts to avoid or remove such causes of nonperformance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed. Either Party shall provide the other Party with prompt written notice of any delay or failure to perform that occurs by reason of force majeure, including describing the force majeure event(s) and the actions taken to minimize the impact of such event(s).

K. Loss of Funding. Performance by the University under this Agreement may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the “Legislature”). If the Legislature fails to appropriate or allot the necessary funds, the University will issue ninety (90) day written notice to Sponsor and the University may terminate this Agreement without further duty or obligation hereunder. Sponsor acknowledges that appropriation of funds is beyond the control of the University.

L. Governing Law. The validity of this Agreement and all matters pertaining to this Agreement, including but not limited to, matters of performance, non-performance, breach, remedies, procedures, rights, duties, and interpretation or construction, shall be governed and determined by the Constitution and the laws of the State of Texas.

M. Venue. Pursuant to Section 85.18, Texas Education Code, venue for any suit filed against the University shall be in the county in which the primary office of the chief executive officer of the University is located, which is Waller County, Texas.

N. Non-Waiver of Defaults. Any failure of the University at any time, to enforce or require the strict keeping and performance of any of the terms and conditions of this Agreement shall not constitute a waiver of such terms, conditions, or rights, and shall not affect or impair same, or the right of the University at any time to avail itself of same.

O. Use of Name. Each Party acknowledges that all rights in any trademarks, service marks, slogans, logos, designs, and other similar means of distinction associated with that Party (its “Marks”), including all goodwill pertaining to the Marks, are the sole property of that Party. Neither Party may use the Marks of the other without the advance written consent of that Party, except that each Party may use the name of the other Party in factual statements that, in context, are not misleading.

P. Conflict of Interest. By executing this Agreement, Sponsor and each person signing on behalf of Sponsor certifies, and in the case of a sole proprietorship, partnership or corporation, each party thereto certifies as to its own organization, that to the best of their knowledge and belief, no member of the A&M System or the A&M System Board of Regents, nor any employee, or person, whose salary is payable in whole or in part by the A&M System, has direct or indirect financial interest in the award of this Agreement, or in the services to which this Agreement relates, or in any of the profits, real or potential, thereof.

Q. Prohibition on Contracts with Companies Boycotting Israel. To the extent that Texas Government Code, Chapter 2271 applies to this Agreement, Sponsor certifies that (a) it does not currently boycott Israel; and (b) it will not boycott Israel during the Term of this Agreement. Sponsor acknowledges this Agreement may be terminated and payment withheld if this certification is inaccurate.

R. Certification Regarding Business with Certain Countries and Organizations. Pursuant to Subchapter F, Chapter 2252, Texas Government Code, Sponsor certifies it is not engaged in business with Iran, Sudan, or a foreign terrorist organization. Sponsor acknowledges that this Agreement may be terminated if this certification is or becomes inaccurate.

S. Prohibition on Contracts Related to Persons Involved in Human Trafficking. Under Section 2155.0061, Texas Government Code, Sponsor certifies that the individual or business entity named in this contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate.

T. Verification Regarding Boycotting Energy Companies. Sponsor agrees that in accordance with Section 2274.002, Texas Government Code, Sponsor (1) does not boycott energy companies, and (2) will not boycott energy companies during the Term of this Agreement.

U. Verification Regarding Discrimination Against Firearm Entities and Trade Associations.

Sponsor agrees that in accordance with Section 2274.002, Texas Government Code, Sponsor (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association, and (2) will not discriminate during the Term of this Agreement against a firearm entity or firearm trade association.

V. Limitations. As an agency of the state of Texas, there are constitutional and statutory limitations on the authority of University to enter into certain terms and conditions of this Agreement, including, but not limited to, those terms and conditions relating to liens on the A&M System’s property;

disclaimers and limitations of warranties; disclaimers and limitations of liability for damages;

waivers, disclaimers and limitations of legal rights, remedies, requirements and processes; limitations of periods to bring legal action; granting control of litigation or settlement to another party; liability for acts or omissions of third parties; payment of attorneys’ fees; dispute resolution; indemnities; and confidentiality (collectively, the “Limitations”). Terms and conditions related to the Limitations will not be binding on the University except to the extent authorized by the Constitution and the laws of the state of Texas. Neither the execution of this Agreement by the University nor any other conduct, action, or inaction of any representative of the University relating to this Agreement constitutes or is intended to constitute a waiver of the University’s or the state’s sovereign immunity.

W. Records retention. Sponsor will preserve all contracting information, as defined under Texas Government Code, Section 552.003 (7), related to the Agreement for the duration of the Agreement and for seven years after the conclusion of the Agreement.

X. Entire Agreement. This Agreement and all matters incorporated by reference herein constitute the entire agreement of the Parties. No changes, alterations or amendments are binding upon the Parties unless reduced to writing and agreed upon by the Parties. In the event of a conflict between the terms of this Agreement and any other terms, the terms of this Agreement shall control, followed by: (i) the RFP for the Sponsorship, (ii) the Sponsor’s proposal, and (iii) any other referenced terms. Any referenced terms are incorporated solely to the extent consistent with the terms of this Agreement.

ACCEPTED & AGREED:

PRAIRIE VIEW A&M UNIVERSITY SPONSOR

Signature Signature

PRINTED NAME: PRINTED NAME:

TITLE: TITLE:

DATE: _________________________________ DATE______________________________

Exhibit 1 – Sponsorship Terms Exhibit 2 – Insurance