4-OP-D-3 Revenue Generating Contracts | Policies and Procedures

Responsible Executive: Finance and Administration

Approving Official: Vice President for Finance and Administration

Effective Date: January 1, 2014

Last Revision Date: August 21, 2017 (formatting only)

INTRODUCTION
1. OBJECTIVE
  1. The purpose or this policy is to set forth certain uniform provisions and procedures for the University and its subordinate units when entering into contracts with ether internal or external entities for the purpose of generating revenues for and on behalf of the University.
2. OVERVIEW
  1. Revenue generating contracts at Florida State University that meet the parameters below, must be reviewed by the University General Counsel, University Controller, the Office of Businesses Services and have a vice-presidential level signature along with all other required signatures.
    1. Revenue contracts by which the University will gain a pecuniary benefit of $10,000 or more annually or;
    2. Revenue contracts that have the potential for revenue growth that will exceed $10,000 in any given year or;
    3. Revenue contracts having a term of five (5) years or more, including extensions.
    - All revenue contracts meeting the above requirements to be reviewed by the individuals or designees below will be required to provide written evidence of such approval. The preferred method of this written evidence is to including a signature line for each reviewing area on the contract signature page.
    - NOTE: All divisions, departments, centers or institutes are required to annually review all approved contract to assure they do not exceed revenue of contract term as outlined above. If this occurs, the contract should be readdressed.
POLICY
1. REVIEW BY THE UNIVERSITY GENERAL COUNSEL
  1. The University General Counsel shall review the contract document as to proper form, content and legality. This review shall include verifying that all current and pertinent Terms and Conditions set forth in these contracts governing issues such as travel expenses, governing law, sexual harassment and FSU trademarks and symbols are included. Further information regarding terms and Conditions can be found in Section E.
2. REVIEW BY THE UNIVERSITY CONTROLLER
  1. All contracts entered into by the University and any of its subordinate divisions, departments, institutes, and centers, by which the University will gain a pecuniary benefit of $10,000.00 or more, must then be reviewed by the University Controller or designee. The University Controller or designee shall review the contract document for State of Florida sales tax and federal unrelated business income tax considerations before the contract can be signed and executed.
3. REVIEW BY THE OFFICE OF BUSINESS SERVICES
  1. The Office of Businesses Services shall review the contract to insure it is keeping with the university’s policies and procedures for managing revenue generating contracts; that the contract is managed by the appropriate University department; and that the contract does not conflict with another business contract already in force with another department.
4. SIGNATURE AUTHORITY
  1. All revenue-generating contracts between the University or its subordinate divisions, departments, institutes or centers and internal/external entities must be signed by authorized persons with the final signature coming from an official at the vice-presidential level or a specifically appointed designee.
    1. SIGNATURE AUTHORITY MASTER LIST
      1. Each University Vice President (Finance and Administration, Academic Affairs; Research, Student Affairs, etc.) shall require all departments, institutes and centers under his or her purview to submit a list of names and corresponding position titles of individuals they wish to designate as signature authorities for revenue-generating contracts. Upon approval by the appropriate Vice President, these master lists of authorized individuals shall be copied to the Office of Business Services, and maintained in an up to date accessible records system (hard copy or computerized) within each Vice President’s office and within the appropriate department, Institute or center office.
    2. UNAUTHORIZED SIGNING OF DOCUMENTS
      1. Any individual employee of the University, its divisions, departments, centers or institutes, not authorized to sign contracts as discussed above, who signs a revenue-generating contract between the University and an internal or external entity, shall be subject to appropriate University disciplinary procedures which may include being subject to personal financial liability.
5. TERMS AND CONDITIONS
  1. The following are examples of standard Terms and Conditions that should be included in all revenue generating contract. These may be updated from time to time and others may be required for specific contacts. During the review process, as outlined in Section A, the University General Counsel can give guidance as to what specific Terms and Conditions a division, department, center or institute needs to include.
    1. GOVERNING LAW
      1. All revenue-producing contracts must state the following:
      2. "This agreement is governed by the laws of the State of Florida and any provisions herein, in conflict therewith, shall be void and of no effect."
      3. Governing law and venue may be negotiated if necessary by consulting with the Office of the University General Counsel.
    2. FSU TRADEMARKS AND SYMBOLS
      1. Unless specifically agreed to by the parties, no internal or external entity that is a party to a revenue-generating contract with the University, shall have the right to use the name of Florida State University or any trademark symbols of the University without prior written approval of the University.
    3. FSU SEXUAL HARASSMENT POLICY
      1. All revenue-generating contracts between the University, its divisions, departments, institutes or centers and internal or external entities shall contain the following provision:
      2. "(Name of internal or external entity that is a party to the contract), including officers, agents and employees, agrees to abide by and comply with all provisions of the current FSU Sexual Harassment Policy.
      3. Any violation of the provisions of the FSU Sexual Harassment Policy by (Name of internal or external entity that is a party to the contract), including officers, agents and employees, shall be grounds for unilateral termination of this agreement, for cause, by the University."
    4. BINDING SIGNATURE
      1. In accordance with Section C, of this policy document, no revenue-generating contract between the University, its divisions, departments, institutes or centers and an internal or external entity shall be binding unless signed by a vice president or designee.
      2. In addition to the provisions of Section C, above, there must be a statement above, next to, or below the designee's signature stating:
      3. "FLORIDA STATE UNIVERSITY, for and on behalf of the Florida Board of Regents."
    5. DEPOSIT OF REVENUES IN APPROPRIATE UNIVERSITY ACCOUNTS
      1. All monies received by the University, its divisions, departments, and centers as a result of the execution of a revenue-generating contract must be deposited in an appropriate University account.
    6. TRAVEL EXPENSES
      1. Any travel, lodging or meal expenses borne by an internal or external entity which is a party to a revenue-generating contract with the University, its divisions, departments, institutes or centers shall be paid in accordance with Section 112.061, F.S. Any such expenses in excess of the amounts proscribed by Florida Law shall be borne by the internal or external entity that is a party to the revenue-generating contract.
    7. ASSUMPTION OF RISK / ADDITIONAL EXPENDITURES
      1. Any internal or external entity which is a party to a revenue-generating contract with the University, its divisions, departments, institutes or centers shall assume the risk of personal injury and property damage attributable to the willful acts, omissions or negligence of that entity, its officers, employees and agents. In the event that the internal or external entity is required to obtain any permit, license or authorization as a prerequisite to performing its obligations under this agreement, those costs shall be borne by the entity required to obtain the permit, license or authorization.
    8. ADDITIONAL CONTRACTUAL PROVISIONS OR ATTACHMENTS
      1. If there are no additional provisions or attachments to a revenue-generating contract between the University, its divisions, departments, institutes or centers and an internal or external entity, such absence of additional provisions or attachments must be stated explicitly within the contract document. Conversely, should there exist additional provisions or attachments, reference to them must be made explicit within the contract document.
      2. The following statement shall be included within the contract document:
      3. "Any provisions or attachments not specifically referenced herein shall be excluded from this agreement."
    9. CANCELLATION AND PENALTIES
      1. Every agreement shall contain a provision for cancellation by the University. The following statement shall be included within the contract document:
      2. "This agreement shall be subject to cancellation by the University or (Name of internal or external entity that is a party to the contract) upon (to be negotiated) days written notice without penalty."
      3. Should the University not provide the required written notice and cancels its part of the agreement, then the conditions and penalties for non-performance shall be stated explicitly within the contract document.
    10. FORCE MAJEUR
      1. No fault, delay or failure to perform on the part of the internal or external entity that is party to a revenue-generating contract with the University, its divisions, departments, institutes or centers shall be considered a default, delay or failure to perform is otherwise chargeable, if such a default, delay or failure to perform is due to causes beyond either party's reasonable control, e.g., acts of God. In the event of such default, delay or failure to perform, any dates or times by which either party is otherwise extended to perform shall be extended for a period of time to be explicitly stated in the contract document.
    11. HOLD HARMLESS OR INDEMNIFICATION
      1. No indemnification or hold harmless clauses shall be included within a revenue-producing contract document between the University, its divisions, departments and centers and an internal or external entity.
    12. INTERNAL AND EXTERNAL ENTITY'S SOLE DETERMINATION
      1. If the contract document contains provisions for the internal or external entity entering into a revenue-generating contract with the University, its divisions, departments, institutes and centers to make a sole judgment, determination or exercise an option, such an action must have a reasonable basis. Upon request of the University, its divisions, departments, institutes or centers, the (Name of internal or external entity that is a party to the contract) shall notify the University of its decision in writing and the basis thereof.
    13. SEVERABILITY
      1. In the event that any provision of a revenue-generating agreement between the University, its divisions, departments or centers and an internal or external entity shall be held invalid by a court or administrative law judge, such holding shall not invalidate or render unenforceable any other provisions thereof. However, should such a breach go to the whole contract, then the entire contract is deemed unenforceable.
    14. SECURITY INTERESTS
      1. In accordance with the explicit instructions stated within Chancellor's Memorandum, CM-B-01.01-02/99, there shall be no reference to security interests in any type of contract or lease involving the Board of Regents or its subordinate institutions.
    15. PUBLIC RECORDS
      1. Any internal or external entity entering into a revenue-generating contract with the University, its divisions, departments, institutes or centers shall allow public access to all documents, papers, letters or other materials subject to the provisions of Chapter 119, F.S., and made or received by the internal or external entity in conjunction with the contract. Refusal by the internal or external entity that is a party to the contract shall be grounds for unilateral cancellation of this revenue-generating contract by the University.
      2. All records, held by either party, pertaining to a revenue-generating contract between the University, its divisions, departments, institutes or centers and an internal and external entity are subject to audit by the University.
LEGAL SUPPORT, JUSTIFICATION, AND REVIEW OF THIS POLICY
1. Section 112.061; Chapter 119; Section 212.08(7)(0); and Section 40.227(12), Florida Statutes
2. Florida Administrative Code Chapter 6C-9.013
3. Chancellor's Memoranda CM-B-01.00-02/97; CM-B-01.01-2/99 Internal Revenue Code Sections 511 through 514
4. This policy shall be reviewed by the Associate Vice President for Finance & Administration (AVP) every seven years for its effectiveness. The AVP shall make recommendations to the Vice President for Finance and Administration for any modification or elimination.