REQUEST FOR PROPOSALS
by
THE UNIVERSITY OF TEXAS – RIO GRANDE VALLEY
for
License of Space for the Operation of a Campus Store and Bookstore
at Locations on the Campus of
The University of Texas -Rio Grande Valley
RFP No.16-MR-02
Deadline for Submittal of Proposals: Monday March 16, 2015 at 3:00 PM CST
Issued: Monday February 16, 2015
REQUEST FOR PROPOSAL
TABLE OF CONTENTS
SECTION
1
BACKGROUND AND OBJECTIVE ................................................................................... 1
SECTION
2
SIGNIFICANT DATES, UNIVERSITY ADDRESSES, FORMAT ...................................... 9
AND PLACE FOR SUBMISSION ..................................................................................... 9
SECTION
13
PROCESS AND CRITERIA FOR SELECTION OF SUCCESSFUL PROPOSALS ........ 13
SECTION
4
GENERAL TERMS AND CONDITIONS ......................................................................... 16
SECTION
5
REQUIRED PROPOSAL INFORMATION ...................................................................... 21
ATTACHMENTS:
EXHIBIT A:
CAMPUS MAP AND PROPOSED PREMISES……………………………33
EXHIBIT B:
FORM OF AGREEMENT…………………………………………………….36
APPENDIX 1 DESCRIPTION OF PREMISES………………………………….…63
APPENDIX 2 CONSTRUCTION OF IMPROVEMENTS TO PREMISES………66
APPENDIX 3 OPERATIONAL REQUIREMENTS………………………………...69
APPENDIX 4 RENT…………………………………………………………………..88
APPENDIX 5 UNIVERSITY OWNED FURNISHINGS…………………………….93
APPENDIX 6 TRADEMARK LICENSE AGREEMENT…………………………….97
SCHEDULE 1 – MARKS AND DOMAIN NAMES
SCHEDULE 2 – LICENSED MATERIALS
-i-
SCHEDULE 3 – SPEFICATIONS
SCHEDULE 4 – BOARD’S BRAND MANUAL
EXHIBIT C:
HISTORICALLY UNDERUTILIZED SUBCONTRACTING PLAN
EXHIBIT D:
ADDENDA CHECKLIST
EXHIBIT E:
EXECUTION OF OFFER
EXHIBIT F:
SAMPLE QUALIFIED SPONSORSHIP RECOGNITION
EXHIBIT G:
ELECTRONIC
AND
SPECIFICATIONS
EXHIBIT H:
SECURITY CHARACTERISTICS AND FUNCTIONALITY OF RESPONDENT’S
INFORMATION RESOURCES
INFORMATION
RESOURCES
ENVIRONMENT
SECTION 1
BACKGROUND AND OBJECTIVE
1.1
The University of Texas Rio Grande Valley
The University of Texas Rio Grande Valley (“University”) is a new university authorized
by the laws of the State of Texas. The University will begin operations on or about August
2015. The University will be part of The University of Texas System (“UT System”) and
will leverage the existing strengths and resources of The University of Texas – Pan
American (located in Edinburg, Texas) (“UTPA”), The University of Texas at Brownsville
(located in Brownsville, Texas) (“UTB”), and The University of Texas Health Science
Center at San Antonio Regional Academic Health Center (located in Harlingen, Texas,
and Edinburg, Texas) (“RAHC) UTB, UTPA and RAHC have more than 100,000 alumni.
See more information about the University below:
UTB, UTPA & RAHC Alumni
Estimated University Initial Enrollment
Estimated University Initial Faculty & Staff
Anticipated Budget
> 100,000
> 30,000
1,500
$400 million
Enrollment Headcount:
Campus
UTPA
UTB
RAHC-Edinburg
RAHC-Harlingen
MS3-RAHC Based
MS3-Rotational
MS4
Total
(1)
(2)
Fall 2011
19,034
8,625
109
18
81
10
27,768
Fall 2012
19,302
8,146
117
15
76
26
27,565
Fall 2013
20,053
8,612
97
19
64
14
28,762
Fall 2014
21,015
8,047
77
15
50
12
29,139
(1)
(2)
There is no enrollment at RACH campus in Edinburg as it is primarily a research
facility.
The students who rotate at the RAHC campus in Harlingen are enrolled full time at
UTHSCSA. The enrollment counts above reflect a group of students that complete
their 3rd and 4th years of medical school in Harlingen, while another subset of students
conduct a 4-6 week rotation in Harlingen then return to San Antonio.
Medical School Enrollment Projections:
FY 2017 FY 2018 FY 2019
50
100
150
UTRGV Medical School
Additional information regarding enrollment and demographic data is available online for
UTPA at
http://portal.utpa.edu/utpa_main/pres_home/oire_home and for UTB at
http://www.utb.edu/provost/irpe/dmr/Pages/sdata.aspx.
1
Employee FTE:
Full Time
Campus
895
UTB
1,893
UTPA
RHAC
2,788
Total
*Fall 2013 data
** Data as of 1/12/15
Part Time
804
198
1,002
Total
1,699
2,091
45
3,835
*
*
**
UT System has allocated $196 million to support the infrastructure of The University.
Approximately 89% of the student population is Hispanic, reflecting the demographic
characteristics of the region. Approximately 70% of the students are first generation
college students from around the South Texas region.
The University will be one of the first universities of the 21st century in Texas with a fully
integrated medical school within its mission of teaching, research, health care education,
and service. The University will be an institution with a new model of higher education and
a distinctive culture. The University will be the second largest Hispanic serving institution
in the nation, the fourth largest institution in the UT System, and the eighth largest higher
education institution in Texas.
The University is located in the state’s sixth most-populous metropolitan area (McAllenEdinburg-Mission Metropolitan Statistical Area). The Rio Grande Valley is located in the
southernmost tip of Texas and lies along the northern bank of the Rio Grande River, which
separates Mexico from the United States. The Valley is made up of four counties – Starr,
Hidalgo, Willacy, and Cameron – and is one of the fastest growing areas in Texas with an
estimated population of 1,300,000. The Valley has a rich cultural heritage and hosts large
agribusiness, international banking, and ecotourism industries.
The University also has satellite locations in Rio Grande City, McAllen and South Padre
Island’s Coastal Studies Lab. The University’s border location as a gateway for the
Americas to initiate projects infused with global perspectives.
Additional information about The University can be found at this link:
http://www.utsystem.edu/news/topics/project-south-texas
1.2
Objective of this Request for Proposal.
The University desires to lease space on its campuses in Brownsville, Texas
(“Brownsville Campus”) and Edinburg, Texas (“Edinburg Campus”) for the operation
on these campuses of (i) bookstores, and (ii) stores selling school supplies, medical
supplies, clothing, school spirit supplies and other goods of a nature commonly sold at
sundries stores located on institutions of higher education. Such stores are intended to
serve the University Community, and not the general public at large. Through this Request
for Proposal (“RFP”), the University is seeking competitive sealed proposals from qualified
vendors for the lease of space for the installation and operation of a bookstore or sundries
stores on each of the foregoing the campuses.
2
In awarding the leases, the University is willing to consider proposals tailored towards the
needs, potential sales volume and space availability on each respective campus.
Alternate proposals from qualified vendors for delivery of academic materials (i.e.
textbooks) and other goods traditionally sold at a campus bookstore using an e-commerce
solution (“virtual bookstore) will be accepted. The reduced space requirement of a virtual
bookstore may allow for dedication of space for a sundries store instead of the traditional
space needs of a campus bookstore.
The University’s goals in this RFP are to:
•
Select from the persons responding to this RFP one or more qualified Respondents
(hereafter called “Respondent”, whether one or more) that will both provide the
University Community at each campus with the best possible combination of
quality, customer service, and price for the books, goods and services offered by
the Respondent to the University Community at each campus; and maximize the
financial return to the University for the Respondent’s use of locations on the
University’s campuses to operate the stores.
•
University encourages the use of alternate sales and delivery models, including ecommerce models, for books and other goods, particularly to the extent such
business models are efficient in the use of on-campus space and provide goods at
favorable prices to the University community.
•
In connection with co-branded virtual bookstore, University intends to license its
trademarks to the Contractor (ref. Appendix 6. University will provide the
necessary artwork, such as institution logo, and/or the licenses and other
approvals to use such artwork, for development of a virtual bookstore.
University will insert banners on prominent and appropriate pages within the
institutional website so students will be able to conveniently link to the
ordering website.
•
University offers the opportunity for the successful Respondent(s) to integrate with
the University’s online purchasing system, SciQuest, through which University may
make purchases from the successful respondent. For the period covering July
2013 through August 2014, UTPA spent $126,134 with the current contractor.
•
In return for qualified sponsorship recognition as defined in the Internal Revenue
Code and Treasury Regulations, University seeks sponsorship support of the
University that may be in the form of textbook scholarships or financial
sponsorship in support of non-athletic events hosted by the University. Financial
sponsorship is also sought for its Athletics Department. University will enter into a
sponsorship agreement with successful respondent which may include a
qualified sponsorship agreement, a web-site link agreement and a license for use
of University’s trademarks.
•
Enter into an agreement (“Agreement”) with each selected Respondent to lease
the use of space on each Campus for the operation of the store for an initial term
of three (3) years, with the University having the right to renew the Agreement for
up to two (2) additional periods of one (1) year each. The Agreement will, in the
3
sole discretion of the University, be of substantially the form attached as Exhibit
B or a form containing terms and conditions substantially similar to those set forth
in Exhibit B; provided however, that University recognizes that the attached
Agreement contemplates a combined bookstore and sundries store operation, and
that the Agreement will require material revision if the bookstore operations on a
campus are severed from the sundries store.
•
1.3
In accordance with the goals of The University of Texas System, University prefers
that the compensation structure under any agreements resulting from this RFP that
does not include a royalty or rebate directly tied to the sales of Academic Materials
as defined in Section 3.6.1 of Exhibit B.
Location Offered Under this RFP.
The University desires that the stores for each campus be located at the locations
indicated on Exhibit A to this RFP.
UNIVERSITY MAKES NO REPRESENTATIONS AS TO THE SUITABILITY OF ANY OF
THE PROPOSED PREMISES FOR THE RESPONDENT’S PURPOSES.
THE
UNIVERSITY MAKES NO REPRESENTATION OR GUARANTY, WRITTEN OR ORAL,
THAT ANY PARTICULAR VOLUME OR SCOPE OF GOODS AND SERVICES WILL
ACTUALLY BE REQUIRED OR PURCHASED BY THE UNIVERSITY COMMUNITY
FROM ANY OF THE PROPOSED PREMISES. THE UNIVERSITY MAKES NO
REPRESENTATION OR COMMITMENT, WRITTEN OR ORAL, THAT THE UNIVERSITY
WILL USE OR PURCHASE ANY GOODS AND SERVICES FROM ANY OF THE
PROPOSED PREMISES AND NONE SHOULD BE IMPLIED OR ASSUMED.
1.4
Sales History by Category.
1.4.1
UTPA Sales History. UTPA’s gross annual sales by for the last three contract
years for the combined bookstore and sundries store located on the Edinburg
Campus are as set forth below. The University makes no representation as the
volume of future sales any respondent may realize from its operations on the
Edinburg Campus.
4
Sales by Department
Academic Sales
New Text
Used Text
New Text - Rental
Used Text - Rental
Text Rental
Rental Disposal
Digital
Skyo
Sub-Total, Academic Sales
Non-Academic Sales
Clothing
Computer Products
Electronics
Food/Sundries
General
General Medical/Tech/Ref
Gifts/Stat/Cards
Miscellaneous
School/Off/Art/Eng
Services
Supplies
Trade Book
Sub-Total, Non Academic Sales
Grand Total
Year 1
Aug 2011Jul 2012
1,966,601
484,796
369,230
34,415
6,448
2,861,490
143,196
132,761
Year 2
Aug 2012 Jul 2013
1,849,057
376,670
27,266
36,922
390,680
20,844
20,687
4,469
2,726,595
133,757
125,026
8,855
917
Year 3
Aug 2013 Jul 2014
1,456,631
321,024
231,489
165,414
2,174,558
179,535
49,251
29,081
42,002
12,309
310,093
228,637
31,717
842,023
10,851
176,808
23,552
25,950
981
176,950
30,980
714,628
821,724
3,703,513
3,441,223
2,996,282
80,109
225,604
193,703
5,750
Note: Changed contractors April 2013 therefore department categories may
not be consistent. Current contractor offers rentals on entire textbook
inventory.
1.4.2 UTB Sales History. UTB’s gross annual sales by for the last three contract
years for the combined bookstore and sundries store located on the Brownsville Campus
are as set forth below. Effective Fall 2013, Texas Southmost College implemented a
digital content delivery program which resulted in a reduction in sales in Year 3. The
University makes no representation as the volume of future sales any respondent may
realize from its operations on the Brownsville Campus.
5
Sales by Department
Academic Sales
New Textbooks
Used Textbooks
Textbook Rentals
Digital Textbooks
Sub-Total, Academic Sales
Non-Academic Sales
Café & Convenience
Computer Products
Other
School Supplies
Emblematic Clothing & Gifts
Trade Books
Sub-Total, Non Academic Sales
Grand Total
1.5
Year 1
Aug 2011Jul 2012
Year 2
Aug 2012 Jul 2013
Year 3
Aug 2013 Jul 2014
1,024,261
427,015
294,704
7,663
1,753,642
912,286
499,811
232,723
17,377
1,662,195
526,494
200,190
223,355
10,623
960,662
302,289
14,241
75,395
99,513
29,226
520,665
296,489
12,653
67,292
91,415
25,534
493,382
249,192
12,696
39,100
56,484
48,524
25,146
431,142
2,274,307
2,155,577
1,391,805
No Guaranty of Award Under RFP.
The University makes no warranty or guarantee that an award will be made as a result of
this RFP. The University reserves the right to accept or reject any or all proposals, waive
any formalities, procedural requirements, or minor technical inconsistencies, and delete
any requirement or specification from this RFP or the proposed form of Agreement when
the University deems such to be in the University's best interest.
1.6.
EXISTING AGREEMENTS
The University has separate contracts (“Third Party Contracts”) granting various rights
to third parties to sell and/or market services and goods on the Campus. The third parties
and rights are referenced in Section 3.7.1 of EXHIBIT B and summarized below:
1. Beverage Sales. Exclusive beverage vending and sponsorship agreement with
Valley Coca-Cola Bottling Company (“Valley Coca Cola”). The contract will be
assigned to UTRGV and is anticipated to expire on July 15, 2021.
2. Office Supplies. Contracts with Staples and Office Depot/Office Max as nonexclusive on-line vendors for University’s office supply purchase program.
3. Faculty Books. The faculty and staff of the University have the right to publish
and distribute books and academic materials from sites other than the Premises.
6
4. Snack Vending. UTPA has a non-exclusive contract with South Texas Canteen
and UTB has a non-exclusive contract with CV Services for the operation of snack
vending machines on the Campuses. Both contracts expire August 31, 2015 and
will be subject to bid Spring 2015.
5. Food Services. UTPA has a non-exclusive contract with Sodexo Services of
Texas Limited Partnership the sale of retail food products on the Campus that
expires July 16, 2021. UTB has a non-exclusive contract with Delicious Desserts
that expires August 31, 2015. The food service contract with Sodexo will be
assigned to UTRGV.
6. Discounted Microsoft Software. University participates in a System-wide
agreement with other component institutions of The University of Texas System
for purchasing discounted Microsoft® software products. University reserves the
right to determine which software products Licensee will offer for sale in the
University Bookstore and to limit to whom and on what terms such software shall
be made available, so that University may comply with its obligations under any
and all applicable licensing and related agreements. Currently University contracts
with a third party provider to sell discounted Microsoft Software electronically to
students, faculty and staff.
7. University Class Rings. UTPA has granted to Jostens, Inc. (“Jostens”) the
exclusive right to design, manufacture and merchandise the official University
class rings (the “Bronc Ring”). The term of the contract is through April 30, 2016,
with options to renew for two additional two year terms. UTB’s official ring program
is produced by Balfour and is nonexclusive. A bid for an official ring program will
be released Spring 2015 for UTRGV.
8. Athletic Department Merchandise. UTRGV’s Athletic Department reserves the
right to contract, on a non-exclusive basis, with third parties for the sale and
merchandising of Athletic Merchandise (as defined in Section 2.1.5.2 of Appendix
3 of the proposed agreement). Licensee’s right to sell Athletic Merchandise is
subject to the provisions of Section 2.1.5.2 in Appendix 3 of the proposed
Agreement.
9. SciQuest Supplier. UTRGV will be assigned a license with SciQuest’s Higher
Markets® (“SciQuest”) application to enable University departments to purchase
goods and services for use by the departments in connection with their designated
functions. The items so acquired by the University’s departments are not resold
as part of any commercial retail or wholesale operation.
10. Existing Inventory. University requests that the new licensee purchase the
Bookstore inventory then on hand under terms mutually agreeable to Licensee and
the new Licensee.
11. Special Circumstances. Designated bookstore space available at the Brownsville
campus is contingent upon a lease of space by University from Texas Southmost
College (“TSC”). Thecurrent lease expires August 31, 2015.
7
PERSONS DESIRING TO RESPOND TO THIS RFP SHOULD READ ALL THE
INFORMATION CONTAINED IN THIS RFP CAREFULLY AND WITH EACH
PROPOSAL SUBMITTED INCLUDE A COMPLETE RESPONSE TO ALL
REQUIREMENTS OF THIS RFP IN THE MANNER DIRECTED BY THIS RFP.
8
SECTION 2
SIGNIFICANT DATES, UNIVERSITY ADDRESSES, FORMAT
AND PLACE FOR SUBMISSION
2.1
Significant Dates for THIS RFP and Proposals.
The following significant dates and deadlines are applicable to this RFP:
Date of Issuance of RFP
Monday February 16, 2015
Pre-Proposal Conference
To Address Questions about RFP
10:00 a.m. Central Prevailing Time
Monday February 23, 2015
Deadline for Questions/Concerns
concerning this RFP
5:00 p.m. Central Prevailing Time
Wednesday February 25, 2015
Deadline for Submittal of Proposals
in response to this RFP
3:00 p.m. Central Prevailing Time
Monday March 16,2015
Proposal must remain valid for at least:
One Hundred Twenty (120) days after
Deadline for Submittal of Proposals
2.2.1
Pre-Proposal Conference. A Pre-Proposal Conference and walk-through will be
held at the following time and location (ref. Exhibit A - Campus Map and
Proposed Premises):
Time:
10:00 AM Monday February 23, 2015 at 10:00 a.m. Central
Prevailing Time
Location: UNFS 2.108
The Pre-Proposal Conference will also be available via the Internet by clocking on
the following link:
Join WebEx meeting
Meeting Number: 801 751 889
Meeting Password: 4321
Join by phone
US TOLL FREE: +1-855-749-4750
The Pre-Proposal Conference will allow all respondents an opportunity to ask
University’s representatives relevant questions and clarify provisions of this RFP.
A guided tour of the proposed Premises will be included as a part of the conference
agenda. This may be the only opportunity for potential respondents to view the
9
two Premises before the submittal of Proposals.
2.2
University Contact Person for Inquiries Concerning This RFP
2.2.1
University Contact. Respondents must direct all questions, concerns or inquiries
regarding this RFP in writing solely to the following person (“University Contact”)
and no other:
Maggie D. Rangel, Asst. Director Materials Management
The University of Texas Pan-American
Procurement Management
Administration Building Room 103
1201 W. University Drive
Edinburg, TX 78539
Email: [email protected]
Phone: 956-665-2166
Attn: RFP No. 16-MR-02
2.3
2.2.2
Deadline for Inquiries. The University Contact must receive all questions,
inquiries or requests for clarification no later than the Deadline for
Questions/Concerns in Paragraph 2.1, above. All questions, inquiries and
requests for clarification must reference “RFP No.16-MR-02” in the subject line.
The University Contact will have a reasonable amount of time to respond to
questions or concerns. It is the University’s intent to respond to all appropriate
questions and concerns; however, the University reserves the right to decline to
respond to any question or concern.
2.2.3
Revisions to RFP by Addenda. The University reserves the right to revise and
amend this RFP as it deems necessary or desirable to correct errors, clarify
requirements, and/or accomplish the stated objectives of this RFP. In such event,
the University will issue “Addenda to RFP.” Any respondent who desires that a
copy of such Addenda to RFP be sent directly to the respondent must make written
request to the University. Respondent will include in its proposal a completed and
signed copy of the Addenda Checklist attached as Exhibit D to this RFP and
incorporated for all purposes.
Nature and Physical Format of Proposals.
2.3.1
Nature of Proposals. Proposals should provide a straightforward, concise
description of the respondent's ability to meet the requirements and specifications
of this RFP. The emphasis should be on clarity of content and responsiveness to
the requirements and specifications of this RFP.
2.3.2
Physical Format of Proposals.
2.3.2.1
Number of Proposal Copies to Be Submitted. A respondent must
submit six (6) complete and identical copies of its entire proposal. An
original signature by an authorized officer of the respondent must appear
on at least one (1) copy of the submitted response to this RFP. The copy
of the respondent’s RFP bearing an original signature should be marked
“original” on the front cover of the RFP.
10
2.3
2.3.2.2
Page Size, Binders, and Dividers. Proposals must be typed on lettersize (8-1/2” x 11”) paper, and must be submitted in a binder. Preprinted
material should be referenced in the proposal and included as labeled
attachments. Sections within a proposal should be divided by tabs for
ease of reference.
2.3.2.3
Table of Contents. Proposals must include a Table of Contents with
page number references. The Table of Contents must contain sufficient
detail and be organized according to the same format as presented in this
RFP, to allow easy reference to the sections of the proposal as well as to
any separate attachments (which should be identified in the main Table
of Contents). If a respondent includes supplemental information or nonrequired attachments with its proposal, this material should be clearly
identified in the Table of Contents and organized as a separate section
of the proposal.
2.3.3.4
Pagination. All pages of the proposal should be numbered sequentially
in Arabic numerals (1, 2, 3, etc.). Attachments should be numbered or
referenced separately.
Address and Means for Submission of Proposal.
2.3.1
Place and Deadline for Submission of Proposals. The University will accept for
consideration proposals submitted in response to this RFP only until the Deadline
for Submittal of Proposals. To be considered, proposals must be received and
time-stamped by the University at the following location before the Deadline for
Submittal of Proposals:
Maggie D. Rangel
Assistant Director for Material Management
The University of Texas-Rio Grande Valley
Procurement Management
UNFS 1.107
1201 W. University Drive
Edinburg, TX 78539
The University will not under any circumstances consider a proposal that is
received or time-stamped after the Deadline for Submittal of Proposals.
2.3.2
Means of Submission. All proposals must be submitted in a sealed envelope,
box, or container and be delivered to the University office specified in Paragraph
2.3.1. On the outside top surface of the envelope, box or container, there should
be clearly visible:
•
•
The RFP Number of this RFP
The name and the return address of the respondent should be clearly visible.
No Electronic Submission. The University will not accept proposals submitted
by telephone, facsimile transmission, or electronic transmission (e.g., e-mail) in
response to this RFP. Follow-up materials, clarifications, and other submissions
11
following the initial proposal may be submitted electronically with hard-copy sent
as back up, but only with the express permission from the University.
2.4
Return of Proposal. Upon a respondent’s request and at the respondent’s expense, the
University will return to a respondent a proposal received after the Deadline for Submittal
of Proposals if the proposal and return address are properly identified.
2.5
Submittal Checklist.
Respondent is instructed to complete, sign, and return the following documents as a part
of its proposal. All proposals documents that require a signature must be signed by a
representative of the respondent duly authorized to bind the respondent to its proposal. If
respondent fails to complete, sign and return each of the following items with respondent’s
proposal, then University may reject the proposal:
2..5.1 Signed and Completed Addenda Checklist (ref. Exhibit D)
2.5.2
Signed and Completed Execution of Offer (ref. Exhibit E)
2.5.3
Responses to questions and requests for information in Section 5 Required
Proposal Information of this RFP)
2.5.4
Signed and completed originals of the HUB Subcontracting Plan or other
applicable documents (ref. Section 4.6 of this RFP and Exhibit C).
2.5.5
Responses to questions and requests for information in Exhibit F – Sponsorship
Recognition & Guidelines..
2.5.6
Responses to questions and requests for information in Exhibit G - Electronic and
Information Resources Environment Specifications Respondent
2.5.7
Responses to questions and requests for information in Exhibit H - Security
Characteristics and Functionality Of Respondent’s Information Resources.
12
SECTION 3
PROCESS AND CRITERIA FOR SELECTION OF SUCCESSFUL
PROPOSALS
3.1
Nature of Successful Proposals.
A respondent is encouraged to prepare its response to this RFP in such a way as to
demonstrate to the University that by selecting such respondent the University will (i)
achieve the maximum overall revenue to the University consistent with the University’s
policies and regulations; (ii) obtain the best scope and value in the goods and services to
be made available to the University Community at the Respondent’s store; and (iii) have
confidence that the respondent’s management and operational expertise in operating
similar stores promotes the University’s realization of its objectives for this RFP.
3.2
Evaluation of Proposals.
An evaluation team selected by the University will evaluate all proposals of proper format
that are timely submitted in response to this RFP.
University will open the HUB Subcontracting Proposal Envelope (Ref. Paragraph 4.6
below) submitted by a respondent prior to opening the respondent’s proposal in order to
ensure that the respondent has submitted the number of completed and signed originals
of the respondent’s HUB Subcontracting Plan (also called the “HSP”) that are required by
this RFP (ref. Paragraph 4.6 of this RFP.)
The evaluation of the submitted proposals and the selection of the Respondent will be
based on the information provided by the respondents in their respective proposals. The
University reserves the right to give consideration to additional information that comes to
the University’s attention concerning a respondent or proposal if the University deems
such information relevant to a fair evaluation of the proposal(s) submitted in response to
this RFP. The University reserves the right to seek clarification from any respondent
concerning any item contained in its proposal prior to final selection. At the University’s
sole discretion, such clarification may be obtained through telephone conference, personal
meeting, electronically, or via written communication.
University will use commercially reasonable efforts to avoid public disclosure of the
contents of a proposal prior to selection of the Respondent.
3.2.1
Subsequent Oral Presentations. After completion of the initial review and
evaluation of the submitted proposals, the University may in its sole discretion
invite one or more selected respondents to participate in oral presentations
concerning their respective proposals.
3.2.2
Negotiations with Select Respondents. At the University's sole option and
discretion, the University may discuss and negotiate all elements of the proposals
submitted by one or more selected respondents whose proposals are within a
competitive range determined by the University.
3.2.3
Revisions of Proposals. After submission of a proposal but before the final
selection of the successful proposal is made, the University may select one or more
13
respondents to revise their respective proposals in order to obtain the best and
final offers of such respondents. In that event, representations made by a
respondent in its revised proposal, including price, scope and consideration
quotes, will be binding on the respondent. The University will provide each selected
respondent within the competitive range with an equal opportunity for discussion
and revision of its proposal.
3.3
3.2.4
Determination of Successful Respondent. The University may make the
selection of the successful proposal on the basis of the proposals initially
submitted, without discussion, clarification or modification. In the alternative,
University may make the selection of the successful proposal on the basis of
negotiation with any of the respondents. The University is not obligated to select
the respondent offering the most attractive economic terms if that person’s
proposal is not the most advantageous to the University overall, as determined by
the University. The University will maintain in its files concerning this RFP a written
record of the basis upon which a selection, if any, is made by the University.
3.2.5
Rejection of Proposals. The University reserves the right to (i) enter into an
Agreement for all or any portion of the requirements and specifications set forth in
this RFP; (ii) reject any and all proposals and re-solicit proposals; or (iii) reject any
and all proposals and temporarily or permanently abandon this selection process,
as the University deems to be in the best interests of the University.
Description of Criteria for Selection of Respondent.
The following criteria will be considered by the University in evaluating proposals and
selecting the successful proposal(s):
3.3.1
Threshold Criteria Not Scored.
3.3.1.1
Ability of University to comply with laws regarding Historically
Underutilized Businesses;
3.3.1.2
Ability of University to comply with laws regarding purchases from
persons with disabilities.
3.3.1.3
Ability of University to comply with all applicable laws pertaining to the
University’s operation and function as a Texas state agency and public
institution of higher education.
3.3.2. Other Criteria. Other criteria that the University will use in the evaluation of
responses to this RFP include, in no particular order:
3.3.2.1
The respondent’s reputation and demonstration of its competence,
experience and prior success operating bookstores in environments
similar to the University’s campuses.
3.3.2.2
The respondent’s demonstration of its capacity in terms of financial
resources to lease, finish-out, install, stock and operate the stores in
conformity with the terms of the Agreement.
14
3.3.2.3
The respondent's past relationship (if any) with the University and the
other institutions of The University of Texas System.
3.3.2.4
The quality, variety and cost of the books and the other goods and
services respondent offers to University and the University Community.
3.3.2.5
The total long-term cost and revenue and other consideration (monetary
and/or non-monetary) the respondent will provide to the University if the
respondent is selected, including the nature and scope of the
compensation that the respondent proposes to pay to the University in
consideration of using the Premises, related parking and access rights,
and utilities and for the right to operate the store.
3.3.2.6
The consistency and compatibility of the respondent’s proposal with the
University’s plans and business needs.
3.3.2.7
The extent to which respondent’s proposed operations meet the
University’s needs.
3.3.2.8
The total sponsorship benefit respondent offers to the University.
3.3.2.9
The respondent’s exceptions to the terms and conditions set forth in
the Agreement of this RFP.
3.3.2.10 The respondent’s clear description of and proposed scope of
respondent’s goods and services, and the manner in which those goods
and services are to be delivered to the University community.
15
SECTION 4
GENERAL TERMS AND CONDITIONS
4.1
Compliance with RFP Requirements.
Proposals submitted in response to this RFP must comply with all the requirements,
specifications and conditions described in this RFP and provide all information expressly
required under the terms of this RFP.
4.2
Inconsistencies in the RFP.
If there is a conflict or inconsistency among the provisions of this RFP, the provision
minimizing University’s obligations or increasing the respondent’s obligations or requiring
respondent to supply the better quality or greater quantity of the books, goods and services
will prevail.
4.3
Proposal Validity Period.
Each proposal must state that it will remain valid for the University’s acceptance for a
minimum of one hundred twenty (120) days after the Deadline for Submittal of
Proposals, to allow time for evaluation, selection, and any unforeseen delays in
University’s review of the proposal.
4.4
Premises.
The proposed location for each of the campus stores offered under this RFP is described
on the Exhibit A - Campus Map and Proposed Premises. The premises at each
location will each be delivered to the Respondent in “as is, where is” condition, save and
except as otherwise expressly provided in Section 1.2 of the Agreement.
4.5
Terms of the Agreement.
The proposed terms and conditions for the transaction contemplated by this RFP for (i)
occupancy and use of the Premises for the purpose of selling the books, goods and
services; (ii) the potential purchase by University of any items offered by Respondent at a
store; and (iii) sponsorship of University by respondent; are set out in the Agreement.
4.6
4.5.1
Revisions to Agreement. The terms and provisions of the Agreement are not
subject to substantial change, but specific terms and provisions of the Agreement
may be negotiated to address specific issues raised by the respondent in its
proposal. The University may consider the respondent’s requested changes as
part of evaluating the respondent’s proposal. The University, in its sole discretion,
may determine to accept or reject any or all requested changes to the Agreement.
4.5.2
Extensive Revisions to Agreement. In addition to considering requests for
changes in the evaluation of respondent’s proposal, requests for extensive or
substantial changes to the terms and conditions of the Agreement may result in
disqualification of the respondent’s proposal as being non-responsive to this RFP.
Historically Underutilized Business Plan.
16
4.7
4.6.1
All agencies of the State of Texas are required to make a good faith effort to assist
historically underutilized businesses (each a “HUB”) in receiving contract awards.
The goal of the HUB program is to promote full and equal business opportunity for
all businesses in contracting with state agencies. Pursuant to the HUB program, if
under the terms of any agreement or contractual arrangement resulting from this
RFP, Respondent subcontracts any of the Services, then Respondent must make
a good faith effort to utilize HUBs certified by the Procurement and Support
Services Division of the Texas Comptroller of Public Accounts. Proposals that fail
to comply with the requirements contained in this Paragraph 4.6.1 will constitute
a material failure to comply with advertised specifications and will be rejected by
University as non-responsive. Additionally, compliance with good faith effort
guidelines is a condition precedent to awarding any agreement or contractual
arrangement resulting from this RFP. Respondent acknowledges that, if selected
by University, its obligation to make a good faith effort to utilize HUBs when
subcontracting any of the Services will continue throughout the term of all
agreements and contractual arrangements resulting from this RFP. Furthermore,
any subcontracting of the Services by the respondent is subject to review by
University to ensure compliance with the HUB program.
4.6.2
University has reviewed this RFP in accordance with Title 34, Texas Administrative
Code, Section 20.13 (a), and has determined that subcontracting opportunities are
probable under this RFP. Therefore, a HUB Subcontracting Plan (“HSP”) is
required as part of respondent’s proposal. The HSP will be developed and
administered in accordance with University’s Policy on Utilization of Historically
Underutilized Businesses attached as Exhibit C and incorporated for all purposes.
Respondent’s Limited Exclusive Rights.
The successful respondent will, subject to the terms and provisions of the Agreement, be
awarded the exclusive right and obligation to operate a store of the nature awarded,
subject, however, to already existing exclusive rights granted to third parties, which are
described in Section 3.6.1 of the Agreement.
4.8
Modification and Resubmission of Proposal Prior to Deadline for Submittal of
Proposals.
No proposal may be changed, amended, or modified after it has been submitted to the
University, except in accordance with Paragraph 3.2.3. However, a proposal may be
withdrawn in its entirety and an alternative or modified proposal may be resubmitted by
the respondent at any time prior to the Deadline for Submittal of Proposals. No proposal
may be withdrawn after the Deadline for Submittal of Proposals without the University’s
written consent, which consent will be based on the respondent's submittal of a written
explanation and documentation evidencing a reason acceptable to the University, in the
University’s sole discretion.
4.9
Effect of Submission of Proposal.
By signing and submitting a proposal in response to this RFP, the respondent warrants,
agrees and stipulates that:
17
4.9.1
Representations and Warranties. The representations and warranties made by
a respondent within its proposal are binding on the respondent, except as
otherwise agreed in writing by the University.
4.9.2
Respondent’s Responsibility for Costs. Each respondent is solely responsible
for all costs relating to its preparing and submitting a response to this RFP. A
respondent submits its proposal at its own risk and expense.
4.9.3
Proposal Not Contingent. The respondent certifies that the submission of a
proposal is the respondent's good faith intent to enter into the Agreement with the
University if the respondent’s proposal is selected and that such intent is not
contingent upon the University's acceptance or execution of any terms, conditions,
or other documents not expressly attached to or referenced in the respondent’s
proposal.
4.9.4
Property of the University. The proposal and any other information submitted by
respondent in response to this RFP become the property of the University.
4.9.5
No Conflicts with Applicable Law or RFP. The respondent certifies that any
terms, conditions, or documents attached to or referenced in its proposal are
applicable to this RFP only to the extent that they do not (i) conflict with the laws
of the State of Texas or this RFP; and (ii) place any requirements on the University
that are not set forth in this RFP.
4.9.6
Solicitation, Not a Contract. Respondent acknowledges and agrees that (i) this
RFP is a solicitation for a proposal and is not a contract or an offer to contract; and
(ii) the submission of a proposal by the respondent in response to this RFP will not
create a contract between the University and the respondent.
4.9.7
No Compensation for Consideration of Proposal. The respondent has not
given or offered to give, nor does the respondent intend to give at any time
hereafter, any economic opportunity, future employment, gift, loan, gratuity, special
discount, trip, favor or service to a public servant in connection with its submitted
proposal.
4.9.8
Business and Family Contacts. That (i) no relationship, whether by blood,
marriage, business association, capital funding agreement or by any other such
kinship or connection, exists between (a) on the one hand, the equity owner(s) of
the respondent if the respondent is a sole proprietorship, the officers or directors
of the respondent if the respondent is a corporation, the partners of the respondent
if the respondent is a partnership, the joint venturers of the respondent if the
respondent is a joint venture, or the members or managers of the respondent if the
respondent is a limited liability company, and (b) on the other hand, an employee
of any component institution of The University of Texas System; save and except
for those relationships that have been previously disclosed to University in writing;
(ii) the respondent has not been an employee of any component institution of The
University of Texas System within the immediate twelve (12) months prior to the
Deadline for Submittal of Proposals; and (iii) no person who, in the past four (4)
years served as an executive of a state agency was involved with or has any
interest in the respondent’s proposal or any contract resulting from this RFP. (See
18
Texas Government Code Section 669.003)
4.10
Proposals as Public Information Under the Texas Public Information Act.
By signing and submitting a proposal in response to this RFP, the respondent agrees and
stipulates that the respondent has been notified that the University strictly adheres to all
statutes, court decisions and the opinions of the Texas Attorney General with respect to
disclosure of public information. The University may, but is not required to, seek to protect
from disclosure all information submitted in response to this RFP until such time as a final
Agreement under this RFP is executed. Upon execution of a final Agreement, University
will consider all information, documentation, and other materials submitted by a
respondent in response to this RFP to be of a non-confidential and non-proprietary nature
and therefore subject to public disclosure under the Texas Public Information Act (Texas
Government Code, Chapter 552.001, et seq.). The University will endeavor in good faith
to notify a respondent of a request for disclosure of public information that implicates the
respondent’s proposal to this RFP, in order that the respondent, at its sole cost and
expense, might have the opportunity to raise any objections to disclosure to the Texas
Attorney General. Persons submitting proposals in response to this RFP are advised that
certain information contained in a proposal may be protected from release under Texas
Government Code §§552.101, 552.110, 552.113, and 552.131.
4.11
Signed and Authorized Proposal.
Proposals submitted by a respondent must be signed by a representative of the
respondent duly authorized to bind the respondent to its proposal.
4.12
Rejection of Non-Conforming Proposals.
By signing and submitting a proposal in response to this RFP, the respondent
acknowledges and agrees that the University, at its sole discretion, reserves the right to
reject any proposals that (i) are unclear, or difficult to understand; (ii) do not conform to
the format and organization specified in this RFP; (iii) are qualified with conditional
clauses; (iv) contain material irregularities of any kind; (v) fail to provide all of the
information required of the respondent by this RFP; or (vi) fail to follow or comply with any
other requirements of this RFP.
4.13
Broker’s Fees.
No claim for fees or commissions payable to a real estate or business broker will be paid
by the University in connection with this RFP. BY SIGNING AND SUBMITTING A
PROPOSAL IN RESPONSE TO THIS RFP, A RESPONDENT AGREES TO INDEMNIFY
THE UNIVERSITY FROM AND AGAINST ALL LIABILITIES, CLAIMS AND COSTS
(INCLUDING, WITHOUT LIMITATION, COSTS OF DEFENSES, COURT COSTS AND
ATTORNEYS FEES) PERTAINING TO FEES OR COMMISSIONS CLAIMED BY OR
PAYABLE TO A REAL ESTATE OR BUSINESS BROKER IN CONNECTION WITH THIS
RFP THAT ARISE BY, THROUGH OR UNDER THE RESPONDENT.
RESPONDENT AGREES TO DEFEND (WITH COUNSEL APPROVED BY THE
UNIVERSITY), INDEMNIFY, AND HOLD HARMLESS THE UNIVERSITY OF TEXAS –
RIO GRANDE VALLEY, THE UNIVERSITY OF TEXAS SYSTEM, AND THEIR
RESPECTIVE REGENTS, OFFICERS, AGENTS AND EMPLOYEES FROM AND
19
AGAINST ALL ACTIONS, SUITS, DEMANDS, COSTS, DAMAGES, LIABILITIES AND
OTHER CLAIMS OF ANY NATURE, KIND OR DESCRIPTION (INCLUDING, WITHOUT
LIMITATION, ALL REASONABLE ATTORNEYS FEES, COURT COSTS AND COSTS OF
DEFENSE INCURRED IN INVESTIGATING, DEFENDING OR SETTLING ANY OF THE
FOREGOING) ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM ANY
NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT OF THE
RESPONDENT OR ANY AGENT, EMPLOYEE, SUBRESPONDENT, OR SUPPLIER OF
THE RESPONDENT IN THE EXECUTION OR PERFORMANCE OF ANY CONTRACT
OR AGREEMENT RESULTING FROM THIS RFP.
4.14
Certifications. By signing and submitting a proposal in response to this RFP, the
respondent certifies and warrants to the University that (i) no compensation has been
received by the respondent from The University or The University of Texas System for the
respondent’s participation in the preparation of the requirements or specifications for this
RFP; and (ii) the respondent has not directly or indirectly communicated the whole or any
part of respondent’s proposal to another person that engages in the collegiate bookstore
business and has submitted, intends to submit, or will consider submitting a proposal in
response to this RFP.
20
SECTION 5
REQUIRED PROPOSAL INFORMATION
5.1
Required Information in Proposals.
NOTICE: WITH FEW EXCEPTIONS, INDIVIDUALS ARE ENTITLED ON REQUEST TO
BE INFORMED ABOUT THE INFORMATION THAT GOVERNMENTAL BODIES OF THE
STATE OF TEXAS COLLECT ABOUT SUCH INDIVIDUALS. UNDER SECTIONS
552.021 AND 552.023, GOVERNMENT CODE, INDIVIDUALS ARE ENTITLED TO
RECEIVE AND REVIEW SUCH INFORMATION. UNDER SECTION 559.004,
GOVERNMENT CODE, INDIVIDUALS ARE ENTITLED TO HAVE GOVERNMENTAL
BODIES OF THE STATE OF TEXAS CORRECT INFORMATION ABOUT SUCH
INDIVIDUALS THAT IS INCORRECT.
Proposals must include substantive responses to all of the questions set forth in this
Section 5. In preparing its proposal, the respondent should (i) address the matters
requested of respondent in this Section 5 in the order presented below; and (ii) begin
each response by setting out both the applicable matter number and the specific wording
of the request for information being addressed. In cases where a respondent believes
that a request for information does not apply or the respondent is unable to respond to the
request, the respondent must indicate in reasonable detail why the request is not
applicable or will not be responded to.
5.1.1
Scope and Method of Services. Describe the scope and method of services to
be provided by respondent. Please check all boxes that may apply; if the grid
provided in this Section fail to describe respondent’s proposed scope and methods
of services, please describe respondent’s intended scope and methods or expand
the grid as necessary. Respondent
21
BOOKS/ACADEMIC MATERIALS
E-commerce with delivery to
on-campus lockers
E-commerce with delivery to
on-campus fulfillment center
E-commerce with delivery to
on-campus store
UTRGV CAMPUS
Edinburg Harlingen Brownsville
Other*
Stocked in store with no Ecommerce presence
SUNDRIES/SPIRIT GOODS
E-commerce with delivery to
on-campus lockers
E-commerce with delivery to
on-campus fulfillment center
E-commerce with delivery to
on-campus store
Stocked in store with no Ecommerce presence
Food Service
Café or other food/beverage
service on-site
*Other Satellite campus locations: McAllen Teaching Site (distance 10 miles from Edinburg campus), Rio
Grande City (distance 61 miles from Edinburg campus),
5.1.2
Identity Information. Provide the following information:
•
•
•
•
•
•
•
•
•
Legal name of the proposed Respondent and relationship with the respondent
if not the same entity
Assumed name (if any) under which Respondent would operate the Bookstore
State of Respondent’s incorporation or formation, if Respondent is an entity
If Respondent is an entity, its state charter or formation number
Address of respondent’s and if different, Respondent’s principal place of
business
Address of Respondent’s office that would be providing service under the
Agreement
Number of years respondent, and if different, Respondent has operated in the
collegiate bookstore business
Approximate number of Respondent’s employees, including approximate
number of employees in Texas and in the Lower Rio Grande Valley
Approximate number of bookstores operated by Respondent,, including
approximate number of bookstores operated in Texas, and the number
operated in the Lower Rio Grande Valley
22
•
•
•
Respondent’s annual revenues from its bookstore operations for Respondent’s
three prior fiscal years
Name of Respondent’s parent company (if any) NOTE: If Respondent is a
subsidiary, University prefers to enter into a contract or agreement with the
Parent Corporation or to receive assurances of performance from the Parent
Corporation.
Name and Social Security Number for each person having at least 25%
ownership interest in respondent. This disclosure is mandatory pursuant to
Section 231.006, Family Code, and will be used for the purpose of determining
whether an owner of respondent with an ownership interest of at least 25% is
more than 30 days delinquent in paying child support. Further disclosure of this
information is governed by the Texas Public Information Act, Chapter 552,
Government Code, and other applicable law.
5.1.3. Transition Plan.
5.1.3.1.
Transition Plan. Describe respondent’s transition plan for assuming
operation of the existing store operations and each significant phase in the
respondent’s plan for ensuring a smooth transition from the current store
Respondent to the Respondent.
5.1.3.2.
Edinburg Current Book Inventory.
Describe and confirm
respondent’s plan and agreement to acquire the current bookstore Respondent’s
(Nebraska Book Company, Inc.) existing saleable inventory, including but not
limited (1) Inventory (new, used, rental textbooks, trade and paperback books,
technical and reference books, non-book merchandise) pursuant to Section 16 of
Appendix 3 of the proposed Agreement.
5.1.3.3.
Brownsville Current Book Inventory.
Describe and confirm
respondent’s plan and agreement to acquire the current bookstore Respondent’s
(Barnes & Noble at the Brownsville Campus) existing saleable inventory, including
but not limited (1) Inventory (new, used, rental textbooks, trade and paperback
books, technical and reference books, non-book merchandise) pursuant to
Section 16 of Appendix 3 of the proposed Agreement.
5.1.3.4.
Furniture and Fixtures. Describe or list which of the existing
furnishings and fixtures owned by University and located in the store premises that
the respondent would desire to use in its operations. Such description or list need
not be the same for each store location.
5.1.4
Time Frame. Describe the time period(s) in which the respondent proposes
complete each significant phase described in its answer to Paragraph 5.1.3.
5.1.5
Financial Consideration.
5.1.5.1.
Capital Contribution. University is interested in contracting with an
Respondent that has the financial strength to pay University an
attractive monetary consideration for the License, contribute capital
improvement dollars (“Capital Contribution”) to support facility
improvements of the Premises for the Bookstore, while maintaining
sufficient working capital to fund its operations.
23
5.1.5.2.
Base Fee. Describe the annual amount of the “Base Fee” (including
any escalations) respondent would pay University under the Agreement
for the use of the campus store premises and/or the opportunity to
serve the University community.
5.1.5.3
Royalty. Describe the annual amount or formula for calculating the
amount of the “Royalty” respondent would pay to University under the
Agreement. Please review the proposed form of Agreement attached
as Exhibit B to this RFP for a definition of “Academic Materials” for
which, as a matter of policy, University may not receive variable rentals
or royalty.
5.1.5.4
Utilities. The University has contracted for utilities for the Premises.
Confirm that respondent will reimburse University for the actual cost of
those utilities.
% Chg
FY 2013 FY 2014 from PY
UTPA
41,608
5.31%
39,509
UTB
#DIV/0!
Total
39,509
41,608
5.31%
Monthly Avg
3,292
3,467
5.31%
5.1.5.5.
(Intentionally left blank).
5.1.5.6.
Book Buybacks. Describe whether, as an additional service to the
University’s students, the respondent would conduct book buybacks in
areas on each Campus other than the Premises designated by
University, and/or at the University’s remote campuses in Starr County
or the McAllen Teaching Site.
5.1.5.7.
Sign-On Bonus. Describe any sign-on bonus or cash contributions the
respondent would pay University upon execution of the agreement.
5.1.5.8.
Sponsorship Payments. Describe the annual sponsorship payment
that the respondent will make available to University as additional
consideration in exchange for the qualified sponsorship recognition as
defined in the Internal Revenue Code and Treasury Regulations.
Examples of qualified sponsorship recognition are listed in Exhibit F to
this RFP). Sponsorship consideration may include scholarships, nonathletic sponsorship and athletic sponsorship.
A sample list of high profile, large attendance non-athletic events is
listed below.
24
Event *
Campus
Brownsville
Halloween Havoc
Orange Crush
Brownsville
Charro Days/Mr Amigo Days
Brownsville
Student Involvement Fair
Brownsville
Brownsville
Magnolia Grand Ball
MLK Day of Service
Brownsville
Breakfast Bonanza
Brownsville
Finals Week Program
Brownsville
Edinburg
Carnival of the Great Pumpkin
Welcome Week
Edinburg
Spirit Week
Edinburg
Bucky’s Block Party
Edinburg
Homecoming
Edinburg
Midnight Breakfast (Fall/Spr)
Edinburg
Edinburg
Distinguished Speaker Series
Edinburg
Bronc Round Up
House Cup Challenge
Edinburg
Edinburg
Parent/Child Day Picnic
*(Name or event subject to change with UTRGV)
Est. Attendance
400-500
800-1000
300-600
250-350/semester
800-100
850-900
350-400
100+ per day (500+)
4,000
5,000
4,500
1,500
4,000
800/semester
4,000
2,800
600
400
Examples of qualified sponsorship recognition that University may
provide to Sponsor is more particularly described below and in EXHIBIT
F to this RFP:
25
Sponsorship
Type
Location
Non-Athletic
Non-Athletic
Athletic
Athletic
Athletic
Description
To be determined
Two (2) 15-second
Sponsorship Recognition
announcements over the
public address system
during mutually agreed
upon Non-Athletic Events
To be determined
One (1) 5'x8' Sponsor
Recognition banner with
Sponsor name and logo
hung in prominent location
during Non - Athletic event
Athletic Facility
Two (2) 15-second
Sponsorship Recognition
announcements over the
public address system
during home Athletic
Events
Athletic Facility
One (1) Sponsorship
Recognition panel, in the
largest size made
available to other
sponsors, (not exceeding
4 ft x 2 ft) on Athletic
Facility press row “center
court panel.”
Athletic Facility
Two (2) Sponsorship
Recognition signs, one (1)
on the east side wall and
one (1) on the west side
wall of the Athletic Facility
Athletic
N/A
Athletic
N/A
Two (2) 15-second
Sponsorship Recognition
announcements on the
University’s radio
broadcast of each home
athletic event, conditioned
on University’s execution
of a radio broadcast or
network contract for
basketball or baseball
during the Term of this
Agreement
One (1) full page
Sponsorship Recognition
item in each home
basketball game program
26
Sponsorship
Type
Athletic
Athletic
Athletic
Location
Description
N/A
Sponsor’s company logo
posted on University’s
Athletic Department
website
Edinburg Baseball Stadium
One (1) 15-second
Sponsorship Recognition
announcement using
Sponsor’s name and logo
on the Edinburg Baseball
Stadium video board for
each home baseball game
Edinburg Baseball Stadium
One Sponsorship
Recognition item using
Sponsor’s company logo
in the game program for
each home baseball event
5.1.5.9.
E-commerce Fee. Describe consideration offered to University for ecommerce models such as a pay per click fee, percentage of
transaction or cost per sale.
5.1.5.10.
Intentionally deleted.
5.1.5.11.
Other Consideration.
Describe any other consideration the
respondent would pay to University under the Agreement.
5.1.5.12
Discounts. Respondent must provide a detailed list of all categories
of product offered to University with the associated Manufacturer’s
Suggested Retail Price (“MSRP”) and any discount offered to University
on purchase for University use as follows. If respondent offers goods
and academic materials on an e-commerce website that competes with
the University specific website, please indicate if the price of goods and
materials offered through the University specific website will be the
same or different.
27
Product
Description
Discount for Product
List Promotional
Product Offerings
% Discount (Respondent should specify any Athletic
or other Products that Operator will
provide to University at no charge)
%
%
%
%
%
%
%
%
%
Other Product Consideration:
(Please specify)
%
%
%
5.1.5.13
Credit for Additional respondent Products. During each
Contract Year, respondent will provide the University with the ability
to order additional respondent Products at no charge up to the retail
value listed below contingent upon the conditions in Section 6.1.
Promotional Merchandise Allotment
Suggested Retail Price
$_____________
5.1.6
Revisions to Agreement. Describe in reasonable detail the modifications the
respondent requests to the terms and provisions of the Agreement. (The exact
language of proposed changes need not be provided, but reasonable detail must
be provided.) [Ref. Paragraph 4.5]
5.1.7
Site Improvements.
5.1.7.1. Desired Improvements. Describe in detail any improvements, the type
of space, and any other necessary utilities, loading facilities, common
area facilities, access, or services the respondent requires or desires for
its proposed operation of the Bookstore in the Space as described in
Exhibit A to this RFP. If the respondent recommends a different size or
configuration for the Premises, please so indicate in the proposal.
5.1.7.2. Renovations to Site.
The University recognizes that unique
improvements may be required by the respondent to conduct operations
within the Premises. Describe all such improvements or modifications
28
that the respondent believes necessary for the operation of its Bookstore
in each of the Initial Space and the Premises, as described Exhibit A to
this RFP.
5.1.8
Security Issues. Describe how security issues (both physical security and
electronic security) will be addressed for its operation of the Bookstore in the
Premises.
5.1.9
Financial Reporting. Describe the financial reporting, POS and inventory tracking
system the respondent will use in its Bookstore operation on the University’s
Campuses. Please confirm that this system can generate periodic sales reports,
and that this system is compatible with University’s campus (declining balance)
card program.
5.1.10 Comparable Operations. Briefly describe up to three comparable projects that
the respondent has completed in the last three (3) years or are currently under
development that demonstrate the respondent’s ability to complete the objectives
of this RFP.
5.1.11 Access to Information by Individuals with Disabilities Indicate whether the
respondent will consent to include in the Agreement the following “Access by
Individuals with Disabilities” language:
Access to Information by Individuals with Disabilities. respondent
represents and warrants (“EIR Accessibility Warranty”) that the electronic
and information resources and all associated information, documentation,
and support that it provides to University under this Agreement (collectively,
the “EIRs”) comply with the applicable requirements set forth in Title 1,
Chapter 213, Texas Administrative Code, and Title 1, Chapter 206, Rule
§206.70 of the Texas Administrative Code (as authorized by Chapter 2054,
Subchapter M, Government Code.) To the extent respondent becomes
aware that the EIRs, or any portion thereof, do not comply with the EIR
Accessibility Warranty, then respondent represents and warrants that it will,
at no cost to University, either (i) perform all necessary remediation to make
the EIRs satisfy the EIR Accessibility Warranty or (ii) replace the EIRs with
new EIRs that satisfy the EIR Accessibility Warranty. In the event that
respondent fails or is unable to do so, then University may terminate this
Agreement and respondent will refund to University all amounts University
has paid under this Agreement within thirty (30) days after the termination
date.
If the respondent objects to the inclusion of the “Access to Information by
Individuals with Disabilities” language in the Agreement, the respondent must, as
part of its proposal, specifically identify and describe in detail all of the reasons for
the respondent’s objection. A GENERAL OBJECTION IS NOT AN ACCEPTABLE
RESPONSE TO THIS QUESTION.
5.1.12 Financial Rating. Submit with the response the current financial rating of the
respondent or any related documentation (such as a Dunn and Bradstreet
analysis) that indicates the financial stability of the respondent.
29
5.1.13 Pending Acquisitions Involving Respondent. Indicate whether the respondent
is currently for sale or involved in any transaction to expand or to become acquired
by another business entity. If yes, the respondent must explain the expected
impact, both in organizational and directional terms.
5.1.14 Litigation Report. Describe the details of all past or pending litigation or claims
filed against the respondent that would affect its performance under the Agreement
with the University (if any).
5.1.15 Landlord and/or Higher Ed References. Submit a landlord reference list of no
less than three (3) organizations with which the respondent currently has contracts
and/or to which the respondent has previously operated a bookstore (within the
past five (5) years) of a type and scope similar to that required by this RFP. The
respondent must include in its landlord reference list the landlord’s company name,
contact person, telephone number, project description, length of business
relationship, and background of bookstore or sundry/spirit store operations
provided by the respondent. If the respondent operates a bookstore facility at
another institution affiliated with The University of Texas System, please list the
institution(s). No more than two of the references requested above may be at other
institutions within The University of Texas System. References that are served in
the same manner that respondent proposes to service University are encouraged.
5.1.16 Personnel
5.1.16.1 Resumes. Submit summary resumes for its proposed key personnel
who will be providing services under the Agreement with University,
including their specific experiences with similar service projects, and
number of years of employment with the respondent.
5.1.16.2 Staffing. If relevant, provide on-campus staffing levels, including, job
titles and responsibilities, and qualifications. Include staffing levels for
both peak and off-peak periods, for each bookstore location.
5.1.16.3 Manager History. Submit a list of institutions or business that may have
requested the proposed on-site manager’s removal within the last five (5)
years of the RFP return date. An explanation stating the reason for
removal shall accompany each contract listed.
5.1.16.4 Training Programs. Provide a written outline describing the training
program that respondent intends to use for the staff of the store, including
any of University’s students that may work there.
5.1.17 Disaster Recovery Plans. Indicate whether the respondent has a contingency
plan or disaster recovery plan in the event of major casualty or natural disaster
affecting the store. If so, submit a copy of the plan.
5.1.18 Anticipated Issues. Describe any difficulties the respondent anticipates in
performing its duties under the Agreement with University and how the respondent
plans to manage these difficulties.
5.1.19 Required Operational Assistance. Describe any assistance the respondent will
30
require from University in performing the Agreement.
5.1.20 Other Information. Provide any other information that the respondent considers
relevant to the University’s evaluation of the respondent’s response to this RFP.
5.1.21 Virtual Store. Describe the respondent’s plans and timeline for implementation of
a virtual store/website. Proposal should include but not be limited to:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
faculty textbook adoptions
reservation and/or sale of textbooks
sale of course materials and merchandise
describe University’s role or resources needed for respondent to
provide such service
specify if the respondent will collaborate with external entities to
provide such service
specify if other services and/or external entities will be solicited
specify method and controls that will be implemented to ensure
University pricing is not greater than that which is offered to the
general public or on the Respondent’s primary website.
5.1.22
Technology Devices. Respondent shall submit a plan and timeline if there is
intent to sell hardware, software, peripherals, cell phones, and other
technology devices. Include the financial considerations associated with this
proposal. Such plans shall at a minimum describe the type and brands of
goods, and a description of the proposed pricing of these goods, both to
University’s students and to others.
5.1.23
Electronic/Digital Materials. University is interested in proposals addressing
the growing demand for electronic/digital content of academic material. The
program should strive to be as affordable and effective a method of content
delivery for students as is possible.
5.1.23.1
Online/Interactive Programs. Describe any program that
enhances online and interactive teaching and learning programs of
University’s faculty and the steps the respondent would take to
promote the same.
5.1.23.2
Comparative Costs. Provide average cost in comparison to new
book, used book and rental book pricing.
5.1.23.3
Timeline. Provide timeline for execution and any resources
required from University to successfully implement.
5.1.23.4
Blackboard. Describe approach for implementation of the program
will be mandatory, optional and/or phase in approach. University
uses Blackboard as its learning peripheral. The respondent’s
program must be able to interface with Blackboard.
5.1.23.5
University Assistance. Describe what University resources (if any)
are required to implement this program.
31
5.1.23.6
Future Plans. What future plans does the respondent have for
further development of electronic/digital content to students at
affordable and competitive pricing?
5.1.23.7
Online System. Respondent must include web links or screen
shots of respondent’s online ordering system for other higher
education institutions.
5.1.24 Electronic and Information Resources. In its proposal, respondent must
respond to each item listed in Exhibit G - Electronic and Information Resources
(“EIR”) Environment Specifications to this RFP. Exhibit G will establish
specifications, representations, warranties and agreements related to the EIR that
respondent is offering to provide to The University. Responses to Appendix One
will be incorporated into the Agreement and will be binding on respondent.
5.1.25 Security Characteristics. In its proposal, respondent must respond to each item
listed in Exhibit H, Security Characteristics and Functionality of respondent’s
Information Resources. Exhibit H will establish specifications, representations,
warranties and agreements related to the EIR that respondent is offering to provide
to The University. Responses to Exhibit H will be incorporated into the Agreement
and will be binding on respondent.
5.1.26 Conservation and Sustainability Initiatives. Describe environmental
conservation and sustainability initiatives or programs respondent will implement
with respect to the Bookstore and report on a quarterly basis for submittal to
University’s Sustainability Committee.
Data must have quantitative
measurements.
5.2
Net Payment Terms. Respondent must affirmatively confirm that it is aware of and
agrees that University’s payment terms for the procurement of goods and services from
respondent are “Net 30 days.”
Respondent must indicate below the prompt payment discount that respondent will
provide to University:
Prompt Payment Discount: _____%_____days/net 30 days
32
EXHIBIT A TO RFP
CAMPUS MAPS AND PREMISES
A.
EDINBURG CAMPUS MAP. Electronic copy available online at:
http://www.utpa.edu/maps/ (website subject to change). An excerpt of the Edinburg
Campus Map indicating the locations is provided below.
Recap of Space:
Sales Floor
Shipping/Receiving
Office
Office
Office
Total
4,813
1,069
123
82
82
6,169
33
The Edinburg Campus store consists of approximately 6,169 gross square feet of space on
the first floor of the Library (building #22 on the Edinburg Campus Map). The space has
access to a service/loading area, but a dock is not available. Adjacent to the premises, the
University opened a Jazzman’s Café. The retail concept offers a variety of hot and cold
sandwiches, pastries, coffees with indoor and outdoor seating available. The venue is
operated and managed by the University’s food service Respondent, Sodexo.
B. Brownsville Campus Map. Electronic copy available online at:
http://www.utb.edu/Documents/maps/UTB_Campus_Map.pdf (website subject to
change). An excerpt of the Brownsville Campus Map indicating the location is provided
below.
34
The Brownsville Campus store consists of approximately 15,811 gross square feet of space
(building #15 on the Brownsville Campus Map). The space has access to a service/loading area
and a dock is available. Included in the space is a Starbucks Cafe operated by the current
bookstore contractor Barnes and Noble. The retail concept offers a variety of hot and cold
sandwiches, pastries, coffees with indoor and outdoor seating available.
35
EXHIBIT B TO RFP
FORM OF AGREEMENT
CAMPUS STORE AGREEMENT
This Campus Store Agreement ("Agreement") is entered into effective as of ______,
201__ ("Effective Date"), by and between the BOARD OF REGENTS OF THE UNIVERSITY OF
TEXAS SYSTEM FOR THE USE AND BENEFIT OF THE UNIVERSITY OF TEXAS RIO
GRANDE VALLEY (“University”), and
("Lessee"), a
having its principal place of business located at
and having federal tax identification number
.
RECITALS
The Board of Regents of The University of Texas System is the governing body of The
University of Texas System and is an agency of the State of Texas.
The University of Texas Rio Grande Valley is an institution of higher education of the State
of Texas that is part of The University of Texas System.
The University operates college campuses located at 1201 W. University Drive in the city
of Edinburg, Hidalgo County, Texas, ________________ in the City of Brownsville, Cameron
County, Texas and ______________ (“Campus”, jointly and severally) desires to arrange for the
operation of a store on the Campus for the purpose of ________________ to enhance the
Campus for the benefit of the University’s students, faculty, employees and staff (“Campus
Community”).
The University believes that the efficient operation of a ___ store on the Campus serving
the Campus Community would support the mission of the University.
Lessee is in the business of operating __________ and desires to open and operate a
bookstore on the Campus, on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the covenants and agreements
set forth below, the legal sufficiency and receipt of which is acknowledged by each of the parties,
the University and Lessee agree as follows:
ARTICLE 1 – GRANT
1.1
LICENSE TO USE SPACE. On the terms and conditions set forth in this Agreement, the
University hereby grants to Lessee for the Term described in Section 2.1 of Article 2 in this
Agreement a lease to occupy and use the following space(s) (collectively, the “Premises”) for the
Permitted Use described in Section 3.1 of Article 3 in this Agreement, below:
(i)
Insert description
36
(ii)
Insert description
all as further described on Appendix 1 attached hereto. Lessee is further granted a non-exclusive
license for ingress and egress to the Premises through the building containing the Premises
(“Building”) and over and across the roadways and sidewalks of the Campus, to the extent
reasonably necessary for Lessee’s performance of its obligations under this Agreement; provided
that such use by Lessee shall not interfere with the University’s operations in the Building or on
the Campus. Lessee shall have no right of access to any other buildings or facilities on the
Campus except as expressly provided in the Agreement.
1.1.1 Keys and Access Cards. The University shall issue Lessee ___ sets of keys
and/or access cards (“Keys”) to the Premises. Lessee shall control and restrict the distribution
of Keys to its personnel and employees. The University shall retain a master set of Keys for
emergency use. Should any of the Lessee’s employees lose assigned Keys or jeopardize the
security of the Premises or any other University facility in any other way, Lessee shall reimburse
the University for all costs to re-key the Premises and/or secure such other University facilities
whose security was jeopardized by Lessee’s employees.
1.1.2 Identification of Persons. Lessee agrees that the University has the right to (i)
require identification from any person on the Campus; (ii) refuse entry to persons having no
legitimate business on the Campus; and (iii) eject from the Campus any undesirable person refusing
to leave peaceably on request. Lessee will cooperate with all authorized University agents and
representatives in the exercise of the University’s rights described in this section
1.2
CONDITION OF PREMISES ON MOVE-IN. The Premises shall be delivered to Lessee
in “as is, where is” condition without warranty or representation of any kind or nature, express or
implied, except as expressly provided to the contrary in this Agreement. Without limitation of the
foregoing, the University makes no warranty or representation of any kind of the suitability of the
Premises for the Lessee’s Permitted Use.
1.3
RIGHT TO RELOCATE LESSEE. The University shall have the right at any time and from
time to time during the Term of this Agreement to substitute other space (“Substitute Premises”)
located in the Building or elsewhere on the Campus for the whole or any part of the Premises, so
long as such Substitute Premises are of substantially equal utility to Lessee for the Permitted Use.
The University shall give Lessee not less than 120 days prior written notice of the proposed
effective date of any relocation of Lessee to Substitute Premises. If the University exercises this
relocation right, the University will be responsible for the cost of (i) finishing out the Substitute
Premises to a level comparable to the condition of the Premises immediately prior to the
relocation; (ii) Lessee’s actual and reasonable out-of-pocket expenses for moving Lessee’s
personal property and removable fixtures to the Substitute Premises; (iii) Lessee’s actual and
reasonable out-of-pocket expenses for transferring Lessee’s telecommunications and telephone
services to the Substitute Premises; and (iv) if applicable, up to a maximum of $1,500 for Lessee’s
actual and reasonable costs of changing its stationary and other printed forms utilizing the former
address of the Premises. Lessee’s use and occupancy of the Substitute Premises shall be upon
all of the covenants, terms and conditions of this Agreement.
ARTICLE 2 - TERM
2.1
TERM. The initial term of this Agreement (“Initial Term”) will be for a period of ten years,
beginning on ___________, 201__ (“Commencement Date”) and expiring on _____________,
201__, unless sooner terminated or extended in accordance with the provisions of this
37
Agreement. (As used in this Agreement, “Term” shall mean collectively the Initial Term and all
Extension Terms properly exercised hereunder.)
2.1.1 Option to Extend Initial Term. Lessee, with the written prior consent of the
University, may extend the Initial Term of this Agreement for up to ___ additional renewal periods
("Extension Term") of ___ year__ each. Lessee must request each such extension by written
notice given to the University not less than 180 days prior to the expiration of the then current
Initial Term or Extension Term, as applicable. The University shall give Lessee written notice of
whether the University agrees to such extension within 30 days of receipt of Lessee’s request;
provided that the University’s failure to timely respond to such request shall be deemed a denial
of such request. Lessee’s use and occupancy of the Premises during an Extension Term shall
be upon all of the covenants, terms and conditions of this Agreement, save and except that Rent
shall be adjusted in the following manner: ______________.
2.1.2 Right of Early Termination. In addition to the right to terminate this Agreement
in the event of a default by the other party, either party may, at any time during the Term of this
Agreement, elect to terminate the Agreement without cause upon not less than 180 days prior
written notice to the other party. In the event that the University exercises the right to terminate
under this Section within the first five (5) years of the Commencement Date, Lessee shall be
entitled to receive from the University within thirty days after the effective date of such termination
a reimbursement payment in an amount equal to lesser of (i) the unamortized balance of Lessee’s
documented cost of the permitted permanent improvements to the Premises paid by Lessee (as
amortized on a straight-line basis beginning on the Commencement Date and over a ____-year
useful life), or (ii) $_________.
2.1.3 Transition Period. Lessee agrees if the Agreement is terminated for any reason,
then at the sole option of University, University may upon written notice to Lessee initiate a posttermination transition period (“Transition Period”) until a new qualified and experienced
bookstore operator or University is able to provide the Goods and Services (as defined in
Appendix 3 attached hereto); provided that such Transition Period shall not last for a period
longer than four months from the effective date of termination. During such Transition Period,
Lessee shall deemed to have entered into a month to month lease of the Premises for the
Permitted Use on the same terms and conditions as set forth in this Agreement, at the Rent last
in effect under this Agreement, save and except that Lessee shall have (i) no right or option to
extend the Transition Period, and (ii) none of the exclusive rights granted Lessee under Section
3.6 of this Agreement.
2.1.4 Transition Upon Expiration of Term. On any termination, expiration or nonrenewal of this Agreement, University shall, in the Request for Proposal or other procurement for
the issuance of a new store contract, request that the new lessee purchase the bookstore
inventory then on hand under terms mutually agreeable to Lessee and the new Lessee.
2.2
DELIVERY OF PREMISES. The University shall give Lessee access to the Premises on
the Commencement Date, subject to casualty, inclement weather or other matters beyond the
reasonable control of the University. In the event that the University is unable to give Lessee
access to the Premises on or before the 15th day after the Commencement Date, Lessee, as its
sole remedy at law or in equity for such delay, may terminate this Agreement by giving written
notice thereof to the University at any time prior to Lessee being given access to the Premises.
This provision will be modified if there is a staggered commencement date for different
portions of the Premises.
38
2.3
OWNERSHIP OF ALTERATIONS AND FIXTURES. Immediately upon installation in the
Premises, all permanent fixtures and improvements to the Premises will automatically become
the property of the University, free and clear of all liens and claims of Lessee or third parties,
unless the University disclaims such in written notice to Lessee and/or requires Lessee to remove
the same from the Premises and Campus at Lessee’s sole cost and expense upon the expiration
or sooner termination of this Agreement.
2.4
REMOVAL OF PROPERTY AT END OF TERM. Lessee shall retain ownership of all
personal property and trade fixtures that Lessee has installed or placed in the Premises during
the Term, except as otherwise expressly provided in this Agreement. Lessee agrees that on or
before the expiration or sooner termination of this Agreement, Lessee must (i) remove Lessee's
personal property and trade fixtures from the Premises and the Campus; (ii) repair any damage
to the Premises, the Building or the Campus caused by such removal; and (iii) peaceably deliver
up the Premises clean and (subject to the casualty damage provisions of Section 6.12 of this
Agreement) in good order, repair and condition, ordinary wear and tear excepted.
2.5
FAILURE TO REMOVE PROPERTY AT END OF TERM. In the event that Lessee fails
to timely remove its personal property and trade fixtures from the Premises and such failure
continues for a period of thirty days immediately following the expiration or sooner termination of
the Term, then with respect to all personal property and/or trade fixtures of Lessee then remaining
in the Premises, the University may, in its sole discretion and without liability or compensation of
any kind or nature to Lessee, (i) take title and ownership to the whole or any part of such personal
property and/or trade fixtures; (ii) remove and store off-site, at the expense and account of Lessee,
the whole or any part such personal property and/or trade fixtures; or (iii) destroy, sell for its own
account, or otherwise dispose of the whole or any part of such personal property and/or trade
fixtures.
ARTICLE 3 – USE OF THE PREMISES
3.1
PERMITTED USE. Lessee shall use the Premises solely for the following purposes
(“Permitted Use”): the operation of a full-service campus store_ (“Campus Store”) providing the
Goods and Services (as defined in Appendix 3) in accordance with the terms and provisions of
this Agreement.
3.2
CONTINUOUS OPERATION.
Except as otherwise expressly permitted in this
Agreement, Lessee shall continuously occupy and use the Premises for the Permitted Use
throughout the Term of this Agreement.
3.3
NAME OF LESSEE OPERATION. The specific trade name under which Lessee will
operate its business in the Premises will be “____________” or such other trade name designated
by University from time to time. Such trade name may not be modified or changed without the
prior written consent of University. Unless approved in writing in advance by the University,
Lessee will have no signage and use no advertising on the Campus that identifies Lessee’s
company name or uses Lessee’s company logo.
3.4
OPERATIONAL REQUIREMENTS. Lessee will be responsible for all costs of equipping,
furnishing, operating, maintaining, and staffing its business operations in the Premises, except as
specifically provided to the contrary in this Agreement. Lessee agrees to comply with the
operational requirements set out in Appendix 3 attached hereto in Lessee’s use of the Premises.
3.5
NO WARRANTY OF SALES OR REVENUES. The University makes no warranties,
39
representations, or guarantees of any kind or nature, either express or implied, that Lessee will
obtain any level of sales or revenues as a result of its Permitted Use of the Premises under this
Agreement.
3.6
RIGHTS GRANTED TO LESSEE. This section will be modified to address the each
particular portion of the Premises in question.
3.6.1 Exclusive Campus Rights. To the extent authorized by the Constitution and laws
of the State of Texas, and except as otherwise expressly provided to the contrary or limited by
the terms and conditions of this Agreement, University agrees that during the Term of this
Agreement, University will not grant to any person other than Lessee the right to:
(i)
operate a physical _____store on University’s Campus;
(ii)
offer Academic Materials for sale from a physical location on the Campus.
For purposes of this Agreement, “Academic Materials” shall mean any and all printed, digital,
compiled or computer-generated educational materials, including books, whether sold or rented,
that a student is required or recommended to use in connection with an educational course offered
by University on the Campus;
(iii)
offer University-licensed clothing and merchandise for sale from a physical
location on the Campus;
(iv)
have an internet page and/or link in the public area of University’s official
website (www.utpa.edu; subject to change) for the purposes of (1) electronically connecting to a
bookstore; or (2) offering to sell Academic Materials; or
(v)
use physical locations on the Campus for the purpose of purchasing used
textbooks and instructional materials; provided that such right is not intended to prohibit the sale
of used textbooks and instructional materials on Campus by students, student groups, faculty
and/or staff of the University.
(vi)
sell or rent University graduation regalia and graduation products (including
without limitation, graduation regalia, customized invitations and announcements, and diploma
frames) from a physical location on the Campus or through a link in the public area of University’s
website.
3.6.2 Scope of Exclusive Rights. The University and Lessee agree that Lessee’s
exclusive rights under this Agreement are expressly limited to those items specifically stated
above in Section 3.6.1 and that the covenants of University in Section 3.6.1 may be modified by
University as its deems reasonable or necessary to conform to any changes in Applicable Law
(as defined below in Section 5.5.1 of this Agreement) during the Term. The University and Lessee
further agree that notwithstanding any other provision of this Agreement to the contrary, Lessee’s
exclusive rights granted in Section 3.6.1 shall not be construed or deemed to prohibit the sale or
distribution on the Campus of the following by the University or persons other than Lessee:
(i)
Merchandise and apparel pertaining to a particular program or event on the
Campus sponsored or authorized by the University;
(ii)
food and drink;
40
(iii)
newspapers and magazines;
(iv)
goods or services sold or offered elsewhere on the Campus by University
departments, student organizations, or through other existing contract
arrangements;
(v)
any textbooks or other educational materials exchanged through
University-sanctioned student exchange programs;
(vi)
any textbooks or other type of educational materials related to the
University’s English Language Institute programs;
(vii)
textbooks or other type of educational materials related to educational
courses offered by University under any community education programs or
retraining programs sponsored by any private donor, private charitable
entity, or any governmental entity; and
(viii)
electronic/digital teaching materials and programs available from sources
other than the Lessee (such as, by way of example and not in limitation,
Apple’s iBooks, Courseload, and other publishers offering digital content
programs) that are used or required by University’s faculty, staff and/or
students in connection with the University’s educational mission.
3.6.3 University-Licensed Products. Subject to the limitations set forth in Section 3.7
of this Agreement, User is granted the non-exclusive right to sell University-licensed products
through the Campus Store website, if any; provided that User shall only sell trademarked
University-licensed products approved by the Strategic Marketing Affiliates (“SMA”), any
successor to SMA identified by The University of Texas Office of Trademark Licensing (“OTL”),
or a vendor properly licensed by SMA or approved in writing by OTL. User shall comply with
current contracted and administrative arrangements with the SMA and OTL. Lessee is further
granted the non-exclusive right to offer merchandise as set forth in this Agreement through
electronic commerce (including hyper-links to alternate sites). Lessee shall not sell or offer for
sale computer software provided through The University of Texas System or any of its member
institutions through other exclusive agreements except in accordance with such agreements.
3.7
THIRD PARTY RIGHTS. Lessee agrees that at all times during the Term Lessee shall
not market or sell Goods and Services from the Premises in any manner that would conflict with
any contractual rights to sell the services and goods on the Campus that the University has
previously granted or in the future grants to persons other than Lessee; provided that the
University agrees that the University (i) shall give the Lessee reasonable written notice of any
Third Party Contract (as defined below in Section 3.7.1 immediately below) entered into after the
Effective Date hereof; and (ii) shall not during the Term enter into any contracts with third parties
that would breach the University’s covenants in Section 3.6.1, above. In the event of any question
concerning any exclusive rights granted to Lessee hereunder and any other person in privity with
the University, the University has the sole authority to resolve such questions in such manner as
the University deems fair and equitable under the circumstances, and the University’s
determination and decision thereon will be final and conclusive.
3.7.1 Notice of Existing Third Party Rights. The University advises Lessee that the
University has by separate contracts (“Third Party Contracts”) granted various rights to third
41
parties to sell and/or market services and goods on the Campus. Upon the reasonable prior
written request of Lessee, the University shall make copies of such Third Party Contracts available
for Lessee’s inspection and copying. Lessee acknowledges, stipulates and agrees that Lessee
is solely responsible for apprizing itself of the limitations on Lessee’s operations in the Premises
now or hereafter arising during the Term under all such Third Party Contracts. Lessee further
warrants, represents and agrees that as of the Effective Date hereof (i) Lessee has had full
opportunity to request and inspect the currently existing Third Party Contracts; and (ii) Lessee
understands the limitations on Lessee’s operations on the Premises that arise from the currently
existing Third Party Contracts.
The following will be revised as appropriate in light of the specific campus locations
covered by this agreement.
3.7.7.1 Beverage Sales. Lessee may sell non-alcoholic beverages in the
Premises, subject to the terms and conditions of the University’s beverage contract (the “CocaCola Contract”) with Valley Coca-Cola Bottling Company (“Valley Coca Cola”) relating to the
dispensing, sale, advertising and promotion of beverages at the Edinburg campus of University.
The Coca Cola Contract, which will expire on July 15, 2021, provides (i) exclusive beverage
vending and pouring rights on the Campus; and (ii) that if Lessee desires to offer any beverage
products for sale in the portion of the Premises located on the Edinburg campus, Lessee must
purchase Coca Cola products from Valley Coca Cola. The University grants to the Lessee the
right, if Lessee chooses to offer beverage products for sale on the portion of the Premises located
on the Edinburg campus, to purchase Coca Cola products using the contract concessionaire
pricing available through the University’s contract with Valley Coca Cola or through Lessee’s own
direct contract with Valley Coca Cola, if such exists.
3.7.1.2 Office Supplies. University currently has contracts with Staples Office
Depot/Office Max as non-exclusive on-line vendor for University’s office supply purchase program
on the portion of the Premises located on the Edinburg campus. Lessee agrees not to operate an
online or catalog office supply program in competition with such vendors, but Lessee may sell
general office supplies on the Premises as part of Lessee’s retail operations. This restriction
against Lessee’s operation of an online or catalog office supply program does not apply to the
sale of office supplies bearing University Marks.
3.7.1.3 Faculty Books. The faculty and staff of the University have the right to
publish and distribute books and academic materials from sites other than the Premises.
3.7.1.4 Snack Vending. University currently contracts with South Texas
Canteen for the operation of snack vending machines on the portion of the Premises located on
the Edinburg campus. The contract has a term in effect until June 30, 2013, and has been
extended through August 31, 2015. Under the contract, South Texas Canteen has the nonexclusive right to sell on said campus from vending machines (i) snacks (such as, by way of
example and not in limitation, chips, cookies, and candies); (ii) hot chocolate and coffee; and (iii)
ice cream products from vending machines. The contract would not prohibit Lessee from selling
pre-packaged “grab and go” snack products on the Premises, so long as such sales are not done
through vending machines. The portion of the Premises located on the Brownsville campus is
under contract with CV Services for snack vending services. This contract will expire on August
31, 2015. This contract will be put back out to bid Spring 2015 with an anticipated effective date
of July 15, 2015. This section is subject to change prior to execution of this agreement.
3.7.1.5 Food Services. The University has contracted with Sodexo Services of
Texas Limited Partnership for the non-exclusive sale of retail food products on the portion of the
Premises located on the Edinburg campus. The contracted services include board for dormitories
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on the Campus, the operation of a convenience-type grocery outlet in the University’s Student
Union Building, and other retail, catering, concessions and conference plans. The contract has a
term in effect until July 15, 2021. Lessee may contract with Sodexo for the right to sell test
booklets and forms (such as blue-books and scan-tron forms) to Sodexo, for re-sale in the Student
Union convenience store on Campus operated by Sodexo. The portion of the Premises located
on the Brownsville campus is subject to a non-exclusive contract with Delicious Desserts. This
contract will expire on August 31, 2015. The University is considering assigning the food service
contract to UTRGV pending a proposal from Sodexo. This section is subject to change prior to
execution of this agreement.
3.7.1.6 Discounted Microsoft Software.
University participates in a
System-wide agreement with other component institutions of The University of Texas System for
purchasing discounted Microsoft® software products. University reserves the right to determine
which software products Lessee will offer for sale in the University Bookstore and to limit to whom
and on what terms such software shall be made available, so that University may comply with its
obligations under any and all applicable licensing and related agreements. Lessee shall ensure
that prices for computer software in the University Bookstore will not be greater than prices
received from manufacturers under their various higher education pricing options, including the
System-wide agreement concerning Microsoft® software products. Currently a third party vendor
provides discounted Microsoft software to students, faculty and staff via electronic download.
3.7.1.7 University Class Rings. University has granted to Jostens, Inc.
(“Jostens”) the exclusive right to design, manufacture and merchandise the official University
class rings (the “Class Ring”) on the Edinburg campus. The term of the contract is through April
30, 2016, with options to renew for two additional two year terms. Pursuant to such contract with
Jostens, Jostens has the right to market and sell such Class Rings online and in the University’s
Campus bookstore. On or before the commencement of the Term, Lessee must negotiate and
enter into a written agreement of form and substance mutually acceptable to Jostens and Lessee
setting forth the terms, conditions, and consideration on which (i) Jostens and Lessee will market
and sell Class Rings in the Premises; and (ii) provide on Lessee’s Virtual Campus Store (as
described in Section 12 of Appendix 3) a web link to the website maintained by Jostens. Lessee
shall provide a true and correct copy of such agreement with Jostens and all subsequent
amendments thereto (if any) to University within ten business days of the execution of each such
agreement and amendment thereto. The official ring program at the Brownsville campus is
provided by Balfour. A bid will be released for selection of an official ring provider for UTRGV.
This section is subject to change prior to execution of this agreement.
3.7.1.8 Athletic Department Merchandise. University’s Athletic Department
reserves the right to contract, on a non-exclusive basis, with third parties for the sale and
merchandising of Athletic Merchandise (as defined in Section 2.1.5.2 of Appendix 3). Lessee
right to sell Athletic Merchandise is subject to the provisions of Section 2.1.5.2 in Appendix 3.
3.7.1.9 SciQuest Supplier. The University entered into a license with SciQuest’s
HigherMarkets® (“SciQuest”) application to enable University’s academic departments to
purchase goods (including, without limitation, t-shirts labeled with a department’s name or other
University Mark) for use by the departments in connection with their academic functions for
UTRGV. The items so acquired by the University’s departments are not resold as part of any
commercial retail or wholesale operation.
3.8
RESTRICTION ON COMPETITION. Lessee acknowledges that Lessee's monetary
contribution to the University, in the form of fees and charges payable by Lessee hereunder and
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Lessee’s general contribution to the vitality of the University’s Campus (also important in the
University's determination to execute this Agreement with Lessee), will be substantially reduced
if during the Term of this Agreement, either Lessee or any person, firm or corporation, directly or
indirectly controlling, controlled by or under common control with Lessee shall directly or indirectly
operate, manage, conduct or have any interest in any competing establishment within a two mile
radius of the perimeter boundaries of the University’s Campus during the Term of this Agreement
and for one year following the termination or expiration of this Agreement. The term "competing"
as used herein shall mean the offering for retail sale of the Goods and Services, including but not
limited to the Academic materials, and warranty and technical support services pertaining to the
same. This Section shall survive the expiration or sooner termination of this Agreement.
ARTICLE 4 – CONSIDERATION FOR USE OF PREMISES
4.1
RENT. As consideration for the grant of this License, Lessee covenants and agrees to
pay the University the sum of the Base Fee, Royalty and Other Fees (“collectively, the “Rent”), in
accordance with the terms and provisions of this Agreement and as more particularly described
in Appendix 4. All payments payable by Lessee to the University under this Agreement are herein
collectively called “Rent.”
4.2
PLACE FOR PAYMENT OF RENT. All payments of Rent shall be made payable to The
University of Texas – Rio Grande Valley and shall be delivered to the following address:
Payment & Collections
1201 W. University Drive
Edinburg, TX 78539
4.3
DEFAULT INTEREST. Any amount owing by Lessee to the University under this
Agreement that is not paid when due shall bear interest at the rate of 18% per annum (“Default
Rate”) from the date due until the date paid; provided that if such Default Rate exceeds the
maximum rate of interest allowed under applicable Texas and federal law with respect to
transactions of the nature of this Agreement, the Default Rate shall be automatically reduced to
the maximum interest rate permitted under such law.
ARTICLE 5 – COMPLIANCE WITH LAW AND REGULATIONS
5.1
LAWS, RULES AND REGULATIONS.
5.1.1 Applicable Law. In its use and occupancy of the Premises, Lessee and its
employees, agents, customers and invitees must comply with all applicable local, state and
federal laws, statutes, ordinances, rules and regulations (collectively, “Applicable Law”),
including without limitation all applicable laws and regulations related to (i) the employment of
personnel; (ii) accessibility of the Premises to persons with disabilities (including, without
limitation, the Americans with Disabilities Act and the Texas Architectural Barriers Act); and (iii)
applicable fire and safety codes, including without limitation the rules and regulations of the State
Fire Marshal. Lessee must not allow or permit any unlawful activities to occur in the Premises.
Without limiting the foregoing, Lessee shall comply with all requirements of Subchapter C,
Chapter 2252, Texas Government Code, as it may be amended from time to time, including but
not limited to the delivery to University of (i) a financial statement at the time of contracting
prepared by a certified public accountant; (ii) annual payment statements derived from Lessee’s
sales tax reports and certified by a certified public accountant licensed in Texas; and (iii) a
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performance bond at the time of contracting that has been issued by a surety authorized to do
business in Texas, as more particularly specified in Section 12 of this Agreement.
5.1.2 Required Permits and Licenses. In the event there are any authorizations,
licenses or permits required by any governmental agency or authority with respect to Lessee’s
Permitted Use or occupancy of the Premises, Lessee must, at its sole expense, obtain such
authorizations, licenses and/or permits.
5.1.3 University Rules and Regulations. In its use and occupancy of the Premises,
Lessee and its employees, agents, customers and invitees must comply with the Rules and
Regulations of the Board of Regents of The University of Texas System, the Administrative
Policies of The University of Texas System, and the rules and regulations and policies of the
University, as they all may be amended from time to time (collectively, “Rules and Regulations”).
The Rules and Regulations of the Board of Regents of The University of Texas System are found
at http://www.utsystem.edu/bor/rules.htm; (ii) the Administrative Policies of The University of
Texas System are found at http://www.utsystem.edu/bor/procedures/policy/; and (iii) the rules and
regulations and policies of The University of Texas Pan-American are found at
______________________. [Note: To be completed prior to execution.]
5.2
UNIVERSITY RECORDS. Lessee acknowledges that under this Agreement, Lessee may
create, receive from or on behalf of the University, or have access to, the records or record
systems (collectively, “University Records”). Among other things, the University Records may
contain social security numbers, credit card numbers, or data protected or made confidential or
sensitive by applicable federal, state and local, laws, regulations, and ordinances, including the
Gramm-Leach-Bliley Act (Public Law No: 106-102) and the Family Educational Rights and Privacy
Act, 20 U.S.C. §1232g (“FERPA”).
5.2.1 FERPA Designation. If the University Records are subject to FERPA, (i) the
University designates Lessee as a University official with a legitimate educational interest in the
University Records, and (ii) Lessee acknowledges that its improper disclosure or redisclosure of
personally identifiable information from the University Records will result in Lessee’s exclusion
from eligibility to contract with the University for at least five years.
5.2.2 Security of University Records. Lessee represents, warrants and agrees that it
will (i) hold the University Records in strict confidence and will not use or disclose the University
Records except as (a) permitted or required by this Agreement, (b) required by law, or (c)
otherwise authorized by the University in writing; (ii) safeguard the University Records according
to reasonable administrative, physical and technical standards (such as standards established by
the National Institute of Standards and Technology, the Center for Internet Security, and the
Payment Card Industry Data Security Standards) that are no less rigorous than the standards by
which Lessee protects its own confidential information; (iii) continually monitor its operations and
take any action necessary to assure that the University Records are safeguarded and the
confidentiality of the University Records is maintained in accordance with all applicable federal,
state and local, laws, regulations, and ordinances, including FERPA and the Gramm-Leach Bliley
Act, and the terms of this Agreement; and (iv) comply with the University’s rules, policies, and
procedures regarding access to and use of the University’s computer systems. At the request of
the University, Lessee agrees to provide the University with a written summary of the procedures
Lessee uses to safeguard and maintain the confidentiality of the University Records.
5.2.3 Notice of Impermissible Use. If an impermissible use or disclosure of any
University Records occurs, Lessee will provide written notice to the University within one (1)
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business day after Lessee’s discovery of that use or disclosure. Lessee will promptly provide the
University with all information requested by the University regarding the impermissible use or
disclosure.
5.2.4 Return of University Records. Lessee agrees that within thirty days after the
expiration or termination of this Agreement, for any reason, all University Records created or
received from or on behalf of the University will be (i) returned to the University, with no copies
retained by Lessee; or (ii) if return is not feasible, destroyed. Twenty days before destruction of
any University Records, Lessee will provide the University with written notice of Lessee’s intent
to destroy the University Records. Within five days after destruction, Lessee will confirm to the
University in writing the destruction of University Records.
5.2.5 Disclosure. If Lessee discloses any University Records to a subcontractor or
agent, Lessee will require the subcontractor or agent to comply with the same restrictions and
obligations as are imposed on Lessee by this Section.
5.2.6 Termination. In addition to any other termination rights set forth in this Agreement
and any other rights at law or equity, if the University reasonably determines that Lessee has
breached any of the restrictions or obligations set forth in this Section, the University may
immediately terminate this Agreement without notice or opportunity to cure.
5.2.7 Duration. The restrictions and obligations under this Section will survive expiration
or termination of this Agreement for any reason.
5.3
CLERY ACT. The Jeanne Clery Disclosure of Campus Security Policy and Campus
Crime Statistics Act, 20 U.S.C. §1092(f) (as amended from time to time, the “Clery Act”) imposes
a legal duty on the University to disclose to its Campus community and to the U.S. Department of
Education timely and annual information about certain incidents that occur on its campus and at
certain off-campus, non-campus, and public property locations. These incidents include: (i)
murder; (ii) sex offenses, forcible or non-forcible; (iii) robbery; (iv) aggravated assault; (v) burglary;
(vi) motor vehicle theft; (vii) manslaughter; (viii) arson; (ix) arrests or persons referred for campus
disciplinary action for liquor law violations, drug-related violations, and weapons possession; (x)
all incidents described in the foregoing clauses (i) through (viii) in which the victim is intentionally
selected because of his/her actual or perceived race, gender, religion, sexual orientation,
ethnicity, or disability; and (xi) larceny-theft, simple assault, intimidation; destruction, damage, or
vandalism of property, and other crimes involving bodily injury to any person, in which the victim
is intentionally selected because of his/her actual or perceived race, gender, religion, sexual
orientation, ethnicity, or disability. Lessee agrees to assist the University in fulfilling these duties
by providing to the University information about all such crimes that become known to Lessee and
that occur at the Premises or in the Building during the Term. Lessee will report this information
to the University by giving notice in accordance with the terms of this Agreement as soon as
practical after Lessee learns of this information.
5.4
TEXAS PUBLIC INFORMATION ACT. Lessee is hereby notified that both this Agreement
and the information provided by Lessee to the University pursuant to this Agreement are subject
to disclosure under applicable law concerning the confidentiality of public records, including
without limitation the Texas Public Information Act, Chapter 552 of the Texas Government Code.
5.5
HIPAA. The parties understand and agree that University is a licensed health care
provider who is required to comply with state and federal privacy laws as to University’s patients,
including the Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Part
46
160 and Subparts A and E of Part 164 and all amendments thereto (commonly known as the
“Privacy Standards”), as promulgated by the U.S. Department of Health and Human Services
pursuant to the Administrative Simplification provisions of the Health Insurance Portability and
Accountability Act of 1996 and all amendments thereto (“HIPAA”). In the event that in its use of
the Leased Premises for the Permitted Use, University creates, stores or maintains “protected
health information” (“PHI”) as that term is defined by 45 CFR §160.103 in the Leased Premises,
the parties agree that nothing in this Agreement gives Lessee or Lessee’s employees and agents
any right to access, use or disclose PHI; and that Lessee and its employees shall never need or
seek access to, or the use of, any PHI of University. However, in the event PHI is accessed
(whether inadvertently or otherwise) by Lessee or its employees or agents, the party discovering
such disclosure shall promptly notify the other party and Lessee agrees to promptly take
commercially reasonable measures to prevent any subsequent dissemination by Lessee or
Lessee’s employees or agents of such PHI to third parties.
The parties agree that the provisions of this Section 5.5 do not create, and are not intended to
create, a “business associate” relationship between the parties as that term is defined by the
Privacy Standards. This Section 5.5 shall be interpreted to ensure that, to the extent possible,
University and Lessee remain in compliance with HIPAA and all other state and federal privacy
laws. To the extent that any other provision of this Lease can be read to provide Lessee with any
right to access PHI, this section shall govern.
5.5
NOTICE OF INVESTIGATION. Unless specifically prohibited by Applicable Law, within
three business days of Lessee becoming aware of any governmental investigations, audits,
requests or other actions (whether civil or criminal in nature and regardless of whether directly
applicable to Lessee’s performance under this Agreement) that will or may potentially affect
Lessee’s continued ability to perform its duties and obligations under this Agreement, Lessee
shall give written notice thereof (including a reasonable description of the circumstances and
issues in question) to the University.
5.6
CORRECTION OF VIOLATIONS. Notwithstanding any provisions in this Agreement to
the contrary, if Lessee violates Applicable Law or the Rules and Regulations, Lessee shall
immediately cure any and all violations and immediately pay any and all costs, fines and/or
penalties attributable to all such violation(s). If Lessee fails to cure said violation(s), the University
may, at its sole discretion and in addition to any other remedy provided for default by Lessee
hereunder, cure the violation(s) and be reimbursed by Lessee upon demand for the reasonable
costs of such cure. The University's election to cure one or more of such violations shall not in
any way relieve Lessee of paying any and all costs, fines, and/or penalties attributable to any
such violation.
ARTICLE 6 - GENERAL TERMS AND COVENANTS
6.1
CONTROL OF PREMISES. Lessee shall at all times during its use and occupancy of the
Premises provide adequate supervision and maintain adequate control of its employees, agents,
customers and invitees. Lessee shall immediately remove from the Premises and the Campus
any employee University finds unacceptable for any reason or no reason. Subject to the
provisions of Article 7 of this Agreement, Lessee may provide its own security services and
devices for the Premises.
6.2
NO WASTE. Lessee must not (i) harm or waste the Premises or the Building; or (ii) allow
or create on the Premises any use or nuisance that is offensive to persons or detrimental to the
reputation of the University, as determined by the University in its sole discretion.
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6.3
SERVICES TO THE PREMISES
6.3.1 University Responsibilities: The University will provide, at the University’s cost
and expense (save and except to the extent such costs and expenses arise from the negligence
or misconduct of Lessee, in which event Lessee must pay for the same), the following services to
the Premises:
The following will be revised as appropriate for each site
(i)
Maintenance of the HVAC, electrical mechanical and plumbing systems
servicing the Premises;
(ii)
Building standard utilities in reasonable amounts for the Permitted Use;
(iii)
Maintenance of the Building and its electrical and mechanical systems;
(iv)
Pest control services; and
(v)
Telephone and telecommunication lines to the perimeter of the Premises.
University shall additionally install telecommunication lines and services within the Premises as
reasonably requested by Lessee for its use in operating the Campus Store and Virtual Campus
Store. University shall bill Lessee on a monthly basis for all costs of installation and
telecommunication services used or incurred by Lessee, as determined by the University in its
reasonable judgment, which amounts shall be payable within 30 days following billing by
University.
The following will be revised as appropriate for each site
6.3.2 Lessee Responsibilities. Lessee will obtain, at Lessee’s cost and expense (save
and except to the extent such costs and expenses arise from the negligence or misconduct of the
University), the following services for the Premises:
(i)
Cleaning, maintenance, repair, and replacement of Lessee’s personal
property in the Premises;
(ii)
Routine housekeeping and cleaning services to the Premises, such as
(without limitation) vacuuming, mopping, dusting and trash removal and
disposal; and
(iii)
Removal of all dry garbage within the Premises and the disposal of dry
garbage in University-provided trash receptacles.
The following will be revised as appropriate for each site
6.4
MAINTENANCE OF UTILITIES. Except as expressly provided otherwise in this
Agreement, the University shall, at its expense, install, maintain, repair, and replace as necessary
any and all equipment, structures and fixtures necessary to provide electricity to the Premises in
reasonable quantities suitable for the Permitted Use. Any interruption or curtailment of any utility
services at the Premises, regardless of the cause, shall not entitle Lessee to any claim of any
nature against the University or to any abatement of Rent and shall not constitute constructive or
partial eviction; however, if any utility service to the Premises is interrupted or curtailed, the
University shall use reasonable diligence to have service restored promptly after notification
thereof from Lessee. Rent will be equitably abated during any period that Lessee’s use of the
Premises for the Permitted Use is materially impaired by reason of the interruption of utility service
to the Premises not attributable to the negligence or misconduct of Lessee.
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6.5
UNIVERSITY’S RIGHT OF ENTRY. Representatives of the University may enter the
Premises at any reasonable time and from time to time following reasonable prior notice to Lessee
(i) to inspect its general condition and state of repair; (ii) to make repairs; (iii) to show the Premises
to any prospective tenant, Lessee, purchaser or mortgagee; or (iv) for any other purpose that the
University deems reasonably necessary or desirable in connection with its operation of the
Building and the Campus. Notwithstanding the foregoing, the parties further agree that
representatives of the University may enter the Premises at any time without prior notice to Lessee
to address emergencies involving potential material harm to property or injury or death to
person(s).
6.6
PARKING. Lessee’s officers, employees, invitees and agents must comply with the
University’s parking and traffic regulations and are responsible for any parking or traffic citations
issued by the University’s Police Department for the violation of such regulations.
6.6.1 Obtaining Parking Permits. Lessee’ officers, employees, invitees and agents
may utilize the designated parking facilities on the Campus upon obtaining a current parking
permit from the University’s Police Department. Parking permits for Lessee’s employees may be
acquired through the University’s Parking Services which may be contacted at 956/665-2738 for
the Edinburg Campus and 956-882-8232 for the Brownsville Campus.
6.6.2 Charges for Parking. All charges for parking, if any, in effect from time to time
under the University’s parking regulations are the sole responsibility of Lessee and its officers,
employees, invitees and agents.
6.7
SIGNAGE. Lessee must at its sole cost and expense provide and maintain signs at the
entrances to the Premises identifying the hours of operation. All signage for the Premises must
be approved in writing by the University prior to installation, and must be consistent with the style
and décor of the Building. Upon the expiration or earlier termination of this Agreement, Lessee
must at its sole expense (i) remove all its signs from the Premises, the Building and the Campus;
and (ii) repair any damage to the property of the University arising from such removal.
6.8
TAXES. Lessee must pay before delinquency all taxes, fees or charges, rates, duties and
assessments that are imposed, levied or assessed directly against Lessee, or indirectly through
the University, with respect to the Premises or Lessee’s contents or operations therein, including
but not limited to all ad valorem taxes related to the Premises or Lessee’s personal property within
the Premises. The University may, after learning of Lessee’s failure to timely pay such taxes,
fees or charges, rates, duties or assessments, upon written notice to Lessee require Lessee to
provide reasonable proof of payment of such delinquent items to the University within ten days of
the University’s written demand.
6.9
TRANSFERS AND ENCUMBRANCES OF LESSEE’S INTEREST
6.9.1 Use, Assignment and Sublicensing. Lessee is not authorized to permit any
other party to use the whole or any part of the Premises without the express prior written consent
of the University. Lessee may not sell, assign, sublicense, pledge or in any manner transfer the
whole or any part of Lessee’s interest in this Agreement or the Premises without the University's
prior written approval, which approval the University may withhold in its discretion.
6.9.2 Mortgages. Lessee may not pledge, mortgage, grant a lien upon, grant a security
interest in, or assign as collateral Lessee's interest in this Agreement or the Premises without the
49
prior written consent of the University, which approval the University may withhold in its discretion.
The University may condition its consent to any such encumbrance requested by Lessee upon
the requirements that (i) the mortgage is security only for the debt or other obligations incurred by
Lessee with respect to the use of the Premises; and that (ii) every mortgagee to whom Lessee
shall grant a mortgage, pledge, lien or other encumbrance upon Lessee's interest hereunder must
expressly agree in the loan documents, in a form reasonably acceptable to the University, that
the mortgage, pledge, lien or other encumbrance upon Lessee's interest hereunder is second,
inferior and subordinate to the rights of the University in and to the Premises and the underlying
land pursuant to the terms of this Agreement. In no case or circumstance whatsoever will the
University’s interest in the fee be made subject to any lien or mortgage.
6.9.3 Mechanic’s Liens. Lessee is not authorized to grant or permit any mechanic's
lien to be filed against the Premises, the Building or the Campus by reason of any work, labor,
services, or materials performed at or furnished for the Premises to Lessee or to anyone holding
in the Premises through or under Lessee. In the event any such lien is filed, Lessee must within
thirty days thereafter obtain and record a release of the lien in the Real Property Records of the
county in which the Campus is located. Nothing in this Agreement shall be construed as the
consent of the University to subject the University's estate in the Premises, the Building or the
Campus to any mechanic’s lien.
6.10 HAZARDOUS MATERIALS. Lessee shall not bring, store, or use on or about the
Premises any materials or substances regulated or deemed hazardous under applicable federal,
state, or local law ("Hazardous Materials"), save and except for small quantities of ordinary office
supplies and cleaning products commonly used in connection with the Permitted Use, and then
upon condition that such office supplies and cleaning products are stored and used in strict
accordance with all Applicable Law.
6.10.1 Storage of Hazardous Materials. Prior to first entering the Premises and from
time to time thereafter upon the written request of the University, Lessee shall submit to the
University a “Material Safety Data Sheet” of form promulgated by the University describing any
hazardous materials or chemicals used or stored by Lessee within the Premises pursuant to the
terms and conditions of this Agreement.
6.10.2 Remediation. In conformance with the requirements of Applicable Law, Lessee
shall clean up, remove, remedy and repair any contamination or damage caused by the presence
or release of any Hazardous Materials in, on, under, or about the Premises, the Building or the
Campus attributable to Lessee's use and occupancy of the Premises. Lessee shall immediately
give the University written notice of Lessee’s (i) learning of any suspected breach of this Section;
(ii) learning of the presence or any release of any Hazardous Materials; or (iii) receiving any
notices from governmental agencies pertaining to Hazardous Materials that may affect the
Premises.
6.10.3 Indemnity. LESSEE AGREES TO INDEMNIFY, HOLD HARMLESS AND
DEFEND THE BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM, THE
UNIVERSITY OF TEXAS RIO GRANDE VALLEY AND THEIR RESPECTIVE REGENTS,
OFFICERS AND EMPLOYEES (JOINTLY AND SEVERALLY, THE “UNIVERSITY PARTIES”)
FROM AND AGAINST ANY CLAIMS, DAMAGES, PENALTIES, LIABILITIES, AND COSTS
(INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEY FEES, COSTS OF SUIT,
AND COURT COSTS) CAUSED BY OR ARISING OUT OF (I) LESSEE’S VIOLATION OF THE
PROVISIONS OF THIS SECTION 6.10 OR (II) THE PRESENCE OR RELEASE OF ANY
HAZARDOUS MATERIALS ON, UNDER, OR ABOUT THE PREMISES, THE BUILDING OR
50
THE CAMPUS ARISING FROM LESSEE'S OCCUPANCY AND USE OF THE PREMISES.
6.10.4 Survival. The obligations of Lessee under this Section 6.10 shall survive the
expiration or sooner termination of this Agreement.
6.11 CASUALTY AND INTERRUPTION OF UTILITIES. Lessee must notify the University of
any material casualty damage to the Premises or Lessee’s personal property and trade fixtures
located therein within twenty-four hours of Lessee learning of such occurrence. If either the
Premises or the Building is so damaged by fire, storm or other casualty that the rebuilding or repair
of the same cannot, in the reasonable judgment of the University, be completed within 180 days
after the date of such damage, the University may at its option terminate this License upon written
notice to Lessee, in which event, this Agreement shall terminate effective as of the date of specified
such damage and the Rent for the period commencing upon the date of the casualty and ending as
of the termination date shall be abated to such degree as the University deems equitable under the
circumstances. If the Premises or the Building is damaged by fire, storm or other casualty, but only
to such extent that rebuilding or repairs can, in the reasonable judgment of the University, be
completed within 180 days after the date of such damage, the University shall within a reasonable
period after the date of such damage notify Lessee of the University’s determination and the
University shall commence to rebuild or repair the Premises and/or the Building, as applicable, and
shall proceed with reasonable diligence to restore same to substantially the same condition in which
it was immediately prior to the happening of the casualty; provided, however, that the University
shall not be required to rebuild, repair or replace any personal property, fixtures and/or
improvements that may have been placed by Lessee within the Premises. Lessee shall be solely
responsible for the cost of repair or replacement of any damage to the Premises, the Building or
the Campus caused by misuse or negligence on the part of Lessee and its officers, employees,
invitees and agents, excluding ordinary wear and tear. During any period that Lessee’s use of
the Premises for the Permitted Use is materially impaired by reason of the casualty or the
University’s repair of the casualty damage, Rent shall be equitably abated, but only to the extent
such casualty damage is not attributable to the negligence or misconduct of Lessee.
6.12 ALTERATIONS. Lessee agrees not to make any alterations or additions to the Premises
or the Building, nor permit the making of any holes in the walls, partitions, ceilings, or floors, nor
permit the painting or, placing of any exterior signs, placards, or other advertising media, banners,
pennants, awnings, aerials, antennas, or the like (collectively, “Lessee’s Proposed Changes”),
without on each occasion obtaining the prior written consent of the University. Lessee shall make
written request for the University’s approval for Lessee’s Proposed Changes not less than 60
days before Lessee proposes to let a contract for Lessee’s Proposed Changes.
6.12.1 Meeting With University. Lessee shall schedule a meeting with the University as
soon as possible after delivering such request, at which time the Lessee shall present to the
University, as deemed appropriate by the University in its sole judgment, schematic plans, design
development drawings, material specifications, and samples of materials for Lessee’s Proposed
Changes. Lessee shall implement any reasonable changes to Lessee’s Proposed Changes that
the University deems appropriate to enhance or ensure compatibility between Lessee’s Proposed
Changes to the Premises and the Building. Lessee shall advise the University in writing within
twenty days after any such meeting of all revisions to Lessee’s Proposed Changes adopted to
address the University‘s concerns, and the University shall notify Lessee within a reasonable time
thereafter whether the University consents to the revised Lessee’s Proposed Changes or requires
further revision. Such exchange shall continue until either (i) the University has consented to
Lessee’s Proposed Changes; or (ii) Lessee withdraws its request for the University’s consent.
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6.12.2 Temporary Closings for Alterations. Lessee shall, in consultation with the
University, have the right to temporarily close portions of the Premises for a reasonable period of
time for any renovation, remodeling or repairs of the Premises approved by the University.
6.12.3 Construction of Alterations. Any construction, modification, or relocation of any
structural feature of the Premises or the Building or any change to the Premises or the Building
involving mechanical, electrical, roof, and/or life and safety issues must be performed only by the
University, at the expense of Lessee.
6.12.4 Lessee’s and Contractor’s Insurance. Lessee and any contractor of Lessee
performing construction work on either the Lessee’s Improvements or alterations to the Premises
under this Section 6.12 must have the following insurance in force and effect at all times during
such work, together with such other terms, coverages and insurers as the University may
reasonably require from time to time:
(a)
commercial general liability insurance, including liability coverage,
contractual liability coverage, completed operations coverage, special form property damage
endorsement, and protective liability coverage, to afford protection with limits, for each
occurrence, of not less than One Million Dollars ($1,000,000) with respect to personal injury, death
or property damage;
(b)
workers' compensation insurance with statutory limits, and employer's
liability insurance with not less than the following limits:
Each Accident
Disease--Policy Limit
Disease--Each Employee
$1,000,000
$1,000,000
$1,000,000;
(c)
all risk builder's risk insurance (or all risk installation floater for instances in
which the project involves solely the installation of equipment). Coverage shall be all-risk,
including, but not limited to, fire, extended coverage, vandalism and malicious mischief, flood,
earthquake, theft and damage resulting from faulty workmanship, design or materials. If builder's
risk, limit shall be equal to 100 percent of the contract cost. If installation floater, limit shall be
equal to 100 percent of the contract cost. The policy shall be written jointly in the names of Lessee
and the general contractor or equipment installer; and
(d)
BUILDERS RISK ENDORSEMENTS FOR COVERAGE OF EXISTING
BUILDING STRUCTURES: Contractor shall include an endorsement on the Builders Risk
Insurance policy to provide coverage for the existing building structure(s), including its/their
contents, as described below. Coverage shall be in the amount equal to either $5 million or the
estimated replacement value of the existing building structure and its contents, whichever is
less. The purpose of this coverage is to fund the $5 million deductible under the Owner’s
existing property insurance policy which addresses the risk and possible cost of claims to repair
damage to existing structure(s) (this purpose should be explained to the Builders Risk Insurance
carrier when requesting the quote). The existing building structure(s) to be covered is the UTPA
Learning Resource Center, and its estimated building replacement value is $33,000,000. Its
estimated contents value is $26,000,000.
(e)
business automobile liability insurance covering all owned, non-owned or
hired automobiles to be used by Lessee, with coverage for at least $1,000,000 combined single
limit per occurrence for Bodily Injury and Property Damage.
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Lessee’s Contractor’s insurance shall be primary and not contributory to that carried by Lessee
or the University. Lessee’s Contractor's insurance policies shall name Lessee, the Board of
Regents of The University of Texas System, The University of Texas Rio Grande Valley and their
respective regents, officers and employees as additional insureds under ISO _________ and
must waive the insurance carrier’s right of subrogation against said persons.
(f) environmental Health and Safety
Contractors and their subcontractors are required to comply with all rules and regulations
applicable to the workplace and the environment.
ARTICLE 7 SECURITY OF PREMISES
7.1
SECURITY OF PREMISES. Lessee shall be responsible for security within the Premises
and for the risk of loss or damage to Lessee’s property in the Premises. (This includes, without
limitation, inventory pilferage, theft, robbery, loss of monies and checks, and loss of credit card
information.) Lessee shall be responsible for the control of keys issued by University and for the
security of all areas provided for Lessee’s use. Lessee shall be responsible for all costs associated
with lost keys, re-keying and lock cylinder replacement resulting from actions of Lessee’s
employees or agents.
7.2
UNIVERSITY POLICE DEPARTMENT. The University agrees to provide, through the
University’s Police Department, security service to the Building containing the Premises to the
same extent and in the same manner as is provided by the University to other similarly situated
buildings on the Campus. Lessee will immediately notify the University’s Police Department of
any breach or possible breach of security related to the Premises, including the immediate
notification of the loss of any keys or access control cards. Lessee agrees to cooperate with the
University’s Police Department in all matters including the reporting of suspected security
violations. Lessee will immediately report any evidence of security breaches or criminal activity
to the University and the University Police Department.
NOTWITHSTANDING THE
PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, THE UNIVERSITY PARTIES,
JOINTLY AND SEVERALLY, SHALL NOT BE LIABLE FOR, AND TO THE FULLEST EXTENT
ALLOWED BY LAW LESSEE RELEASES THE UNIVERSITY PARTIES, JOINTLY AND
SEVERALLY, FROM ANY COST, LIABILITY, INJURY, DAMAGE OR LOSS SUFFERED BY
LESSEE, ITS AGENTS, EMPLOYEES, INVITEES OR CONTRACTORS THAT ARISE OUT OF
OR RELATE TO THE PROVISION OF SUCH SECURITY SERVICES. This Section shall survive
the expiration or sooner termination of the Agreement.
7.3
STANDARD EMERGENCY PROCEDURES. In cooperation with the University, Lessee
will develop a plan that is acceptable to the University for emergency procedures in the case of
fire, flood, tornado, theft, and/or other emergencies involving the Premises and the Building.
Procedures shall include provisions for cash management in emergencies and require employees
to exit buildings when so instructed. Lessee will post such plans in the Premises.
7.4
LOSS PREVENTION. Lessee shall provide its own loss prevention services for its
operations in the Premises and shall cooperate with University in controlling internal security and
preventing theft of property belonging to Lessee, University, or University’s faculty, staff and
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students. In cooperation with University's Police Department, Lessee shall create and maintain a
security plan for securing the Campus Store during textbook buyback periods and other securitysensitive events. Lessee shall bear the risks of loss or damage to inventory and Lessee's other
property while in transit to or from the Premises or while on display or otherwise located within
the Premises, including, without limitation, all risks of loss of monies, checks, and credit card
collections and inventory pilferage, theft, and robbery.
ARTICLE 8 - INSURANCE.
8.1
LESSEE’S INSURANCE. Lessee must carry at all times during the Term at least the
following policies and amounts of insurance with companies rated A-VII or better by AM Best or
like rating agency and licensed to do insurance in Texas, with all policies of a form and substance
reasonably acceptable to the University:
8.1.1 Commercial Property Insurance. Lessee shall obtain, pay for, and maintain
Property Insurance, written on a Causes of Loss – Special Form covering the Premises and all
Lessee improvements in the Premises, including, without limitation, finishes, heating, ventilating
and air conditioning equipment installed in the Premises, fixtures installed by or at the expense of
the Lessee, and Lessee’s personal property in, on or upon the Premises, in an amount not less
than 90% of the full replacement cost thereof. Commercial property insurance shall, at a minimum,
cover the perils insured under the ISO special causes of loss form (CP 10 30) or an equivalent
form satisfactory to the University.
8.1.2 Workers’ Compensation Insurance and Employer’s Liability Insurance. Workers’
Compensation Insurance with statutory limits, and Employer’s Liability Insurance with limit of not
less than:
Employers Liability - Each Accident
Employers Liability - Each Employee
Employers Liability - Policy Limit
$1,000,000
$1,000,000
$1,000,000
These policies must have “Other States” Endorsements that include Texas if Lessee’s business
is domiciled outside the State of Texas.
8.1.3 Commercial General Liability Insurance.
insurance policy with the following limits:
Each Occurrence
Damage to Premises
Medical Expense
Personal & Advertising Injury
General Aggregate
Products – Completed Ops/Agg
Commercial General Liability
$1,000,000
$ 50,000
$ 10,000
$1,000,000
$2,000,000
$2,000,000
CGL insurance shall be written on ISO occurrence form CG 01 01 96 (or a substitute form
providing equivalent coverage) and shall cover liability arising from premises, operations,
independent contractors, products-completed operations, personal injury and advertising injury,
and liability assumed under an insured contract. If such CGL insurance contains a general
aggregate limit, it shall apply separately to the Building and Premises. The Board of Regents of
The University of Texas System and The University of Texas Rio Grande Valley must each be
included as an insured under the CGL, using ISO additional insured endorsement CG 20 11 or a
54
substitute providing equivalent coverage. This insurance shall apply as primary insurance with
respect to any other insurance or self-insurance programs afforded to the Board of Regents of
The University of Texas System. There shall be no endorsement or modification of the CGL to
make it excess over other available insurance; alternatively, if the CGL states that it is excess or
pro rata, the policy shall be endorsed to be primary with respect to the additional insured. There
shall be no endorsement or modification of the CGL limiting the scope of coverage for liability
arising from pollution or employment-related practices.
8.1.4 Commercial Automobile Liability Insurance. Commercial Automobile Liability
insurance covering all owned, non-owned or hired automobiles to be used by Lessee, with
coverage for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and
Property Damage. Such insurance shall cover liability arising out of any auto (including owned,
hired, and non-owned autos). The coverage must be written on ISO form CA 00 01 or a substitute
form providing equivalent liability coverage. Pollution liability coverage at least as broad as that
provided under the ISO pollution liability-broadened coverage for covered autos endorsement (CA
99 48) shall be provided, and the Motor Carrier Act endorsement (MCS 90) shall be attached.
8.1.5 Umbrella Liability Insurance. Umbrella liability insurance of an amount not less
than One Million Dollars ($1,000,000) on an excess basis that provides coverage as broad as and
follows the form of the primary liability coverage’s in the above subsections of this Section 8.1
relating to employer’s liability, commercial general liability, and commercial auto liability.
8.1.6 Business Interruption Insurance. Lessee may, at its option, purchase business
income, business interruption, extra expense or similar coverage as part of this commercial
property insurance, and in no event shall the University be liable for any business interruption or
other consequential loss sustained by Lessee, whether or not it is insured, even if such loss is
caused by negligence of the University, its employees, officers, directors, or agents.. In no event
shall the University or the Board of Regents of The University of Texas System be liable for any
damage to or loss of personal property sustained by Lessee, whether or not it is insured, even if
such loss is caused by the negligence of the University, the Board of Regents of The University
of Texas System, or their respective employees, officers, directors, and agents.
8.2
LOSS-PAYEE AND ADDITIONAL INSURED STATUS. All insurance policies and
coverages required of Lessee under Section 8.1, with the exception of Workers’ Compensation
and Employer’s Liability policies under Section 8.1.2, must at all times during the Term name the
Board of Regents of The University of Texas System and The University of Texas Rio Grande
Valley (i) as loss-payees, in the case of property casualty insurance, and (ii) as additional
insureds, in the case of liability insurance.
8.3
LESSEE’S MAINTENANCE OF COVERAGE. Lessee will maintain in force all insurance
policies required of Lessee under this Agreement for the periods specified below:
8.3.1 Commercial General Liability Insurance, Commercial Property Insurance
and Commercial Automobile Liability Insurance must be kept in force from the time Lessee
takes occupancy of the Premises until the later of (i) Lessee’s occupancy of the Premises ceases
under this Agreement or (ii) the University’s receipt of the final Rent and any other payment owed
by Lessee hereunder; and
8.3.2 Workers' Compensation Insurance and Employer’s Liability Insurance must
be kept in force until Lessee’s occupancy of the Premises ceases under this Agreement.
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8.3.3 Cancellation. All insurance policies required of Lessee under this Agreement
must provide that the policies cannot be canceled except after thirty days' unconditional prior
written notice to the University. Lessee is solely responsible for payment of all costs pertaining
to any policy endorsements necessary to accomplish such.
8.4
WAIVER OF SUBROGATION RIGHTS. All policies of insurance required of Lessee
under this Agreement must waive the insurance carrier’s right of subrogation against the Board
of Regents of The University of Texas System and The University of Texas - Rio Grande Valley.
Before taking occupancy of the Premises, and from time to time during the Term upon the
University’s written request, Lessee shall furnish to the University evidence reasonably
satisfactory to the University of such waiver of subrogation rights. Lessee waives all rights against
The University of Texas – Rio Grande Valley and the Board of Regents of The University of Texas
System and their respective agents, officers, directors and employees for recovery of damages
to the extent these damages are or would be covered by insurance that Lessee is required to
carry under this Agreement.
8.5
LESSEE’S EVIDENCE OF INSURANCE.
8.5.1 Evidence of Insurance. Before taking occupancy of the Premises, Lessee shall
furnish to the University evidence reasonably satisfactory to the University that all insurance
policies, coverages and endorsements required of Lessee under this Agreement is in force and
effect and that Lessee is in compliance with the terms and requirements of this Article 8. By
requiring insurance herein, the University does not represent that coverage and limits will
necessarily be adequate to protect Lessee and such coverage and limits shall not be deemed as
a limitation on Lessee’s liability under the indemnities given by Lessee under this Agreement.
8.5.2 Evidence of Continuing Coverage. From time to time during the Term, upon the
University’s written request Lessee shall provide to the University evidence reasonably
satisfactory to the University of the continued existence of all insurance policies, coverages and
endorsements required of Lessee under this Agreement.
8.5.3 Failure to Maintain Insurance. If Lessee fails to maintain and/or pay for any
insurance policies, coverages or endorsements required of Lessee under this Agreement, the
University will have the right, but shall not be required, to place such insurance and bill all amounts
attributable thereto to Lessee as an additional Other Fee payable by Lessee hereunder. Failure
of the University to demand a certificate of insurance or other evidence of full compliance with
these insurance requirements or failure of the University to identify a deficiency from evidence
that is provided shall not be construed as a waiver of Lessee’s obligation to maintain such
insurance.
8.6.
UNIVERSITY INSURANCE. Lessee acknowledges that the Board of Regents of The
University of Texas System and The University of Texas Rio Grande Valley are agencies of the
State of Texas and have only such authority to purchase insurance as is granted by state law or
as may be reasonably implied by such law. The Board of Regents of The University of Texas
System and The University of Texas Rio Grande Valley shall each have the right, at their
respective option, to (i) obtain liability insurance protecting their respective regents, officers, and
employees and/or property insurance protecting the Building, the Premises and the contents
thereof, to the extent authorized by Section 51.966 of the Texas Education Code or other law; or
(ii) self-insure against any risk that may be incurred by it as a result of its operations under this
Agreement. Any obligation by the Board of Regents of The University of Texas System and The
University of Texas Rio Grande Valley under this Agreement to obtain insurance is expressly
56
made subject to its authority under state law to obtain such insurance. Lessee acknowledges
that, because The Board of Regents of The University of Texas System and The University of
Texas Rio Grande Valley are agencies of the State of Texas, their liability for the tortious conduct
of the their respective agents and employees or for injuries caused by conditions of tangible state
property is provided for solely by the provisions of the Texas Tort Claims Act (Texas Civil Practice
and Remedies Code, Chapters 101 and 104) and the Workers Compensation Insurance coverage
for their employees is provided as mandated by the provisions of Texas Labor Code, Chapter
503.
ARTICLE 9 - DEFAULT, REMEDIES, INDEMNITIES AND WAIVERS
9.1
DEFAULT. If Lessee (i) fails to pay any sums when due under this Agreement and such
failure continues for five business days after written demand by the University; (ii) fails to perform
when due any other of the terms, conditions or covenants of this Agreement to be observed and
performed by Lessee and such failure continues for thirty (30) business days after written demand
by the University; (iii) becomes bankrupt or insolvent or files any debtor proceedings, or takes or
has taken a petition in bankruptcy or insolvency or for reorganization; (iv) makes application for
the appointment of a receiver or trustee of all or a portion of Lessee's property; (v) makes an
assignment for the benefit of creditors, or petitions for or enters into any similar arrangement; (vi)
abandons the Premises; or (vii) ceases normal business operations in the Premises for more than
thirty (30) consecutive business days except as expressly permitted under this Agreement with
respect to casualty, then Lessee shall be in default of this Agreement and the University may
thereafter, in addition to any other right or remedy provided at law or in equity for such default, (i)
immediately terminate this Agreement upon written notice to Lessee; (ii) cure the default of Lessee
and be reimbursed by Lessee upon demand for all reasonable costs of such cure incurred by the
University; and/or (iii) without termination of the Agreement, re-enter and take possession of the
Premises, remove all persons and property from the Premises, and store such property in a public
warehouse or elsewhere at the cost of, and for the account of Lessee, all without service of notice
or resort to legal process and without being deemed guilty of trespass, or becoming liable for any
loss or damage that may be occasioned thereby and without any liability to Lessee.
9.2
LIABILITY AND INDEMNITY.
9.2.1 Indemnity. LESSEE AGREES TO INDEMNIFY, DEFEND AND HOLD
HARMLESS THE UNIVERSITY PARTIES, JOINTLY AND SEVERALLY, FROM AND AGAINST
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, PENALTIES, ACTIONS, SUITS,
CLAIMS, DAMAGES, EXPENSES, COSTS (INCLUDING LEGAL FEES, COURT COSTS, AND
COSTS OF SUIT) OF EVERY KIND AND NATURE WHATSOEVER THAT RELATE TO OR
ARISE OUT OF THE WILLFUL OR NEGLIGENT ACTS AND OMISSIONS OF LESSEE
AND/OR LESSEE’S OFFICERS, EMPLOYEES, INVITEES AND CONTRACTORS, SAVE AND
EXCEPT TO THE EXTENT THE SAME ARE CAUSED BY THE NEGLIGENT OR WILLFUL
ACTS OR OMISSIONS OF THE UNIVERSITY PARTIES.
9.2.2 Release. LESSEE AGREES THAT THE UNIVERSITY PARTIES, JOINTLY AND
SEVERALLY, SHALL NOT BE LIABLE TO LESSEE FOR ANY LOSS, EXPENSE OR DAMAGE
EITHER TO PERSON OR PROPERTY SUSTAINED BY REASON OF ANY CONDITION OF
THE PREMISES OR THE BUILDING, OR DUE TO ANY ACT OF ANY OF THE UNIVERSITY
PARTIES, JOINTLY OR SEVERALLY, OR THE ACT OF ANY OTHER PERSON
WHATSOEVER, UNLESS CAUSED BY THE NEGLIGENT OR INTENTIONAL ACTS OR
OMISSIONS OF THE UNIVERSITY PARTIES.
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9.2.3 Waiver. THE UNIVERSITY PARTIES, JOINTLY AND SEVERALLY, SHALL
NOT BE LIABLE FOR, AND LESSEE WAIVES ALL CLAIMS FOR, DAMAGE TO PERSON OR
PROPERTY SUSTAINED BY LESSEE OR ANY PERSON CLAIMING THROUGH LESSEE
RESULTING FROM ANY ACCIDENT OR OCCURRENCE IN OR UPON THE PREMISES, THE
BUILDING OR CAMPUS, SAVE AND EXCEPT TO THE EXTENT THE SAME ARE CAUSED
BY THE NEGLIGENT OR WILLFUL ACTS OR OMISSIONS OF THE UNIVERSITY PARTIES.
9.3
ATTORNEY FEES. Lessee agrees to pay on demand all reasonable court costs, costs
of suit, attorney fee and expenses incurred by the University in enforcing any obligation of Lessee
under this Agreement.
9.4
SURVIVAL. The provisions of this Article 9 shall survive the expiration or sooner
termination of this Agreement.
ARTICLE 10 - NOTICES
10.1 NOTICES. Any notice required or permitted to be delivered under this Agreement shall
be deemed received when actually delivered by hand delivery, facsimile transmission, or
overnight courier, or when deposited in the United States mail, postage prepaid, certified mail,
return receipt requested, addressed to the University or Lessee, as the case may be, at the
address stated below:
University's Address:
Lessee's Address:
Board of Regents of The University
of Texas System
c/o Real Estate Office
201 West 7th Street
Austin, Texas 78701
Attention: Executive Director
Telephone: 512-499-4333
Fax: 512-499-4388
Attention:
Telephone:
Fax:
With copy to:
With copy to:
The University of Texas Rio Grande Valley
1201 W. University Drive
Edinburg, TX 78539
Attn: Martin V. Baylor
10.2 DESIGNATION OF PARTY CONTACTS. Each of the parties acknowledges that the dayto-day operations of Lessee in the Premises under this Agreement may from time to time be
facilitated by informal communications between the parties involving routine operational matters
not necessitating formal written notice under Section 10.1, above. For purposes of such informal
communications, the parties hereby designate the following persons as their respective contacts:
University Contact:
Alex Valdez
Director of Purchasing and Contracting Services
The University of Texas – Rio Grande Valley
1201 W. University Drive
Edinburg, TX 78539
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Email: [email protected]
Phone: 956/665-7105
Fax: 956/665-2164
Attn: RFP No. 16-MR-02 ___
Lessee Contact:
Telephone:
Fax:
A party may change its contact person from time to time upon written notice to the other parties
given in accordance with Section 10.1. The respective contact persons are not authorized to
amend the terms and provisions of this Agreement, which can be amended only in accordance
with the provisions of Section 11.5, below.
10.3
PARTY REPRESENTATIVES.
10.3.1 University Representative. The University may from time to time upon written
notice to Lessee designate a “University Representative” to act for the University in connection
with the performance of the University's obligations under this Agreement. Lessee is authorized
by the University to act upon instructions from the University Representative (or his or her duly
appointed delegate, as specified in writing by the University Representative to Lessee) unless
otherwise specifically notified in writing to the contrary by the University. The University hereby
designates as its initial University Representative:
Name: Letty Benavides, Assistant Vice President for Campus Auxiliary Services
Address: 1201 W. University Dr., ACSB 1.102J
Phone: 956-665-2255
Email: [email protected]
The University Representative is not authorized to amend the terms and provisions of this
Agreement, which can be amended only in accordance with the provisions of Section 11.5, below.
10.3.2 Lessee Representative. Lessee shall from time to time upon written notice to
Lessee designate a “Lessee Representative” to act for the Lessee in connection with the
performance of the Lessee’s obligations under this Agreement. The Lessee Representative shall
be available to meet with the University Representative and/or his/her designee(s) on the
University campus within ten (10) business days of a University request to discuss and resolve
issues related to this agreement. The University is authorized by the Lessee to act upon
instructions from the Lessee Representative (or his or her duly appointed delegate, as specified
in writing by the Lessee Representative to the University) unless otherwise specifically notified in
writing to the contrary by the Lessee. The Lessee hereby designates as its initial Lessee
Representative:
Name:
Address:
Phone:
Email:
ARTICLE 11 - MISCELLANEOUS PROVISIONS.
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11.1 APPLICABLE LAW AND VENUE. This Agreement shall be construed under and in
accordance with the laws of the State of Texas. Venue for suit on or in respect of this Agreement
shall, at the University’s sole option, be in (i) the Texas county in which the Campus is located, or (ii)
Travis County, Texas.
11.2 PARTIES BOUND. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, legal representatives, successors
and assigns. This Section does not constitute the University's consent to Lessee’s transfer of any
interest in this Agreement.
11.3 LEGAL CONSTRUCTION. In case any one or more of the provisions contained in this
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 provision of this Agreement, and this
Agreement shall be construed as if such invalid, illegal and unenforceable provision had never been
included.
11.4. PROHIBITION AGAINST VIOLATION OF STATE LAW AND CONSTITUTION.
NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, LESSEE
AGREES AND STIPULATES THAT UNIVERSITY SHALL NOT BE REQUIRED TO PERFORM
ANY ACT OR TO REFRAIN FROM ANY ACT IF THAT PERFORMANCE OR NONPERFORMANCE WOULD CONSTITUTE A VIOLATION OF THE CONSTITUTION OR LAWS
OF THE STATE OF TEXAS. Without limitation of the forgoing, any provision of this Agreement
to the effect that the University (i) waives or releases a right to make a claim against Lessee or
exculpates Lessee from liability; or (ii) will pay attorney’s fees incurred by Lessee or any other
person are effective only to the extent that the same are authorized by the Constitution and the
laws of the State of Texas as of the Effective Date hereof. No provision in this Agreement shall
constitute nor is it intended to constitute a waiver of the Board of Regents of The University of
Texas System’s, The University of Texas Rio Grande Valley’s, or the State of Texas' sovereign
immunity to suit.
11.5 ENTIRETY AND AMENDMENTS. This Agreement, along with its Appendices, constitutes
the sole and only agreement of the parties to this Agreement and supersedes any prior
understandings or written or oral agreements between the parties concerning the subject matter
hereof. This Agreement may be amended or supplemented only by an instrument in writing executed
by the party against whom enforcement is sought. Without limitation of the foregoing, the parties
may from time to time modify the Operational Requirements attached as Appendix 3 by mutual
written agreement.
11.6 TIME OF ESSENCE. Time is of the essence in the performance of the undertakings and
obligations of the parties under this Agreement.
11.7 INDEPENDENT CONTRACTOR. Nothing contained herein shall be deemed or construed
by the parties hereto, nor by any third party, as creating the relationship of principal and agent or
of partnership or of joint venture between the parties hereto, and nothing contained herein, nor
any acts of the parties hereto, shall be deemed to create any relationship between the parties
hereto other than the relationship of landlord and tenant.
11.8 NO CONFLICT OF INTEREST. If Lessee is not an individual, Lessee certifies that no
member of the Board of Regents of The University of Texas System (i) owns or has a beneficial
interest in more than five percent of Lessee’s outstanding capital stock, (ii) is an officer or
60
employee of Lessee, or (iii) to Lessee’s knowledge, has a pecuniary interest, directly or indirectly,
in the business of Lessee.
11.9 MULTIPLE COUNTERPARTS. This Agreement may be simultaneously executed in a
number of counterparts, each of which for all purposes shall be deemed an original and all of which,
when taken together, shall constitute but one and the same instrument.
11.10 LICENSE TO CONTROL. In the event of any conflict or inconsistency between the
provisions of this Agreement and any prior agreement between Lessee and the University with
respect to the grant of a license to Lessee regarding the Premises, this Agreement will control.
11.11 AUTHORIZED EXECUTION OF AGREEMENT.
11.11.1
Warranties. Lessee warrants, represents, and agrees that neither the
execution and delivery of this Agreement by Lessee nor the performance of its obligations
hereunder will (i) result in the violation of any provision of Lessee’s articles of incorporation or
by-laws, (ii) to the best of Lessee’s knowledge and belief, result in the violation of any provision
or any agreement by which Lessee is bound, or (iii) to the best of Lessee’s knowledge and belief,
conflict with any order or decree of any court or governmental entity relating to Lessee.
11.11.2
Organization of Lessee. Lessee warrants and represents that Lessee is a
_______ duly authorized and in good standing to conduct business in the State of Texas, that it
has all necessary power and has received all necessary approvals to execute and deliver this
Agreement, and that the individual executing this Agreement on behalf of Lessee has been duly
authorized to act for and bind Lessee.
11.12 PUBLIC INFORMATION. Lessee acknowledges that the University strictly adheres to all
statutes, court decisions and the opinions of the Texas Attorney General with respect to disclosure
of public information under the Texas Public Information Act, Texas Government Code Chapter
552.
11.13 PERFORMANCE BOND. In accordance with Texas Government Code Section
2252.064, Lessee will provide the University with a performance bond for each Fiscal Year during
the term of this Agreement in the amount of $______, which performance bond Lessee must
renew and maintain continuously in effect during the entire Term of this Agreement. The
performance bond will be issued by a surety company authorized to do business in the State of
Texas and acceptable to the University in all respects. The performance bond will be made
payable to the University and be conditioned upon the prompt, full and faithful performance by
Lessee of the obligations, terms, agreements and covenants of Lessee under this Agreement.
The performance bond must be issued by a surety company authorized to do business in the
State of Texas and be of a form and substance reasonably acceptable to the University.
ATTACHMENTS. The following appendices are attached to this Agreement and incorporated
herein by reference for all purposes:
Appendix 1 – Description of Premises
Appendix 2 – Construction of Improvements to Premises
Appendix 3 –Operational Requirements
Appendix 4 – Rent
Appendix 5 – University Owned Furniture, Fixtures and Equipment
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Executed on the date set forth beside the signature lines below, to be effective for all
purposes as of the effective date stated in the opening paragraph.
DATE EXECUTED:
LESSEE:
, 201__
By:
Name:
Title:
UNIVERSITY:
, 201___
BOARD OF REGENTS OF THE UNIVERSITY OF
TEXAS SYSTEM FOR THE USE AND BENEFIT OF
THE UNIVERSITY OF TEXAS PAN-AMERICAN
By:
Name: Kirk S. Tames
Title: Executive Director of Real Estate
The University of Texas System
Approved as to content:
, 201___
THE UNIVERSITY OF TEXAS RIO GRANDE
VALLEY
By:
Name: Martin V. Baylor
Title: Executive Vice President for Finance and
Administration
62
APPENDIX 1 TO CAMPUS STORE AGREEMENT
DESCRIPTION OF PREMISES
1. GENERAL LOCATION OF PREMISES.
A.
Edinburg Campus. The Premises are located on University’s Edinburg Campus
(which has a street address of 1201 W. University Drive, Edinburg, Hidalgo County, Texas 78539).
B.
Brownsville Campus. The Premises are located on University’s Brownsville
Campus (which has a street address of 80 Fort Brown Brownsville, Cameron County, Texas
78520).
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2. LOCATION OF PREMISES.
The Edinburg Campus store consists of approximately 6,169 gross square feet of space on
the first floor of the Library (building #22 on the Edinburg Campus Map). The space has
access to a service/loading area, but a dock is not available. Adjacent to the premises, the
University opened a Jazzman’s Café. The retail concept offers a variety of hot and cold
sandwiches, pastries, coffees with indoor and outdoor seating available. The venue is
operated and managed by the University’s food service operator, Sodexo.
C.
Brownsville Campus Map. Electronic copy available online at:
http://www.utb.edu/Documents/maps/UTB_Campus_Map.pdf (website subject to
change). An excerpt of the Brownsville Campus Map indicating the location is provided
below.
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The Brownsville Campus store consists of approximately 15,811 gross square feet of space
(building #15 on the Brownsville Campus Map). The space has access to a service/loading
area and a dock is available. Included in the space is a Starbucks Cafe operated by the current
bookstore contractor Barnes and Noble. The retail concept offers a variety of hot and cold
sandwiches, pastries, coffees with indoor and outdoor seating available.
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APPENDIX 2 TO CAMPUS STORE AGREEMENT
CONSTRUCTION OF IMPROVEMENTS TO PREMISES
This appendix presumes that the University shall pay for and build the improvements.
1.
CONSTRUCTION OF IMPROVEMENTS. The University, at its sole cost and expense,
agrees to construct the finish-out improvements (“Improvements”) in the Premises in accordance
with the Final Plans and Specifications (as described below), pursuant to the terms of this
Agreement and the requirements of applicable law.
2.
DEVELOPMENT OF PLANS AND SPECIFICATIONS.
2.1
Initial Plans and Specifications. Within ____ days following the execution of this
Agreement, University shall engage an architect for the design of the Premises and make such
architect available to consult with Lessee. In coordination with the architect, Lessee shall develop
and submit to the University Lessee’s initial proposed plans for the construction of Improvements
to the Premises. Such submission shall include, at minimum, Lessee’s proposed schematic
plans, construction specifications, design development drawings, and materials and finish-outs
for the Lessee Improvements (collectively, the “Initial Plans and Specifications”). The Initial
Plans and Specifications must adhere to the University’s “Design Guidelines and Specifications,”
which are located at _________________. To the extent necessary, the architect shall assure that
the Initial Plans and Specifications are consistent with the structural elements of the Building. Within
______ days after such submission by Lessee, Lessee and the University shall meet at a mutually
convenient time and place to discuss the Initial Plans and Specifications. Lessee shall bring to
the meeting a representative with the knowledge and authority to respond to questions and
inquiries from the University or the architect. Each party shall give full consideration to the
changes requested by the other party.
2.2
Revisions to Initial Plans and Specifications. Within ____ days following such
meeting, the University shall either (i) advise Lessee in writing that the University has accept the
Initial Plans and Specifications; or (ii) deliver revised Initial Plans and Specifications to Lessee for
its review. In such latter case, within ____ days following receipt of the University’s revised Initial
Plans and Specifications, Lessee shall either approve the revisions or submit a written description
of the further revisions requested by Lessee.
2.3
Final Plans and Specifications. This exchange of plans and comments
described in Section 2.2 of this Exhibit B will continue in like manner and time frame until the
University and Lessee have agreed upon the final plans and specifications for construction of the
Improvements (collectively, the “Final Plans and Specifications”). Without limitation of the
foregoing, any construction, modification, or relocation of any structural feature or exterior feature
of the Premises or Building or any matter involving mechanical, electrical, roof, life and safety
systems or issues will be subject to the absolute discretion of the University. The Final Plans and
Specifications will include finish schedules for the layout, improvement and finish of the
Improvements in the Premises. The Final Plans and Specifications shall be prepared, stamped, and
sealed by an architect and engineer licensed by the State of Texas, shall be in a form sufficient to
comply with all applicable laws and regulations and to secure the approval of governmental
authorities with jurisdiction over the approval thereof, and shall be otherwise reasonably satisfactory
to the University. If applicable, the University at its cost will submit the Final Plans and Specifications
to the Texas Department of Licensing & Regulation for approval and inspections.
2.4
Modification of Final Plans and Specifications. Once the Final Plans and
Specifications are agreed upon by the University and Lessee, any subsequent material change or
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modification to the Final Plans and Specifications must be approved in writing by both parties and
the party requesting the change must pay the costs associated therewith.
2.5
Nature of University’s Approval. Under no circumstances is the University's
approval of the Initial Plans and Specifications or the Final Plans and Specifications to be considered
or deemed the University’s warranty or approval of their correctness, of their compliance with
applicable governmental requirements, or of the sufficiency or adequacy of such for Lessee's
purposes.
3.
CONSTRUCTION OF IMPROVEMENTS.
3.1
Completion of Construction. Following the parties’ agreement upon the Final
Plans and Specifications, University shall prosecute construction of the Improvements with
commercially reasonable due diligence. All Improvements must comply with all applicable laws
and regulations (including, without limitation, the ADA and the Texas Architectural Barriers Act) and
be inspected and approved by the University and any other entity having jurisdiction over the
Improvements prior to Lessee beginning operations in the Premises. The Improvements shall
remain in the Premises until the expiration or earlier termination of the Term of this Agreement
(as it may be extended) or until replaced by substitute improvements.
3.2
Performance of Construction.
performed by University and its contractors.
Construction of the Improvements shall be
3.3
Construction Costs. Landlord shall timely pay the costs and expenses
(“Construction Costs”) for construction of the Improvements, including without limitation,
architectural and engineering fees relating to the Premises; provided that the foregoing is not
intended to release or waive Lessee’s obligation under Appendix 4, Section 3.1.
3.4
Delay. Lessee shall pay any and all costs and expenses it incurs in connection with
any delay in the commencement or completion of the Improvements caused by (i) Lessee’s failure
to comply with the time frames set out in Section 2 of this Exhibit B, above; (ii) Lessee’s specification
of materials or finishes called for under the Final Plans and Specifications that cannot be readily
obtained; (iii) delay arising from any change, additions or alterations to the Final Plans and
Specifications (or the Improvements covered thereby) requested by Lessee; and/or (iv) any other
delay requested or caused by Lessee.
4.
PERMITS. To the extent required for the Improvements, University is responsible for
obtaining at its cost all necessary building and other permits for construction of the Improvements.
Lessee is solely responsible for obtaining at its cost all permits and licenses required for Lessee’s
occupancy and Permitted Use of the Premises after completion of the Improvements (including,
without limitation, any certificate of occupancy required by local municipal authorities).
5.
DEFAULT. A default by a party under this Appendix is a default under the Agreement and
entitles the non-defaulting party to any remedies provided under the Agreement for such default
(notwithstanding that the Term thereof might not have commenced).
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APPENDIX 3 TO CAMPUS STORE AGREEMENT
OPERATIONAL REQUIREMENTS
1.
BUSINESS HOURS. The Lessee’s business in the Premises shall be open for business
not less than the hours of:
Edinburg Campus
Fall and Spring Sessions
Week prior to first day of
Monday-Thursday
classes
Friday
Monday – Thursday
First week of classes
Friday
Saturday
Monday – Thursday
Second week of classes
Friday
Saturday
Monday – Thursday
Other weeks of sessions
Friday
Summer Session
Week prior to first day of
Saturday
classes
Monday – Thursday
First week of classes
Friday
Monday – Thursday
Other weeks of session
Friday
8:00 am – 7:00 pm
8:00 am – 5:00 pm
7:30 am – 8:00 pm
7:30 am – 5:00 pm
10:00 am – 2:00 pm
7:30 am – 7:00 pm
7:30 am – 5:00 pm
10:00 am – 2:00 pm
7:30 am – 5:30 pm
7:30 am – 5:00 pm
10:00 am – 2:00 pm
7:30 am – 7:00 pm
7:30 am – 5:00 pm
7:30 am – 5:30 pm
7:30 am – 5:00 pm
Brownsville Campus
Fall and Spring Sessions
Week prior to first day of
Monday-Thursday
classes
Friday
First two weeks of classes Monday – Thursday
and Special Events
Friday
Saturday
Other weeks of sessions
Monday – Thursday
Friday
Summer Session
Week prior to first day of
Saturday
classes
Monday – Thursday
First week of classes
Friday
Other weeks of session
Monday – Thursday
Friday
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7:30 am – 8:00 pm
7:30 am – 3:00 pm
9:00 am – 1:00 pm
7:30 am – 7:30 pm
7:30 am – 3:00 pm
7:30 am – 7:30 pm
7:30 am – 3:00 pm
7:30 am – 7:30 pm
7:30 am – 3:00 pm
subject to holidays recognized by the University, closure for casualty or approved alterations to
the Premises, or any other circumstance expressly permitted under the terms and provisions of
the Agreement. Furthermore, Lessee will be open extended hours during peak periods; peak
periods are defined herein as the week prior to the first day of class and the first two weeks of
class for the Fall and Spring semesters, other special campus events such as graduation week,
days of commencements and designated athletic home games, and as otherwise approved in
writing by the University.
Additional hours of operation are acceptable as long as they fall within the normal operating hours
of the Building. The University reserves the right to establish or change the minimum required
hours of Lessee’s operations in the Premises.
2.
MERCHANDISE, EQUIPMENT AND FURNISHINGS
2.1
Merchandise. Lessee will stock, provide and sell the following goods and services
(“Goods and Services”) in the Premises:
2.1.1 General Goods and Services. Lessee shall operate in the Campus Store
a retail location for the sale of merchandise customarily found in university campus stores,
including, but not limited to, textbooks, general books, class rings, emblematic merchandise,
clothing, gifts, music, jewelry, and custom anthologies of course materials. Lessee shall stock and
sell in the Campus Store only those types of merchandise that are appropriate to the quality and
character of University.
2.1.2 Print Shop Materials. Lessee will utilize the University’s Print Shop to
make available, for the University faculty fast, customized course anthologies for sale to the
University Community. University’s Print Shop shall obtain all copyright clearances to protect
University's faculty and University from copyright infringement. Lessee’s gross profit margins for
this service shall be comparable to that of new textbooks.
2.1.3 Mail and Shipping Services. Lessee shall be responsible for all mail,
shipping, and delivery services necessary for its operations under this Agreement.
2.1.4 Technology Products. With the University’s prior consent, and subject to
existing and future contracts with third-parties, Lessee may sell computer hardware and software
in the University Bookstore. In addition to the foregoing, the University participates in an
agreement with other component institutions of The University of Texas System for purchasing
discounted Microsoft® software products, which Lessee, as the sub-licensee of University, must
make available, along with other University-approved software, to faculty, staff, and students in
the Campus Store, at University's option. University reserves the right to determine which
software products Lessee will offer for sale in the Campus Store and to limit to whom and on what
terms such software shall be made available, so that University may comply with its obligations
under any and all applicable licensing and related agreements. Lessee shall ensure that prices
for computer software in the Campus Store will not be greater than prices received from
manufacturers under their various higher education pricing options, including the System-wide
agreement concerning Microsoft® software products.
2.1.5 University and Athletic Merchandise. After obtaining the required
approvals under Section 7 of this Appendix 3, Lessee must offer University-trademarked items
for sale in the University Bookstore and through the Virtual Campus Store. Lessee shall offer first
quality merchandise and supplies to the University community under pricing policies that are fair
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and competitive for products that are of like or similar quality as compared with other college and
university bookstores and with retail establishments in the surrounding area. Lessee must
purchase University-trademarked products and merchandise only from vendors who have a
current license issued through Strategic Marketing Affiliates (“SMA”), as further described in
Section 7 of this Appendix 3.
2.1.5.1 University Goods. Lessee shall offer for sale on the Premises
and on the Virtual Campus Store distinct lines of University-related apparel, novelty items, and
souvenirs displaying University Marks and specifically tailored toward the University’s alumni and
supporters, or potential supporters, of University (collectively, “University Goods”). The
inventory of University Goods displayed and sold by the University Bookstore shall include, but
shall not be limited to, items as apparel, school supplies, umbrellas, pads, stickers, portfolios,
writing instruments, backpacks, mugs, glasses, novelties, and souvenirs.
2.1.5.2 Athletic Merchandise. Lessee shall coordinate and cooperate
with University’s Department of Intercollegiate Athletics (“Athletic Department”) for the nonexclusive right to sell Athletic Department merchandise (“Athletic Merchandise”) as further
defined and described below. Lessee shall track all sales and royalty payments of the Athletic
Merchandise separate and apart from sales of the University Goods and shall provide such
accounting to University on a monthly basis. The Athletic Merchandise shall consist of the
following:
2.1.5.2.1
Spirit Goods. Lessee shall offer for sale offer for
sale on the Premises and on the Virtual Campus Store distinct lines of athletic and spirit- related
apparel, novelty items, and souvenirs displaying University Marks and specifically tailored toward
the University’s alumni and supporters, or potential supporters, of University athletics (collectively,
“Spirit Goods”). The inventory of Spirit Goods displayed and sold by the University Bookstore
shall include, but shall not be limited to, items as t-shirts, caps, polo-shirts, sweatshirts, jerseys,
banners, shorts, training apparel, sports bags, backpacks, and banners.
2.1.5.2.2
Co-Branded Spirit Goods. In addition to the Spirit
Goods, Lessee shall offer for sale on the Premises and on the Virtual Campus Store a broad
variety of merchandise utilizing University Marks on nationally recognized and branded products
such as Nike, Reebok, New Balance, Antigua, Puma, and/or Adidas (collectively, “Co-Branded
Spirit Goods”). University shall have the right to direct Lessee, from time to time, to obtain and
offer for sale specific Co-Branded Spirit Goods. If Lessee is so directed by University, then Lessee
shall, to the extent that it is commercially practicable, obtain and offer for sale those Co-Branded
Spirit Goods specified by University, among the other products that may be sold by Lessee under
the terms of this Agreement.
2.2
Graduation Materials. Lessee shall sell in the Campus Store an appropriate
selection of items associated with graduation, including without limitation graduation regalia,
customized invitations and announcements, diploma frames and gifts. In addition, Lessee shall
sell the official University ring known as “the Bronc Ring” pursuant to Section 3.7.1.7 of Article 3
of this Agreement.
2.3
Equipment and Supplies. Except as otherwise expressly provided in this
Agreement, Lessee shall at its sole cost provide all vehicles, equipment, supplies, signs,
personnel, merchandise, mailing, shipping, marketing materials, card readers, point-of-sale cash
registers, inventory systems, computer hardware/software and associated peripherals and
interfaces, and other items necessary to operate the Premises for the Permitted Use.
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2.3.1 University Equipment. If Lessee desires to use in its operations in the
Premises any or all of the personal property owned by the University and described in Appendix
5, then prior to Lessee’s taking possession of the Premises, the University and Lessee shall
prepare a written list of such University-owned personal property to be used by Lessee and
Lessee shall have the right to use such personal property in the ordinary course of Lessee’s
Permitted Use at no additional fee, but subject to Lessee’s timely payment of the Rent provided
for under this Agreement. Lessee will prepare and deliver to University, in a format acceptable to
the University, annual inventory, acquisition, and loss records for all University-owned personal
property for which Lessee has been granted a right of use under this Section. In the event of any
shortage or loss of University-owned personal property for any reason other than normal wear or
tear or casualty, Lessee will, at University’s option, either replace or pay University in cash the
reasonable market value of the lost personal property within thirty days after receiving written
notice of the shortage or loss from the University. Without limitation of the foregoing, Lessee shall
bear the risk of loss from casualty or theft of University-owned personal property used by Lessee.
Any University-owned personal property that Lessee does not request to use pursuant to this
Section shall be removed from the Premises by the University at University’s cost prior to delivery
of possession of the Premises to Lessee.
2.4
Furnishings. Lessee’s selection of furnishings, fixtures, and interior finishes for
the Premises shall be subject to the prior written approval of the University. All furnishings,
fixtures, and interior finishes must comply with appropriate Building Construction Codes, including
National Electrical Code, National Fire Protection Standards, etc., as applicable. Design, fixtures
and improvements must also be in full compliance with the Americans with Disabilities Act and
the Texas Architectural Barriers Act requirements. Without limitation of the foregoing, Lessee will
provide at the Premises without charge to the University community of product vendor samples,
free backpack storage area for shoppers, a textbook reservation system, and gift baskets, Lessee
shall additional provide at the Premises a gift wrap service for customers, at nominal additional
cost.
2.5
Telecommunications. In the event that the University allows Lessee the use of
any University telephone numbers, website addresses, email addresses, or website content
procured or developed in support of the Campus Store, the University will retain ownership of the
same.
2.6
Control Over Inventory. The University reserves the right to approve in writing
all products that Lessee offers, sells or provides in or through the Premises. All requested
approvals or desired changes to such products shall be directed in writing to Lessee.
3.
CUSTOMER SERVICE.
3.1
Personnel. Lessee will provide a minimum of _____ customer service agents to
be present at the Premises during all hours of operation. Lessee will also provide additional
agents during peak times such as the beginning of each University semester. Lessee is
responsible for ensuring that sufficient agents are provided at all times to meet the demand at the
Premises without unduly long service times for customers. Lessee will be responsible for ensuring
that these agents are trained in and knowledgeable on all Premises products and services.
3.2
Customer Traffic Flow. Lessee shall provide for efficient customer traffic flow in
the Premises and minimize the time spent by customers waiting in lines in order to optimize
service.
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3.3
University Environment. Lessee shall endeavor to keep apprised of the
academic, cultural, and social environment of the University, and shall take advantage of
commercially reasonable opportunities to offer special merchandising and other services to the
Campus Community.
3.4
Receiving and Delivering. Lessee will provide all services required to perform
customary mailing, receiving and delivery of packages necessary to operate its business in the
Premises. These services will include, without limitation, Lessee’s delivery of any products or
goods purchased by the University from Lessee in the Premises to one or more designated
buildings on the University’s Campus.
Textbook material in the following sections may be removed if the bookstore is awarded
separately from the sundries store.
3.5
Placement of Orders. In determining texts to be adopted for a given semester,
Lessee shall adhere to the schedule and all other applicable provisions of University's Policy on
Textbooks, as referenced in University’s Handbook of Operating Procedures (HOP) Section 6.7.5:
http://www.utpa.edu/hop/ (website subject to change) and Other Materials Prescribed for Student
Use (University’s “Textbook Policy”), as amended from time to time. The Textbook Policy on
the Edinburg campus currently states that academic materials required by faculty must be
offered for sale in sufficient numbers through the University Bookstore.
3.5.1. Textbook Adoption Forms. Lessee shall distribute textbook adoption
forms electronically, to the various departments of University and allow a reasonable time for
department heads to complete and return the forms to the Campus Store on the following
schedule:
(i)
For the Fall session – on or before April 15th of each year;
(ii)
For the Spring session – on or before October 25th of each year;
and
(iii)
For the Summer sessions - on or before March 15th of each year.
University shall reasonably assist License in soliciting adoption requests and enforcing
University's Textbook Policy. Lessee shall stock adopted and optional titles specified for
classroom use in sufficient quantities to meet demand. Lessee shall provide a reasonable
opportunity for review in advance by the University Representative of the list of all adopted texts
for each academic term. University reserves the right to release copies of textbook adoptions (if
requested to do so) to other bookstores, in accordance with applicable Texas law.
3.5.2. Late Requests for Texts. Lessee will process text requests placed after
the text adoption deadline set out in Section 3.5.1 in an expeditious manner. Lessee shall
periodically prepare a summary of all late orders to assist University in monitoring compliance
with University's Textbook Policy.
3.5.3 Textbook Reservations. Lessee will make develop and implement a
textbook reservation program for its operations in the Premises that operates in the following
manner: ____________________.
3.5.4 Order Updates. Lessee must provide timely updates to University faculty
members on the status of their orders, including items determined to be unavailable, delayed in
delivery, or available in new editions.
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3.5.3. Desk Copies. As a part of the Virtual Campus Store (as defined in Section
12 of this Appendix 3), Lessee shall develop and implement a feature offering faculty services
where publisher contact information for securing “desk copies” may be obtained. In the event a
desk copy is not available in a timely manner, Lessee will work with faculty in securing a copy
either through an expedited publisher shipment or a “loan” from store stock. Loaned desk copies
shall be replaced with new books by the University department/faculty member requesting the
desk copy. If the desk copy has not been replaced by the end of the semester for which it was
requested, then the appropriate University department shall be billed by Lessee for the retail price
of the book.
3.6.
General Book Program. Lessee will develop a general book program for the
University to include trade, reference and best sellers. This program will include special orders,
Readers Choice Newsletter, bargain book tables, collegiate bestsellers, special displays, events
and promotions such as a local author series and other monthly promotional events.
3.7
Returns and Refunds. Lessee shall maintain a return and refund policy that is
beneficial to University‘s students and other customers. Lessee’s refund policy will be posted at
store entrance, on the Virtual Campus Store website and issued to customers with Campus Store
receipt.
3.7.1 Textbook Refunds. Lessee shall issue refunds in the original form of
payment for textbooks purchased at the Campus Store if returned with a receipt and in the original
condition within seven calendar days from the start of classes or within two days of purchase
thereafter, including during summer term. Lessee will accept textbook returns upon a showing of
proof of adding/dropping of the pertinent course for no less than (i) the twelfth (12th) class day from
the start of classes during the regular fall and spring sessions and fourth (4th) class day from the
start of classes during a mini-semester or summer session; or (ii) until the end of the official
drop/add period for classes that session, whichever date comes first; provided however, that Lessee
may at its discretion lengthen the refund time periods or allow exceptions to any of the refund
policies. Notwithstanding anything in this Section 3.7 to the contrary, Lessee shall be under no
obligation to issue refunds or exchanges for the following items: custom course materials,
outlines, study guides, school guides, magazines, and prepaid cards.
3.8
Buybacks. Lessee shall buy back textbooks purchased during the last week of
class or during exams at the Premises throughout the Term and at such other locations on the
Campus and periods of time as are approved in advance by the University Representative.
Lessee shall purchase used textbooks in saleable condition at all times during the year. Lessee
shall purchase used textbooks in saleable condition that have been adopted for the coming
semester at prices not less than fifty percent (50%) of the original customer purchase price.
Lessee shall purchase used textbooks from students in quantities sufficient to meet the students’
needs for the coming semester before pursuing wholesale options. Lessee shall purchase
non-adopted textbooks at current published wholesale market prices.
3.9
General Merchandise Refunds. Lessee shall issue refunds in the original form
of payment or allow for exchange of purchase any time during the semester for general
merchandise purchased at the Campus Store if returned in the original condition and with a valid
receipt; provided, however, that Lessee shall be under no obligation to issue refunds or
exchanges for the following items: custom course materials, outlines, study guides, school guides,
magazines, and prepaid cards. Lessee will issue a refund for computer software that is returned
unopened and shrink-wrapped. Lessee reserves the right to lengthen refund time periods or allow
73
exceptions to any of the refund policies.
3.10 Designated Store Section. In consultation with the University, Lessee will
provide a designated area within the Premises and on the Virtual Campus Store specifically
designed to sell Athletic Merchandise. Lessee will coordinate with University to establish a sports
motif in such section that prominently displays the University’s official colors, University’s athleticrelated logos, University sports photographs, banners, and other University athletic-related
imagery.
3.10.1 Tracking. Lessee shall track all sales and royalty payments of University
Goods separate and apart from sales and royalty payments of the Athletic Merchandise and shall
provide such accounting to University as reasonably requested by University.
3.11 Fieldhouse Event Sales. Upon written request by University, Lessee must
provide and sell Athletic Merchandise and University Goods, during events conducted at the
University’s primary athletic facilities. For purposes of this Section, the term “primary athletic
facilities” means the facility (“Fieldhouse”) located on the Campus in which University’s Men’s
and Women’s basketball and volleyball games are played and the University’s programs for
commencement and student orientation are held.
3.11.1 On-Site Retail Stands. Lessee shall display and sell University Goods and
Athletic Merchandise at primary athletic facility events through the use of pop-up trailers, kiosks,
tents with mobile cash wrap displays, and other mobile retail equipment generally utilized and
accepted in the retail concession industry (collectively, “Retail Stands”). Lessee shall provide
the Retail Stands at Lessee’s expense. All aspects of the Retail Stands, to include but not limited
to the location and design of the Retail Stands, will be subject to the prior written approval of
University. The specific items of University Goods and Athletic Merchandise to be sold at the
Retail Stands shall be mutually determined by Lessee and University.
3.11.2 Hours. University, Lessee will operate a Retail Stands at least one hour
prior to, during, and one-half hour after each such designated event. Lessee’s staff may maintain
alternative operation hours of Retail Stands at the times and in the locations as mutually agreed
upon by University and Lessee.
3.11.3 Manner of Operation. Retail Stand operations will accept all forms of
payment specified in Section 9 of this Appendix 3. Retail Stand operations will utilize wireless
technology or non-electronic means to accept credit card payments. Lessee’s Retail Stand
operations shall comply with all terms and conditions of this Agreement, and specifically as such
terms and conditions relate to facilities, access, safety, security, utilities, technology, operating
and service requirements referenced in this Agreement. No aspect of Lessee’s Retail Stand
operations shall be construed to be exempt from the requirements and specifications of this
Agreement.
3.11.4 Additional Retail Stand Locations and Events. At the request of the
University, Lessee shall offer the merchandise to be agreed-upon by University and Lessee for
sale at University events and locations on the University campus other than those events held at
the primary athletic facilities; provided however, that Lessee will only be required to conduct such
sales when it can reasonably be deemed financially feasible.
3.12 Other Campus Locations. In addition to Lessee’s sales operations at the
Fieldhouse, Lessee will be afforded the option, upon prior written request of University, to offer
74
University Goods and Athletic Merchandise for sale (on the same terms and conditions concerning
stands, hours and manner of operation as set forth in this Agreement for sales at the Fieldhouse)
at other University athletic events conducted at locations other than the Fieldhouse, such as (by
way of example only) men's baseball events conducted at Edinburg Baseball Stadium. Lessee
shall obtain all necessary permits for its Retail Stands to be placed at Edinburg Baseball Stadium.
More text book material follows – may be moved later
3.13 Textbook Rental Program. Lessee must implement and maintain a textbook
rental program commencing with the _______ 201__ semester. Lessee and University shall
coordinate efforts to maximize the effectiveness of this program. Lessee will offer a discount of
no less than 55% off of new book price for rental book price.
4.
NO OBSTRUCTION OF ADJACENT AREAS. In its performance under this Agreement,
neither Lessee nor its officers, employees, contractors, or agents shall obstruct or unreasonably
restrict access to or use of any drive way, parking space, ramp, sidewalk, entry, doorway, exit,
passage, hall, corridor, or stairway of the Building or any other Campus facility.
5.
OPERATIONS AND MANAGEMENT RESPONSIBILITIES.
5.1
Management. Lessee shall be completely responsible for the management of the
Premises and all related business operations pertaining thereto, subject to the terms and
provisions of this Agreement. Lessee shall provide all management and non-management
personnel necessary for the performance of the Goods and Services and Lessee's other duties
and obligations under the terms of this Agreement;
5.2
Costs of Operation. Lessee shall be completely responsible for all costs of its
operations in the Campus Store, including without limitation all operating costs such as inventory,
labor (including management and supervisory personnel), fringe benefits, payroll taxes,
insurance, telephone and other communications and point-of-sale equipment and repairs, in-store
security, and custodial services. Lessee will at its cost provide all janitorial supplies, equipment,
and services necessary for the maintenance and cleaning of inside surfaces, furnishings,
equipment, front doors, glass wall partitions, restrooms (including the provision of restroom
supplies including toilet tissue, hand soap and hand tissue), lights, walls, ceilings, floors (to include
stripping and waxing twice a year) and vents, and the interior and exterior of windows associated
with Premises or related to the performance of the Services or Lessee’s other duties and
obligations under the terms of this Agreement.
5.3
Meetings.
Lessee shall make its corporate management representatives
reasonably available to the University to discuss (i) operational issues pertaining to the Premises;
(ii) in-store inventory, (iii) the products and services offered by the Campus Store; and (iv) sales
and financial reports. Such meetings will occur no less than once a month, unless otherwise
mutually agreed. In addition, when requested by the University, Lessee’s Management Team will
meet with representatives of the University to discuss operational issues arising under this
Agreement.
5.4
Operating Budget. Lessee shall maintain an operating budget for its operations
in the Premises that is adequate and appropriate to support a full-service, high quality, modern
college bookstore in order to ensure that ample inventory and service levels can be maintained.
5.5
Campus Store Manager.
Lessee agrees to furnish efficient business
administration and coordination and operate the Premises for the Permitted Use in an expeditious
and economical manner consistent with the interests of University. Without limitation of the
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foregoing, Lessee must provide a manager (“Store Manager”) for the Campus Store that has
extensive experience in the management of a store selling the Goods and Services (such
experience in serving a university community is preferred), is knowledgeable about Lessee’s
philosophy and operational procedures, is a good communicator, and has the ability to deal
effectively with the Campus community. Lessee's Store Manager shall be recruited by Lessee on
the basis of a national level search. The Store Manager must have a degree from an accredited
University and/or comparable years of extensive experience in management of bookstores
serving a university community (students, faculty, and campus), be knowledgeable about
Lessee's philosophy and operational procedures, possess well-developed written and oral
communication skills, and exhibit the ability to deal effectively with university students, faculty and
staff.
5.5.1 Interview Process. Lessee will consult with the University in the interview
process and allow University to attend interviews of prospective Store Managers.
5.5.2 Meetings. The Store Manager shall meet periodically with the University
Representative and University deans, academic department chairs, division directors and faculty
members, and representatives of student organizations when requested by University. On prior
notice from University, Lessee shall require its Store Manager and other appropriate University
Bookstore employees to attend University staff meetings and other scheduled meetings, as may
be deemed appropriate by the University Representative.
5.5.3 Removal Right. The University reserves the right, upon thirty days’ notice
and demand to Lessee, to require that the Lessee replace the Store Manager.
5.5.4 Campus Store Advisory Committee. At the University’s request, the
Store Manager shall participate on the Campus Store Advisory Committee. Meetings will address
the Lessee’s performance of services and members will provide recommendations on
qualifications for a service provider. Reference the web link for additional information regarding
the Campus Store Advisory Committee including scope, responsibilities and committee members
at:
http://oire.utpa.edu/committees/Bookstore%20Advisory%20Committee.pdf (subject to
change).
5.6
Emergency Contact. Lessee shall provide the University Representative and the
University Police Department with the name and contact information of a Lessee employee with
decision-making authority who may be contacted by the University on a 24/7 basis in case of an
emergency involving the Premises Such person may be the same as the Store Manager or a
different person.
5.7
Organizational Line of Authority. Lessee shall keep University informed about
Lessee's organizational line of authority for management personnel from the local Lessee
Representative to the representative at the highest corporate level. Lessee shall promptly inform
University of any subsequent changes in Lessee's organization.
5.8
Reporting by Lessee. Within ten business days of learning of the following
information, Lessee will inform the University in writing of any of the following that occur during
the Term of this Agreement:
(i)
Lessee’s violations of the Rules and Regulations and the corrective actions
taken by the Lessee in response to such violations.
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(ii)
Infractions by Lessee’s employees of driving laws incurred during work
hours and in connection with their work duties; such reports to be
maintained by the Lessee during the Term.
(iii)
Any arrests involving employees of Lessee who work at the Premises on
either a part time or full time basis.
(iv)
Any complaints received involving the employees of Lessee who work at
the Premises on either a part time or full time basis.
5.9.
Customer Storage Areas. Lessee shall provide an area for temporary storage of
the personal property of customers being served by the Campus Store. The storage area shall
include a secure area to leave bags.
6.
EMPLOYEE MATTERS. Personnel matters pertaining to Lessee’s staff shall be Lessee’s
responsibility, including without limitation, compliance with all applicable laws and regulations
related to (i) the employment of personnel; (ii) Equal Opportunity laws regarding employment,
training, job assignments, promotions, transfers, layoffs, terminations, and rates of pay; (iii)
prohibiting discrimination against any employee or applicant for employment due to race, color,
creed, religion, national origin, sex, age, physical ability or marital status; and (iv) the requirements
of the Fair Labor Standards Act. All material relating to Lessee’s personnel policies and
procedures must be available for review by the University upon request. Lessee shall provide
such special reports (such as, by way of example, employee turnover rate, employee disciplinary
actions, etc.) covering Lessee’s operations under this Agreement as the University may
reasonably request. Lessee shall require all of its employees to adhere to the University’s Rules
and Regulations, policies and regulations. Lessee shall provide the Services without interfering in
any way with the activities of University's faculty, students, staff, visitors or invitees.
6.1
Uniform and Employee Badges. Lessee will provide each of its employees with
uniform and a name identification badge and shall require that Lessee’s employees wear such
uniform and carry such badge while on duty in the Campus Store. The nature and style of the
uniforms and badges must be satisfactory to the University.
6.2
Staff Training and Behavior. Lessee shall employ qualified staff, adequate in
number, training and experience for the efficient management and operation of the Campus Store.
Lessee shall ensure that all of its employees adhere to all University Regulations regarding
personal behavior and demonstrate courtesy at all times. Lessee will cooperate with and assist
the University in the investigation of any alleged inappropriate behavior by Lessee’s employees.
6.3
Labor Union Contracts. The University will not be a party to, or be bound by, any
labor union contract affecting Lessee’s employees. Any such contract will be negotiated between
Lessee and the labor union.
6.4
Affirmative Action. Lessee agrees that a written copy of Lessee’s Civil Rights
"Affirmative Action Compliance Program" will be provided upon request, or if Lessee is not
required to have such a written program, the reason Lessee is not subject to such requirement
will be provided in writing
6.5
Employee Identification Accounts for University Required Training. Within
five business days after the effective date of the Agreement, Lessee will coordinate with the
University to request, through appropriate University offices, high assurance electronic University
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identification accounts (“EIDs”) and passwords for all Campus Store employees. Immediately
after EIDs are issued, Lessee will notify the University Representative to schedule and complete
appropriate training for Lessee’s Campus Store employees. Training will include, but is not
limited, to requirements related to the Family Education Rights and Privacy Act, 20 U.S.C. §1232g
(“FERPA”). In addition, training may be required to grant Lessee’s Campus Store employees
access to certain University databases that are utilized to confirm educational discount eligibility.
6.6
Undocumented Workers. The Immigration and Nationality Act (8 United States
Code 1324a) (“Immigration Act”) makes it unlawful for an employer to hire or continue
employment of undocumented workers. The United States Immigration and Customs
Enforcement Service has established the Form I-9 Employment Eligibility Verification Form (“I-9
Form”) as the document to be used for employment eligibility verification (8 Code of Federal
Regulations 274a). Among other things, Lessee is required to: (1) have all employees complete
and sign the I-9 Form certifying that they are eligible for employment; (2) examine verification
documents required by the I-9 Form to be presented by the employee and ensure the documents
appear to be genuine and related to the individual; (3) record information about the documents
on the I-9 Form, and complete the certification portion of the I-9 Form; and (4) retain the I-9 Form
as required by law. It is illegal to discriminate against any individual (other than a citizen of another
country who is not authorized to work in the United States) in hiring, discharging, or recruiting
because of that individual's national origin or citizenship status. If Lessee employs unauthorized
workers during performance of this Agreement in violation of the Immigration Act then, in addition
to other remedies or penalties prescribed by law, University may terminate this Agreement.
Lessee represents and warrants that it is in compliance with and agrees that it will remain in
compliance with the provisions of the Immigration Act.
6.7
Personnel and Background Checks. Each individual who is assigned to perform
work under this Agreement will be an employee of Lessee or an employee of a subcontractor
engaged by Lessee. Lessee must conduct criminal background checks of all current and future
staff designated to work in the Campus Store, even if the Campus Store is not their primary
employment site. Lessee will not knowingly assign an individual to provide services in the
Campus Store who has a history of criminal conduct unacceptable for a university campus,
including without limitation violent or sexual offenses. Prior to commencing operations or work in
the Premises under this Agreement, Lessee will provide the University with a list ("List") of all
individuals who may be assigned to perform work in the Premises, and will update the List each
time there is a change in the individuals assigned to perform such work. Prior to commencing
any business operations in the Premises, Lessee will provide to the University a letter signed by
an authorized representative of Lessee certifying compliance with this Section. Lessee will
provide the University an updated certification letter each time there is a change in the individuals
assigned to perform work under this Agreement.
6.8
Minimum Wage. Lessee shall pay each of its employees employed on the
Premises at an hourly rate that is at least equal to the minimum wage established under federal
law.
7.
LICENSING AND UNIVERSITY MARKS. Lessee shall abide by the University’s trademark
and licensing policies in its operations in the Premises. The University owns all rights to the name,
logos and symbols of The University of Texas System and The University of Texas – Rio Grande
Valley (collectively, the “University Marks”). Lessee shall not use the name, seal, logos,
trademarks, or other identifying symbols of The University of Texas Rio Grande Valley or The
University of Texas System, in advertisements, web pages, or in any other form of publication
without the express prior written permission of the University. Current policy regarding copyright
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licensing may be found at www\utpa.edu/HOP. Lessee shall obtain from The University of Texas
Office of Trademark Licensing (“OTL”) prior written approval to use the University Marks for any
purpose, including without limitation for use in any advertising, point-of-sale displays, publicity
material, media, and other written, printed or electronic communications. Any proposed use of
the University Marks must comply with the Rules and Regulations. Lessee will submit any
requests to OTL under this provision to:
Director
Office of Trademark Licensing
The University of Texas at Austin
2139 San Jacinto Blvd
Red McCombs Red Zone (RMRZ) B206
Austin, Texas 78712
The parties will cooperate with each other in order to assure compliance. Requests for written
approval shall be in writing, accompanied by the material to be approved, and transmitted by
electronic mail, facsimile, express mail, overnight carrier or regular mail depending upon the
expected response time. The University will use reasonable efforts to respond within ten business
days from the date of submission. Lessee’s failure to obtain such prior written approval shall be a
default under by Lessee under this Agreement.
7.1
Use of University Marks. Lessee and the University acknowledge and agree that
this Agreement does not operate to assign, transfer or convey to the University any lease, license,
agreement, privilege or right of any kind or nature whatsoever to use for any reason any network
names or network marks owned by Lessee in any of the University’s advertising, signage or
promotional materials, including without limitation printed sales/marketing materials, without the
prior written consent, authorization and approval of Lessee. Similarly, Lessee and the University
acknowledge and agree that this Agreement does not operate to assign, transfer or convey to
Lessee any license, privilege or right of any kind or nature whatsoever to use for any reason any
names or marks owned by the University in any of Lessee’s advertising, signage or promotional
materials, including without limitation printed sales/marketing materials, without the prior written
consent, authorization and approval of the University.
7.2
Use of Seal and Logo. Lessee may use the logo of The University of Texas Rio
Grande Valley on items such as stationery, apparel, soft goods, notebooks, pens, pencils, decals
and other manufactured goods traditionally sold in campus bookstores only with the prior written
approval of the authorized officers of The University of Texas Rio Grande Valley. Lessee shall
not use the University seal as a graphic element in items or materials such as advertisements,
invitations and apparel without prior written authorization from the University in each instance.
Lessee must purchase products and merchandise with the University name and trademarks only
from vendors who have a current license issued through Strategic Marketing Affiliates (“SMA”)
(reference http://www.smaworks.com/). After obtaining the required approvals, Lessee may offer
such trademarked items for sale only in the University Campus Store or in the Virtual Campus
Store. Lessee shall not use the name, seal, logos, trademarks, or other identifying symbols of
The University of Texas System or The University of Texas Rio Grande Valley in advertisements,
web pages, or in any other form of publication without the express prior written permission from
the University. Lessee must comply with the University’s policy regarding use of copyrighted
materials, which may be found at ________________________ [Note: To be completed prior
to execution.].
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8.
ADVERTISING AND MARKETING.
8.1
Press Releases. Without the prior written approval of the University, Lessee will
not (i) make any press releases, public statements, or advertisement referring to the Campus
Store or the award of this Agreement to Lessee; or (ii) release any information relative to the
Campus Store for publication, advertisement or any other purpose.
8.2
Advertising on Campus. Lessee shall not have a right to engage in any form of
solicitation, marketing, advertising or promotional activity on the Campus except with the prior
written consent of the University and then solely in compliance with the Rules and Regulations.
Without limitation of the foregoing, except with the prior written approval of the University in each
instance, Lessee will not be entitled to (i) distribute advertising or marketing literature on the
Campus or to display posters or post commercial messages on public bulletin boards on the
Campus; or (ii) communicate any messages that advertise, promote, or market Lessee’s
operations in the Premises by means of the University’s mail or email system serving the Campus.
Notwithstanding the foregoing to the contrary, Lessee may, in accordance with the Rules and
Regulations, at its sole expense set up a table at the University’s new student orientation sessions
and residence hall move-in periods for the purposes of marketing its services and products in the
Premises to the University’s students, faculty, and staff (“Service Offering”), as further described
in the immediately following Section 8.3.
8.3
Service Offerings. Prior to any Service Offering, Lessee must develop and
provide to the University for approval, a proposal setting forth the time, specific duration, location,
nature, scope and manner of the Service Offering, as well as appropriate provisions to protect the
privacy of the University’s students, faculty, and staff. Lessee must conduct all Service Offerings
in accordance with Applicable Laws and Rules and Regulations and in a manner that:
(i)
does not disturb or interfere with the academic programs or administrative
activities of the University on the Campus or any program or activity that is
conducted by or is authorized by the University;
(ii)
does not interfere with entry to or exit from a building, structure, or facility
or with the flow of pedestrians or vehicular traffic on sidewalks or streets or
at places of ingress and egress to and from property, buildings, or facilities;
and
(iii)
does not harass, or intimidate any person or persons.
8.4
Name. Lessee agrees that the Campus Store name shall be “University
___________.” Insert the correct name Unless approved in writing in advance by the University
Representative, Lessee will have no signage and use no advertising on the University Campus
that identifies Lessee’s company name or uses Lessee’s company logo. Lessee shall provide
and maintain signs at all public entrances to the Campus Store identifying the hours of operation.
All signs must be approved in advance by the University Representative.
8.5
Marketing.
8.5.1 Training. Lessee shall provide training for each University departmental
textbook representative to develop an effective and cooperative working relationship, and shall
provide other appropriate training for University personnel as reasonably requested by University.
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8.5.2 Special Sales.
Lessee acknowledges that University may permit
University-related groups and student government organizations to conduct special sales on
University’s Campus as long as such special sales do not materially and adversely impact
Campus Store sales. Such special sales must always be held in accordance with all applicable
University policies, procedures, and guidelines.
8.5.3 Marketing Plans. Lessee shall maintain an annual marketing and
promotions plan, subject to the prior approval of the University Representative. Lessee shall work
with University to develop and implement mutually advantageous development and marketing
efforts for the Campus Store. Such efforts may include book signings, parties for University
authors, scholarships, complimentary gifts, and other types of financial assistance, and other such
activities as might benefit Lessee, University, and the University’s students, faculty and staff.
8.5.4 Alumni Relations. Lessee understands the importance of building and
maintaining strong University alumni relations and will develop an annual advertising program
tailored to meet the needs of University alumni groups, for the purpose of stimulating continued
alumni support. Lessee will not correspond or otherwise directly contact University alumni without
prior approval by the University Representative in each instance.
8.5.5 Catalogues. Lessee shall have the right to design, produce and distribute
a catalog featuring the merchandise offered in the Campus Store. The merchandise selection,
catalog design, and production shall be subject to the prior written approval of the University
Representative. Lessee may provide catalog shopping services for University merchandise by
telephone, fax, toll-free telephone service, or the Virtual Campus Store Home Page on the
Internet.
8.5.6 Credit Card Marketing. A Service Offering will not include campus credit card
marketing activities unless such activities have received prior written approval from University. In
the event such approval is received, and the approved Service Offering includes campus credit
card marketing activities, then Lessee must comply with all requirements of Subchapter L of the
Texas Business and Commerce Code and ensure that a session on credit card and debt
education, as well as protecting personal information from identity theft, is included in the Service
Offering.
8.6
SciQuest Supplier. The University has entered into a license with SciQuest’s
HigherMarkets® (“SciQuest”) application to enhance the procurement processes for University
departments. SciQuest is a web-based sourcing and requisitioning solution for laboratory
products, office supplies, MRO, electronics, and other commodities. Lessee agrees to make its
catalog and pricing available to University for implementation in SciQuest. The online availability
of Lessee’s catalog will be loaded at no cost to Lessee. Upon execution of this Lease, Lessee
will cooperate with University to fulfill requirements needed to upload Lessee’s catalog. Lessee
will ensure the catalog is maintained and kept current.
9.
FISCAL MATTERS
9.1
Payments by Customers. Lessee is solely responsible for collecting payment of
all purchases of Goods and Services from the Campus Store. The University will not assume the
role of a collection agency for Lessee. The University will not adjudicate disputes between
Customers and Lessee over the existence or the amount of debts. Save and except to the extent
that the University itself is a customer as a result of an official University purchasing transaction
conducted under this Agreement, the University will not be deemed a party to or responsible for
81
any contracts, transactions, or agreements between Lessee and any person purchasing Goods
and Services at the Campus Store.
9.1.1
Credit Cards. With respect to sales of Goods and Services in the
Premises or through the Virtual Campus Store, Lessee will accept payment, at a minimum,
through cash and American Express, Discover, MasterCard, and VISA charge cards. Lessee will
pay all merchant charges associated with acceptance of charge cards. Lessee will additionally
offer a gift card program for the Campus Store.
9.1.2
Debit Cards and Personal Checks. Lessee will accept student, faculty,
and staff debit cards and personal checks in reasonable amounts for cash and/or purchases,
subject to appropriate and customary identification of the customers and verification of the checks.
9.1.3 Debit Cards. Lessee will accept payment for purchases through the
University’s card system/platform (“Card System”) known as the ____Card System. This Card
System includes a debit card program for use by the University’s students, faculty, staff and guests
for purchase of products at food service, bookstore, laundry, photocopy vending and other locations
on the Campus on a declining balance basis. Lessee shall accept the ____Card as a valid form of
payment and shall provide, install, maintain and replace as necessary all hardware, software and
accessories required to accommodate Card System transactions. The University shall be
responsible for the purchase of the University Cards used in the Card System, installation of
communication lines for the Card System, selling and establishing purchase value of the University
Cards for use in the Card System, determining the vending categories under which the Card System
can be used for purchases, and providing administrative and operational oversight of the Card
System. Lessee shall invoice the University weekly for Card System transactions, which invoice
may include sales and use tax charged to customers at point of sale. Lessee will provide with such
invoices documentary evidence of the underlying transactions of a form and substance reasonably
acceptable to University. Such invoice shall contain an account of the total amount of Goods and
Services purchased in gross dollars from University Cards transactions during such weekly
period. Remittance of sales tax for Card System transactions shall be the sole responsibility of
Lessee. The University will remit payment for Card System transactions with net thirty (30) days
following receipt of Lessee’s invoices.
9.1.4
Gift Cards. Lessee will offer for sale “gift” cards that may be used to
purchase Goods and Services.
9.1.5
Merchant Processor. Lessee may select and use a merchant
processing service of Lessee’s choice for credit transactions.
9.2
Payments by State Customer. In the event that the University or any other Texas
state agency or public institution of higher education (jointly and severally, “State Customers”)
procures any Goods or Services from Lessee at or through the Campus Store, Lessee will accept
the following from such State Customers as payment for such “State Customer Transactions”: (i)
official State Customer purchase orders and procurement cards (including, but not limited to, the
University’s procurement card, which is currently a Visa); or (ii) for purchases made by the
University, the University departmental account charges utilizing a transactional method approved
in writing by the University’s Disbursements Office.
9.2.1
University Purchases.
University will pay Lessee invoices in
accordance with the Texas Prompt Payment Act, Chapter 2251, Texas Government Code, as it
may be amended. In no event will Lessee enter into cash transactions with any University
82
departments for the sale of any hardware, software, goods, or service through the Premises.
Lessee shall submit timely billing for any charge sales incurred by the University’s departments.
Lessee will accept University departmental charges as a form of tender for Campus Store
purchases in accordance with applicable University policies. Purchases must be accompanied by
appropriate University forms and be completed in a manner approved by University. If made
available within the Term of this Agreement, Lessee will also accept University's procurement
and/or campus debit cards. UNIVERSITY DOES NOT COMMIT TO MAKE ANY PURCHASES
OF GOODS AND SERVICES UNDER THIS AGREEMENT.
9.2.2
Sales Taxes. State Customers will pay for all State Customer
Transactions in accordance with the Texas Prompt Payment Act, currently codified in Chapter
2251, Texas Government Code. State Customers are exempt from certain state taxes under
various exemption statutes. The University, an agency of the State of Texas, is exempt from
Texas Sales & Use Tax on the Goods and Services in accordance with Section 151.309, Texas
Tax Code, and Title 34, Texas Administrative Code (“TAC”) Section 3.322. Notwithstanding their
exemption from certain state taxes, a State Customer shall be responsible for any taxes (except
corporate income taxes, franchise taxes, and taxes on Lessee’s personnel, including personal
income tax and social security taxes) from which the State Customer is not exempt. Lessee will
provide reasonable cooperation and assistance to State Customers in obtaining any tax
exemptions to which the State Customers are entitled. Interest will be payable by State
Customers on all overdue amounts as specified in Section 2251.026, Texas Government Code,
as amended from time to time.
9.3
Point of Sale System. Lessee shall obtain vendor certification and become
established as a transaction integration agent with the University’s stored value card Lessee (if
any), CS Gold, and maintain a Point of Sale system compatible with the University’s Card System
in order to facilitate proper recordkeeping of the University’s accounting books and records.
Lessee, at its cost, will purchase, install, maintain and replace as necessary all hardware,
software, and accessories (including the installation of any necessary communication or
networking changes) that are necessary to implement and maintain the POS devices to interface
with the Card System. Upon Lessee’s written request, the University will provide Lessee with
specifications for CS Gold POS and/or card reading devices.
9.4
Accounting Period. The accounting period used for this Agreement shall be
monthly, as based on the Fiscal Year, as further described in Section 1.03 of Appendix 4 to the
Agreement.
9.5
Inspection and Audit. The University shall be informed by Lessee of any audit of
Lessee by any governmental entity of its records and/or operations under the scope of this
Agreement. the University shall receive full reports of any such audits. During the term of this
Agreement and for a period of four years thereafter, the University shall have the right (separate
and distinct from any audit rights of the Texas State Auditor under applicable law) to conduct its
own audit of Lessee’s records and operations by giving seven working days’ notice to Lessee. In
the event that such an audit is undertaken, Lessee shall provide reasonable working space and
access to its records to the University’s auditors. The University shall notify Lessee, in writing, of
any deficiency made known as a result of said audits. Lessee shall, within thirty days of receipt of
written notice, correct any deficiencies noted by said audit in its accounting or operating
procedures. If the University should uncover the under-reporting of sales by more than one
percent (1%), the cost of such audit shall be at Lessee’s expense and Lessee shall promptly pay
the University for any underpayments under this Agreement related to such under-reporting of
sales. All financial records and inventory records related to Lessee's performance of this
83
Agreement shall be maintained in Lessee’s offices.
9.6
Maintenance of Accounting Records. Lessee shall maintain accurate, complete
and separate books of accounts according to generally accepted accounting principles reflecting
completely its operations under this Agreement, together with appropriate supporting data and
documents. Lessee shall make such books of accounts, supporting data, and documents
available to the University for inspection, reproduction, and such records will be kept at a
reasonable place in or near the Texas county in which the store is located, Texas, or in Travis
County, Texas, and Lessee will make such financial records available for inspection there for a
period of at least four years after the termination of this Agreement. The University shall give
Lessee seven days prior written notice of its request to examine books of accounts and supporting
data.
9.7
Debt Collection. Lessee understands and agrees that it will be solely responsible
for collecting, securing and obtaining all payments for the Goods and Services that Lessee sells
under this Agreement. The University will not (i) assume the role of a collection agency for Lessee;
or (ii) adjudicate disputes between customers and Lessee concerning the existence or the amount
of any payments, costs, fees, debts, or other amounts that a customer may owe to Lessee.
Lessee further understands and agrees that, except to the extent that the University is the
purchaser of the goods or services from Lessee as a State customer, the University is not (i) a
party to any contracts, transactions, or agreements between Lessee and any other persons; or
(ii) responsible for any payments, costs, fees, debts, or any other amounts due or owed to Lessee
by any customer or any other individual, group, organization, or entity, including but not limited to,
students or student organizations.
10.
USE OF UNIVERSITY'S COMPUTER NETWORK. Subject to the prior written approval
of the University’s Chief Information Security Officer and other appropriate the University
personnel, Lessee may be permitted occasional limited use of the University's computer network
and information resources solely for Lessee’s direct performance of the Services. In that event,
Lessee will (i) comply with all of the University’s Information Resource Standards and the
University’s Security and Acceptable Use Policies, all of which are located at
http://www.utpa.edu/policies/UTPAAcceptableUse.pdf (subject to change); and (ii) execute and
deliver to the University the University’s Information Resources Acceptable Use Policy Agreement
Form located at (http://www.utpa.edu/policies/UTPAAcceptableUse.pdf); subject to change. In
conjunction with appropriate the University personnel, Lessee will determine what access, if any,
will be necessary to link Lessee to the University's computer network for business communication.
Notwithstanding anything to the contrary, however, Lessee will not connect any technology
equipment or devices to the University’s computer network or the University’s information
resources system without the prior written consent of the University’s Office of Information
Security.
11.
LIMITATION. Under no circumstances will the University Parties be liable for any
indebtedness or liability created or incurred by Lessee as a result of its operations on the
Premises. The University, by virtue of this Agreement, acts in the sole capacity of owner
of the property and except for those duties expressly undertaken by the University in this
agreement, will not be obligated or required to incur any expenses or liability resulting
from the business activities of Lessee in the Premises, except for those obligations
specifically undertaken by the University in this Agreement. This section shall survive the
expiration or sooner termination of this Agreement.
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12.
VIRTUAL CAMPUS BOOKSTORE. On or before ____, 201___, Lessee shall develop
and maintain a University-specific website (“Virtual Campus Store”) providing on-line services
such as product order submission, reserve product-ordering, and information about the status,
quantities, and promotions related to the products available at the Campus Store. The content,
layout, and design of the Virtual Campus Store will be subject to the approval of the University,
which shall have final approval over all of content on the Virtual Campus Store website. The
University shall provide a link to the Virtual Campus Store on the University’s internet home page.
The Virtual Campus Store will allow for (i) correspondence between Lessee and customers; and
(ii) customers to purchase the products and services offered for sale by Lessee in the Premises.
Lessee will maintain an uptime average of 99% for the Virtual Campus Store website. Lessee
shall ensure the Virtual Campus Store website is continuously updated to provide current and upto-date information. Lessee will maintain personnel with technical training sufficient to efficiently
administer and maintain the Virtual Campus Store.
12.1 EIR Accessibility. Lessee shall ensure that its use and operation of the Premises
shall meet all applicable legal requirements for accessibility by the disabled under the Americans
with Disabilities Act of 1990 and Chapter 469, Texas Government Code, and the regulations
adopted under those laws and all amendments thereto. Lessee represents and warrants (“EIR
Accessibility Warranty”) that the electronic and information resources and all associated
information, documentation, and support that it provides to the University under this Agreement
(collectively, the “EIRs”) comply with the applicable requirements set forth in Title 1, Chapter 213,
Texas Administrative Code, and Title 1 Texas Administrative Code Chapter 206, Rule §206.70
(as authorized by Chapter 2054, Subchapter M, Government Code.) To the extent Lessee
becomes aware that the EIRs, or any portion thereof, do not comply with the EIR Accessibility
Warranty, then Lessee represents and warrants that it will, at no cost to the University, either (i)
perform all necessary remediation to make the EIRs satisfy the EIR Accessibility Warranty or (ii)
replace the EIRs with new EIRs that satisfy the EIR Accessibility Warranty. In the event that
Lessee fails or is unable to do so, then the University may terminate this Agreement and Lessee
will refund to the University all amounts the University has paid under this Agreement within thirty
days after the termination date.
12.2 UT System Policies. Lessee will conduct all electronic commerce (including
hyper-links to alternate sites) and mail order catalogue in connection with Lessee’s use of the
Premises for the Permitted Use in compliance with UT System Administrative Policy UTS12
“Guidelines for Web Site Solicitations” (“UTS12”). A copy of UTS12 may be viewed at this
web address: http://www.utsystem.edu/policy/policies/uts122.html
13.
TECHNOLOGY STORE REPRESENTATIONS AND WARRANTIES. Lessee represents
and warrants to the University that as of the Commencement Date and continuously throughout
the Term of this Agreement:
13.1 Authorized Provider. Lessee will be an authorized as an authorized service
provider and certified service provider for Apple and the major manufacturers of the IBM/PC
Windows -based brands that Lessee sells in the Premises.
13.2 Authorized Apple Provider. Lessee will be authorized by Apple Computers to
sell and service Apple-Branded equipment to the University and its students, staff and faculty
13.3 Support. Lessee will employ at the Campus Store personnel to provide technical
and repair support to customers of the Campus Store and such personnel shall possess A+
certification and certification to provide warranty service of brands supported at the Campus Store.
85
13.4 State of Texas Computer Equipment Recycling Program Certification.
Pursuant to Section 361.965, Texas Health and Safety Code, Lessee certifies that it is full
compliance with the State of Texas Manufacturer Responsibility and Consumer Convenience
Computer Equipment Collection and Recovery Act set forth in Chapter 361, Subchapter Y, Texas
Health and Safety Code, and the rules adopted by the Texas Commission on Environmental Quality
under that Act as set forth in Title 30, Texas Administrative Code Chapter 328, Subchapter I. Lessee
acknowledges that this Agreement may be terminated and payment may be withheld if this
certification is inaccurate.
13.5 Telecommunications. With the prior written consent of the University, Lessee may
sell electronic communication devices at the Campus Store.
14.
SUSTAINABILITY. Lessee understands and acknowledges the University’s commitment
to environmental conservation and the potential impact of Lessee’s duties and obligations under
this Agreement on the environment. When reasonably possible, Lessee will utilize biodegradable
materials and strive for environmentally friendly standards in the performance of Lessee’s duties
and obligations under this Agreement. Lessee will participate in and comply with the University’s
waste recycling and energy conservation programs on the same basis as those programs apply
to the University departments.
15.
Intentionally Deleted.
16.
PRICING.
16.1 Pricing Structure. Lessee shall utilize industry standard, competitive and fair
pricing structures for textbooks and trade books sold on the Premises or through the Virtual
Campus Store. All books will be sold at a price no higher than the publishers' list price, or a 25%
gross profit margin on net price books. (i.e., net cost divided by .75), inclusive of restocking fees,
return penalties, or other surcharges. Lessee's fair pricing policy shall also apply to the following
categories of items sold in the Campus Store and the Virtual Campus Store as stated below:
(i)
E-books, e-coursepacks, coursepacks, text “packages,” “kits,” “sets,” and
“bundles,” and non-returnable and return-restricted texts shall be sold at
prices not more than a 30% gross margin (cost divided by .70, inclusive of
restocking fees and return penalties), plus a freight pass-through; and
(ii)
General merchandise shall be sold at a price not more than the normal
gross profit margin for similar merchandise in the college bookstore
industry and with retail establishments in the surrounding area; and
(iii)
Used books, including cloth, paperback and others, shall be sold at a 33%
gross profit margin on net price (i.e., net cost divided by .67) inclusive of
restocking fees, return penalties, or other surcharges; and
(iv)
Rental textbooks will offer a discount of no less than 55% off of new book
price. Lessee will be setting rental fees for each title, and any given title’s
fee may vary as a percentage of the retail selling price; and
(v)
Lessee shall ensure that all prices are clearly marked and prominently
indicated at the merchandise display area and/or on the merchandise itself.
86
University reserves the right of examining Lessee’s records to confirm adherence to the specified
pricing structure. If exceptions are identified and made known to Lessee by University, Lessee
will take immediate action to adjust the price in accordance with the specified pricing structure.
16.2. Special Orders. Lessee shall fill all special orders for textbooks, trade books,
software and general merchandise typical to a university bookstore. Upon request, Lessee shall
ship adopted out-of-stock textbooks via two day air during Fall and Spring semesters and next
day air during summer sessions. All other merchandise may be shipped in an appropriately
expeditious manner. Lessee will provide special ordering services for general books and software.
Pricing for special orders will be the lower of suggested retail price or up to 25% gross margin
plus actual freight cost for textbooks and trade books. Lessee shall facilitate locating hard to find
and out of print books from both foreign and domestic publishers by using electronic networks,
research services and other means to order these titles with maximum speed and efficiency.
16.3. Buybacks. Lessee shall purchase used textbooks year round. Lessee shall
purchase used textbooks that have been adopted for the coming semester at prices not less than
50% of the original customer purchase price. Lessee shall purchase non-adopted books at current
published wholesale market prices. Lessee shall purchase used textbooks from students in
maximum quantities sufficient to meet the students’ needs for the coming semester before
pursuing wholesale options. Lessee shall purchase used books not adopted for the next
academic term or in excess of course requirements at wholesale prices prevailing in the Campus’s
locality rounded to the nearest quarter
16.4 Discounts. Lessee will provide a _____% discount to all fulltime University faculty
and staff on all purchases over $1.00 from the Campus Store, excluding textbooks, sale
merchandise, and academically discounted software.
Lessee shall provide University
departments with a _______% discount on authorized purchases of supplies from the Campus
Store over $1.00, excluding textbooks, sale merchandise and academically discounted software.
16.5 Higher Education Opportunity Act. Lessee will reasonably assist University with
University’s compliance with the requirements of the Higher Education Opportunity Act (“HEOA”)
of 2008 or any other applicable state or federal law impacting the operation of the Bookstore
(“Applicable Regulations”) and submit a plan by which compliance will be implemented. To
facilitate University’s compliance with the Applicable Regulations, University will require its faculty
or registrar to provide Lessee timely and accurate course schedules, current and final course
enrollments, and course materials adoptions, all in mutually agreed electronic format, and on a
mutually agreed schedule. Lessee will offer University the use of Lessee’s _______ software,
which when installed by University, will allow University to link its online course catalog to the
http://assist.utpa.edu/ (subject to change).
87
APPENDIX 4 TO CAMPUS STORE AGREEMENT
RENT
Lessee and University acknowledge that because University is a not-for-profit state agency,
payments received by University from Lessee as compensation under this Lease Agreement
(whether denominated as “rent” or otherwise) may be subject to Unrelated Business Income Tax
(“UBIT”) under the U.S. Internal Revenue Code. For the purposes of aiding University in its
annual calculation of its UBIT obligations, if any, arising with respect to the compensation received
from Lessee, Lessee and University agree (but do not warrant or represent to the other party that
the following allocations will be accepted by the IRS) that the component compensation streams
to University under this Agreement are as follows:
Lease of the real property constituting the Premises
$_____________
Guaranteed Royalty or Percentage Royalty per Appendix 3, §3.2 $_____________
Lease of University personal property [Ref. Appendix 3, §2.3.1]
$_____________
License of University Marks
[Ref. Appendix 3, §2.1.5.1 & Appendix 6]
$_____________
Fieldhouse event sales [Ref. Appendix 3, §3.11]
$_____________
Advertising on campus [Ref. Appendix 3, §8.2]
$_____________
Catalogue Sales [Ref. Appendix 3, §8.5.5]
$_____________
Credit Card Marketing [Ref. Appendix 3, §8.5.6]
$_____________
Sale of electronic communication devices [Ref. Appendix 3, §13.5] $_____________
Sale of bookstore inventory [Ref. Appendix 3, §15]
$_____________
Capital contribution to remodeling of the Premises
[Ref. Appendix 4, §4.1]
$_____________
Periodic renovation Fee [Ref. Appendix 4, §4.2]
$_____________
Lessee’s textbook buyback rights [Ref. Appendix 4, §4.3]
$_____________
Lessee’s donation of scholarships [Ref. Appendix 4, §4.4]
$_____________
Utility reimbursement [Ref. Appendix 4, §4.5]
$_____________
Qualified sponsorship [Ref. Appendix 4, §4.6 generally]
Official Sponsor Designation [Ref. Appendix 4 §4.6.1]
$_____________
Public address announcements [Ref. Appendix 4, §4.6.2] $_____________
Link to sponsor’s web-site link [Ref. Appendix 4, §4.6.3]
$_____________
Sponsor Logo in print materials [Ref. Appendix 4, §4.6.4] $_____________
Promotional product [Ref. Appendix 4, §4.6.5]
$_____________
Financial sponsorship for non-athletic events
[Ref. Appendix 4, §4.6.6]
$_____________
1.
BASE FEE. The amount of $_____ per annum (“Base Fee”), payable in 12 equal monthly
installments due on or before the first day of each succeeding month during the Term for Lessee’s
use of the Premises. [If the respondent proposes that the base fee change during the Term,
please describe the change in your proposal.]
The Base Fee amount of $_____ per annum shall be payable in 12 equal monthly installments
due on or before the first day of each succeeding month during the Term for Lessee’s use of the
Premises.
The monthly installments of Base Fee will be prorated on a per diem basis for any partial calendar
month during the Term.
88
2.
ROYALTY. On a Fiscal Year by Fiscal Year basis (as “Fiscal Year” is defined below in
Section 2.3 of this Appendix 4), the greater of the “Guaranteed Royalty” or the “Percentage
Royalty,” as such terms are defined, described and calculated below. Lessee is advised that the
Board of Regents Rules prohibit requiring that a tenant/Lessee/vendor pay a UT institution a
royalty on any sales to students of books or other materials, whether in printed or electronic
format, that the student is required to obtain in order to attend a class offered by the UT institution.
For purposes of this Agreement, the terms “Gross Revenue” and “Adjusted Gross Revenue”
will have the meanings as defined below, and “Academic Materials” shall have the definition set
out in Section 3.6.1 of the main Agreement.
2.1
Gross Revenue. “Gross Revenue” means all income revenues, commissions
and warranty payments resulting from the occupancy or use of the Premises by Lessee during
the Term, whether through Lessee or any person holding under Lessee in the Premises, from
whatever source derived and whether for cash, campus debit card, credit or in kind, other than
from Academic Materials. Gross Revenue shall include, without limitation, the entire amount of
the sales price, whether for cash or otherwise, of all sales of hardware, software, goods, products
and services whatsoever (including, without limitation, gift and merchandise certificates) of all
business conducted on the Premises (including without limitation, mail and telephone orders
received at the Premises and orders through the Virtual Campus Store, the internet or the
University’s website pertaining to Lessee’s operations in the Premises, whether or not such orders
are delivered or filled out of the Premises) during the Term, including, without limitation, (i) interest,
finance charges, service charges; (ii) credit sales; (iii) proceeds from rent loss insurance; (iv) any
commissions earned from resellers, affiliates, franchise owners, or parent companies; (v) deposits
not returned to purchasers, even though such orders may be filled elsewhere; and (vi) sales to
employees of Lessee, other than from Academic Materials. Each sale upon installment or credit
shall be treated as a sale for the full price during the month in which such sale was made,
irrespective of when Lessee receives payment from the customer. No deduction shall be allowed
for uncollected or uncollectible credit accounts, receivables or returned checks. Lessee agrees
to use its best efforts to maximize Gross Revenue, consistent, with competitive practices in the
industry.
2.2
Adjusted Gross Revenue. Adjusted Gross Revenue means Gross Revenue less
the following:
(i)
refunds;
(ii)
discounts; and
(iii)
all applicable sales taxes paid by Lessee to any governmental agency
assessing or collecting such sales taxes. The amount of such taxes shall
be shown on the books, records of account and documentation required to
be maintained by Lessee under this Agreement.
2.3
Fiscal Year. “Fiscal Year” means the twelve-month period commencing upon
September 1 and ending upon the immediately following August 31.
3.
PAYMENT OF ROYALTY. For each Fiscal Year during the Term, Lessee agrees to pay
to the University, in the manner and on the terms and conditions set forth in this Exhibit, the
greater of (i) the Guaranteed Royalty, or (ii) the Percentage Royalty for that Fiscal Year. Lessee’s
obligation to pay amounts incurred under this Section shall survive the expiration or sooner
termination of this Agreement.
89
3.1
Guaranteed Royalty. The Guaranteed Royalty is $_____ per Fiscal Year during
Lessee’s use of the Premises, which amount is payable in 12 equal monthly installments of
$__________ each during the Fiscal Year.
The Guaranteed Royalty is $_____ per Fiscal Year during Lessee’s use of the Premises, which
amount is payable in 12 equal monthly installments of $__________ each during the Fiscal Year.
[Respondent should describe changes over time, if any] The first monthly installment of
Guaranteed Royalty is payable on or before __________________ and subsequent monthly
installments are payable in advance on or before the first day of each succeeding calendar month
during Fiscal Year. The monthly installments of Guaranteed Royalty will be prorated on a per
diem basis for any partial calendar month during the Fiscal Year.
3.2
Percentage Royalty. The Percentage Royalty for a particular Fiscal Year is the
sum of the following amounts for that Fiscal Year:
Lessee’s Use of Premises:
___% of Gross Revenue less than $500,000 in a Fiscal Year
___% of Gross Revenue between $500,001 - $1,000,000 in a Fiscal Year
___% of Gross Revenue over $1,000,000 in a Fiscal Year
Royalty payments for the first year shall accrue from the Commencement Date through August
31, 2013. Thereafter, Royalty payments shall accrue from September 1, through the following
August 31 (a “Fiscal Year”), or the earlier expiration or termination of the Agreement. User shall
pay the amount by which the Royalty exceeds the sum of the Minimum Guaranteed Monthly
Royalty Payments during such Fiscal Year to University at University’s address as set forth below
on or before the sixtieth day after the end of the annual accrual period to which such payments
relate. This obligation shall survive the expiration or termination of this Agreement.
3.3
Third Parties. Lessee must cause all other persons using the Premises under or
through Lessee to comply with the record keeping and reporting requirements of this Appendix
4, and for purposes of calculating Lessee’s Gross Revenue and Adjusted Gross Revenue
hereunder, sales and payments arising from the occupancy or use of the Premises by such third
parties shall be deemed part of Lessee’s Gross Revenue and the Adjusted Gross Revenue.
3.4.
Accounting For Percentage Royalty.
3.4.1 Recording Revenue Receipts. Lessee will utilize the ___________ POS
to conduct Lessee’s day-to-day business operations in the Premises. Lessee will use this POS
System to capture every sales transaction pertaining to or arising from Lessee’s use and
occupancy of the Premises. All cash registers must be equipped with (i) sales totalizer counters
for all sales categories; and (ii) a sequential transaction counter. Counters must lock in, constantly
accumulate, and must not allow resetting. The registers shall further contain tapes upon which
sales details and the sequential transaction numbers are imprinted. Beginning and ending sales
totalizer readings shall be made a matter of daily record or recorded by means approved by the
University. Lessee will submit a copy of the POS report for a calendar month to the University no
later than fifteen (15) days following the end of that calendar month, showing the Gross Revenue
and the gross sales of Academic Materials for the period in question. Each report must be signed
by Lessee or its responsible agent under penalty of perjury. Upon the University’s request from
time to time, Lessee will also provide the University with (i) a revenue earnings report on a daily
90
or weekly basis; and (ii) an individualized income statement for sales.
3.4.2 Use of Other Devices. Sales which are subject to the payment of
Percentage Royalty may be recorded by a system other than cash registers, provided such
system is approved in advance in writing by the University.
3.4.3 Monthly Sales Reports. No later than fifteen (15) days following the end
of each calendar month during the Term, Lessee will submit to the University a sales report
(“Sales Report”), in accordance with the following requirements and definitions.
3.4.4 Revenue. Each Sales Report shall state the Gross Revenues for the
calendar month in question and for the Fiscal Year to date. Any adjustments to Sales Reports
that are required as a result of review and/or audit shall be identified and reflected on the next
month’s Sales Report. A Sales Report shall include information on requested items that were out
of stock at the time of the request, and shall break out sales of Athletic Merchandise separately
from the sales of University Goods and Services, reference Appendix 3, Section 2.
3.4.5 Taxes and Other Adjustments. Each Sales Report shall contain an
itemization and identification of (i) credit or refunds allowed; (ii) discounts; and (iii) sales taxes
realized during the calendar month.
3.5
Meetings. Upon request of the University, Lessee shall meet with the University
and review each Sales Report, explain deviations, discuss problems, and mutually agree on
courses of action to improve the reports and accounting required under this Appendix 4.
3.6
Financial Reconciliation. Not later than 15 days after the end of a Fiscal Year,
Lessee shall deliver to the University Lessee’s written accounting of (i) the Gross Revenue and
Adjusted Gross Revenue generated by operations in the Premises during the Fiscal Year, and (ii)
the Percentage Royalty for the Fiscal Year. If the Guaranteed Royalty for the Fiscal Year is less
than the Percentage Royalty for that Fiscal Year, then Lessee must pay to the University the
amount by which the Percentage Royalty exceeds the Guaranteed Royalty not later than 30 days
following the expiration of the Fiscal Year in question. If the Percentage Royalty is less than the
Guaranteed Royalty, no refund will be made to Lessee of any part of the Guaranteed Royalty.
3.7
Royalty At Termination. In the event this Agreement is terminated prior to the
end of the Term for any reason other than an Event of Default by Lessee prior to the end of the
Term, Royalty will be paid by Lessee to the University only through the effective date of
termination. If this Agreement is terminated for any reason prior to its expiration date, Lessee
shall pay the University the Royalty through the effective date of the termination of this Agreement
no later than thirty days after the effective date of the termination.
4.
OTHER FEES.
4.1
Capital Contribution. Lessee will make a Capital Contribution to University in the
amount of ________ ($______) (the “Capital Contribution”) for the campus store improvements.
The Capital Contribution will be paid within thirty days after the Effective Date of the agreement.
4.2 Renovation Fee. At the time of the ____ anniversary of the Commencement Date, Lessee
will contribute $________ to be spent on refurbishment and refreshment of the Premises.
4.3
Annual Buyback Rights Fee. Lessee will pay University the amount of ______
91
($___) for the exclusive right to conduct buybacks (“Buyback Rights”) on the University
Premises, including remote area(s) designated by University (reference Appendix 3, Section
3.8). The Buyback Rights Fee will be paid within thirty days after the Effective Date of the
agreement and upon the anniversary date for each agreement year thereafter.
4.4
Scholarship Commitment: As additional consideration to University for the rights
to Lessee herein granted, Lessee will provide $_____ in scholarship monies each Fall and Spring
academic semester of University during the Term. The initial scholarship payment shall be paid
by Lessee to University within thirty days of the execution by all parties of this Agreement. The
second semi-annual scholarship payment shall be paid by Lessee to University at University’s
address set forth below on or before _______, 20____. Thereafter, scholarship payments of
$______ each shall be paid to University at the place for payment of Rent on or before _____ 15
and ____ 15 of each calendar year during the Term.
4.5
Utility Reimbursement. Lessee agrees to pay to University, concurrently with
Lessee’s monthly installments of Rent, a flat fee (“Utility Reimbursement”) of:
$________Dollars ($___.00) per month as compensation for the utilities consumed
on the Premises occupied in the Premises.
$______Dollars ($___.00) per month upon occupancy in the Premises.
In the event that the first or last month of the Term is a partial month, the Utility Reimbursement
shall be prorated on a per diem basis. Utilities do not include telecommunication charges to be
paid by Lessee.
92
APPENDIX 5 TO CAMPUS STORE AGREEMENT
UNIVERSITY OWNED FURNISHINGS
(This exhibit will be updated to include Brownsville campus furnishings. Equipment can be
relocated to any UTRGV location.)
DESCRIPTION BY CATEGORY
Equipment-Video Surveillance
Cable - Power Non Plenum. 750'
Color Specialty Camera. Tyco Safety Products Sensormatic. American
Dynamics
Digital Video Management System. Tyco Safety Products Sensormatic.
American Dynamics Intellex Digital Video Management System.
Fixed Drone. Tyco Safety Products Sensormatic. American Dynamics
Power Supply - Tyco Safety Products Sensormatic. American Dynamics
Power Supply
Power Supply - Tyco Safety Products Sensormatic. American Dynamics
Power Supply
Programmable Dome Camera - Tyco Safety Products Sensormatic.
American Dynamics Programmable Dome Camera
Fixtures
10X48 TRADE PANS
11X7 ACRYLIC SIGNHOLDER W/MAG FEET
12 X 24 BULLNOSED SHELVES
12 X 27 FLATSHELVES
12" SLATWALL SHELF BRACKETS
12X27 SHELVES
12X36 SHELVES
12X36 WIRE SNACKS SHELVES
12X48 SHELVES
12X48 SHELVES
12X48 WIRE SNACKS SHELVES
18"O.C. SLATWALL 23"L X 86"H W/BLACK INSERTS
18"O.C. SLATWALL END FILLER 3"L X 86"H W/BLACK INSERTS
18X36 SHELVES
18X48 SHELVES
18X48 SHELVES
20" ROUND TABLE 20"H
25 T4 41 OILED CHERRY TEXT GONDOLA 49"L X 18/18D X 72"H WITH
(2) SOLID BACKS
28" ACRYLIC GONDOLA SIGN HOLDER
2-WAY MULTI MERCHANDISER
3-TIER TABLE W/WOOD BASE & WOOD TOP W/ BASE SHELF
4' WALLCASE SIGN HOLDER
4 WAY GIFT DISPLAY
48" 3 POCKET MAGAZINE SHELF W/ ACRYLIC FRONT, METAL
FRONT ANGLE & BRACKETS
48" 4 POCKET MAGAZINE SHELF W/ ACRYLIC FRONT, METAL
FRONT ANGLE & BRACKETS
93
QTY
1
2
1
2
1
1
1
36
5
4
4
8
10
14
4
36
14
28
19
8
32
6
328
1
41
91
2
2
1
1
2
1
60"L RUSH CHECKOUT ON CASTERS W/ REMOVABLE TOPS
COMPLETE WITH (2) 30" X 30" RUSH CHECKOUT COVER PANELS
A1 6 HAMMERTONE 4' WALLCASE SIGN HOLDER
ADA @ INFO COUNTER 48"X30"X30"H
ADA TRANSACTION COUNTER 30X36LX34"H
ADA TRANSACTION COUNTER 48"X30"X34"H
ANTI-FATIGUE MAT 5/8X3'X5'
BASE FOR SLATWALL 3/4" X 4" X 96"
BASE FOR WALLCASES 3/4" X 4" X 96"
COUNTER END PANEL 3/4"X31 1/4"X30 1/4"
COUNTER END PANEL 3/4"X31 1/4"X34 1/4"
CREDENZA 60"L
CREDENZA 60"L W/ 1 HANGER RACK AND 3 BARS
END PANEL 3/4" X 6" X 89"H
END TRIM FOR SLATWALL 3" X 4" X 89"
END TRIM FOR SLATWALL 3" X 4" X 99"
FLAT FRONT CHECKOUT 60"LX30"DX46"H W/LEDGE
GIFT GONDOLA 4'L
GIFT SPINNER
GLASS SHELF 8"D
INFO COUNTER END PANELS
INFORMATION COUNTER W/LEDGE 60"LX30"DX44"H
KNEE WALL 112"L
LAMINATE PANEL 47 1/8"W X 96"H
LAMINATE PANEL END FILLER 3"W X 96"H
MAGAZINE WALLCASE 49"LX18"HX85"H WITH SLATWALL BACK W/
BLACK INSERTS
MUG TREE
NEW STYLE T-SHIRT DISPLAY 17 1/4"X24"X48"
PLAIN END PANEL FOR 62" GONDOLA 28"X55" WITH METAL
STANDARDS
PLAIN END PANEL FOR 72"H GONDOLA 37"X65" WITH METAL
STANDARDS
PLYWOOD BACKER SHEET 48"X85"
PLYWOOD BACKER SHEET 48"X95"
REGISTER STAND 30X30X46"H W/LEDGE
SLATWALL END PANEL FOR 62" GONDOLA 28"X55" WITH METAL
STANDARDS
SLATWALL END PANEL FOR 72"H GOND. 37"X65" WITH METAL
STANDARDS
SLATWALL GLASS SHELF BKT 8"L
SLATWALL HOOK 6"L
SLATWALL HOOK 8"L
SLATWALL HOOK 8"L
SNACKS GONDOLA 37"LX12/12"DX62"H W/(2)SW BACKS W/METAL
INSERTS
SNACKS GONDOLA 49"LX12/12"DX62"H W/(2)SW BACKS W/METAL
INSERTS
STACKING TABLE 15"W X 22"H X 28"L
STACKING TABLE 15"W X 34"H X 36"L
94
3
6
1
1
1
3
7
4
1
2
2
1
2
6
2
3
2
3
12
2
1
2
3
2
1
1
2
10
5
10
3
3
8
11
24
72
1,080
64
1
7
1
1
STACKING TABLE 30"W X 22"H X 48"L
STACKING TABLE 30"W X 30"H X 60"L
SUPPLIES GONDOLA 49"LX12/12"HX62"H WITH (2) SLATWALL
BACKS W/ BLACK INSERTS
TABLE 20" ROUND X 24"H
TABLE RISER 15"W X 12"H X 48"L
TEXT GONDOLA 37"L X 18/18D X 72"H WITH (2) SOLID BACKS
TRADE PAN 10X48
TRADE PAN 8X48
TRADE WALLCASE 49"LX18"HX85"H WITH SLATWALL BACK W/
BLACK INSERTS
TRIM FOR SLATWALL 3/4" X 1 5/8" X 96"
WALL POST 86"L
WALL POST 96"L
WALLCASE TIE PLATES
WOOD BASE PLATFORM 6 1/4"HX16"DX28"L
WOOD BASE PLATFORM 6 1/4"HX18"DX37"L
WOOD BOOKBAG DROP 48"L
Furnishing - Office
1.5' T X 2' X2' TABLE
10' L-SHAPED DESK (COMPRESSED WOOD)
12' L-SHAPED DESK (RUBBERMAID)
12' U-SHAPED DESK (RUBBERMAID)
16' U-SHAPED DESK (RUBBERMAID)
16' WRAPAROUND DESK (RUBBERMAID)
2 DRAWER 2.5' T X 1.5' W X 2.5' D FILE CABINET (RUBBERMAID)
2 DRAWER 2.5' T X 3' W X 2.5' D FILE CABINET (COMPRESSED
WOOD)
2' T X 3.5' W X 1' DEEP STEEL FILING CABINET
2.5' T X 3' W X 2.5' D TWO DRAWER FILE CABINET (STEEL)
2.5' X 2.5' WEDGE SHAPED TABLE (RUBBERMAID)
23' U-SHAPED DESK (RUBBERMAID)
3 DRAWER 2.5' T X 1.5' W X 2.5' D FILE CABINET (RUBBERMAID)
3' L X 2.5' DEEP TABLE (RUBBERMAID)
3' T X 3' W X 1' DEEP STEEL BOOKSHELF
3' T X 3' W X 2.5' DEEP TABLE (RUBBERMAID)
3' T X 3.5' L X 2' DEEP TABLE
3' T X 5' W X 2.5' DEEP TABLE (RUBBERMAID)
3' TABLE (RUBBERMAID)
3.5' T X 3' W X 1.5' DEEP STEEL FILING CABINET
3.5' T X 3.5' W X 1.5 DEEP (BEIGE)
3.5' T X 3.5' W X 1.5 DEEP (BROWN)
3.5' T X 7' W X 1.5 DEEP (BROWN)
4' L X 2.5' DEEP TABLE (RUBBERMAID)
4' LONG NESTING TABLE (RUBBERMAID)
4' TABLE (RUBBERMAID)
4.5' T X 1.5' W X 3' DEEP STEEL FILING CABINET
5' L X 3' D LAMINATE TABLE
5' T X 8' L DESK WITH WALL
6' T X 2.5' W X 1.5' DEEP FIVE LEVEL BOOK SHELF
95
2
2
18
1
2
4
6
24
6
9
23
4
6
8
6
2
1
1
1
1
1
1
6
1
1
1
1
1
4
1
1
1
1
1
1
1
1
1
1
1
2
1
1
1
1
1
6.5' TALL X 3' W FILING CABINET
7' T X 4' W X 4' DEEP ROTATING FILING CABINET (STEEL)
COFFEE TABLE
EXECUTIVE LEATHER CHAIR
FILING CABINET
L-SHAPED DESK W/ OVERHEAD CABINETS (COMPRESSED WOOD)
OFFICE CHAIRS
PRINTER TABLE (RUBBERMAID)
SOFA CHAIR
U-SHAPED DESK W/ OVERHEAD CABINETS (COMPRESSED WOOD)
Furnishing - Store
Mfg - Carolina. Style - Qubz Ottoman, 18x18
Mfg - Carolina. Style - Retrospect Lounge Chair, no arms.
Mfg - Carolina. Style - Retrospect Lounge Chair, NoArms
Mfg - Carolina. Style - Retrospect Loveseat Bench
Mfg - Carolina. Style - Retrospect Single Bench
Miscellaneous
FOUR WHEEL CART FLAT
TEXTBOOK HAND TRUCK
96
1
1
1
1
1
1
7
1
2
1
1
1
1
1
1
1
5
APPENDIX 6 TO CAMPUS STORE AGREEMENT
Trademark License Agreement
This Trademark License Agreement ("License Agreement"), dated as of [DATE], is by and
between The Board Of Regents of The University of Texas System, an agency of the State of
Texas (hereinafter referred to as the “Board”), for the use and Benefit of The University of
Texas Rio Grande Valley , an agency of the State of Texas (“University”), and
_______________ a _______________ (the "Licensee").
WHEREAS Licensee and University have entered into an agreement for [fill in details] dated
_______________ (hereafter “[Main] Agreement”);
WHEREAS, Board is the owner of and has the right to license the Marks (as defined below);
and
WHEREAS, Licensee wishes to use the Marks in the Territory (as defined below) in
connection with the Licensed Materials (as defined below) and Board is willing to grant to
Licensee a license to use the Marks on the terms and conditions set out in this License
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Definitions. For purposes of this License Agreement, the following terms shall have the
following meanings:
"Action" has the meaning set forth in Section 11.1.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control with, such Person.
The term "control" (including the terms "controlled by" and "under common control with") means
the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Brand Manual" means Board's guidelines prescribing the permitted form and manner in
which the Marks may be used, a copy of which is attached to this License Agreement as Exhibit
A to Schedule 3, including any amendments or additions notified in writing by Board to Licensee
from time to time.
"Board" has the meaning set forth in the preamble.
97
"Confidential Information" has the meaning set forth in Section 9.1(a).
"Effective Date" means the date of this License Agreement as set forth in the preamble.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty,
common law, judgment, decree, other requirement or rule of law of any federal, state, local or
foreign government or political subdivision thereof, or any arbitrator, court or tribunal of
competent jurisdiction.
"Licensed Materials" means anything Licensee makes, uses, sells, offers for sale,
commissions, or directs the use of which bears, uses, or otherwise displays any of the Marks.
Licensed Materials include
• all advertising and promotional materials,
• all materials and services listed in Schedule 2,
• all Licensed Products (as defined below), and
• any other materials, products or services that may be agreed upon in writing by
Board and Licensee from time to time
which bears, uses, or otherwise displays any of the Marks.
"Licensed Products" means
• the specific products listed in Schedule 2,
• any product to be displayed, sold, or otherwise distributed, and
• any other products that may be agreed upon in writing by Board and Licensee from
time to time
upon which any of the Marks are imprinted, engraved, attached or otherwise affixed.
"Licensee" has the meaning set forth in the preamble.
"Losses" means losses, damages, liabilities, deficiencies, actions, judgments, interest,
awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys'
fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing
any insurance providers.
"Marks" means the trademarks, service marks and domains name set forth on Schedule 1
whether registered or unregistered, including the listed registrations and applications and any
registrations which may be granted pursuant to such applications.
"Person" means an individual, corporation, partnership, joint venture, limited liability
company, governmental authority, unincorporated organization, trust, association or other entity.
"Quarterly Period" means each three-month period commencing on the 1st of January, 1st
of April, 1st of July and 1st of October.
98
"Sell-Off Period" has the meaning given to it in Section 14.2.
"Term" has the meaning given to it in Section 13.1.
2. License.
2.1 License Grant. Subject to the terms and conditions of this License Agreement, Board
hereby grants to Licensee during the Term a non-exclusive, non-transferable (except as
provided in Section 12), non-sublicenseable license to use the Marks on or in connection with
the promotion, advertising, distribution and sale of Licensed Materials in the United States of
America ("Territory").
2.2
Territorial Restrictions. Licensee shall not:
(a) undertake advertising of Licensed Materials in, or specifically aimed at, any
country outside the Territory;
(b) actively seek orders for Licensed Materials from outside the Territory; or
(c) establish any branch dealing in Licensed Materials or maintain any distribution
center for Licensed Materials outside the Territory.
2.3 Business Names and Domain Names. Without Board's prior written consent, Licensee
shall not use the Marks (or any Marks confusingly similar thereto), individually or in combination,
as part of:
(a) its corporate or trade name; or
(b) any domain name other than the domain name(s) listed on Schedule 1 to this
License Agreement.
2.4
Sublicensing. Licensee shall not grant sublicenses under this License Agreement.
3. Use of the Marks.
3.1 University-Licensed Products. This License will not entitle Licensee to use a
Trademark for any purpose other than performing its obligations under the License Agreement;
therefore, if Licensee desires to use one or more of the Marks on any product to be displayed,
sold, or otherwise distributed, then such use must be authorized pursuant to a separate
agreement to license the Marks issued by Strategic Marketing Affiliates or a successor identified
by University. When using the Marks under this License, Licensee will comply with all applicable
laws and regulations pertaining to trademarks, including without limitation compliance with
marking requirements. All Licensed Products made, sold or otherwise distributed by Licensee
in the Territory shall carry the Marks. Licensee shall comply strictly with the directions of Board
99
regarding the form and manner of the application of the Marks, including the directions
contained in the Brand Manual and the requirements of Section 3.2
3.2 Licensee must obtain prior approval from Trademarks Director for the use of any of the
Marks (i) on any products, (ii) for any services, (iii) in any form of advertising or other promotion,
and (iv) in any advertising or promotional copy or graphics to be used by Licensee in any media,
including without limitation, a public address announcement or other audio or video broadcast.
Trademarks Director’s approval under this Section 13.4 will not be unreasonably withheld,
conditioned or delayed; provided, however, that Trademarks Director will have the right, in his or
her sole discretion, to decline to approve any use of Marks on any products, for any service, or
in copy or graphics that (i) is in violation of any Applicable Laws, Athletic Organization Rules, or
University Rules; or (ii) Trademarks Director or University Representatives considers to be
misleading or offensive. Requests for approvals will be submitted to:
Craig Westemeier
Associate Athletics Director, Trademarks Licensing (“Trademarks Director”)
The University of Texas at Austin
P.O. Box 7399
Austin, Texas 78713
512-475-7923
512-232-7080 fax
[email protected]
or
[email protected]
3.3 No Other Marks. Apart from the Marks, no other trademark or logo may be affixed to, or
used in connection with, the Licensed Materials except that, Licensee may use its trade name
on packaging, advertising and promotional materials for the Licensed Materials.
3.4 Trademarks Notices. Licensee shall ensure that all Licensed Materials sold by
Licensee and all related quotations, specifications and descriptive literature, and all other
materials carrying the Marks, be marked with the appropriate trademark notices in accordance
with Board's instructions.
4. Ownership and Registration.
4.1 Acknowledgement of Ownership. Licensee acknowledges that Board and its Affiliates
are the owners of the Marks throughout the world. Any goodwill derived from the use by
Licensee of the Marks shall inure to the benefit of Board. If Licensee acquires any rights in any
of the Marks, by operation of law, or otherwise, such rights shall be deemed and are hereby
irrevocably assigned to Board without further action by any of the parties. Licensee agrees not
to dispute or challenge or assist any Person in disputing or challenging Board's rights in and to
any of the Marks or the validity of any of the Marks.
4.2 Licensee Restrictions. Licensee agrees that it shall not, during the Term or thereafter,
directly or indirectly:
100
(a) do, omit to do, or permit to be done, any act which will or may dilute the Marks or
tarnish or bring into disrepute the reputation of or goodwill associated with the Marks or Board
or which will or may invalidate or jeopardize any registration of the Marks; or
(b) apply for, or obtain, or assist any Person in applying for or obtaining any
registration of the Marks, or any trademark, service mark, trade name or other indicia
confusingly similar to the Marks in any country/in the Territory.
4.3 Maintenance of Registrations. Board shall at expense take all reasonable steps to
maintain the existing registrations of the Marks and prosecute to registration any pending
applications . Licensee shall provide, at the request of Board and at Licensee's expense, all
necessary assistance with such maintenance and prosecution.
4.4 No Encumbrances. Licensee shall not grant or attempt to grant a security interest in, or
otherwise encumber, the Marks or record any such security interest or encumbrance against
any application or registration regarding the Marks in the United States Patent and Trademarks
Office or elsewhere.
5. Quality Control.
5.1 Acknowledgement. Licensee acknowledges and is familiar with the high standards,
quality, style and image of Board, and Licensee shall, at all times, conduct its business and use
the Marks in a manner consistent with these standards, quality, style and image.
5.2 Compliance With Board Specifications. Licensee shall comply with the specifications,
standards and directions relating to the Licensed Materials, including their design, manufacture,
promotion, packaging, distribution and sale as notified in writing by Board from time to time.
5.3 Compliance With Laws. In exercising its rights under this License Agreement, Licensee
shall comply with, and shall ensure that each Licensed Product sold or otherwise supplied by
Licensee complies with, all applicable Laws. Licensee shall promptly provide Board with copies
of all communications, relating to the Marks or the Licensed Materials, with any governmental,
regulatory or industry authority.
5.4 Inspection of Facilities. Licensee shall permit, and shall obtain permission for, Board at
all reasonable times to enter any place used for the manufacture, storage or distribution of the
Licensed Materials to inspect the methods of manufacture, storage and distribution to ensure
compliance with the quality standards or any other specifications or requirements set forth in
this License Agreement.
5.5 Submission of Materials for Approval. Licensee shall, at its own expense, prior to any
use of the Marks and thereafter at least once in every six months (and at any time at Board's
request) supply a reasonable number of production samples of the Licensed Materials to Board
for approval as per the requirements of Section 3.2, which may be given or withheld in Board's
sole discretion. In the event that Board rejects any sample, it shall use reasonable efforts to give
101
written notice of such rejection to Licensee within 30 days of receipt by Board of the sample.
Licensee shall immediately cease distribution of such Licensed Materials and shall not
recommence distribution until Board confirms in writing that it may do so. In the absence of a
written notice of rejection, within 30 days of receipt of a sample, the sample shall be deemed to
have been disapproved by Board.
5.6 Rejected, Damaged or Defective Products. Licensee shall not sell, Market, distribute or
use for any purpose, or permit any third party to sell, Market, distribute or use for any purpose,
any Licensed Materials which are rejected by Board pursuant to Section 5.5, or which are
damaged or defective.
5.7 Complaints. Licensee shall promptly provide Board with details of any complaints it has
received relating to the Licensed Materials together with reports on the manner in which such
complaints are being, or have been, dealt with and shall comply with any reasonable directions
given by Board in respect thereof.
5.8 Subcontracting. Licensee shall not subcontract the manufacture of the Licensed
Materials.
5.9 Product Recall. Licensee agrees to take all reasonable steps, which may include,
without limitation, product recalls, to abate any health or safety risks posed by the Licensed
Materials as expeditiously as possible. Upon Board's written request, Licensee shall provide to
Board for Board's review and approval, a copy of Licensee's recall program for the Licensed
Materials. Licensee shall have complete responsibility for determining if a product recall is
required and Licensee shall bear responsibility for all costs and expenses associated with any
recall of the Licensed Materials.
6. Marketing, Advertising and Promotion.
6.1
Marketing and Advertising Requirements. Licensee shall:
(a) use its best efforts to promote and expand the supply of Licensed Materials
throughout the Territory;
(b) provide such advertising and publicity as may reasonably be expected to bring the
Licensed Materials to the attention of as many purchasers and potential purchasers as possible;
and
(c) ensure that its advertising, marketing and promotion of the Licensed Materials in
no way reduces or diminishes the reputation, image and prestige of the Marks or of products
sold under or by reference to the Marks (including, without limitation, the Licensed Materials).
6.2 Approval of Marketing and Advertising Materials. Licensee shall send to Board for its
prior written approval the text and layout of all proposed advertisements and marketing and
promotional material relating to the Licensed Materials as per the requirements of Section 3.2,
102
which may be given or withheld in Board's sole discretion. In the event that Board disapproves
of such material, it shall give written notice of such disapproval to Licensee within 20 days of
receipt by Board of the material. In the absence of a written notice of disapproval within 20 days
of receipt of such materials, the materials shall be deemed to have been disapproved by Board.
Licensee shall not use any material in the advertising, marketing or promotion of Licensed
Products which has not been approved by Board.
6.3 Cost of Marketing and Advertising. Licensee shall bear the costs of all advertising,
marketing and promotion for the Licensed Products in the Territory.
6.4 Celebrity Endorsement. Licensee shall not use a personality or celebrity to endorse or
promote any Licensed Products without the prior written approval of Board.
7. Protection of the Marks.
7.1 Notification. Licensee shall immediately notify Board in writing giving reasonable detail
if any of the following matters come to its attention:
(a) any actual, suspected or threatened infringement of the Marks;
(b) any actual, suspected or threatened claim that the Marks is invalid;
(c) any actual, suspected or threatened opposition to the Marks;
(d) any actual, suspected or threatened claim that use of the Marks infringes the
rights of any third party;
(e) any person applies for, or is granted, a registered trademark by reason of which
that person may be, or has been, granted rights which conflict with any of the rights granted to
Licensee under this License Agreement; or
(f)
any other actual, suspected or threatened claim to which the Marks may be
subject.
7.2
Actions. With respect to any of the matters listed in Section 7.1:
(a) Board shall decide, in its sole discretion, what action if any to take;
(b) Board shall have exclusive control over, and conduct of, all claims and
proceedings;
(c) Licensee shall provide Board with all assistance that Board may reasonably
require in the conduct of any claims or proceedings; and
(d) Board shall bear the cost of any proceedings and shall be entitled to retain all
sums recovered in any action for its own account.
103
8. Royalties and Payment Terms.
8.1
Royalties. The Board licenses the Marks to the Licensee royalty free.
9. Confidentiality.
9.1
Licensee Obligations. Licensee agrees:
(a) not to disclose or otherwise make available to any third party any information that
is treated as confidential by Board, including, without limitation, trade secrets, technology,
information pertaining to business operations and strategies, and information pertaining to
customers, pricing, and marketing (collectively, the "Confidential Information") without the
prior written consent of Board; provided, however, that Licensee may disclose the Confidential
Information to its officers, employees, consultants and legal advisors who have a "need to
know", who have been apprised of this restriction and who are themselves bound by
nondisclosure restrictions at least as restrictive as those set forth in this Section 9;
(b) to use the Confidential Information as permitted under this License Agreement;
and
(c) to immediately notify Board in the event it becomes aware of any loss or
disclosure of any Confidential Information.
9.2
Exceptions. Confidential Information shall not include information that:
(a) is already known to Licensee without restriction on use or disclosure prior to
receipt of such information from Board;
(b) is or becomes generally known by the public other than by breach of this License
Agreement by, or other wrongful act of, Board;
(c) is received by Licensee from a third party who is not under any obligation to Board
to maintain the confidentiality of such information; or
(d) is required to be disclosed by Law, including without limitation, pursuant to the
terms of a court order; provided, that Licensee has given Board prior written notice of such
disclosure and an opportunity to contest such disclosure.
It shall be the obligation of Licensee to prove that such an exception to the definition of
Confidential Information exists.
10. Representations and Warranties.
10.1 Mutual Representations and Warranties. Each party represents and warrants to the
other party that:
104
(a) it is duly organized, validly existing and in good standing as a corporation or other
entity as represented herein under the laws and regulations of its jurisdiction of incorporation,
organization or chartering;
(b) (i) it has the full right, power and authority to enter into this License Agreement, to
grant the rights and licenses granted hereunder and to perform its obligations hereunder, and
(ii) the execution of this License Agreement by its representative whose signature is set forth at
the end hereof has been duly authorized by all necessary corporate action of the party; and
(c) when executed and delivered by such party, this License Agreement will constitute
the legal, valid and binding obligation of such party, enforceable against such party in
accordance with its terms.
10.2 Disclaimer of Representations and Warranties. Nothing in this License Agreement shall
constitute any representation or warranty by Board that:
(a) any of the Marks are valid;
(b) any of the Marks (if an application) shall proceed to grant or, if granted, shall be
valid; or
(c) the exercise by Licensee of rights granted under this License Agreement will not
infringe the rights of any person.
10.3 Exclusion of Consequential and Other Indirect Damages. To the fullest extent permitted
by Law, Board shall not be liable to Licensee for any consequential, incidental, indirect,
exemplary, special or punitive damages whether arising out of breach of contract, tort (including
negligence) or otherwise, regardless of whether such damage was foreseeable and whether or
not Licensee has been advised of the possibility of such damages. NOTWITHSTANDING ANY
PROVISION IN THIS LICENSE AGREEMENT TO THE CONTRARY, SELLER AGREES AND
STIPULATES THAT UNIVERSITY SHALL NOT BE REQUIRED TO PERFORM ANY ACT OR
TO REFRAIN FROM ANY ACT IF THAT PERFORMANCE OR NON-PERFORMANCE WOULD
CONSTITUTE A VIOLATION OF THE CONSTITUTION OR LAWS OF THE STATE OF TEXAS.
Without limitation of the forgoing, any provision of this License Agreement to the effect that the
University (i) waives or releases a right to make a claim against Seller or exculpates Seller from
liability; or (ii) will pay attorney’s fees incurred by Seller or any other person are effective only to
the extent that the same are authorized by the Constitution and the laws of the State of Texas
as of the Effective Date hereof. No provision in this License Agreement shall constitute nor is it
intended to constitute a waiver of the Board of Regents of The University of Texas, The
University of Texas System’s, The University of Texas Rio Grande Valley, or the State of Texas'
sovereign immunity to suit.
11. Indemnity and Insurance.
105
11.1 Indemnity. Licensee shall indemnify, defend and hold harmless Board against all
Losses arising out of or resulting from any third party claim, suit, action or proceeding (each, an
"Action") related to or arising out of: (a) the breach of this License Agreement by Licensee, and
(b) Licensee's exercise of its rights granted under this License Agreement, including but not
limited to any product liability claim or third party intellectual property rights infringement claim
relating to Licensed Materials manufactured, supplied or put into use by Licensee..
11.2 Indemnification Procedures. The Licensee shall promptly notify the Board in writing of
any Action and cooperate with Board at the Licensee’s sole cost and expense. The Licensee
shall immediately take control of the defense and investigation of such Action and shall employ
counsel of its choice to handle and defend the same, at the Licensee ‘s sole cost and expense.
The Licensee shall not settle any Action in a manner affects the rights of the Board without the
Board’s prior written consent. The Board’s failure to perform any obligations under this Section
11.2 shall not relieve the Licensee of its obligations under this Section 11.2 except to the extent
that the Licensee can demonstrate that it has been materially prejudiced as a result of such
failure. The Board may participate in and observe the proceedings at its own cost and expense.
11.3 Insurance.
(a) At all times during the Term of this License Agreement and for a period of three
years thereafter, Licensee shall procure and maintain, at its sole cost and expense commercial
general liability insurance with limits no less than $1,000,000 per occurrence and $5,000,000 in
the aggregate, including bodily injury and property damage and products and completed
operations and advertising liability, which policy will include contractual liability coverage
insuring the activities of Licensee under this License Agreement.
(b) Licensee shall provide Board with copies of the certificates of insurance and policy
endorsements required by this Section 11.3 upon the written request of Board, and shall not do
anything to invalidate such insurance.
12. Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or
otherwise transfer any of its obligations or performance, under this License Agreement, in each
case whether voluntarily, involuntarily, by operation of law or otherwise, without Board's prior
written consent. For purposes of the preceding sentence, and without limiting its generality, any
merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a
surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or
performance under this License Agreement for which Board's prior written consent is required.
No delegation or other transfer will relieve Licensee of any of its obligations or performance
under this License Agreement. Any purported assignment, delegation or transfer in violation of
this Section 12 is void. Board may freely assign or otherwise transfer all or any of its rights, or
delegate or otherwise transfer all or any of its obligations or performance, under this License
Agreement without Licensee's consent. This License Agreement is binding upon and inures to
the benefit of the parties hereto and their respective permitted successors and assigns.
106
13. Term and Termination.
13.1 Term. This License Agreement shall commence as of the Effective Date and, unless
terminated earlier in accordance with Sections 13.2, 13.4 or 13.4, shall remain in force while
the Main Agreement remains in force (the "Term").
13.2 Termination with Termination of the Main Agreement: - this License Agreement shall
terminate immediately upon termination of the Main Agreement
13.3 Termination without Cause. Board shall have the right to terminate this License
Agreement for any reason on giving Licensee not less than 30 days written notice.
13.4 Termination for Cause. Board shall have the right to terminate this License Agreement
immediately by giving written notice to Licensee if:
(a) Licensee breaches this License Agreement and (if such breach is curable) fails to
cure such breach within 14 days of being notified in writing to do so;
(b) (i) becomes insolvent or admits its inability to pay its debts generally as they
become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any
domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven
business days or is not dismissed or vacated within 45 days after filing; (iii) is dissolved or
liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for
the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by
order of any court of competent jurisdiction to take charge of or sell any material portion of its
property or business;
(c) Licensee challenges the validity or Board's ownership of the Marks; or
(d) there is a change in control of Licensee.
14. Post-termination Rights and Obligations.
14.1 Effect of Termination. On expiration or termination of this License Agreement for any
reason and subject to any express provisions set out elsewhere in this License Agreement:
(a) all outstanding amounts payable by Licensee to Board shall immediately become
due and payable;
(b) all rights and licenses granted pursuant to this License Agreement shall cease;
(c) Licensee shall cease all use of the Marks except as expressly permitted pursuant
to Section 14.2;
107
(d) Licensee shall cooperate with Board in the cancellation of any licenses recorded
pursuant to this License Agreement and shall execute such documents and do all acts and
things as may be necessary to effect such cancellation;
(e) Licensee shall promptly return to Board, or, at Board's option, destroy, at
Licensee's expense, all records and copies of technical and promotional material in its
possession relating to the Licensed Materials, and of any Confidential Information of Board and
all copies thereof; and
(f) within 30 days after the date of expiration or termination, Licensee shall promptly
deliver to Board or any other person designated by Board, or at Board's option, destroy, at
Licensee’s expense, all Licensed Materials that it has not disposed of within 30 days after the
date of expiration or termination in accordance with Section 14.2.
14.2 Sell-off Period. On expiration or termination of this License Agreement for any reason
other than termination by Board pursuant to Section 13.4, Licensee shall for a period of 30 days
after the date of termination have the right to dispose of all stocks of Licensed Materials in its
possession and all Licensed Materials in the course of manufacture at the date of termination, in
each case, in accordance with the terms and conditions of this License Agreement, and,
provided, that any royalty payable under the provisions of Section 8 (as if such stocks were
supplied at the date of termination) is paid to Board within 30 days after termination.
14.3 Surviving Rights. Any rights or obligations of the parties in this License Agreement
which, by their nature, should survive termination or expiration of this License Agreement will
survive any such termination or expiration, including the rights and obligation set forth in this
Section 4.1, Section 4.2, Section 5.9, Section 8, Section 9, Section 10, Section 11, Section
12, Section 14, and Section 15.
15. Miscellaneous.
15.1 Further Assurances. Each party shall, upon the reasonable request, and at the sole
cost and expense, of the other party, execute such documents and perform such acts as may
be necessary to give full effect to the terms of this License Agreement.
15.2 Relationship of the Parties. The relationship between the parties is that of independent
contractors. Nothing contained in this License Agreement shall be construed as creating any
agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary
relationship between the parties, and neither party shall have authority to contract for or bind the
other party in any manner whatsoever.
15.3 Public Announcements. Neither party shall issue or release any announcement,
statement, press release or other publicity or marketing materials relating to this License
Agreement, or, unless expressly permitted under this License Agreement, otherwise use the
108
other party's trademark, service mark, trade names, logos, symbols or brand names, in each
case, without the prior written consent of the other party.
15.4 Notices. All notices, requests, consents, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been given (a) when
delivered by hand (with written confirmation of receipt); (b) when received by the addressee if
sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by
facsimile (with confirmation of transmission) if sent during normal business hours of the
recipient, and on the next business day if sent after normal business hours of the recipient; or
(d) on the third day after the date mailed, by certified or registered mail, return receipt
requested, postage prepaid. Such communications must be sent to the respective parties at the
addresses indicated below (or at such other address for a party as shall be specified in a notice
given in accordance with this Section 15.4.
Notice to Board
Director, Trademark Licensing
The University of Texas at Austin
P.O.Box 7399
Austin, Texas 78713
512-475-7923
512-232-7080 (fax)
[email protected]
or
[email protected]
With a Copy to:
The University of Texas Rio Grande Valley
Address: ____________________
Attention: ____________________
Fax: __________________
Email: ________________________
Notice to Company:
Address: ____________________
Attention: ____________________
Fax: __________________
Email: ________________________
Notices will be effective on the date received. The person or persons to be notified or the
address for notification may be changed by giving notice as provided in this Section.
15.5 Interpretation. For purposes of this License Agreement, (a) the words "include,"
"includes" and "including" shall be deemed to be followed by the words "without limitation"; (b)
the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and
"hereunder" refer to this License Agreement as a whole. Unless the context otherwise requires,
109
references herein: (i) to Sections, Schedules and Exhibits refer to the Sections of, and
Schedules and Exhibits attached to, this License Agreement; (ii) to an agreement, instrument or
other document means such agreement, instrument or other document as amended,
supplemented and modified from time to time to the extent permitted by the provisions thereof;
and (iii) to a statute means such statute as amended from time to time and includes any
successor legislation thereto and any regulations promulgated thereunder. This License
Agreement shall be construed without regard to any presumption or rule requiring construction
or interpretation against the party drafting an instrument or causing any instrument to be drafted.
The Schedules and Exhibits referred to herein shall be construed with, and as an integral part
of, this License Agreement to the same extent as if they were set forth verbatim herein.
15.6 Entire Agreement. This License Agreement, together with all Schedules and Exhibits
and any other documents incorporated herein by reference, constitutes the sole and entire
agreement of the parties to this License Agreement with respect to the subject matter contained
herein, and supersedes all prior and contemporaneous understandings and agreements, both
written and oral, with respect to such subject matter.
15.7 No Third-Party Beneficiaries. This License Agreement is for the sole benefit of the
parties hereto and their respective successors and permitted assigns and nothing herein,
express or implied, is intended to or shall confer upon any other Person any legal or equitable
right, benefit or remedy of any nature whatsoever, under or by reason of this License
Agreement.
15.8 Headings. The headings in this License Agreement are for reference only and shall not
affect the interpretation of this License Agreement.
15.9 Amendment and Modification; Waiver. This License Agreement may only be amended,
modified or supplemented by an agreement in writing signed by each party hereto. No waiver by
any party of any of the provisions hereof shall be effective unless explicitly set forth in writing
and signed by the party so waiving. Except as otherwise set forth in this License Agreement, no
failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this
License Agreement shall operate or be construed as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
15.10 Severability. If any term or provision of this License Agreement is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any
other term or provision of this License Agreement or invalidate or render unenforceable such
term or provision in any other jurisdiction. Upon such determination that any term or other
provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to
modify this License Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the greatest extent possible.
110
15.11 Governing Law; Submission to Jurisdiction. This License Agreement shall be
governed by and construed in accordance with the internal laws of the State of Texas. Any
legal suit, action or proceeding arising out of or related to this License Agreement or the
Services provided hereunder shall be instituted in the Federal District Court, Western District of
Texas, Austin Division located in Austin Texas or the courts of the State of Texas located in the
city of Austin and County of Travis, and each party irrevocably submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons,
notice or other document by mail to such party's address set forth herein shall be effective
service of process for any suit, action or other proceeding brought in any such court.
15.12Equitable Relief. Licensee acknowledges that a breach by Licensee of this License
Agreement may cause Board irreparable damages, for which an award of damages would not
be adequate compensation and agrees that, in the event of such breach or threatened breach,
Board will be entitled to seek equitable relief, including a restraining order, injunctive relief,
specific performance and any other relief that may be available from any court, in addition to
any other remedy to which Board may be entitled at law or in equity. Such remedies shall not be
deemed to be exclusive but shall be in addition to all other remedies available at law or in
equity, subject to any express exclusions or limitations in this License Agreement to the
contrary.
15.13Counterparts. This License Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall be deemed to be one and the same
agreement. A signed copy of this License Agreement delivered by facsimile, e-mail or other
means of electronic transmission shall be deemed to have the same legal effect as delivery of
an original signed copy of this License Agreement.
SIGNATURE PAGE FOLLOWS
111
IN WITNESS WHEREOF, the parties hereto have executed this License Agreement as of
the date first above written.
DATE EXECUTED:
LICENSEE:
, 201__
By:
Name: ____________
Title: ___________
BOARD/UNIVERSITY:
, 201___
BOARD OF REGENTS OF THE UNIVERSITY OF
TEXAS SYSTEM FOR THE USE AND BENEFIT OF
THE UNIVERSITY OF TEXAS RIO GRANDE
VALLEY
By:
Name: Daniel H. Sharphorn
Title: Vice Chancellor and General Counsel
The University of Texas System
Approved as to content:
, 201___
THE UNIVERSITY OF TEXAS RIO GRANDE
VALLEY
By:
Name: ____________
Title: ___________
112
SCHEDULE 1
MARKS AND DOMAIN NAMES
(TO BE ADDED – PENDING APPROVAL)
WORD MARKS
UNIVERSITY OF TEXAS RIO GRANDE VALLEY
UTRGV
GRAPHIC MARKS
INSTITUTIONAL MARKS
DOMAIN NAMES
UTRGVBOOKSTORE.COM
1
SCHEDULE 2
LICENSED MATERIALS
(TO BE ADDED – PENDING APPROVAL)
University-Licensed Materials
University-Licensed Products
1
SCHEDULE 3
SPECIFICATIONS
(TO BE ADDED – PENDING APPROVAL)
As per the attached Brand Manual attached as Schedule 4.
1
SCHEDULE 4
Board's Brand Manual
(TO BE ADDED; PENDING APPROVAL)
2
EXHIBIT C TO RFP
HISTORICALLY UNDERUTILIZED SUBCONTRACTING PLAN
THE UNIVERSITY OF TEXAS SYSTEM ADMINISTRATION JANUARY 2015
APPENDIX III
POLICY ON UTILIZATION
HISTORICALLY UNDERUTILIZED BUSINESSES
VENDOR/COMMODITIES
3
The University of Texas
System Office of HUB
Development
Policy on Utilization of Historically Underutilized Businesses (HUBs)
Contents
•
Policy on Utilization of Historically Underutilized Businesses (HUB)s
Page 3
•
Summary of Requirements/Historically Underutilized Business (HUB) Subcontracting
Plan (HSP)
Pages 4‐6
•
Summary of Attachments Required from Respondents
Page 7
•
Letter of Transmittal
Page 8
•
Letter of HUB Commitment (indefinite duration/indefinite quantity contracts)
Page 9
•
HSP Quick Checklist
Page 10
•
HUB Subcontracting Plan (HSP)
o Section 2 – Good Faith Effort Subcontractor Selection
o Self‐Performance Justification
o HSP Good Faith Effort Method A (Attachment A)
o HSP Good Faith Effort Method B ( Attachment B)
Page 11‐18
Page 12
Page 14
Page 15
Page 16‐17
•
HUB Subcontracting Opportunity Notification Form
Minority and Trade Organizations contact information is available online at:
http://www.window.state.tx.us/procurement/prog/hub/mwb-links-1/
Page 18
•
HUB Subcontracting Plan Prime Contractor Progress Assessment Report (PAR)
(Required of successful respondent for payment requests only)
Page 19
4
The University of Texas System
Office of HUB Development
POLICY ON UTILIZATION OF HISTORICALLY UNDERUTILIZED BUSINESSES (HUBS)
Introduction
In accordance with the Texas Government Code, Sections 2161.181‐182 and Title 34, Section 20.13 of the Texas
Administrative Code (TAC), the Board of Regents of The University of Texas System, acting through the Office of HUB
Development shall make a good faith effort to utilize Historically Underutilized Businesses (HUBs) in contracts for
construction services, including professional and consulting services; and commodities contracts. The HUB Rules
promulgated by the Texas Comptroller of Public Accounts (the “Texas Comptroller”), set forth in 34 TAC Sections
20.10‐20.28, encourage the use of HUBs by implementing these policies through race, ethnic and gender‐neutral
means.
The purpose of the HUB Program is to promote full and equal business opportunities for all business in State
contracting in accordance with the following goals as specified in the State of Texas Disparity Study:
•
•
•
•
•
•
11.2% for heavy construction other than building contracts;
21.1% for all building construction, including general contractors and operative builders contracts;
32.9% for all special trade construction contracts;
23.7% for professional services contracts;
26% for all other services contracts, and
21.1% for commodities contracts.
The University of Texas System shall make a good faith effort to meet or exceed the above stated goals to assist
HUBs in receiving a portion of the total contract value of all contracts that UT System expects to award in a fiscal
year. The University of Texas System may achieve the annual program goals by contracting directly with HUBs or
indirectly through subcontracting opportunities in accordance with the Texas Government Code, chapter 2161,
Subchapter F.
NOTE: The goals above are the State of Texas HUB goals. For purposes of this procurement, The University of Texas
System goals listed in the Special Instructions on page 11 will apply.
5
SUMMARY OF REQUIREMENTS
Historically Underutilized Business (HUBs) Subcontracting Plan (HSP)
It is the policy of The University of Texas System and each of its component institutions, to promote and encourage
contracting and subcontracting opportunities for Historically Underutilized Businesses (HUBs) in all contracts.
Accordingly, UT System has adopted “EXHIBIT H, Policy on Utilization of Historically Underutilized Businesses”. The
policy applies to all contracts with an expected value of $100,000 or more. The Board of Regents of The University of
Texas System is the contracting authority.
1. In all contracts for professional services, contracting services, and/or commodities with an expected value of
$100,000 or more, The University of Texas System, “UT System” or the “University” will indicate in the
purchase solicitation (e.g. RFQ, RFP, or CSP) whether or not subcontracting opportunities are probable in
connection with the contract. A HUB Subcontracting Plan is a required element of the architect, contractor or
vendor Response to the purchase solicitation. The HUB Subcontracting Plan shall be developed and
administered in accordance with the Policy. Failure to submit a required HUB Subcontracting Plan (HSP)
will result in rejection of the Response.
2. If subcontracting opportunities are probable UT System will declare such probability in its invitations for bids,
requests for proposals, or other purchase solicitation documents, and shall require submission of the
appropriate HUB Subcontracting Plan with the Response.
a. When subcontracting opportunities are probable, and the Respondent proposes to subcontract any
part of the work, the Respondent shall submit a HUB Subcontracting Plan as prescribed by the Texas
Comptroller identifying subcontractors [34 TAC §20.14 (d) (1)(A)(B)(C)(D) (2) (3)(A)(B)(C)(D)(E)(F)
(4)(A)(B)].
b. When subcontracting opportunities are probable, but the Respondent can perform such opportunities
with its employees and resources, the Respondent’s HUB Subcontracting Plan shall include Section
3 –Self Performance [34 TAC §20.14 (d) (5) (A) (B) (C) (D)].
3. If subcontracting opportunities are not probable UT System will declare such probability in its
invitations or bids, requests for proposals, or other purchase solicitation documents and
shall require submission of the appropriate HUB Subcontracting Plan with the Response.
a. When subcontracting opportunities are not probable, and the Respondent proposes to perform all
the work with its employees and resources, the Respondent shall submit a HUB Subcontracting Plan
that includes Section 3 – Self Performance Justification .
b. When subcontracting opportunities are not probable, but the Respondent proposes to subcontract
any part of the work, the Respondent shall submit a HUB Subcontracting Plan as prescribed by the
Texas Comptroller identifying subcontractors.
4. Respondents shall follow, but are not limited to, procedures listed in the Policy when
developing a HUB Subcontracting Plan.
5. Competitive Sealed Proposals (CSP): Respondents shall submit a HUB Subcontracting Plan (packaged
separately) twenty‐four (24) hours following the Response submission date and time or as prescribed by the
project manager.
6. In making a determination whether a good faith effort has been made in the development of the required
HUB Subcontracting Plan, UT System shall follow the procedures listed in the Policy. If accepted by the
6
University, the HUB Subcontracting Plan shall become a provision of the Respondent’s contract with UT
System. Revisions necessary to clarify and enhance information submitted in the original HUB
subcontracting plan may be made in an effort to determine good faith effort. Any revisions after the
submission of the HSP shall be approved by the HUB Coordinator.
7. Design Build (DB) and Construction Manager @ Risk (CM@R) responses: Respondents to a
“design build” or “construction manager‐ at‐ risk” purchase solicitation shall include the
Letter of HUB Commitment in their Response attesting that the Respondent has read and
understands the Policy on Historically Underutilized Businesses (HUBs), and a HUB
Subcontracting Plan for all preconstruction and construction services including a HUB
Subcontracting Plan as prescribed by the Texas Comptroller specific to construction services
identifying first, second and third tier subcontractors. Respondents proposing to perform
Part 1 p r e c o n s t r u c t i o n services with their own resources and employees shall submit, as
part of their HSP, the Self Performance Justification.
8. DB and CM@R HUB Contract Requirements: Contractors engaged under design‐build and construction
manager‐at‐risk contracts shall submit a HUB Subcontracting Plan for all preconstruction and construction
Phase Services, and, must further comply with the requirements of this Policy by developing and submitting a
HUB Subcontracting Plan for each bid package issued in buying out the guaranteed maximum or lump sum
price of the project. The HSP shall identify first, second and third tier subcontractors.
9. The University of Texas System shall reject any Response that does not include a fully completed HSP as
required. An incomplete HUB Subcontracting Plan is considered a material failure to comply with the
solicitation for proposals.
10. Changes to the HUB Subcontracting Plan: Once a Respondent’s HSP is accepted by UT
System and becomes a provision of the contract between Respondent and UT System, the
Respondent can only change that HSP if
(a) the Respondent complies with 34 TAC Section 20.14; (b) the Respondent provides its proposed changes to
UT System for review; (c) UT System (including UT System’s HUB Coordinator) approves Respondent’s
proposed changes to its HSP; and (d) UT System and the Respondent amend their contract (in writing signed
by authorized officials of both parties) in order to replace the contract’s existing HSP with a revised HSP
containing the changes approved by UT System.
11. Expansion of Work: If, after entering into a contract with a Respondent as a result of a purchase solicitation
subject to the Policy, UT System wishes to expand the scope of work that the Respondent will perform under
that contract through a change order or any other contract amendment (the “additional work”), UT System
will determine if the additional work contains probable subcontracting opportunities not identified in the
initial purchase solicitation for that contract. If UT System determines that probable subcontracting
opportunities exist for the additional work, then the Respondent must submit to UT System an amended
HUB Subcontracting Plan covering those opportunities that complies with the provisions of 34 TAC Section
20.14. Such an amended HSP must be approved by UT System and the Respondent (including UT System’s
HUB Coordinator) before (a) the contract may be amended by UT System and the Respondent to include the
additional work and the amended HSP and (b) the Respondent performs the additional work. If a Respondent
subcontracts any of the additional subcontracting opportunities identified by UT System for any additional
work (i) without complying with 34 TAC Section 20.14 or (ii) before UT System and that Respondent amend
their contract to include a revised HSP that authorizes such subcontracting, then the Respondent will be
deemed to be in breach of its contract with UT System. As a result of such breach, UT System will be entitled
to terminate its contract with the Respondent, and the Respondent will be subject to any remedial actions
provided by Texas law, including those set forth in Chapter 2161, Texas Government Code, and 34 TAC
Section 20.14. The University may report a Respondent’s nonperformance under a
7
contract between that Respondent and UT System to the Texas Comptroller in accordance with 34 TAC
Sections 20.10 through 20.18.
12. A Response may state that the Respondent intends to perform all the subcontracting opportunities with its
own employees and resources in accordance with the Policy. However, if such a Respondent enters into a
contract with UT System as a result of such a Response but later desires to subcontract any part of the work
set forth in that contract, before the Respondent subcontracts such work it must first change its HUB
Subcontracting Plan in accordance with the provisions of Section 10 above.
13. The University of Texas System shall require a professional services firm, contractor or vendor to whom a
contract has been awarded to report the identity and the amount paid to its subcontractors on a monthly
basis using a HUB Subcontracting Plan (HSP) Prime Contractor Progress Assessment Report (PAR) as a
condition for payment.
14. If the University of Texas System determines that the successful Respondent failed to
implement an approved HUB Subcontracting Plan in good faith, UT System, in addition to any
other remedies, may report nonperformance to the Texas Comptroller in accordance with 34
TAC Section 20.14, (g) (1) related remedies of nonperformance to professional services firms,
contractor and vendor implementation of the HSP.
15. In the event of any conflict between this “Summary of Requirements” and the remainder of the HUB Policy,
the remainder of the HUB Policy will control.
16. These requirements, including the attachments referred to above, may be downloaded over the Internet
from http://utsystem.edu/offices/historically‐underutilized‐business/hub‐forms. For additional information
contact the Office of HUB Development, The University of Texas System, 512/499/4530.
8
Other Services/Vendor/Commodities HSP
Summary of Attachments Required from Respondents
Letter of
Transmittal
Page 8
1. UT SYSTEM DETERMINES THAT SUBCONTRACTING OPPORTUNITIES ARE
PROBABLE.
1. A. Respondent Proposes Subcontractors: Attachments
required from the Respondent for the HUB Subcontracting Plan if
the solicitation states that subcontracting opportunities are
probable.
1.B. Respondent Proposes Self‐Performance: Attachments
required from the Respondent for the HUB Subcontracting Plan if
the solicitation states that subcontracting opportunities are
probable, but the Respondent can perform such opportunities
with its employees and resources.
2. UT SYSTEM DETERMINES THAT SUBCONTRACTING OPPORTUNITIES ARE NOT
PROBABLE.
2.A. Respondent Proposes Self‐Performance: Attachments
required from the Respondent for the HUB Subcontracting Plan if
the solicitation states that subcontracting opportunities are not
probable, but the Respondent can perform such opportunities
with its employees and resources.
2. B. Respondent Proposes Subcontractors: Attachments
required from the Respondent for the HUB Subcontracting Plan if
the solicitation states that subcontracting opportunities are not
probable, but the Respondent proposes to subcontract any part
of the work.
3. INDEFINITE DURATION/INDEFINITE QUANTITY CONTRACTS: Submit with
initial qualifications. Attachments required from the Respondent
prior to contract execution for each contract associated with a
solicitation for miscellaneous services.
4. CHANGES IN THE HUB SUBCONTRACTING PLAN AFTER AWARD:
Attachments required from the Respondent to whom a contract
has been awarded if it desires to make changes to the approved
HUB Subcontracting Plan.
5. REPORTING : Progress Assessment Report (PAR) required with all
payment requests. The submittal of this attachment is a
condition of payment.
Letter of HUB
Commitment
Page 9
HUB
Subcontracting
Plan (HSP) Pages
11‐18
X
X
X
X
X
X
X
X
X
Progress
Assessment
Report (PAR) Page
19
X
X
X
9
Letter of
Transmittal
Vendor
Services
(RESPONDENT’S BUSINESS LETTERHEAD)
Date
Mr. Alex Valdez
Director, HUB Program Coordinator
University of Texas Rio Grande Valley
1201 West University Drive
Edinburg, Texas 78539
RE: Historically Underutilized Business Plan for (Project Title):_
Project Number:
‐
Dear Mr. Valdez,
In accordance with the requirements outlined in the specification section “HUB Participation Program,” I am pleased
to forward this HUB Subcontracting Plan as an integral part of our response in connection with your invitation for
Request for Proposals referencing the above project.
I have read and understand The University of Texas System Policy on Utilization of Historically Underutilized Businesses
(HUBs). I also understand the State of Texas Annual Procurement Goal according to 34 Texas Administrative Code
Section 20.13, and the goal as stated in the Agency Special Instructions section of the HUB Subcontracting Plan,
page 11.
Select one of the following:
32.9% for all special trade construction contracts
26% for all other services contracts
31.04% for commodities contracts
Subcontractors
No. of
Subcontractors
Total
Subcontract $
Value
Total
Estimated
HUB %
% Minority
Owned
% Woman
Owned
% Service
Disabled
Veteran
HUB
NON‐HUB
TOTAL
I understand the above HUB percentages must represent Texas Comptroller HUB certification standards. For each of
the listed HUB firms, I have attached a Texas Comptroller HUB Certification document.
Should we discover additional subcontractors claiming Historically Underutilized Business status during the course of
this contract we will notify you of the same. In addition, if for some reason a HUB is unable to fulfill its contract with
us, we will notify you immediately in order to take the appropriate steps to amend this contractual obligation.
Sincerely,
(Project Executive)
cc: Contract Administrator
1
Letter of HUB
Commitment for
Miscellaneous Service
Agreements
Indefinite duration/indefinite quantity contracts
(RESPONDENT’S BUSINESS LETTERHEAD)
Date
Mr. Alex Valdez
Director, HUB Program Coordinator
University of Texas Rio Grande Valley
1201 West University Drive
Edinburg, Texas 78539
RE: Historically Underutilized Business Plan for (Project Title):_
Project Number:
‐
Dear Mr. Valdez:
In accordance with the requirements outlined in the specification section “HUB Participation Program”, I am pleased
to forward this HUB Subcontracting Plan as an integral part of our proposal in connection with your invitation for
request for proposals, referencing Project Number_
.
I have read and understand The University of Texas System Policy on Utilization of Historically Underutilized Businesses
(HUBs).
Good Faith Effort will be documented by a two part HUB Subcontracting Plan (HSP) process. Part one (1) of the HSP
submission will reflect self‐performance with the appropriate sections completed per the instructions in Option One
of the HSP Quick Checklist located on page 10 of The University of Texas Exhibit H Policy on Utilization of Historically
Underutilized Businesses (HUBs).
As the scope of work/project is defined under this ID/IQ contract, part two (2) of the process will require a revised
HUB Subcontracting Plan (HSP) and the Good Faith Effort will be documented per instructions in Attachment B (page
16-17) and Option Three of the HSP Quick Check List. The revised HUB Subcontracting Plan will be submitted to the
HUB Coordinator prior to execution of each contract process. Documentation of subcontracted work will be provided
with each pay request.
Sincerely,
(Project Executive)
cc: Contract Administrator
1
Rev. 10/14
HUB Subcontracting Plan (HSP)
QUICKCHECKLIST
While this HSP Quick Checklist is being provided to merely assist you in readily identifying the sections
of the HSP form that you will need to complete, it is very important that you adhere to the instructions
in the HSP form and instructions provided by the contracting agency.
Option One -If you will be awarding all of the subcontracting work you have to offer under the contract to only Texas certified HUB vendors,
complete:
Section 1 - Respondent and Requisition Information
Section 2 a. - Yes, I will be subcontracting portions of the contract
Section 2 b. - List all the portions of work you will subcontract, and indicate the percentage of the contract you expect to award to Texas certified HUB vendors
Section 2 c. - Yes
Section4 - Affirmation
GFE Method A (Attachment A)- Complete an Attachment A for each of the subcontracting opportunities you listed in Section 2 b.
Letter of Transmittal
Option Two-If you will be subcontracting any portion of the contract to Texas certified HUB vendors and Non-HUB vendors, and the aggregate
percentage of all the subcontracting work you will be awarding to the Texas certified HUB vendors with which you have a continuous
contract* in place for five (5) years or less meets or exceeds the HUB Goal the contracting agency identified in the “Agency Special
Instructions/Additional Requirements”, complete:
Section 1 - Respondent and Requisition Information
Section 2 a. - Yes, I will be subcontracting portions of the contract
Section 2 b. - List all the portions of work you will subcontract, and indicate the percentage of the contract you expect to award to Texas certified HUB
vendors and Non-HUB venders
Section2c.-No
Section 2 d. - Yes
Section4-Affirmation
GFE Method A(Attachment A)- Complete an Attachment A for each of the subcontracting opportunities you listed in Section 2 b.
Letter of Transmittal
Option Three ‐If you will be subcontracting any portion of the contract to Texas certified HUB vendors and Non-HUB vendors or only to Non-
HUB vendors, and the aggregate percentage of all the subcontracting work you will be awarding to the Texas certified HUB vendors with
which you have a continuous contract* in place for five (5) years or less does not meet or exceed the HUB Goal the contracting agency
identified in the “Agency Special Instructions/Additional Requirements”, complete:
Section 1 - Respondent and Requisition Information
Section 2 a. - Yes, I will be subcontracting portions of the contract
Section 2 b. - List all the portions of work you will subcontract, and indicated the percentage of the contract you expect to award to Texas certified HUB vendors
and Non-HUB vendors
Section 2 c. - No
Section2d.-No
Section4-Affirmation
GFE Method B(Attachment B)- Complete an Attachment B for each of the subcontracting opportunities you listed in Section 2 b.
Letter of Transmittal
Option Four - If you will not be subcontracting any portion of the contract and will be fulfilling the entire contract with your own resources, complete:
Section 1 - Respondent and Requisition Information
Section 2 a. - No, I will not be subcontracting any portion of the contract, and I will be fulfilling the entire contract with my own resources
Section 3 - Self Performing Justification
Section 4 – Affirmation
Letter of HUB Commitment
*Continuous Contract: Any existing written agreement (including any renewals that are exercised) between a prime contractor and a HUB vendor,
where the HUB vendor provides the prime contractor with goods or service under the same contract for a specified period of time. The frequency the
HUB vendor is utilized or paid during the term of the contract is not relevant to whether the contract is considered continuous. Two or more contracts
that run concurrently or overlap one another for different periods of time are considered by CPA to be individual contracts rather than renewals or
extensions to the original contract. In such situations the prime contractor and HUB vendor are entering (have entered) into “new” contracts.
10
Rev. 10/14
HUB Subcontracting Plan (HSP)
In accordance with Texas Gov’t Code §2161.252, the contracting agency has determined that
subcontracting opportunities are probable under this contract. Therefore, all respondents, including
State of Texas certified Historically Underutilized Businesses (HUBs) must complete and submit this
State of Texas HUB Subcontracting Plan (HSP) with their response to the bid requisition (solicitation).
NOTE: Responses that do not include a completed HSP shall be rejected pursuant to Texas Gov’t Code
§2161.252(b).
The HUB Program promotes equal business opportunities for economically disadvantaged persons to
contract with the State of Texas in accordance with the goals specified in the 2009 State of Texas
Disparity Study. The statewide HUB goals defined in 34 Texas Administrative Code (TAC) §20.13 are:
•
11.2 percent for heavy construction other than building contracts,
•
21.1 percent for all building construction, including general contractors and operative builders’ contracts,
•
32.9 percent for all special trade construction contracts,
•
23.7 percent for professional services contracts,
•
26.0 percent for all other services contracts, and
•
21.1 percent for commodities contracts.
- - Agency Special Instructions/Additional Requirements - In accordance with 34 TAC §20.14(d)(1)(D)(iii), a (prime contractor) may demonstrate good faith effort to utilize Texas certified HUBs for its subcontracting
opportunities if the total value of the respondent’s subcontracts with Texas certified HUBs meets or exceeds the statewide HUB goal or the agency specific HUB
goal, whichever is higher. When a respondent uses this method to demonstrate good faith effort, the respondent must identify the HUBs with which it will subcontract.
If using existing contracts with Texas certified HUBs to satisfy this requirement, only contracts that have been in place for five years or less shall qualify for
meeting the HUB goal. This limitation is designed to encourage vendor rotation as recommended by the 2009 Texas Disparity Study.
In accordance with 34 TAC §20.13(d)(1)(D)(iii), the goals below are the applicable goals for the University of Texas System Administration only.
Other Services HUB Goal –
26% Commodities HUB
Goal – 31.04% Special
Trades HUB Goal – 32.9%
• RESPONSES FOR SPECIAL TRADES CONSTRUCTION SHALL SUBMIT A HUB
SUBCONTRACTING PLAN (HSP) THAT MEETS THE GOOD FAITH EFFORT PRESCRIBED IN
METHOD B (ATTACHMENT B). SEE INSTRUCTION FOR OPTION THREE ON THE HSP QUICK
CHECK LIST. NO OTHER GOOD FAITH EFFORT METHOD WILL BE ACCEPTED.
•
•
•
•
•
Responses for Miscellaneous Services Agreements for indefinite duration/indefinite quantity- Two (2) part process:
1. Submit a Letter of HUB Commitment (page 9) and a Good Faith Effort described in Option Four.
2. Submit a revised HSP prior to execution of each contract process as described in Option Three of Quick Check List.
Respondents shall submit a completed HUB Subcontracting Plan (HSP) to be considered responsive. Failure to submit a completed
HSP shall result in the bid, proposal or other expression of interest to be considered Non-responsive.
Respondents who intend to Self-Perform all of their work shall submit an HSP for Self Performance HUB Subcontracting Plan (HSP)
as described in Option Four.
Prime contractor Progress Assessment Report (PAR) shall be submitted with each request for payment as a condition of payment.
Please note that phone logs are no longer acceptable documentation of Good Faith Effort. Only fax, email and certified letter are
acceptable.
SECTION-1: RESPONDENT AND REQUISITION INFORM
a.
Respondent
Point of Contact:
(Company) Name:
11
State
Texas VID #:
of
Phone #:
E-mail Address:
b.
c.
Fax #:
Is your company a State of
Texas certified HUB?
Requisition #:
- Yes - No
Bid Open
Date:
(mm/dd/yyyy)
12
Rev. 10/14
Enter your company’s name here:
Requisition #:
SECTION-2: SUBCONTRACTING INTENTIONS RESPONDENT
After dividing the contract work into reasonable lots or portions to the extent consistent with prudent
industry practices, and taking into consideration the scope of work to be performed under the proposed
contract, including all potential subcontracting opportunities, the respondent must determine what
portions of work, including goods and services, will be subcontracted. Note: In accordance with 34
TAC §20.11., an “Subcontractor” means a person who contracts with a prime contractor to work, to
supply commodities, or to contribute toward completing work for a governmental entity.
a. Check the appropriate box (Yes or No) that identifies your subcontracting intentions:
- Yes,
I will be subcontracting portions of the contract. (If Yes, complete Item b, of this SECTION and
continue to Item c of this SECTION.)
- No, I will not be subcontracting any portion of the contract, and I will be fulfilling the entire
contract with my own resources. (If No, continue to SECTION 3 and SECTION 4.)
b. List all the portions of work (subcontracting opportunities) you will subcontract. Also, based on the
total value of the contract, identify the percentages of the contract you expect to award to Texas
certified HUBs, and the percentage of the contract you expect to award to vendors that are not a Texas
certified HUB (i.e., Non-HUB).
HUBs
Subcontracting Opportunity Description
Percentage of the contract
expected to be subcontracted
to HUBs with which you have a
continuous contract* in
place for five (5) years or less.
Non-HUBs
Percentage of the contract
expected to be subcontracted to
HUBs with which you have a
continuous contract* in place
for more than five (5 ) yea rs.
Percentage of the contract
expected to be subcontracted
to non-HUBs.
1
%
%
%
2
%
%
%
3
%
%
%
4
%
%
%
5
%
%
%
6
%
%
%
7
%
%
%
8
%
%
%
9
%
%
%
10
%
%
%
11
%
%
%
12
%
%
%
13
%
%
%
14
%
%
%
(Note: If you have more than fifteen subcontracting opportunities, a continuation sheet is available online at http://window.state.tx.us/procurement/prog/hub/hubsubcontracting-plan/).
c.
Check the appropriate box (Yes or No) that indicates whether you will be using only Texas certified
HUBs to perform all of the subcontracting opportunities you listed in SECTION 2, Item b.
- Yes (If Yes, continue to SECTION 4 and complete an “HSP Good Faith Effort - Method A (Attachment A)” for each of the subcontracting opportunities you listed.)
- No (If No, continue to Item d, of this SECTION.)
d. Check the appropriate box (Yes or No) that indicates whether the aggregate expected percentage of the contract you will subcontract with Texas certified
HUBs with which you have a continuous contract* in place with for five (5) years or less meets or exceeds the HUB goal the contracting agency identified
on page 1 in the “Agency Special Instructions/Additional Requirements”.
- Yes (If Yes, continue to SECTION 4 and complete an “HSP Good Faith Effort - Method A (Attachment A)” for each of the subcontracting opportunities you listed.)
- No (If No, continue to SECTION 4 and complete an “HSP Good Faith Effort - Method B (Attachment B)” for each of the subcontracting opportunities you listed.)
13
*Continuous Contract: Any existing written agreement (including any renewals that are exercised) between a prime contractor and a HUB vendor,
where the HUB vendor provides the prime contractor with goods or service under the same contract for a specified period of time. The frequency the
HUB vendor is utilized or paid during the term of the contract is not relevant to whether the contract is considered continuous. Two or more contracts
that run concurrently or overlap one another for different periods of time are considered by CPA to be individual contracts rather than renewals or
extensions to the original contract. In such situations the prime contractor and HUB vendor are entering (have entered) into “new” contracts.
14
Rev. 10/14
Enter your company’s name here:
Requisition #:
SECTION-2: SUBCONTRACTING INTENTIONS RESPONDENT (CONTINUATION SHEET)
This page can be used as a continuation sheet to the HSP Form’s page 2, Section 2, Item b. Continue listing the portions of work (subcontracting
opportunities) you will subcontract. Also, based on the total value of the contract, identify the percentages of the contract you expect to award to Texas certified
HUBs, and the percentage of the contract you expect to award to vendors that are not a Texas certified HUB (i.e., Non-HUB).
a.
HUBs
Subcontracting Opportunity Description
Percentage of the contract
expected to be subcontracted to
HUBs with which you have a
continuous contract* in place
for five (5) years or less.
Non-HUBs
Percentage of the contract
expected to be subcontracted
to HUBs with which you have a
continuous contract* in place
for more than five (5) years.
Percentage of the contract
expected to be subcontracted
to non-HUBs.
16
%
%
%
17
%
%
%
18
%
%
%
19
%
%
%
20
%
%
%
21
%
%
%
22
%
%
%
23
%
%
%
24
%
%
%
25
%
%
%
26
%
%
%
27
%
%
%
28
%
%
%
29
%
%
%
30
%
%
%
31
%
%
%
32
%
%
%
33
%
%
%
34
%
%
%
35
%
%
%
36
%
%
%
37
%
%
%
38
%
%
%
39
%
%
%
40
%
%
%
41
%
%
%
42
%
%
%
*Continuous Contract: Any existing written agreement (including any renewals that are exercised) between a prime contractor and a HUB vendor,
where the HUB vendor provides the prime contractor with goods or service under the same contract for a specified period of time. The frequency
the HUB vendor is utilized or paid during the term of the contract is not relevant to whether the contract is considered continuous. Two or more
contracts that run concurrently or overlap one another for different periods of time are considered by CPA to be individual contracts rather than
renewals or extensions to the original contract. In such situations the prime contractor and HUB vendor are entering (have entered) into “new”
contracts.
15
HSP –
SECTION 2
(Continuation Sheet)
16
Rev. 10/14
Enter your company’s name here:
Requisition #:
SECTION-3: SELF PERFORMING JUSTIFICATION (If you responded “No “to SECTION 2, Item a, you must complete this SECTION and continue to SECTION 4)
Check the appropriate box (Yes or No) that indicates whether your response/proposal contains an
explanation demonstrating how your company will fulfill the entire contract with its own resources.
- Yes (If Yes, in the space provided below list the specific page(s)/section(s) of your proposal
which explains how your company will perform the entire contract with its own equipment,
supplies, materials and/or employees.)
- No (If No, in the space provided below explain how your company will perform the entire
contract with its own equipment, supplies, materials and/ or employees.)
SECTION-4: AFFIRMATION
As evidenced by my signature below, I affirm that I am an authorized representative of the respondent listed
in SECTION 1, and that the information and supporting documentation submitted with the HSP is true and
correct. Respondent understands and agrees that, if awarded any portion of the requisition:
•
The respondent will provide notice as soon as practical to all the subcontractors (HUBs and NonHUBs) of their selection as a subcontractor for the awarded contract. The notice must specify at
a minimum the contracting agency’s name and its point of contact for the contract, the contract
award number, the
subcontracting opportunity they (the subcontractor) will perform, the
approximate dollar value of the subcontracting opportunity and the expected percentage of the total
contract that the subcontracting opportunity represents. A copy of the notice required by this section
must also be provided to the contracting agency’s point of contact for the contract no later than ten
(10) working days after the contract is awarded.
•
The respondent must submit monthly compliance reports (Prime Contractor Progress Assessment
Report – PAR) to the contracting agency, verifying its compliance with the HSP, including the
use of and expenditures made to its subcontractors (HUBs and Non-HUBs). (The PAR is available
at http://www.window.state.tx.us/procurement/prog/hub/hub-forms/progressassessmentrpt.xls).
•
The respondent must seek approval from the contracting agency prior to making any modifications
to its HSP, including the hiring of additional or different subcontractors and the termination of a
subcontractor the respondent identified in its HSP. If the HSP is modified without the contracting
agency’s prior approval, respondent may be subject to any and all enforcement remedies available
under the contract or otherwise available by law, up to and including debarment from all state
contracting.
17
•
The respondent must, upon request, allow the contracting agency to perform on-site reviews of the
company’s headquarters and/or work-site where services are being performed and must provide
documentation regarding staffing and other resources.
Signature
Printed Name Title Date
(mm/dd/yyyy)
Reminder:
If you responded “Yes” to SECTION 2, Items c or d, you must complete an “HSP Good Faith Effort
- Method A (Attachment A)” for each of the subcontracting opportunities you listed in SECTION 2,
Item b.
If you responded “No” SECTION 2, Items c and d, you must complete an “HSP Good Faith Effort
- Method B (Attachment B)” for each of the subcontracting opportunities you listed in SECTION 2,
Item b.
18
HSP Good Faith Effort - Method A (Attachment A)
Enter your company’s name here:
Rev. 10/14
Requisition #:
IMPORTANT: If you responded “Yes” to SECTION 2, Items c or d of the completed HSP form, you must
submit a completed “HSP Good Faith Effort - Method A (Attachment A)” for each of the subcontracting
opportunities you listed in SECTION 2, Item b of the completed HSP form. You may photo-copy this
page or download the form at http://window.state.tx.us/procurement/prog/hub/hub-forms/hub-sbcontplan-gfe-achm-a.pdf.
SECTION A-1: SUBCONTRACTING OPPORTUNITY
Enter the item number and description of the subcontracting opportunity you listed in SECTION 2, Item
b, of the completed HSP form for which you are completing the attachment.
Item Number:
Description:
SECTION A-2: SUBCONTRACTOR SELECTION
List the subcontractor(s) you selected to perform the subcontracting opportunity you listed above in
SECTION A-1. Also identify whether they are a Texas certified HUB and their VID number, the approximate
dollar value of the work to be subcontracted, the expected percentage of work to be subcontracted, and
indicate whether the company is a Texas certified HUB
Company Name
Texas certified HUB
VID Number
(Required if Texas
certified HUB)
Approximate
Dollar Amount
Expected
Percentage of
Contract
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
19
REMINDER: As specified in SECTION 4 of the completed HSP form, if you (respondent) are awarded
any portion of the requisition, you are required to provide notice as soon as practical to all the
subcontractors (HUBs and Non-HUBs) of their selection as a subcontractor. The notice must specify at
a minimum the contracting agency’s name and its point of contact for the contract, the contract award
number, the subcontracting opportunity they (the subcontractor) will perform, the approximate dollar
value of the subcontracting opportunity and the expected percentage of the total contract that the
subcontracting opportunity represents. A copy of the notice required by this section must also be
provided to the contracting agency’s point of contact for the contract no later than ten (10) working days
after the contract is awarded.
Page 1 of
1
(Attachm
ent A)
20
Rev. 10/14
HSP Good Faith Effort - Method B (Attachment B)
Enter your company’s name here:
Requisition #:
IMPORTANT: If you responded “Yes” to SECTION 2, Items c or d of the completed HSP form, you must submit a completed “HSP Good Faith Effort -
Method B (Attachment B)” for each of the subcontracting opportunities you listed in SECTION 2, Item b of the completed HSP form. You may photo-copy this
page or download the form at http://window.state.tx.us/procurement/prog/hub/hub-forms/hub-sbcont-plan-gfe-achm-b.pdf.
SECTION B-1: SUBCONTRACTING OPPORTUNITY
Enter the item number and description of the subcontracting opportunity you listed in SECTION 2, Item
b, of the completed HSP form for which you are completing the attachment.
Item Number:
Description:
SECTION B-2: MENTOR PROTÉGÉ PROGRAM
If respondent is participating as a Mentor in a State of Texas Mentor Protégé Program, submitting its
Protégé (Protégé must be a State of Texas certified HUB) as a
subcontractor to perform the
subcontracting opportunity listed in SECTION B-1, constitutes a good faith effort to subcontract with a
Texas certified HUB towards that specific portion of work.
Check the appropriate box (Yes or No) that indicates whether you will be subcontracting the portion of work
you listed in SECTION B-1 to your Protégé.
- Yes
(If Yes, to continue to SECTION B-4.)
- No / Not Applicable (If No or Not Applicable, continue to SECTION B-3 and SECTION B-4.)
SECTION B-3: NOTIFICATION OF SUBCONTRACTING OPPORTUNITY
When completing this section you MUST comply with items a , b, c and d, thereby demonstrating your
Good Faith Effort of having notified Texas certified HUBs and trade organizations or development
centers about the subcontracting opportunity you listed in SECTION B-1. Your notice should include
the scope of work, information regarding the location to review plans and specifications, bonding
and insurance requirements, required qualifications, and identify a contact person. When sending
notice of your subcontracting opportunity, you are encouraged to use the attached HUB Subcontracting
Opportunity
Notice
form,
which
is
also
available
online
at
http://www.window.state.tx.us/procurement/prog/hub/hub-subcontracting-plan.
Retain supporting documentation (i.e., certified letter, fax, e-mail) demonstrating evidence of your good
faith effort to notify the Texas certified HUBs and trade organizations or development centers. Also,
be mindful that a working day is considered a normal business day of a state agency, not including
weekends, federal or state holidays, or days the agency is declared closed by its executive officer. The
initial day the subcontracting opportunity notice is sent/provided to the HUBs and to
the trade
organizations or development centers is considered to be “day zero” and does not count as one of the
seven (7) working days.
a.
b.
Provide written notification of the subcontracting opportunity you listed in SECTION B-1, to three
(3) or more Texas certified HUBs. Unless the contracting agency specified a different time period,
you must allow the HUBs at least seven (7) working days to respond to the notice prior to your
submitting your bid response to the contracting agency. When searching for Texas certified HUBs,
ensure that you use the State of Texas’ Centralized Master Bidders List (CMBL) and Historically
Underutilized
Business
(HUB)
Search
directory
located
at
http://mycpa.state.tx.us/tpasscmblsearch/index.jsp. HUB Status code “A” signifies that the company
is a Texas certified HUB.
List the three (3) Texas certified HUBs you notified regarding the subcontracting opportunity you
listed in SECTION B-1. Include the company’s Vendor ID (VID) number, the date you sent notice to
that company, and indicate whether it was responsive or non-responsive to your subcontracting
opportunity notice.
Company Name
VID Number
Date Notice Sent
(mm/dd/yyyy)
Did the HUB Respond?
- Yes
- Yes
- No
21
- No
- Yes
- No
c.
Provide written notification of the subcontracting opportunity you listed in SECTION B-1 to two (2) or
more trade organizations or development centers in Texas to assist in identifying potential HUBs by
disseminating the subcontracting opportunity to their members/participants. Unless the contracting
agency specified a different time period, you must provide your subcontracting opportunity notice to
trade organizations or development centers at least seven (7) working days prior to submitting your
bid response to the contracting agency. A list of trade organizations and development centers that
have expressed an interest in receiving notices of subcontracting opportunities is available on the
Statewide HUB Program’s webpage at http://www.window.state.tx.us/procurement/prog/hub/mwb-links1/.
d.
List two (2) trade organizations or development centers you notified regarding the subcontracting
opportunity you listed in SECTION B-1.Include the date when you sent notice to it and indicate
if it accepted or rejected your notice.
Date Notice Sent
Trade Organizations or Development Centers
(mm/dd/yyyy)
Was the Notice Accepted?
- Yes
- No
- Yes
- No
Page 1 of
2
(Attachm
ent B)
22
Rev. 10/14
HSP Good Faith Effort - Method B (Attachment B) Cont.
Enter your company’s name here:
Requisition #:
SECTION B-4: SUBCONTRACTOR SELECTION
Enter the item number and description of the subcontracting opportunity you listed in SECTION 2, Item
b, of the completed HSP form for which you are completing the attachment.
a.
Enter the item number and description of the subcontracting opportunity for which you are completing
this Attachment B continuation page.
Item Number:
b.
Description:
List the subcontractor(s) you selected to perform the subcontracting opportunity you listed in
SECTION B-1. Also identify whether they are a Texas certified HUB and their VID number, the
approximate dollar value of the work to be subcontracted, the expected percentage of work to be
subcontracted, and indicate whether the company is a Texas certified HUB.
Company Name
c.
Texas certified HUB
Approximate
Dollar Amount
VID Number
(Required if Texas
certified HUB)
Expected
Percentage of
Contract
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
- Yes
- No
$
%
If any of the subcontractors you have selected to perform the subcontracting opportunity you listed
in SECTION B-1 is not a Texas certified HUB, provide written justification for your selection process
(attach additional page if necessary):
REMINDER: As specified in SECTION 4 of the completed HSP form, if you (respondent) are awarded any
portion of the requisition, you are required to provide
notice as soon as practical to all the
subcontractors (HUBs and Non-HUBs) of their selection as a subcontractor. The notice must23specify
at a minimum the contracting agency’s name and its point of contact for the contract, the contract
award number, the subcontracting opportunity it (the subcontractor) will perform, the
approximate
dollar value of the subcontracting opportunity and the expected percentage of the total contract that the
subcontracting opportunity represents. A copy of the notice required by this section must also be
provided to the contracting agency’s point of contact for the contract no later than ten (10) working
days after the contract is awarded.
Page 2 of
2
(Attachm
ent B)
24
Rev. 10/14
HUB Subcontracting Opportunity Notification Form
In accordance with Texas Gov’t Code, Chapter 2161, each state agency that considers entering into a contract with an expected value of $100,000 or more shall, before the
agency solicits bids, proposals, offers, or other applicable expressions of interest, determine whether subcontracting opportunities are probable under the contract. The state
agency I have identified below in Section B has determined that subcontracting opportunities are probable under the requisition to which my company will be responding.
34 Texas Administrative Code, §20.14 requires all respondents (prime contractors) bidding on the contract to provide notice of each of their subcontracting opportunities to at
least three (3) Texas certified HUBs (who work within the respective industry applicable to the subcontracting opportunity), and allow the HUBs at least seven (7) working days to
respond to the notice prior to the respondent submitting its bid response to the contracting agency. In addition, at least seven (7) working days prior to submitting its bid response
to the contracting agency, the respondent must provide notice of each of its subcontracting opportunities to two (2) or more trade organizations or development centers (in Texas)
that serves members of groups (i.e., Asian Pacific American, Black American, Hispanic American, Native American, Woman, Service Disabled Veteran) identified in Texas
Administrative Code, §20.11(19)(C).
We respectfully request that vendors interested in bidding on the subcontracting opportunity scope of work identified in Section C, Item 2, reply no later than the date and time
identified in Section C, Item 1. Submit your response to the point-of-contact referenced in Section A.
SECTION: A
PRIME CONTRACTOR’S INFORMATION
State of Texas VID #:
Phone
Company Name:
Point-of-Contact:
#:
Fax #:
E-mail Address:
Agency Name:
Point-of-Contact:
Phone #:
Requisition #:
Bid Open Date:
(mm/dd/yyyy)
SECTION: C
SUBCONTRACTING OPPORTUNITY RESPONSE DUE DATE, D ESCRIPTION, R EQUIREMENTS AND RELATED INFORMATION
1. Potential Subcontractor’s Bid Response Due Date:
If you would like for our company to consider your company’s bid for the subcontracting opportunity identified below in Item 2,
we must receive your bid response no later than
.
Select
Select
Central Time
Date (mm/dd/yyyy)
In accordance with 34 TAC §20.14, each notice of subcontracting opportunity shall be provided to at least three (3) Texas certified HUBs, and
allow the HUBs at least seven (7) working days to respond to the notice prior to submitting our bid response to the contracting agency. In addition,
at least seven (7) working days prior to us submitting our bid response to the contracting agency, we must provide notice of each of our
subcontracting opportunities to two (2) or more trade organizations or development centers (in Texas) that serves members of groups (i.e.,
Asian Pacific American, Black American, Hispanic American, Native American, Woman, Service Disabled Veteran) identified in Texas
Administrative Code, §20.11(19)(C).
(A working day is considered a normal business day of a state agency, not including weekends, federal or state holidays, or days the agency is
declared closed by its executive officer. The initial day the subcontracting opportunity notice is sent/provided to the HUBs and to the trade
organizations or development centers is considered to be “day zero” and does not count as one of the seven (7) working days.)
2. Subcontracting Opportunity Scope of Work:
3. Required Qualifications:
- Not Applicable
4. Bonding/Insurance Requirements:
- Not Applicable
5. Location to review plans/specifications:
- Not Applicable
25
APPENDIX ONE
HUB Subcontracting Plan (HSP)
Rev
. 10/14
Prime Contractor Progress Assessment Report
This form must be completed and submitted to the contracting agency each month to document compliance with your HSP.
Contract/Requisition Number:_
Date of Award:
Object
Code: Contracting Agency/University Name:
Contractor (Company) Name:
VID :
State of Texas
Point of Contact:_
Phone
$
#: Reporting (Month) Period:
Total Amount Paid this Reporting Period to
Report HUB and Non-HUB subcontractor information
*Note: Texas certified HUB status can be verified on-line at: https://mycpa.cpa.state.tx.us/tpasscmblsearch/index.jsp
Subcontractor’s Name
*Texas certified HUB?
(Yes or No)
Total Contract $
Amount from HSP
with
Subcontractor
Total $ Amount Paid
this Reporting
Period to
Subcontractor
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
$
-
TOTALS: $
-
$
-
$
-
Subcontractor’s VID
or HUB Certificate
Number
(Required if Texas certified HUB)
Total Contract $
Amount Paid to
Date to
Subcontractor
Object
Code
(Agency Use
Only)
26
APPENDIX ONE
Signature:
Printed Name:
Title:
Date:
Phone
27
APPENDIX ONE
EXHIBIT D TO RFP
ADDENDA CHECKLIST
Proposal of: ___________________________________
(Respondent Company Name)
To:
The University of Texas Rio Grande Valley
Ref:
RFP related to License of Space for the Operation of a Campus Store and
Bookstore
RFP No.:
16-MR-02
Ladies and Gentlemen:
The undersigned respondent hereby acknowledges receipt of the following Addenda to the
captioned RFP (initial if applicable).
No. 1 _____
No. 2 _____
No. 3 _____
No. 4 _____
No. 5 _____
Respectfully submitted,
Respondent: ________________________
By: ___________________________
(Authorized Signature for Respondent)/
Name: _________________________
Title: __________________________
Email __________________________
Date: _____________________
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APPENDIX ONE
EXHIBIT E TO RFP
EXECUTION OF OFFER
THIS EXECUTION OF OFFER MUST BE COMPLETED, SIGNED AND RETURNED WITH
PROPOSER'S PROPOSAL. FAILURE TO COMPLETE, SIGN AND RETURN THIS
EXECUTION OF OFFER WITH THE PROPOSER’S PROPOSAL MAY RESULT IN THE
REJECTION OF THE PROPOSAL.
2.1
By signature hereon, respondent represents and warrants the following:
2.1.1
Respondent acknowledges and agrees that (i) this RFP is a solicitation for a
proposal and is not a contract or an offer to contract; (ii) the submission of a
proposal by respondent in response to this RFP will not create a contract between
University and respondent; (iii) University has made no representation or warranty,
written or oral, that one or more contracts with University will be awarded under
this RFP; and (iv) respondent will bear, as its sole risk and responsibility, any cost
arising from respondent’s preparation of a response to this RFP.
2.1.2
Respondent is a reputable company that is lawfully and regularly engaged in
providing the goods and services.
2.1.3
Respondent has the necessary experience, knowledge, abilities, skills, and
resources to perform the goods and services.
2.1.4
Respondent is aware of, is fully informed about, and is in full compliance with all
applicable federal, state and local laws, rules, regulations and ordinances.
2.1.5
Respondent understands (i) the requirements and specifications set forth in this
RFP and (ii) the terms and conditions set forth in the Agreement under which
respondent will be required to operate.
2.1.6
If selected by University, respondent will not delegate any of its duties or
responsibilities under this RFP or the Agreement to any sub-contractor, except as
expressly provided in the Agreement.
2.1.7
If selected by University, respondent will maintain any insurance coverage as
required by the Agreement during the term thereof.
2.1.8
All statements, information and representations prepared and submitted in
response to this RFP are current, complete, true and accurate. Respondent
acknowledges that University will rely on such statements, information and
representations in selecting Lessee. If selected by University, respondent will notify
University immediately of any material change in any matters with regard to which
respondent has made a statement or representation or provided information.
2.1.9
RESPONDENT WILL DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, INDEMNIFY,
AND HOLD HARMLESS UNIVERSITY, THE UNIVERSITY OF TEXAS SYSTEM, THE STATE OF
TEXAS, AND ALL OF THEIR REGENTS, OFFICERS, AGENTS AND EMPLOYEES, FROM AND
AGAINST ALL ACTIONS, SUITS, DEMANDS, COSTS, DAMAGES, LIABILITIES AND OTHER
CLAIMS OF ANY NATURE, KIND OR DESCRIPTION, INCLUDING REASONABLE ATTORNEYS’
FEES INCURRED IN INVESTIGATING, DEFENDING OR SETTLING ANY OF THE FOREGOING,
29
APPENDIX ONE
ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM ANY NEGLIGENT ACTS OR
OMISSIONS OR WILLFUL MISCONDUCT OF RESPONDENT OR ANY AGENT, EMPLOYEE,
SUBCONTRACTOR, OR SUPPLIER OF RESPONDENT IN THE EXECUTION OR
PERFORMANCE OF ANY CONTRACT OR AGREEMENT RESULTING FROM THIS RFP.
2.1.10 Pursuant to Sections 2107.008 and 2252.903, Government Code, any payments
owing to respondent under any contract or agreement resulting from this RFP may
be applied directly to any debt or delinquency that respondent owes the State of
Texas or any agency of the State of Texas regardless of when it arises, until such
debt or delinquency is paid in full.
2.2
By signature hereon, respondent offers and agrees to furnish the goods and services to
University and comply with all terms, conditions, requirements and specifications set forth
in this RFP.
2.3
By signature hereon, respondent affirms that it has not given or offered to give, nor does
respondent intend to give at any time hereafter, any economic opportunity, future
employment, gift, loan, gratuity, special discount, trip, favor or service to a public servant
in connection with its submitted proposal. Failure to sign this Execution of Offer, or signing
with a false statement, may void the submitted proposal or any resulting contracts, and
the respondent may be removed from all proposal lists at University.
2.4
By signature hereon, respondent certifies that it is not currently delinquent in the payment
of any taxes due under Chapter 171, Tax Code, or that respondent is exempt from the
payment of those taxes, or that respondent is an out-of-state taxable entity that is not
subject to those taxes, whichever is applicable. A false certification will be deemed a
material breach of any resulting contract or agreement and, at University's option, may
result in termination of any resulting contract or agreement.
2.5
By signature hereon, respondent hereby certifies that neither respondent nor any firm,
corporation, partnership or institution represented by respondent, or anyone acting for
such firm, corporation or institution, has violated the antitrust laws of the State of Texas,
codified in Section 15.01, et seq., Business and Commerce Code, or the Federal antitrust
laws, nor communicated directly or indirectly the proposal made to any competitor or any
other person engaged in such line of business.
2.6
By signature hereon, respondent certifies that the individual signing this document and the
documents made a part of this RFP, is authorized to sign such documents on behalf of
respondent and to bind respondent under any agreements and other contractual
arrangements that may result from the submission of respondent’s proposal.
2.7
By signature hereon, respondent certifies as follows:
"Under Section 231.006, Family Code, relating to child support, respondent certifies that
the individual or business entity named in the respondent’s proposal is not ineligible to
receive the specified contract award and acknowledges that any agreements or other
contractual arrangements resulting from this RFP may be terminated if this certification is
inaccurate."
2.8
By signature hereon, respondent certifies that (i) no relationship, whether by blood,
marriage, business association, capital funding agreement or by any other such kinship
or connection exists between the owner of any respondent that is a sole proprietorship,
the officers or directors of any respondent that is a corporation, the partners of any
respondent that is a partnership, the joint venturers of any respondent that is a joint
30
APPENDIX ONE
venture or the members or managers of any respondent that is a limited liability company,
on one hand, and an employee of any component of The University of Texas System, on
the other hand, other than the relationships which have been previously disclosed to
University in writing; (ii) respondent has not been an employee of any component
institution of The University of Texas System within the immediate twelve (12) months
prior to the Submittal Deadline; and (iii) no person who, in the past four (4) years served
as an executive of a state agency was involved with or has any interest in respondent’s
proposal or any contract resulting from this RFP (ref. Section 669.003, Government Code).
All disclosures by respondent in connection with this certification will be subject to
administrative review and approval before University enters into a contract or agreement
with respondent.
2.9
By signature hereon, respondent certifies its compliance with all federal laws and
regulations pertaining to Equal Employment Opportunities and Affirmative Action.
2.10
By signature hereon, respondent represents and warrants that all products and services
offered to University in response to this RFP meet or exceed the safety standards
established and promulgated under the Federal Occupational Safety and Health Law
(Public Law 91-596) and the Texas Hazard Communication Act, Chapter 502, Health and
Safety Code, and all related regulations in effect or proposed as of the date of this RFP.
2.11
Respondent will and has disclosed, as part of its proposal, any exceptions to the
certifications stated in this Execution of Offer. All such disclosures will be subject to
administrative review and approval prior to the time University makes an award or enters
into any contract or agreement with respondent.
2.12
If respondent will sell or lease computer equipment to the University under any
agreements or other contractual arrangements that may result from the submission of
respondent’s proposal then, pursuant to Section 361.965(c), Health & Safety Code,
respondent certifies that it is in compliance with the Manufacturer Responsibility and
Consumer Convenience Computer Equipment Collection and Recovery Act set forth in
Chapter 361, Subchapter Y, Health & Safety Code and the rules adopted by the Texas
Commission on Environmental Quality under that Act as set forth in Title 30, Chapter 328,
Subchapter I, Texas Administrative Code. Section 361.952(2), Health & Safety Code,
states that, for purposes of the Manufacturer Responsibility and Consumer Convenience
Computer Equipment Collection and Recovery Act, the term “computer equipment” means
a desktop or notebook computer and includes a computer monitor or other display device
that does not contain a tuner.
2.13
Respondent should complete the following information:
If respondent is a Corporation, then State of Incorporation:
If respondent is a Corporation then respondent’s Corporate Charter Number: ______
RFP No.: 16-MR-02
NOTICE: WITH FEW EXCEPTIONS, INDIVIDUALS ARE ENTITLED ON REQUEST TO BE INFORMED ABOUT THE INFORMATION THAT GOVERNMENTAL
BODIES OF THE STATE OF TEXAS COLLECT ABOUT SUCH INDIVIDUALS. UNDER SECTIONS 552.021 AND 552.023, GOVERNMENT CODE,
INDIVIDUALS ARE ENTITLED TO RECEIVE AND REVIEW SUCH INFORMATION. UNDER SECTION 559.004, GOVERNMENT CODE, INDIVIDUALS ARE
ENTITLED TO HAVE GOVERNMENTAL BODIES OF THE STATE OF TEXAS CORRECT INFORMATION ABOUT SUCH INDIVIDUALS THAT IS INCORRECT.
Submitted and Certified By:
31
APPENDIX ONE
(Proposer Institution’s Name)
(Signature of Duly Authorized Representative)
(Printed Name/Title)
(Date Signed)
(Proposer’s Street Address)
(City, State, Zip Code)
(Telephone Number)
(FAX Number)
(Email)
32
APPENDIX ONE
Request for Proposal No. 16-MR-02
The University of Texas – Rio Grande Valley
Page 1
APPENDIX ONE
EXHIBIT F TO RFP
SAMPLE OF QUALIFIED SPONSORSHIP RECOGNITION
1.
Specific Recognition
1.1
Official Sponsor Designation. Sponsor may incorporate the designation
“__________, an Official Sponsor of The University of Texas Rio Grande Valley” in banners,
announcements, logos, products and other material used in connection with this Agreement.
1.2
Public Address Announcements. University will recognize Sponsor as an
“Official Sponsor of The University of Texas Rio Grande Valley” through the following public
address announcements:
1.3
Link to Sponsor’s Website. University will post Sponsor Logo on University’s
website as more particularly provided in a website sponsorship agreement acceptable to
University in all respects.
“Sponsor Logo” means [Note: Sponsor Logo will be included prior to execution of Agreement.]
1.5
Sponsor Logo in Print Materials.
___________________________.
1.6
Sponsor Logo will be printed in
Promotional Product and Printed Material Distribution
1.6.1 Products and Materials. Subject to the terms and conditions of this
Agreement and approval of University, Sponsor will have the following distribution rights for
qualified sponsorship recognition material as defined in the Internal Revenue Code and Treasury
Regulations (“Sponsorship Recognition Material”):
____________________
____________________
Sponsor understands, acknowledges, and agrees that the method of distribution and the amount,
scope, and type of promotional products that may be distributed in accordance with this Section
will be determined by University.
1.6.2 Policy Limitations. University Rules, including Rule 80301, place
restrictions on the display and distribution of promotional products and the distribution of printed
material related to goods or services provided by Sponsor. Among other restrictions, such
activities: (i) may not interfere with the use of facility entrances and exits or the flow of pedestrian
or vehicular traffic; (ii) may not harass, embarrass, or intimidate the people being solicited; (iii)
may not violate any applicable law or regulation; (iv) may only be authorized the day before and
the day of an intercollegiate athletic event or an athletic related event taking place in a facility
used for athletic events; (v) may only be conducted from booths, tables, and kiosks (or in a
University designated area for display of motorized vehicles) immediately adjacent to an athletic
facility, the location and number of which have been authorized by University; (vi) must be
conducted in accordance with University Rules, including those regarding safety; and (vii) must
not include making sales or taking orders.
1.6.3 License Required. Any promotional products distributed under this
Agreement that are imprinted with the name, logos, trademarks, service marks and other
Request for Proposal No. 16-MR-02
The University of Texas – Rio Grande Valley
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APPENDIX ONE
symbols of University (collectively, “University Marks”) may only be imprinted pursuant to a
license issued by Strategic Marketing Affiliates LLC or any successor identified by University.
Request for Proposal No. 16-MR-02
The University of Texas – Rio Grande Valley
Page 3
APPENDIX ONE
EXHIBIT G TO RFP
ELECTRONIC AND INFORMATION RESOURCES ENVIRONMENT SPECIFICATIONS
The specifications, representations, warranties and agreements set forth in Proposer’s
responses to this EXHIBIT G will be incorporated into the Agreement.
University is primarily a Microsoft products environment.
Basic Specifications
If the EIR will be hosted by University, please describe the overall environment requirements for
the EIR (size the requirements to support the number of concurrent users, the number of
licenses and the input/output generated by the application as requested in the application
requirements).
A. Hardware: If Proposer will provide hardware, does the hardware have multiple hard
drives utilizing a redundant RAID configuration for fault tolerance? Are redundant servers
included as well?
B. Operating System and Version:
C. Web Server: Is a web server required? If so, what web application is required (Apache
or IIS)? What version? Are add-ins required?
D. Application Server:
E. Database:
F. Other Requirements: Are any other hardware or software components required?
G. Assumptions: List any assumptions made as part of the identification of these
environment requirements.
H. Storage: What are the space/storage requirements of this implementation?
I. Users: What is the maximum number of users this configuration will support?
J. Clustering: How does the EIR handle clustering over multiple servers?
K. Virtual Server Environment: Can the EIR be run in a virtual server environment?
If the EIR will be hosted by Proposer, describe in detail what the hosted solution includes, and
address, specifically, the following issues:
A. Describe the audit standards of the physical security of the facility; and
B. Indicate whether Proposer is willing to allow an audit by University or its representative.
If the user and administrative interfaces for the EIR are web-based, do the interfaces support
Firefox on Mac as well as Windows and Safari on the Macintosh?
If the EIR requires special client software, what are the environment requirements for that client
software?
Manpower Requirements: Who will operate and maintain the EIR? Will additional University full
time employees (FTEs) be required? Will special training on the EIR be required by
Proposer’s technical staff? What is the estimated cost of required training.
Upgrades and Patches: Describe Proposer’s strategy regarding EIR upgrades and patches for
Request for Proposal No. 16-MR-02
The University of Texas – Rio Grande Valley
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APPENDIX ONE
both the server and, if applicable, the client software. Included Proposer’s typical release
schedule, recommended processes, estimated outage and plans for next version/major
upgrade.
Security
1. Has the EIR been tested for application security vulnerabilities? For example, has the EIR
been evaluated against the Open Web Application Security Project (“OWASP”) Top 10 list
that includes flaws like cross site scripting and SQL injection? If so, please provide the scan
results and specify the tool used. University will not take final delivery of the EIR if University
determines there are serious vulnerabilities within the EIR.
2. Which party, Proposer or University, will be responsible for maintaining critical EIR
application security updates?
3. If the EIR is hosted, indicate whether Proposer’s will permit University to conduct a
penetration test on University’s instance of the EIR.
4. If confidential data, including HIPAA or FERPA data, is stored in the EIR, will the data be
encrypted at rest and in transmittal?
Integration
1. Is the EIR authentication Security Assertion Markup Language (“SAML”) compliant? Has
Proposer ever implemented the EIR with Shibboleth authentication? If not, does the EIR
integrate with Active Directory? Does the EIR support TLS connections to this directory
service?
2. Does the EIR rely on Active Directory for group management and authorization or does the
EIR maintain a local authorization/group database?
3. What logging capabilities does the EIR have? If this is a hosted EIR solution, will University
have access to implement logging with University’s standard logging and monitoring tools,
RSA’s Envision?
4. Does the EIR have an application programming interface (“API”) that enables us to incorporate
it with other applications run by the University? If so, is the API .Net based? Web Servicesbased? Other?
Will University have access to the EIR source code? If so, will the EIR license permit University
to make modifications to the source code? Will University’s modifications be protected in
future upgrades?
Request for Proposal No. 16-MR-02
The University of Texas – Rio Grande Valley
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APPENDIX ONE
Will Proposer place the EIR source code in escrow with an escrow agent so that if Proposer is
no longer in business or Proposer has discontinued support, the EIR source code will be
available to University.
Accessibility Information
Proposer must provide the following, as required by Title 1, Rule §213.38(b) of the Texas
Administrative Code:
1. Accessibility information for the electronic and information resources (“EIR”) 1 products or
services proposed by Proposer, where applicable, through one of the following methods:
(A)
the URL to completed Voluntary Product Accessibility Templates (“VPATs”) 2 or
equivalent reporting templates;
(B)
an accessible electronic document that addresses the same accessibility criteria in
substantially the same format as VPATs or equivalent reporting templates; or
(C)
the URL to a web page which explains how to request completed VPATs, or
equivalent reporting templates, for any product under contract; and
2. Credible evidence of Proposer’s capability or ability to produce accessible EIR products and
services. Such evidence may include, but is not limited to, Proposer’s internal accessibility
policy documents, contractual warranties for accessibility, accessibility testing documents,
and examples of prior work results.
1
Electronic and information resources are defined in Section 2054.451, Texas Government Code (link)
and Title 1, Rule §213.1 (6) of the Texas Administrative Code (link).
2
Voluntary Product Accessibility Templates are defined in Title 1, Rule §213.1 (19) of the Texas
Administrative Code (link). For further information, see this link to a VPAT document provided by the
Information Technology Industry Council.
Request for Proposal No. 16-MR-02
The University of Texas – Rio Grande Valley
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APPENDIX ONE
EXHIBIT H TO RFP
SECURITY CHARACTERISTICS AND FUNCTIONALITY
OF RESPONDENT’S INFORMATION RESOURCES
The specifications, representations, warranties and agreements set forth in respondent’s
responses to this EXHIBIT H will be incorporated into the Agreement.
“Information Resources” means any and all computer printouts, online display devices, mass
storage media, and all computer-related activities involving any device capable of receiving
email, browsing Web sites, or otherwise capable of receiving, storing, managing, or transmitting
Data including, but not limited to, mainframes, servers, Network Infrastructure, personal
computers, notebook computers, hand-held computers, personal digital assistant (PDA), pagers,
distributed processing systems, network attached and computer controlled medical and
laboratory equipment (i.e. embedded technology), telecommunication resources, network
environments, telephones, fax machines, printers and service bureaus. Additionally, it is the
procedures, equipment, facilities, software, and Data that are designed, built, operated, and
maintained to create, collect, record, process, store, retrieve, display, and transmit information.
“University Records” means records or record systems that respondent (1) creates, (2) receives
from or on behalf of University, or (3) has access, and which may contain confidential information
(including credit card information, social security numbers, and private health information (“PHI”)
subject to Health Insurance Portability and Accountability Act (“HIPAA”) of 1996 (Public Law
104-191), or education records subject to the Family Educational Rights and Privacy Act
(“FERPA”).
General Protection of University Records
1. Describe the security features incorporated into Information Resources (ref. Section 5.3.4 of
the RFP) to be provided or used by Respondent pursuant to this RFP.
2. List all products, including imbedded products that are a part of Information Resources and
the corresponding owner of each product.
3. Describe any assumptions made by respondent in its proposal regarding information security
outside those already listed in the proposal.
Complete the following additional questions if the Information Resources will be hosted by
respondent:
4. Describe the monitoring procedures and tools used for monitoring the integrity and availability
of all products interacting with Information Resources, including procedures and tools used to,
detect security incidents and to ensure timely remediation.
5. Describe the physical access controls used to limit access to respondent's data center and
network components.
6. What procedures and best practices does Proposer follow to harden all systems that would
interact with Information Resources, including any systems that would hold or process University
Records, or from which University Records may be accessed?
Request for Proposal No. 16-MR-02
The University of Texas – Rio Grande Valley
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APPENDIX ONE
7. What technical security measures does the respondent take to detect and prevent
unintentional, accidental and intentional corruption or loss of University Records?
8. Will the respondent agree to a vulnerability scan by University of the web portal application
that would interact with Information Resources, including any systems that would hold or process
University Records, or from which University Records may be accessed? If respondent objects,
explain basis for the objection to a vulnerability scan.
9. Describe processes respondent will use to provide University assurance that the web portal
and all systems that would hold or process University Records can provide adequate security of
University Records.
10. Does respondent have a data backup and recovery plan supported by policies and
procedures, in place for Information Resources? If yes, briefly describe the plan, including scope
and frequency of backups, and how often the plan is updated. If no, describe what alternative
methodology respondent uses to ensure the restoration and availability of University Records.
11. Does respondent encrypt backups of University Records? If yes, describe the methods used
by respondent to encrypt backup data. If no, what alternative safeguards does respondent use
to protect backups against unauthorized access?
12. Describe the security features incorporated into Information Resources to safeguard
University Records containing confidential information.
Complete the following additional question if Information Resources will create, receive, or
access University Records containing PHI subject to HIPAA:
13. Does respondent monitor the safeguards required by the HIPAA Security Rule (45 C.F.R. §
164 subpts. A, E (2002)) and respondent's own information security practices, to ensure
continued compliance? If yes, provide a copy of or link to the respondent’s HIPAA Privacy &
Security policies and describe the respondent's monitoring activities and the frequency of those
activities with regard to PHI.
Access Control
1. How will users gain access (i.e., log in) to Information Resources?
2. Do Information Resources provide the capability to use local credentials (i.e., federated
authentication) for user authentication and login? If yes, describe how Information Resources
provide that capability.
3. Do Information Resources allow for multiple security levels of access based on affiliation
(e.g., staff, faculty, and student) and roles (e.g., system administrators, analysts, and
information consumers), and organizational unit (e.g., college, school, or department? If yes,
describe how Information Resources provide for multiple security levels of access.
4. Do Information Resources provide the capability to limit user activity based on user
affiliation, role, and/or organizational unit (i.e., who can create records, delete records, create
and save reports, run reports only, etc.)? If yes, describe how Information Resources provide
that capability. If no, describe what alternative functionality is provided to ensure that users
have need-to-know based access to Information Resources.
5. Do Information Resources manage administrator access permissions at the virtual system
level? If yes, describe how this is done.
Request for Proposal No. 16-MR-02
The University of Texas – Rio Grande Valley
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APPENDIX ONE
6. Describe respondent’s password policy including password strength, password generation
procedures, password storage specifications, and frequency of password changes. If passwords
are not used for authentication or if multi-factor authentication is used to Information Resources,
describe what alternative or additional controls are used to manage user access.
Complete the following additional questions if Information Resources will be hosted by
respondent:
7. What administrative safeguards and best practices does respondent have in place to vet
respondent's and third-parties' staff members that would have access to the environment hosting
University Records to ensure need-to-know-based access?
8. What procedures and best practices does respondent have in place to ensure that user
credentials are updated and terminated as required by changes in role and employment status?
9. Describe respondent's password policy including password strength, password generation
procedures, and frequency of password changes. If passwords are not used for authentication
or if multi-factor authentication is used to Information Resources, describe what alternative or
additional controls are used to manage user access.
Use of Data
Complete the following additional questions if Information Resources will be hosted by
respondent:
1. What administrative safeguards and best practices does respondent have in place to vet
respondent's and third-parties' staff members that have access to the environment hosting all
systems that would hold or process University Records, or from which University Records may
be accessed, to ensure that University Records will not be accessed or used in an unauthorized
manner?
2. What safeguards does respondent have in place to segregate University Records from system
data and other customer data and/or as applicable, to separate specific University data, such
as HIPAA and FERPA protected data, from University Records that are not subject to such
protection, to prevent accidental and unauthorized access to University Records ?
3. What safeguards does respondent have in place to prevent the unauthorized use, reuse,
distribution, transmission, manipulation, copying, modification, access, or disclosure of
University Records?
4. What procedures and safeguards does respondent have in place for sanitizing and disposing
of University Records according to prescribed retention schedules or following the conclusion of
a project or termination of a contract to render University Records unrecoverable and prevent
accidental and unauthorized access to University Records? Describe the degree to which
sanitizing and disposal processes addresses University data that may be contained within
backup systems. If University data contained in backup systems is not fully sanitized, describe
processes in place that would prevent subsequent restoration of backed-up University data.
Data Transmission
Request for Proposal No. 16-MR-02
The University of Texas – Rio Grande Valley
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APPENDIX ONE
1. Do Information Resources encrypt all University Records in transit and at rest? If yes,
describe how Information Resources provide that security. If no, what alternative methods are
used to safeguard University Records in transit and at rest?
Complete the following additional questions if Information Resources will be hosted by
respondent:
2. How does data flow between University and Information Resources? If connecting via a
private circuit, describe what security features are incorporated into the private circuit. If
connecting via a public network (e.g., the Internet), describe the way respondent will safeguard
University Records.
3. Do Information Resources secure data transmission between University and respondent? If
yes, describe how respondent provides that security. If no, what alternative safeguards are used
to protect University Records in transit?
Notification of Security Incidents
Complete the following additional questions if Information Resources will be hosted by
respondent:
1.
Describe respondent’s procedures to isolate or disable all systems that interact with
Information Resources in the event a security breach is identified, including any systems that
would hold or process University Records, or from which University Records may be accessed.
2. What procedures, methodology, and timetables does respondent have in place to detect
information security breaches and notify University and other customers? Include respondent’s
definition of security breach.
3. Describe the procedures and methodology respondent has in place to detect information
security breaches, including unauthorized access by respondent’s and subcontractor’s own
employees and agents and provide required notifications in a manner that meets the
requirements of the state breach notification law.
Compliance with Applicable Legal & Regulatory Requirements
Complete the following additional questions if Information Resources will be hosted by
respondent:
1. Describe the procedures and methodology respondent has in place to retain, preserve,
backup, delete, and search data in a manner that meets the requirements of state and federal
electronic discovery rules, including how and in what format University Records are kept and
what tools are available to University to access University Records.
2. Describe the safeguards respondent has in place to ensure that systems (including any
systems that would hold or process University Records, or from which University Records may
be accessed) that interact with Information Resources reside within the United States of America.
If no such controls, describe respondent’s processes for ensuring that data is protected in
compliance with all applicable US federal and state requirements, including export control.
3. List and describe any regulatory or legal actions taken against respondent for security or
privacy violations or security breaches or incidents, including the final outcome.
Request for Proposal No. 16-MR-02
The University of Texas – Rio Grande Valley
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APPENDIX ONE
Delete or complete as appropriate
Request for Proposal No. 16-MR-02
The University of Texas – Rio Grande Valley
Page 11