10:01:00 Agreement Between Chattanooga State Community College
and
Chattanooga State Community College Foundation
THIS AGREEMENT made by and between CHATTANOOGA STATE COMMUNITY COLLEGE (hereinafter referred to as the “Institution”), and CHATIANOOGA STATE COMMUNITY COLLEGE FOUNDATION
(hereinafter referred to as the “Foundation”).
The Institution is a public institution of higher education created by Tenn. Code Ann. 49-8-101 and governed by the Tennessee Board of Regents.
The Foundation is a private, non-profit corporation existing by virtue of Tenn. Code Ann. 49-7-107 and Tenn. Code Ann. 48-51-101 et seq. {Tennessee Nonprofit Corporation Act), is tax-exempt under Section 501{c)(3) of Internal Revenue Code, and is organized to work in concert with the Institution . The Foundation is established by Charter dated November 18, 1977 and Bylaws
dated June 2015, attached hereto as Exhibit A, and its purpose is as stated therein.
The Foundation’s relationship to the Institution is based upon a shared interest in the Institution’s development and the success of the Institution’s mission. Therefore, Institutional
participation in and support of Foundation operations are appropriate and desirable.
THE PARTIES HEREBY AGREE AS FOLLOWS:
A. FOUNDATION POWERS, DUTIES, AND RESPONSIBILITIES
1. Foundation Charter and Bylaws. The Foundation shall file its initial and amended foundation charters and bylaws with the Secretary of State of the State of Tennessee and
Institution president will submit copies to the Tennessee Board of Regents’ Office of General Counsel.
2. Ethics Policy. The Foundation shall adopt an ethics policy complying with Tenn. Code Ann. § 49-7-107 that applies to and governs the conduct of all members of the Foundation’s governing body. Members must review and acknowledge the code of ethics annually.
3. Foundation Business Affairs. The Foundation’s Board shall develop policies and procedures concerning the conduct of its business affairs and to assure appropriate reporting of financial and
other activities. Such policies and procedures shall implement sound business practices, provide for appropriate checks and balances and ensure prudent use of
Foundation funds.
a. Budget Preparation. With the assistance of Institution administrative personnel, the Foundation will create the Foundation’s budget.
b. Procurement and Contracting. The Foundation’s Board shall develop policies and procedures that address procurement and contracting activities. When practicable, the Foundation shall use
competitive procurement methods. Such policies must include a process for determining authority for authorizing contracts on behalf of the Foundation and for authorizing expenditure of Foundation
funds. Authority for these functions cannot be delegated solely to an employee of the institution.
c. Contracts. The Foundation does not have any authority to obligate the Institution in any manner. A contract may not be entered into in the names of both the Foundation
and the Institution or in the name of either entity “on behalf of’ the other. If a transaction involves both the Foundation and the Institution, both must be parties to the contract and it must be executed by authorized representatives of both.
d. Administration of Donations to the Foundation. The Foundation shall develop policies and procedures that address the management and investment of contributions to the Foundation, subject to the requirements of the Uniform Prudent Management of Institutional Funds Act, T.C.A. Title 35, Chapter 10, Part 2.
e. Document Retention Policy. The Foundation shall have a written mandatory document retention and periodic destruction policy that complies with Sarbanes-Oxley requirements.
This should include guidelines for handling electronic files and voice mail, as well as paper documents. The Foundation’s policy will prohibit document purging if an official investigation is
anticipated or underway.
f. Reports. The Foundation shall issue reports to the president of the Institution, at least annually, on the activities of the Foundation. An annual financial report shall be issued, prepared
in accordance with generally accepted accounting principles, including all required note disclosures. Financial reports shall include, as applicable and according to appropriate accounting principles, the value of in-kind services provided by the Institution.
4. Solicitation and Acceptance of Contributions. The Foundation is hereby designated as an entity responsible for promoting and generating private sector support for the Institution. The
Foundation may collect contributions for the Institution’s charitable, scientific, and educational purposes. The Foundation shall assist the Institution and its departments in their fund-raising
activities, capital campaigns, and development programs with individuals, corporations, foundations, and other organizations. The Foundation shall develop policies and procedures
addressing the solicitation and acceptance of contributions to the Foundation, incorporating sound business principles and safeguarding compliance with donor intent and conditions. Prior to
accepting any donation that will require substantial institutional support such as staff, financial assistance, storage, on-going maintenance, etc., approval must be obtained from the president of
the Institution and, if applicable, from the Chancellor.
5. Confidentiality of Donor Information. The Institution and the Foundation may share employees and services, including information on donors. As used herein, the Foundation’s “donor
information” includes but is not limited to a compilation of contributors, prospects, alumni, friends, and supporters of the institution. These records, as well as all other data,
materials, and information belonging to the Foundation pertaining to past, current, prospective donors are proprietary to the Foundation and constitute its confidential information and trade secrets. The Institution and the Foundation shall comply with the provisions ofT. C. A.§ 49-7-140 regarding the confidentiality of gift records. Subject to those provisions, the Foundation may disclose confidential information from time to time to authorized Institution personnel for purposes of cooperative planning and implementation of activities, as authorized by the Foundation. Institution employees shall preserve the confidentiality of such shared information.
6. Use of Institution Name/Marks.
a. The Foundation may, in connection with its lawful business and activities, use the name of the Institution as well as the Institution’s logo, seal, and other symbols and
marks.
b. The Foundation shall not delegate the authority to use the Institution’s name or marks without written approval of the Institution’s president and shall not permit the Institution’s name or
marks to be used in connection with advertising of non institution or non-foundation products or services unless such use is consistent with policies of the institution.
c. The Foundation agrees to cease using the Institution’s name and marks in the event:
i. Foundation dissolves;
ii. The Foundation ceases to be a non-profit corporation or ceases to be recognized by the IRS as described in Section 501(c)(3) of the Internal Revenue Code; or
iii. The Foundation or the Institution terminates this agreement.
7. Operational Support from the Institution. The Institution may not transfer state or institutional funds to the Foundation, however, the Institution may provide in kind services to
Foundation as consideration for services rendered by the Foundation to the Institution. “In-kind services” include, but are not limited to, the provision of office space, administrative support
and other staff.
8. Respect for Institution’s Personnel Administration. Foundations must respect the Tennessee Board of Regents and Institutional authority over personnel
administration. Foundation expenditures for compensation and other payments to or for the benefit of institutional personnel and reportable as income to the recipient, such as salary, expense
accounts, automobiles, club or other organization memberships and dues, etc., must be approved in advance, annually, by the Institution president, unless the salaries funded by the Foundation are
in accordance with Institution’s compensation plan and included in the Institution’s personnel budget. Advance approval of the Chancellor shall be required if payments outside the Institution’s compensation plan are made to or for the benefit of any Institutional employee, including the president, and if the aggregate value of such payments to any individual Institutional employee exceeds fifteen hundred dollars ($1,500) per fiscal year. This provision does not apply to reimbursement of business expenses incurred by Institutional employees or to non-taxable recognition awards given to Institutional employees.
9. Taxes. The Foundation shall be responsible for compliance with all applicable state and federal tax laws. If the Institution provides in-kind services to assist with the preparation and
filing of required tax forms and returns, the Foundation shall supply all necessary information in a timely manner.
10. Compliance with Applicable Laws. The Foundation agrees to comply with all executive orders, federal, state, and local rules, regulations, and laws applicable to similar non-profit
corporations.
11. Compliance with TBR Policy. The Foundation agrees to comply with Tennessee Board of Regent’s Policy 4:01:07:02, Foundations.
12. Hold Harmless. The Foundation shall indemnify and hold harmless the Institution, its governing board, officers, employees, agents and students, in their official
and individual capacities, from and against any and all claims of liability, injury, damages, expenses, demands and judgments, including court costs and attorneys’ fees, arising out of the
Foundation’s performance of this agreement, except for injury or damage caused by the sole negligence of the Institution, and furthermore, this provision shall survive the termination or
expiration of this agreement.
13. Foundation Legal Counsel. The Foundation shall be responsible for providing its own legal counsel.
C. INSTITUTION POWERS, DUTIES. AND RESPONSIBILITIES.
1. Independence of Foundation. The Institution agrees to encourage and maintain the independence of the Foundation and, at the same time, foster the cooperative relationship between
the institution and Foundation
2. General Powers of the Institution. The Institution may:
a. Provide the professional services of its employees, within the scope of their employment with the Institution;
b. Review the financial records of the Foundation to determine that the Foundation is adequately capitalized for any activities undertaken in the name of, for the benefit of, or in conjunction with the Institution;
c. Request or require evidence satisfactory to the president or the president’s designee of insurance or self-insurance adequate in form and amounts to cover foreseeable liability arising from activities undertaken in the name of, for the benefit of, or in conjunction with Institution;
d. Request periodic review of any written general agreement or memorandum of understanding between the Institution and the Foundation to ensure that it describes each party’s responsibilities in a manner that makes it clear to third parties dealing with the cooperative organization that the organization is acting as a legal entity separate from the Institution; and
e. Take any action necessary to ensure that actions of the Institution’s officials, faculty, staff, or employees relative to the Foundation are consistent with policies established by
the Tennessee Board of Regents and the Institution regarding conflicts of interest, outside activities, and other matters.
3. Institutional Services to Foundation. In consideration of the services provided to the Institution by the Foundation and as set forth herein, the Institution may assist the Foundation in
the following:
a. Provision of office space, telephones, computers, supplies, etc. for personnel. These will be considered in-kind services from the Institution.
b. Provision of clerical and administrative support services through the Institution’s Development Office.
c. Provision of designated financial services including financial record keeping.
4. Audit of Foundation Records. In accordance with T.C.A. § 49-7-107{b), all annual reports, books of account and financial records of the foundation shall be subject to audit by the Comptroller of the Treasury of the State of Tennessee. Records and accounts maintained by the foundation shall be audited on the same cycle as the institutional audit performed by the Comptroller, or, with the prior approval of the Comptroller, an independent public accountant may perform such an audit. The contract between the independent public accountant and the foundation shall be approved in advance by the Tennessee Board of Regents and the Comptroller and shall be on forms prescribed by the Comptroller. All annual reports, books of account and financial
records of the foundation shall be available for audit by the internal auditors of the Institution or the Tennessee Board of Regents.
D. MUTUAL ACKNOWLEDGEMENTS AND OBLIGATIONS.
1 Termination. Either party may terminate this agreement upon sixty days’ notice.
2. Term. This agreement is based upon the Institution’s fiscal year, which is July 1 through June 30. The term of this Agreement shall commence on the date first written below and expire on
June 30, 2017. If neither party gives notice of termination, as provided in paragraph 2, above, prior to the expiration of the agreement, it will continue on a
year-to-year basis. If this agreement is terminated by either party, all funds, assets, data and
information in the possession of the Foundation will be transferred to the Institution as soon as
is practicable.
3. Entire Agreement/Modification. This agreement contains all the terms between the parties. It may be amended only in writing signed by legally authorized representatives of all parties.
APPROVED:
Chattanooga State Community College Foundation, July 2016
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