(a) A for-profit entity will not be designated as an OCS:
  (1) if there is a reasonable possibility of a conflict of interest between the Commission and the business entity, or if the designation would create the appearance of a conflict of interest. Business entities that have contracts with the Commission, recipients of Commission grants or who have business under review by the Commission are considered to have a conflict of interest with the Commission for OCS purposes;
  (2) if the affiliation of the Commission with the business entity would undermine the reputation, credibility or integrity of the Commission in the judgment of the Commission; or
  (3) if the business entity's mission or purpose conflicts with the mission and goals of the Commission.
(b) An entity shall not be considered an OCS until it has been designated as an OCS in a sponsorship contract signed by the executive director or his designee.
(c) OCSs may be selected through a competitive process or by direct negotiation. The Friends of the Texas Historical Commission is the recognized fund-raising organization of the Texas Historical Commission. Potential sponsors should contact the Friends to learn the details of how to become an OCS.
(d) The Commission's process for selecting and designating OCSs shall take into consideration:
  (1) the availability of other possible OCSs for the agency, program, project or site;
  (2) the amount and nature of support being offered, and the needs of the site or program;
  (3) the amount of support being offered in proportion to the value of the consideration and other benefits provided by the Commission; and
  (4) the level of compatibility of the entity's products, business and mission with the Commission's mission and goals.
(e) The Commission may designate one exclusive OCS for the agency, and exclusive or multiple OCSs within a business category.
(f) The Commission may establish minimum criteria that must be met by an entity to be considered for designation as an OCS. Such criteria may include, but are not limited to the following:
  (1) a minimum amount of the contribution in cash, goods, and/or services to be provided by the OCS;
  (2) the extent of the entity's geographic presence in the state;
  (3) the ability of the entity to engage in joint promotional campaigns and/or cooperative ventures utilizing technology and/or systems belonging to the entity;
  (4) authorization to conduct business in the state of Texas and being in good standing with the appropriate regulatory and taxing authorities of the state of Texas; and
  (5) specific kinds of businesses that are not appropriate for affiliation with the Commission.
(g) The designation of an OCS shall be for a specified period of time, and no longer than five (5) years.
(h) The designation of an OCS shall not constitute an endorsement by the Commission of the OCS or the OCS's products and/or services.
(i) Notwithstanding the designation of an entity as an OCS and unless otherwise expressly agreed by the Commission in writing:
  (1) the Commission and an OCS are independent entities and are not agents, partners, joint venture participants or otherwise responsible for the acts, omissions, or conduct of the other party; and
  (2) the legal relationship of the Commission and an OCS shall be defined by contract and shall not be considered a "partnership" and neither the Commission nor an OCS shall be considered a "partner" of the other as those terms are defined and used in the Texas Business Organizations Code.
(j) Donations from OCSs under a sponsorship agreement may be made to an affiliated non-profit entity for the benefit of the Commission.

Source Note: The provisions of this §11.42 adopted to be effective November 30, 2015, 40 TexReg 8641