GIFT AGREEMENTS

6.a. Gift Agreement Templates

Gift agreements are written according to the most current agreement template. Templates are approved by the Office of General Counsel and are available on the Office of Advancement Resource site.

Gift and Pledge Form

The Gift and Pledge Form records donor intent and signature and is considered a signed agreement pledge. The full amount pledged is counted in University fundraising totals at the time of signature. (Donor-advised fund pledges, however, are counted at the time of receipt of funds.) If a donor plans to recommend a grant from a DAF/CF to create a named fund, a Memorandum of Intent shall be used in place of a Gift Agreement.
Planned Giving Intent Form

If a planned gift (e.g., will, bequest, beneficiary designation) is being considered, the donor completes and signs the Planned Giving Intent Form . The document is an authoritative reference to direct gift administration and memorialize donor intent. The estimated gift value counted in University fundraising totals is determined by the Planned Giving Counting Guidelines.
Endowed Gift Agreement

An endowment may be established with a $25,000 minimum gift, either outright or pledged over a maximum of five years. A gift agreement must be executed before a Banner index can be created to hold endowment funds. Funds received before a gift agreement is executed are deposited in the University Advancement holding account. The Office of Advancement Services moves the held funds (via journal transfer) once a Banner index is in place.
Expendable Gift Agreement

A $10,000 minimum gift, either outright or pledged over a maximum of five years, is required to create a named expendable agreement. An expendable gift agreement must be executed before a banner index can be created to hold the donated funds. Funds received before the gift agreement is executed are deposited in the University Advancement holding account. The Office of Advancement Services moves the held funds (via journal transfer) once a Banner index is in place.
Gift Agreement Amendment

If a donor wishes to make a simple change or two to her/his existing gift agreement, a Gift Agreement Amendment is executed. If multiple changes are expected, an amended and restated gift agreement is executed to ensure that the resulting agreement stands on its own and provides a complete history of the fund.
Donor-Advised Fund – Endowment Memorandum of Intent

If an endowment pledge is to be fulfilled with charitable contributions from a donor-advised fund, an Endowment Memorandum of Intent is executed. Individuals cannot legally obligate a donor-advised fund to satisfy a pledge. While donor-advised fund commitments do not factor in University fundraising totals, the pledge payments are counted when funds are received.
Memorandum for Multi Donor Endowment

Instances when a group of donors decides to coordinate efforts to raise gifts to establish a “True Endowment” for a specific purpose to be named after a professor, advisory board, deceased classmate, etc., a Memorandum for Multi Donor Endowment is executed. The Unit’s Development Officer should be the point of contact to facilitate the process. It is recommended that prior to establishing an endowment for a memorial or to honor an individual that permission from the family or honoree has been granted. The minimum funding amount for an endowment is $25,000 and must be met within five years, if not met, the gift will be considered expendable towards the stated purpose.
Memorandum for Multi Donor Expendable

Instances when a group of donors decides to coordinate efforts to raise gifts to establish an expendable fund for a specific purpose to be named after a professor, advisory board, deceased classmate, etc., a Memorandum for Multi Donor Expendable is executed. The Unit’s Development Officer should be the point of contact to facilitate the process. It is recommended that prior to establishing the fund for a memorial or to honor an individual that permission from the family or honoree has been granted. The minimum funding amount for an expendable fund is $10,000 and must be met within five years, if not met, the gift will be moved to a general fund with a similar purpose.

6.b. Expendable Scholarship with No Agreement

If a scholarship gift of $10,000 or more will be expended completely within a year of receipt, a gift agreement need not be executed. Scholarship criteria, however, must be approved by the Office of Advancement Services.

Scholarship gifts below $10,000 shall be deposited to an existing general scholarship fund (usually department general scholarship accounts), as determined in consultation with the donor.

6.c. Gift Agreement Process Flow Chart

The gift agreement process, from donor inclination to final signature, is outlined in the gift agreement flowchart. The formal review, compliance, and recording procedures ensure that the document is correctly written and legally sound, and that the donor and University, upon final signature, are satisfied with the executed gift agreement.

6.d. Agreement Review Form ( ARF )

The ARF accompanies the gift agreement through the approval process to assure that all University parties (e.g., development officer, dean/unit lead, Foundation president, general counsel) are in agreement.

6.e. Use of Office of General Counsel on Gift Agreements

If a gift agreement requires information or measures not included in the approved template, the Senior Director of Advancement Services and/or the Vice President of Advancement should be consulted for recommendations. If necessary, the Gift Acceptance Committee may be consulted and the Office of General Counsel may be asked to create a new gift agreement.

6.f. Signatures on Gift Agreements

According to USU Policy 528: Contract Signature Authority and Delegation, gift agreements are contracts that bind the University to legal obligation. The table below indicates the signatures required for the three endowment types:

Expendable	Endowment	Memorandum of Intent
Donor	Donor	Donor
Unit Administrator	Unit Administrator	Unit Administrator
VP for Advancement	Foundation Board President	Foundation Board President
VP for Business & Finance	USU President	USU President
USU President

6.g. Scholarship Selection and Restriction Criteria

As a federally-funded public institution of higher education, the University must comply with federal law that governs the permissibility of donor-named restrictions in a gift agreement. These laws include but are not limited to Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Equal Protection Clause of the U.S. Constitution. State law and institutional policy may also restrict the University’s ability to accept funds for scholarships that are limited to certain protected classes of individuals.

Scholarship Unallowable Terms
- Race/Ethnicity,
- Disability,
- Marital and Parental Status,
- Religion,
- Citizenship,
- National Origin,
- Gender,
- Age, or
- Family Descendants.
Utah State University has made an administrative decision to not allow “Preference for” added to any term that is unallowable.
Grandfathered Criteria

In 2017 Utah State University made an administrative decision to allow scholarship criteria that may be problematic to remain in gift agreements created before 2017. It is agreed that any agreement that is amended after 2017, that includes problematic scholarship criteria, will have the criteria removed or restated at the time of amending.
Charitable Class

The number of potential individuals that may benefit from a scholarship must be large enough to be considered a charitable class. IRS Publication 3833 (Rev. 9-2005) provides the following description of a charitable class:

The group of individuals that may properly receive assistance from a charitable organization is called a charitable class. A charitable class must be large or indefinite enough that providing aid to members of the class benefits the community as a whole. Because of this requirement, tax-exempt disaster relief or emergency hardship organization cannot target and limit its assistance to specific individuals, such as a few persons injured in a particular fire. Similarly, donors cannot earmark contributions to a charitable organization for a particular individual or family. When a disaster or emergency hardship occurs, a charitable organization may help individuals who are needy or otherwise distressed because they are part of a general class of charitable beneficiaries, provided the organization who selects who gets the assistance.
Donor not part of Selection Committee

Utah State University has made the administrative decision not to allow the donor or donor’s family to be part of the selection committee that chooses the recipient.

IRS Revenue Ruling 68-484, 1968-2 C.B. 105, states that for purposes of determining that a contribution is made to or for the use of an organization described in section 170 of the Code (rather than to a particular individual who ultimately benefits from the contribution), the organization must have full control of the use of the donated funds; and the contributor's intent in making the payment must have been to benefit the organization itself and not the individual recipient.
Undocumented Students

Effective May 4, 2022, Utah Code 63G-12-402 states that undocumented/DACAmented students are eligible for privately funded scholarship as long as the student meets the same eligibility requirements outlined in HB144. Donors cannot make stipulations in their gift agreement that differs from this.

6.h. Amending Gift Agreement

If an existing scholarship has become difficult to award, the development officer will work with the donor (if surviving) to release or modify the gift restrictions. All changes to a gift agreement are recorded as an amendment to the agreement. If multiple changes are expected, an amended and restated gift agreement is executed to ensure that the resulting agreement stands on its own and provides a complete history of the fund.
In cases where the signatory of the agreement is no longer living, the development officer shall contact the Senior Director of Advancement Services for instructions on the process. To the extent possible, the University should honor the original intent. If this is not feasible, Release or modification of a gift’s purpose is subject to Utah Code 51-8-501 (Uniform Prudent Management of Institutional Funds Act). https://le.utah.gov/xcode/Title51/Chapter8/C51-8_1800010118000101.pdf and may need to be approved by the Attorney General (AG) for authorization to use the funds for other purposes.
The process shall include identifying and documenting:

Account name, index
Current purpose based on gift agreement
Donor that signed gift agreement name and status (deceased/living)
Why the University requests a change to the original purpose (i.e., the program no longer exists)

Description of proposed purpose/modification – how it aligns or is similar to donor’s original intentions (i.e., are there other department purposes which are similar to the original intent of the donor?)

Approval by Dean or VP
Approval by Internal Audits and General Council if applicable
Approval by Advancement VP

A MOU shall be created that will reference the following information that will serve as documentation for managing the account going forward:

Account name and index,
Current purpose based on index request form, solicitations, and/or other documentation,
Name of donor(s) that signed gift agreement,
History of how the funds have been used,
Why the University requests a change to the original purpose,
Description of approved purpose/modification and how it aligns or is similar to donor’s original intentions,
AG approval documentation as Appendix A to support the future use of the donor funds (if applicable),
Approval by Dean or VP,
Approval by VP of Advancement
Approval by University President

6.i. Use of an MOU

When a department or unit creates a quasi-endowment with donor funds, it is strongly encouraged that a Memorandum of Understanding is created to accompany the account request form and memorialize the Unit’s intentions. See section 5.c. Quasi Endowment for more information.

6.j. Modifications to Donor Restrictions without Gift Agreement

In the absence of donor agreements, the University will rely upon contemporaneous documentation to help provide clues to indicate donors’ intent when the donors are no longer living or available.
To the extent possible, the University should honor the original intent. If this is not feasible, Release or modification of a gift’s purpose is subject to Utah Code 51-8-501 (Uniform Prudent Management of Institutional Funds Act). https://le.utah.gov/xcode/Title51/Chapter8/C51-8_1800010118000101.pdf and may need to be approved by the Attorney General (AG) for authorization to use the funds for other purposes.
Units and/or Departments wishing to make modifications on a charitable gift shall contact the Vice President of Advancement or Senior Director of Advancement Services for instructions on the process.
The process shall include identifying and documenting:

Account name, index,
Current purpose based on index request form, solicitations, and/or other documentation,
If living or presumed living, steps the University has taken to locate/contact the donor to request approval to change the original purpose,
Why the University requests a change to the original purpose (i.e., the program no longer exists),
Description of proposed purpose/modification – how it aligns or is similar to donor’s original intentions (e.g., are there other department purposes which are similar to the original intent of the donor?),
Approval by Dean or VP,
Approval by Internal Audits and General Council if applicable, and approval by Advancement VP