EMPLOYEE LEASE AND PROFESSIONAL SERVICES AGREEMENT
Exhibit
10.13
THIS AGREEMENT is made this first day
of January, 2007 ("Effective
Date") by and between Ministry Partners Investment Corporation, a
California corporation, ("MPIC") and Evangelical
Christian Credit Union, a state-chartered credit union, (“ECCU”) with reference to the
following:
Recitals
A. MPIC
was organized as a credit union service organization (CUSO) and provides
liquidity financing and mortgage origination financing solutions to credit
unions, through the sale of securities and debt instruments to both individuals
and institutional investors in an effort to provide mortgage loans to the
Evangelical Christian community for the acquisition and improvement of
properties and facilities of churches, Christian schools and educational
institutions, ministries and church-related organizations.
B. MPIC
has agreed to lease certain professional employer services from ECCU and has
requested that ECCU provide risk management, human resource services, payroll
and employee tax compliance services and certain administrative services to
MPIC. MPIC will retain responsibility for managing and operating its
mortgage financing, business operations and CUSO services.
NOW, THEREFORE, in consideration of the
mutual covenants, terms and conditions and other good and valuable consideration
set forth below, the parties agree as follows:
1. Term of
Agreement. Unless sooner terminated as provided in Section 14
below, the term of this Agreement shall commence upon the Effective Date and
shall end on December 31, 2007. The Agreement may be extended
for an additional one year term upon the mutual written agreement of the parties
hereto and may be annually renewed thereafter provided that the parties enter
into a written agreement to extend the Agreement.
2. Leased
Employees. ECCU shall provide leased employees to MPIC as
listed on the attached Exhibit A (which Exhibit may be modified from time to
time by mutual agreement of the parties hereto) and such other staff (all
collectively referred to as “Assigned Employees” herein) as
may be mutually agreed to by ECCU and MPIC. As a result of the
relationship formed by this Agreement, MPIC and ECCU will both be employers, and
will share employer duties and responsibilities as co-employers of the Assigned
Employees as set forth in this Agreement. The term “Assigned Employees” refers to
those individuals whom are listed in Exhibit A hereto, are added to the payroll
of ECCU and, in fact, are paid through ECCU by mutual agreement of the parties
hereto and assigned to MPIC in accordance with the terms of this
Agreement.
All Assigned Employees shall perform
services on a full-time basis, and the services to be performed shall include,
but not be limited to, that which is listed on Exhibit A. While ECCU will retain the
Assigned Employees on its payroll and benefit plans, the Assigned Employees
shall be under the exclusive control and supervision of MPIC and its Board of
Directors, which shall have the ability to terminate any Assigned Employee at
any time with or without cause, with respect to MPIC,
in which case
the Assigned Employee shall cease to be assigned by ECCU to MPIC; provided, however
that Assigned Employees shall be
subject to the policies and procedures of ECCU unless MPIC shall have adopted a
separate policy or procedure in lieu of the ECCU policy which such policies and
procedures are subject to ECCU’s approval.
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3. Responsibilities
of ECCU.
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a.
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Payroll. Pursuant to Section 6
of this Agreement, ECCU shall prepare and distribute payroll checks to
Assigned Employees, make the appropriate payroll deductions, file the
appropriate reports and make payments to proper government authorities for
all applicable federal, state, and local payroll taxes, Social Security
tax, and federal and state unemployment insurance taxes for the Assigned
Employees. ECCU shall maintain necessary records and comply
with all reporting procedures and will be solely responsible for paying
the salary, overtime, fees, bonuses, commissions, paid-time-off, and any
other compensation of the Assigned Employees, paying and withholding all
payroll taxes (federal and income tax, FICA, etc.), and making other
withholdings in connection with the salaries and benefits of Assigned
Employees, either voluntary or as required by law, and MPIC will have no
obligations in this regard.
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b.
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Workers’
Compensation.
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1.
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ECCU
shall secure workers’ compensation coverage in such amounts as is required
by applicable law for Assigned Employees. This workers’
compensation coverage shall remain in effect until this Agreement is
terminated by either party.
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2.
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ECCU
retains the right to review workers’ compensation classification codes
(“Class Codes”) as
to all Assigned Employees, and ECCU shall have the right to re-classify
Assigned Workers in its discretion to the appropriate Class Codes if
necessary to comply with the guidelines set forth by the National Council
on Compensation Insurance (NCCI) or applicable state regulatory agency,
and MPIC agrees to pay all additional premiums and costs (prospective and
retroactive) resulting from any such changes. Assigned
Employees shall perform job functions only in approved Class
Codes. MPIC understands and agrees that prior written approval
must be obtained from ECCU and/or ECCU workers’ compensation carrier
before MPIC may change an Assigned Employee’s Class Code, and Class Codes
not used as of the effective date of this Agreement, or add a worksite
location not covered by this
Agreement.
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3.
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ECCU
reserves a right of direction and control over management of safety, risk,
and hazard control at the worksite or sites affecting any Assigned
Employees, including: the right to conduct safety inspections of MPIC
premises; responsibility for the promulgation and administration of
employment and safety policies; and responsibility for the management of
workers' compensation claims, claims filings, and related procedures.
However, MPIC acknowledges that ECCU is not liable or responsible for the
maintenance of MPIC's premises or property, as well as any injuries or
damages occurring as a result of the condition of MPIC's premises or
property, and MPIC agrees to indemnify ECCU for any such injuries or
damages.
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c.
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Employee
Benefits.
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1.
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ECCU
Benefit Plans. ECCU shall
provide and/or administer the benefit programs (the “ECCU Plans”) which shall be
the same ECCU Plans provided to the employees of ECCU as may be adopted
from time to time by ECCU. An Assigned Employee's available
coverage and eligibility to participate in a given plan shall be governed
by and subject to the terms and conditions of the ECCU Plans and the
policies and procedures of ECCU. ECCU reserves
the right to change, delete or substitute one or more benefit plans it
provides, or to increase premium payments, as applicable, paid by Assigned
Employees, in its sole discretion. With respect to ECCU Plans, ECCU shall
provide advance notice of any changes or premium increases as required by
law or ECCU’s policies.
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2.
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MPIC
Benefit Plans. MPIC
reserves the right to adopt one or more employee welfare plans, fringe
benefit plans, pension plans, and reserves the right to adopt, modify or
terminate any employee benefit programs or plans (the "MPIC Plans") it adopts,
subject to ECCU’s approval of such MPIC Plans. MPIC agrees and
acknowledges that ECCU is not adopting
the MPIC Plans, nor is ECCU responsible for
the administration of the MPIC Plans. MPIC further acknowledges and agrees
that unless specifically stated herein, MPIC shall remain responsible for
compliance with all federal and state laws, including, but not limited to,
COBRA and HIPAA, regarding the MPIC Plans. MPIC agrees to indemnify
unconditionally and hold ECCU harmless for any damages, cost, fines, and
penalties incurred by ECCU relating in
any way to the MPIC Plans or contributions made to such
plans.
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3.
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COBRA. ECCU shall
be responsible for COBRA administration for all eligible Assigned
Employees enrolled in one of the ECCU Plans; however, MPIC agrees that it
has the responsibility to notify ECCU timely (within two business days) of
the occurrence of any Qualifying Event (as defined in section 4980 of the
Internal Revenue Code) that could give rise to coverage under COBRA,
including, but not limited to, termination of an Assigned Employee, or
re-classification of an Assigned
Employee to less than full-time status. MPIC warrants that, at
all times, the employees listed on Exhibit A were and remain eligible for
COBRA coverage in accordance with federal law, and further warrants that
none of the Assigned Employees were covered under a health plan offered or
sponsored by any company or entity other than ECCU at the time that he/she
first became eligible for COBRA
benefits.
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4. Human
Resources.
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a.
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Assigned
Employees. MPIC expressly agrees and understands that no
employee shall become employed by ECCU, covered by ECCU workers’
compensation insurance or benefit plan, or issued a payroll check unless
the individual has, prior to commencing work for ECCU, completed an ECCU
employment application, W-4 withholding form, ECCU employee
acknowledgement forms, and form I-9 (the “Employment Forms”), and
complied with all other pre-employment policies and procedures as may be
implemented by ECCU from time to time, in its sole discretion, all of
which must be delivered to ECCU and meet ECCU’s satisfaction before the
employee commences employment. Any individual who fails to
satisfactorily comply with ECCU’s practices including completing the
employment forms shall not be an Assigned Employee under this
Agreement. MPIC agrees to select, screen and approve all
Assigned Employees prior to ECCU providing standard employment forms and
commencing the employment process. Until all of the Employment
Forms are completed fully and correctly, and delivered to ECCU and the
employment process is completed to ECCU’s satisfaction, ECCU shall not be
considered an employer of an Assigned Employee for any
purpose. MPIC further agrees that ECCU shall not be an employer
of an Assigned Employee for any purpose, including wages, for any period
of time that MPIC failed to pay in full all payroll and fees due under
this Agreement.
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b.
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Personnel
Policies. Assigned
Employees shall be subject to the policies and procedures of ECCU as
adopted by ECCU for its employees, except to the extent that ECCU and MPIC
have agreed on different policies and procedures. As requested by MPIC,
ECCU will reasonably work with MPIC to develop and maintain personnel
policies and procedures applicable at MPIC's work site(s), including, but
not limited to, an Employee Handbook; however, MPIC maintains
a right to issue its own employment policies covering Assigned Employees,
subject to ECCU’s approval. MPIC shall
comply with all applicable local, state and federal laws, ordinances, and
regulations with respect to its performance under this
Agreement.
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c.
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Employee
Notification. MPIC shall
notify, in writing, all Assigned Employees of the inception and
termination of this Agreement. MPIC shall also immediately upon
termination of this Agreement notify all employees of the termination of
this Agreement and inform them that the Assigned
Employees are (i) no longer employed by ECCU as a co-employer and are
solely employed by MPIC, (ii) no longer covered by ECCU workers’
compensation insurance policy, and if applicable, any ECCU health
insurance policy and ECCU Plans. MPIC acknowledges that ECCU is
relying on MPIC to notify Assigned Employees as required herein
immediately upon termination of this Service Agreement. It is
MPIC’s sole responsibility to secure workers’ compensation insurance after
receiving notice of termination of this Agreement from ECCU and to assume
and perform the duties ECCU has performed with respect to the Assigned
Employees and MPIC shall indemnify, defend and hold harmless ECCU for its
failure to do so as provided in Section
16.
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d.
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Duty
to Inform. MPIC shall
immediately inform ECCU of all formal and informal complaints,
allegations, or incidents of any Assigned Employee or supervisor
misconduct or workplace safety violations, regardless of the source,
including, but not limited to, allegations of sexual harassment,
discrimination, OSHA violations, or threats of violence, regardless of the
source. MPIC shall provide complete and accurate disclosure of
all circumstances surrounding such matters. Failure to comply
with the terms of this paragraph shall be a material breach of the
Agreement.
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e.
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Compliance
with Laws. Although
ECCU has agreed to assist MPIC in complying with all applicable employment
laws affecting MPIC’s business, and shall be available to provide human
resource advice, MPIC is not relieved of any obligations imposed on
employers under federal, state or local laws, and MPIC shall continue to
be responsible for complying with all laws affecting the operation of its
business, work place, and the Assigned Employees and MPIC shall indemnify,
defend and hold harmless ECCU for its failure to do so as provided
in Section 16.
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5. MPIC
Responsibilities.
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a.
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Direction
and Control. MPIC shall
retain sufficient direction and control over the workplace as is necessary
to conduct MPIC’s business operations and without which MPIC would be
unable to conduct its business, discharge any fiduciary or legal
responsibility that it may have, or comply with any applicable licensing,
regulatory, or statutory requirement. Such authority reserved
by MPIC shall include the right to accept or cancel the assignment of any
Assigned Employee. Additionally, MPIC shall have sole and
exclusive control over the day-to-day job duties of all Assigned Employees
and ECCU shall have no responsibilities with regard to the Assigned
Employees’ performance of such day-to-day job
duties.
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ECCU
shall have no control over the Work Site at which or from which, Assigned
Employees perform their services (the “Work
Site”). MPIC agrees that ECCU shall not be vicariously
liable for the actions or inaction of
any Assigned Employee. Control over the Work Site is solely and
exclusively assigned to MPIC. MPIC expressly absolves ECCU of
control over the day-to-day job duties of the Assigned Employees and over
the Work Site. ECCU does not assume any responsibility for and
makes no assurances, warranties, or guarantees as to the ability or
competence of any Assigned Employee. Although MPIC may,
pursuant to this Agreement, delegate to ECCU the task of performing or
arranging for, background checks of Assigned Employees, MPIC is solely
responsible for complying with all requirements for background checks of
the Assigned Employees imposed by applicable
law.
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MPIC
shall make any and all strategic, operational, and all other business
related decisions regarding MPIC’s business. MPIC shall have
sole and exclusive responsibility and liability for goods and services
provided by MPIC, and for the errors and omissions of the Assigned
Employees including, without limitation, the procurement of and payment
for errors and omissions insurance, directors and officers liability
coverage, general liability insurance, business auto liability insurance
and all bond coverage in amounts agreed upon by MPIC and
ECCU. Such decisions and related outcomes shall exclusively be
the responsibility of MPIC and ECCU shall bear no responsibility or
liability for any actions or inaction by MPIC or by any Assigned
Employee.
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b.
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Payroll. At
the end of each pay period, by the date specified by ECCU, MPIC shall
obtain and provide to ECCU all records of actual time worked by each
Assigned Employee. By submitting such information to ECCU, MPIC
warrants and agrees that the information is accurate and that such
information, as well as the status of the Assigned Employees as either
exempt or nonexempt, is in compliance with the requirements of the Fair
Labor Standards Act, other laws administered by the U.S. Department of
Labor’s Wage and Hour Division, and any applicable state
law.
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MPIC
shall provide to ECCU, if requested, in a timely manner certain
information about its Assigned Employees as necessary for ECCU to perform
the payroll and administrative services. Information to be
provided regarding Assigned Employees shall include (i) wage rates or
salary information and all forms of compensation; (ii) employee benefit
elections; (iii) life insurance elections; (iv) information related to
before-and after-tax salary or wage reductions and deductions; (v)
personal bank account information for the sole purpose of making direct
deposits of compensation to the Assigned Employee’s account if so elected
by the Assigned Employee; (vi) federal, state, and local income tax
withholding and related information; (vii) paid-time-off information;
(viii) social security numbers; (ix) employment service date information;
(x) birth date information; (xi) employee contributions to ECCU sponsored
retirement and benefit plans; and (xii) such other related information as
ECCU may, from
time to time, request in furtherance of performing its payroll and
administrative services
responsibilities.
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Because
ECCU does not have any responsibility or opportunity to manage and direct
the day-to-day activities of the Assigned Employees, MPIC acknowledges
that ECCU makes no assurances, representations, warranties, or guarantee
as to the ability, competence or qualifications of any Assigned Employee
and that ECCU shall have no liability for the actions of any Assigned
Employees. MPIC shall be solely responsible for incorrect,
improper or fraudulent records of hours worked and for improper
classification of Assigned Employees. MPIC agrees that it is
solely responsible for reporting compensation and associated taxes arising
from any equity-based compensation plan adopted by MPIC, including, but
not limited to stock bonus plans, stock options plans, and stock purchase
plans.
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c.
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No
Other Compensation. MPIC also
represents and warrants that all wages (including bonuses) paid to any
Assigned Employee are to be paid through ECCU and that any such Assigned
Employees will receive no additional wages in any form from MPIC, or one
of its affiliates or subsidiaries. MPIC agrees that all
Assigned Employees will be paid, in any form, from the assets of MPIC, or
one of its affiliates or subsidiaries. MPIC agrees that all
Assigned Employees will be paid at least the minimum hourly wage or
minimum salary, as applicable, required under federal and state
law.
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MPIC agrees
it will be solely responsible for damages of any nature arising out of
MPIC’s failure to report to ECCU the payment to an Assigned Employee of
any remuneration for services rendered for MPIC. In addition,
ECCU shall not be considered to be an employer of any individual for whom
required payroll information is not supplied during any payroll period
(“Non-payroll
Employee”). MPIC assumes the sole and full
responsibility for workers’ compensation claims, benefit claims (including
but not limited to, health insurance claims and pension claims), tax
obligations, employment discrimination claims, general liability claims,
third-party claims, and any and all other obligations, damages, suits, or
claims arising from or relating in any way to a Non-payroll Employee,
whether paid in whole or in part by MPIC, as an employee, independent
contractor, or in any other
capacity.
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6. Payment
For Services.
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a.
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Services
Rendered. During the
term of this Agreement, MPIC agrees to take all actions necessary to
authorize ECCU to draw checks, drafts or electronic funds transfer
transactions upon a corporate checking account established by MPIC at a
financial institution mutually agreeable to the parties
to meet the payroll requirements for Assigned Employees and to pay the fee
obligations ECCU incurs for services rendered by ECCU under this
Agreement. MPIC agrees to deliver payment for such services or
authorize the release of such funds to pay for services rendered by ECCU
under this Agreement within ten (10) days of invoice date. Any
unpaid balance will be subject to a periodic charge of one percent per
calendar month until paid in full. ECCU reserves the right to
terminate this Agreement at any time if full payment is not made when
due. Should MPIC require additional administrative services
from ECCU that are not included in this Agreement, the fee for any such
additional services shall be negotiated and paid
separately.
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b.
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Fee
Adjustment. The fees
for services provided by ECCU are subject to adjustment by ECCU based upon
changes in local, state and federal employment law, changes in insurance
requirements or costs, costs attributed to MPIC or to Assigned Employees
assigned to MPIC, changes in MPIC’s payroll or changes in costs incurred
by ECCU in providing such services under this Agreement. Where
possible, ECCU agrees to provide MPIC with at least a thirty (30) day
advance written notice of a fee adjustment; provided, however, that (i)
the fee adjustment shall take effect as of the effective date of any cost
increase to ECCU and (ii) regardless of advance notice, MPIC agrees that
it shall be liable for all fee increases pursuant to this Section 6(b).
Within thirty (30) days of the effectiveness of a fee increase, MPIC shall
be entitled to terminate this Agreement upon written notice to ECCU such
termination to be effective thirty (30) days from the date of such
termination notice.
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c.
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Change
in Scope of Services. If during
the term of this Agreement, MPIC’s need for administrative services
hereunder is increased or reduced by a significant change in the scope of
MPIC’s business or operations, as a result of dispositions or otherwise,
MPIC may request, and ECCU may provide, an appropriate change in the level
of services provided hereunder and such parties shall in good faith
redetermine the fee payable for such services for the remainder of the
term of this Agreement on the basis of the change in level of such
administrative services.
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7. Other
Services. ECCU will also provide other
administrative and support services not provided by the Assigned
Employees
(“Other
Services”)
and as listed on the attached
Exhibit
A. MPIC shall pay
ECCU for such services in the manner described in paragraph 6 above.
8. Office
Lease. ECCU shall lease
office space to MPIC to be used for the conduct of its business as set forth in
Exhibit B. In consideration thereof, MPIC shall reimburse ECCU for
the cost of occupying this space, including building and property maintenance,
building depreciation, utilities, property taxes, and building security by
paying a rate per square foot as set forth in Exhibit B.
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9. Office
Equipment Lease. ECCU shall lease
office equipment and furniture to MPIC to be used for the conduct of its
business pursuant to an Equipment Lease attached hereto as Exhibit
C.
10. Other
Expenses. From time to
time, ECCU may incur other expenses on behalf of MPIC, such as telephone costs,
etc. ECCU shall itemize its costs incurred on MPIC’s behalf and
submit reasonable documentation for expenditures. Purchases and such
expenditures incurred by ECCU on behalf of MPIC shall be billed to MPIC at
ECCU’s cost with no markup. MPIC shall reimburse ECCU in the manner
described in paragraph 6 above. ECCU shall receive no rebates,
commissions, or credits for purchases, expenditures, or arrangements made with
an outside vendor for MPIC by ECCU and billed by the vendor directly to MPIC or
a party designated by MPIC without MPIC’s express acknowledgment and
consent.
11. MPIC
Retained Plans. MPIC reserves the
right to adopt a qualified retirement plan, stock bonus, equity compensation
plan or stock option plan for the benefit of the Assigned
Employees. All obligations and duties, fiduciary and otherwise,
relating to such MPIC plans shall be the sole responsibility of
MPIC. MPIC has the exclusive right to grant equity compensation
awards to the Assigned Employees and shall have the right to hire, fire and
control the activities of the Assigned Employees. In determining the
economic value of any such awards, bonuses or compensation benefits, MPIC shall
have the unrestricted right to make such awards and establish the salaries,
bonuses and compensation awards of the Assigned Employees provided that it
remits to ECCU the complete remuneration and compensation expense incurred for
such Assigned Employees on or before the due date for making payment for
services provided to MPIC under Section 6 of this Agreement.
12.
Confidentiality.
MPIC and ECCU agree to maintain as strictly confidential all records and
documents each may receive concerning the other's business and affairs and the
other's customers and members (collectively "Confidential Information") in
strict confidence and shall not disclose the other's Confidential Information to
third parties except (i) as necessary in performing its duties hereunder, or
(ii) as required by law, court order or in response to an investigation or
request of a regulatory body having jurisdiction over a party, or (iii) with the
advance consent of the party owning the Confidential
Information. "Confidential Information" shall include, but not be
limited to, notebooks, books, memoranda, records, journals, lists, reports,
files, correspondence, management information, reviews, analysis, research,
business plans, budgets, profit and loss statements, whether in paper form,
electronic form or copies thereof. The obligations under this Section
12 shall not apply to information that (i) is in or enters the public domain
without breach of this Agreement, (ii) a party receives from a third party
without restriction on disclosure and without breach of a non-disclosure
obligation; (iii) which the party, not claiming prior ownership, develops
independently and can prove same with written evidence. This Confidentiality
provision shall survive termination of this Agreement.
13. Relationship
of Parties. It is the
parties’ intent that ECCU shall act solely as an independent
contractor. Nothing in this Agreement shall be construed to create a
partnership, joint venture, or principal agency relationship between ECCU and
MPIC. Except when ECCU Board approval is required under this
Agreement and by law to approve certain transactions, MPIC will
determine the method, details and means of performing the services to be
provided by the Assigned Employees under this Agreement.
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14. Termination. In addition to termination
in accordance with Section 1.b above, this Agreement may be terminated as
follows:
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a.
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By
MPIC and ECCU mutually agreeing to terminate this Agreement prior to
expiration of the term.
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b.
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At
the nondefaulting party's option, upon a default as defined in Section 15
below by the nondefaulting party giving written notice to the defaulting
party specifying the default. Upon receipt of such notice, the defaulting
party shall have thirty (30) days to cure or begin in good faith to cure
the default and if the default is cured, or good faith efforts are begun
to cure the default, then this Agreement shall continue as if no notice
was sent; otherwise, the termination date shall be thirty (30) days from
the date the defaulting party receives notice from the nondefaulting party
of termination due to a default.
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Except where termination is the result
of a default by MPIC in which case MPIC shall be liable for all amounts owing by
it under this Agreement through the expiration of the term, any amounts payable
to ECCU hereunder shall be prorated through the termination date of this
Agreement. Notwithstanding the foregoing, MPIC shall remain liable
for reimbursing ECCU for all compensation paid to the Assigned Employees as well
as any payment obligations that it has incurred under this
Agreement.
15. Default.
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a.
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Termination
by Either Party. Subject to
Section 14(b), either party may at any time immediately terminate this
Agreement in the event of a material breach by the other party of the
Agreement. The term "material breach”, as used herein, includes, but is
not limited to, the following: (1) failure to comply with any federal,
state, or local law; (2) failure to provide to ECCU sufficient payroll
information or provide sufficient funds to cover payroll if ECCU requires
such; (3) failure to comply fully with a directive or order from a
governmental agency or insurance carrier; (4) breach of any material
warranty or representation made herein; (5) failure to notify ECCU of a
claim of sexual harassment, discrimination, or other improper conduct made
by or relating to an Assigned Employee; or (6) the failure to comply with
the terms and obligations under this
Agreement.
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b.
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Termination
by ECCU. ECCU may
also terminate this Agreement if, at any time, ECCU in
its sole discretion determines that a material adverse change has occurred
in the financial condition of MPIC, or that MPIC is unable to pay its
debts as they become due in the ordinary course of business. This
Agreement may also be terminated at any time by ECCU in the event of
any federal, state, or
local legislation, regulatory action, insurance carrier action, law
enforcement, or judicial decision, which, in the sole discretion of
ECCU, adversely
affects its interest under this Agreement. ECCU may also
terminate this agreement if, in its discretion,
the MPIC's workers compensation experience has become unacceptable, or if
a provider of workers compensation insurance to ECCU decides
to cancel or non-renew a policy of insurance issued to
ECCU.
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c.
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Termination
for Non-Payment. If MPIC
fails to pay any amount due under this Agreement in full when due, fails
to pay any other fees or amounts due hereunder in full, ECCU may
terminate this Agreement by providing written notice pursuant to Section
14 above.
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d.
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Effect
of Termination.
Upon termination of this Agreement, for any reason, or should MPIC
fail to timely pay ECCU for its services, all of the Assigned Employees
shall be deemed to have been laid off by ECCU as of the effective date of
the termination or upon MPIC’s failure to make a payment when due, as the
case may be, and MPIC shall be the sole employer of the Assigned Employees
and immediately assume any obligations which had been delegated by it to
ECCU including, without limitation, all federal, state and local
obligations of an employer to the employees which are not in conflict with
state or federal law, and shall assume full responsibility for providing
workers' compensation coverage and benefits as required by law. MPIC shall
be solely responsible for reinstating any Assigned Employee to work who
was out on FMLA or similar leave. ECCU shall immediately be released from
such obligations as are permitted by law as of the effective date of
termination or MPIC’s failure to make a payment when due. It is the intent
of the parties that, where allowed by law, the parties hereto be placed in
their respective positions immediately ,before
their entry into this Agreement in the event of a termination or MPIC's
failure to pay ECCU for services rendered under this Agreement. If for any
reason (whether or not required by applicable law) ECCU makes any payment
to any of the Assigned Employees after this Agreement has been terminated,
ECCU shall be entitled to full reimbursement for such expenditures to the
extent that it has not received payment from MPIC for such payments.
Termination of this Agreement shall not affect the continuation of any
outstanding obligation or liability incurred by either party during the
term of this Agreement, including payment to
ECCU.
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e.
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COBRA
Coverage. If
ECCU group
health insurance coverage has been accepted pursuant to this Agreement,
upon termination of this Agreement, for any reason, MPIC shall assume from
ECCU all
responsibility and obligation for the continuation of coverage for any
COBRA participants listed in Exhibit A, as well as for any Assigned
Employees receiving COBRA benefits at the time of termination of the
Agreement, and all Assigned Employees eligible for COBRA benefits at the
time of termination of the Agreement, for the remainder of their COBRA
eligibility period.
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16. Limited
Liability; Indemnity. With regard to the services
to be performed by ECCU, neither ECCU nor its employees or agents shall be
liable to MPIC, or to anyone who may claim any right due to his/her relationship
with MPIC, for any acts or omissions in the performance of said services except
when said acts or omissions are due to willful misconduct or gross negligence of
ECCU or its employees or agents (but not Assigned Employees). ECCU
agrees to indemnify, hold harmless and protect MPIC, its affiliated entities,
their respective officers, directors, managers and representatives from and
against any and all claims, demands, damages, costs, expenses, losses, claims,
demands, damages, costs, expenses, losses and liabilities (but not lost profits,
consequential damages, goodwill, business interruption or loss of business)
arising out of the grossly negligent or willful failure of any non-Assigned
Employees employed by ECCU to comply with applicable worker’s compensation,
withholding, payroll tax or ERISA laws, the failure of ECCU to comply with any
other administrative duty or responsibility assumed by ECCU in this Agreement,
or where any action is taken by MPIC in compliance with a written ECCU policy,
written procedure, or written direction which is illegal under applicable local,
state or federal law.
MPIC shall indemnify, defend and hold
ECCU, its employees and agents free and harmless from any obligations, costs,
claims, judgments, attorneys' fees and all other damages and expenses (but not
lost profits, consequential damages, goodwill, business interruption or loss of
business) arising from (a) the services performed pursuant to this Agreement or
in any way connected with said services performed by MPIC, the actions of any
Assigned Employees, vendor or contractor engaged by MPIC under this Agreement,
(b) MPIC’s failure to comply with all federal, state and local laws, regulations
and ordinances applicable to MPIC as an employer or MPIC’s business operations,
or (c) MPIC’s breach of any provision of this Agreement, except when same
results from willful misconduct of ECCU and ECCU (but not
Assigned Employees) is adjudged guilty of willful misconduct by a
competent court or arbitrator having jurisdiction over the
matter. This limited liability and indemnity provision shall survive
termination of this Agreement.
17. Notices. All notices and
other communications hereunder shall be in writing. Notices shall be
deemed duly given, when delivered personally, or at the time confirmed for
delivery if by telegram, telex, facsimile or telecopy transmission, or five (5)
days after being sent, through the U.S. Postal Service, postage paid,
first-class. If sent through any reputable one-day, two-day or
three-day courier, such as Federal Express or DHL, fees prepaid, delivery shall
be at the time confirmed. Notices shall be sent to the addresses or facsimile
numbers of the parties set forth
next to their respective signatures hereto, or to such other addresses or
numbers as may be specified from time to time by notice in writing to the other
parties hereto.
18. Further
Assurances. The
parties agree to execute and deliver such further documents and instruments and
do such further acts and things as may reasonably be necessary to carry out the
purposes and intent of this Agreement.
19. Duties on
Termination. In the event of
termination of this Agreement as provided herein, each party agrees to deliver
promptly to the other party all notebooks, documents, memoranda, reports, files,
correspondence and other property belonging to the other party relating to its
business or the Assigned Employees which are in the party’s possession or under
its control; provided, however, that ECCU shall retain the originals
or copies of records as ECCU determines is necessary in good faith to comply
with legal requirements affecting employers.
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20. Intellectual
Property. Any and all inventions, discoveries, improvements,
copyrightable works and creations (hereafter referred to as “Intellectual Property”) which
MPIC has previously, solely or jointly, conceived or made or may conceive or
make during the period of this Agreement, whether or not accomplished through
the use of Assigned Employees, shall be the sole and exclusive property of
MPIC. MPIC shall have sole and exclusive responsibility for
protecting its rights to such Intellectual Property and to all of its other
assets and ECCU shall have no responsibility with regard to same.
21. MPIC
Employment Contracts. Any responsibility and/or liability with
regard to any employment contract between MPIC and any Assigned Employee shall
be the exclusive responsibility and/or liability of MPIC. ECCU will
have no responsibility or liability in connection with or arising out of any
such employment contract except to prepare checks and to pay any such employee
party to such a contract in conformity with information provided by MPIC and at
the direction of MPIC. With respect to any employment contract
between MPIC and any Assigned Employee, MPIC shall be acting solely on its own
volition, and shall be solely responsible for all aspects of any such contract,
including but not limited to its negotiation, compliance, implementation,
renewal, enforcement, and termination.
22. Electronic
Signature. By executing this Agreement, MPIC agrees to comply
with, and agrees that ECCU and MPIC may transact business electronically
pursuant to, and is deemed to have opted in, to the “Electronic Signatures in
Global and National Commerce Act,” P.L. 106-229, and any other
similar state or local statute that authorizes electronic signatures in
commerce. MPIC agrees that ECCU may rely on electronic authorization
by MPIC or an Assigned Employee to make changes to employee or payroll records
or date relating to an Assigned Employee. MPIC hereby releases ECCU
and waives any rights to bring an action or seek damages from ECCU based in
whole or in part on electronic instructions or authorizations by MPIC or an
Assigned Employee. MPIC will indemnify ECCU unconditionally for any
and all damages, injury, costs, fines, fees, penalties, suits and actions
brought or assessed against ECCU relating in any way to ECCU reliance on
electronic authorizations or instructions by MPIC or an Assigned
Employee.
23. Books and
Records. Each party hereto shall keep full and adequate books
of account and records reflecting all transactions and matters covered by this
Agreement, in accordance with its normal accounting practices and
principles. The books of account and all other records relating to or
reflecting transactions or matters covered by this Agreement maintained by one
party shall be made available to the other party and its accountants and other
representatives at all reasonable times for inspection and copying, and each
party shall cooperate fully with the other in explaining any calculations or
charges under this Agreement.
24. Entire
Agreement of the Parties/Modifications. This Agreement contains all
of the covenants and agreements between the parties with respect to the
rendering of such services in any manner whatsoever. Each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement, or promise not contained in this Agreement or which
modifies or amends this Agreement will be effective unless it is in writing
signed by the party to be charged.
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25. Waiver. Any party's
failure to enforce any provision of this Agreement shall not in any way be
construed as a waiver of any such provisions or prevent that party thereafter
from enforcing such provision or any other provision of this
Agreement.
26. Severable
Provisions. If any portion of
this Agreement shall be held invalid or inoperative then so far as reasonable
and possible the remainder of this Agreement shall be considered valid and
operative and effect shall be given to the intent manifested by the portion held
invalid or inoperative. The parties authorize any modifications
necessary to those provisions, or portions of provisions, held invalid or
inoperative so that effect can be given to the parties' intent.
27. Governing
Law. This Agreement
shall, in all respects, be governed by and construed in accordance with the
internal laws of the State of California without regard to the conflict of law
principles thereof.
28. Assignment. This Agreement and the
respective rights and obligations hereunder may not be assigned by either party
hereto without the express written consent of the other party, except for an
assignment by ECCU or MPIC to any successor to all or a substantial portion of
the business of ECCU or MPIC. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors,
legal representatives and permitted assigns.
29. References. All
references made to this Agreement are intended and shall be deemed to mean this
Agreement, inclusive of and together with all other agreements, documents,
schedules and exhibits appended hereto, all of which are deemed hereby to be
fully incorporated herein by reference.
30. Attorneys'
Fees. Should an
action be commenced by either party to interpret or enforce the terms of this
Agreement or to collect any amounts owing under this Agreement, the prevailing
party in such action shall be entitled to receive its reasonable attorneys' fees
and costs, in addition to such other relief that may be granted.
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IN WITNESS WHEREOF, the parties have
executed this Agreement on the date set forth above.
"ECCU"
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"MPIC"
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Evangelical
Christian Credit Union
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By:___________________________
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By:___________________________
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Xxxxx
X. Xxxxxxxx
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Xxxxx
X. Xxxxxx
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Chief
Financial Officer
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President
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