CONSULTING AGREEMENT
Feather River State Bank ('FRSB'), and Xxxxxxx Xxxxxxxxx ("Consultant") agree as
of July 5, 2000, as follows:
1. Engagement. FRSB engages and contracts for the services of Consultant, and
Consultant accepts the engagement and agrees to provide consulting services to
FRSB, on the terms and conditions set forth below.
2. Scope of Services. Consultant shall provide consulting services as reasonably
determined from time to time by FRSB's President or Chief Operating Officer
(hereinafter "Services"). Such Services include, but are not limited to: general
consultation concerning the operating policies and financial management of FRSB
and the FRSB Related Entities; cooperate fully with and assist FRSB and/or the
FRSB Related Entities in the event any litigation or other dispute resolution
process is initiated by or against FRSB or the FRSB Related Entities. Said
assistance includes, but is not limited to, making herself available to FRSB or
the FRSB Related Entities and/or their attorneys to answer questions regarding
any operations, financial management or other activities, making herself
available to testify as a witness at any proceeding or deposition, and to
cooperate fully in any investigation by FRSB and/or the FRSB Related Entities
which may be necessary to conduct in either prosecuting or defending any
litigation, investigation or other matter.
2.1 Time and Effort. Consultant shall devote whatever time, effort, and
skill as Consultant reasonably deems appropriate to fulfill Consultant's
obligations under this Agreement. Consultant shall meet with representatives of
FRSB on the third Friday of the month subject to change by mutual agreement to
receive assignments.
2.2 Best Efforts; Applicable Laws. Consultant shall devote Consultant's
best efforts, attention, skill and experience in providing the consulting
Services. All Services performed by Consultant shall be in accordance with all
applicable federal, state and local laws and all applicable regulations
regarding such Services.
3. Compensation and Expenses.
3.1 Compensation. As compensation for the entire two (2) year term of this
Agreement, FRSB agrees to pay Consultant as follows:
Seven thousand four hundred fifty three dollars and eighty-five cents
($7,453.85) per month for the twenty-four (24) months of the Agreement's term to
be paid on or before the first business day of the month following receipt of
the Consultant's invoice for services rendered;
3.2 Other Expenses. Upon written approval by FRSB, Consultant shall be
eligible for reimbursement of all reasonable travel and other expenses incurred
in the performance of her Services for FRSB. Consultant agrees to provide FRSB
with an invoice, which describes with reasonable particularity, the nature of
the expenses incurred and the amount. Additionally, Consultant will attach to
the invoice copies of all receipts evidencing the incurrence of such
expenditures. Reimbursement for all approved expenses shall be made to
Consultant within twenty (20) days of FRSB's receipt of Consultant's invoice.
4. Independent Consultant. The parties agree that Consultant shall perform all
Services required hereunder as an independent Consultant, and not as an
employee, agent, joint venturer or partner of FRSB for any purpose whatsoever.
Except as otherwise provided in this Agreement, FRSB shall have no right to, and
shall not, control the manner or means by which the Services are performed by
Consultant hereunder. Consultant shall be entirely and solely responsible for
Consultant's acts while engaged in the performance of Services hereunder.
Consultant is not authorized to bind FRSB except as expressly authorized by FRSB
in writing.
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5. Manner of Delivery of Services. Consultant shall establish Consultant's own
hours of work. Unless necessary due to the particular assignment, Consultant
shall not be required to perform the Services at any specific time or place.
Consultant shall, however, be available for telephone conferences and meetings
at reasonable times, upon request. All Services performed by Consultant shall be
performed in a professional manner and in compliance with the reasonable quality
standards set by FRSB. Consultant generally shall not be required to perform the
Services on FRSB premises, although FRSB shall make a furnished office available
for use by Consultant and Consultant may make reasonable use of FRSB's equipment
and supplies in the rendering of the Services. By the tenth (10th) business day
of each month, Consultant agrees to provide FRSB with an invoice of services
rendered for the prior month. Should Consultant fail to provide an invoice, FRSB
may withhold Consultant's compensation until the invoice has been provided.
6. No Payroll or Employment Taxes. As an independent contractor, Consultant is
not an employee of FRSB for federal, state or local tax purposes or for any
other purpose, FRSB shall not pay any income or employment taxes based on
Consultant's Services to FRSB, and shall not withhold income or employment taxes
from Consultant's compensation. Such income or employment taxes include, but are
not limited to, social security, state or federal unemployment insurance
contributions, state or federal income tax, or disability insurance
contributions. Consultant shall be solely responsible for all such taxes,
Consultant shall he personally liable for all federal, state, and local taxes
resulting from Consultant's Services to FRSB. Consultant shall pay and discharge
all taxes which may be due on the compensation received from FRSB and shall
indemnify and hold FRSB harmless from such taxes. Consultant agrees to comply
with all tax laws applicable to the operation of a business such as
Consultant's, including, but not limited to, the reporting of all gross receipts
therefrom as income from the operation of a business, the payment of all
self-employment taxes, compliance with all employment tax requirements for
withholding on any employees used by Consultant, and compliance with workers'
compensation laws.
7. No Workers' Compensation. FRSB has not obtained disability benefits insurance
mandated by state law for employees, including workers' compensation insurance,
to cover Consultant, or any of Consultant's agents or employees, If Consultant
desires such insurance, Consultant shall obtain it at Consultant's sole expense.
8. Assistants. Consultant may, at Consultant's sole expense, hire persons to
assist Consultant in the delivery of the Services ("Assistants"). Such
Assistants shall be subject solely to the direction and control of Consultant
and Consultant shall be solely responsible for compensating any such Assistants.
9. Indemnification. Consultant shall defend, indemnify and hold harmless FRSB,
and its officers, directors, agents, employees, and affiliates, from any and all
claims, demands, costs, expenses, obligations, damages, or causes of action of
any nature, including reasonable attorneys' fees and costs, arising directly or
indirectly from (i) the alleged existence of any agency relationship between
Consultant and FRSB based upon the acts or omissions of Consultant; (ii) the
violation by Consultant of any federal, state or local law; and/or (iii) damages
to third parties or FRSB and its agents and employees caused by Consultant's
negligent acts or omissions ill the performance of the Services, or any other
breach of any of Consultant's obligations hereunder.
10. Non-Solicitation. To the fullest extent permissible under applicable law,
Consultant agrees that both during the term of this Agreement and following
termination of this Agreement, Consultant shall not take any action to induce
employees, customers or independent contractors of FRSB or FRSB's Related
Entities to sever their relationship with FRSB or FRSB's Related Entities or to
accept an employment or an independent Consultant relationship with any other
business.
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11. Confidential Data of the FRSB or FRSB's Related Entities and Their
Customers. During the course of providing Services, Consultant may have access
to business strategies, financial results, contractual agreements, strategies,
ideas, compilations of information, records, in addition to financial,
accounting, statistical, marketing and personnel data of FRSB, FRSB's Related
Entities' and their respective customers. All such data is the FRSB or FRSB's
Related Entities' property, is confidential and shall not be disclosed, directly
or indirectly, or used by Consultant in any way, either during the term of this
Agreement, or at any time thereafter, except as required in the course of
Consultant's performance of her Services, or with FRSB's permission.
12. Trade Secrets. Consultant agrees not to disclose to any others, or take or
use for her own purposes or purposes of any others, during the term of this
Agreement or at any time thereafter, any of the FRSB or FRSB's Related Entities'
trade secrets, including without limitation, confidential information, customer
lists, computer programs or computer software of FRSB or FRSB's Related
Entities. Consultant agrees that these restrictions shall also apply to (i)
trade secrets belonging to third parties in the FRSB or FRSB's Related Entities'
possession and (ii) trade secrets conceived, originated, discovered or developed
by Consultant during the term of this Agreement.
13. Inventions: Ownership Rights. Consultant agrees that all ideas, techniques,
inventions, systems, formulas, discoveries, technical information, programs,
prototypes and similar developments ("Developments") developed, created,
discovered, made, written or obtained by Consultant in the course of or as a
direct or indirect result of performance of her Services hereunder, and all
related industrial property, copyrights, patent rights, trade secrets and other
forms of protection thereof, shall be and remain the property of FRSB or FRSB's
Related Entities. Consultant agrees to execute or cause to be executed such
assignments and applications, registrations and other documents and to take such
other action as may be requested by the FRSB or FRSB's Related Entities to
enable them to protect their rights to any such Developments. If FRSB requires
Consultant's assistance under this paragraph after termination of this
Agreement, Consultant shall be compensated for Consultant's time actually spent
in providing such assistance at an hourly rate equivalent to the prevailing rate
for such services and as agreed upon by the parties.
14. Injunctive Relief. FRSB and Consultant acknowledge and agree that the
services to be performed and the obligations under this Agreement are of a
special, unique, unusual, extraordinary and intellectual character which give
them a peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages in an action at law. FRSB and Consultant therefore
expressly agree that either party, in. addition to any other rights or remedies
which they may possess, shall be entitled to injunctive and other equitable
relief to prevent a breach of this Agreement.
15. Resolution of Disputes. Any disputes regarding the rights or obligations of
the parties under this Agreement shall be conclusively determined by binding
arbitration. The arbitration shall be conducted as follows:
15.1 Binding Arbitration. Any dispute between the parties shall be
submitted to, and conclusively determined by, binding arbitration in accordance
with this paragraph. The provisions of this paragraph shall not preclude any
party from seeking injunctive or other provisional or equitable relief in order
to preserve the status quo of the parties pending resolution of the dispute, and
the filing of an action seeking injunctive or other provisional relief shall not
be construed as a waiver of that party's arbitration rights. The arbitration of
any dispute between the parties to this Agreement shall be governed by the
provisions of the California Arbitration Act (California Code of Civil Procedure
section 1280, et seq., including the provisions contained in section 1283.05).
15.2 Initiation of Arbitration. In the case of any dispute between the
parties to this Agreement, either party shall have the right to initiate the
binding arbitration process provided for in this paragraph by serving upon the
other party a demand for arbitration. Notwithstanding any other provision of
law, in order to be enforceable a demand for arbitration must be served within
sixty (60) days of the date on which a party discovers, or reasonably should
have discovered, facts giving rise to a dispute as defined above.
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15.3 Selection of Arbitrators. Within thirty (30) days of service of a
demand for arbitration by either party to this Agreement, the parties shall
endeavor in good faith to select a single arbitrator. If they fail to do so
within that time period, each party shall have an additional period of fifteen
(15) days in which to appoint an arbitrator and those arbitrators within fifteen
(15) days shall select an additional arbitrator. If any party fails to appoint
an arbitrator or if the arbitrators initially selected by the parties fail to
appoint an additional arbitrator within the time specified herein, any party may
apply to have an arbitrator appointed for the, party who has failed to appoint,
or to have the additional arbitrator appointed, by the presiding judge for the
Superior Court, Xxxxxx County, California. If the presiding judge, acting in his
or her personal capacity, is unable or unwilling to appoint the additional
arbitrator, that arbitrator shall be selected in accordance with California Code
of Civil Procedure section 1281.6.
15.4 Location of Arbitration. Any arbitration hearing shall be conducted
in Xxxxxx County, California.
15.5 Applicable Law. The law applicable to the arbitration of any dispute
shall be the law of the State of California, excluding its conflicts of law
rules.
15.6 Arbitration Procedures. Except as otherwise provided in this
paragraph, the arbitration shall be governed by the California Arbitration Act
(Code Civ. Proc. xx.xx. 1280 et seq.). In addition, either party may choose, at
that party's discretion, to request that the arbitrators resolve any dispositive
motions prior to the taking of evidence on the merits of the dispute. By way of
example, such dispositive motions would include, but not he limited to, those
which would entitle a party to summary judgement or summary adjudication of
issues pursuant to Code of Civil Procedure section 437c or resolution of a
special defense as provided for at Code of Civil Procedure section 597. In the
event a party to the arbitration requests that the arbitrators resolve a
dispositive motion, the arbitrators shall receive and consider any written or
oral arguments regarding the dispositive motion, and shall receive and consider
any evidence specifically relating thereto, and shall render a decision thereon,
before hearing any evidence on the merits of the dispute. The arbitration shall
proceed with due dispatch and a decision shall be rendered within sixty (60)
days after the appointment of the final arbitrator. Such decision shall be in
such written form that a judgment may be entered on it in any court of competent
jurisdiction in the State of California.
15.7 Limitation on Scope of Arbitrators' Award or Decision. FRSB and
Consultant agree that if the arbitrators find any disputed claim to be
meritorious, the arbitrators shall have the authority to order legal and/or
equitable relief appropriate to the claim.
15.8 Costs of Arbitration; Attorneys' Fees. While the arbitration is
pending, each party shall bear equally the costs of the arbitration and shall
bear its own attorneys' fees. However, at the conclusion of the arbitration, the
parties agree that the arbitrators shall award to the prevailing party the
costs, including the costs of the arbitration, and attorneys' fees incurred by
that party in participating in the arbitration process.
15.9 Acknowledgment of Consent to Arbitration. NOTICE: BY EXECUTING THIS
AGREEMENT YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS
INCLUDED IN THE "RE SOLUTION OF DISPUTES" PROVISION DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU
MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY
EXECUTING THIS AGREEMENT, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO APPEAL
UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THE "RESOLUTION OF DISPUTES"
PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR EXECUTION OF THIS AGREEMENT INDICATING
YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
BY EXECUTING THIS AGREEMENT, YOU ARE INDICATING THAT YOU HAVE READ AND
UNDERSTOOD THE FOREGOING AND UNDERSTAND THAT BY EXECUTING THIS AGREEMENT YOU
AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THIS ARBITRATION
OF DISPUTES PROVISION TO NEUTRAL ARBITRATION.
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16. Miscellaneous.
16.1 Amendment. The provisions of this Agreement may be modified at any
time by agreement of the parties. Any such agreement hereafter made shall be
ineffective to modify this Agreement in any respect unless in writing and signed
by the parties against who enforcement of the modification or discharge is
sought.
16.2 Waive. Any of the terms or conditions of this Agreement may be waived
at any time by the party entitled to the benefit thereof, but no such waiver
shall affect or impair the right of the waiving party to require observance,
performance or satisfaction either of that term or condition as it applies on a
subsequent occasion or of any other term or condition.
16.3 Severability. If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid or unenforceable, the remainder of the
Agreement which can be given effect without the invalid provision shall continue
in full force and effect and shall in no way be impaired or invalidated.
16.4 Governing Law. The rights and obligations of the parties and the
interpretation and performance of this Agreement shall be governed by the law of
California, excluding its conflict of laws rules.
16.5 Notices. Any notice under this Agreement shall be in writing, and any
written notice or other document shall be deemed to have been duly given (i) on
the date of personal service on the parties, (ii) on the third business day
after mailing, if the document is mailed by registered or certified mail, (iii)
one day after being sent by professional or overnight courier or messenger
service guaranteeing one-day delivery, with receipt confirmed by the courier, or
(iv) on the date of transmission if sent by telegram, telex, telecopy, or other
means of electronic transmission resulting in written copies, with receipt
confirmed. Any such notice shall be delivered or addressed to the parties at the
addresses set forth below or at the most recent address specified by the,
addressee through written notice under this provision. Failure to conform to the
requirement that mailings be done by registered or certified mail shall not
defeat the effectiveness of notice actually received by the addressee.
16.6 Attorneys' Fees: Prejudgment Interest. If the services of an attorney
are required by a party to secure the performance hereof or otherwise upon the
breach or default of the other party to this agreement, or if any judicial
remedy or arbitration is necessary to enforce or interpret any provision of this
Agreement or the rights and duties of any person in relation thereto, the
prevailing party shall be entitled to reasonable attorneys' fees, costs and
other expenses, in addition to any other relief to which such party may be
entitled. Any award of damages following judicial remedy or arbitration as a
result of the breach of this Agreement or any of its provisions shall include an
award of prejudgment interest from the date of the breach at the maximum amount
of interest allowed by law.
16.7 Nonassignabilily. This Agreement shall not be assigned by any party
without the prior written consent of the other parties. Any assignment contrary
to the provisions of this Agreement shall be deemed a default under the
Agreement, allowing the nondefaulting parties to exercise all remedies available
under law.
16.8 Entire Agreement. This document constitutes the entire agreement
between the parties, all oral agreements being merged herein, and supersedes all
prior representations and written agreements between the parties concerning the
subject matter of this Agreement. There are no representations, agreements,
arrangements, or understandings, oral or written, between or among the parties
relating to the subject matter of this Agreement that are not fully expressed
herein.
16.9 Succession. Subject to the provisions otherwise contained in this
Agreement, this Agreement shall inure to the benefit of and be binding on the
successors and assigns of the respective parties.
16.10 Captions. All paragraph captions are for reference only and shall
not be considered in construing this Agreement.
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16.11 Advice of Legal Counsel. Each party to this Agreement has consulted
with, or had the opportunity to consult with, legal counsel concerning all
paragraphs of this Agreement, Each party has read this Agreement, and has been
fully advised by legal counsel with respect to the rights and obligations under
the Agreement, or has had the opportunity to obtain such advice. Each party is
fully aware of the intent and legal effect of the Agreement, and has not been
influenced to any extent whatsoever by any representation or consideration other
than as stated herein. After consultation with and advice from, or the
opportunity for consultation with and advice from, legal counsel, each and every
party voluntarily enters into this Agreement.
16.12 Banking Regulatory Agencies. The obligations and rights of the
parties hereunder are expressly conditioned upon the approval or non-disapproval
of (1) this Agreement. and/or (ii) Consultant, in the event such approvals are
required, by those banking regulatory agencies which have jurisdiction over
FRSB.
Feather River State Bank
By: (Signature) X.X. Xxxxxxx
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Its: President & CEO
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Address: X.X. Xxx 000000
Xxxxxxxxxx:
(Signature) Xxxxxxx Xxxxxxxxx
Address: 0000 Xxxxxxxxx Xx.
Xxxx Xxx, XX 00000
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