ERISA COMPLIANCE REVIEW AGREEMENT
This agreement is made as of the last date specified below, by and between _________________________________________, (the “Plan Sponsor”) and ERISA Fiduciary Administrators LLC (”Consultant”).
Plan Sponsor desires to retain the services of Consultant to perform the services called for based on the terms and conditions set forth in this ERISA Compliance Review Agreement (the “Agreement”).
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter entered into, the parties agree as follows:
1. Terms of Agreement.
The engagement shall commence as set forth in Paragraph 3 below and shall terminate automatically upon Consultant’s presentation of the written report described in sub-paragraph (D) of Paragraph 2 below. Notwithstanding the foregoing, this Agreement may be extended by mutual consent of the parties hereto for a period of time as agreed upon by the parties.
2. Duties. Consultant shall perform as follows:
(A) Review and analyze the governing instruments of the _____________________________________401(k) Plan (the “Plan”), including, but not limited to, plan documents and all amendments thereto, trust agreements and all amendments thereto, summary plan descriptions and all material modifications thereto, and the related written consent resolutions of the Plan Sponsor’s Board of Directors. Said review and analysis will focus on the Plan’s compliance with the applicable tax qualification requirements of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the “Code”) and the applicable requirements of Title I of the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder (“ERISA”);
(B) Review and analyze the Form 5500 filed by the Plan Sponsor for each of the three (3) immediately preceding plan years, plus all schedules, the Plan auditor’s reports for said period, if any, and any 401(k) or other nondiscrimination test results that pertain to that period;
(C) Review and analyze correspondence by and between the Internal Revenue Service, or the U.S. Department of Labor, and Plan Sponsor, any plan fiduciary or plan service provider that relates to the three plan years specified in sub-paragraph (B) above; and
(D) Prepare a written report summarizing the Consultant’s findings and conclusions that are the result of the activities specified herein (the “Written Report”) and be available for a face-to-face meeting or a telephone consultation, in the Plan Sponsor’s discretion, to present and discuss the Written Report. Collectively, hereafter, the services described in this Paragraph 2 shall be referred to as the “Project.”
3. Time Requirements.
Consultant agrees to initiate a written data and document request within Five (5) business days of the later of (i) the date this Agreement is signed by the Plan Sponsor or (ii) receipt of the partial fee payment described in Paragraph 4 below. Consultant shall begin the Project within Five (5) business days of his receipt thereof and shall use his best efforts to complete the Project within Thirty (30) business days thereafter, but shall not be responsible for any unusual delays in the receipt of the requested documents or data.
4. Compensation and Terms.
(A) Plan Sponsor shall pay Consultant a flat fee of _________________________($_______) for the performance of the Project. Plan Sponsor shall pay Consultant the first _________________________($_______) of said fee upon entering into this Agreement. The remaining _________________________($_______) shall be due upon Consultant’s presentation of the Written Report, and payable within Thirty (30) days of the date Consultant provides Plan Sponsor with an invoice for the Project.
(B) Should Consultant and the Plan Sponsor enter into a separate ERISA Fiduciary Service Agreement within ninety (90) days following Consultant’s presentation of the Written Report, the Compensation received by the Consultant for the Project shall be credited against the compensation chargeable by Consultant under said ERISA Fiduciary Service Agreement.
Plan Sponsor shall pay all expenses, including, without limitation, all copying, postage and printing expenses, reasonably incurred by Consultant in the course of performing services under this Agreement, as mutually agreed upon in advance by the parties hereto.
Consultant shall treat as confidential, and shall not disclose or use for the benefit of any person other than Plan Sponsor, other than those parties for whose benefit Plan Sponsor or Plan Sponsor’s representatives, authorize disclosure, any and all documents and information made available or disclosed to Consultant as a result of or related to this Agreement; provided, however, Consultant shall have no obligation hereunder as to any portion of such documents or information that are disclosed by Plan Sponsor, or Plan Sponsor’s representatives, to others without any restriction on use and disclosure.
7. Relationship. Consultant’s Non-attorney and Non-fiduciary status.
Consultant is retained by Plan Sponsor solely for the purposes and to the extent set forth in the Agreement, and Consultant’s relationship to Plan Sponsor shall during the term of this Agreement at all times be that of a non-attorney, and non-plan fiduciary independent contractor. Notwithstanding Consultant’s admission to practice law pursuant to the rules set forth by the State Bar of California, Plan Sponsor expressly agrees and acknowledges that Consultant is not, for purposes of this Agreement, engaged or otherwise acting as an attorney and that an attorney-client relationship shall not arise for any reason as a result of such performance. Furthermore, Plan Sponsor agrees and acknowledges that the Consultant is not acting as a “Fiduciary,” as defined in Section 3(21) of ERISA, with respect to the Plan and he shall not become a Fiduciary for any reason with respect to his performance under this Agreement. Plan Sponsor also agrees and acknowledges that the Consultant is not acting as an “Investment Manager,” as defined in Section 3(38) of ERISA, with respect to the Plan and he shall not become an Investment Manager for any reason with respect to his performance under this Agreement.
8. Waiver, Modification, or Cancellation.
Any waiver, alteration, or modification of any of the provisions of this Agreement or cancellation or replacement of this Agreement shall not be valid unless in writing and signed by the parties.
Any attempt to assign or transfer any rights, duties, or obligations herein shall render such attempted assignment or transfer null and void.
In no event shall Consultant be liable for any damages arising from the use of the Written Report described in Paragraph 2 or for any other work product of Consultant’s arising in connection with his performance under this Agreement.
11. Governing Law.
This Agreement shall be construed in accordance with and governed by the laws of the State of California.
The parties hereto have caused the Agreement to be executed by their respective duly authorized representatives as of the latest date set forth below.
ERISA FIDUCIARY ADMINISTRATORS LLC (“Consultant”)
14 Corporate Plaza, Suite 120
Newport Beach, CA 92603
By: __________________________________________ Date______________
____________________________________________ (“Plan Sponsor”)
By: __________________________________________ Date______________