Employment Agreement for Management Level Term. Construction

Transcription

1 Employment Agreement for Management Level Term Construction Purpose of the Form. This is the full version of an Employment Agreement between a construction company and one of its management level employees. For example, this would apply to a head estimator, office manager, job superintendent, project manager, someone in charge of marketing and getting new business, job foreman, and other such employees. It is not an agreement that allows you to hire or fire at will, with or without just cause. Instead, it is a term contract that cannot be terminated unless there is reasonable cause in the form of misconduct or breach. How to Fill-Out. All needed clauses are already included. Simply add the personal information as prompted in the blank spaces or lines.

2 EMPLOYMENT AGREEMENT This Agreement is entered into by and between (hereinafter referred to either as Employer ) and ( Employee ). In consideration of the commencement of Employee s employment and the compensation to be paid, both parties acknowledge and agree as follows: TERM 1. Term of employment. Employer employs Employee for a period of one (1) year, beginning on July, DUTIES 2. Job description. Employee shall serve as. In that capacity, Employee shall perform all services, acts, or things necessary or advisable to manage and conduct the business of Employer, including those outlined in Exhibit A titled Job Duties, subject at all times to the policies, written and oral, set forth by Employer. Employee shall not, without specific approval of Employer, do or contract to do any of the following: A. Borrow on behalf of Employer. B. Purchase capital equipment for amounts in excess of the amounts budgeted by Employer for such expenditures. C. Sell any capital assets of Employer. D. Commit Employer to the expenditure of more than $. 3. Additional duties. In addition to the foregoing duties, Employee shall perform any other duties that may be assigned, subject to the instructions, directions, and control of Employer. Employer may also require from time to time, that Employee travel temporarily to other locations on Employer s business. 4. Policies and procedures. At all times during the performance of this Agreement, Employee shall strictly adhere to and obey all Employer s policies, procedures, rules, and regulations, verbally and in writing, governing the conduct of its Employees now in effect or as subsequently modified in the discretion of the Employer. This shall include, but not be limited to any rules contained in an Employee s Handbook set forth at the discretion of the Employer NationalLawDocs.com. All rights reserved. (925) info@NationalLienLaw.com.

3 5. Due diligence. Employee shall devote due diligence and all productive time, ability, and attention to the business of Employer during the term of this Agreement. Employee shall not engage in any other business duties or pursuits whatsoever, or directly or indirectly render any services of a business, commercial, or professional nature to any other person or organization, whether for compensation or otherwise, without the prior written consent of Employer. However, the expenditure of reasonable amounts of time for educational, charitable, or professional activities shall not be deemed a breach of this agreement, if those activities do not materially interfere with the services required under this Agreement and shall not require the prior written consent of Employer. This Agreement shall not prohibit Employee from making passive personal investments or conducting private business affairs if those activities do not materially interfere with the services required under this Agreement. However, Employee shall not directly or indirectly acquire, hold, or retain an interest in any business competing with or similar in nature to the business of Employer. 6. Non-competition. During the term of this Agreement and for years after termination, Employee shall not directly or indirectly, in the capacity of an owner, co-owner, partner, manager, shareholder, director, officer, agent, employee, consultant, independent contractor, or any other capacity compete with Employer. This is shall apply to situations in which Employee conducts his or her own business or works for a company which conducts a similar business in the industry and general geographic area in which Employer operates. Employee represents and agrees that the services to be performed under this Agreement are of a special, unique, unusual, extraordinary, and intellectual character that gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law. Employee therefore expressly agrees that Employer, in addition to any other rights or remedies it may possess, shall be entitled to injunctive and other equitable relief to prevent or remedy a breach of this Agreement by Employee. Employee s failure to comply with any of the provisions of this paragraph shall give Employer the right, in addition to all other remedies, to terminate any benefits or compensation to which Employee may otherwise be entitled following termination. Employee acknowledges it is a fiduciary and has strict duties of diligence, trust, loyalty, and confidence to the benefit of Employer. 7. Indemnification. Employee shall indemnify and hold Employer harmless from all liability for loss, damage, costs, attorney s fees, or injury resulting from the negligence, nonperformance, or misconduct of Employee. 8. Confidential information. The parties acknowledge and agree that during the term of this Agreement and in the course of the discharge of the duties hereunder, Employee shall have access to and become acquainted with certain confidential and proprietary NationalLawDocs.com. All rights reserved. (925) info@NationalLienLaw.com.

4 information that shall not be disclosed to any third parties or entities without the prior written consent of Employer. Confidentiality defined. Employer has and will develop, record, and compile certain proprietary and Confidential Information that has great value to its business and customers. Employer has and also will have access to the Confidential Information of its clients. Confidential Information includes not only information from outside sources disclosed by Employer or its clients to employee, but also information developed or learned by employee during the course of his or her employment with Employer. Confidential Information is broadly defined so as to include all information that has or could have commercial value or other utility in the business in which Employer or its clients are engaged or in which they contemplate engaging. Confidential Information also includes all information which would be detrimental to the interests of Employer or its clients if there is an unauthorized disclosure, whether or not such information is specifically identified as Confidential Information by Employer or its clients. Confidential Information includes, but is not limited to any and all information concerning the product and/or services of Employer, processes, Employer documentation and files, materials, formulas, trade secrets, forms, discoveries, plans, drawings, specifications, estimates, shop drawings, elevations, finish schedules, templates, contracts, profit and overhead margins, improvements, research or development, test results, data, know-how, formats, marketing plans, reports, coded information, diagrams, flow-charts, spread sheets, business plans, strategies, forecasts, published or unpublished technical information, budgets, projections, customer and supplier identities, customer and supplier characteristics, agreements, and any other tangible and intangible materials of any type whatsoever relating to Employer and its clients. 9. Consultant. Following the employment term, and if the employment term has not been terminated for cause, Employee shall make its advice and counsel available to Employer for such period as Employer may desire. The parties agree that this advice and counsel shall not entail full time service and shall be consistent with Employee's other personal and business activities. Employee shall be paid reasonable compensation as mutually agreed by the parties, to exclude benefits. 10. Employer duties. Employer shall provide Employee with the compensation, incentives, benefits, and business expense reimbursement specified elsewhere in this Agreement. Employer shall provide Employee with the following office equipment: Employer shall also provide office space and administrative support suitable to Employee s position in the adequate performance of the within-described duties NationalLawDocs.com. All rights reserved. (925) info@NationalLienLaw.com.

5 Employer shall indemnify Employee for all losses sustained by Employee in direct consequence of the discharge of duties on Employer's behalf. EMPLOYEE COMPENSATION 11. Base compensation. As compensation for the services to be performed, Employee shall receive a base salary of $ per annum, payable not less than monthly at the rate of $ during the employment term. 12. No Cost of living increase. The base salary shall be not be subject to increase by an annual inflation adjustment based any consumer price Index or any other index or procedure. 13. Disallowed compensation reimbursement. In the event any portion of the compensation and benefits paid by Employer to Employee is disallowed as an income tax deduction on an income tax return of Employer, Employee agrees to immediately repay to Employer the full amount of that portion. BONUS AND PROFIT-SHARING 14. Bonus. For the one year term of this Agreement, Employee will receive a bonus calculated as follows: If employment is terminated for misconduct, Employee shall not be entitled to any portion of that bonus and any amount received as of the date of termination shall be refunded to Employer. 15. Stock. In consideration of the performance of duties, Employee shall receive stock options as follows: FRINGE BENEFITS 16. Paid vacation. Employee shall be entitled to weeks vacation time each year with full pay. Employee may be absent from employment for vacation only at such times as Employer shall determine from time to time NationalLawDocs.com. All rights reserved. (925) info@NationalLienLaw.com.

6 17. Sick leave. Employee shall be entitled to days per year as sick leave with full pay. Sick leave may be accumulated up to a total of days. 18. Paid holidays. Employee shall be entitled to the paid holidays set forth in Exhibit B titled PAID HOLIDAYS. 19. Automobile. Employee shall be solely responsible for any car expenses that may be incurred in owning, leasing, or operating the automobile of his choice. Further, Employer shall not be required to furnish Employee an automobile. However a car allowance at $ per month shall be given to cover any car expenses that may be incurred by Employee in owning, leasing, or operating an automobile, including but not limited to: car and lease payments, gas, oil, insurance (including liability, uninsured motorist, bodily injury, and property damage), repairs, and any other automobile related expenses. Pursuant to this allowance, Employee shall be provided a gas credit card. However, the expenditures on such card, along with all other automobile expenses, shall not exceed $ per month. If Employee is prohibited by order of any court from holding or using a driver's license, Employee will no longer be entitled to this benefit. 20. No Retirement benefits or disability insurance. Based on the one year term of this Agreement, no retirement benefits or disability insurance is offered at this time. 21. Life insurance. In the event employee does not have life insurance coverage from any other source, whether private or public, Employer has the option, but not the obligation, of covering Employee under a group term life insurance policy not to exceed a face value of $. That coverage, along with the payment of premiums, will be in effect only for the periods of employment. Thereafter, Employee shall have the option of assuming premium payments. If provided, Employee agrees to submit to any physical examination that may be required for the purpose of obtaining that life insurance, the cost of which shall be borne by the Employer. 22. Medical reimbursement. Employee is not entitled to any medical, dental, vision, or pharmaceutical coverage. However, employee shall be reimbursed up to $ during the one year term of this Agreement to defray any costs of Employee s private major medical coverage, if any. 23. Business expenses. At this point in the relations between the parties, Employee shall not be entitled to a company credit card or expensive account. However, employee shall be entitled to reimbursement of business costs advanced. Whenever feasible, Employee shall first seek consent from Employer before incurring business expenses. Any such expenses must be reasonable and necessary and to the direct benefit of Employer. Further, such expenditures shall be reimbursable only if it is of a nature qualifying as a proper deduction on the federal and state income tax returns of Employer NationalLawDocs.com. All rights reserved. (925) info@NationalLienLaw.com.

7 Each such expenditure shall be reimbursable only if Employee furnishes to Employer adequate records, receipts, and other documentary evidence required by federal and state statutes and regulations issued by the appropriate taxing authorities for the substantiation of each such expenditure as an income tax deduction. 24. Reimbursement for disallowed business expenses. In the event any expenses paid for by Employee or any reimbursement of expenses paid to Employee shall, upon audit or other examination of Employer's income tax returns, be determined not to be allowable deductions from Employer's gross income, and in the further event that this determination shall be accepted by Employer, or made final by the appropriate federal or state taxing authority, or a final judgment of a court of competent jurisdiction and no appeal is taken from the judgment, or the applicable period for filing notice of appeal has expired, Employee shall repay to Employer the full amount of the disallowed expenses. 25. Business Expense records. Any business expenses of which either the Employer or Employee is responsible, shall be outlined in an account book in which the employee shall record at or near the time of each expenditure the amount thereof, the time, place, designation of the type of business expense, the business reason for the expenditure, as well as the name and address of all clients or other persons through which the business expense was incurred. Said business expense accounting shall be in a form approved by and supplied by Employer. The foregoing account book and documentary evidence shall be delivered to Employer whenever requested. The accounting required under this section shall also apply to any Employer credit card used by Employee. TERMINATION 26. Termination for cause. Employer reserves the right to terminate this Agreement if Employee breaches or neglects the duties which are required to be performed under this Agreement. The causes for such termination may consist of, but are not limited by, the following examples: A. Act of dishonesty, fraud, or misrepresentation; B. Conviction of either a misdemeanor or felony as a result of misconduct performed during the course of the Employee s duties; C. Disclosure and/or use of any confidential information; D. Any violations of the Employee Non-Compete and Employee Confidentiality/Non- Disclosure Agreements; E. Any violations of any ordinance, regulations, or statute of a city, county, state, Federal, or regulatory agency related to the job duties of Employee or the functions Employer; F. Negligence or misconduct; NationalLawDocs.com. All rights reserved. (925) info@NationalLienLaw.com.

8 G. Acts of moral turpitude; H. The neglect of any duties under this Agreement, or acts/omissions in any way that have a direct, substantial, and adverse effect on Employer s business, profitability, reputation, and relationship with customers; I. Possession, distribution, sale, use or being under the influence of illegal drugs or alcohol while performing the Employee s duties or operating a vehicle during the scope of employment; J. The sexual harassment of any other employee or the employees of any customers of a substantial nature; K. Acts of unlawful discrimination; L. Theft or embezzlement; M. Misusing or destroying Employer s or its customer s property; N. Substantially breaching fiduciary duties; O. Falsifying or altering any company records. The notice of termination required by this section shall specify the ground for the termination and shall be supported by a statement of all relevant facts. 27. Payment upon termination. If Employee is terminated with cause, there shall be no further compensation, including severance pay. MISCELLANEOUS 28. Death and disability. If Employee during the term of this Agreement should become disabled as defined under the Americans With Disability Act (ADA), Employer shall take affirmative steps to make reasonable accommodations so Employee can continue working. However, this provision shall not be construed to require Employer to make an accommodation that would impose an undue hardship on the operation of Employer s business. If Employee should become unable to perform the duties required by the job because of any condition or cause that does not render Employee a qualified worker with disability for purposes of ADA, Employer may, in its sole discretion assign Employee to other duties. The compensation to be paid thereafter to Employee shall be determined by the Employer in its sole discretion. If Employee is unwilling to accept the modification, duties, and compensation, this Agreement shall terminate upon 30 days written notice NationalLawDocs.com. All rights reserved. (925) info@NationalLienLaw.com.

9 This Agreement shall be terminated upon the death of Employee. 29. Merger and sale. In the event of a merger in which Employer is not the surviving entity, or of a sale of all or substantially all of Employer s assets, Employer may, in its sole option (1) assign this Agreement and all rights and obligations under it to any business entity that succeeds to Employer s business or (2) on at least 30 days prior written notice to Employee, terminate this Agreement effective on date of merger or sale of the assets. 30. Notices. Any notices to be given by either party to the other shall be in writing and may be transmitted by personal delivery, by regular mail, or . Mailed notices shall be addressed to the parties at the addresses below, but each party may change that address by written notice. Notices delivered personally or by shall be deemed communicated as of the date of actual receipt; mailed notices shall be deemed communicated as of the fifth day of mailing. 31. Arbitration. Any and all disputes between the parties, on any basis, whether at law or equity, and pertaining to any causes of action, whether equitable, contractual, or tortuous, and pertaining to any alleged damages, whether general, compensatory, special, consequential, or punitive shall be determined by private, binding arbitration. This shall include issues as to the interpretation, enforcement, breach, and performance of this Agreement. Both partiers have knowingly entered into this Agreement after each party being given the opportunity to seek independent legal advice. The voiding of this AGreement, or any of its provisions, by fraud, mutual mistake, reformation, rescission or otherwise shall not affect the validity of this provision, which is expressly determined to be valid and severable. Said binding arbitration shall be conducted by a single arbitrator. Parties waive discovery under any Discovery Act with the exception of (1) each side having the right to propound a single set of Request for Production of Documents and (2) each side having one day set for depositions of the other parties representatives and employees. The parties confer jurisdiction upon the arbitrator for any and all pre-judgment provisional remedies, including but not limited to attachment, claim and delivery, temporary restraining orders, preliminary injunctions, rescission, reformation, and specific performance. The parties waive their rights to any law and motion matters, including but not limited to demurrers, motions to strike, summary judgment or adjudication and judgment on the pleadings. Motions in limine, not exceeding 5 per side, shall be presented 10 days before the arbitration. In the event the parties wish to perceived by way of a court action, the same rules shall apply. Any award from the arbitrator shall become a judgment of any court of competent jurisdiction. All parties will bear equally the cost paid to the arbitrator which will be considered costs of suit to the prevailing party. Arbitration shall be held in the city in which the Employer has its principal place of business NationalLawDocs.com. All rights reserved. (925) info@NationalLienLaw.com.

10 32. Attorney s fees. In any action or arbitration arising out of the employment relationship, as well as to enforce or interpret the terms of this Agreement, regarding any claim or cause of action, in contract or tort, the prevailing party shall be entitled to reasonable attorney s fees, costs, and arbitration expenses. 33. Integration. This is the entire Agreement between the parties and supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the employment of Employee by Employer and contains all of the covenants and agreements between the parties with respect to that employment in any manner whatsoever. Each party to this agreement acknowledges that no representation, 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 shall be valid or binding on either party. 34. Modification. Any modification of this Agreement will be effective only if it is in writing and signed by both parties. 35. Waiver. The failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this Agreement shall not be deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times. 36. Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. 37. Governing law. This Agreement shall be governed by and construed in accordance with the laws of the State of. In any action or proceeding between the parties, venue shall be in county. 38. Successors. This Agreement shall be binding upon the assigns, successors and heirs of each party. If Employee dies prior to the expiration of the term of employment, any sums that may be due from Employer as of the date of death shall be paid to Employee's estate NationalLawDocs.com. All rights reserved. (925) info@NationalLienLaw.com.

11 Dated: (Signature of Employee) Address: Dated: Company By (Signature and Title) Address: NationalLawDocs.com. All rights reserved. (925)

12 ATTACHMENT A JOB DUTIES NationalLawDocs.com. All rights reserved. (925) info@NationalLienLaw.com.

13 ATTACHMENT B PAID HOLIDAYS New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, July 4 Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, December 25 Christmas Day NationalLawDocs.com. All rights reserved. (925) info@NationalLienLaw.com.