Agent and DRE Loan Officer Contract
THIS AGREEMENT made in the State of California and entered into this date at San Diego, California, between Pacific Home Brokers Inc., DBA Pacific Home Brokers, (hereinafter referred to as the “Broker”) and (hereinafter referred to as the “Contractor” or “Independent Contractor”).
The Broker and Independent Contractor agree as follows: BROKER: Broker is doing business as Pacific Home Brokers and is a licensed real estate broker in the State of California.
INDEPENDENT CONTRACTOR: Independent Contractor represents that he or she is a duly licensed real estate salesperson or broker in the state of California and will maintain their real estate license in good standing with the California Department of Real Estate during the term of this agreement. Contractor will always conduct him/herself in full compliance with the Statutes of California and the Rules and Regulations of the Bureau of Real Estate in a way which reflects the high standards of the Broker.
INDEPENDENT CONTRACTOR STATUS: Contractor agrees to work with Broker as an Independent Contractor, and not as a w2 employee. All costs and obligations incurred by Contractor in conducting his/her independent business shall be paid solely by Contractor, who will hold Broker harmless from any and all costs and obligations. Contractor will act independently as to the management of his/her time and efforts, and will be responsible for timely payment of all of his/her own expenses under Broker supervision. Such as industry association dues, licensing renewals, cellular telephones, automobile insurance etc., as they are incurred. Broker will not withhold any Federal or State Income Tax, Social Security (FICA) or Unemployment (FUTA) taxes from Contractor’s commissions paid. Contractor is personally responsible for paying any and all Federal and State Income, Social Security and other taxes, and for maintaining all expense records as required by law, and represents to Broker that all such amounts will be withheld and paid when due. Contractor shall indemnify and hold Broker harmless from any liability or costs thereof. Broker will provide Contractor with an IRS Form 1099 MISC at the end of each calendar year. Contractor agrees to receive their 1099 MISC form via email from Broker. Contractor is considered an independent contractor for purposes of unemployment. Broker and Contractor acknowledge that this agreement does not constitute a w2 employment agreement by either party, shall not be construed as a partnership, and Broker shall not be liable for any obligation, injury, disability or liability incurred by Contractor.
COMMISSIONS AND FEES: Compensation and commission splits paid to Contractor are as follows: Contractor will receive all commissions paid to Broker minus a $125.00 fee for errors and omissions insurance per transaction. Said compensation is to be paid to Contractor out of funds actually collected by Broker.
A Contractor with a Mortgage Loan Originator license will receive all loan compensation based on the percentage of the compensation plan agreement between the lender and the Broker minus a $125.00 fee for errors and omissions insurance and a company fee of $399.00 after originating a closed loan. The loan compensation the Contractor is entitled to is the listed percentage of the compensation plan agreement with the lender and the Broker which is posted in the loan officer resources lender page on mloresources.pacifichomebroker.com. Contractor may use his/her own discretion in determining what lender for which the Broker has a compensation agreement in place which will offset the company fee.
Contractor may receive his/her commission directly from escrow on a real estate transaction if Contractor worked with the Broker’s support through email@example.com and support verifies the Contractor turned in a complete file 72 hours before close of escrow. A complete file includes all documents outlined in the company transaction checklist and all documents must be fully executed and complete.
Contractor with Mortgage Loan Originator license will be paid directly from escrow once support verifies the loan processor has a full file.
RECRUITMENT PASSIVE INCOME PROGRAM: A Contractor, whose license is active with Broker and who successfully refers another licensed real estate Contractor that signs a contract with Broker shall be added as a referral agent to the referred Contractor’s transactions and earn $100 dollars when the referred Contractor closes a real estate transaction at Broker expense.
LEASE AGREEMENTS: The Broker’s fees for residential leases are 7% or $375.00 dollars whichever is less. Contractor must have a full file in accordance with the company lease transaction checklist. Contractor cannot have ownership interest in the property.
COMMERCIAL TRANSACTIONS: If Contractor represents either a buyer or a seller in a commercial transaction, the company fee will be 5% of the commission received by the agent. Contractor must pay an errors and omissions insurance fee of $125. Commercial leases are 5% of the commission received by the Broker with a minimum Broker fee of $375.00 dollars. The commission split is based off the total commission offered by the seller prior to any rebates, credits, or commission that is negotiated down from the original commission offered. The following are considered commercial transactions for commission and errors and insurance purposes and does not include all: any residential investment property that was under construction or incomplete known as a flip, bulk residential property sales, any transaction where construction plans or permits are involved as part of the disclosures made by investors, 5 or more unit properties, mixed use properties, vacant land over 5 acres and industrial properties. All acts must happen in escrow before close unless Broker has approved otherwise.
REFERRALS: Referral fees earned by Contractor must be paid to Broker. Contractor cannot directly receive a referral fee. The Broker’s fees for residential referrals are 7% or $375.00 dollars whichever is less. The Broker’s fees for commercial referrals are 7% with a minimum fee of $595.00
INDEPENDENT CONTRACTOR ACTIVITIES AND DUTIES: Independent Contractor agrees to limit his or her real estate activity to the solicitation of listings and/or buyers and facilitating the sale or purchase of real estate. Independent Contractor agrees to follow the terms outlined in the Company Policy and Procedures Manual and within the Agent Resources on the Company website located at www.resources.pacifichomebroker.com. Prohibited Contractor activities include: property management, loan modification, legal consultation, tax advice, leasing property the Contractor owns in the Broker’s name, business sales and lease option purchases. Activities that require Broker written permission include: processing loans and providing Broker Price Opinions.
Contractor shall not engage in activity that is illegal, unethical or that could lead to their real estate license being suspended or revoked. Any issues that are progressing to threats of legal action arising from your transaction need to be conveyed to the Broker within 24 hours. All acts must happen in escrow before close unless Broker has approved otherwise.
Contractor cannot directly receive any compensation for performing real estate activities or loan activities without Broker’s signed approval to escrow.
All property listings, agreements, acts or actions for performance of licensed acts, which are taken or performed in connections with this Agreement, shall be taken and performed in the name of the Broker. Contractor agrees and hereby grants all right and title of these listings to Broker. Independent Contractor shall have no authority to bind broker to any agreement, representation or promise and Broker will not be liable for any liability or obligation incurred by Independent Contractor unless Broker specifically authorizes it in writing.
Independent Contractor shall be familiar and comply with all applicable laws, policies and procedures including, but not limited to, anti-discrimination laws and restrictions against giving or receiving referral fees to title companies, inspection companies etc.
Independent Contractor is not to personally use or disclose or furnish, directly or indirectly, to any person, firm, company or Broker engaged in the real estate business, any confidential information or property rights of Broker, as acquired by Independent Contractor as a result of the relationship hereby established.
Contractor will be responsible for and hereby agrees to pay a legal defense payment of $5,000 to Broker in the event a demand or lawsuit is made to or against Broker by an attorney or party to the contracts for one of the Contractor’s transactions. A demand is any written communication where an attorney or party to the contracts is asking the Broker for funds as a result of the Contractor or Contractor’s client’s misrepresentation, fraud, or other claim made by the attorney or party to the contracts. The legal defense payment is payable and due at the time the demand is made to Broker and is non refundable. These funds will be used to cover attorney’s fees as a result of defending this demand/lawsuit either by a contracted attorney hired by Broker or the Broker’s E and O insurance carrier’s attorney where the deductible is $5,000.
Contractor will be responsible for adhering to the company policies and procedures to include the four step Transaction Process located on the company resources page online and these online company polices and procedures are incorporated into this agreement. Contractor is responsible for ensuring all acts are complete prior to recording to include agent credits to their clients and needed signatures on documents. No acts shall take place after recording and Contractor is responsible for any outstanding Broker fees not paid by their client if any.
Contractors conducting a loan must adhere to the company policies and procedures to include our online Loan Preapproval Process located on the company resources page online and the online policies and procedures are incorporated into this agreement. Failure to follow company procedures will be considered negligence by the Broker. Contractor is responsible for returning any loan commissions in the event of an early payoff where a lender is asking for the return of commission.
Contractor shall not commit acts for which the Department of Real Estate of the State of California (DRE), RESPA or HUD are authorized to restrict, suspend or revoke Contractor’s license or impose other discipline, under the California Business and Professions Code Section 10176 or 10177 or other applicable provisions of State or Federal Law. If the Broker finds that the Contractor’s actions violated the above provisions based on the evidence the Broker finds or evidence that is reported to Broker, the broker will retain any commissions or the Contractor will return any commissions received to the Broker for purposes of defending any potential liability and at Broker’s discretion.
Contractor will not handle trust funds. Trust funds include buyer deposit checks and lease checks. Broker does not maintain a trust account for client escrow deposits for other outside escrow companies or for property management.
DOCUMENTS: All documents and files related to transactions, listings and leads are the property of the Broker. Contractor is responsible to store all documents in a secure place. Contractor must provide the Broker with a completed file with all necessary documents on each closed transaction. Commissions earned by Contractor shall not be released to contractor until a completed file is delivered to and approved by Broker. Any document or in house form that is asked for via email from the Broker or the Broker’s support staff prior to recording becomes part of the necessary items for a complete file. Contractor must be accessible to Broker via phone or email and respond to Broker within 24 hours. All contracts must be on CAR zipForm® contracts unless approved by Broker.
ADVERTISING: All advertising done by Contractor needs to be approved by the Broker, shall not violate any state or federal laws and shall fall within the guidelines set by the California Department of Real Estate. Contractor is expected to be familiar with these rules, laws and guidelines. No telephone solicitations shall be made by Contractor to people who have registered their telephone numbers on a national do not call registry. Broker is not responsible or liable for any advertising done by Contractor and Contractor agrees to hold broker harmless of any costs or damages, legal or otherwise, that may occur from such advertising.
FICTITIOUS BUSINESS NAMES AND LOGOS: All marketing material which includes but is not limited to signage, stationery and websites, the Contractor shall use the name “Pacific Home Brokers” or “Pacific Loan Brokers” and corresponding logo, unless Contractor has made an agreement with Broker to use a DBA of their own that is filed by the Broker with the California Department of Real Estate. Broker retains exclusive rights to the Pacific Home Brokers and Pacific Loan Brokers name and logos. Contractor agrees to discontinue all uses of the Pacific Home Brokers and Pacific Loan Brokers name and logos upon termination of this agreement.
AUTOMOBILE INSURANCE: Contractor to maintain in force and effect personal automobile liability insurance. If Contractor has an automobile accident, Contractor indemnifies and holds Broker harmless from any claims or demands and is liable for any suit brought by the client.
HOLD HARMLESS: Contractor agrees that, for all actions that Contractor does during his/her contractual relationship with Broker, Contractor will forever indemnify and hold harmless Broker, their heirs, successors, spouses and assigns, from any and all claims, complaints, causes of action, Realtor arbitration demands, damages and liabilities of every kind whatsoever, whether known or unknown, including without limitation of any action, omission, negligence or any other basis of liability or complaint, in any forum, brought by and third party against Broker. No action or complaint arising out of a real estate transaction in which Broker was involved may be brought by Contractor before anybody, against any third party, without prior written consent of Broker. If the Broker initiates any litigation or arbitration action on behalf of the Contractor or if the Broker must defend any action of the Contractor in litigation or arbitration, Contractor will pay all related filling fees, attorney fees and any other fees that may apply. In addition, Contractor shall be responsible for any commission reimbursement, rebate or refund ordered by a court of law, Arbitration or Mediation Panel on previously earned sales commissions.
DISPUTE RESOLUTION: Mediation is recommended as a method of resolving disputes arising out of this agreement between broker and Contractor. If mediation is not mutually agreed upon then arbitration is mandatory. All disputes or claims between Contractor and other licensee(s) associated with Broker, or between Contractor and the Association of Realtors of which all such disputing parties are members for arbitration pursuant to the provisions of its Bylaws, as may be amended from time to time, are incorporated as part of this Agreement by reference. If the bylaws of the Association do not cover arbitration of the dispute, or if the Association declines jurisdiction over the dispute, then arbitration shall be pursuant to the rules of California law. The Federal Arbitration Act, Title 9, U.S. Code, Section 1, et seq., shall govern this Agreement. In the event of a lawsuit or arbitration between Broker and Contractor, Contractor agrees that the venue will be in a San Diego court or with a San Diego arbitrator.
WORKING PLACE: Contractor may work from any place of Contractor’s choice. Broker’s offices are available by appointment only.
AGREEMENT TERMINATION: Either party may terminate this Agreement at any time. This agreement shall govern all disputes and claims even after its termination. Upon termination of this Agreement, all financial obligations owed to Broker that are imposed by terms of this Agreement shall be paid. All Contractor client referral agreements to future Contractor’s broker shall be paid in full upon termination regardless if the escrow has closed if fees are owed to Broker on an open escrow contract.
FAILURE TO COMPLETE PENDING TRANSACTION: In the event Contractor, due to early termination of this agreement, health related issues, negligence identified by Broker, or any other reason fails to complete a pending transaction, broker shall make arrangements for the completion of the transaction. Broker and/or another Contractor assigned to complete the transaction shall receive fair compensation for their duties performed. This compensation is to be deducted from the Contractor’s portion of the commission who failed to complete or was removed from the transaction by Broker. Contractor agrees that the Broker will decide the commission disbursement.
ACTIVITY REPORTING: Contractor is required to notify the Broker within 72 hours of an executed listing agreement, a fully executed purchase agreement, executed lease agreement, or executed referral agreement by the use of an online form located on the Pacific Home Brokers company website www.pacifichomebroker.com under the agent login tab.
TRANSACTION COORDINATION: Contractor can coordinate their own file or use a transaction coordinator of their choice. Contractor’s transaction coordinator may liaison with Broker support. If Contractor would like to use the Broker’s transaction coordinator, a $395.00 fee will be charged payable from the Contractor’s commissions. An additional $150.00 fee will be added for dual sided transactions. Contractor must turn in required paperwork outlined on the Broker checklist via support at firstname.lastname@example.org for all transactions.
NOTICES: Any notice required to be given under the provisions of this agreement other than Activity Reporting shall be given in writing. The following shall be acceptable forms of delivery: 1) By registered or certified mail enclosing to the address set forth under the respective signatures herein below, or to such other address as either party hereto shall designate by such notice. Any such notice given hereunder shall be effective as of the time it is deposited in the United States Mails. 2) Via Email. Email notice shall only be valid if the receiver acknowledges receipt of such email with a reply email. The effective time shall be the time the receiver sends the reply acknowledgement.
WAIVER: Waiver of, or failure to strictly enforce, by the parties hereto any of the provisions of this agreement or any default hereunder shall not constitute or operate as a waiver of such parties’ right to demand strict performance of this or any other provision hereof or any other default hereunder.
AGREEMENTS AND AMENDMENTS: This agreement along with the terms in the Company Policy and Procedures Manual, embodies the entire agreement between the parties hereto with relation to the subject matter hereof, and supersedes any previous agreement or understanding, whether verbal or otherwise, with relation hereto. This agreement may not be amended, changed, revised, or altered except by an instrument in writing signed by all of the parties hereto. The Company Policy and Procedures Manual may be updated and revised. Contractor is responsible to adhere to the most recent publication of the Company Policy and Procedures Manual readily available online in our agent resources located on the Company website www.pacifichomebroker.com – agent login tab.
SEVERABILTYEach paragraph of this agreement shall be and remain separate from and independent of and severable from all and any other paragraphs herein except where otherwise indicated by the context of the agreement. The decision or declaration that one or more of the paragraphs are null and void shall have no effect on the remaining paragraphs of this agreement.
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Signed by Pacific Home Brokers
Signed On: March 12, 2019
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Document Name: Agent and DRE Loan Officer Contract
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