Nonuniform allocation rates in SEP

A small employer (non-profit) has two employees...the executive director (an HCE) and the president (a NHCE because he only works part-time).  The HCE'a employment contract stipulates that she will receive a $40,000 annual contribution to the SEP in addition to her salary. The NHCE's employment contract stipulates that his annual compensation amount is inclusive of any contribution required to be made to the SEP. 

While the NHCE's salary and SEP contribution total the annual 2024 compensation package, because of miscalculations the NHCE's contribution is a larger percentage of his salary than the HCE's.  The usual self-correction under EPCRS would be for an additional contribution to be made to the participant receiving the lower percentage contribution.  That would mean giving the HCE a larger contribution, which is in contravention of her employment contract.  The NHCE (president) is okay with withdrawing the excess percentage contribution from his IRA by 4/15 and taking it into income.  I'm hesitant to go that route as it seems to be against EPCRS.

Since the operational error is in favor of the NHCE (i.e., receiving a larger contribution than the HCE) can it be left alone?  Or does the simple violation of a nonuniform allocation dictate that a correction is necessary?  And if a correction is needed, must the HCE receive an additional contribution (and perhaps adjust compensation or contribution in 2025)?

Thanks for all comments.

I would think you make the SEP correct by increasing the HCE.  Does the HCE have to get EXACTLY 40,000 or can it be inferred to provide her AT LEAST 40,000 ?

The contract is specific that the contribution will be $40,000 annually.  If the additional funds are deposited now into her IRA, I will suggest that either her salary or SEP contribution be adjusted downward for 2025 and that she address this with the board.

Thanks.

Doesn't the SEP say everyone gets the same percentage of compensation?

Yes.  That's why a correction is needed.  But do they increase the contribution to the HCE as an operational error, or do they treat this as an excess amount/excess allocation to the NHCE and pursuant to RP 2021-30 make a distribution to the NHCE as allowed for SEPs?  Does the plan sponsor have a choice under EPCRS?