Preview
FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022
EXHIBIT L
FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022
PEO Client Service Agreement
Employer Organization Client Service Agreement (the "Agreement"),
This Professional (PEO)
(the "Effective is and between County Agency Inc, a New
dated as of Oct 01, 2006 Date"), by
8th
York corporation, with offices located at 129 South StBrooklyn NY 11211, itssuccessors,
Tov Management Corp. , with offices located at 168
and assigns (the "PEO Provider") and
Hooper St Brooklyn NY 11211 (the "Client").
of the Services. The parties agree to enter into an arrangement
1. Relationship Parties;
provide human resources-related services to Client as a co-employer of
for PEO Provider to
Client's employees. For purposes of services under this arrangement, PEO Provider is
providing
as the Administrative Employer and agrees that itis a co-employer for purposes of
designated
out the responsibilities described in Section 2 of this Agreement (hereafter "Services").
carrying
Client is designated as the Work Site Employer and agrees that itis a co-employer for purposes
of out the responsibilities described in Section 3 of this Agreement. Client's employees
carrying
are referred to as Work Site Employees (WSEs) throughout this Agreement.
1.1 Not a Certified PEO Provider. PEO Provider is not a certified PEO provider
covered 26 U.S.C. 3511. in this Agreement alters Client's liability for federal
by § Nothing
employment taxes on remuneration remitted by PEO Provider to the employees covered by
this Agreement. PEO Provider is certified under the State of New York (NY Lab L § 922).
1.2 Nothing contained herein shall (i) obligate PEO Provider or any affiliate to an
exclusive relationship with Client; or (ii) restrict or preclude PEO Provider or any affiliate
from contracting with any competitor of Client [subject to PEO Provider's obligations of
confidentiality and non-use related to Client Confidential Information). Both parties
acknowledge that PEO Provider's business operation is to enter into agreements similar to
this Agreement with other persons or entities and such action does not necessitate the
obtaining of approval from, nor notification to Client.
2. Rights and Responsibilities of PEO Provider.
PEO Provider assumes full responsibility, as the Administrative Employer of WSEs, for the
duties described in this Section 2:
2.1 Payment of wages, as reported by Client, through PEO Provider's payroll,
including the following from which PEO Provider will make all required deductions and
withholdings under applicable federal, state, and local laws:
(a) salary or other base pay,
(b) commission,
(c) bonuses,
(d) overtime pay,
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(e) vacation pay,
(f) sick time pay,
(g) paid time off,
(h) paid leaves of absence, and
(i) severance.
2.2 Reporting and remitting payroll taxes, in compliance with all federal and state
tax requirements on payroll wages paid under this Agreement.
2.3 Providing and administering health and welfare benefits through PEO
Provider-sponsored plans, in compliance with applicable federal and state laws, and subject
to eligibility requirements. These employee benefits are described in the attached Employee
Benefits Addendum.
2.4 Compliance with applicable requirements of the Affordable Care Act (ACA)
(that is,the Patient Protection and Affordable Care Act (PPACA), as amended by the Health
Care and Education Reconciliation Act of 2010 (HCERA)).
2.5 Compliance with requirements of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA), the Uniformed Services Employment and
Reemployment Rights Act of 1994, and the Health Insurance Portability and Accountability
Act of 1996 (HIPAA).
2.6 Providing a Section 401(k) plan or other retirement plan.
workers'
2.7 Providing compensation insurance coverage that covers the WSEs, as
workers'
well as processing and defending all compensation claims.
2.8 Processing and defending unemployment claims.
2.9 Providing Client with allemployee-related policies, including an Employee
Handbook (ifany), that comply with federal, state, and local laws in all locations where
Client has employees. PEO Provider agrees that itwill ensure the Employee Handbook (if
any) and all employee-related policies are reasonably timely updated, as necessary, due to
changes in the law. If requested, PEO Provider agrees to make any stylistic changes to
customize the Employee Handbook and employee-related policies to better reflect Client's
culture.
2.10 Training employees on compliance with workplace policies, including those
that may be required by law.
2.11 Providing a worksite safety program, including training of WSEs.
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2.12 Maintaining all employee-related records, as be required federal and
may by
state laws.
2.13 Managing and tracking employee leaves of absence, as be required
may by
federal, state, and local law.
2.14 PEO Provider and Client are jointly responsible for compliance with all
applicable employment laws, including, but not limited to the federal laws, and
following
their state or local equivalents, all as amended:
(a) Title VII of the Civil Rights Act of 1964 (Title VII),
(b) Age Discrimination in Employment Act (ADEA),
(c) Americans with Disabilities Act (ADA),
(d) Fair Labor Standards Act (FLSA),
(e) Family and Medical Leave Act (FMLA),
(f) Section 503 of the Rehabilitation Act,
(g) Genetic Information Nondiscrimination Act (GINA),
(h) Uniformed Services Employment and Reemployment Rights Act (USERRA),
(i) Occupational Safety and Health Act (OSH Act), and
(j) immigration laws, including the Immigration Reform and Control Act (IRCA).
2.15 PEO Provider and Client agree to accurately inform each other if they have
knowledge of any actual or potential employment-related claim regarding the WSEs,
including complaints (oral or written), charges, incidents, allegations, lawsuits, government
investigations or audits, or change in employee status.
2.16 Making all required payments of withholding taxes to state and federal
authorities for allWSEs.
2.17 Providing W-2s and all tax reporting documents, both federal and state, for all
WSEs.
2.18 PEO Provider shall provide a representative to consult with Client or its
designee with regard to adjustments in Client's service needs. Client shall continue to retain
all rights to make decisions with respect to all issues that concern proper standards.
3. Rights and Responsibilities of Client.
Client agrees, as the Work Site Employer, to be responsible for the following duties
described in this Section 3:
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3.1 Client shall have sole responsibility for the day-to-day control and supervision
of WSEs, as well as hiring, firing, disciplining, or promoting WSEs.
3.2 Properly classify employees as exempt or non-exempt under applicable wage
and hour laws.
3.3 Maintain accurate records regarding time worked by WSEs and timely transmit
compensation payment information to PEO Provider for each workweek on a weekly basis,
including:
(a) wages, including whether salaried or hourly, and regular rate of pay,
(b) overtime,
(c) commissions,
(d) bonuses,
(e) vacation pay,
(f) sick pay,
(g) paid time off,
(h) paid leaves of absence, and
(i) severance payments.
3.4 Timely report to PEO Provider any changes in its workforce, such as
employees hired or terminated, and any changes in salary, hour, wages, or other
compensation.
3.5 Provide and administer employee benefits not provided by PEO Provider,
including all equity compensation plans, programs, and arrangements that provide for grants
of stock options, restricted stock, performance awards, or other similar awards.
3.6 Maintain licenses that may be required of any WSEs.
3.7 Provide a safe work environment, in compliance with the OSH Act, and timely
report any work-related injuries to PEO Provider.
3.8 It shall be the responsibility of Client to ensure that all WSEs are in
compliance with federal, state, and local laws, rules, and regulations as to education,
licensing, training, medical examination, and background investigations and other
requirements. Client shall maintain such direction and control over the WSEs as is necessary
to conduct the Client's business
4. Term. This Agreement shall commence as of the Effective Date and, unless sooner
terminated pursuant to Section 6, shall continue for a period of 10 years, after which itwill
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automatically renew for additional 10 year renewal terms unless either party gives at least thirty
30 days written notice of non-renewal prior to end of the then-current term.
5. Fees; Payment Terms.
5.1 [Setup Fees. Client agrees to pay a setup fee for expenses associated with
enrolling WSEs into PEO Provider's services, in the amount specified in Exhibit A.
Subsequently hired employees who are added in PEO Provider's services are also subject to
the setup fee.]
5.2 Service Fees. In consideration of the provision of the services by PEO Provider
and the rights granted to Client under this Agreement, Client shall pay the fees set forth in
Exhibit A.
5.3 Payment Terms. PEO Provider shall issue invoices to Client, which shall be
due and payable [upon receipt/within thirty (30) days after Client receives the invoice All
payments hereunder shall be in US dollars and made by check or wire transfer.
6. Termination; Effect of Termination.
6.1 Either party, in its sole discretion, may terminate this Agreement, in whole or
days'
in part, at any time without cause, by providing thirty (30) prior written notice to the
other party. On the termination of this Agreement for any reason, the WSEs will remain
employees of Client as the initial employer.
6.2 Either party may terminate this Agreement upon written notice to the other
party: (1) due to any material breach or material default of this Agreement by a party and
such default continues for a period of forty five business days after the other party delivers
written notice to the breaching party reasonably detailing the breach or default; (2) in the
event that a party files a petition in bankruptcy or proceedings in bankruptcy are instituted
against it,or any court assumes jurisdiction of such party and itsassets pursuant to
proceedings under any bankruptcy or reorganization act, or a receiver is appointed for the
assets of the party, or if the party makes an assignment for the benefit of creditors; or (3) if a
party otherwise has a reasonably and good belief that the party is insolvent or otherwise
financially unstable.
6.3 The rights and obligations of the parties set forth in this Section 6.3 and
Section 7, Section 8, Section 9, Section 11, Section 12, Section 13, and Error! Bookmark
not defined.Error! Reference source not found., and any right or obligation of the parties
in this Agreement which, by itsnature, should survive termination or expiration of this
Agreement, will survive any such termination or expiration of this Agreement.
7. Intellectual Property Rights; Ownership.
7.1 Client is,and shall be, the sole and exclusive owner of all right, title,and
interest in and to the materials provided by PEO Provider pursuant to its obligations under
this Agreement (hereafter "Deliverables"), including all intellectual property rights therein.
PEO Provider agrees, and will cause its employees (meaning those employees employed by
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PEO Provider to provide services under this Agreement, who are hereafter referred to as
"PEO Provider Personnel") to agree, that with respect to any Deliverables that may qualify
hire"
as "work made for as defined in 17 U.S.C. § 101, such Deliverables are hereby deemed
hire"
a "work made for for Client. To the extent that any of the Deliverables do not
constitute a "work made for hire", PEO Provider hereby irrevocably assigns, and shall cause
PEO Provider Personnel to irrevocably assign to Client, in each case without additional
consideration, allright, title, and interest throughout the world in and to the Deliverables,
including all intellectual property rights therein.
7.2 Upon the reasonable request of Client, PEO Provider shall, and shall cause
PEO Provider Personnel to, promptly take such further actions, including execution and
delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to
prosecute, register, perfect, or record its rights in or to any Deliverables.
8. Confidential Information. Both parties may be given access to or acquire information
which is proprietary or confidential to the other party and its affiliated companies, clients, and
customers ("Confidential Information"). Any and all such information obtained by either party or
the WSEs shall be deemed to be confidential and proprietary information. Both parties agree to
hold such information in strict confidence and not to disclose such information to third parties or
to use such information for any purposes whatsoever other than the providing of Services under
this Agreement.
Confidential Information does not include any information (a) which is or becomes part of
the public domain through no fault of either party; (b) which the party can show was known
to the party prior to disclosure hereunder and is not subject to another confidentiality
obligation; (c) which is lawfully obtained by a party from a third party with the right to do
so; or (d) is required to be disclosed pursuant to a legal demand from a court of competent
jurisdiction or other legal authority provided that a party gives the other party prompt
written notice thereof and an opportunity to seek a protective order. In the event a party is
unable to secure such a protective order, the other party shall only disclose the specific
Confidential Information legally required to be disclosed.
9. Representations and Warranties.
9.1 Each party represents and warrants to the other party that:
(a) itis duly organized, validly existing, and in good standing as a corporation or other
entity as represented herein under the laws and regulations of itsjurisdiction of incorporation,
organization, or chartering,
(b) ithas the full right, power, and authority to enter into this Agreement, to grant any
rights and licenses granted hereunder, and to perform its obligations hereunder,
(c) the execution of this Agreement by itsrepresentative whose signature is set forth at
the end hereof has been duly authorized by all necessary corporate action of the party, and
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(d) when executed and delivered such party, this Agreement will constitute the
by legal,
valid, and binding obligation of such party, enforceable against such in accordance with its
party
terms.
9.2 PEO Provider represents and warrants to Client that:
(a) itshall perform the Services personnel of standard and
using skill,experience,
qualifications and in a professional and workmanlike manner in accordance with customary
industry standards for similar services and shall devote adequate resources to meet itsobligations
under this Agreement,
(b) itis in compliance with, and shall perform the Services in compliance all
with,
applicable laws, including PEO-specific laws in states where WSEs are located.
9.3 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS Section 9: (A)
EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS,
IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT; AND (B)
PEO PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
10. Indemnification.
10.1 PEO Provider shall defend, indemnify, and hold harmless Client, its affiliates,
and its officers, directors, employees, agents, successors, and permitted assigns (each, a
"Client Indemnitee") from and against any and all claims, demands, damages (including
liquidated, punitive, and compensatory), actions in state or federal courts or before
attorneys'
administrative agencies, losses and liabilities, costs, and expenses (including fees),
and monetary fines or penalties assessed by any administrative agency (hereafter "Actions")
arising out of or resulting from:
(a) bodily injury, death of any person, or damage to real or tangible, personal property
resulting from the willful, fraudulent, or grossly negligent acts or omissions of PEO Provider or
PEO Provider Personnel; and
(b) PEO Provider's material breach of any representation, warranty, or obligation of
PEO Provider set forth in this Agreement, including PEO Provider's failure to comply with all
employment laws in connection with the Services provided by PEO Provider under this Agreement.
10.2 Client shall defend, indemnify, and hold harmless PEO Provider and PEO
Provider's affiliates and its officers, directors, employees, agents, successors, and permitted
assigns from and against any and allActions arising out of or resulting from:
(a) bodily injury, death of any person, or damage to real or tangible, personal property
resulting from the grossly negligent or willful acts or omissions of Client; and
(b) Clients material breach of any representation, warranty, or obligation of Client in
this Agreement/representation or warranty set forth in Section 9.1 of this Agreement.
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indemnification hereunder shall promptly notify the
10.3 The party seeking
of Action and cooperate with the indemnifying party at
indemnifying party in writing any
the party's sole cost and expense. The indemnifying party shall immediately
indemnifying
defense and investigation of such Action and shall counsel of its
take control of the employ
defend the at the party's sole cost and expense. The
choice to handle and same, indemnifying
party's failure to perform obligations under this Section 10.3 shall not
indemnified any
of itsobligations under this Section 10.3 except to the extent
relieve the indemnifying party
that can demonstrate that ithas been prejudiced as a result
the indemnifying party materially
of such failure. The indemnified participate in and observe the proceedings at its
party may
own cost and expense.
11. Limitation of Liability.
11.1 EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR
ANY LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES
WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE
WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, IN NO EVENT
WILL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE
AGGREGATE AMOUNTS PAID OR PAYABLE TO PEO PROVIDER [PURSUANT TO
THIS AGREEMENT.
11.3 The exclusions and limitations in Section 11.1 and Section 11.2 shall not apply
to:
(a) damages or other liabilities arising out of or to a party's failure to
relating comply
with its obligations under Section 7 (Intellectual Rights;
Property Ownership);
(b) damages or other liabilities arising out of or relating to a party's failure to comply
with its obligations under Section 8 (Confidential Information);
(c) a party's indemnification obligations under Section 10 (Indemnification);
(d) damages or other liabilities arising out of or to a party's gross
relating negligence,
willful misconduct, or intentional acts;
(e) death or bodily injury or damage to real or tangible personal from
property resulting
a party's negligent acts or omissions;
(f) damages or liabilities to the extent covered a party's and
by insurance;
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attorneys' in accordance with Section
fees and court costs
a party's obligation to pay
(g)
14.12.
12. Insurance.
PEO Provider shall procure
times the Term of this Agreement,
12.1 At all during
types and amounts of
sole cost and expense, at least the following
and maintain, at its
insurance coverage:
per occurrence
Commercial General with limits no less than $[AMOUNT]
(a) Liability
damage and products and
injury and property
in the aggregate[, including bodily
and $[AMOUNT]
which will include contractual liability
completed operations and advertising liability], policy
activities of PEO Provider under this Agreement;
coverage insuring the
Workers' greater of: $[AMOUNT]; or
Compensation with limits no less than the (i)
(b)
minimum amount required by applicable law;
(ii) the
qualified retirement plan or other employee
ERISA bond covering the any
(c) fidelity
Employee Retirement Income Security Action of
benefit plan as required Section 412 of the
by
ERISA bond
1974 in an amount determined under DOL Reg. §
2580.412-11. The fidelity
(ERISA)
shall the requirements of ERISA Section 412 and the regulations;
satisfy
Automobile with limits no less than $[AMOUNT], combined
(d) Commercial Liability
single limit; and
Errors and Omissions/Professional with limits no less than $[AMOUNT]
(e) Liability
per occurrence and $[AMOUNT] in the aggregate.
12.2 Except for the ERISA bond required in Section 12.1(c), allinsurance
fidelity
policies required pursuant to this Section 12 shall:
be issued insurance companies [reasonably acceptable to Client/with a Best's
(a) by
of no less than [A-VII/[OTHER RATING]]/reasonably acceptable to Client with a Best's
Rating
Rating of no less than [A-VII/[OTHER RATING]]];
days'
(b) provide that such insurance carriers give Client at least 30 prior written notice
of cancellation or non-renewal of policy coverage; provided that, prior to such cancellation, PEO
Provider shall have new insurance policies in place that meet the requirements of this Section 12;
(c) waive any right of subrogation of the insurers against Client [or any of its Affiliates];
(d) provide that such insurance be primary insurance and any similar insurance in the
name of and/or for the benefit of Client shall be excess and non-contributory; and
(e) name Client and Client's Affiliates, including, in each case, allsuccessors and
permitted assigns, as additional insureds.
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12.3 Upon the written request of Client, PEO Provider shall provide Client with
copies of the certificates of insurance and endorsements for allinsurance coverage
policy
required by this Section 12, and shall not do to invalidate such insurance. This
anything
Section 12 shall not be construed in manner as or the
any waiving, restricting, limiting
liability of either party for obligations imposed under this Agreement but not
any (including
limited to,any provisions a hereto to and hold the other
requiring party indemnify, defend,
harmless under this Agreement).
13. Non-Solicitation.
13.1 During the Term of this Agreement and for a period of months
(12) thereafter,
neither party shall, directly or indirectly, in manner solicit or induce for employment
any
any person who performed any work under this Agreement who is then employed or
by
contracting to provide services for the other party. A general advertisement or notice of a job
listing or opening or other similar general publication of a job search or to fill
availability
employment positions, including on the internet, shall not be construed as a solicitation or
inducement for the purposes of this Section 13.1, and the hiring of any such employees or
independent contractor who freely responds thereto shall not be a breach of this Section
13.1.
14. Miscellaneous
14.1 All notices, requests, consents, claims, demands, waivers, and other
communications hereunder shall be in writing and shall be deemed to have been given: (a)
when delivered by hand (with written confirmation of receipt); (b) when received by the
addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the
date sent by facsimile (with confirmation of transmission) ifsent during normal business
hours of the recipient, and on the next business day ifsent after normal business hours of the
recipient; or (d) on the third (3rd) day after the date mailed, by certified or registered mail,
return receipt requested, postage prepaid. Such communications must be sent to the
respective parties at the addresses indicated below (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 14.1).
If to PEO Provider: County Agency Inc.
Facsimile: 718-534-4386
Attention: Harold Weber
If to Client: Tov Management Corp.
Facsimile: 718-384-0761
"include," "includes,"
14.2 For purposes of this Agreement: (a) the words and
"including" limitation;"
shall be deemed to be followed by the words "without (b) the word
"or" "herein," "hereof," "hereby," "hereto,"
isnot exclusive; and (c) the words and
"hereunder"
refer to this Agreement as a whole. Unless the context otherwise requires,
references herein: (x) to Sections, Schedules, Exhibits, and Statements of Work refer to the
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Sections of, and Schedules and Exhibits attached to this Agreement; (y) to an agreement,
instrument, or other document means such agreement, instrument, or other document as
amended, supplemented, and modified from time to time to the extent permitted by the
provisions thereof; and (z) to a statute means such statute as amended from time to time and
includes any successor legislation thereto and any regulations promulgated thereunder. This
Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting an instrument or causing any
instrument to be drafted. The Schedules and Exhibits referred to herein shall be construed
with, and as an integral part of, this Agreement to the same extent as if they were set forth
verbatim herein.
14.3 Force Majeure. Neither party will be liable for delays or failure to perform
hereunder due to causes beyond itsreasonable control including, but not limited to, fire;
explosion; flood or other natural catastrophe; governmental legislation, acts, orders, or
regulation; pandemic or other government declared health emergency affecting the ability to
perform the Services safely (for the purpose of clarity, this will only apply to concrete,
government declared pandemics or epidemics that result in government mandated
restrictions affecting the Services to be performed, not to cases of mass hysteria or personal
aversion, as long as regular safe travel options remain and Service locations remain open);
strikes or labor disputes or difficulties; in each case to the extent not occasioned by the fault
or negligence of the delayed party ("Force Majeure Event"). Any such excuse for delay will
last only as long as the Force Majeure Event remains beyond the reasonable control of the
Preview
FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022 EXHIBIT L FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022 PEO Client Service Agreement Employer Organization Client Service Agreement (the "Agreement"), This Professional (PEO) (the "Effective is and between County Agency Inc, a New dated as of Oct 01, 2006 Date"), by 8th York corporation, with offices located at 129 South StBrooklyn NY 11211, itssuccessors, Tov Management Corp. , with offices located at 168 and assigns (the "PEO Provider") and Hooper St Brooklyn NY 11211 (the "Client"). of the Services. The parties agree to enter into an arrangement 1. Relationship Parties; provide human resources-related services to Client as a co-employer of for PEO Provider to Client's employees. For purposes of services under this arrangement, PEO Provider is providing as the Administrative Employer and agrees that itis a co-employer for purposes of designated out the responsibilities described in Section 2 of this Agreement (hereafter "Services"). carrying Client is designated as the Work Site Employer and agrees that itis a co-employer for purposes of out the responsibilities described in Section 3 of this Agreement. Client's employees carrying are referred to as Work Site Employees (WSEs) throughout this Agreement. 1.1 Not a Certified PEO Provider. PEO Provider is not a certified PEO provider covered 26 U.S.C. 3511. in this Agreement alters Client's liability for federal by § Nothing employment taxes on remuneration remitted by PEO Provider to the employees covered by this Agreement. PEO Provider is certified under the State of New York (NY Lab L § 922). 1.2 Nothing contained herein shall (i) obligate PEO Provider or any affiliate to an exclusive relationship with Client; or (ii) restrict or preclude PEO Provider or any affiliate from contracting with any competitor of Client [subject to PEO Provider's obligations of confidentiality and non-use related to Client Confidential Information). Both parties acknowledge that PEO Provider's business operation is to enter into agreements similar to this Agreement with other persons or entities and such action does not necessitate the obtaining of approval from, nor notification to Client. 2. Rights and Responsibilities of PEO Provider. PEO Provider assumes full responsibility, as the Administrative Employer of WSEs, for the duties described in this Section 2: 2.1 Payment of wages, as reported by Client, through PEO Provider's payroll, including the following from which PEO Provider will make all required deductions and withholdings under applicable federal, state, and local laws: (a) salary or other base pay, (b) commission, (c) bonuses, (d) overtime pay, FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022 (e) vacation pay, (f) sick time pay, (g) paid time off, (h) paid leaves of absence, and (i) severance. 2.2 Reporting and remitting payroll taxes, in compliance with all federal and state tax requirements on payroll wages paid under this Agreement. 2.3 Providing and administering health and welfare benefits through PEO Provider-sponsored plans, in compliance with applicable federal and state laws, and subject to eligibility requirements. These employee benefits are described in the attached Employee Benefits Addendum. 2.4 Compliance with applicable requirements of the Affordable Care Act (ACA) (that is,the Patient Protection and Affordable Care Act (PPACA), as amended by the Health Care and Education Reconciliation Act of 2010 (HCERA)). 2.5 Compliance with requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), the Uniformed Services Employment and Reemployment Rights Act of 1994, and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). 2.6 Providing a Section 401(k) plan or other retirement plan. workers' 2.7 Providing compensation insurance coverage that covers the WSEs, as workers' well as processing and defending all compensation claims. 2.8 Processing and defending unemployment claims. 2.9 Providing Client with allemployee-related policies, including an Employee Handbook (ifany), that comply with federal, state, and local laws in all locations where Client has employees. PEO Provider agrees that itwill ensure the Employee Handbook (if any) and all employee-related policies are reasonably timely updated, as necessary, due to changes in the law. If requested, PEO Provider agrees to make any stylistic changes to customize the Employee Handbook and employee-related policies to better reflect Client's culture. 2.10 Training employees on compliance with workplace policies, including those that may be required by law. 2.11 Providing a worksite safety program, including training of WSEs. FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022 2.12 Maintaining all employee-related records, as be required federal and may by state laws. 2.13 Managing and tracking employee leaves of absence, as be required may by federal, state, and local law. 2.14 PEO Provider and Client are jointly responsible for compliance with all applicable employment laws, including, but not limited to the federal laws, and following their state or local equivalents, all as amended: (a) Title VII of the Civil Rights Act of 1964 (Title VII), (b) Age Discrimination in Employment Act (ADEA), (c) Americans with Disabilities Act (ADA), (d) Fair Labor Standards Act (FLSA), (e) Family and Medical Leave Act (FMLA), (f) Section 503 of the Rehabilitation Act, (g) Genetic Information Nondiscrimination Act (GINA), (h) Uniformed Services Employment and Reemployment Rights Act (USERRA), (i) Occupational Safety and Health Act (OSH Act), and (j) immigration laws, including the Immigration Reform and Control Act (IRCA). 2.15 PEO Provider and Client agree to accurately inform each other if they have knowledge of any actual or potential employment-related claim regarding the WSEs, including complaints (oral or written), charges, incidents, allegations, lawsuits, government investigations or audits, or change in employee status. 2.16 Making all required payments of withholding taxes to state and federal authorities for allWSEs. 2.17 Providing W-2s and all tax reporting documents, both federal and state, for all WSEs. 2.18 PEO Provider shall provide a representative to consult with Client or its designee with regard to adjustments in Client's service needs. Client shall continue to retain all rights to make decisions with respect to all issues that concern proper standards. 3. Rights and Responsibilities of Client. Client agrees, as the Work Site Employer, to be responsible for the following duties described in this Section 3: FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022 3.1 Client shall have sole responsibility for the day-to-day control and supervision of WSEs, as well as hiring, firing, disciplining, or promoting WSEs. 3.2 Properly classify employees as exempt or non-exempt under applicable wage and hour laws. 3.3 Maintain accurate records regarding time worked by WSEs and timely transmit compensation payment information to PEO Provider for each workweek on a weekly basis, including: (a) wages, including whether salaried or hourly, and regular rate of pay, (b) overtime, (c) commissions, (d) bonuses, (e) vacation pay, (f) sick pay, (g) paid time off, (h) paid leaves of absence, and (i) severance payments. 3.4 Timely report to PEO Provider any changes in its workforce, such as employees hired or terminated, and any changes in salary, hour, wages, or other compensation. 3.5 Provide and administer employee benefits not provided by PEO Provider, including all equity compensation plans, programs, and arrangements that provide for grants of stock options, restricted stock, performance awards, or other similar awards. 3.6 Maintain licenses that may be required of any WSEs. 3.7 Provide a safe work environment, in compliance with the OSH Act, and timely report any work-related injuries to PEO Provider. 3.8 It shall be the responsibility of Client to ensure that all WSEs are in compliance with federal, state, and local laws, rules, and regulations as to education, licensing, training, medical examination, and background investigations and other requirements. Client shall maintain such direction and control over the WSEs as is necessary to conduct the Client's business 4. Term. This Agreement shall commence as of the Effective Date and, unless sooner terminated pursuant to Section 6, shall continue for a period of 10 years, after which itwill FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022 automatically renew for additional 10 year renewal terms unless either party gives at least thirty 30 days written notice of non-renewal prior to end of the then-current term. 5. Fees; Payment Terms. 5.1 [Setup Fees. Client agrees to pay a setup fee for expenses associated with enrolling WSEs into PEO Provider's services, in the amount specified in Exhibit A. Subsequently hired employees who are added in PEO Provider's services are also subject to the setup fee.] 5.2 Service Fees. In consideration of the provision of the services by PEO Provider and the rights granted to Client under this Agreement, Client shall pay the fees set forth in Exhibit A. 5.3 Payment Terms. PEO Provider shall issue invoices to Client, which shall be due and payable [upon receipt/within thirty (30) days after Client receives the invoice All payments hereunder shall be in US dollars and made by check or wire transfer. 6. Termination; Effect of Termination. 6.1 Either party, in its sole discretion, may terminate this Agreement, in whole or days' in part, at any time without cause, by providing thirty (30) prior written notice to the other party. On the termination of this Agreement for any reason, the WSEs will remain employees of Client as the initial employer. 6.2 Either party may terminate this Agreement upon written notice to the other party: (1) due to any material breach or material default of this Agreement by a party and such default continues for a period of forty five business days after the other party delivers written notice to the breaching party reasonably detailing the breach or default; (2) in the event that a party files a petition in bankruptcy or proceedings in bankruptcy are instituted against it,or any court assumes jurisdiction of such party and itsassets pursuant to proceedings under any bankruptcy or reorganization act, or a receiver is appointed for the assets of the party, or if the party makes an assignment for the benefit of creditors; or (3) if a party otherwise has a reasonably and good belief that the party is insolvent or otherwise financially unstable. 6.3 The rights and obligations of the parties set forth in this Section 6.3 and Section 7, Section 8, Section 9, Section 11, Section 12, Section 13, and Error! Bookmark not defined.Error! Reference source not found., and any right or obligation of the parties in this Agreement which, by itsnature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. 7. Intellectual Property Rights; Ownership. 7.1 Client is,and shall be, the sole and exclusive owner of all right, title,and interest in and to the materials provided by PEO Provider pursuant to its obligations under this Agreement (hereafter "Deliverables"), including all intellectual property rights therein. PEO Provider agrees, and will cause its employees (meaning those employees employed by FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022 PEO Provider to provide services under this Agreement, who are hereafter referred to as "PEO Provider Personnel") to agree, that with respect to any Deliverables that may qualify hire" as "work made for as defined in 17 U.S.C. § 101, such Deliverables are hereby deemed hire" a "work made for for Client. To the extent that any of the Deliverables do not constitute a "work made for hire", PEO Provider hereby irrevocably assigns, and shall cause PEO Provider Personnel to irrevocably assign to Client, in each case without additional consideration, allright, title, and interest throughout the world in and to the Deliverables, including all intellectual property rights therein. 7.2 Upon the reasonable request of Client, PEO Provider shall, and shall cause PEO Provider Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables. 8. Confidential Information. Both parties may be given access to or acquire information which is proprietary or confidential to the other party and its affiliated companies, clients, and customers ("Confidential Information"). Any and all such information obtained by either party or the WSEs shall be deemed to be confidential and proprietary information. Both parties agree to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever other than the providing of Services under this Agreement. Confidential Information does not include any information (a) which is or becomes part of the public domain through no fault of either party; (b) which the party can show was known to the party prior to disclosure hereunder and is not subject to another confidentiality obligation; (c) which is lawfully obtained by a party from a third party with the right to do so; or (d) is required to be disclosed pursuant to a legal demand from a court of competent jurisdiction or other legal authority provided that a party gives the other party prompt written notice thereof and an opportunity to seek a protective order. In the event a party is unable to secure such a protective order, the other party shall only disclose the specific Confidential Information legally required to be disclosed. 9. Representations and Warranties. 9.1 Each party represents and warrants to the other party that: (a) itis duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws and regulations of itsjurisdiction of incorporation, organization, or chartering, (b) ithas the full right, power, and authority to enter into this Agreement, to grant any rights and licenses granted hereunder, and to perform its obligations hereunder, (c) the execution of this Agreement by itsrepresentative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party, and FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022 (d) when executed and delivered such party, this Agreement will constitute the by legal, valid, and binding obligation of such party, enforceable against such in accordance with its party terms. 9.2 PEO Provider represents and warrants to Client that: (a) itshall perform the Services personnel of standard and using skill,experience, qualifications and in a professional and workmanlike manner in accordance with customary industry standards for similar services and shall devote adequate resources to meet itsobligations under this Agreement, (b) itis in compliance with, and shall perform the Services in compliance all with, applicable laws, including PEO-specific laws in states where WSEs are located. 9.3 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS Section 9: (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT; AND (B) PEO PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. 10. Indemnification. 10.1 PEO Provider shall defend, indemnify, and hold harmless Client, its affiliates, and its officers, directors, employees, agents, successors, and permitted assigns (each, a "Client Indemnitee") from and against any and all claims, demands, damages (including liquidated, punitive, and compensatory), actions in state or federal courts or before attorneys' administrative agencies, losses and liabilities, costs, and expenses (including fees), and monetary fines or penalties assessed by any administrative agency (hereafter "Actions") arising out of or resulting from: (a) bodily injury, death of any person, or damage to real or tangible, personal property resulting from the willful, fraudulent, or grossly negligent acts or omissions of PEO Provider or PEO Provider Personnel; and (b) PEO Provider's material breach of any representation, warranty, or obligation of PEO Provider set forth in this Agreement, including PEO Provider's failure to comply with all employment laws in connection with the Services provided by PEO Provider under this Agreement. 10.2 Client shall defend, indemnify, and hold harmless PEO Provider and PEO Provider's affiliates and its officers, directors, employees, agents, successors, and permitted assigns from and against any and allActions arising out of or resulting from: (a) bodily injury, death of any person, or damage to real or tangible, personal property resulting from the grossly negligent or willful acts or omissions of Client; and (b) Clients material breach of any representation, warranty, or obligation of Client in this Agreement/representation or warranty set forth in Section 9.1 of this Agreement. FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022 indemnification hereunder shall promptly notify the 10.3 The party seeking of Action and cooperate with the indemnifying party at indemnifying party in writing any the party's sole cost and expense. The indemnifying party shall immediately indemnifying defense and investigation of such Action and shall counsel of its take control of the employ defend the at the party's sole cost and expense. The choice to handle and same, indemnifying party's failure to perform obligations under this Section 10.3 shall not indemnified any of itsobligations under this Section 10.3 except to the extent relieve the indemnifying party that can demonstrate that ithas been prejudiced as a result the indemnifying party materially of such failure. The indemnified participate in and observe the proceedings at its party may own cost and expense. 11. Limitation of Liability. 11.1 EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 11.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, IN NO EVENT WILL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PEO PROVIDER [PURSUANT TO THIS AGREEMENT. 11.3 The exclusions and limitations in Section 11.1 and Section 11.2 shall not apply to: (a) damages or other liabilities arising out of or to a party's failure to relating comply with its obligations under Section 7 (Intellectual Rights; Property Ownership); (b) damages or other liabilities arising out of or relating to a party's failure to comply with its obligations under Section 8 (Confidential Information); (c) a party's indemnification obligations under Section 10 (Indemnification); (d) damages or other liabilities arising out of or to a party's gross relating negligence, willful misconduct, or intentional acts; (e) death or bodily injury or damage to real or tangible personal from property resulting a party's negligent acts or omissions; (f) damages or liabilities to the extent covered a party's and by insurance; FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022 attorneys' in accordance with Section fees and court costs a party's obligation to pay (g) 14.12. 12. Insurance. PEO Provider shall procure times the Term of this Agreement, 12.1 At all during types and amounts of sole cost and expense, at least the following and maintain, at its insurance coverage: per occurrence Commercial General with limits no less than $[AMOUNT] (a) Liability damage and products and injury and property in the aggregate[, including bodily and $[AMOUNT] which will include contractual liability completed operations and advertising liability], policy activities of PEO Provider under this Agreement; coverage insuring the Workers' greater of: $[AMOUNT]; or Compensation with limits no less than the (i) (b) minimum amount required by applicable law; (ii) the qualified retirement plan or other employee ERISA bond covering the any (c) fidelity Employee Retirement Income Security Action of benefit plan as required Section 412 of the by ERISA bond 1974 in an amount determined under DOL Reg. § 2580.412-11. The fidelity (ERISA) shall the requirements of ERISA Section 412 and the regulations; satisfy Automobile with limits no less than $[AMOUNT], combined (d) Commercial Liability single limit; and Errors and Omissions/Professional with limits no less than $[AMOUNT] (e) Liability per occurrence and $[AMOUNT] in the aggregate. 12.2 Except for the ERISA bond required in Section 12.1(c), allinsurance fidelity policies required pursuant to this Section 12 shall: be issued insurance companies [reasonably acceptable to Client/with a Best's (a) by of no less than [A-VII/[OTHER RATING]]/reasonably acceptable to Client with a Best's Rating Rating of no less than [A-VII/[OTHER RATING]]]; days' (b) provide that such insurance carriers give Client at least 30 prior written notice of cancellation or non-renewal of policy coverage; provided that, prior to such cancellation, PEO Provider shall have new insurance policies in place that meet the requirements of this Section 12; (c) waive any right of subrogation of the insurers against Client [or any of its Affiliates]; (d) provide that such insurance be primary insurance and any similar insurance in the name of and/or for the benefit of Client shall be excess and non-contributory; and (e) name Client and Client's Affiliates, including, in each case, allsuccessors and permitted assigns, as additional insureds. FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022 12.3 Upon the written request of Client, PEO Provider shall provide Client with copies of the certificates of insurance and endorsements for allinsurance coverage policy required by this Section 12, and shall not do to invalidate such insurance. This anything Section 12 shall not be construed in manner as or the any waiving, restricting, limiting liability of either party for obligations imposed under this Agreement but not any (including limited to,any provisions a hereto to and hold the other requiring party indemnify, defend, harmless under this Agreement). 13. Non-Solicitation. 13.1 During the Term of this Agreement and for a period of months (12) thereafter, neither party shall, directly or indirectly, in manner solicit or induce for employment any any person who performed any work under this Agreement who is then employed or by contracting to provide services for the other party. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or to fill availability employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section 13.1, and the hiring of any such employees or independent contractor who freely responds thereto shall not be a breach of this Section 13.1. 14. Miscellaneous 14.1 All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission) ifsent during normal business hours of the recipient, and on the next business day ifsent after normal business hours of the recipient; or (d) on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 14.1). If to PEO Provider: County Agency Inc. Facsimile: 718-534-4386 Attention: Harold Weber If to Client: Tov Management Corp. Facsimile: 718-384-0761 "include," "includes," 14.2 For purposes of this Agreement: (a) the words and "including" limitation;" shall be deemed to be followed by the words "without (b) the word "or" "herein," "hereof," "hereby," "hereto," isnot exclusive; and (c) the words and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Schedules, Exhibits, and Statements of Work refer to the FILED: KINGS COUNTY CLERK 08/10/2022 03:11 PM INDEX NO. 506931/2022 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 08/10/2022 Sections of, and Schedules and Exhibits attached to this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. 14.3 Force Majeure. Neither party will be liable for delays or failure to perform hereunder due to causes beyond itsreasonable control including, but not limited to, fire; explosion; flood or other natural catastrophe; governmental legislation, acts, orders, or regulation; pandemic or other government declared health emergency affecting the ability to perform the Services safely (for the purpose of clarity, this will only apply to concrete, government declared pandemics or epidemics that result in government mandated restrictions affecting the Services to be performed, not to cases of mass hysteria or personal aversion, as long as regular safe travel options remain and Service locations remain open); strikes or labor disputes or difficulties; in each case to the extent not occasioned by the fault or negligence of the delayed party ("Force Majeure Event"). Any such excuse for delay will last only as long as the Force Majeure Event remains beyond the reasonable control of the