CN-680000-EXD98-A1.pdf

AHCA CONTRACT NO. EXD098

AMENDMENT NO. 1

AHCA Contract No. EXD098, Amendment No. 1, Page 1 of 2 April 2020

THIS CONTRACT, entered into between the State of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, hereinafter referred to as the "Agency" and FOLEY & LARDNER, LLP, hereinafter referred to as the "Vendor," is hereby amended as follows:

1. Attachment V, Agency Approved Modifications And Additions To The Agency Standard

Contract, is hereby deleted in its entirety and replaced with Attachment V-A, Agency Approved Modifications And Additions To The Agency Standard Contract, attached hereto and made a part of this Contract. All references in this Contract to Attachment V, shall hereinafter refer to Attachment V-A.

2. Attachment VI, Engagement Letter Agreement, is hereby deleted in its entirety and replaced with Attachment VI-A, Engagement Letter Agreement, attached hereto and made a part of this Contract. All references in this Contract to Attachment VI, shall hereinafter refer to Attachment VI-A.

All provisions not in conflict with this Amendment are still in effect and are to be performed at the level specified in this Contract.

This Amendment and all its attachments are hereby made a part of this Contract.

This Amendment cannot be executed unless all previous Amendments to this Contract have been fully executed.

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

DocuSign Envelope ID: 07138998-1CDD-47BB-84F4-DD1D623D0E11

AHCA CONTRACT NO. EXD098

AMENDMENT NO. 1

AHCA Contract No. EXD098, Amendment No. 1, Page 2 of 2 April 2020

IN WITNESS WHEREOF, the Parties hereto have caused this ten (10) page Amendment to be executed by their officials thereunto duly authorized. This Amendment is not valid until signed and dated by both Parties.

FOLEY & LARDNER, LLP STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION

SIGNED

BY:

SIGNED

BY:

NAME: NAME:

TITLE: TITLE:

DATE: DATE:

SIGNED

BY:

NAME:

General Counsel, TITLE: Approved as to form and legality

DATE:

List of Attachments included as part of this Amendment:

Specify Type Number Description Attachment V-A Agency Approved Modifications and Additions to the Agency Standard Contract (1 Page) Attachment VI-A Engagement Letter Agreement (7 Pages)

8/19/2021

Partner

Robert Hosay

William Roberts

8/23/2021

Secretary

Simone Marstiller

8/23/2021

ATTACHMENT V-A

AGENCY APPROVED MODIFICATIONS AND ADDITIONS

TO THE AGENCY STANDARD CONTRACT

AHCA Contract No. EXD098, Attachment V-A, Page 1 of 1

The following amendments are made to the Agency Standard Contract:

Standard Contract

1. Section I., THE VENDOR HEREBY AGREES, Subsection M., Indemnification, is hereby revised to now include Item 5., as follows:

5. Given the nature of this rulemaking engagement, for purposes of clarity, the Parties expressly agree and acknowledge that no claim of any nature, whether civil, criminal, administrative, or investigative, concerning the rules for licensure standards for neonatal intensive-care units or the development of such rules, including without limitation: rule challenge proceedings; proceedings regarding the interpretation or application of such rules; proceedings arising under Chapter 120, Florida Statutes, that in any way concern such rules; declaratory or injunctive actions regarding such rules; disciplinary matters implicating such rules; other litigation of any nature concerning such rules or their development, validity, meaning, or application; or appeals of any such proceedings, shall be deemed to constitute a claim arising from, relating to, or concerning the acts or omissions of the Vendor within the meaning of Article I, Section M of the Contract (the “Indemnification Clause”), and the Vendor shall not be obligated pursuant to the Indemnification Clause to indemnify and/or defend the Agency against any such claims.

2. Section I., THE VENDOR HEREBY AGREES, Sub-Section N., Insurance, is hereby revised to read:

The Vendor shall secure and maintain Commercial General Liability insurance including bodily injury, property damage, personal & advertising injury and products and completed operations. This insurance will provide coverage for all claims that may arise from the services and/or operations completed under this Contract, whether such services and/or operations are by the Vendor or anyone directly, or indirectly employed by him. The Vendor is responsible for determining the minimum limits of liability necessary to provide reasonable financial protections to the Vendor and the State of Florida under this Contract.

ENGAGEMENT LETTER AGREEMENT

:FOLEY

FOLEY & LARDNER LLP

VIA EMAIL

Florida Agency for Health Care Administration Attention: Mr. James Varnado, General Counsel 2727 Mahan Drive Mail Stop #3 Tallahassee, FL 32308 Jarnes.Vamado@ahca.myflorida.com

Re: Engagement Letter Agreement

Dear Mr. Varnado:

Thank you for selecting Foley & Lardner LLP (the "Firm") to represent the Florida Agency for Health Care Administration (the "Client"). The Firm's representation will be limited to advising the Client solely in connection with a negotiated rulemaking for licensure standards for neonatal intensive-care units (the "Matter"). The purpose of this Engagement Letter and the enclosed Standard Engagement Terms (collectively, the " greement") is to ensure that we have a clear understanding of our working relationship going forward. Upon the conclusion of the Matter, our representation of the Client will terminate. Should the Client retain the Firm for subsequent matters, the parties will enter into a new engagement agreement with terms similar to this Agreement.

Staffing & Fees. Benjamin Grossman and Robert Hosay will have primary responsibility for the Matter and will utilize other Firm attorneys and paraprofessionals when it is appropriate and cost effective.

It is agreed that the Client will compensate the Firm for services, subject to the professional responsibility rules governing our practice, based on the time devoted to the Matter. A blended hourly rate of $375.00 will be utilized for Associates, Senior Counsel and Partners who work on this Matter.

Conflicts of Interest. As we previously have discussed, the Firm has a conflict or potential conflict arising out of a matter in which we provide a broad representation to Praxeis with respect to a specific continuing care retirement community they manage (e.g. corporate, regulatory, etc.)

adverse to the Client. We believe that we can accept this representation if each of you consents. We believe this representation will not be compromised by our relationship with Praxeis and that we will be able to provide competent and diligent representation to the Client in these matters. By signing this letter, the Client is expressly waiving this conflict.

Standard Engagement Terms. By engaging the Firm, the Client agrees to the attached Standard Engagement Terms, and acknowledges that they are fully incorporated into the Agreement

AHCA Contract No. EXD098, Attachment VI-A, Page 1 of 7

ATTACHMENT VI-A

by reference. The Standard Engagement Terms contain several important provisions, including additional billing terms, an agreement to resolve disputes through arbitration, and an advance waiver of conflicts.

For the avoidance of doubt, the Client acknowledges it is a large state agency and the Firm routinely represents other clients in matters adverse to the Client. The Client recognizes the Firm's need to preserve its ability to continue to represent other clients in matters adverse to the Client. Accordingly, as a condition of the Firm's engagement in this Matter, the Client expressly acknowledges and agrees to the advance waiver of con.iicts set forth in the attached "Standard Engagement Terms." The Client further agrees it will not use the Matter as a basis to seek to disqualify the Firm or its lawyers from representing any client in matters adverse to the Client, subject to the provisions of the Standard Engagement Terms and applicable ethics rules.

State Engagement Terms. The Firm acknowledges that the State of Florida requires the following terms to be included in contracts with outside legal counsel, and agrees that, in the event of a conflict with our Standard Engagement Terms, the following terms shall govern:

1. Reimbursement of costs for such items as exhibits, transcripts, travel and witness fees requires prior written authorization by the Agency and shall be reimbursed based upon documented third party vendor charges. The Agency shall not pay for firm surcharges added to third party vendor charges. (Per Department of Financial Services, all third party charges being sought for reimbursement by the firm, must first have been paid by the firm prior to seeking reimbursement)

2. Routine expenses such as phone calls, facsimile transmissions, routine postage, copy work, local travel expenses, printed library materials and local courier, word processing, clerical or secretarial services are overhead and will not be separately compensated.

3. Non-routine office overhead expenses such as, long distance courier services, bulk mailings, bulk third-party copying, blueprints, x-rays, and photographs must be justified to the Agency and shall be reimbursed based on documented paid third-party vendor charges.

If these charges exceed $2,000.00, prior written approval from the Agency must be obtained.

In-house bulk mailings and bulk copying expenses must be supported by usage logs or similar documentation. Firm surcharges are not reimbursable.

4. The Vendor shall only bill the Agency for a proportionate share of the cost of legal research, attending hearings or engaging in client representation of any type, which is also applicable to other clients.

Please confirm the Client's acceptance of this Agreement by returning a counter-signed copy to me by email or mail, or confirming your agreement by reply email. If you do not return a signed copy, but after receiving this Agreement request that the Firm perform work on the Client's behalf, the Client will be deemed to have accepted this Agreement.

AHCA Contract No. EXD098, Attachment VI-A, Page 2 of 7

Please do not hesitate to contact me if you have any questions. We look forward to working with you on the Matter.

AGREED AND ACCEPTED:

Flo · &giQ<:iJ#.}r Health Care Administration

BY: lfv (Authorized ignature)

James Varnado

(Name)

General counsel

(Title)

7/9/2021

(Date)

AHCA Contract No. EXD098, Attachment VI-A, Page 3 of 7

STANDARD ENGAGEMENT TERMS

Agreement. These Standard Engagement Terms are incorporated into the Agreement between the Firm and the Client. The Agreement, which includes these Standard Engagement Terms, will apply to all Client matters handled by the Firm unless otherwise communicated, and will control over any outside counsel or billing guidelines unless agreed to in writing by the Firm.

Fees & Billing. Unless otherwise agreed to in writing, the Firm's fees and costs are not contingent upon the outcome of the matters the Firm handles for the Client.

Any fees and costs the Firm might have discussed previously are estimates only and the Firm cannot guarantee what fees or expenses will be necessary to resolve or to complete the matters handled by the Firm.

The Firm's rates will increase annually.

The Firm will bill for costs and support services, such as photocopies, delivery service, travel, word processing, and court and filing costs. The Firm currently charges $.15 per page for photocopies. Certain support services that involve equipment or staffing or that require payments to third parties may include additional charges that reflect the Firm's internal costs. The Client is responsible for third party costs, such as costs for consultants, appraisers, court reporters, technical support, foreign attorneys, or other parties that render services during the Firm's representation of the Client.

The Firm may make arrangements to have the Client billed directly by these third parties, and the Client will pay such invoices directly to the third parties. If arrangements have not been made, the Firm may pay these third-party invoices on the Client's behalf subject to reimbursement from the Client, and may require that the Client first pay the Firm for such costs. Please note that if the Client requests the Firm to conduct electronic processing, we will charge a fee. Foley's fees associated with data processing and hosting are designed to provide lower overall cost than third party vendors for the Firm's clients and recover the Firm's cost associated with processing, hosting and managing the data, however, in some cases the Firm may make a profit for these services.

In the regular course, the Firm's invoices will be issued and sent to the Client on a monthly basis, and each month's invoice will reflect the services rendered and expenses incurred during the previous month. Payment is due promptly upon receipt. The Firm will assess a late charge of 1 % per month on any outstanding balance older than 60 days. Subject to the rules of professional responsibility, the Firm may cease performing services for the Client until satisfactory arrangements have been made for payments of amounts outstanding in excess of 60 days and the payment of future amounts.

Advance Waiver of Conflicts. The Client expressly and knowingly agrees that the Firm is permitted to represent other clients in matters directly adverse to the Client, including in the following categories of matters, as long as such matters are not substantial!J related to the legal services the Firm provides to the Client (ie, the negotiated rulemaking for licensure standards for neonatal intensive care units):

(i) Counseling, advice, regulatory guidance or interpretation, or negot1at1ons regarding transactions, contracts, agreements, rights, or obligations, or preparation of documents;

(ii) Reimbursement disputes, regulatory enforcement actions, investigations, overpayments, licensing applications, Medicaid matters, and healthcare transactions;

(iii) Arbitration, litigation, or other contested proceedings;

(iv) Advocacy before federal, state, or local governments, or non-judicial governmental entities;

(v) Bankruptcy or insolvency proceedings in which the Client may have an interest; or

(vi) Evaluation of intellectual property rights, such as claim scope analysis, infringement analysis, invalidity analysis, or analysis with respect to any other statutory or non-statutory requirement, participation in connection with contested and uncontested intellectual property proceedings before the U.S. Patent and Trademark Office, or prosecution of non-interfering intellectual property rights in a related technology.

The Client further agrees that the firm can represent other clients adverse to the Client in matters involving obtaining a license under the neonatal intensive-care units licensure standards, on the condition that such matters do not challenge the validity of the rule or require the Firm to use any confidential information in its possession

AHCA Contract No. EXD098, Attachment VI-A, Page 4 of 7 as a result of the Firm's representation of AHCA in the Matter.

The Client also agrees that the Firm may represent adverse parties involved in matters that the Firm handles for the Client, as long as the Firm's representation of those parties is not substantial!); related to work the Firm performs for the Client.

Affiliates. The Firm's representation is limited solely and exclusively to the Florida Agency for Health Care Administration. The Firm's representation does not and shall not extend to the Client's parent entity, including the State of Florida or any other state agencies, departments, or subdivisions, affiliates, subsidiaries, employees, directors, or other constituents ("Affiliates"), unless subject to a separate engagement Agreement.

Accordingly, the Firm may represent other clients in matters directly adverse to those Affiliates.

Limitations of Liability. Foley & Lardner LLP is a limited liability partnership under the laws of Wisconsin.

This means the Client's right to recover damages in a legal malpractice action that may exceed the Firm's insurance and Firm assets is limited to the personal assets of the attorneys whose acts or omissions gave rise to the Client's claim.

Arbitration. If a dispute arises between the Firm and the Client related in any way to the interpretation, application, or enforcement of this Agreement, any acts or omissions related to or arising from services provided in connection with this Agreement, or the issue of arbitrability of the dispute, the Client and the Firm agree that the dispute will be resolved solely through confidential binding arbitration.

The Federal Arbitration Act ("FAA") shall govern the interpretation and enforcement of the arbitration, and, to the extent not inconsistent with the FAA, the arbitrator( s) shall apply the law of FLORIDA to any claims or defenses thereto. The arbitration shall be held in Tallahassee. JAMS will serve as the arbitration administrator, and the arbitration shall proceed pursuant to the JAMS Comprehensive Arbitration Rules and Procedures (the "Rules") as they exist on the effective date of this Agreement, except to the extent provided for herein or otherwise agreed to in writing. In the event of a conflict between the terms set forth herein and the Rules, these terms shall govern.

If the amount in dispute is less than $1 million, the dispute will be resolved by one neutral arbitrator who is a former judge and affiliated with JAMS. The parties will mutually select the arbitrator, but if they are unable to agree, the arbitrator will be selected pursuant to the procedures set forth in the Rules. If the amount in dispute is $1 million or more, the dispute will be resolved by a panel of three (3) neutral arbitrators, with the chairperson being a former judge and affiliated with JAMS. The parties will mutually select the panel, but if the parties are unable to agree on a panel, the arbitrators will be selected pursuant to the procedures set forth in the Rules.

Notwithstanding any limitations in the Rules to the contrary, the parties shall be entitled to conduct discovery in accordance with the Federal Rules of Civil Procedure ("FRCP"), including but not limited to (and to the extent in accordance with the FRCP) depositions and written discovery of the parties and third parties, and shall be permitted to file partially or fully-dispositive motions prior to a full arbitration hearing, on which the arbitrator or panel of arbitrators shall issue a ruling prior to said hearing. The parties agree that the arbitrator(s) can render any such dispositive rulings, should the arbitrator(s) deem appropriate, without a hearing. No demand for arbitration may be sustained after the date on which the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statutes of limitation or statute of repose if the dispute was filed in court. The arbitrator(s) are authorized to dismiss the arbitration at any stage based on a determination that the claim is time barred or for any other legally or factually supported reason. Each party is limited to pursuing its own individual claims and shall not pursue class or collective action.

If the net amount of the final arbitration award is $1million or more, inclusive of interest, any party shall have the right to appeal the award pursuant to the JAMS Optional Arbitration Appeal Procedure, as it exists on the date of this Agreement. Notwithstanding any Appeal Procedure to the contrary, the three neutral members of the Appeal Panel shall consist of: (a) a chairperson having served at least five years as a judge or justice on federal or state appellate courts, (b) one member having served at least five years as a judge or justice on a federal or state

AHCA Contract No. EXD098, Attachment VI-A, Page 5 of 7 trial or appellate court or as a federal magistrate judge;

and (c) one member with 10 or more years of recent private appellate practice.

The costs of arbitration, including the arbitrator(s)' fees and administrative expenses, shall be paid as follows: fifty percent (50%) by the claimant(s) and fifty percent (50%) by the respondent(s), such that no side shall bear more than half the costs of the arbitration. If the respondent(s) also assert a claim or counterclaim against the claimant(s), the respondent(s) asserting that claim or counterclaim shall be deemed to be the respondent(s) for purposes of the division of the costs. Each party will bear that party's own attorneys' fees and costs, and the prevailing party will not be entitled to reimbursement by the other party of any of its fees or costs incurred in connection with the arbitration, regardless of any rule to the contrary. The arbitration proceedings, including but not limited to partial and final awards, shall be maintained by the arbitrator(s), parties, and witnesses as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate, or enforce the award(s) and for disclosure in confidence to the parties' respective attorneys, tax advisors, insurers, and senior management.

Any action or proceeding preliminary or ancillary to an arbitration, including to confirm, vacate, or enforce the award(s), shall be brought in the state trial court (subject to removal) or the federal district court serving Tallahassee.

For New York Clients: The Client also waives its rights under Part 13 7 of the Rules of the Chief Administrator of the Courts of New York to mediate and/ or arbitrate any fee dispute if the fee is between $1,000 and $50,000 and to commence an action for review in a court of competent jurisdiction if you are aggrieved by the award.

Before you sign this agreement, you should consider consulting with another lawyer about the advisability of making an agreement with a mandatory arbitration requirement. Arbitration proceedings are ways to resolve disputes without the use of the court system. By entering into agreements that require arbitration as the way to resolve fee disputes, you give up (waive) your right to go to court to resolve those disputes by a judge or jury.

These are important rights that should not be given up without careful consideration.

If any portion of this arbitration provision is held to be illegal or otherwise unenforceable, the remainder of this arbitration provision will still apply.

Termination of Representation. Either the Firm or the Client may terminate this Agreement at any time for any reason by written notice, subject to the applicable Rules of Professional Conduct. Unless previously terminated, the Firm's representation of the Client shall terminate when the Firm sends its final invoice, or when more than three months have elapsed from the last time the Firm furnished legal services to the Client, whichever is earlier.

After the Firm's services are complete, there might be developments or changes in laws that might affect the Client's future rights and liabilities, but the Firm does not have an obligation to continue to advise the Client about such subsequent factual or legal developments unless the Client specifically engages the Firm to do so.

Data Management & Disposition of Records.

Pursuant to the Firm's document retention policy and Rules of Professional Conduct, the Firm may retain the files pertaining to the matters handled by the Firm for a minimum of 10 years following the conclusion of any such matter. After that time, the Firm reserves the right to dispose of file materials without further notice, other than certain original trust and estate planning documents.

Upon the Client's reasonable request, the Firm will provide such portions of these file materials as required by the applicable Rules of Professional Conduct or other legal requirements. Unless applicable law requires an earlier return, the Firm may retain such file material pending receipt of payment of any outstanding fees or costs. The Firm reserves the right to retain a copy of the Client's files.

In addition to our information governance policies, the Firm manages your information in accordance with its data protection policies, which are fully incorporated into the Agreement and located at fol y.com/cli ntprivacy.

Communication. The Client will keep the Firm informed of developments that may affect the Firm's representation of the Client as soon as the Client becomes aware, and will be available when the Firm needs to consult with the Client. The Firm might express opinions or beliefs concerning the Firm's services and the results that might be anticipated based upon information known to the Firm at the time, but any such statement is an expression of opinion only and is not a promise or

AHCA Contract No. EXD098, Attachment VI-A, Page 6 of 7 guarantee of results. The Client agrees that the Firm may communicate with the Client by email on an unencrypted basis.

Information Distribution. The Client agrees that the Firm may send information about the Firm or legal matters of interest by email or other means. The Client also agrees that the Firm may list the Client on publicly disclosed lists and other materials as a client that the Firm represents.

AHCA Contract No. EXD098, Attachment VI-A, Page 7 of 7