Draft_Agreement_(RFP-604878-24).pdf

DRAFT

SunRail Attorney Services Agreement

SUNRAIL ATTORNEY SERVICES AGREEMENT

THIS AGREEMENT is made and entered into this _____ day of ________________, 2024, by and between __________________________, duly authorized to conduct business in the

State of Florida, whose address is __________________________________________________, hereinafter referred to as “Counsel,” and the CENTRAL FLORIDA COMMUTER RAIL

COMMISSION, a legal entity and public body and unit of local government, hereinafter referred to as the “Commission.”

W I T N E S S E T H

WHEREAS, the Florida Department of Transportation (“FDOT”) has undertaken the development and implementation of the SunRail Commuter Rail System (“SunRail”) running from the County of Volusia through Seminole and Orange Counties, the City of Orlando, and to

Poinciana in Osceola County; and

WHEREAS, FDOT is the agency responsible for the design, permitting and construction of SunRail, and is currently responsible for its funding, operation, management, and maintenance;

and

WHEREAS, Orange County, Osceola County, Seminole County, County of Volusia, and the City of Orlando (collectively, “Local Government Partners”) created the Commission, comprised of a designated representative from each Local Government Partner, for the purpose of acquiring, constructing, operating, and maintaining SunRail; and

WHEREAS, the Commission will assume responsibility for the funding, operation, management, and maintenance of SunRail in the future pursuant to that Operations Phasing

Agreement entered into by and among the Local Government Partners, FDOT, and the

Commission on March 28, 2024 (“OPA”); and

SunRail Attorney Services Agreement

WHEREAS, the Central Florida Regional Transportation Authority d/b/a Lynx, a body politic and corporate, created by Part III, Chapter 343, Florida Statutes (“Lynx”) has expressed interest in being the administrator of the operation, management, and maintenance of SunRail on behalf of the Commission; and

WHEREAS, in support of the Commission’s responsibilities under the OPA, the Local

Government Partners desire to retain on behalf of the Commission the services of an attorney to provide legal services to the Commission which includes, but is not limited to, overseeing an orderly transition of the operation, management, and maintenance of SunRail from FDOT to the

Commission through negotiation and preparation of an operating agreement with Lynx,1 preparation of amendments to operator contracts, and providing counsel to the Commission; and

WHEREAS, Counsel is competent and qualified to furnish such services to the

Commission and desires to provide its professional services according to the terms and conditions stated in this Agreement; and

NOW, THEREFORE, in consideration of the mutual understandings and covenants set forth in this Agreement, the Commission and Counsel agree as follows:

Section 1. Term. This Agreement shall take effect on the date of its execution by the

Commission (“Effective Date”) and shall remain in effect until ________________________

(“Term”). The Commission may extend the Term of this Agreement through an amendment in accordance with Section 14, Modifications, Amendments, or Alterations.

1 The Parties are currently in early negotiations with the Central Florida Regional Transportation Authority, a body politic and corporate governed pursuant to Part II, Chapter 343, Florida Statutes ("LYNX") regarding the future operation of SunRail; no final agreement has been reached, as of the Effective Date of this Agreement. In the event the Parties ultimately do not agree to terms with LYNX and/or enter into a contract with LYNX, the references herein to LYNX should be understood to refer to any third party that Commission and Local

Government Partners enter into negotiations and/or contract with for the operation of SunRail.

SunRail Attorney Services Agreement

Section 2. Services.

(a) The Commission retains Counsel to furnish professional services and perform tasks consistent with the Scope of Work, attached to and incorporated in this Agreement as Exhibit A

(“Scope”).

(b) A Steering Group (“SG”) will be established, comprised of one representative from each Local Government Partner. The SG will collaborate with Counsel throughout the Term of this Agreement with the Commission to accomplish the terms of the Scope. Changes to the Scope may only be approved by the Commission.

(c) Seminole County is designated as the lead agency (“Lead Agency”). As such, the

Lead Agency will select a Project Manager who will act as the primary staff contact for Counsel for contract administration and who will process invoices for payment. The Project Manager will not direct the legal work of Counsel or make changes to the Scope.

Section 3. Compensation. The Commission agrees to compensate Counsel for professional services provided for under this Agreement on an hourly basis, as set forth in Exhibit

B (“Compensation Schedule”), attached to and incorporated in this Agreement.

Section 4. Billing.

(a) Counsel must submit to the Lead Agency each month an invoice of its fees for services rendered and costs incurred, in accordance with the Scope.

(b) The original invoice and one (1) copy shall be sent to:

Attention: SunRail Project Manager

Seminole County Attorney's Office

1101 East First Street

Sanford, Florida 32771

SunRail Attorney Services Agreement

(c) Upon review of Counsel’s invoice and in accordance with the Scope, Lead Agency, through the Commission’s escrow agent, will pay Counsel in accordance with the provisions of

Chapter 218, Part VII, Florida Statutes.

Section 5. Audit of Records.

(a) The Commission may perform, or have performed, an audit of the records of Counsel at any time during the Term of this Agreement and after final payment to support final payment hereunder. This audit would be performed at a time mutually agreeable to Counsel and the

Commission subsequent to the close of the final fiscal period in which the last work is performed.

(b) Counsel agrees to maintain all books, documents, papers, accounting records and other evidences pertaining to work performed under this Agreement in such a manner as will readily conform to the terms of this Agreement and to make such materials available at Counsel’s office at all reasonable times during this Agreement period and for five (5) years from the date of final payment under this Agreement for audit or inspection as provided for in subsection (a) of this Section.

(c) In the event any audit or inspection conducted after final payment, but within the period provided in subsection (b) of this Section, reveals any overpayment by the Commission under the terms of this Agreement, Counsel shall refund such overpayment to the Commission within thirty

(30) days of notice by the Commission.

Section 6. Responsibility of Counsel.

(a) Counsel shall be responsible for the professional quality and the coordination of all services furnished by Counsel under this Agreement. Counsel shall, without additional compensation, correct or revise any errors or deficiencies in its services.

(b) Neither the SG or the Commission’s review, approval, acceptance of, nor payment for any of the services required shall be construed to operate as a waiver of any rights under this

SunRail Attorney Services Agreement

Agreement or of any cause of action arising out of the performance of this Agreement, and Counsel shall be and remain liable to the Commission in accordance with applicable law for all damages to the Commission caused by Counsel’s performance of any of the services furnished under this

Agreement.

Section 7. Termination.

(a) The Commission may, by written notice to Counsel, terminate this Agreement in whole or in part at any time, either for the Commission’s convenience or because of the failure of

Counsel to fulfill Counsel’s Agreement obligations. Upon receipt of such notice, Counsel shall:

(1) immediately discontinue all services affected unless the notice directs otherwise; and

(2) deliver to the Commission all information and materials as may have been accumulated by Counsel in performing this Agreement, whether completed or in process.

(b) If the termination is for the convenience of the Commission, Counsel shall be paid compensation for services performed to the date of termination.

(c) If the termination is due to the failure of Counsel to fulfill its Agreement obligations, the Commission may take over the work and prosecute the same to completion by Agreement or otherwise. In such case, Counsel shall be liable to the Commission for reasonable additional costs occasioned to the Commission thereby.

(d) If, after notice of termination for failure to fulfill Agreement obligations it is determined that Counsel had not so failed, the termination shall be deemed to have been effected for the convenience of the Commission. In such event, adjustment in the Agreement price shall be made as provided in subsection (b) of this Section.

SunRail Attorney Services Agreement

(e) The rights and remedies of the Commission provided in this clause are in addition to any other rights and remedies provided by law or under this Agreement.

Section 8. Equal Opportunity Employment. Counsel agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age, national origin, or disability and will take steps to ensure that applicants are employed and employees are treated during employment without regard to race, color, religion, sex, age, national origin, or disability. This provision shall include, but not be limited to, the following:

employment, upgrading, demotion or transfer; recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.

Section 9. No Contingent Fees. Counsel warrants that it has not employed or retained any company or persons, other than a bona fide employee working solely for Counsel, to solicit or secure this Agreement and that Counsel has not paid or agreed to pay any persons, company, corporation, individual or firm, other than a bona fide employee working solely for Counsel, any fee, commission, percentage, gift or other consideration contingent upon or resulting from the award or making of this

Agreement. For the breach or violation of this provision, the Commission shall have the right to terminate this Agreement at its discretion without liability and to deduct from the Agreement price or otherwise recover the full amount of such fee, commission, percentage, gift or consideration.

Section 10. Assignment. This Agreement or any interest herein shall not be assigned, transferred or otherwise encumbered under any circumstances by the parties hereto without prior written consent of the opposite party and only by a document of equal dignity herewith.

Section 11. Subcontractors. In the event Counsel, during the course of the work under this

Agreement, requires the services of any subcontractors or other professional associates in connection with service covered by this Agreement, Counsel must secure the prior written approval of the

SunRail Attorney Services Agreement

Commission. If subcontractors or other professional associates are required in connection with the services covered by this Agreement, Counsel shall remain fully responsible for the services of subcontractors or other professional associates.

Section 12. Insurance.

(a) Counsel, at its sole expense, shall maintain the insurance required under this

Section at all times throughout the duration of this Agreement and have this insurance approved by the Commission. Counsel shall immediately provide written notice to the Commission upon receipt of notice of cancellation of an insurance policy or a decision to terminate an insurance policy.

(1) Counsel shall require and ensure that each of its sub-vendors or subcontractors providing services under this Agreement, if any, procures and maintains insurance of the types and to the limits specified in this Agreement until the completion of their respective services.

(2) Neither approval by the Commission nor failure by the Commission to disapprove the insurance furnished by Counsel will relieve Counsel of its full responsibility for liability, damages, and accidents.

(3) Neither the Commission’s review of the coverage afforded by or the provisions of the policies of insurance purchased and maintained by Counsel in accordance with this Section, nor the Commission’s decisions to raise or not to raise any objections about either or both, in any way relieves or decreases the liability of Counsel.

(4) If the Commission elects to raise an objection to the coverage afforded by or the provisions of the insurance furnished, then Counsel shall promptly provide to the

SunRail Attorney Services Agreement

Commission such additional information as the Commission may reasonably request, and Counsel shall remedy any deficiencies in the policies of insurance within ten (10) days.

(5) The Commission’s authority to object to insurance does not in any way whatsoever give rise to any duty on the part of the Commission to exercise this authority for the benefit of Counsel or any other party.

(b) General Requirements.

(1) Before commencing work, Counsel shall furnish the Commission with a current Certificate of Insurance on a current ACORD Form signed by an authorized representative of the insurer evidencing the insurance required by this Section and Exhibit C, attached to and incorporated in this Agreement, and including the following as Certificate Holder:

Central Florida Commuter Rail Commission

Attention: Chairman

123 W. Indiana Ave

DeLand, Florida 32720

The Certificate of Insurance must evidence and all policies must be endorsed to provide the the

Commission with not less than thirty (30) days (10 days for non-payment) written notice prior to the cancellation or non-renewal of coverage directly from the Insurer and without additional action of the Insured or Broker. Until such time as the insurance is no longer required to be maintained, Counsel shall provide the Commission with a renewal or replacement Certificate of Insurance within ten (10) days after the expiration or replacement of the insurance for which a previous certificate has been provided.

(2) In addition to providing the Certificate of Insurance, upon request of the the

Commission, Counsel shall provide the Commission with a certified copy of each of the policies of insurance providing the coverage required by this Agreement within thirty (30) days after receipt

SunRail Attorney Services Agreement of the request. Certified copies of policies may only be provided by the Insurer, not the agent or broker.

(3) Deductible and self-insured retention amounts must be declared to and approved by the Commission and must be reduced or eliminated upon written request from the

Commission. The risk of loss within the deductible amount, if any, in the insurance purchased and maintained pursuant to this document must be borne by Counsel.

(4) The insurer’s cost of defense, including attorney's fees and attorney's fees on appeal, must not be included within the policy limits, but must remain the responsibility of the insurer for all General Liability, Auto Liability, and Employers’ Liability coverages.

(5) Additional Insured: Central Florida Commuter Rail Commission, its Local

Government Partners, officials, officers, and employees must be included as Additional Insureds under General Liability, Business Auto Liability, and Cyber Liability policies. Such policies shall provide exception to any “Insured versus Insured” exclusion for claims brought by or on behalf of

Additional Insureds.

(6) Coverage: The insurance provided by Counsel pursuant to this Agreement must apply on a primary and non-contributory basis and any other insurance or self-insurance maintained by the Central Florida Commuter Rail Commission or the Commission’s Local

Government Partners, officials, officers, or employees must be in excess of and not contributing with the insurance provided by Counsel.

(7) Waiver of Subrogation: All policies must be endorsed to provide a Waiver of Subrogation clause in favor of the Central Florida Commuter Rail Commission and its respective officials, officers, and employees. This Waiver of Subrogation requirement does not

SunRail Attorney Services Agreement apply to any policy that includes a condition that specifically prohibits such an endorsement or voids coverage should the Named Insured enter into such an agreement on a pre-loss basis.

(8) Provision: The Commercial General Liability Policy required by this

Agreement must be provided on an occurrence rather than a claims-made basis.

(c) Insurance Company Requirements. Insurance companies providing the insurance must meet the following requirements.

(1) Such companies must be either: (a) authorized by maintaining Certificates of Authority or Letters of Eligibility issued to the companies by the Florida Office of Insurance

Regulation to conduct business in the State of Florida, or (b) with respect only to the coverage required by this agreement for Workers' Compensation/Employers' Liability, authorized as a group self-insurer by Section 624.4621, Florida Statutes, as this statute may be amended from time to time.

(2) In addition, such companies other than those authorized by Section

624.4621, Florida Statutes, as this statute may be amended from time to time, must have and maintain a Best’s Rating of “A-“ or better and a Financial Size Category of “VII” or better according to A.M. Best Company.

(3) If, during the period which an insurance company is providing the insurance coverage required by this Agreement, an insurance company, (A) loses its Certificate of Authority or Letter of Eligibility, (B) no longer complies with Section 624.4621, Florida Statutes, as this statute may be amended from time to time, or (C) fails to maintain the Best’s Rating and Financial

Size Category, then Counsel shall immediately notify the Commission as soon as Counsel has knowledge of any such circumstance and, upon request of the Commission, immediately replace the insurance coverage provided by the insurance company with a different insurance company

SunRail Attorney Services Agreement meeting the requirements of this Agreement. Until such time as Counsel has replaced the unacceptable insurer with an insurer acceptable to the Commission, Counsel will be deemed to be in default of this Agreement.

(d) Specifications. Without limiting any of the other obligations or liabilities of

Counsel, Counsel, at Counsel’s sole expense, shall procure, maintain, and keep in force amounts and types of insurance conforming to the minimum requirements set forth in Exhibit C. Except as otherwise specified in this Agreement, the insurance must become effective prior to the commencement of work by Counsel and must be maintained in force until final completion or such other time as required by this Agreement. The amounts and types of insurance must conform to the following minimum requirements:

(1) Workers' Compensation/Employers’ Liability.

(A) Counsel’s insurance must cover Counsel and its subcontractors of every tier for those sources of liability which would be covered by the latest edition of the standard

Workers' Compensation and Employers Liability Policy (NCCI Form WC 00 00 00 A), as filed for use in Florida by the National Council on Compensation Insurance. In addition to coverage for the Florida Workers’ Compensation Act, where appropriate, coverage is to be included for the

United States Longshoremen and Harbor Workers’ Compensation Act, Federal Employers’

Liability Act and any other applicable federal or state law.

(B) Subject to the restrictions of coverage found in the standard

Workers' Compensation and Employers Liability Policy, there must be no maximum limit on the amount of coverage for liability imposed by the Florida Workers' Compensation Act, and if applicable, the United States Longshoremen's and Harbor Workers' Compensation Act or any other

SunRail Attorney Services Agreement coverage customarily insured under Part One of the standard Workers' Compensation and

Employers Liability Policy.

(C) The minimum limits to be maintained by Counsel are as specified in

Exhibit C.

(D) If Counsel asserts an exemption to the provisions of Chapter 440, Florida Statutes, Workers’ Compensation, as this statute may be amended from time to time, Counsel shall provide notification to the Commission and shall complete the Commission’s

Workers’ Compensation Waiver Request. Approval of exemption is subject to the Commission’s sole discretion. If approved, the named individuals listed in the Commission’s approved exemption will be the only individuals authorized to perform work under this Agreement.

(E) Any vendor or contractor, including Counsel, using an employee leasing company must complete the Commission’s Leased Employee Affidavit.

(2) Commercial General Liability.

(A) Counsel’s insurance must cover Counsel for those sources of liability which would be covered by the latest edition of the standard Commercial General Liability

Coverage Form (ISO Form CG 00 01), as filed for use in the State of Florida by the Insurance

Services Office, or equivalent acceptable to the Commission. Such coverage must not contain any endorsements excluding or limiting Products/Completed Operations, Contractual Liability, or

Separation of Insureds.

(B) ISO Endorsement CG 20 10 or CG 20 26 and CG 20 37 or their equivalent must be used to provide such Additional Insured status.

(C) The minimum limits to be maintained by Counsel are as specified in

Exhibit C.

SunRail Attorney Services Agreement

(3) Business Auto Liability.

(A) Counsel’s insurance must cover Counsel for those sources of liability which would be covered by Section II of the latest edition of the standard Business Auto

Policy (ISO Form CA 00 01), as filed for use in the State of Florida by the Insurance Services

Office. Coverage must include owned, non-owned, and hired autos or any auto. In the event

Counsel does not own automobiles, Counsel shall maintain coverage for hired and non-owned auto liability, which may be satisfied by way of endorsement to the Commercial General Liability policy or separate Business Auto Liability policy.

(B) The minimum limits to be maintained by Counsel are as specified in

Exhibit C.

(4) Professional Liability.

(A) Counsel shall maintain an Errors & Omissions Liability policy providing professional liability coverage for any damages caused by wrongful acts, errors, or omissions.

(i) In the event that the professional liability insurance required by this contract is written on a claims-made basis, Counsel warrants that any retroactive date under the policy will precede the effective date of this Agreement and that either continuous coverage will be maintained or an extended discovery period will be exercised for a period of three (3) years beginning at the time work under this contract is completed.

(ii) If Counsel contends that any of the insurance it maintains pursuant to other sections of this clause satisfies this requirement (or otherwise insures the risks described in this section), then Counsel shall provide proof of such satisfactory coverage, subject to approval of the Commission.

SunRail Attorney Services Agreement

(B) The minimum limits to be maintained by Counsel are as specified in

Exhibit C.

(5) Cyber Liability and Technology Errors and Omissions Insurance.

(A) Cyber Liability and Technology Errors and Omissions Insurance must include liability related to: protection of private or confidential information, whether electronic or non‐electronic; network security and privacy; system attacks, digital asset loss, denial or loss of service; introduction, implantation, or spread of malicious software code; security breach; unauthorized access and use; disclosure of Commission data, whether by Counsel or any subcontractor or cloud service provider used by Counsel; regulatory action expenses; and breach response costs including, but not limited to, notification of affected individuals, customer support, forensics, crisis management consulting, public relations consulting, legal services, and credit monitoring expenses and identity fraud resolution services with at least the minimum limits as specified herein. Coverage must be maintained in effect during the period of the Agreement and for no less than two (2) years after termination or completion of the Agreement, if written on a

“claims-made” basis.

(B) Cyber Liability and Technology Errors and Omissions Insurance must cover Counsel, its employees, subcontractors and agents for expenses, claims and losses resulting from wrongful acts committed in the performance of, or failure to perform, all services under this Agreement, including, without limitation, claims, demands, and any other payments related to electronic or physical security, breaches of confidentiality, and invasion of or breaches of privacy.

(C) The minimum limits to be maintained by Counsel are as specified in

Exhibit C.

SunRail Attorney Services Agreement

(6) Crime and Employee Dishonesty Liability.

(A) Counsel shall maintain Commercial Crime Coverage including

Employee Dishonesty coverage protecting the interests of the Commission subject to this

Agreement from fraudulent acts of Counsel’s employees and others. Coverage must include ISO

Form CR 04 01, Client’s Property endorsement, or comparable form. Coverage limits must not be less than the amount specified in Exhibit C. The policy must include as loss payee Central Florida

Commuter Rail Commission on applicable coverage.

(B) The minimum limits to be maintained by Counsel are as specified in

Exhibit C.

(e) The maintenance of the insurance coverage set forth in this Section may not be construed to limit or have the effect of limiting Counsel’s liability under the provisions of Section

16 concerning indemnification or any other provision of this Agreement.

Section 13. All Prior Agreements Superseded. This document incorporates and includes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein and the parties agree that there are not commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained or referred to in this document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written.

Section 14. Modifications, Amendments, or Alterations. No modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith.

Section 15. Independent Contractor. It is agreed that nothing herein contained is intended or should be construed as in any manner creating or establishing a relationship of co-partners between

SunRail Attorney Services Agreement the parties or as constituting Counsel, including its officers, employees and agents, as an agent, representative or employee of the Commission for any purpose or in any manner whatsoever. Counsel is to be and shall remain an independent contractor with respect to all services performed under this

Agreement.

Section 16. Indemnification.

(a) Counsel shall hold harmless, release, and indemnify the Commission, its commissioners, officers, employees, and agents against any and all claims, losses, damages, or lawsuits for damages arising from, allegedly arising from, or related to Counsel’s provision of services under this Agreement caused by Counsel’s act or omission in the performance of this Agreement.

(b) If approved by the Commission to have subcontractors, Counsel must require the subcontractors to enter into an agreement containing the provisions set forth in this Section 16, Indemnification.

Section 17. Employee Status. Persons employed by Counsel in the performance of services and functions pursuant to this Agreement shall have no claim to pension, workers' compensation, unemployment compensation, civil service or other employee rights or privileges granted to the

Commission’s officers and employees either by operation of law or by the Commission.

Section 18. Services Not Provided For. No claim for services furnished by Counsel not specifically provided for herein shall be honored by the Commission.

Section 19. Public Records Law. Counsel acknowledges the Commission’s obligations under Article 1, Section 24, Florida Constitution and Chapter 119, Florida Statutes, to release public records to members of the public upon request. Counsel acknowledges that the Commission is required to comply with Article 1, Section 24, Florida Constitution and Chapter 119, Florida Statutes, SunRail Attorney Services Agreement in the handling of the materials created under this Agreement and that said statute controls over the terms of this Agreement.

Section 20. Governing Law, Jurisdiction, and Venue. The laws of the State of Florida govern the validity, enforcement, and interpretation of this Agreement. The sole jurisdiction and venue for any legal action in connection with this Agreement will be in the courts of Seminole County, Florida.

Section 21. Notices. Whenever either party desires to give notice unto the other, it must be given by written notice sent by certified United States mail, return receipt requested, addressed to the party for whom it is intended at the place last specified and the place for giving of notice shall remain such until it shall have been changed by written notice in compliance with the provisions of this

Section. For the present, the parties designate the following as the respective places for giving of notice:

For Commission:

Attention: SunRail Project Manager

Seminole County Attorney’s Office

1101 East First Street

Sanford, Florida 32771

For Counsel:

Attention: _________________

Section 22. Rights at Law Retained. The rights and remedies of the Commission provided for under this Agreement are in addition to any other rights and remedies provided by law.

Section 23. Compliance with Laws and Regulations. In providing all services pursuant to this Agreement, Counsel shall abide by all statutes, ordinances, rules and regulations pertaining to or

SunRail Attorney Services Agreement regulating the provisions of such services including those now in effect and hereafter adopted. Any violation of said statutes, ordinances, rules or regulations shall constitute a material breach of this

Agreement and shall entitle the Commission to terminate this Agreement immediately upon delivery of written notice of termination to Counsel.

Section 24. Headings and Captions. All headings and captions contained in this Agreement are provided for convenience only, do not constitute a part of this Agreement, and may not be used to define, describe, interpret, or construe any provision of this Agreement.

Section 25. E-Verify.

(a) Counsel must register with and use the E-Verify system to verify the work authorization status of all new employees prior to entering into this Agreement with the

Commission. If the Commission provides written approval to Counsel for engaging with or contracting for the services of any subcontractors under this Agreement, Counsel must require certification from the subcontractor that at the time of certification, the subcontractor does not employ, contract, or subcontract with an unauthorized alien. Counsel must maintain a copy of the foregoing certification from the subcontractor for the duration of the agreement with the subcontractor.

(b) If the Commission has a good faith belief that Counsel has knowingly violated this

Section, the Commission may terminate this Agreement. If the Commission terminates this

Agreement with Counsel, Counsel may not be awarded a public contract for at least one (1) year after the date on which this Agreement is terminated. If the Commission has a good faith belief that a subcontractor knowingly violated this Section, but Counsel otherwise complied with this

Section, the Commission must promptly notify Counsel and order Counsel to immediately terminate its agreement with the subcontractor.

SunRail Attorney Services Agreement

(c) Counsel shall execute and return the Affidavit of E-Verify Requirements

Compliance, attached to and incorporated in this Agreement as Exhibit D, to the Commission.

IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement for the purposes stated herein.

INSERT LAW FIRM NAME

Witness By:

INSERT SIGNATORY NAME

Print Name

Date:

Witness

Print Name

SunRail Attorney Services Agreement

COMMISSION:

CENTRAL FLORIDA COMMUTER RAIL

COMMISSION

Jeff Brower, Chairman

Date: _______________________________

STATE OF ______________

COUNTY OF ____________

The foregoing instrument was acknowledged before me this ____ day of _____________, 20___ by Jeff Brower, as Chairman of the CENTRAL FLORIDA COMMUTER RAIL

COMMISSION, a legal entity and public body and unit of local government, who is personally known to me OR has produced ___________________________ as identification and did/did not (circle one) take an oath.

(NOTARY PUBLIC)

Notary Public, State of Florida

Name: ______________________________

Notary Commission No. _______________

My Commission Expires: ______________

BP/

08/08/24

T:\Users\bpatel\SunRail\Legal Counsel\Agreement\SunRail Attorney Services Agreement.docx

EXHIBIT A

SCOPE OF WORK

Background

SunRail is currently a 49.2-mile commuter rail system that extends from DeBary in Volusia

County to Poinciana Boulevard in Osceola County. The system was opened up in two separate phases. The first 32-mile phase extended from DeBary in Volusia County to Sand Lake Road in

Orange County and opened May 1, 2014, consisting of 12 stations. The second 17.2-mile phase extended from Sand Lake Road in Orange County to Poinciana in Osceola County and opened

July 30, 2018, consisting of 4 stations. The planned last phase, which has not opened, extends the system approximately 12 miles north to DeLand in Volusia County.

At present, FDOT has sole responsibility for the development, design, engineering, construction, reconstruction, installation, procurement, operation, and maintenance of the SunRail system.

Through a series of agreements, the Commission presently acts in an advisory capacity to the

FDOT. The Commission was created by five local government entities – Orange County, Osceola

County, Seminole County, Volusia County, and the City of Orlando (the “Local Government

Partners”). The Governing Board of the Commission consists of representatives appointed by the

Local Government Partners. FDOT, the Commission and the Local Government Partners have entered into an Operations Phasing Agreement to provide a framework for transitioning financial and operational control of the SunRail system from FDOT to the Commission. After the transition described in the Operations Phasing Agreement, the Commission will assume all responsibility for the SunRail system, except that the FDOT will retain ownership of the Corridor and will provide an easement to the Commission to ensure the ability to continue operations within the Corridor.

Minimum Requirements

The attorney awarded a contract pursuant to this Agreement must be licensed to practice law in the State of Florida and must be in good standing with The Florida Bar.

The attorney must have significant experience in and must be capable of, providing a wide range of legal services in connection with rail systems or the transition of rail systems, as described in this Scope.

The attorney must provide competent representation to the Commission in accordance with, but not limited to, local, state, and federal laws and regulations, Florida Attorney General Opinions, the Florida Public Records Act, the Florida Government in the Sunshine Law, the Florida Code of

Ethics, and parliamentarian procedures for public entities.

The attorney that will be providing services must be clearly identified at the initiation of this

Agreement. If it is necessary to replace any specific attorney, the replacement attorney(s) must be approved by the SG.

Legal Services

The attorney will be engaged by the Commission and perform all general legal representation for the Commission, as needed and requested or as required. Funding provided by the Local

Government Partners will not create an attorney-client relationship between legal counsel and any of the Local Government Partners. Such representation will be in cooperation with the SG, as described in Section 4 (“Cooperation with Attorney”) of this Agreement. Such general legal representation may include, but is not limited to:

A. Oversee an orderly transition of the operation, management, and maintenance of SunRail from the FDOT to the Commission, as described in the Operations Phasing Agreement.

B. Preparation of oral and written opinions on legal matters.

C. Attend and participate in Commission and SG meetings in person and virtually and make presentations.

D. Assist with development, and adoption, and proposal of bylaws, procedures, rules, roles, and responsibilities to govern how the Commission will operate once it is no longer advisory.

E. Prepare a term sheet and an operating agreement and assist in the negotiation for a contract operator agreement between the Commission and the Central Florida Regional

Transportation Authority, a body politic and corporate governed pursuant to Part II, Chapter 343, Florida Statutes (“Lynx”). Lynx will presumably operate SunRail on behalf of the Commission.1 Such agreement could include, but is not limited to, operating, governance, and legal terms concerning all aspects of the SunRail system. Such agreement must be approved as referenced in the Operations Phasing Agreement, as may be amended.

F. Review the existing agreement between FDOT and Gallagher (FDOT’s insurance broker), assist in the procurement, negotiation, and preparation of an agreement with an insurance broker, including implementation of a claims process in accordance with FDOT’s SunRail related claims processes.

G. Review and advise on real property rights being conveyed to the Commission.

H. Prepare necessary amendments to the Interlocal Operating Agreement, Interlocal

Governance Agreement, the Interlocal Funding Agreement, and the Operations Phasing

Agreement, as amended and as applicable. In addition, ensure compliance with obligations under these agreements.

I. With an understanding of Federal regulations and requirements, assist in the coordination of the transition with the Federal Rail Administration and the Federal Transit

Administration.

J. Determine any issues, deficiencies, or actions with contracts that need to be implemented to facilitate a smooth transition of SunRail.

K. Prepare and review assignment and novation of contract operator and other vendor

1 The Local Government Partners are currently in early negotiations with the Central Florida Regional Transportation

Authority, a body politic and corporate governed pursuant to Part II, Chapter 343, Florida Statutes ("LYNX") regarding future the operation of SunRail; no final agreement has been reached, as of the Effective Date of this

Agreement. In the event the Local Government Partners and the Commission ultimately do not agree to terms with LYNX and/or enter into a contract with LYNX, the references herein to LYNX should be understood to refer to any third party that Commission and Local Government Partners enter into negotiations and/or contract with for the operation of SunRail.

contracts from the FDOT to the Commission to ensure work under these contracts continue seamlessly throughout the transition.

L. Prepare and review assignment and novation of the Central Florida Operating and

Management Agreement (“CFOMA”), Joint Use Agreements (“JUA”), and State

Cooperative Contracts from the FDOT to the Commission.

M. Assist in the development of compliance programs to ensure the Commission’s satisfaction of obligations for rail agreements.

N. Assist in the development of a risk management program.

O. Assist in the establishment of a procurement and contract administration program in accordance with Federal, State, and Local procurement policies and procedures.

P. Initiate procurement of contract operator contracts with FDOT’s assistance.

Q. Assist in the licensure of intellectual property from FDOT to the Commission. Such license of intellectual property could include, but is not limited to, use of operating rules for

SunRail, training materials and examinations for train and engine crews, software and other information systems such as SCADA, maintenance records, and access and management of the Positive Train Control (“PTC”) system implemented by vendors.

R. Review consultant agreements and draft amendments, assignments, or new contracts for such consultants as necessary to ensure a thorough transition of responsibilities.

S. Review and respond to public record requests made to the Commission in accordance with

Florida law and this Scope.

T. Assist with any other issues identified by the Commission and the SG.

Standards of Work

All tasks listed in this Scope must be undertaken by the attorney as directed by the Commission and legal counsel shall cooperate and communicate with the SG. The amount of work to be completed for each task will fluctuate. The attorney must provide the Commission and SG monthly invoices detailing work performed, the date legal services were provided, the hours involved in completion, and any other information requested by the SG or the Commission. The hourly rate quoted must include all salary and compensation and all overhead expenses, profits, clerical and word processing expenses. Any other costs or expenses which attorney intends to bill in addition to legal fees and the basis for the charges, must be specifically set forth in the Agreement between attorney and the Commission.

No travel costs will be allowed or included as part of the billing.

All costs and expenses for online research, word processing, secretarial support, photocopying, and telephone, will be considered general overhead and the Commission will not compensate attorney extra for such charges. If requested by the Commission or requested by attorney and approved by the Commission, attorney may retain subcontractors (e.g., other attorneys or experts in related fields) when necessary to assist in meeting the Commission’s needs. The Commission must be billed at the actual cost of these subcontractors, if any, with no additional fees or markups.

Public Records

In addition to responding to public record requests on behalf of the Commission as part of the legal services rendered (see “Legal Services” section above), the attorney will also have certain requirements and obligations regarding public records because it is a contractor for the

Commission. This section addresses those requirements and obligations.

The attorney acknowledges the Commission’s obligations under Article I, Section 24, Florida

Constitution, and Chapter 119, Florida Statutes, to release public records to members of the public upon request. The attorney acknowledges that the Commission is required to comply with Article

I, Section 24, Florida Constitution, and Chapter 119, Florida Statutes, in the handling of materials created under this Agreement and this statute controls over the terms of this Agreement. Upon the

Commission or its representative’s request, the attorney must provide all requested public records in the attorney’s possession or must allow the Commission or its representative to inspect or copy the requested public records within a reasonable time and at a cost that does not exceed costs provided for under Chapter 119, Florida Statutes.

The attorney must ensure public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law.

Upon expiration or termination of this Agreement, the attorney must transfer, at no cost to the

Commission or SG, all public records in possession of the attorney in a format compatible with the information technology systems of the Commission or its designee. If the attorney transfers all public records to the Commission or its designee upon expiration or termination of this Agreement, the attorney must destroy any duplicate public records in accordance with the rules set forth by the

Florida Department of State Division of Library and Information Services and governing law.

Failure to comply with these public records law requirements will be deemed a material breach for which the Commission may terminate this Agreement immediately upon written notice to the attorney. The attorney may also be subject to statutory penalties set forth in Section 119.10, Florida

Statutes.

IF ATTORNEY HAS QUESTIONS REGARDING THE APPLICATION OF

CHAPTER 119, FLORIDA STATUTES, TO ATTORNEY’S DUTY TO

PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT,

ATTORNEY MAY CONTACT THE CUSTODIAN OF PUBLIC RECORDS,

THE SEMINOLE COUNTY PURCHASING AND CONTRACTS

MANAGER, AT 407-665-7120, PURCH@SEMINOLECOUNTYFL.GOV,

PURCHASING AND CONTRACTS DIVISION, 1301 E. SECOND STREET,

SANFORD, FL 32771.

Subject to Chapter 119, Florida Statutes, the attorney must hold as confidential and privileged all information and records transmitted to it by or on behalf of the Commission, and all information and records developed by or provided to the attorney as part of this Agreement. The attorney is subject to statutes, regulations, and professional codes regulating the practice of law in the State of Florida.

Conflict of Interest

The attorney acknowledges that the nature of the legal services to be performed requires that attorney must not have or appear to have a conflict of interest with any potential adverse party.

The attorney agrees that:

A. The attorney will not accept any legal work, assignments, compensation, consideration or gratuities with an interest in any subject matter or any contract that is or could be conflicting or have the appearance of conflicting with the interests of the Commission or any Local

Government Partner. The attorney (including any individual in attorney’s firm) may not represent, be an adverse party to, or represent an adverse party to any Local Government

Partner at any time while representing the Commission.

B. In the event that a conflict or potential conflict of interest arises, the attorney shall promptly notify the SG in writing within three (3) days of becoming aware of the conflict or the potential conflict. Failure to provide such notice may be grounds for termination of this

Agreement.

C. In the event the SG receives timely notice of an actual or potential conflict, the attorney and the Commission shall attempt to reach agreement on a course of action in response to the actual or potential conflict. If such an agreement cannot be reached, the Commission has the right to contract with another attorney to represent the Commission for the specific matter in which the conflict arose or to terminate this Agreement and to award an

Agreement to a different attorney entirely.

Special Conditions

The attorney must make affirmative efforts to achieve cost effectiveness. Multiple attorneys at meetings will not be compensated by the Commission unless approved in advance by the SG.

Additional Attorneys

The Commission reserves the right to retain other legal representatives or assistance as might be required for legal matters. The Commission reserves the right to award a contract to more than one firm and to award this Agreement in parts to multiple attorneys.

Approved Staff

All attorneys, paraprofessionals, or other staff who will perform services under this arrangement must be pre-approved by the Commission. All key personnel assigned by the attorney/firm to provide services to Commission shall be clearly identified at the initiation of the contract. Should it be necessary for the attorney/firm to replace a key person, the replacement is subject to the approval by the Commission. In addition, replacement personnel shall have credentials equivalent to or greater than the individuals who they replace.

EXHIBIT C

INSURANCE REQUIREMENTS

SUNRAIL ATTORNEY SERVICES AGREEMENT

The following insurance requirements and limits of liability are required:

A. Workers’ Compensation & Employers’ Liability Insurance:

Workers’ Compensation: Statutory

Employers’ Liability: $ 500,000 Each Accident

$ 500,000 Disease Aggregate

$ 500,000 Disease Each Employee

B. Commercial General Liability Insurance:

$ 1,000,000 Per Occurrence

$ 2,000,000 General Aggregate

$ 2,000,000 Products and Completed Operations

$ 1,000,000 Personal and Advertising Injury

C. Business Automobile Liability Insurance:

$ 1,000,000 Combined Single Limit

(Any Auto or Owned, Hired, and

Non-Owned Autos)

D. Professional Liability: $ 5,000,000 Per Claim

E. Cyber Liability: $ 1,000,000 Per Occurrence

F. Crime and Employee Dishonesty Liability:

$ 1,000,000 Per Occurrence

~~ End Exhibit C ~~

Exhibit D

Agreement Name:

Agreement Number:

AFFIDAVIT OF E-VERIFY REQUIREMENTS COMPLIANCE

The CONSULTANT/CONTRACTOR agrees to comply with section 448.095, Florida Statutes, and to incorporate in all subcontracts the obligation to comply with section 448.095, Florida Statutes.

1. The CONSULTANT/CONTRACTOR shall utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all new employees hired by the CONSULTANT during the term of the Agreement and shall expressly require any subcontractors performing work or providing services pursuant to the Agreement to likewise utilize the U.S. Department of Homeland Security’s E- Verify system to verify the employment eligibility of all new employees hired by the subcontractor during the Agreement term.

2. That the CONSULTANT/CONTRACTOR understands and agrees that its failure to comply with the verification requirements of Section 448.095, Florida Statutes or its failure to ensure that all employees and subcontractors performing work under Agreement Number are legally authorized to work in the United States and the State of Florida,…