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Violation of this section by the CONSULTANT or its sub-consultants or subcontractors may result in termination of
<br /> this AGREEMENT and demand for return of all State's Confidential Information, monetary damages, or penalties.
<br /> It is understood and acknowledged that the CONSULTANT may provide the AGENCY with information which
<br /> is proprietary and/or confidential during the term of this AGREEMENT. The parties agree to maintain the
<br /> confidentiality of such information during the term of this AGREEMENT and afterwards. All materials containing
<br /> such proprietary and/or confidential information shall be clearly identified and marked as"Confidential"and shall
<br /> be returned to the disclosing party at the conclusion of the SERVICES under this AGREEMENT.
<br /> The CONSULTANT shall provide the AGENCY with a list of all information and materials it considers confidential
<br /> and/or proprietary in nature: (a) at the commencement of the term of this AGREEMENT; or(b) as soon as such
<br /> confidential or proprietary material is developed. "Proprietary and/or confidential information" is not meant to
<br /> include any information which, at the time of its disclosure: (i) is already known to the other party; (ii) is rightfully
<br /> disclosed to one of the parties by a third party that is not acting as an agent or representative for the other party;
<br /> (iii) is independently developed by or for the other party; (iv) is publicly known; or(v) is generally utilized by
<br /> unaffiliated third parties engaged in the same business or businesses as the CONSULTANT.
<br /> The parties also acknowledge that the AGENCY is subject to Washington State and federal public disclosure
<br /> laws. As such,the AGENCY shall maintain the confidentiality of all such information marked proprietary and/
<br /> or confidential or otherwise exempt, unless such disclosure is required under applicable state or federal law. If a
<br /> public disclosure request is made to view materials identified as"Proprietary and/or confidential information"or
<br /> otherwise exempt information,the AGENCY will notify the CONSULTANT of the request and of the date that such
<br /> records will be released to the requester unless the CONSULTANT obtains a court order from a court of competent
<br /> jurisdiction enjoining that disclosure. If the CONSULTANT fails to obtain the court order enjoining disclosure,the
<br /> AGENCY will release the requested information on the date specified.
<br /> The CONSULTANT agrees to notify the sub-consultant of any AGENCY communication regarding disclosure that
<br /> may include a sub-consultant's proprietary and/or confidential information. The CONSULTANT notification to the
<br /> sub-consultant will include the date that such records will be released by the AGENCY to the requester and state
<br /> that unless the sub-consultant obtains a court order from a court of competent jurisdiction enjoining that disclosure
<br /> the AGENCY will release the requested information. If the CONSULTANT and/or sub-consultant fail to obtain
<br /> a court order or other judicial relief enjoining the AGENCY by the release date,the CONSULTANT shall waive
<br /> and release and shall hold harmless and indemnify the AGENCY from all claims of actual or alleged damages,
<br /> liabilities,or costs associated with the AGENCY's said disclosure of sub-consultants' information.
<br /> XX. Records Maintenance
<br /> During the progress of the Work and SERVICES provided hereunder and for a period of not less than six(6)years
<br /> from the date of final payment to the CONSULTANT,the CONSULTANT shall keep,retain and maintain all
<br /> "documents" pertaining to the SERVICES provided pursuant to this AGREEMENT. Copies of all "documents"
<br /> pertaining to the SERVICES provided hereunder shall be made available for review at the CONSULTANT's place
<br /> of business during normal working hours. If any litigation, claim or audit is commenced,the CONSULTANT shall
<br /> cooperate with AGENCY and assist in the production of all such documents. "Documents" shall be retained until
<br /> all litigation, claims or audit findings have been resolved even though such litigation, claim or audit continues past
<br /> the six(6)year retention period.
<br /> For purposes of this AGREEMENT, "documents" means every writing or record of every type and description,
<br /> including electronically stored information("ESI"),that is in the possession, control,or custody of the
<br /> CONSULTANT, including, without limitation, any and all correspondences, contracts,AGREEMENT '5,
<br /> appraisals, plans, designs, data, surveys, maps, spreadsheets, memoranda, stenographic or handwritten
<br /> notes, reports, records,telegrams, schedules, diaries,notebooks, logbooks, invoices,accounting records,
<br /> work sheets, charts, notes, drafts, scribblings, recordings, visual displays, photographs,•minutes of meetings,
<br /> Agreement Number:
<br /> Local Agency A&E Professional Services Cost Plus Fixed Fee Consultant Agreement Page 13 of 14
<br /> Revised 08/15/2019
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