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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 parry 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 (`BSI"), that is in the possession, control, or custody of the
<br />CONSULTANT, including, without limitation, any and all correspondences, contracts, AGREEMENTs, appraisals,
<br />plans, designs, data, surveys, maps, spreadsheets, memoranda, stenographic or handwritten notes, reports, records,
<br />telegrams, schedules, diaries, notebooks, logbooks, invoices, accounting records, work sheets, charts, notes, drafts,
<br />scribblings, recordings, visual displays, photographs, minutes of meetings, tabulations, computations, summaries,
<br />inventories, and writings regarding conferences, conversations or telephone conversations, and any and all other
<br />taped, recorded, written, printed or typed matters of any kind or description; every copy of the foregoing whether
<br />or not the original is in the possession, custody, or control of the CONSULTANT, and every copy of any of the
<br />foregoing, whether or not such copy is a copy identical to an original, or whether or not such copy contains any
<br />commentary or notation whatsoever that does not appear on the original.
<br />Agreement Number: KCPW2017-19EN -V 1
<br />Local Agency ABE Professional Services Negotiated Hourly Rate Consultant Agreement Page 13 of 14
<br />Revised 4/10/2015
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