ATL Contract No. 22-064 Transit Fleet Inspection Contract

PROFESSIONAL SERVICES CONTRACT

FOR

TRANSIT FLEET INSPECTION SERVICES

THIS PROFESSIONAL SERVICES CONTRACT is made and entered into as of ________________ (the “Effective Date”), by and between the ATLANTA-REGION TRANSIT LINK AUTHORITY, a body corporate and politic and an instrumentality and public corporation of the State of Georgia (the “ATL”), and _____________, a __________ corporation, authorized to do business in the State of Georgia (the “Consultant” or “Contractor”).

ATL and Consultant may be referred to individually, as “Party” or collectively, as “Parties.”

WHEREAS, ATL desires to secure a qualified and experienced firm to perform professional services as more fully described in ATL Solicitation No. 22-064: RFP for Transit Fleet Inspection Services and any addenda thereto and any documents referenced therein (collectively, the “RFP”), and the Consultant’s Proposal and any documents referenced therein; and

WHEREAS, Consultant has represented to ATL that it is experienced and qualified and willing to provide all of the expertise needed to successfully provide the work and services more fully described in the RFP (collectively, the “Services”); and

WHEREAS, ATL has the authority to make such contracts as the legitimate and necessary purposes of ATL require pursuant to O.C.G.A. § 50-39-3; and

WHEREAS, ATL has relied upon such representations and selected the Consultant to furnish the Services; and

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows:

1. RECITALS. The recitals set forth above are true and correct and are incorporated into this Contract.

2. DEFINITIONS. Certain capitalized terms used herein shall have the meanings assigned to them as set forth in Exhibit A to this Contract. Any other capitalized term not specifically defined in this Contract will have the same meanings assigned in the RFP to that term.

3. INCLUSION AND PRIORITY OF DOCUMENTS. The Scope of Services, which is incorporated herein by reference as Exhibit B, the RFP, which is incorporated herein by reference as Exhibit C, and the Consultant’s Proposal (and any documents referenced therein) submitted in response to the RFP, which is incorporated herein by reference as Exhibit D (collectively, the “Consultant’s Proposal”), are integral parts of the agreement between ATL and the Consultant. This Contract, including all Amendments, documents, and exhibits referenced in the Contract (collectively, the "Contract"), the RFP and the Consultant’s Proposal shall be collectively referred to as the “Contract Documents.”

In the event of a conflict or ambiguity among parts of the Contract Documents, the following order of precedence applies:

1. Any formally executed Amendments to the Contract,

2. The Contract,

3. The Scope of Services, and

4. The RFP, and

5. The Consultant’s Proposal.

In the event of any conflict, ambiguity or inconsistency between or among any Contract Documents having the same order of precedence, the more stringent standard will prevail. However, where a lower priority document contains additional or supplemental details, those additional details shall take precedence except where they irreconcilably conflict with a higher priority document.

If the Consultant’s Proposal includes statement, offers, terms, concepts or designs that can reasonably be interpreted as offers to (i) provide higher quality items than otherwise required by the other Contract Documents or (ii) perform services or meet standards in addition to or better than those otherwise required, or (iii) otherwise contains terms or designs which are more advantageous to ATL than the other requirements of the other Contract Documents, as reasonably determined by ATL, then Consultant’s obligations under the Contract Documents include compliance with all such statements, offers, terms, concepts and designs.

4. CONTRACT TERM AND RENEWAL. This Contract shall be effective upon the Effective Date and shall expire three (3) years thereafter, ending at 11:59 pm (the “Initial Term”). ATL may elect to renew this Contract on the same terms and conditions for up to one (1) renewal period with a term of up to two (2) years (“Renewal Term”). Renewal of this Contract shall be at the sole discretion of ATL. The Initial Term and any Renewal Term may be referred to collectively as the "Term." Any extension of the Term of the Contract must be in writing and signed by the Parties to the Contract.

5. CONSULTANT RESPONSIBILITIES.

5.1. General. In performing the Services, the Consultant shall use the industry standard degree of care and skill ordinarily exercised by skilled professionals in the field under similar conditions. The Services to be performed by the Consultant under this Contract shall encompass and include all detail work, services, materials, and equipment, supplies necessary to provide Services in accordance with the ordinary practices in the industry.

5.2. Personnel. The Consultant shall employ only persons qualified as applicable in the appropriate category of Services to be performed. The Consultant shall use the key personnel set forth in the Consultant’s Proposal (“Key Personnel”), unless changes to the Consultant’s staff are approved in writing by ATL.

5.2.1. Right to Remove. ATL shall have the absolute right to require the Consultant to remove an employee from performing under this Contract based pm cause or other reasonable standard.

In the event of such removal, Consultant will replace the employee with the appropriate personnel within the time specified by ATL.

5.2.2. Consultant Project Manager. Consultant shall assign a Project Manager who shall interface with ATL (“Consultant Project Manager”), and any other person or persons authorized by ATL to represent ATL in some or all dealings with the Consultant (“ATL-designated Representatives”).

5.2.3. Key Personnel. A significant factor in ATL’s decision to award this Contract to Consultant is the level of expertise, knowledge and experience possessed by employees of Consultant, particularly Key Personnel and Consultant’s agreement to have employees possessing such expertise, knowledge and experience available at all times throughout the Initial Term and any Renewal Term, if applicable, to assist in the provision of the Services. Throughout the Initial Term and any Renewal Term, if applicable, Consultant shall employ individuals having significant training, expertise and experience in the areas or disciplines more particularly set forth in the Contract Documents, together with such other areas of expertise, knowledge and experience as may be designated by ATL from time to time during the Initial Term and any Renewal Term, if applicable. Consultant shall not substitute Key Personnel without the prior written approval of ATL. Any desired substitution shall be noticed to ATL, accompanied by the names and references of Consultant’s recommend substitute personnel. Notwithstanding any provision in the Contract Documents to the contrary, the Consultant’s project manager proposed by Consultant, any other lead proposed by the Consultant, any other individual for whom a resume was included in Consultant’s Proposal shall be considered Key Personnel.

5.3. Accuracy of Services. The Consultant shall be responsible for the accuracy of the Services and shall promptly correct its errors and omissions without additional compensation from ATL. Acceptance of the Services by ATL will not relieve the Consultant of the responsibility for subsequent correction of errors, the clarification of any ambiguities, or for the costs associated with any additional work, which may include costs caused by negligent errors in, or negligent omissions from, the plans prepared by the Consultant.

5.4. Interpretation of Information. At any time during the performance of any Services, the Consultant shall confer with ATL for the purpose of interpreting the information obtained and to correct any errors or omissions. These consultations, clarifications, or corrections shall be made without added compensation to the Consultant other than what has been provided for under the terms of this Contract.

The Consultant shall give immediate attention to these changes so there will be minimum delay to others.

5.5. Safety. The Consultant shall take all reasonable precautions in the performance of the Services and shall cause its employees, agents and sub-consultants to do the same. The Consultant alone shall be reasonable for the safety, efficiency, and adequacy of the Services, employees, agents and sub-consultants, and for any damage that may result from their actions or inactions.

6. PROJECT MANAGEMENT. ATL shall identify a project manager (“ATL Project Manager”) who shall act as and be ATL’s representative between ATL and the Consultant.

7. SUBCONTRACTING AND ASSIGNMENT.

7.1. Assignment. Consultant shall not assign, delegate, sublet or transfer this Contract or any rights under or interest in this Contract without the prior written consent of ATL, which shall not be unreasonably withheld.

7.2. Subcontracting. Nothing contained herein shall prevent Consultant from employing independent professional associates or subcontractors as Consultant may deem appropriate to assist in the performance of Services hereunder. However, Consultant shall not subcontract Services to subcontractors that are different from those subcontractors listed in the Consultant Proposal, without obtaining ATL’s prior written approval, which approval is within ATL’s sole discretion. ATL’s reserve the right to review all subcontracts prepared in connection with the Contract, and Consultant agrees that it shall submit to ATL any proposed subcontract documents together with subcontractors cost estimates for review and written concurrence of ATL no later than five (5) Business Days in advance of execution. Any contract between the Consultant and any subcontractors shall comply with all pertinent provisions to subcontractor’s responsibilities in connection with the Services of this Contract.

ATL’s approval of any assignment, sublet, or transfer shall not release the Consultant of any obligation under this Contract or as otherwise required by Law. All subcontracts in the amount of $10,000.00 or more shall include the provisions set forth in this Contract.

ATL shall have the right to require the Consultant to remove a subcontractor of Consultant from performing under this Contract, if in ATL’s sole opinion, such sub consultant (a) is not performing its portion of the Services satisfactorily, (b) is failing to cooperate as required in the Contract Documents,

(c) is posing a security risk to any project or to ATL’s business, (d) is otherwise breaching a term of the Contract Documents that is applicable to that portion of the Services being performed by the subcontractor, or (e) presence on a project is not in the best interest of ATL. In the event of removal, Consultant will replace the subcontractor with a suitable replacement within the time specified by ATL.

7.3. Consultant Remains Responsible. If Consultant subcontracts any of the Services to be performed under this Contract, Consultant shall be as fully responsible to ATL for the acts, errors, or omissions of Consultant’s subcontractor and of the persons employed by them as Consultant is for the acts and omissions of persons directly employed by Consultant. Consultant shall be obligated to assist ATL in the enforcement of any rights that ATL has against such subcontractor consultant. Notwithstanding any subcontract or agreement with any subcontractor, Consultant shall be fully responsible to ATL for all of the Services required pursuant to the Contract Documents. Notwithstanding any provision to the contrary, Consultant shall be responsible to ATL for all terms, conditions, liabilities, and responsibilities under the Contract Documents regardless of whether Consultant or its subcontractor, suppliers, independent consultants, agents or assigns perform any aspect of the Services.

7.4. Prompt Payments to Subcontractor. Consultant represents and agrees that for the duration of any

Term it shall make timely payments for Services properly performed to a subcontractor hereunder and Consultant shall indemnify and hold harmless ATL and the State for any liability for payment claimed by a subcontractor. All subcontract agreements between Consultant and subcontractor shall be in writing and shall contain all of the federal requirements and pertinent provisions of this Contract.

7.5. Failure to Comply. Any assignments or subcontracts made in violation of Sections 7.1 (Assignment) and/or 7.2 (Subcontracting) shall be null and void.

8. RELATIONSHIP OF THE PARTIES. Each Party, in the performance of this Contract, shall be acting in its individual capacity and not as an agent, employee, partner, joint venturer, or associate of the other Party. The employees, agents, partners or Consultants of one Party shall not be deemed or construed to be the employees, agents, partners or Consultants of the other Party for any purposes. Neither Party shall assume any liability of any type on behalf of the other Party or any of such other Party’s employees, agents, partners or Consultants. The Parties expressly understand and agree that Consultant is an independent Consultant of ATL in all manner and respect and that no Party to this Contract is authorized to bind the other Party to any liability or obligation or to represent in any way that it has such authority. Consultant shall be solely responsible for all payments to its subcontractor, agents, consultants, suppliers, employees, partners or any other parties with which it does business including, but not limited to, paying all benefits, taxes and insurance, including workmen’s compensation insurance, for Consultant’s employees.

9. EMPLOYMENT OF AUTHORITY’S PERSONNEL. Consultant shall not employ any person or persons in the employ of ATL for any work required by the terms of this Contract without the written permission of ATL except as may otherwise be provided for herein.

10. PROCESS. ATL will order from the Consultant, all or a portion of the Services as such Services, in the ATL’s sole opinion, is needed. The expected Project deliverables are set forth in Exhibit E (Schedule of Services).

The final schedule for all Project deliverables shall be agreed upon by the Parties at the initial kick off meeting scheduled as the first Project deliverable pursuant to Exhibit E.

10.1. Project Schedule. The performance time of each Service shall be set in Exhibit E (Schedule of

Services). Any Services performed before or after the time set forth in Exhibit E (Schedule of Services) will be ineligible for payment. Unless an extension of time is granted by ATL pursuant to Section 10.2 (Time Extensions) of this Contract, Consultant will successfully, fully and entirely complete and otherwise perform all Services as required in the Contract Documents.

10.2. Time Extensions. ATL will only grant an extension of time if the Consultant is delayed in the progress of the Services by (i) any act or neglect of ATL, (ii) an event listed in Section 28.3 (Time of the Essence; Force Majeure), or (iii) other governmental actions. If and when such event occurs, then the time of completion set forth shall be extended for such time equal to the time lost as a result of the delay. The Consultant expressly agrees that the Consultant's sole and exclusive remedy for such delay shall be an extension of time within which to perform the affected Services and that the Consultant shall not be entitled to any damages and shall make no demand for any damages. No such extension shall be made for delay occurring more than ten (10) Days before claim thereof is made in writing to ATL. In the case of a continuing cause of delay, only one claim is necessary, but no claim for a continuing delay shall be valid unless the Consultant, within ten (10) Days from the cessation of the delay, shall have given notice in writing to ATL as to the amount of additional time claimed.

In the event time for performance of a scheduled Service expires and the Consultant has not requested or if the ATL has denied an extension of the completion date, Consultant must nevertheless continue Services until the same is complete. No payment shall be made for Services performed after the expiration of the Service completion date except where a time extension has been executed by both Parties in accordance with this Section.

11. PAYMENT.

11.1. General.

11.1.1. For satisfactory performance of the Services, ATL hereby agrees to compensate the

Consultant for Services performed during the Initial Term in accordance with the prices set forth in Exhibit F (Consultant Rates) for each task set forth in Exhibit B (Scope of Services).

11.1.2. During the Renewal Term(s), if applicable, ATL shall compensate Consultant for satisfactory performance of the Services performed under Exhibit B (Scope of Services), as may be amended, in accordance with the hourly rate(s) set forth in Exhibit F (Consultant Rates).

11.1.3. ATL will also reimburse the Consultant as set forth in Section 11.15 (Expenses) for reasonable, actual and documented costs of necessary expenses associated with the performance of the Services provided such costs are preapproved in writing by ATL.

11.2. Maximum Not To Exceed. The maximum not to exceed amount for all Services performed under this

Contract during the Initial Term is $______________.

11.3. Trust Funds. All payments made by ATL to Consultant for the Services under the Contract Documents shall be held in trust by the Consultant for the purpose of paying its employees, agents, assigns, subcontractors and suppliers who provided any part of the Services.

11.4. Overpayment. In the event an overpayment is made to Consultant under this Contract, Consultant shall immediately refund to ATL the full amount of any such erroneous payment or overpayment following Consultant’s written notice of such erroneous payment or overpayment, as issued by ATL. If Consultant fails to refund the erroneous payment or overpayment within a thirty (30) Day period, ATL shall be entitled to interest at one percent per month on the amount not repaid from the date of overpayment.

11.5. Reduction of Payment for Non-Conforming Services. If any defined action, duty or service or other item of Services required by the Contract Documents is not performed by the Consultant in accordance with the requirements of the Contract Documents, the value of such action, duty or service or other item of Services will be determined by ATL and deducted from any invoice claiming such items for payment. If the Services or part thereof has been completed and is not in conformance with the Contract Documents, the Consultant will be notified and given the opportunity to correct any deficiencies within a time certain. Payment (for the non-conforming Services) will be withheld by ATL from any invoice until such time as the Services is corrected in accordance with the Contract Documents.

11.6. Withholding Payments. ATL reserves the right to withhold payment or payments in whole or in part, and to continue to withhold any such payments for Services not completed or not completed in accordance with the Contract Documents. ATL may withhold all or part of any amounts due Consultant to protect ATL from a loss, including but not limited to, losses caused by the following: (a) failure or alleged failure of Consultant to make proper payments to its subcontractors for Services; (b) failure of Consultant to carry out/or remedy the Services in accordance with the Contract; or (c) Consultant’s breach of warranties.

Any and all such payment previously withheld shall be released and paid to Consultant promptly when the Services is subsequently performed in accordance with the Contract Documents.

11.7. Payment not Acceptance. Payment or use of any Services or portions thereof by ATL shall not constitute an acceptance of any Services not performed in accordance with the Contract Documents.

11.8. Net 30 Days. Provided all the conditions in this Section 11 have been met to ATL’s satisfaction, and

Consultant is not otherwise in breach of this Contract, ATL’s agrees to pay Consultant in accordance with ATL’s normal processes and procedures for all undisputed amounts within thirty (30) Days of the later of a review, if any, undertaken by ATL pursuant to Section 16.1 (Review of Services) or ATL’s receipt of a valid invoice. If ATL objects to any invoice submitted by Consultant, ATL shall so advise Consultant in writing giving reasons therefor within fourteen (14) Business Days of receipt of such invoice. If any invoice submitted by Consultant is disputed by ATL, only that portion so disputed may be withheld from payment.

11.9. Invoicing. The Consultant shall deliver to ATL an invoice on a monthly basis, as applicable, by the tenth (10) Day of the month following the month in which Services was performed. Each invoice shall only include a request for payment for a deliverable or other item of the Services that was completed and accepted in the previous month as those requirements are set forth in the Contract Documents for such deliverable or other item of Services. The Consultant shall submit separate invoices as each Service is completed. The Consultant may submit invoices for partial payment of Services in accordance with the requirements of Exhibit F (Consultant Rates). The Consultant agrees to provide an accompanying monthly Project progress report in a format acceptable to ATL which will outline in written and, if requested, graphic form the various phases and the order of performance of the Services in sufficient detail so that the progress of the Services can easily be evaluated. Partial payments to the Consultant shall correspond to the progress of Services achieved. ATL will be entitled at all times to be advised at its request as to the status of Services being done by the Consultant and the details thereof.

Consultant shall also provide the following with each invoice: all other documents, records, correspondence and deliverables which Consultant and other persons performing the Services are required to provide ATL under the Contract.

All invoices shall reference ATL Contract No. 22-064. The applicable invoice addresses for ATL is as follows:

ATLANTA-REGION TRANSIT LINK AUTHORITY

Attn: Accounts Payable 245 Peachtree Center Avenue, NE, Suite 2200 Atlanta, GA 30303-1426 Email: einvoices@srta.ga.gov

11.10. End of Fiscal Year. No later than the second Friday of July of each year, Consultant must submit to

ATL outstanding invoices or progress reports for Services successfully completed or supplied during the period of July 1st – June 30th of that year. Progress reports shall include a description of the Services that has been successfully completed or supplied and an estimated cost for the Services.

Failure to adhere to this requirement may result in non-payment for the Services. ATL reserves its right to dispute part or all of an invoice and to withhold payment for any Services that was not successfully completed or supplied.

11.11. Late Fees. ATL shall not be liable for late fees, collection fees, attorney’s fees, interest, or other fees incurred by the Consultant as a result of non-payment or a delay in payment by ATL.

11.12. Right of Set Off. ATL may retain or set off any amount owed to it by Consultant.

11.13. Full Compensation. All Services performed by the Consultant in meeting the requirements of the

Contract Documents shall be paid as set forth herein, which shall constitute full compensation for the Services, including but not limited to: (a) the cost of all insurance and bond premiums, home office, job site and other overhead, and profit relating to Consultant’s performance of its obligations under this Contract; (b) the cost of performance of each and every portion of the Services (including all costs of all Services provided by subcontractors and suppliers); (c) the cost of obtaining all governmental approvals and all costs of compliance with and maintenance of such governmental approvals; (d) all risk of inflation, currency risk, interest and other costs of funds associated with the partial payment schedule for the Services as provided herein; and (e) payment of any taxes, duties, permits and other fees and/or royalties imposed with respect to the Services and any equipment, materials, supplies, documentation, labor or services included therein.

11.14. Overtime. Unless otherwise authorized in writing by ATL, no premium pay or overtime will be considered compensable and will not be paid by ATL.

11.15. Expenses. Consultant shall include in each Invoice and ATL shall reimburse Consultant for reasonable, actual and documented out-of-pocket expenses that are pre-approved in writing by ATL and incurred in connection with the performance of the Services, including air fare, meals, ground transportation, parking), communication, reproduction and other such incidental and actual costs which are reasonable and customary pursuant to industry standards for such expenses incurred during the time period covered by such Invoice. Consultant will be reimbursed for travel necessary to perform the Services requested in this Contract in accordance with the State and ATL travel policies, procedures which may be found at https://sao.georgia.gov/state-travel-policy and prevailing per diem rates which may be found at http://www.gsa.gov/portal/content/104877 and are incorporated herein by reference and made a part of this Contract. Consultant shall provide receipts or other proof of actual cost incurred prior to receiving reimbursement. Notwithstanding the above, ATL wiII not reimburse Consultant for time spent or costs incurred traveling to and from ATL's office and Consultant's Georgia office(s). ATL will not withhold any taxes on amounts paid to Consultant, and all federal, state and local taxes will be Consultant's responsibility to pay. ATL will not reimburse Consultant for any such taxes.

11.16. DBE Compliance. Where Consultant has indicated its intent to perform some or part of the Services as a Disadvantaged Business Enterprise “DBE” Subcontractor in the Consultant Proposal, Consultant shall be required to submit to ATL a completed notice of intent to perform as a DBE subcontractor, as set forth in Exhibit H - ATL Notice of Intent to Perform as Subcontractor Form. Thereafter, for any invoice submitted to ATL, Consultant shall comply with and complete the necessary DBE Subcontractor Payment Report, where applicable, and as set forth in Exhibit I (ATL DBE Subcontractor Payment Report). Upon conclusion of the Contract, Consultant shall submit the DBE/SBE contract close-out form and any applicable documentation, as set forth more fully in Exhibit J - DBE/SBE Utilization Contract Close-Out Report.

12. INDEMNIFICATION.

12.1. General Liability. The Consultant shall be responsible to ATL for those costs, expenses, liabilities, allegations, claims, bodily injuries, including death, or damage to real or personal property, arising out of or resulting from any wrongful and/or negligent act or omission, the breach of contract, the failure to perform, or other default regarding the Services by the Consultant, its employees, agents, or any of its subcontractors or others working at the direction of the Consultant or on its behalf.

12.2. General Indemnification. Consultant hereby agrees to indemnify and hold harmless ATL, the State of Georgia and its departments, other authorities, agencies and instrumentalities and all of their respective officers, members, employees and directors (hereinafter collectively referred to as the "Indemnitees") from and against any and all claims, demands, liabilities, losses, costs or expenses, https://sao.georgia.gov/state-travel-policy http://www.gsa.gov/portal/content/104877 including reasonable attorneys' fees, due to liability to a third party or parties, for any loss due to bodily injury (including death), personal injury, and property damage arising out of or resulting from the negligent performance of this Contract or any negligent act, error or omission on the part of the Consultant, its agents, employees, subcontractors or others working at the direction of Consultant or on its behalf, or due to any breach of this Contract by the Consultant, or due to the application or violation of any pertinent Federal, State or local law, rule or regulation by the Consultant or its sub consultants.

This indemnification extends to the successors and assigns of the Consultant. This indemnification obligation survives the termination of the Contract and the dissolution or, to the extent allowed by law, the bankruptcy of the Consultant. If and to the extent such damage or loss (including costs and expenses) as covered by this indemnification is paid by the State Tort Claims Trust Fund, the State Authority Liability Trust Fund, the State Employee Broad Form Liability Fund, the State Insurance and Hazard Reserve Fund, and other self-insured funds (all such funds hereinafter collectively referred to as the "Funds") established and maintained by the State of Georgia Department of Administrative Services Risk Management Division (hereinafter "DOAS") the Consultant agrees to reimburse the Funds for such monies paid out by the Funds.

12.2.1. DOAS. Risk Management will endeavor to notify affected insurers of claims made against the

State that fall within this indemnity. In the event of litigation, ATL will request the Attorney General to endeavor to keep the Consultant and its general liability insurer as named on the insurance certificate informed regarding the claims and settlement.

12.3. Intellectual Property Indemnification. Contractor represents and warrants that all Services furnished by Contractor and that all Services, as a whole and each of its components shall not infringe any third party copyright, trademark, trade secret or other intellectual property right. In case the Services or any component of the Services is held to constitute an infringement of the copyrights or other intellectual property rights of a third party and its use is enjoined, the Contractor at the Contractor's sole cost and expense, shall promptly: (a) secure for ATL, its representatives, agents, and designees the right to continue using the infringing item by suspension of the injunction or by procuring a perpetual, non-revocable, paid-up, royalty-free, assignable, non-exclusive license(s) to reproduce, publish, or otherwise use for ATL's direct purposes; or (b) replace the infringing item with a non-infringing substitute that meets the requirements of the Contract Documents; or (c) modify the infringing item so that it becomes non-infringing provided the resulting Services meet the requirements of the Contract Documents. If the amount of time necessary to proceed with one of these options is deemed excessive by ATL, ATL may direct the Contractor to select another option or risk default. Nothing in this provision shall be deemed to limit or condition ATL's rights otherwise set forth in the Contract, including termination. Contractor shall indemnify and hold harmless ATL and the State from and against all suits or claims or loss for infringement of any intellectual property rights resulting from the use by ATL or any of its employees or agents of Services performed pursuant to the Contract Documents. This intellectual property infringement provision shall not apply to any infringement or alleged infringement which is the result of or arises out of ATL, its employees or agents modifying or altering any part or component of the Services, except as consented to by Contractor.

12.4. Disclaimer of Consequential Damages. Notwithstanding any provision to the contrary, in no event shall any Party be liable to another Party for any incidental, consequential, special, exemplary or indirect damages, lost business profits or lost data arising out of or in any way related to the Contract Documents.

12.5. Obligations Not Mutually Exclusive. The Consultant’s obligations under this Section 12 are in addition to Consultant’s obligations under Section 13 (Insurance).

13. INSURANCE.

13.1. Insurance Certificates. The Consultant shall procure the insurance coverages identified below at the

Consultant’s expense and shall furnish ATL an insurance certificate listing ATL as the certificate holder and an endorsement listing ATL as an additional insured for the acts or omissions of Consultant or the Consultant Parties in relation to the commercial general liability and business automobile liability insurance. Such additional insured requirement may be met on a blanket additional insured basis.

Evidence of insurance coverages shall be provided on the standard ACORD form acceptable to ATL and the Georgia Office of the Insurance Commissioner. Should any of the policies described herein be cancelled before the expiration date thereof or revised in a material way, Consultant shall notify ATL within seven (7) Days of Consultant’s notice of such cancellation or change. The insurance certificate must provide the (a) name and address of authorized agent; (b) name and address of insured; (c) name of insurance company(ies); (d) description of policies; (e) policy number(s); (f) policy period(s); (g) limits of liability; (h) name and address of ATL as certificate holder; (i) Project Name and Number; (j) signature of authorized agent; and (k) telephone number of authorized agent.

13.2. Insurer Qualifications, Insurance Requirements. Each of the insurance coverages required below

(i) shall be issued by a company licensed by the Insurance Commissioner to transact the business of insurance in the State of Georgia for the applicable line of insurance, and (ii) shall be an insurer (or, for qualified self-insureds or group self-insureds, a specific excess insurer providing statutory limits) with a Best Policyholders Rating of "A-" or better and with a financial size rating of Class V or larger.

Each such policy shall contain the following provisions:

13.2.1. Consultant shall provide at least thirty (30) Days prior written notice of cancellation or nonrenewal to ATL. Such notice shall be valid only as to the Project as shall have been designated by Project Number and Name in said notice. Consultant shall provide written notice of any material changes to the policy to ATL within three (3) Business Days of Consultant’s receipt of notice of any changes or proposed changes from the insurance company;

13.2.2. the policy shall not be subject to invalidation as to any insured by reason of any act or omission of another insured or any of its officers, employees, agents or other representatives ("Separation of Insureds");

13.2.3. each Insurer is hereby notified that the statutory requirement that the Attorney General of

Georgia shall represent and defend the Indemnities remains in full force and effect and is not waived by issuance of any policy of insurance. In the event of litigation, any settlement on behalf of the indemnities must be expressly approved by the Attorney General. The Consultant and its insurance carrier may retain, but are not obligated to retain, counsel to assist with the defense of the Indemnities, in which case there will be mutual cooperation between the Attorney General and such counsel. See O.C.G.A. § 45-15-12;

13.2.4. all deductibles shall be paid for by the Consultant.

13.3. Required Insurance Coverages. The Consultant also agrees to purchase insurance and have the authorized agent state on the insurance certificate that the Consultant has purchased the following types of insurance coverages, consistent with the policies and requirements of O.C.G.A. § 50-21-37.

The minimum required coverages and liability limits are as follows:

13.3.1. Workers' Compensation Insurance. The Consultant agrees to provide at a minimum

Workers' Compensation coverage in accordance with the statutory limits as established by the General Assembly of the State of Georgia. A group insurer must submit a certificate of authority from the Insurance Commissioner approving the group insurance plan. A self-insurer must submit a certificate from the Georgia Board of Workers’ Compensation stating the Consultant qualifies to pay its own workers’ compensation claims. The Consultant shall require all Subconsultants performing Work under this Contract to obtain an insurance certificate showing proof of Workers' Compensation Coverage and shall submit a certificate on the letterhead of the Consultant in the following language:

This is to certify that all subconsultants performing Services on this Project are covered by their own workers' compensation insurance or are covered by the Consultant’s workers’ compensation insurance.

13.3.2. Commercial General Liability Insurance. The Consultant shall provide Commercial

General Liability Insurance (2001 ISO Occurrence Form or equivalent) of at least $1,000,000.00 per Occurrence and $2,000,000.00 General Aggregate.

13.3.3. Commercial Business Automobile Liability Insurance. If the Consultant will use or provide for the use of motor vehicles in performing the Services as set forth in the Contract Documents, then Consultant shall provide Commercial Business Automobile Liability Insurance that shall include coverage for bodily injury and property damage arising from the operation of any owned, non-owned, or hired automobile. The Commercial Business Automobile Liability Insurance Policy shall provide not less than $1,000,000 Combined Single Limits for each occurrence.

13.3.4. Professional Liability (Errors and Omissions) Insurance. Limits shall not be less than the following:

For Professionals – $1,000,000 per claim and $2,000,000 in aggregate coverage;

For Other Consultants – $1,000,000 per claim and $2,000,000 in aggregate coverage.

The Consultant shall maintain professional liability insurance that shall be either a practice policy or project-specific coverage. Professional liability insurance shall contain prior acts coverage for services performed by the Consultant for this Project. If project-specific coverage is used, these requirements shall be continued in effect for two years following issuance of the Certificate of Final Completion for the Project.

13.3.5. Commercial Umbrella Liability Insurance. The Consultant shall provide a Commercial Umbrella Liability Insurance to provide excess coverage above the Commercial General Liability, Commercial Business Automobile Liability and the Workers' Compensation and Employers' Liability to satisfy the minimum limits set forth herein. The umbrella coverage shall follow form with the Umbrella limits required as follows:

$1,000,000 per Occurrence/$1,000,000 Aggregate

13.3.6. Disposition of Insurance Documents. One original certificate of insurance with all endorsements attached must be deposited with ATL for each insurance policy required.

14. CONSULTANT REPRESENTATIONS. The Consultant represents and warrants to ATL and agrees that throughout the Term that:

14.1. Licenses. The Consultant has and will maintain and keep in full force and effect during the term of the

Contract all required licenses, certifications, and permits necessary to perform all or part of the Services; and

14.2. Organization. The Consultant is authorized to do business in the State of Georgia;

14.3. Authorization by Consultant. The Consultant has authorized the execution, delivery, and performance of this Contract;

14.4. Authorization of Signer. The person signing this Contract has been duly authorized by Consultant to execute and deliver same;

14.5. Valid Contract. This Contract is valid, enforceable, and legally binding obligation of the Consultant;

14.6. Cooperation. Consultant shall fully cooperate with ATL, the ATL-designated Representative, ATL’s other consultants and vendors, and any other governing authority, in furnishing all the Services required by the Contract Documents.

14.7. Services/Labor. All deliverables, documentation, Services, services and labor shall (a) conform to the performance, capabilities, accuracy, completeness, characteristics, specifications, configurations, standards, and functions required by the Contract Documents, and (b) be performed per mutually agreed schedules, and in a workmanlike manner, and in accordance with the standard of care and skill exercised by other providers of similar labor and services under similar circumstances at the time the labor and services are provided.

14.8. Intellectual Property. As used in this Contract, “Intellectual Property” shall mean any and all know-how, inventions, patents, copyrights, models, designs, trademarks, trade dress, trade secrets, discoveries, regulatory filings, or other information (whether or not patentable and whether or not in tangible or intangible form), and any other industrial or proprietary rights, and any documentation relating thereto, and any and all applications for any of the forgoing, whether or not registered as of the Effective Date or at any later date. Consultant represents that Consultant, its agents, employees, subcontractors and assigns will neither violate nor in any way infringe upon the Intellectual Property rights of ATL or of any other third party.

15. COOPERATION. ATL shall be entitled to full and prompt cooperation of the Consultant in all aspects of the

Services. Consultant shall also fully and promptly cooperate with ATL’s consultants, vendors, and other consultants and other governmental entities, all as directed by ATL. Such cooperation shall include attendance at meetings, discussions, and hearings, as may be requested by ATL, furnishing plans and other data produced in the course of Services for ATL projects, as may be requested from time to time by ATL to effect such cooperation, and compliance will all directives issued by ATL. In the event the Consultant deems that any other of ATL’s consultants/vendors or other third parties is delaying the Services or otherwise interfering with the Services, Consultant shall immediately notify ATL in writing of this matter, including a detailed explanation of such delay so that ATL may investigate the issue and assist with a resolution.

Consultant’s failure to furnish a detailed written notification within seven (7) Business Days after any consultant, vendor, and/or other third party first failed to cooperate with Consultant or otherwise improperly performed their work, shall result in ATL’s denial of any future claim by Consultant that such third party failed to properly perform their work or failed to cooperate with Consultant and Consultant shall be deemed to have waived such claim and Consultant shall be held to any applicable requirement under the Contract Documents that Consultant alleges is affected thereby.

16. REVIEW/AUDITS.

16.1. Review of Services. ATL and its ATL-designated Representatives, may at all reasonable times have access to review and inspect the Consultant’s activities and data collected under the terms of the Contract Documents. All books, documents, plans, papers, records, reports, drawings, studies, specifications, estimates, maps and computations, prepared by or for the Consultant under the terms of the Contract Documents, shall be available to ATL and its ATL-designated Representatives for inspection and review at all reasonable times in ATL’s offices. Acceptance of any Services by ATL shall not relieve the Consultant of its obligation to correct, at its expense, any of its errors in the Services.

16.2. Records Retention. The Consultant and any sub consultants shall keep available for inspection and maintain all books, documents, papers, accounting records, and evidence pertaining to costs incurred as a result of the performance of Services under the Contract Documents and make available at all reasonable times to ATL and the State, for a period of five (5) years after receipt of final payment.

Notwithstanding the preceding sentence, if any litigation, claim, or audit arising out of, in connection with, or related to this Contract is initiated before the expiration of the five-year period, the cost records and accounts shall be retained until such litigation, claim or audit involving the records is completed.

Copies of these documents and records will be furnished to ATL upon request and may be audited by ATL-designated Representatives.

16.3. Audit. ATL or ATL-designated Representatives may audit Consultant’s books and records and perform any other review necessary in order to determine the accuracy of any Consultant invoice upon reasonable prior notice and during business hours. In the event such an audit reveals that ATL was overcharged by five (5%) percent or more during the time period covered by the audit, then Consultant shall pay for all costs and expenses incurred by ATL or ATL -designated Representatives in performing such audit.

17. OWNERSHIP OF DOCUMENTS. The Consultant agrees that all reports, drawings, studies, specifications, estimates, maps, computations, computer files and other data, prepared pursuant to the Contract Documents shall be delivered to, become and remain in the property of ATL upon the earlier of termination or completion of the Services. ATL shall have the right to use same without restriction or limitation and without compensation to the Consultant other than that provided for in this Contract. Any use of these documents by ATL on any project other than the Project which was the subject of the applicable Service under which the documents were prepared shall be done without liability by the Consultant. Notwithstanding the above, if any of the Services are based on Intellectual Property owned by Consultant prior to the Effective Date (“Consultant Intellectual Property”), then all such reports, drawings, studies, specifications, survey notes, estimates, maps, computations, computer files and other data, prepared pursuant to the Contract Documents shall be delivered to, become and remain in the property of ATL with the exception of such Consultant Intellectual Property, for which Consultant hereby grants ATL an irrevocable, non exclusive, non transferable and royalty free license to use such Consultant Intellectual Property. Consultant shall not publish or make public any of the Services or by-products therefore unless required by law or authorized in writing by the Executive Director of ATL. In such case Consultant shall notify ATL as far in advance as possible to allow ATL, if it deems appropriate, to seek legal redress to prevent such publication.

18. INTELLECTUAL PROPERTY.

18.1. Work Made for Hire. To the extent possible, any papers, interim reports, forms, and other material which are a part of the Services specifically developed and created by Consultant pursuant to the Contract Documents shall be deemed a "work made for hire" for ATL, with ATL being deemed the author thereof with all rights, title and interest in all such Services and other work product owned by ATL (collectively, “Work Product”). In the event that any such Work Product is deemed not to be a work made for hire for ATL, then with the exception of any pre-existing Intellectual Property rights owned by Consultant that were used in performing the Services, Consultant hereby irrevocably assigns to ATL all right, title and interest in all such work including, without limitation, all Intellectual Property rights with respect thereto, and further agrees to execute and deliver such other and further assignments, certificates of originality and other documents and instruments as reasonably requested by ATL in order for ATL to evidence and perfect its ownership of all rights with respect thereto. Consultant acknowledges and agrees that the provisions of this Section apply regardless of any disputes, payment issues or other claims that may exist between the Parties, and that ATL’s ownership of all rights with respect to such Work Product is unconditional. Such Work Product shall include any and all modifications, improvements, adaptations, revisions, updates, releases, new versions, derivative works, and documentation (including any specifications, copies, notes, summaries or analyses) comprising, based on, derived from, or related to any work made for hire, including any of the foregoing that is conceived, discovered, invented, created, developed or made by Consultant or its agents, employees, sub consultants or suppliers, or any other entity or person with whom Consultant entered into an agreement to perform any portion of the Services required of Consultant under the Contract Documents (collectively, "Consultant Parties"). None of the Consultant Parties shall have any proprietary interest in such Work Product. The Consultant Parties shall not assert any ownership interest or conditions to executing assignments and other documents to evidence and perfect ATL’s ownership of all rights in and to same, and any claims that the Consultant Parties may have against

ATL shall exclude claims challenging ATL’s ownership of same. In the event this Contract is terminated, all Work Product whether completed or not shall be delivered to ATL within ten (10) Days from the date of termination. To the extent any Consultant Intellectual Property is incorporated into any Services, then Consultant agrees to and does hereby grant to ATL and to the State an irrevocable, non exclusive, non transferable and royalty free license to use such Intellectual Property.

18.2. Ownership of Data/Security. All data, records and operations history information in any way relating to this Contract, ATL, its customers, shall remain the property of ATL at all times during the Contract and after Contract termination for whatever reason.

19. TERMINATION.

19.1. Termination for Cause. Upon an Event of Default as defined in Section 23.1 (Event of Default), ATL may, in their sole discretion, terminate this Contract,…