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relates to the services described in section 1 of this second Agreement; and (2) from any claim that
<br />personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the
<br />terms of or effects arising from this second Agreement. This indemnity and hold harmless agreement
<br />applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or
<br />alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms
<br />of, or effects, arising from this second Agreement. The Consultant further agrees to indemnify, hold
<br />harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be
<br />selected by the City, regarding any action by a third party challenging the validity of this second
<br />Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable
<br />relief due to personal or property rights arises by reason of the terms of, or effects arising from this second
<br />Agreement. City may make all reasonable decisions with respect to its representation in any legal
<br />proceeding. Notwithstanding the foregoing, to the extent Consultant Services are subject to Civil Code
<br />Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8,
<br />to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the
<br />Consultant.
<br />8. RECORDS
<br />Consultant shall keep records and invoices in connection with the work to be performed under this
<br />second Agreement. Consultant shall maintain complete and accurate records with respect to the costs
<br />incurred under this second Agreement and any services, expenditures, and disbursements charged to the
<br />City for a minimum period of three (3) years, or for any longer period required by law, from the date of
<br />final payment to Consultant under this second Agreement. All such records and invoices shall be clearly
<br />identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or
<br />copies of such records and any other documents created pursuant to this second Agreement during regular
<br />business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities
<br />related to this second Agreement for a period of three (3) years from the date of final payment to
<br />Consultant under this second Agreement.
<br />9. CONFIDENTIALITY
<br />If Consultant receives from the City information which due to the nature of such information is
<br />reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or
<br />disclose such information except in the performance of this second Agreement, and further agrees to
<br />exercise the same degree of care it uses to protect its own information of like importance, but in no event
<br />less than reasonable care. "Confidential Information" shall include all nonpublic information.
<br />Confidential information includes not only written information, but also information transferred orally,
<br />visually, electronically, or by other means. Confidential information disclosed to either party by any
<br />subsidiary and/or agent of the other party is covered by this second Agreement. The foregoing obligations
<br />of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly
<br />available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is
<br />in rightful possession of the Consultant an obligation of confidentiality; (d) is required to be disclosed by
<br />operation of law; or (e) is independently developed by the Consultant without reference to information
<br />disclosed by the City.
<br />10. CONFLICT OF INTEREST CLAUSE
<br />Consultant covenants that it presently has no interests and shall not have interests, direct or
<br />indirect, which would conflict in any manner with performance of services specified under this second
<br />Agreement.
<br />25F-6
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