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property damage, which may arise from the negligent operations of the Consultant or its
<br />subcontractors, agents, employees, or other persons acting on their behalf which relates to
<br />the services described in section 1 of this Agreement; and (2) from any third -party claim that
<br />personal injury, damages, just compensation, restitution, judicial or equitable relief is due by
<br />reason of the terms of or effects arising from this Agreement. This indemnity and hold
<br />harmless agreement applies to all claims for damages, just compensation, restitution, judicial
<br />or equitable relief suffered, or alleged to have been suffered, by reason of the events referred
<br />to in this Section or by reason of the terms of, or effects, arising from this Agreement. The
<br />Consultant further agrees to indemnify, bold harmless, and pay all costs for the defense of
<br />the City, including reasonable fees and costs for special counsel to be selected by the City,
<br />regarding any action by a third party challenging the validity of this Agreement, or asserting
<br />that personal injury, damages, just compensation, restitution, judicial or equitable relief due
<br />to personal or property rights arises by reason of the terms of, or effects arising from this
<br />Agreement. City may make all reasonable decisions with respect to its representation in any
<br />legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are
<br />subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent
<br />required by Civil Code Section 2782.8, to claims that arise of, pertain to, or relate to the
<br />negligence, recklessness, or willful misconduct of the Consultant.
<br />b. EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT, BREACH OF
<br />CONFIDENTIALITY, AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT
<br />SHALL CONSULTANT'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR
<br />RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER
<br />ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT OF INSURANCE
<br />COVERAGE UNDER THE POLICY LIMITS AS AGREED TO BY THE PARTIES IN
<br />SECTION 7 ABOVE, REGARDLESS AS TO WHETHER SAID POLICY LIMITS ARE
<br />PAID IN -WHOLE OR IN -PART BY CONSULTANT'S INSURER.
<br />c. EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT, BREACH OF
<br />CONFIDENTIALITY, AND INDEMNIFICATION OBLIGATIONS, AND
<br />NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
<br />THE PARTIES EXPRESSLY AGREE THAT IN NO EVENT SHALL CONSULTANT
<br />HAVE ANY LIABILITY TO THE CITY FOR ANY LOST PROFITS OR FOR ANY
<br />INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL
<br />DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED, INCLUDING
<br />WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, SUBSTITUTE
<br />GOODS OR SERVICES, WORK STOPPAGE, DATA LOSS, LOST PROFIT OR
<br />COMPUTER FAILURE, INCURRED BY THE CITY OR ANY THIRD PARTY,
<br />WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF
<br />LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE
<br />POSSIBILITY OF SUCH DAMAGES.
<br />9. INTELLECTUAL PROPERTY INDEMNIFICATION
<br />Consultant shall defend, indemnify and hold harmless the City, its officers, agents, representatives,
<br />and employees against any and all liability, including costs, and attorney's fees, for infringement
<br />of any United States' letters patent, trademark, or copyright contained in the work product,
<br />Deliverables or documents provided by Consultant to the City pursuant to this Agreement.
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