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<br />d. If Consultant fails or refuses to produce or maintain the insurance req uired by
<br />this section or fails or refuses to furnish the City with required proof that insurance has
<br />been procured and is in force and paid for, the City shall have the right, at the City's
<br />election, to forthwith terminate this Agreement. Such termination shall not effect
<br />Consultant's right to be paid for its time and materials expended prior to notification of
<br />termination. Consultant waives the right to receive compensation and agrees to indemnify
<br />the City for any work performed prior to approval of insurance by the City.
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<br />6. INDEMNIFICATION
<br />
<br />Consultant agrees to and shall indemnify and hold harmless the City, its officers,
<br />agents, employees, consultants, special counsel, and representatives from liability: (I) for
<br />personal injury, damages, just compensation, restitution, judicial or equitable relief arising
<br />out of claims for personal injury, including health, and claims for property damage, which
<br />may arise from the direct or indirect operations of the Consultant or its contractors,
<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 claim that personal
<br />injury, damages, just compensation, restitution, judicial or equitable relief is due by reason
<br />of the terms of or effects arising from this Agreement. This indemnity and hold harmless
<br />agreement applies to all claims for damages, just compensation, restitution, judicial or
<br />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, hold harmless, and pay all costs for the defense of
<br />the City, including fees and costs for special counsel to be selected by the City, regarding
<br />any action by a third party challenging the validity of this Agreement, or asserting that
<br />personal injury, damages, just compensation, restitution, judicial or equitable relief due to
<br />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
<br />any legal proceeding.
<br />7. CONFIDENTIALITY
<br />
<br />If Consultant receives from the City information which due to the nature of such
<br />information is reasonably understood to be confidential and/or proprietary, Consultant
<br />agrees that it shall not use or disclose such information except in the performance of this
<br />Agreement, and further agrees to exercise the same degree of care it uses to protect its own
<br />information oflike importance, but in no event less than reasonable care. "Confidential
<br />Information" shall include all nonpublic information. Confidential information includes
<br />not only written information, but also information transferred orally, visually,
<br />electronically, or by other means. Confidential information disclosed to either party by
<br />any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing
<br />obligations of non-use and nondisclosure shall not apply to any information that (a) has
<br />been disclosed in publicly available sources; (b) is, through no fault of the Consultant
<br />disclosed in a publicly available source; (c) is in rightful possession of the Consultant
<br />without an obligation of confidentiality; (d) is required to be disclosed by operation oflaw;
<br />or (e) is independently developed by the Consultant without reference to information
<br />disclosed by the City.
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