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<br />e. If Consultant fails or refuses to produce or maintain the insurance required by this <br />section or fails or refuses to furnish the City with required proof that insurance has been procured <br />and is in force and paid for, the City shall have the right, at the City's election, to forthwith <br />terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its <br />time and materials expended prior to notification of termination. Consultant waives the right to <br />receive compensation and agrees to indemnify the City for any work performed prior to approval <br />of insurance by the City. <br /> <br />7. INDEMNIFICATION <br /> <br />Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, <br />employees, consultants, special counsel, and representatives from liability: (1) for personal <br />injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims <br />for personal injury, including health, and claims for property damage, which may arise from the <br />negligence, recklessness or willful misconduct of the Consultant or its contractors, <br />subcontractors, agents, employees, or other persons acting on their behalf which relates to the <br />services described in section 1 of this Agreement; and (2) from any claim that personal injury, <br />damages, just compensation, restitution, judicial or equitable relief is due by reason of the <br />negligence, recklessness or willful misconduct of Consultant arising from this Agreement. The <br />Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the <br />City, including fees and costs for special counsel to be selected by the City, regarding any action <br />by a third party asserting that personal injury, damages, just compensation, restitution, judicial or <br />equitable relief due to personal or property rights arises by reason of the terms of, or effects <br />arising from this Agreement. City may make all reasonable decisions with respect to its <br />representation in any legal proceeding. <br /> <br />8. 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 agrees <br />that it shall not use or disclose such information except in the performance of this Agreement, <br />and further agrees to exercise the same degree of care it uses to protect its own information of <br />like importance, but in no event less than reasonable care. "Confidential Information" shall <br />include all nonpublic information. Confidential information includes not only written <br />information, but also information transferred orally, visually, electronically, or by other means. <br />Confidential information disclosed to either party by any subsidiary and/or agent of the other <br />party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure <br />shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, <br />through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful <br />possession of the Consultant without an obligation of confidentiality; (d) is required to be <br />disclosed by operation of law; or ( e) is independently developed by the Consultant without <br />reference to information disclosed by the City. <br /> <br />4 <br />