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d. Consultant's total aggregate liability under this Section shall not exceed the limits of insurance coverage required to be maintained under this Agreement. This Section sets forth Consultant's sole and exclusive indemnification obligations under the Agreement. e. The Consultant further agrees to indemnify,defend,and hold harmless of the City,from and against any third-party claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees), to the extent arising out of or resulting from the Consultant's negligence, recklessness, or willful misconduct in the performance of its services under this Agreement. Consultant shall have the right to control the defense and settlement of any such claim, provided that the City may participate with counsel of its own choosing at its own expense.Consultant shall not settle any claim in a manner that imposes liability or admission of fault on the City without the City's prior written consent, not to be unreasonably withheld. Consultant shall have no obligation to indemnify the City for claims arising from (i) the City's own negligence or willful misconduct, (ii) the City's use of the services in violation of this Agreement, or (iii) any terms, conditions, or requirements specified or unposed by the City. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent,trademark,or copyright infringement,including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. 9. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 10. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such Page 4 of 8 #2166820v2