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e. If Consultant fails or refuses to produce or maintain the insurance required 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 <br />indemnify the City for any work performed prior to approval of insurance by the City. <br />7. INDEMNIFICATION <br />Consultant agrees to and shall indemnify and hold harmless the City, its officers, <br />agents, employees, consultants, special counsel, and representatives from liability for <br />personal injury, damages, just compensation, restitution, judicial or equitable relief <br />arising out of claims from personal injury, including health, and claims for property <br />damage, which may arise from the direct or indirect operations of the Consultant or its <br />contractors, subcontractors, agents, employees, or other persons acting on their behalf <br />which relates to the services described in Section 1 of this Agreement, to the extent the <br />same are due to their negligence or other wrongful conduct. The Consultant further <br />agrees to indemnify, hold harmless, and pay all costs for the defense of the City, <br />including fees and costs for special counsel to be selected by the City, regarding any <br />action by a third party asserting that personal injury, damages, just compensation, <br />restitution, judicial or equitable relief due to personal or property rights arises by reason <br />of the terms of, or effects arising from this Agreement. City may make all reasonable <br />decisions with respect to its representation in any legal proceeding. <br />8. CONFIDENTIALITY <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 <br />own information of like importance, but in no event less than reasonable care. <br />"Confidential Information" shall include all nonpublic information. Confidential <br />information includes not only written information, but also information disclosed to <br />either party by any subsidiary and/or agent of the other party is covered by this <br />Agreement. <br />The foregoing obligations of non-use and nondisclosure shall not apply to any <br />information that (a) has been disclosed in publicly available sources; (b) is, through no <br />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 <br />without reference to information disclosed by the City. <br />Page 4 of 9