25K - AGMT - SEWER MASTER PLAN UPDATE

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restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the negligence, recklessness, or willful misconduct of the design professional (collectively "Claims "). Notwithstanding anything to the contrary contained herein, with respect to Claims that are covered by Consultant's professional liability insurance policy (rather than Consultant's general liability insurance policy), Consultant shall not be required to defend any indemnified parties against any such Claims; provided, however, with respect to any defense costs (including without limitation, court costs, attorney's fees and expert witness costs) incurred by an indemnified party defending against such Claims, Engineer agrees to reimburse the indemnified parties for the costs incurred as a result of such defense to the extent of Consultant's negligence, recklessness, or willful misconduct. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and /or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of fake importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) 25K -7