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9. ASSISTANCE IF AUDITED <br />In the event an audit is conducted by the State Controller's Office and upon notification by <br />City, Consultant shall assist City in defending its' claim(s). <br />10. INDEMNIFICATION <br />Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, <br />employees, consultants, special counsel, and representatives from liability: for personal injury, <br />damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal <br />injury, including health, and claims for property damage, which may arise from the negligent <br />operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons <br />acting on their behalf which relates to the services described in section 1 of this Agreement. The <br />Consultant further 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 action by a <br />third party challenging the validity of this Agreement, or asserting that personal injury, damages, <br />just compensation, restitution, judicial or equitable relief due to personal or property rights arises by <br />reason 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 />11. CONFIDENTIALITY <br />If Consultant receives from the City information which due to the nature of such information <br />is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use <br />or disclose such information except in the performance of this Agreement, and further agrees to <br />exercise the same degree of care it uses to protect its own information of like importance, but in no <br />event less than reasonable care. "Confidential Information" shall include all nonpublic information. <br />Confidential information includes not only written information, but also information transferred <br />orally, visually, electronically, or by other means. Confidential information disclosed to either party <br />by 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 been <br />disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a <br />publicly available source; (c) is in rightful possession of the Consultant without an obligation of <br />confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed <br />by the Consultant without reference to information disclosed by the City. <br />12. CONFLICT OF INTEREST CLAUSE <br />Consultant covenants that it presently has no interests and shall not have interests, direct or <br />indirect, which would conflict in any manner with performance of services specified under this <br />Agreement. <br />13. NOTICE <br />Any notice, tender, demand, delivery, or other communication pursuant to this Agreement <br />shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first <br />25H-6 <br />