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Consultant's negligence, recklessness, or willful misconduct. The Consultant further agrees to
<br />indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs
<br />for special counsel only to the extent such defense is required under applicable law and directly
<br />arises out of Consultant's negligent, reckless, or willful acts in the performance of this Agreement,
<br />and subject to Consultant's consent to counsel selection, which shall not be unreasonably withheld,
<br />regarding any action by a third party challenging the validity of this Agreement, provided such
<br />claims arise directly from the Consultant's negligent performance of its services. Consultant shall
<br />not be responsible for indemnifying or defending the City against claims unrelated to its
<br />performance or within the City's sole control. City may make all reasonable decisions with respect
<br />to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent
<br />Contractor's services are subject to Civil Code Section 2782.8, the above indemnity shall be
<br />limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to,
<br />or relate to the negligence, recklessness, or willful misconduct of the Consultant.
<br />8. INTELLECTUAL PROPERTY INDEMNIFICATION
<br />Consultant shall defend and indemnify the City, its officers, agents, representatives, and
<br />employees against any and all liability, including costs, for infringement of any United States'
<br />letters patent, trademark, or copyright infringement, including costs, contained in the work product
<br />or documents provided by Consultant to the City pursuant to this Agreement.
<br />9. RECORDS
<br />Consultant shall keep records and invoices in connection with. the work to be performed
<br />under this Agreement. Consultant shall maintain complete and accurate records with respect to
<br />the costs incurred under this Agreement and any services, expenditures, and disbursements
<br />charged to the City for a minimum period of three (3) years, or for any longer period required by
<br />law, from the date of final payment to Consultant under this Agreement. All such records and
<br />invoices shall be clearly identifiable. Consultant shall allow a representative of the City to
<br />examine, audit, and make transcripts or copies of such records and any other documents created
<br />pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all
<br />work, data, documents, proceedings, and activities related to this Agreement for a period of three
<br />(3) years from the date of final payment to Consultant under this Agreement.
<br />10. 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 agrees that
<br />it shall not use or disclose such information except in the performance of this Agreement, and
<br />further agrees to exercise the same degree of care it uses to protect its own information of like
<br />importance, but in no event less than reasonable care. "Confidential Information" shall include all
<br />nonpublic information. Confidential information includes not only written information, but also
<br />information transferred orally, visually, electronically, or by other means. Confidential
<br />information disclosed to either party by any subsidiary and/or agent of the other party is covered
<br />by this Agreement. 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 fault of the
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