R2013-62 AUTHORIZING EXECUTION OF ENERGY AND WATER EFFICIENCY SERVICES AGREEMENT

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The CITY shall provide notice of its election to terminate to the COMPANY no later than thirty (30) days in advance of the end of the current guarantee period. The termination shall become effective on the last day of said guarantee period. The COMPANY's obligation to report, reconcile and verify the efficiency improvements achieved during the guarantee period preceding termination remains in full force and effect, as does its obligation, pursuant to paragraph 3.4 of this Agreement, to remit payment to the CITY in the event that the efficiency improvements have not been achieved at the level guaranteed by the COMPANY. The termination of this Agreement by the CITY shall release the COMPANY from its obligation to provide monitoring and training services after the effective date of termination, as well as its obligation to provide the Assured Performance Guarantee after the termination date. Termination by the CITY shall release it from the obligation to make any payments to the COMPANY for monitoring and training services after the termination date, provided, however, that the CITY is responsible for payment for monitoring and training services performed in accordance with the terms of this Agreement prior to the termination date. 10.11 Limitation of Liability. NEITHER COMPANY NOR CITY WILL BE RESPONSIBLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE, PUNITIVE, EXEMPLARY, LOSS OF PROFITS OR REVENUE, LOSS OF USE, OR SIMILAR DAMAGES, REGARDLESS OF HOW CHARACTERIZED AND REGARDLESS OF A PARTY HAVING BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSSES OR RELIEF, ARISING IN ANY MANNER FROM THIS AGREEMENT, THE WORK, THE PREMISES, OR OTHERWISE. WITHOUT LIMITING COMPANY'S EXPRESS OBLIGATIONS UNDER THE ASSURED PERFORMANCE GUARANTEE, COMPANY'S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL IN NO EVENT EXCEED THE AMOUNT OF THE PAYMENTS ACTUALLY RECEIVED BY COMPANY UNDER SCHEDULE C. The foregoing waivers and limitations are fundamental elements of the basis for this Agreement between COMPANY and CITY, and each party acknowledges that COMPANY would not be able to provide the work and services contemplated by this Agreement on an economic basis in the absence of such waivers and limitations, and would not have entered into this Agreement without such waivers and limitations. ARTICLE 11: EVENTS OF DEFAULT: REMEDIES; TERMINATION; RIGHT TO OFFSET . 11.1 Events of Default by the CITY. Each of the following events or conditions shall constitute an "Event of Default" by the CITY with respect to its obligations under this Agreement: (i) Any failure to make payments to the COMPANY in accordance with the provisions of Schedule C hereof more than ten (10) days after written notification by COMPANY that CITY is delinquent in making such payment, provided that the COMPANY is not in default in its performance under the terms of this Agreement; (ii) Any representation or warranty furnished by the CITY in this Agreement proves to be false or misleading in any material respect when made; (iii) The filing of a bankruptcy petition whether by the CITY or its creditors against the CITY which proceeding shall not have been dismissed within sixty (60) days of its filing, or an involuntary assignment for the benefit of creditors or the liquidation or insolvency of the CITY; 16