Agmt17 Smart Utility Systems, Inc.

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11.4 Failure to Maintain Coverage. If Consultant fails to comply with these insurance requirements, then City will have the option to declare Consultant in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Consultant is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Consultant or deduct the amount paid from any sums due Consultant under this Agreement. 11.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete copies of any or all required insurance policies and endorsements. 12. Limitation of Liability. 12.1 Liability Cao. Consultant's liability arising out of or related to this Agreement shall in no event exceed the greater of (a) $100,000 or (b) the fees paid by City within the 48 months preceding the claim. 12.2 Exclusion of Consequential Damaqes. IN NO EVENT WILL CONSULTANT BE LIABLE TO CITY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY RELATED SCOPE OF SERVICES. 12.3 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; EVEN IF PARTIES ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND EVEN IF CITY'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section, Consultant's liability will be limited to the maximum extent permissible by law. For the avoidance of doubt, Consultant's liability limits apply to Consultant's affiliates, providers, agents, sponsors, directors, officers, employees, consultants, and other representatives. 12.4 ExceDtions to Limitation of Liability. Sections 12.1 (Liability Cap) and 12.2 (Exclusion of Consequential Damages) above do not apply to: (a) claims pursuant to Section 10 above (Indemnification); or (b) claims for attorneys' fees and other litigation costs recoverable by the prevailing party in any action. 13. Excusable Delay. Except for payment obligations, neither party shall be liable to the other for any delay or failure to perform if the delay or failure to perform is without the fault or negligence of the party claiming excusable delay and is due to causes beyond the control of the delaying party, including, but not limited to: acts of God, war, acts of Page 6 of 38 ATTY/AGR/2017.104/SMART ENERGY SYSTEMS—CUSTOMER WATER USE PORTAL REV: 05-15-17 MI