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(iii) Costco breaches any other material provision of this Agreement.
<br />(b) Notice and Cure Procedure. Upon the happening of any of the above-
<br />described events the City shall first notify Costco in writing of its purported breach or failure,
<br />giving Costco thirty (30) days from receipt of such notice to cure such breach or failure. If
<br />Costco does not cure the default within such thirty (30) -day period (or if the default is not
<br />reasonably susceptible of being cured within such thirty (30) -day period, Costco fails to
<br />commence the cure within such period and thereafter to prosecute the cure diligently to
<br />completion), then the City shall be entitled to pursue any or both of the following remedies: (1)
<br />terminating this Agreement by written notice to Costco; (?) exercising its remedies pursuant to
<br />Section 5.5. If the City elects to terminate this Agreement, the provisions of this Agreement that
<br />are specified to survive such termination shall remain in full force and effect.
<br />Section 5.5 Remedies.
<br />(a) Either Party may, in addition to any other rights or remedies that it may
<br />have available in law or equity (excluding punitive damages and consequential damages),
<br />institute legal action to cure, correct, or remedy any default by the other Party to this Agreement,
<br />to enforce any covenant or agreement herein, or to enjoin any threatened or attempted violation
<br />hereunder or to seek specific performance. For purposes of instituting a legal action under this
<br />Agreement, any City Council determination under this Agreement as it relates to an alleged
<br />default hereunder shall be deemed a final agency action. Costco acknowledges that it may not
<br />accelerate the obligation to pay the Costco Reimbursement Amount or otherwise collect for
<br />future years based on a current or prior default, and that the City's obligation to pay with respect
<br />to any Fiscal Year is contingent upon receipt of Sales Taxes and the JDEDZ Transportation Fees
<br />for that Fiscal Year and dependent upon tine amount of those Sales Taxes and fees for
<br />determination of the amount to be paid.
<br />(b) The Parties hereby acknowledge and agree that it is a material part of
<br />Costco's consideration to City that Costco, on the one hand, and the City, on the other ]land, for
<br />themselves, their successors and assignees, hereby release one another's officers, trustees,
<br />directors, agents and employees from any and all claims, demands, actions, or suits of any kind
<br />or nature arising out of any liability, known or unknown, present or future, including, but not
<br />limited to, any claim or liability, based or asserted, pursuant to Article 1, Section 19 of the
<br />California Constitution, the Fifth and Fourteenth Amendments of the United States Constitution,
<br />or any other law or ordinance which seeks to impose any money damages, whatsoever because
<br />of the temms of [his Agreement, or because of the manner of implementation or performance of
<br />this Agreement.
<br />ARTICLE 6.
<br />GENERAL PROVISIONS.
<br />Section 6_1 General indemnity. Costco shall indemnify, defend (with counsel
<br />approved by the City) and hold harmless the City, Councilmembers, officials, employees, agents,
<br />consultants, and contractors (collectively, the "Indemnitees") from and against any and all
<br />liabilities, losses, costs, expenses (including without limitation attorneys' fees and costs of
<br />litigation), claims, demands, actions, suits, causes of action, writs, judicial or administrative
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<br />1310 01\2218870.8
<br />217/2018
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