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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;(2)exercising its remedies pursuant to
<br /> Section 5.5. 11-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 /> Riture 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 the 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 hand, 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 I, 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 terms of this 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, Councihmembers,officials,employees, agents,
<br /> consultants,and contractors(collectively, the"Indcmmnitees")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
<br /> 14
<br /> 131001-721070.8
<br /> 2;7/2018
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