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<br />terms of this Agreement for reasons beyond the party's control. <br />city and Developer agree and acknowledge that if one party <br />reasonably cannot be required to specifically perform, then the <br />other party's remedies shall be limited to damages, amendment or <br />termination of this Agreement. <br /> <br />9.2.2 Damaqes. Both parties recognize and agree <br />that damages are not an appropriate remedy for the party being <br />deprived of the full benefits of this Agreement and, in <br />consideration for this Agreement, waive any claim to compensatory <br />damages for breach of this Agreement, except as provided in this <br />Section 10.2.2. If a court determines that an action or course <br />of conduct by City or Developer constitutes a willful and <br />intentional attempt to violate this Agreement, then compensatory <br />damages shall be available as a remedy, and the prevailing party <br />shall be awarded, in addition to compensatory damages, its <br />attorneys' fees, expenses and costs of suit in amounts determined <br />in the discretion of the court. City and Developer waive any <br />claim for punitive damages against the other party, and any claim <br />of personal liability against the officials of the other party. <br /> <br />9.3 Event of Default Arisinq out of Annual Review. <br />Subject to the rights and procedures of City with respect to the <br />annual review conducted pursuant to Article 8 of this Agreement, <br />if either party determines that the other party is in default <br />under this Agreement as a result of the annual review, then that <br />party shall give notice and an opportunity to cure in accordance <br />with the provisions of this Article 10. Notwithstanding anything <br />to the contrary contained in this Agreement, if the city council <br />elects to modify or terminate this Agreement as a result of its <br />annual review under Article 8 after a finding thereunder or <br />noncompliance by the Developer with this Agreement, the <br />proceeding of termination or modification shall constitute city's <br />exclusive and sole remedy, and city hereby waives, releases and <br />relinquishes any other right or remedy otherwise available under <br />this Agreement or at law or in equity. <br /> <br />- <br />. 9.4 Waiver: Remedies cumulative. Failure by a party <br />to insist upon the strict performance of any of the provisions of <br />this Agreement by the other party , irrespective of the length of <br />time for which the failure continues, shall not constitute a <br />waiver of that party's right to demand strict compliance by the <br />other party in the future. No waiver by a party of an Event of <br />Default shall be effective or binding upon that party unless made <br />in writing by that party, and no waiver shall be implied for any <br />omission by a party to take any action with respect to an Event <br />of Default. No express written waiver of any Event of Default <br />shall affect any other Event of Default, or cover any other <br />period of time, other than any Event of Default and/or period of <br />time specified in the express waiver. One or more written <br />waivers of an Event of Default under any provision of this <br />Agreement shall not be deemed to be a waiver of any subsequent <br /> <br />- 11 - <br /> <br />II <br /> <br />. I <br />