Res 2015-093/Chapter 380 Economic Development Incentive Agreement with Tanger Properties Limited Partnership that provides incentives over ten years in an amount not to exceed $2,500,000.00 in the form of annual refunds of a portion of new property and s

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C. Additional Sales Taxes for the prior calendar year are received by the City from the Texas Comptroller of Public Accounts; and d. funds are appropriated by the San Marcos City Council for the specific purpose of making a Grant Payment under this Agreement as part of the City's ordinary budget and appropriations approval process. Provided the foregoing conditions have been satisfied and Tanger is, otherwise, in compliance with this Agreement, the City shall pay to Tanger any Grant Payments due within 30 days after the last to occur of the events in subsections (a), (b), (c) and (d) of this Section. Section 4.05. Subject to Funding. The Grant Payments made and any other financial obligation of the City hereunder shall be paid solely from lawfully available funds that have been budgeted and appropriated each applicable fiscal year during the Term by the City as provided in this Agreement. Under no circumstances shall the City's obligations hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. Consequently, notwithstanding any other provision of this Agreement, the City shall have no obligation or liability to pay any Grant Payments or other payments unless the City budgets and appropriates funds to make such payments during the City's fiscal year in which such Grant Payment(s) or other payments are payable under this Agreement. If the City fails to appropriate funds for a Grant Payment, Tanger may, at its option, terminate this Agreement effective upon written notice to the City, whereby Tanger is excused from its obligations thereunder in any given year the City fails to approve the expenditure, subject to any unpaid Grant Payment properly due to Tanger for which a lawful appropriation of funds has occurred. Tanger shall have no other recourse against the City for the City's failure to budget and appropriate funds during any fiscal year to meet the purposes and satisfy its obligations under this Agreement. ARTICLE 5. DEFAULT, TERMINATION AND REMEDIES Section 5.01. Default; Termination or Suspension of Payments. Except as otherwise provided herein, at any time during the Term of this Agreement that Tanger is not in compliance with its obligations under this Agreement, the City may send written notice of such non- compliance to Tanger. If such non - compliance is not cured within 30 days after Tanger's receipt of such notice or, if non - compliance is not reasonably susceptible to cure within 30 days and a cure is not begun within such 30 -day period and, thereafter, continuously and diligently pursued to completion on a schedule approved by the City (in either event, a "Cure "), then the City may, at its sole discretion and option, terminate this Agreement or withhold Grant Payments otherwise due for the calendar year or years in which the non - compliance occurred and continues. Section 5.02. Non - Termination Election by City. If the City elects to withhold Grant Payments under this Section rather than to terminate the Agreement, then, upon a Cure by Tanger, Tanger will be eligible to receive Grant Payments in future years (provided it is otherwise in compliance and subject to other limitations of this Agreement) for the remainder of the Term. However, a Grant Payment withheld by the City shall be deemed forfeited by Tanger and the City shall not be liable for retroactive payment of such forfeited Grant Payment. For N