Res 2016-067/approving an Economic Development Incentive Agreement pursuant to Section 1.4.4.1 of the Land Development Code (“LDC”) between the City of San Marcos and Dandelion Café, LLC, d.b.a Blue Dahlia Bistro, that grants a waiver of the requirement

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to one or more defaults by the other party will not waive that party's ability to enforce the Agreement after that time. In the event litigation is commenced under the terms of this Agreement, the prevailing party shall be entitled to recover from the other reasonable attorney fees and costs. PART 5. MISCELLANEOUS Section 5.01. Notices. All notices required by this Agreement will be delivered to the following by certified mail or confirmed facsimile transmission if either party provides to the other a number for facsimile transmission: City: Owner: City Manager Amy Ramirez City of San Marcos Dandelion Café 630 East Hopkins 3663 Bee Cave Rd 4A San Marcos, Texas 78666 Austin, Texas 78746 Each party will notify the other party in writing of any change in information required for notice under this paragraph. Section 5.02. Assignment. The Owner may not assign this Agreement or any of its rights, or delegate or subcontract any of its duties under this Agreement, in whole or in part, without the prior written consent of the City. Section 5.03. Applicable Law and Venue. This Agreement will be construed under the laws of the State of Texas. This Agreement is performable in Hays County, Texas. Mandatory venue for any action under this Agreement will be in the state court of appropriate jurisdiction for the action in Hays County, Texas. Mandatory venue for any matters in federal court will be in the United States District Court for the Western District of Texas. Section 5.04. No Liability. The Owner agrees that City assumes no liability or responsibility by approving plans, issuing permits or approvals or making inspections related to the Project. Section 5.05. Force Majeure. A Force Majeure event means an event beyond the reasonable control of a party obligated to perform an act or take some action under this Agreement including, but not limited to, acts of God, earthquake, fire, explosion, war, civil insurrection, acts of the public enemy, act of civil or military authority, sabotage, terrorism, floods, lightning, hurricanes, tornadoes, severe snow storms or utility disruption, strikes, lockouts, major equipment failure or the failure of any major supplier to perform its obligations. Section 5.06. No Waiver of Immunity or Liability. Nothing in this Agreement, and no action of the City under this Agreement, will constitute a waiver of any immunity of the City to suit or to liability or of any limitations on liability granted by law or the Texas Constitution.