Res 2024-021 approving a Chapter 380 Economic Development Incentive Agreement with Buc-ee’s San Marcos, LLC that provides incentives in the form of refunds of 50 percent of sales taxes generated by the company

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7.5 Limitations. a. Effect of Force Maieure Event. A Party will not be deemed to be in Default or otherwise in violation of any term of this Agreement to the extent such Party's action, inaction or omission is the result of Force Majeure(defined in Section 8.13 herein)event.The Parties agree to use commercially reasonable efforts to promptly resolve any Force Majeure event that adversely and materially impacts their performance under this Agreement. A Force Majeure event pauses a Party's performance obligation for the duration of the event but does not excuse it. b. Overpayments. Notwithstanding the limitations on remedies in this Article, it is understood and agreed that, because the incentive payments are from public funds, any verified overpayments to Developer may be recovered by the City or,at the City's sole discretion,through available remedies at law or in equity, or by reducing future incentive payments by the amount of an overpayment. C. Offset. The City may deduct from any Grant Payments, as an offset, any delinquent and unpaid fees,sums of money or other fees,charges or taxes owed to or for the benefit of the City by Developer; provided that before offsetting any amounts the City must provide Developer with(a) advance notice of such offset, (b) sixty (60) days to take action to remedy the situation giving rise to the offset, and (c)reasonable opportunity, at Developer's own expense,to contest such offset. d. Limitation on Damages.Notwithstanding anything contained in this Agreement to the contrary,under no circumstance shall a Party be entitled to punitive,special or consequential dainages. e. Personal Liability of Public Officials. No employee or elected official of the City shall be personally responsible for any liability arising under or growing out of this Agreement. With respect to the above-referenced remedies afforded to Developer under this Agreement, to the extent of the holding of the Texas Supreme Court in City of League City, Texas v. Jimmy Changas, Inc. (No. 21- 0307), the City's execution of this Agreement constitutes a waiver certain immunities of the City from liability or suit solely with respect to(a)actions to enforce City's obligations under this Agreement and(b) writs of mandamus with respect to the performance of City's obligations under this Agreement. In all other respects,the Parties agree that City has not waived,nor shall be deemed hereby to have waived,any defense or immunity, including governmental, sovereign and official immunity,that would otherwise be available to it against claims arising in the exercise of governmental powers and functions. By entering into this Agreement,the Parties do not create any obligations, express or implied, other than those set forth herein. 7.6 Indemnity. DEVELOPER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS CITY AND ITS COMMISSION MEMBERS, BOARD MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, SUITS, AND CAUSES OF ACTIONS, LIABILITIES AND EXPENSES, INCLUDING REASONABLE ATTORNEY'S FEES, OF ANY NATURE WHATSOEVER, ASSERTED BY A THIRD PARTY AND ARISING OUT OF DEVELOPER'S PERFORMANCE OF THIS AGREEMENT. THE RIGHTS AND OBLIGATIONS CREATED BY THIS SECTION 7.6 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT BUT, WITH RESPECT TO ANY IMPROVEMENTS DEDICATED TO THE CITY, SHALL TERMINATE UPON FINAL ACCEPTANCE OF SUCH IMPROVEMENTS OR ACCEPTANCE OF SUCH CONVEYANCE BY THE CITY. Economic Development Agreement