*LICENSE: CC0 1.0 Universal (Public Domain Dedication). To the extent possible under law, Timothy Smith has waived all copyright and related or neighboring rights to this instrument.* *ADOPTION NOTICE. **No attribution, notice, citation, credit, or acknowledgment of any kind is required in any adopted ordinance, executed agreement, staff report, or recorded instrument**, and no provision of this document shall be construed to require one. A jurisdiction may adopt, modify, renumber, or reject any portion without notice to or consent of the author. Attribution is requested only in derivative published works, and only as a courtesy.* --- **FLORIDA MODEL INSTRUMENTS FOR DATA CENTER DEVELOPMENT** # Community Benefits Agreement Clause Bank *Model form. Remove this heading block, and every drafting note, before the parties first make the draft public.* **What this is.** The Clause Bank holds optional terms for the Model Community Benefits Agreement, such as automation transition terms for the Developer's own employees (Section 7.7(a)), and lists the terms still to be drafted. **What it does.** A term is part of an Agreement only if the Parties insert it, at the number it bears here: Section 7.7 in Article VII and Sections 8.2 to 8.6 in Article VIII. Each form for Section 8.7 is a commitment the Parties state in Exhibit A, item 6, as Section 8.7 of the Agreement provides. **Works with.** The Model Community Benefits Agreement, whose defined terms these use. Section 8.3 needs Module paragraph T-15, inserted from the Module M3 Options; paragraph T-15 lets the Recipient buy serviceable retired computing equipment, within a set period after notice of each refresh or decommissioning, at fair salvage value or any lower price the Developer chooses, as-is after certified data sanitization. The acceptable-use terms are in Module Section 1.5(a), for both the Agreement and the ground lease. **Before use.** Bracketed text is completed or removed when a term is used; every bracketed figure is set by the Parties' negotiation, and none is a recommendation. A number at which the Agreement includes no term stays reserved, and a term marked "[Terms to be drafted]" cannot be used until it is written. Section 8.5 names only facilities that no Public Approver owns or operates, counting as operated each facility a Public Approver runs in the ordinary course of its functions or holds under a lease, but not another facility, such as a school another body runs, only because a shelter or a cooling or warming center opens there (Module Section 1.2); and it names a school only where the school district is not a Public Approver (Agreement Section 2.4(a) bars any benefit to a facility a Public Approver owns or operates). It names no Designated Emergency Facility under Module M2 (Section M2.1(f)), such as an emergency shelter at which a developer provides emergency power under that Module, and no facility a County impact fee study identifies for emergency power. **Known gaps.** No parties are known to have used these terms, and no licensed attorney has reviewed them. Some terms rest on law that is not settled: whether the severance in Section 7.7(a)(v) is an employee benefit plan; whether Section 7.7(a)(viii) avoids conflict with the employer's duty to bargain under federal labor law; and whether the form for water for heat rejection is reached by state preemption of water use regulation, or binds a later owner that has not assumed the Agreement. The Open Legal Questions give the current reading of each. --- ## ARTICLE VII. WORKFORCE AND LOCAL OPPORTUNITY **Section 7.7 Optional terms.** (a) **Automation transition.** This subsection applies to the Developer's own employees at the Project Site and, through item (x), to the employees of its operating contractors. (i) **Definitions.** An "automation-related elimination" is the elimination of a full-time position at the Project Site, without a replacement position in the same occupation there within [ninety (90)] days, where the introduction or expansion of machinery, robotics, software or artificial intelligence systems at the Project Site or for its operations is a cause. A position eliminated within [twelve (12)] months after the Developer installs or expands such systems to perform tasks of that position is presumed to be an automation-related elimination unless the Developer shows otherwise in its report under Agreement Section 4.3. An "affected employee" is an employee whose position is subject to an automation-related elimination. (ii) **Notice.** At least [one hundred eighty (180)] days before automation-related eliminations of [__] or more positions at the Project Site within any twelve-month period, the Developer gives written notice to the Community Party, to each affected employee and, where the regional workforce board is not a department or instrumentality of the County, to the board, stating the number of positions, their occupations and the expected dates, and whether automation, including artificial intelligence or other software, is a cause and, if it is, the technology. This notice is in addition to any notice the Worker Adjustment and Retraining Notification Act requires (29 U.S.C. 2101 et seq.). Where that Act applies, the Developer also gives a notice that meets it, and its period runs within the period of this notice (29 U.S.C. 2105). [Drafting note, remove before the draft is made public: The Worker Adjustment and Retraining Notification Act requires notice only from an employer it covers and only of a plant closing or mass layoff that meets its thresholds (29 U.S.C. 2101(a) and 2102(a)). A number below those thresholds extends this notice to smaller reductions that the Act does not reach; a higher number confines it to larger reductions, which are more likely to be ones the Act also reaches.] (iii) **First right to new roles.** For [twelve (12)] months after an affected employee's position ends, before hiring from outside for an open position at the Project Site, the Developer offers it to the affected employee if the employee is qualified for it or can become qualified through training of [__] weeks or less. (iv) **Paid retraining.** The Developer offers each affected employee, at the employee's choice, either [__] hours of training for a position at the Project Site, or fewer if the employee chooses, paid at the employee's regular wage, or the tuition and fees, up to $[__], of programs the employee chooses at [STATE COLLEGE] or another eligible training provider, usable within [eighteen (18)] months after the position ends. Training paid by public workforce funds does not count toward this item. (v) **[Severance.** [Drafting note, remove before the draft is made public: Do not use this item until counsel answers whether severance paid by this formula on each automation-related elimination during the term, with the Developer applying item (i) to each elimination and the Community Party able to enforce it, is an employee welfare benefit plan under the Employee Retirement Income Security Act (29 U.S.C. 1002(1)); the Open Legal Questions give the current reading.] The Developer pays each affected employee who is not placed in another position at the Project Site severance of at least [__] weeks' pay for each year of service, and not less than [__] weeks' pay in total, by that formula alone. Each payment is accompanied by a plain statement that, under s. 443.101(3)(b), Florida Statutes, severance and reemployment assistance run one after the other.] (vi) **Monitoring notice.** On hiring, and before any new kind of electronic monitoring begins, the Developer gives each employee at the Project Site written notice of the kinds of electronic monitoring it uses, and posts the notice where employees can see it. (vii) **Human review.** No employee at the Project Site is discharged on the basis of an automated system's output without review by a person with authority to reverse the decision, and the employee may give information for that review. (viii) **Collective bargaining.** Where employees at the Project Site are covered by a collective bargaining agreement, a written certification signed by their employer and the employees' representative that the agreement provides terms equal to or better than this subsection meets it for those employees. Nothing in this subsection displaces any employer's duty to bargain over how it carries out these terms. (ix) **Reporting.** The Developer states in its report under Agreement Section 4.3 the number of automation-related eliminations in the year, by occupation, and the offers made under items (iii) and (iv), without the name, wage or other identifying data of any person. (x) **Operating contractors.** The Developer requires each contractor whose employees work at the Project Site on a regular schedule in its operation, maintenance or security to give those employees the terms of items (i) to (viii) as if it were the Developer, and to give the Developer what item (ix) requires. (b) **Wage floor.** The Developer pays each of its own employees on the Project Site not less than [__]. (c) **Community child care.** [Terms to be drafted] [Scope: licensed child care slots for residents, paid directly to the local early learning coalition or to licensed providers, on the terms of Agreement Section 5.10(a)(ii).] (d) [Reserved. Agreement Section 11.3(c) governs enforcement of subsections (a) and (b).] ## ARTICLE VIII. OTHER COMMITMENTS **Section 8.2 Recovered heat.** The Developer grants the Recipient, for the life of the use, a right of first offer to take thermal energy the Project would otherwise reject, at no charge for the energy itself, through any thermal interface the Project provides, including any that a County standard or development agreement requires, with all facilities beyond the interface at the offtaker's cost and no warranty of quantity or temperature. The Developer shall offer recovered heat that the Recipient does not take, at least once every [__] years, to each agricultural, aquacultural or commercial offtaker named in Exhibit A and, by a published solicitation, to any other, and shall report each year, in its report under Section 4.3, each offer made, each response received and the recoverable thermal output. **Section 8.3 Retired equipment.** The Developer grants the Recipient a right of first refusal on computing equipment retired from the Project, after verified data sanitization, on the terms of Module paragraph T-15. The repair terms of Section 7.4 apply. **Section 8.4 Fiber to anchor institutions.** Where the Developer trenches within [__] feet of a school, college, library or nonprofit health clinic named in Exhibit A that is not owned or operated by a Public Approver, it shall offer that institution, directly, [__] dark-fiber strands or a lateral on the terms Exhibit A states. No offer under this Section is a condition of, or compensation for, the use of any public road or right-of-way. **Section 8.5 Backup power and communications at community facilities.** (a) The Developer provides backup power equipment for use at each facility Exhibit A names: [schools of [SCHOOL DISTRICT], including schools used as public shelters or as cooling or warming centers] [and] [cooling and warming centers and other community facilities that no Public Approver owns or operates], on the terms Exhibit A states. Exhibit A names no facility that is a "Designated Emergency Facility" under a development agreement or ground lease to which the County is a party, and no facility that an impact fee study of the County identifies for emergency power. The equipment is installed with transfer equipment that prevents backfeed to the utility system and is sized to carry the critical loads Exhibit A states for each facility, including cooling or heating where the facility serves as a cooling or warming center, for the run time Exhibit A states, with fuel or stored energy on site for that run time. (b) [Where Exhibit A so states, the Developer also provides at each named facility satellite backup communications: terminals, power for them that does not depend on the grid, and paid service for [__] years, replacing any terminal that fails or is destroyed during that period.] (c) The Developer maintains, tests, and refuels the equipment, and keeps any service in force, on the terms Exhibit A states. The owner of each facility takes the equipment and any service by its own written acceptance and confirms each delivery in writing as Section 4.3(a) of the Agreement provides. (d) Nothing in this Section requires a facility to be designated or used as a shelter or as a cooling or warming center, and no Public Approver has any right under this Section or administers the equipment. **Section 8.6 First offer on the site.** If an Abandonment occurs, the Developer shall offer the Recipient [and a member-governed cooperative named in Exhibit A whose governing instruments bar any distribution of earnings or assets to a member] the first opportunity to acquire the Project Site and shell improvements at appraised value before marketing them to others. The offer is subject to any public purchase option recorded against the Project Site, which takes priority. This Section does not apply to a purchase by a public agency. **Form for Section 8.7: Heritage of the site.** [Use only where a cemetery, burial ground or historic site lies on or adjoins the Project Site. Insert in Exhibit A, item 6. Use paragraph (a) only for a cemetery whose location is already public, or that the organization under paragraph (e) and the descendants known to it ask to have made accessible.] (a) **Access.** Where a cemetery or burial ground lies on the Project Site [or, with the consent below, on adjoining land], the Developer designates, by an instrument recorded with the memorandum under Section 12.1, the route of the easement for ingress and egress that s. 704.08, Florida Statutes, gives the relatives and descendants of persons buried there, provides parking for [__] vehicles, and keeps the route open [at the hours Exhibit A states], with [__] days' notice for a visit at other times. The Developer may require a visitor to be escorted through a secured area and to follow its published site safety rules, and may impose no other condition on access. [The Developer extends the same access to members of the organization named under paragraph (e) for the upkeep of the cemetery.] Nothing in this item limits any right s. 704.08 gives. [Where the cemetery lies on adjoining land, the Developer provides the access, parking and upkeep of this item only with that owner's written consent, which Exhibit A attaches.] (b) **Protection and upkeep.** The Developer keeps the cemetery or site, and a buffer of not less than [__] feet around it, free of disturbance; marks or fences its boundary as the organization named under paragraph (e) agrees; and maintains it [, including resetting fallen markers by a conservator that organization approves,] for the life of the use [and, by an instrument recorded with the memorandum under Section 12.1, after it]. Work that may disturb a burial is done only as Chapter 872, Florida Statutes, and other state law permit. (c) **Marker and public history.** Within [__] months after the Approvals Date, the Developer pays for a marker at a place the public can reach, on the Project Site or on land no Public Approver owns or operates, and for a written public history of the cemetery or site, prepared by a historian or archaeologist the organization named under paragraph (e) selects and published by that organization. Neither states the location of an unmarked burial or an archaeological site that the Division of Historical Resources has not made public. (d) **Records and research help.** The Developer pays the organization named under paragraph (e) [$__] a year for [__] years, adjusted each year by CPI-U, to collect, preserve and make public the records and oral histories of the cemetery or site and of the community connected to it, and to help any person trace family history from them. The help is open to every person on the same terms, and pays for research help and access to records, not for courses or other instruction (Section 5.10(b)). (e) **The organization.** The organization Exhibit A names for this item is a Florida nonprofit corporation, or a public library, archive or university, that is not a Barred Person or the Community Party and has accepted in writing. From its acceptance it is an intended third-party beneficiary of this item and may, subject to Sections 11.1 and 11.2 as if it were a Party, obtain specific performance and injunctive relief, and recover any unpaid amount under paragraph (d) with interest at the Default Rate. If it declines, dissolves or ceases to meet this paragraph, the Community Party may name a successor that meets it. (f) **Same terms for all.** No benefit under this item is limited by race, color or national origin. The access under paragraph (a) is the access s. 704.08, Florida Statutes, gives to the relatives and descendants of persons buried in the cemetery. **Form for Section 8.7: Water for heat rejection.** [Use where the Parties agree to limit the water the Project uses to reject heat. Insert in Exhibit A, item 6.] (a) **No groundwater.** No groundwater withdrawn by or for the Project, on or off the Project Site, is used for heat rejection, makeup or blowdown, whether evaporative or otherwise. This paragraph does not limit potable water that a public water system delivers through a metered connection[, which paragraph (b) governs]. (b) **[Reclaimed water or none.** No water other than reclaimed water is used for evaporative or adiabatic heat rejection or as its makeup.**]** (c) **What is not limited.** This item does not limit water for fire suppression or life safety[, and paragraph (b) does not limit water that fills, or replaces losses from, a closed circuit in which the water is not evaporated, or emergency potable backup that is separately permitted, metered and reported]. (d) **Metering and reports.** The Developer meters each source of water used for heat rejection and states, in each report under Section 4.3, the amount from each source and any emergency backup use and its cause. (e) **Enforcement.** This item is a commitment of Article VIII: Section 11.3(a) applies to it, and Section 12.6 makes it a covenant running with the Project Site as it applies to capacity installed there. Applying for or obtaining any use of groundwater for heat rejection is also a Material Change under Section 3.8(a)(ii). [Drafting note, remove before the draft is made public: The Open Legal Questions give the current reading of whether this item binds a later owner that has not assumed the Agreement, including a purchaser at foreclosure of a mortgage recorded before the memorandum under Section 12.1.] ## Terms still to be drafted | Term | Where it sits | When it matters | |---|---|---| | Community child care | This clause bank, Section 7.7(c) | Only if the Parties choose it | --- *Prepared by Timothy Smith · Citizen-prepared working draft · Not legal advice. The author is not licensed to practice law. Any person considering use of this model should obtain review by licensed counsel admitted in Florida.*