*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** # Model Community Benefits Agreement for a Large-Scale Data Center (Florida) *Model form. Remove this heading block, and every drafting note, before the parties first make the draft public.* **What this is.** A private contract between a data center developer and an existing community organization, a Florida nonprofit corporation (the Community Party). The County is not a party and has no role, and the Agreement is not a condition of any approval (Sections 2.1 and 2.2); the model Data Center Standards, where adopted, bar the County from considering it (Standards Sec. 16). **What it does.** The Developer commits computing capacity equal to a ratio of the Project's Installed IT Capacity, counting any nearby data center of the Developer or an affiliate, growing with the Project (Section 5.1). It is paid each year as the Community Payment, for grants under a published policy, unless the Community Party elects delivery in kind as the Allocation to a public or nonprofit Recipient (Sections 5.2 to 5.17). The Developer also makes Readiness Payments, makes workforce commitments and funds monitoring (Articles VI, VII and X); the Community Party gives letters supporting the Project (Article III). No benefit goes to a Public Approver, pays for surveillance of the public or serves a law enforcement agency other than for emergency services, and the Developer seeks no credit or other reduction of a local or State tax, fee or other charge on account of any benefit (Sections 2.4, 5.10(c) and 2.5). **Works with.** Module M3, Civic Compute Allocation, holds the computing terms this Agreement shares with the model ground lease; Section 5.4 states which of its provisions form part of this Agreement under each Election, and from when. Provisions chosen from the Module M3 Options go into the Module, and terms chosen from the CBA Clause Bank into Section 7.7, Sections 8.2 to 8.6 and Exhibit A, item 6. The Drafter's Notes list each blank and choice. **Before use.** Complete or remove each bracket, and complete Exhibits A to E and the Module. Every bracketed figure is set by the Parties' negotiation, and none is a recommendation; the bracketed ratio in Section 5.1(a) is an illustration. A capacity or mixed Election needs, at signing, the first host institution's letter of intent and a statement in Exhibit A of how the Allocation will be delivered (Section 5.2(b)). Each Party publishes the Agreement, with its exhibits and the completed Module, before the first public hearing on the Project (Section 4.1(a)). **Known gaps.** No parties are known to have signed an agreement on this model, and no licensed attorney has reviewed it. Some provisions rest on law that is not settled: whether Section 12.6 binds a later owner or ground lessee that has not assumed this Agreement; the tax treatment of the support letters and the account form (Sections 3.3 and 5.8); and the Distress Event and the security in a bankruptcy (Section 1.1 and Article IX). The Open Legal Questions give the current reading of each. **Terms in brief.** Module M3 defines these terms; its definitions govern. - "Installed IT Capacity": the nameplate capacity of the information-technology equipment installed at the Project Site, whoever owns it, and at any related data center (Module Section 1.2; Section 5.1(d)). - "Public Approver": the County, its agencies and any other local government acting on an Approval or Replacement Approval (Module Section 1.2). - "Replacement Cost": the market price of equivalent committed capacity from an unaffiliated provider (Module paragraph V-2). - "Service": computing capacity, software or an online service that users use or that holds their data (Module paragraph T-21(a)). --- **COMMUNITY BENEFITS AGREEMENT** This Community Benefits Agreement (this "Agreement") is made on [date] between [DEVELOPER ENTITY], a [entity type] authorized to do business in Florida (the "Developer"), and [COMMUNITY PARTY], a Florida not-for-profit corporation (the "Community Party"). [FEE OWNER], the owner of the Project Site if different from the Developer, joins this Agreement to subject its interest in the Project Site to Article XII. **RECITALS** A. The Developer proposes to develop the Project described in Exhibit A on the Project Site in [COUNTY] County, Florida, and has applied or will apply for the Approvals. B. The Approvals will be decided by the County and other public bodies under their own regulations, at public hearings. C. The Community Party is a Florida nonprofit corporation that serves residents of [COUNTY] County. D. The Parties enter into this Agreement so that residents share in the Project's productive capacity and employment, and so that what the Developer will provide is published and enforceable. The Parties therefore agree as follows. ## ARTICLE I. DEFINITIONS AND INTERPRETATION **Section 1.1 Definitions.** In this Agreement: - "Abandonment" means the cessation of substantially all compute operations at the Project Site for [twelve (12)] consecutive months, excluding force majeure and documented modernization downtime not exceeding [eighteen (18)] months undertaken after written notice to the Recipient or, where there is none, the Community Party. - "Account" means each account the Custodian holds under this Agreement or the Module: the Community Benefit Account, the Readiness Account, the administration account, the instruction account, each cash security account, any Legacy Reserve account, the Monitoring Fund and, where the Module applies, the Restricted Account and the Continuity Escrow. - "Administration Payment" means the payment under Section 5.17. - "affiliate" has the meaning in Module Section 1.2. - "Allocation" means the computing capacity the Developer delivers in kind under the Module. - "Appointing Authority" means the appointing authority named in Exhibit A. - "Approvals" means the County and other public approvals listed in Exhibit A. - "Approvals Date" means the date on which each Approval has been granted and is no longer subject to appeal, or a change in law has made it unnecessary for the Project, and each Replacement Approval has been granted and is no longer subject to appeal. - "Approved Capacity," "Compute Hall," "Operations Commencement Date" and "Phase" have the meanings given in Exhibit A. - "Barred Person" means (a) a Public Approver, a department or instrumentality of a Public Approver, or a facility a Public Approver owns or operates; (b) a public official or a political committee; (c) an organization of which a member of the governing body of a Public Approver is a director or officer; and (d) the Developer or an affiliate. - "Chronic Deficiency," "Continuity Escrow," "Conversion Event" and "Covered Equipment" have the meanings in Module Section 1.2, and "Access Institution" the meaning in Module Section 1.5(g)(ii). - "Community Benefit Account" means the account under Section 5.9. - "Community Fund" and "Fund Holder" have the meanings in Section 5.8. - "Community Payment" means the annual payment under Sections 5.6 and 5.7. - "CPI-U" means the Consumer Price Index for All Urban Consumers, U.S. City Average, published by the U.S. Bureau of Labor Statistics, or its successor index. - "Custodian" means the bank or trust company named in Exhibit A, or its successor under Section 10.2. - "Default Rate" means the rate set under s. 55.03, Florida Statutes, from the due date until paid. - "Distress Event" means any of: (a) cessation of substantially all compute operations for [ninety (90)] consecutive days; (b) appointment of a receiver, an assignee for the benefit of creditors, or a similar custodian for the Project or the Developer; or (c) disconnection of primary electric service to the Project for non-payment for more than [sixty (60)] days; and, where the Module applies, the failures Module Section 1.2 adds. - "Election" means the Community Party's election under Section 5.2, as changed under Section 5.3, and "capacity Election," "payment Election" and "mixed Election" have the meanings in Section 5.2(a). - "Force majeure" has the meaning in Section 11.5(a). - "First Delivery Date" means the last day for first delivery under Module Section 1.4(d), whatever the Election. [Drafting note, remove before the draft is made public: Complete the number of months in Module Section 1.4(d) under every Election; the first Community Payment is due on this date (Section 5.7(a)).] - "Grant Administration Payment" has the meaning in Section 5.15, and "Grant Policy" the meaning in Section 5.11. - "Host Institution" means an institution named in Exhibit C that has accepted in writing. - "Installed IT Capacity" has the meaning in Module Section 1.2, and Exhibit A states the accelerated-computing share to use where none is reported. - "Instruction Share," "Instruction Institution" and "former Instruction Institution" have the meanings in Module Section 3.6, where the Parties choose that Section. - "Material Change" has the meaning in Section 3.8. - "Module" means Module M3, Civic Compute Allocation, of the Florida Model Instruments for Data Center Development, in the form attached to this Agreement or, if none is attached, the form published with those instruments on the date this Agreement is signed. - "Monitoring Fund" means the fund under Section 10.1. - "Permitted Purposes" has the meaning in Section 5.10. - "Project" means the data center described in Exhibit A, including every Phase. - "Project Site" means the land described in Exhibit A. - "Public Approver" has the meaning in Module Section 1.2, including when a Public Approver operates a facility. - "Qualified Operator" has the meaning in Module Section 1.2. - "Readiness Account" and "Readiness Payment" have the meanings in Section 6.1. - "Recipient" has the meaning in Section 1.2. - "related data center" has the meaning in Section 5.1(d). - "Replacement Approval" means an approval, permit or other authorization that, because of a change in law after this Agreement is signed, the Project requires in place of an Approval, or under which the Project proceeds where an Approval is no longer required. It includes any approval for a data center on the Project Site applied for by the Developer, an affiliate or a successor within [__] years after an Approval lapses, expires, is surrendered or is revoked. - "Replacement Cost" has the meaning in Module paragraph V-2. - "Reserve Share" has the meaning in Section 5.13. - "Restricted Account" has the meaning in Module Section 1.19. - "Service" has the meaning in Module paragraph T-21(a). - "Stall" has the meaning in Section 6.4. - "Technical Schedule" means the schedule agreed under Module paragraph T-1. **Section 1.2 Recipient under each Election.** (a) For a share delivered in kind, the "Recipient" is the Host Institution or Qualified Operator then entitled to receive the Allocation under the Module and, while none of them has accepted, the Community Party for purposes of enforcement only. (b) For a share paid as the Community Payment there is no Recipient. While the Election is a payment Election, a right this Agreement gives the Recipient to certify a draw, to replace the Custodian, to give a notice of default, or to receive a notice, copy, statement or report is held by the Community Party; no consent, signature or acceptance of the Recipient is required; and Section 8.1 governs rights under Article VIII. **Section 1.3 Interpretation.** This Agreement cites a provision of the Module as "Module Section 1.4," "Module paragraph T-3" or "Module Schedule 2." "Including" means including without limitation. Headings do not affect meaning. ## ARTICLE II. THE COUNTY AND THE APPROVALS **Section 2.1 The County is not a party.** (a) [COUNTY] County is not a party to this Agreement and is not a third-party beneficiary of it. The County has no right, duty or role under this Agreement, including any right or duty to enforce it, and this Agreement creates no obligation to or right in the County. (b) No approval, election, declaration, determination, notice, consent, designation, appointment, audit, filing, custody, ownership, or receipt of property or money under this Agreement is given to, made by or held by the County. The County does not select, approve, pay, instruct or receive the report of any valuer. (c) The Appointing Authority, the Custodian and each valuer and neutral under this Agreement are not the County or any other local government. No Fund Holder, institution named in Exhibit C or Recipient is a Public Approver. **Section 2.2 No use in the approval process.** (a) Neither Party has asked or will ask the County to require, negotiate, review, approve or consider this Agreement, and neither Party files it in the County's application file. Neither Party will represent to the County that any approval should be granted, or granted sooner, because of this Agreement. (b) This Agreement is not a condition of any development order, permit, rezoning, plan amendment, development agreement or other approval. (c) No grant under this Agreement is conditioned on, or timed to, any County decision. Before the Approvals Date, the Community Party announces or promises no grant. **Section 2.3 Regulation unaffected.** Nothing in this Agreement waives, relaxes or substitutes for any standard of the County's land development regulations, any development agreement between the Developer and the County, or any state or federal permit. Where this Agreement and any of them address the same subject, each applies by its own terms. A reference in this Agreement to a County standard means a standard that applies to the Project by its own force, and it gives the County no role under this Agreement. This Agreement adds to, and does not displace, any procurement, public records or contracting law that binds a purchaser or Recipient that is a public body. **Section 2.4 No public money; no political use.** (a) No payment, capacity, asset or other benefit under this Agreement is made, delivered or granted to a Public Approver or to a facility a Public Approver owns or operates. No Permitted Purpose, and no commitment under Article VIII or Section 7.7, is administered by a Public Approver or by a department or instrumentality of one, or runs to a Public Approver. (b) No payment under this Agreement goes to any public official or political committee, and none funds lobbying or political activity. (c) No Community Payment, Readiness Payment, Administration Payment or Grant Administration Payment, no payment under Section 13.4, and no disbursement from the Community Benefit Account, the Community Fund or the Readiness Account is made to a Barred Person. **Section 2.5 No public subsidy or tax benefit.** (a) The Developer shall not seek, claim or accept, and shall cause its affiliates not to seek, claim or accept, any credit, offset, abatement, exemption, refund or other reduction of any tax, fee, assessment, payment in lieu of taxes, rent or other charge owed to the County, any other local government or the State on account of any payment, capacity or other benefit under this Agreement. The Developer shall not cite, or permit an affiliate to cite, any valuation under this Agreement or Module Schedule 3 in support of such a request. (b) Subsection (a) does not limit the deduction, depreciation or other ordinary treatment, for federal or state income tax purposes, of any payment under this Agreement or of the cost of providing any capacity or other benefit under it, except as subsection (d) provides, and does not bar any exemption, credit or other treatment that would be available to the Developer on the same terms if this Agreement did not exist. This subsection does not reach an exemption, classification or assessment, including under s. 196.26 or s. 193.501, Florida Statutes, of land subject to an easement or other interest granted under this Agreement, which subsection (a) bars. (c) The Developer shall not seek or accept, and shall cause its affiliates not to seek or accept, any rebate, reimbursement, grant or other payment measured by, or paid from, tax increment attributable to the Project Site, including a payment from a redevelopment trust fund under s. 163.387, Florida Statutes, whether or not it would be available if this Agreement did not exist. (d) The Developer claims no charitable contribution deduction, and causes its affiliates to claim none, for any payment, capacity, easement or other property provided under this Agreement, including an Instruction Share, and requests no acknowledgment that it received no goods or services for any of them. (e) The Community Payment for the year in which the Developer or an affiliate receives a reduction or payment this Section bars increases by its amount, less any part repaid to the public body that allowed or made it; under a capacity Election, the Developer instead pays that amount into the Restricted Account within [__] days after receiving the reduction or payment. Breach of this Section is a default. ## ARTICLE III. THE COMMUNITY PARTY AND ITS SUPPORT **Section 3.1 Community Party representations.** The Community Party represents that it (a) is a Florida nonprofit corporation in good standing; (b) has operated in [COUNTY] County for at least [__] years; (c) has authorized this Agreement by board resolution, attached; (d) has a written conflict-of-interest policy; (e) has published a statement of its membership and how its board is chosen; and (f) has published, for each of its [__] most recent fiscal years, the name of each funder that provided [__] percent or more of its revenue in that year. It attaches the same statement for each later fiscal year during the term to the next annual report under Section 4.3. **Section 3.2 Payments to the Community Party.** The Community Party receives no payment from the Developer, and no disbursement from the Custodian, under this Agreement except: (a) the Grant Administration Payment; (b) a grant Section 5.9(c) permits; (c) after the Community Payments end, the costs Section 13.4(b) permits; (d) where it is a Qualified Operator that has become the Recipient, the payments this Agreement and the Module make to the Recipient, except that from the Readiness Account it receives only its own costs under Section 6.2(b)(ii); and (e) Community Payments held as its restricted fund in the Community Benefit Account under Section 5.8(a), applied only under Sections 5.9 to 5.11. No payment or disbursement under this Agreement pays its general operating costs. **Section 3.3 Support letters.** For each public hearing on an Approval, the Community Party shall deliver a letter stating its organizational position in support of the Project as described in Exhibit A, not later than [__] days after the Developer's written request and in any event before the hearing, if the request is made at least [__] days before the hearing. The Community Party's support is for that description only. Before delivering a letter, the Community Party registers or reports under any local lobbyist rule that applies, and discloses this Agreement as that rule requires. **Section 3.4 Content of letters.** (a) Each letter states the Community Party's support and its own reasons. It does not certify that the Project meets any standard, and it does not describe the benefits of this Agreement beyond the disclosures this Section requires. (b) Each letter discloses that the Community Party is a party to an agreement with the Developer under which it holds rights to community benefits and the Developer funds independent monitoring. It also discloses, as they apply: (i) where the Election includes a Community Payment, that the Community Party directs an annual payment from the Developer, held by an independent custodian, to community grants under a published policy; or, under the Community Fund form, that the Developer makes an annual payment to a community foundation fund whose grants the foundation decides; or, where Exhibit A states no form but names a Fund Holder, that the payment will be held as a fund of that foundation, whose grants the foundation decides, if it accepts in time, and otherwise by an independent custodian for grants the Community Party directs under a published policy; (ii) where the Community Party receives a Grant Administration Payment or is the Recipient, that the Developer pays its documented cost of administering those grants or the Allocation; and (iii) where the Parties choose Module Section 3.6 and the Election includes a share in kind, that the Host Institution, if it is an accredited public institution and accepts, holds an interest under this Agreement in an annual payment from the Developer for instruction that uses the Allocation, which that institution alone administers and in which the Community Party has no interest or role; and, where the Parties choose that Section and the Election includes a share paid as the Community Payment, that the accredited public institution named in Exhibit C under Module Section 3.6(h), if it accepts, holds the same kind of interest in an annual payment for instruction that uses computing bought with grants of that payment. (c) Exhibit E is the form of letter. **Section 3.5 Suspension.** The duty to deliver a letter is suspended (a) for any hearing at which the County's staff report finds that the Project does not meet an applicable standard, until that finding is resolved; and (b) while any default of the Developer under this Agreement, including under Section 2.2 or 4.2, continues after notice and the cure period under Section 11.1, until the default is cured. **Section 3.6 Delivery to the record.** Letters are delivered to the County's official record for the hearing, with a copy to the Developer, and not to individual commissioners, as s. 286.0115, Florida Statutes, and the County's procedures provide. **Section 3.7 The organization speaks only for itself.** This Article binds only the Community Party's official organizational position. Its members, its directors and staff acting in their own names, and every other person remain free to speak, comment, testify, petition, appeal and sue as they choose, and the Community Party has no duty to restrain or discipline any of them. The Community Party gives no covenant not to oppose, no release of any claim, and no waiver of any right to comment, appeal, seek enforcement of any standard, or sue, as to this Project or any other. **Section 3.8 Material Change.** (a) If, after signing, the Developer applies for or obtains any of the following (each a "Material Change"), the Community Party may withdraw its support by notice: (i) an increase in Approved Capacity beyond Exhibit A; (ii) any use of groundwater for heat rejection, or any increase in permitted water withdrawal; (iii) a variance, waiver, deviation or alternative compliance from any standard of the County's land development regulations or of any development agreement that applies to the Project; (iv) addition of land to the Project Site; (v) on-site generation not described in Exhibit A; or (vi) [other]. (b) While an application for a Material Change is pending, the duty under Section 3.3 is suspended. (c) Before applying for a Material Change, the Developer may give the Community Party notice of it, and the Parties shall then confer for not more than [__] days on whether support continues. **Section 3.9 Missing letters; benefits continue.** (a) If the Community Party fails to deliver a letter under Section 3.3, the Developer's sole remedy is to terminate this Agreement by notice before Articles V to VIII become operative under Section 13.1(c). (b) After Articles V to VIII become operative, no failure under this Article excuses any obligation of the Developer. Withdrawal of support under Section 3.8 ends only the Community Party's duties under Sections 3.3 to 3.8. If the Developer proceeds with a Project that includes a Material Change, Articles V to VIII continue to apply and scale to the Project as built. **Section 3.10 Tax and lobbying compliance.** Each Party is responsible for its own compliance with federal tax law on lobbying, political activity and private benefit, and with any local lobbyist registration rule. Nothing in this Agreement requires the Community Party to take any action that would jeopardize its tax-exempt status. No Party treats any payment under this Agreement as a charitable contribution, and no receipt the Community Party, a Fund Holder or a Recipient gives for one states that no goods or services were provided. **Section 3.11 Successor Community Party.** (a) **Succession Event.** A "Succession Event" is the Community Party's dissolution other than by administrative dissolution, its administrative dissolution not cured by reinstatement within [__] days, its ceasing to operate in [COUNTY] County, its merger into another entity (in which case the survivor holds only the rights subsection (c) describes, for enforcement only, in place of an institution under that subsection, unless it meets and assumes under subsection (b)) or, as to its rights and duties under Sections 5.2 to 5.14 only, its failure to adopt or follow the Grant Policy that it does not cure under Section 11.1. (b) **Named successor.** On a Succession Event, the Community Party's rights and duties under this Agreement and the account agreement under Section 10.2, other than under Sections 3.3 to 3.8, pass to the successor its board has named in advance by notice to the Developer, the Custodian and each Recipient, if that successor meets Sections 3.1(a), (b), (d), (e) and (f) and 4.2(b) and assumes them in writing, authorized by resolution of its board, within [__] days after the event. In the same writing the successor may also assume the Community Party's duties under Sections 3.3 to 3.8. The successor is then the Community Party. Each notice naming a successor is a present assignment, effective on a Succession Event, of the rights this Section passes, and the Developer consents to it. (c) **No named successor.** Failing such a successor, the first institution named in Exhibit C, and then the second, that is not then the Recipient and accepts in writing by notice to the Developer and the Custodian (i) holds, for enforcement only, the Community Party's rights under Articles IX to XI and the account agreement under Section 10.2, including its rights to give notice of default, to certify a draw under Article IX, to replace the Custodian under Section 10.2(d) and to engage the reviewers, accountants and counsel whose costs Section 10.1 pays; and (ii) holds the Community Party's rights and duties under Sections 5.2 to 5.14, for the same purposes. (d) **Effect.** The Community Party's duties under Sections 3.3 to 3.8 end on the passage, unless a successor assumes them under subsection (b). If they end before every hearing on the Approvals has been held, Section 3.9(a) applies as if a letter had not been delivered. The Developer publishes notice of the passage under Section 4.1. ## ARTICLE IV. PUBLICATION AND REPORTING **Section 4.1 Publication.** (a) Not later than [__] days before the first public hearing on the Project's development agreement or any Approval, each Party publishes this Agreement, with every exhibit and the completed form of the Module, on a public website. (b) Each Party keeps this Agreement, every amendment, each annual report under Section 4.3, each audit made under this Agreement and each notice of default, with its cure, posted on a public website until the wind-down under Section 13.4 is complete. The Developer also delivers a copy of each, for public access, to the first institution named in Exhibit C. (c) Where this Agreement requires a statement or finding to be published before an act, the person making it posts it on a public website, with notice to the Parties and the Recipient, not less than [__] days before the act, and attaches it to its next report or statement under Section 4.3. Where this Agreement requires one to be published after an act, the person this Agreement names to publish it, or otherwise the person making it, posts it the same way within [__] days after the act. (d) Every report, telemetry stream, manifest, statement and audit under this Agreement or the Module is delivered in human-readable and machine-readable open formats and is published with the report under Section 4.3, and Module Section 1.22(d) and (e) apply to it, under every Election, as they apply to a report under the Module. **Section 4.2 No side agreements.** (a) No term of the Parties' relationship concerning the Project is omitted from the published Agreement. The Parties represent that no other agreement, payment or understanding between the Developer or an affiliate and the Community Party, or any of its directors, officers or staff, relates to the Project, except as Exhibit A discloses. (b) The Community Party receives no funding, gift, loan, sponsorship or in-kind support from the Developer or an affiliate other than under this Agreement, and will accept none during the term unless it has first been published under Section 4.1. Acceptance of support that has not first been so published is a default of the Community Party and, where the Developer or an affiliate gave the support, of the Developer, and it excuses no obligation of the Developer. (c) Any later agreement, payment, gift, loan, sponsorship, in-kind support or understanding, other than under this Agreement and other than support that subsection (b) governs, between the Developer or an affiliate and the Community Party, whether or not it relates to the Project, and any later one relating to the Project between the Developer or an affiliate and any director, officer or staff member of the Community Party, that is not published under Section 4.1 within [__] days after it is made is a default. **Section 4.3 Annual report.** (a) Each year by [date], the Developer shall publish a plain-language report stating, for the prior year: each commitment under Articles V to VIII and its status, including each workforce and training commitment and its delivery as the receiving institution reports it under Section 7.5; the construction labor hours Section 7.5 requires; the equipment statement Module paragraph T-16 describes, which the Developer gives under every Election; any default and cure; any change to the incentives Exhibit A, item 9, lists; the receipts and uses of each Account, as the Custodian reports them; each Administration Payment, Grant Administration Payment and Instruction Share payment; and the count of reports Section 4.5(h) requires. Where any share is delivered in kind, the report includes the report Module Section 1.22(a) requires. A commitment under Articles VI to VIII to deliver, install or convey equipment, an improvement or an interest in land is reported as delivered only where the institution or facility owner that receives it has confirmed in writing that it is delivered and accepted, and the confirmation is attached; until then it is reported as in progress. (b) The Recipient attaches its budget and statement of costs under Section 5.17(c), and may attach its own statement. The Instruction Institution attaches its budget, its statement of costs and its report under Module Section 3.6(e) and Section 7.5. (c) Where a Community Payment is made, the Community Party attaches a statement of the Community Benefit Account's receipts and every disbursement, naming each grantee, its amount and its Permitted Purpose, the Reserve Share, any share granted for durable assets under Section 5.14 and any finding and carry-forward under it, with each comparison, statement and finding Section 5.16 requires; or, under the Community Fund form, the Fund Holder's statement of the same for the Community Fund. (d) The report opens with a table that lists each commitment under Articles V to VIII, including each in Exhibit A, item 6, by its section or item, without restating it. For each, the table states its due date or trigger; its status as not yet due, in progress, delivered (with any confirmation subsection (a) requires), in default, cured, or not applicable; and where in the report or its attachments the evidence is. **Section 4.4 Copies of filings.** The Developer delivers to the Community Party a copy of each application, study, report and response that the Developer, or any person acting for it, files with a Public Approver on an Approval or a Replacement Approval: at signing, for each filed before then, and afterward when it is filed. The Developer may withhold only a portion exempt from public disclosure under chapter 119, Florida Statutes, and states for each portion withheld the exemption it claims. **Section 4.5 Annual meeting; contacts; reports.** (a) **Annual meeting.** Each year, within [sixty (60)] days after the report under Section 4.3 is published or, if it is not published by the date Section 4.3(a) sets, after that date, beginning with the first report due after the Approvals Date, the Developer holds a meeting open to the public, on a date set after consulting the Community Party, starting between [6:00 p.m.] and [7:00 p.m.] on a weekday that is not a legal holiday, at a place in [COUNTY] County [within [__] miles of the Project Site] that is accessible to persons with disabilities and that no Public Approver owns or operates (Section 2.4(a))[, with a way to take part remotely]. The Developer presents the report and answers questions about it. The Community Party may present its own statement, and each Recipient and the Instruction Institution, where there is one, may present its own report. Not less than [fourteen (14)] days before the meeting, the Developer posts notice of it, stating its date, time and place[, how to take part remotely] and an address for written questions, under subsection (g), and delivers the notice to the Community Party, each Recipient and the Instruction Institution, where there is one. The Developer pays the reasonable cost of the place[, the remote participation], the notice and the summary under subsection (c), but pays nothing for the place to the Community Party (Section 3.2) or to a Barred Person. (b) **Questions.** Any person may submit a written question about the report or this Agreement for the meeting, at the address its notice states, from the posting of the notice until the meeting, or at the meeting. Subsection (e) does not apply to a question submitted for the meeting. Within [thirty (30)] days after the meeting, the Developer answers in writing each written question it did not answer at the meeting, and may answer questions that are the same in substance together. An answer under this Section may withhold a trade secret, information that law makes confidential, or the name, wage or other identifying data of an individual employee, job applicant or grant applicant, if it states what is withheld and why. (c) **Summary.** Within [thirty (30)] days after the meeting, the Developer posts under subsection (g) a written summary of the meeting, with each written question and its answer. The summary does not name or otherwise identify any member of the public who has not consented. (d) **Limits.** The meeting is not a negotiation of any amendment, waiver or new undertaking, and nothing said at it, and no answer or summary under this Section, amends, waives or adds to this Agreement (Sections 14.3 and 14.7). It is not a proceeding of the County, and neither Party asks the County or any of its officers or employees to take part in it. While an application by or for the Developer concerning the Project is pending before a Public Approver, a Party need not answer under this Section a question from a member, officer or employee of that Public Approver. No failure of the Community Party under this Section excuses any obligation of the Developer. (e) **Contacts.** Within [ten (10)] business days after signing, each Party names a contact for questions about this Agreement: a position, held by a person with authority to answer for that Party, with a business telephone number and an electronic mail address at which that person can be reached. Each Party posts its contact under subsection (g) by the later of the day it names it and the day it first publishes this Agreement under Section 4.1(a), and posts any change within [ten (10)] business days after it. Each Party, through its contact, may answer questions that are the same in substance together, and answers each question within [ten (10)] business days after receiving it or, where an answer needs more time, states within that period the date, not later than [thirty (30)] days after receiving the question, by which it will answer, and answers by that date. A question to a contact is not a notice under Section 14.8 and starts no other period under this Agreement. (f) **Duration.** Subsections (e) and (h) apply from signing, and subsections (a) to (c) from the Approvals Date, until the wind-down under Section 13.4 is complete. (g) **Posting.** A Party posts each notice, summary, contact and log this Section requires on the public website on which it keeps the items Section 4.1(b) lists, and keeps each summary and log posted for as long as Section 4.1(b) requires those items to stay posted. Section 4.1(c) does not apply to this Section. (h) **Reports of unmet commitments.** Within [ten (10)] business days after signing, the Developer names, and posts under subsection (g), a contact for reports, being an electronic form and a mailing address, at which any person may report that a commitment of the Developer under this Agreement is not being met. The contact collects no data identifying the person or device making a report: the form has no field for a name, address, telephone number or electronic mail address, and neither the form nor any service hosting it collects or keeps a network address, device identifier, cookie or other data identifying a person or device; and a report by mail is accepted without a return address. The Developer does not require or ask for that information, and any that a reporter chooses to include is entered in no log or other record and is removed on receipt, by redacting it or by recording the report's content without it and then destroying the original, except as law requires it to be kept. Every report received is logged as this subsection provides, whether or not it included that information. Within [thirty (30)] days after receiving a report, the Developer enters in a log, posted under subsection (g), the date of the report, the section or item of the commitment it concerns, a summary of it that identifies no individual, and the Developer's answer, stating whether the commitment is being met and, if it is not, what the Developer will do and by when, and delivers a copy of the entry to the Community Party and any Recipient. Each annual report under Section 4.3 states the number of reports received in the year it covers, by the commitment each concerns, and how many the Developer answered as met, not met or cured. A report is not a notice under Section 11.1 or 14.8 and starts no period under this Agreement. ## ARTICLE V. COMMUNITY PAYMENT OR CAPACITY **Section 5.1 Commitment.** (a) The Developer's commitment under this Article is computing capacity equal to [one-half of one percent (0.5%)] of the Project's Installed IT Capacity, which is the ratio R in Module Section 1.4(a). It is delivered as the Community Payment unless the Community Party elects delivery in kind under Section 5.2. To the extent it is delivered in kind, the Developer delivers it as the Allocation under the Module. (b) The Community Payment, with any share delivered in kind, is in place of and not in addition to the commitment under subsection (a). (c) The commitment scales with Installed IT Capacity by its own terms as the Project grows and is restated at each Phase, and the Community Payment scales with it. (d) **Related data centers.** Installed IT Capacity includes the capacity of the information-technology equipment installed at each related data center, measured as Module Section 1.2 measures it at the Project Site. A "related data center" is a facility, other than the Project, whose primary function is housing and operating information-technology equipment for computation, storage or data transmission, that the Developer or an affiliate develops, owns, operates or holds an interest in, on land that (i) is under common ownership or common control with the Project Site, or was at any time within the [thirty-six (36)] months before the first application for an approval of that facility, or of the Project, was filed; and (ii) lies within [one (1) mile] of the Project Site or of the land of another related data center. Land is under common control with the Project Site where one person, directly or indirectly, holds [twenty-five percent (25%)] or more of the voting interests, capital or profits of the owners or holders of both; where those owners or holders share a common parent, manager, managing member or general partner; or where an agreement, option, right of first refusal, lease, development agreement, shared-infrastructure arrangement or course of dealing gives the Developer or an affiliate the practical ability to direct the development of that land, judged by substance and not by form. Shared use with the Project Site of substation capacity, a transmission interconnection, a fiber path, water service or reclaimed water service is evidence that a facility's land is under common control with the Project Site. The Developer states each related data center and its Installed IT Capacity in each report under Section 4.3, and causes each affiliate to give it what it needs to do so. **Section 5.2 Election.** (a) At signing, the Community Party states in Exhibit A whether the commitment under Section 5.1 is delivered (i) in kind as the Allocation (a "capacity Election"); (ii) as an annual Community Payment in place of the Allocation (a "payment Election"); or (iii) in kind for [__] percent of that commitment and as the Community Payment for the rest (a "mixed Election"). If Exhibit A states no Election, the payment Election applies. (b) A capacity or mixed Election is effective only if, when this Agreement is signed, (A) the first institution named in Exhibit C has delivered the letter of intent Exhibit C requires, including its statement of the users and uses it expects the Allocation to serve; and (B) Exhibit A states how the Developer will deliver the Allocation under Module Section 1.4(h), from computing equipment that the Developer or an affiliate owns or operates at the Project or in the cloud form under Module paragraph T-13. Otherwise the payment Election applies. (c) Exhibit A records whether conditions (A) and (B) are met and the date of the letter of intent. That record is conclusive for the Parties and every person claiming under this Agreement, and a capacity or mixed Election that Exhibit A does not record as meeting them is a payment Election. (d) The Developer may not change the Election. **Section 5.3 Change of Election.** (a) The Community Party may change the Election by notice to the Developer and the Custodian, effective on the first day of a calendar year that begins at least [__] months after the notice, and not more than once in any [__] years. (b) A change that increases the share delivered in kind may be noticed only if, on the date of the notice, an institution named in Exhibit C has delivered to the Parties a letter of intent, dated not more than [__] months before the notice, that states what Exhibit C requires, and Exhibit A, as amended, states how the Developer will deliver the Allocation as Section 5.2(b)(B) requires and records the letter and its date, that record being conclusive as Section 5.2(c) provides. On the Community Party's written request, with that letter, the Developer signs that amendment within [__] days, stating either form of delivery Section 5.2(b)(B) permits, as it chooses, and conditions its signature on no other term. (c) A change that increases the share delivered in kind takes effect only after a Recipient has accepted under Module Section 3.2, 3.4 or 3.5 and the Technical Schedule has been agreed under Module paragraph T-1, which apply to the share to be delivered in kind from the date of the notice. The notice under Module Section 3.2(a) is given, where its period has passed, within [__] days after the notice of change, and the Developer has until the later of that date and [__] months after the notice to begin delivery. The Community Payment continues until delivery begins. (d) A change that reduces the share delivered in kind requires the written consent of every Recipient then holding rights. (e) A default of the Developer under this Article neither bars nor delays a change, and no change cures, waives or reduces that default or any amount owed for it. A change operates only for periods after it takes effect and does not alter the money owed under Module Section 1.18(e) for any earlier period. **Section 5.4 Module M3.** (a) Module Parts 1 and 3 and Schedule 1 form part of this Agreement from the date a capacity or mixed Election takes effect and, for a change under Section 5.3 that increases the share delivered in kind, from the date of its notice. Module Part 2 does not apply. (b) Module Schedules 2 and 3, and Module Sections 1.8(b), 1.9(f) and 1.9(g), form part of this Agreement under every Election from signing. [Drafting note, remove before the draft is made public: These cover resident data (Schedule 2), valuation (Schedule 3), the Developer's ownership of its intellectual property and equipment (Section 1.8(b)), signing for a corporation not yet formed (Section 1.9(f)) and the Developer's neutrality in elections of a Recipient's directors (Section 1.9(g)).] (c) Before Parts 1 and 3 and Schedule 1 attach, a provision of this Agreement, or of Schedule 2 or 3, that applies a provision of the Module by its number applies that provision, with the definitions of Module Section 1.2, only for that purpose. Where this Agreement applies a provision of the Module to a payment, Account, purchase or person under this Agreement, a reference in that provision to "this Module" or "the Instrument" includes this Agreement. In each provision of the Module that forms part of or is applied by this Agreement, under every Election, "the Agreement," "an Agreement" and "the Instrument" mean this Agreement, and "Counterparty" means the Community Party. (d) Each provision of the Module that forms part of this Agreement applies at its own number as if set out in this Agreement, and every term of this Agreement, including Section 13.1, applies to it. A provision of the Module M3 Options the Parties choose is inserted in the Module at its number. **Section 5.5 Share paid as the Community Payment.** (a) For a share paid as the Community Payment, Module Parts 1 and 3 and Schedule 1 do not apply, except as this Agreement applies one of their provisions by number. Under a mixed Election, the Allocation under the Module is the percentage of the amount under Module Section 1.4 that Exhibit A states, and the Module applies to that share only. Module Section 3.6, where the Parties choose it, also applies to a share paid as the Community Payment, as its subsection (h) provides, with Module Sections 1.11(b) and (c) and 1.18(d) and paragraph T-23 for that purpose. (b) Module Section 1.18(e) does not apply to the Community Payment. **Section 5.6 Amount of the Community Payment.** (a) The Community Payment for each year is the amount Exhibit B, item 1, states for that year, measured under a mixed Election on the share paid. (b) Where Exhibit B measures the Community Payment by Replacement Cost, Module Schedule 3 applies to the share paid with the Community Party in place of the Recipient; the panel under Module paragraph V-5 is agreed or, failing agreement, named by the Appointing Authority not later than [__] days before the first valuation is due; and a valuation is made not later than [__] days before the first Community Payment is due and before the security under Section 9.1 is first delivered. **Section 5.7 Payment of the Community Payment.** (a) The first Community Payment is due on the First Delivery Date. Each Community Payment is for a calendar year, prorated for a partial year, and Community Payments accrue, prorated daily, until the term ends under Section 13.2. (b) Community Payments are paid into the Community Benefit Account, to the Custodian to hold as Section 5.8(b) provides or, where Section 5.12 applies, to the Fund Holder, in equal quarterly installments in advance. Late amounts bear interest at the Default Rate. Where Exhibit B measures the Community Payment by Replacement Cost, after each annual valuation the difference between the installments paid and the amount finally determined is trued up, with interest at the Default Rate on any underpayment. (c) Community Payments are not withheld, reduced or offset for any claimed default of the Community Party. (d) On a Distress Event, the unpaid balance of the Community Payment for the then-current year, measured where no valuation for that year is final by the most recent final valuation, becomes immediately due, and the Custodian may draw the security to that extent. **Section 5.8 Where the Community Payment is held.** (a) Exhibit A states whether Community Payments are held (i) in the Community Benefit Account under Sections 5.9 to 5.11, or (ii) as a non-advised, field-of-interest fund (the "Community Fund") of a community foundation named in Exhibit A that is a public charity under Sections 170(b)(1)(A)(vi) and 509(a)(1) of the Internal Revenue Code, is not a Barred Person, and has accepted in writing (the "Fund Holder"). The Community Party chooses form (i) only on its board's written finding, made with tax advice, that the Community Payments will not cause it to fail the public support test that applies to it, and the account agreement states that the Custodian holds the Community Benefit Account as trustee, as the Community Party's restricted fund. (b) If Exhibit A states neither form, form (ii) applies where the Fund Holder named in Exhibit A or, if it declines or does not accept within [__] days after the Community Party's request, the successor Fund Holder named there, has delivered its acceptance to the Developer, the Community Party and the Custodian not later than [__] days before the first Community Payment is due; otherwise form (i) applies. Until the fund agreement under Section 5.12(a) is signed, the Custodian holds Community Payments for the Fund Holder. Form (i) applies under this subsection only after the finding Section 5.8(a) requires; until then, the Custodian holds the Community Payments for the Permitted Purposes, and pays them to the first Fund Holder that later accepts under this subsection or, once the finding is made, into the Community Benefit Account. [Drafting note, remove before the draft is made public: Set the acceptance periods of this subsection so that the holding form is known before the Grant Policy deadline (Section 5.11(a)) and the first valuation (Section 5.6(b)).] (c) Except under Section 5.12(f), the form may be changed only as Section 5.3 provides for a change of Election. Amounts already paid stay with the holder for the same purposes. **Section 5.9 Community Benefit Account.** (a) The Custodian holds the Community Benefit Account separately from every other Account and disburses from it only on the Community Party's certificate that the disbursement is a grant or purchase made under the Grant Policy for a Permitted Purpose, paying each grantee or vendor directly. (b) Until the Community Payments end, the Community Party's documented cost of administering the Grant Policy is paid as the Grant Administration Payment, not from the Account. (c) [The Community Party may receive a grant for a program of its own only if the Grant Policy permits it, the grant is approved by directors with no interest in it, and the grant is published under Section 4.3.] (d) Investment earnings stay in the Account for the same purposes. (e) An independent certified public accountant the Community Party engages audits the Account each year, paid by the Custodian from the Monitoring Fund, and the audit is published under Section 4.3. **Section 5.10 Permitted Purposes.** (a) The "Permitted Purposes" are: (i) public-interest research, education, workforce training, civic and nonprofit uses, and small-business access, delivered as computing capacity, connectivity, devices, software, or the staff who administer and maintain them and give residents access to them, such as account set-up and technical support, but not instruction or training in their use; [(ii) licensed child care slots for residents, paid to the local early learning coalition or to licensed providers]; and [(iii) the other purposes stated in Exhibit A]. (b) No Permitted Purpose, including one added under subsection (a)(iii), and no Readiness disbursement, Administration Payment, Grant Administration Payment or other disbursement from an Account, includes or pays for an instruction or training program, tuition, training stipends, or other transition support for displaced workers. The only exceptions are preparation of instruction under Section 6.2(b)(iv), an Instruction Share under Module Section 3.6, and a draw for a failure under Section 7.4, paid as Sections 9.1(c) and 9.3 provide. (c) No Permitted Purpose, no commitment under Article VIII or Section 7.7, and no grant or purchase under this Agreement includes or pays for any means of surveillance of members of the public, such as cameras or video feeds that watch people, license plate readers, face recognition, location tracking, drones used to watch people or a link to a real-time crime center, or any grant, device or service for a law enforcement agency other than for emergency services. "Emergency services" means response to a fire, medical emergency, hazardous materials release, disaster or other emergency that threatens life or property, and not surveillance or the investigation of crime. **Section 5.11 Grant Policy.** (a) Not later than [__] days before the first Community Payment is due, the Community Party's board adopts and publishes a written grant policy (the "Grant Policy") stating which Permitted Purposes it will fund; how residents and eligible organizations apply; how grants are chosen; the conflict rules of Section 14.5; the limits of Sections 2.4 and 5.10(b) and (c); how Section 5.16 applies to any Service or hardware a grant pays for; how it meets Section 5.14 where this Agreement includes it; and the publication of every grant under Section 4.3. (b) Each amendment of the Grant Policy is published before it takes effect. (c) The Developer has no role in choosing any grantee or any member of a committee under Section 5.12(b), and receives no naming, marketing or other benefit from any grant beyond its publication. No durable asset under Section 5.14 is leased to, used by or reserved for the Developer or an affiliate, other than as a member of the public. **Section 5.12 Community Fund.** Where the Community Fund form applies: (a) Within [__] days after its acceptance, the Fund Holder and the Developer sign a fund agreement stating subsections (a) to (g), of which the Community Party is an intended third-party beneficiary. Community Payments, and any draw on security for an unpaid Community Payment, are paid to the Fund Holder for the Community Fund in place of the Community Benefit Account. Sections 2.2(c), 2.4, 5.10 and 5.16, and Section 5.14 where this Agreement includes it, are the purposes and restrictions of the fund agreement. (b) Grants are recommended by a committee of not fewer than [__] residents of [COUNTY] County that the Fund Holder appoints under its own published procedures, and are decided by the Fund Holder's governing body. Neither the Developer, any affiliate nor the Community Party appoints, designates, removes or instructs any member, and no director, officer or employee of any of them, and no official or employee of a Public Approver, serves on the committee. (c) The Fund Holder adopts and publishes the grant policy Section 5.11(a) describes, Section 5.11(b) and (c) apply to it, and the conflict rules of Section 14.5 apply to the committee. Section 5.9 does not apply. (d) The Fund Holder's published fees on each year's Community Payment are paid as the Grant Administration Payment, not from the Community Fund. Fees on the endowed part under Section 5.13, fees above the limit Exhibit B, item 3, states, and all fees after the last Community Payment are paid from the Community Fund. (e) The fund agreement states that the Fund Holder holds the variance power its governing instruments and federal tax law require, and that the Parties intend the Permitted Purposes to govern. The Fund Holder publishes any exercise of that power with its reasons and, to the extent federal tax law permits, gives the Developer, the Community Party and the Custodian not less than [__] days' notice before any exercise that would apply any part of the Community Fund, including its endowed part, to a purpose that is not a Permitted Purpose. (f) If the Fund Holder gives notice that it will not accept further payments, does not sign the fund agreement within the period in subsection (a) for a reason other than the Developer's default, ceases to meet Section 5.8(a), or applies any part of the Community Fund outside the Permitted Purposes or contrary to Section 2.4 or 5.10(b) or (c), later Community Payments are paid to the successor Fund Holder named in Exhibit A that accepts, and failing one into the Community Benefit Account, without regard to Section 5.3. (g) The Community Party keeps every right under Article XI to enforce the Developer's payment obligations, and has no role in any grant beyond public comment open to everyone. **Section 5.13 Reserve Share.** Not less than [__] percent of each Community Payment (the "Reserve Share") is added to a reserve, held and invested in the Community Benefit Account or, under the Community Fund form, as an endowed part of the Community Fund. Neither the reserve nor its earnings is spent before the term ends or an earlier Abandonment occurs. After that, the reserve is spent for the Permitted Purposes under a written spending policy that the Community Party or the Fund Holder adopts and publishes. **Section 5.14 [Optional] Durable share.** [(a) Each year the Community Party or the Fund Holder sets aside, from the amount available for grants other than the reserve under Section 5.13, not less than [__] percent for grants for durable assets. (b) A "durable asset" is property bought for a Permitted Purpose that is owned outright, and expected to be used for not less than [__] years, by a public body or a nonprofit organization, including a grantee that is one, other than a Barred Person or the Community Party. Durable assets include devices, fiber, conduit and other connectivity infrastructure, computing hardware, and software developed for a grantee and released under an open-source license. A durable asset is never a subscription, license term, lease or other service, and none is bought for, or used chiefly in, an instruction or training program. (c) Each grant for a durable asset states who will own and maintain it and how its operating, maintenance and disposal costs will be paid over its expected life, and requires the owner to keep it in use for a Permitted Purpose for that life and, if it sells it or stops using it sooner, to apply the proceeds to a Permitted Purpose or return them to the account that made the grant. (d) The purchaser of a durable asset compares at least [two (2)] offers where more than one supplier offers it, and Module paragraph T-21(e) and (f), as Section 5.16 applies them, apply to the purchase as they apply to a Service. (e) Any part of the set-aside not granted in a year, because applications meeting the Grant Policy for durable assets fall short, as the Community Party or the Fund Holder finds in writing, stays set aside for durable assets for not more than [__] years and then becomes available for other grants.] **Section 5.15 Grant Administration Payment.** With each installment of the Community Payment, the Developer also pays, through the Custodian on the payee's certificate, (a) the Community Party's documented cost of administering the Grant Policy, where the Community Benefit Account form applies; or (b) the Fund Holder's published fees on that year's Community Payment, where the Community Fund form applies, in each case not more than the limit Exhibit B, item 3, states (each a "Grant Administration Payment"). Each is in addition to the Community Payment, and late amounts bear interest at the Default Rate. The first Grant Administration Payment also includes the Community Party's documented cost of preparing the Grant Policy under Section 5.11(a), paid to the Community Party, not more than the amount Exhibit B, item 3, states for it and in addition to every other limit that item states. **Section 5.16 Purchases with Agreement money.** (a) **Services.** Module paragraph T-21 applies, under every Election, to every Service bought with money from the Readiness Account, the Community Benefit Account, the Community Fund, the administration account or any Legacy Reserve account, with the Administration Payment, or with a grant from any Account, as it applies to a Service bought with Restricted Account funds. (b) **Purchasers.** In applying Module paragraphs T-11 and T-21 under this Section, the purchaser is the person on whose certificate the Custodian pays, or that buys with money disbursed or paid to it, and a grantee is the purchaser of what its grant pays for; the purchaser is read for "the Recipient"; and a grantee delivers each comparison, statement and finding in confidence, except as Chapter 119, Florida Statutes, requires of a grantee subject to it, to the Community Party or the Fund Holder that made the grant, which keeps it for the audit of the account concerned and, after the commitment or order, publishes it under Section 4.1. For a Service bought with the Administration Payment, the Recipient keeps them with the records supporting its statement of actual costs under Section 5.17(c). (c) **Hardware.** Module paragraph T-11 applies, under every Election, to hardware the Developer or an affiliate sells, leases or finances to a grantee that pays for it with a grant from an Account or the Community Fund, as another purchaser. (d) **Salvage value.** Fair salvage value, including its default benchmark until a Technical Schedule states one, has the meaning in Module Section 1.2 under every Election. **Section 5.17 Administration Payment.** (a) **Amount.** From first delivery, for the share of the Allocation delivered in kind, the Developer shall pay the Recipient each year the Administration Payment Exhibit B, item 4, states, in addition to and not out of the Allocation or any Community Payment. "Year" in this Section means the Recipient's fiscal year. (b) **Payment.** It is paid in equal quarterly installments in advance, with interest on late amounts at the Default Rate. (c) **Uses; budget; true-up; audit.** The Administration Payment pays only the staff and systems that administer and maintain the Allocation, give users access to it and provide support; the Recipient's costs of complying with the Module, including insurance under Module Section 1.23 and the costs of any panel under Module Section 1.5(d); and indirect costs on those costs at the Recipient's federally negotiated rate for other sponsored activities then in effect, including a provisional rate, applied to the base that rate agreement uses, or any lower rate it elects. A Recipient without such a rate may apply not more than the de minimis rate that 2 C.F.R. 200.414(f) then permits, applied to modified total direct costs as 2 C.F.R. 200.1 then defines them. No indirect cost is charged on equipment, capital expenditures or rental costs, or on the value of the Allocation or of any capacity, cloud service or colocation provided or paid for under this Agreement. A cost is not charged directly if any other cost incurred for the same purpose in like circumstances is included in the indirect costs the Recipient charges at its rate (2 C.F.R. 200.403(d), 200.412). "Support" means responding to a user's request about that user's account, access or workload, publishing documentation, and outreach informing eligible users how to apply; it excludes scheduled courses, workshops, curricula and cohort instruction. The Administration Payment does not pay the Recipient's elections, annual audit or other governance costs, or, where Module Section 1.5(g) applies, the cost of administering access by users an Access Institution serves, other than the Recipient's own costs under Module Section 1.5(g)(iii) and of any panel under Module Section 1.5(d). A person paid in part from it certifies time under the Recipient's effort-reporting procedures, and no time spent giving instruction is charged to it. Before each year the Recipient publishes its budget for these costs, and after it a statement of actual costs. Any amount not spent in a year, other than an operating reserve of not more than [__] months of budgeted cost, is credited against the next year's Administration Payment. The Developer may, at its own cost and not more than once a year, have an independent accountant examine the statement of actual costs; any amount paid for a use this subsection does not permit is credited against the next installment, and a dispute Module paragraph T-26 describes is decided under that paragraph, with any dispute about the same budget under Module Section 1.5(f). (d) **Above the limit.** The limit Exhibit B, item 4, states applies to the Administration Payment only. Module Section 1.5(f) pays the Recipient's administration cost under that Section that the Administration Payment does not, on the budget and in the installments that Section states, and one budget serves for both. A dispute about that budget under either is decided in one proceeding under Module paragraph T-26. (e) **Continuity and change.** The Administration Payment continues at the budgeted amount during an interruption under Module Section 1.15(a), during force majeure for not more than [__] months, and for [__] months after a Conversion Event; after that, the Recipient's administration cost for a converted share is paid under Module Section 1.5(f), and the operation of the capacity that replaces it under Module Section 1.19(b). On a change of Recipient, the incoming Recipient's Administration Payment begins at its acceptance; the outgoing Recipient may apply its unspent balance and operating reserve, for not more than [__] days, to its documented transition costs, and pays the rest to the Custodian for the incoming Recipient, to be applied before any credit under subsection (c), or, where the outgoing Recipient is a public body that the law governing its funds bars from that payment, refunds the rest to the Developer. Where the outgoing Recipient has dissolved, or its governing documents require that balance to be delivered to the Custodian, the balance and reserve are delivered to the Custodian at once, and the Custodian pays those transition costs from them for the same period, directly to the persons owed, on the certificate of the incoming Recipient or, while there is none, of the Community Party. At the end of the term any balance is applied under the transition plan under Module Section 1.14(c). ## ARTICLE VI. READINESS PAYMENTS **Section 6.1 Readiness Payments.** (a) Under every Election, the Developer shall pay the Custodian, for a Readiness Account held separately from every other Account, three payments (each a "Readiness Payment") in the amounts Exhibit B, item 2, states, in addition to and not credited against the Allocation, any Community Payment or the Administration Payment: (i) the first, within [__] days after the Approvals Date; (ii) the second, on the earlier of the closing of construction financing for the first Phase and the commencement of vertical construction of the first Compute Hall; and (iii) the third, under a capacity or mixed Election, within [__] days after the Developer's notice under Module Section 3.2(a) and in any event not later than the Operations Commencement Date of the first Phase, and under a payment Election, on the Operations Commencement Date of the first Phase. (b) Late amounts bear interest at the Default Rate. **Section 6.2 Uses.** (a) The Custodian disburses from the Readiness Account only for the uses in subsection (b), on the certificate of the Recipient, including a Host Institution that accepts before first delivery, or, for item (iii), of the Fund Holder or, for item (v), of the Access Institution, and pays each vendor or institution directly. (b) The uses are: (i) a published plan for the Allocation, covering the users and uses to be served under Module Section 1.5, the acceptable-use policy, preparation of the Technical Schedule, the transition plan and outreach to eligible users; (ii) the Recipient's documented costs of preparing to receive the Allocation before first delivery, such as staff, identity and access systems, and export-control and data-protection procedures, with indirect costs as Section 5.17(c) permits, but not, where Module Section 1.5(g) applies, the cost of preparing access by users an Access Institution serves, other than the Recipient's own costs under Module Section 1.5(g)(iii), item (v) paying the Access Institution's own costs of preparing; (iii) the costs of establishing the Community Fund, where that form applies; (iv) where the Parties choose Module Section 3.6, the documented costs of the Host Institution, if it meets Module Section 3.6(b) and has accepted that Section, of preparing before first delivery instruction that will use the Allocation and meet Module Section 3.6(d), limited to curriculum and course development, preparation of instructors and seeking approval of the program for public student aid, and not the cost of delivering any course or any cost the last sentence of Module Section 3.6(c) excludes, from not more than [__] percent of the second Readiness Payment, with indirect costs as Module Section 3.6(c) permits; and (v) where Module Section 1.5(g) applies, each Access Institution's documented costs of preparing, before first delivery, to give the users it will serve access to the Allocation, such as staff, identity and access systems, and screening and data-protection procedures, with indirect costs as Module Section 1.5(g)(iv) permits, paid to that institution once the Recipient has delivered its agreement with it to the Custodian. (c) Nothing is disbursed under item (i), (ii), (iv) or (v) of subsection (b) before a Recipient accepts, and the Community Party certifies no disbursement except as a Qualified Operator that has become the Recipient. (d) No disbursement pays for organizing or incorporating any entity, and none is paid to the Community Party except as Section 3.2(d) permits, to any director, officer or staff member of it, or to any entity that the Community Party or any of them controls. **Section 6.3 Balance.** (a) Sections 5.10(b) and (c) and 6.2(d) apply to every use of a balance. (b) At first delivery, any balance passes to the Recipient for the uses of Section 6.2(b)(i) and (ii) and the Permitted Purposes of Section 5.10(a)(i), except that where the Community Party is the Recipient the balance stays in the Readiness Account and the Custodian pays vendors directly. (c) Under a payment Election, the balance passes on the First Delivery Date to the holder Section 5.8 makes applicable, for those Permitted Purposes. **Section 6.4 Stall.** (a) If this Agreement ends before first delivery, first delivery has not occurred within [__] months after the first Readiness Payment, or the Developer gives notice that it will not proceed with the Project (each a "Stall"), the balance stays with any Recipient then serving, for the same uses. Under a payment Election, "first delivery" in this Section means the First Delivery Date. (b) If no Recipient is serving, the Custodian gives notice of the Stall, within [__] days after it, to each institution named in Exhibit C, the Fund Holder and successor Fund Holder named in Exhibit A, and the Community Party, and publishes it. If the Custodian does not, the Community Party or any institution named in Exhibit C may give the notice with the same effect. (c) The balance then passes, for the Permitted Purposes of Section 5.10(a)(i), to the first of the following that accepts within [__] days after the notice or after the time for the one before it ends, in this order, except that under a payment Election the Fund Holder and then the successor Fund Holder come first: the first, then the second, institution named in Exhibit C; the Fund Holder, then the successor Fund Holder; and then any public or nonprofit institution in Florida that operates computing for research, education or public use, meets Module Section 1.11(b) and is not a Barred Person, on its acceptance with the certificate Module Section 1.11(c) requires. The last tier remains open until an acceptance, and the first acceptance the Custodian receives governs. Each acceptance under this subsection states that the accepting institution or Fund Holder agrees to arbitrate under Module paragraph T-23 any dispute that paragraph assigns to the neutral. (d) The Community Party may object to an acceptance within [__] days, and the objection is decided under Module paragraph T-23(a). Nothing is disbursed to an institution until the objection period ends or the dispute is decided, and if its acceptance fails, the next acceptance received is considered. ## ARTICLE VII. WORKFORCE AND LOCAL OPPORTUNITY **Section 7.1 First-source hiring and local business outreach.** For construction and permanent positions, the Developer and its contractors shall list openings, as a first-source referral, with the regional workforce board if it is not a department or instrumentality of the County, and otherwise on the state job bank, at least [__] days before other recruitment, advertise locally, and give qualified local candidates full and fair consideration. The Developer shall conduct outreach to qualified local businesses for construction subcontracts and operational procurement and report the results. This Section sets no quota. **Section 7.2 Operations readiness.** Within [ninety (90)] days after vertical construction of the first Compute Hall commences, the Developer shall give [STATE COLLEGE], and the regional workforce board if it is not a department or instrumentality of the County, a staffing plan, and post it on a public website, stating by occupation the number of permanent positions the Developer, its affiliates and its contractors expect to fill at the Project in its first [three (3)] years of operation and the credentials each requires. The Developer states any change to the plan in each report under Section 4.3, and updates the posted plan to match, until the last Phase begins operation. The Developer shall coordinate its operations-readiness training with [STATE COLLEGE], the local early learning coalition and the regional workforce board if it is not a department or instrumentality of the County, so that residents can train for those positions before the Operations Commencement Date of the first Phase. To coordinate, from the date it gives the staffing plan until the Operations Commencement Date of the first Phase, the Developer offers each of them in writing a meeting not less than [twice] a year, meets with each of them that accepts, and states each offer and meeting, and any change to the training that results, in its report under Section 4.3. The plan is not an offer or promise of employment to any person. **Section 7.3 Registered apprenticeship.** The Developer shall require each prime construction contractor, and each prime contractor shall require each subcontractor, to participate in apprenticeship programs registered under 29 C.F.R. Part 29 or Chapter 446, Florida Statutes, for the trades it performs on the Project, with a [goal of [__] percent of construction labor hours performed by registered apprentices]. **Section 7.4 Training equipment.** Not later than [__] months after vertical construction of the first Compute Hall commences, the Developer shall deliver to [STATE COLLEGE], at the Developer's cost, the training equipment and curriculum materials listed in Exhibit A, item 10, for the trades and technologies used at the Project, with maintenance for [__] years and replacement on a cycle matched to the Project's own equipment generation for [__] years. At delivery the Developer provides manuals, transferable diagnostic software licenses and administrator access, and it makes parts available for [__] years without parts pairing or locks. The college accepts by its own written instrument and, from its acceptance, may enforce this Section as Section 11.3(a) provides. The maintenance, replacement and parts obligations of this Section are secured under Section 9.1(a). **Section 7.5 Reporting.** Delivery under this Article and under Module Section 3.6 is reported by the receiving institution (workforce board, college, apprenticeship sponsor or Instruction Institution), not by the Developer: cohorts, completers, dislocated-worker completers and completers employed with any employer. No wage or individual hiring data is reported. For Section 7.3, the Developer also states in its report under Section 4.3, for each year in which construction on the Project Site occurs and from its contractors' payroll records, the total construction labor hours performed on the Project and the hours performed by registered apprentices, by trade, without the name, wage or other identifying data of any person. **Section 7.6 Construction.** (a) From the Approvals Date, Sections 7.1, 7.3 and 7.5 reach all construction on the Project Site under the Approvals or any Replacement Approval, including site work, utility work and any building other than a Compute Hall. (b) From signing, the Developer shall include in each contract for that construction a term requiring the contractor, from the Approvals Date, to comply with Sections 7.1 and 7.3 and to report to the Developer the hours Section 7.5 requires. Breach of this subsection is a default. **Section 7.7 Optional terms.** [Reserved for optional terms from the CBA Clause Bank.] ## ARTICLE VIII. OTHER COMMITMENTS **Section 8.1 Rights under a payment Election.** Under a payment Election, each right this Article gives the Recipient is held instead by the institution Exhibit A names for it, from that institution's written acceptance, and that institution is an intended third-party beneficiary as to that right. Each institution so named is an institution named in Exhibit C or another public or nonprofit institution that is not a Barred Person. A right for which no institution is named or accepts does not arise. **Sections 8.2 to 8.6.** [Reserved for optional terms from the CBA Clause Bank.] **Section 8.7 Other commitments.** Any other commitment of the Developer is stated in Exhibit A, item 6. Sections 2.4, 3.2 and 5.10(b) and (c) apply to it, and it is not credited against Section 5.1. [Drafting note, remove before the draft is made public: State each commitment in Exhibit A, item 6, as a duty: who acts, what is done, by when, and how delivery is shown. A goal or an effort is reported under Section 4.3 but cannot be enforced as a result.] ## ARTICLE IX. SECURITY **Section 9.1 Security.** (a) **Amount.** Before first delivery, as to Community Payments before the first Community Payment is due, and as to Section 7.4 at delivery under that Section, the Developer shall deliver an irrevocable standby letter of credit or surety bond meeting Section 9.2 and Exhibit D, naming the Custodian as beneficiary for the benefit of the Recipient, the holder Section 5.8 makes applicable and, as to the Instruction Share, the Instruction Institution and any former Instruction Institution and, as to Section 7.4, [STATE COLLEGE], in an amount equal to [__] years of Community Payments, with the Grant Administration Payments on them, for the share paid, plus [__] years of Administration Payments, for the share delivered in kind, plus, where the Parties choose Module Section 3.6, [__] years of Instruction Share payments, plus, from delivery under Section 7.4 until the last of its maintenance, replacement and parts periods ends, the amount Exhibit A, item 10, states for those obligations. For the share delivered in kind, the Developer also delivers the security Module Section 1.20 requires, which may be the same instrument if it meets both that Section and this Article. (b) **Readiness Payments.** From [__] days before the second Readiness Payment is due until the third is paid, the Developer maintains security on the same terms in the amount of the unpaid second and third Readiness Payments. (c) **Draws.** The Custodian draws on the certificate of the Recipient or, while there is none, the Community Party, that a default has continued past the cure period, except that a draw for an unpaid Community Payment is made on the Community Party's certificate, a draw for an unpaid Instruction Share only on the certificate of the Instruction Institution or former Instruction Institution to which it was due, and a draw for a failure under Section 7.4 on the certificate of [STATE COLLEGE] or the Community Party. Each draw is paid as follows: for an unpaid Community Payment, as Section 5.7(b) provides for that payment; for an unpaid Readiness Payment, into the Readiness Account; for an unpaid Administration Payment, into a separate administration account disbursed only to the Recipient for the uses of Section 5.17(c); for an unpaid Instruction Share, into the instruction account under Module Section 3.6(g); for a failure under Section 7.4, up to the amount Exhibit A, item 10, states, to [STATE COLLEGE], for use only on the equipment, maintenance, replacement and parts that Section requires; for an unpaid Grant Administration Payment, through the Custodian, to its payee; for an unpaid Monitoring Fund payment, into the Monitoring Fund; and for every other draw this Agreement does not direct elsewhere, into the account to which the unpaid amount was payable or, if there is none, the Restricted Account or, under a payment Election, as Section 5.7(b) provides for a Community Payment. Module paragraph T-22 does not apply to the administration account or the instruction account. (d) **Restoration.** No parent guaranty or self-bond satisfies this Section. The Developer shall restore the security within [__] days after any draw. (e) **[Step-down.** After [__] consecutive years without an uncured default or Chronic Deficiency, and with every delivery then due under Articles VI to VIII confirmed as Section 4.3(a) requires, the part of the security attributable to Community Payments steps down to [__] years of its value. No step-down applies on or after the date [__] years before the expected end date of operations stated in Exhibit A; on that date any step-down ends and the Developer restores the full amount within [__] days. A step-down also ends, and the full amount is restored within [__] days, after any notice of default, any amount due under this Agreement remaining unpaid [__] days after its due date, any Distress Event, any delivery due under Articles VI to VIII remaining unconfirmed under Section 4.3(a) [__] days after its due date, or any fall in the credit rating of the Developer or its parent, where either has one, below [__]. A step-down is available only while the security is a letter of credit whose terms permit the draw in the next sentence. If the full amount is not restored when this subsection requires, and the failure continues [__] days after notice, the Custodian may, on the certificate of the Community Party, draw the security in full and hold the proceeds under Section 9.3. A step-down that ends may apply again only after a further [__] consecutive years that meet the first sentence of this subsection.] **Section 9.2 Issuers, renewal and replacement.** (a) **Issuers.** An issuer of a letter of credit under this Agreement is a bank whose letter of credit operations are regulated and examined by a federal or state agency and that holds a long-term rating of [__] or better from [__]. A surety on a bond under this Agreement is listed as an acceptable surety on federal bonds in Department of the Treasury Circular 570, is authorized to transact surety business in Florida, and holds a financial strength rating of [__] or better from [__]. A bond that secures a payment of money is issued by an insurer licensed to transact financial guaranty insurance in Florida. (b) **Bonds.** A surety bond satisfies Section 9.1 only if it obliges the surety, within [__] days after the Custodian presents a certificate that this Agreement permits, to pay the amount stated in the certificate to the Custodian for the account this Agreement names for the draw, without proof of default beyond the certificate and without any right to elect to perform the secured obligation instead of paying. (c) **Renewal.** Each letter of credit under this Agreement states an expiration date not earlier than one year after its issue and provides that it is extended automatically for successive periods of not less than one year unless the issuer gives the Custodian and the Developer notice of non-extension, by a method the letter of credit states, at least [__] days before the expiration date then in effect. No letter of credit or bond under this Agreement states that it is perpetual. (d) **Cancellation.** A bond under this Agreement remains in force until the surety cancels it under this subsection. A surety may cancel a bond only by notice to the Custodian and the Developer, and no cancellation takes effect until [__] days after the Custodian receives the notice. (e) **Draw if not replaced.** The Custodian promptly sends a copy of each notice under subsection (c) or (d) to the Community Party and the Recipient. If the Developer has not delivered replacement security meeting Section 9.1 and this Section within [__] days after the Custodian receives the notice, and in any event [__] days before the security would expire or the cancellation would take effect, the Custodian shall draw the full undrawn amount on its own certificate stating that fact, without any certificate of the Recipient or the Community Party, and hold the proceeds under Section 9.3. [Drafting note, remove before the draft is made public: Set the notice periods of subsections (c) and (d) longer than the days before expiration or cancellation in this subsection; after a notice given at the shortest period, the difference is the most time the Developer has to deliver replacement security before the Custodian draws.] (f) **Issuer failure.** If an issuer or surety ceases to meet subsection (a), is placed on watch for downgrade below the rating that subsection (a) requires, becomes subject to a public formal enforcement action or capital directive of its regulator, becomes subject to a receivership, conservatorship or insolvency proceeding, or has its authority to issue letters of credit or to act as surety suspended or revoked, the Developer gives prompt notice of the event to the Custodian, the Community Party and the Recipient and delivers replacement security within [__] days after the event or, for a watch for downgrade, enforcement action or capital directive, within [__] days after it, failing which the Custodian shall draw the full undrawn amount on its own certificate stating that fact and hold the proceeds under Section 9.3. [Drafting note, remove before the draft is made public: The first period follows an event after which the issuer or surety no longer qualifies, such as a downgrade below the required rating, a receivership or the suspension of its authority; the second follows a watch for downgrade, enforcement action or capital directive, which may come while it still qualifies. A shorter second period moves the security sooner to an issuer or surety under no such warning; a longer one gives the Developer more time to arrange replacement and leaves the security longer with the issuer or surety under warning.] (g) **Scope.** This Section applies to all security under this Article, including security for Readiness Payments and Community Payments. Module Section 1.20 governs security for the share delivered in kind, and an instrument that secures both meets both. **Section 9.3 Cash security.** The Custodian holds the proceeds of a draw in full under Section 9.1(e) or 9.2, or under Module Section 1.12(e) as Section 10.2 applies it, in a separate cash security account. From the proceeds it first pays any amount then due, routed as Section 9.1(c) provides, and applies the rest, on the certificates on which this Article permits a draw, to amounts that later become due, routed the same way. It returns the unapplied balance to the Developer when replacement security meeting this Article is delivered or the full amount is restored, or when every obligation the security secures has been performed. ## ARTICLE X. MONITORING FUND; CUSTODIAN **Section 10.1 Monitoring Fund.** (a) **Payment.** Beginning on the Approvals Date, the Developer shall pay the Custodian, for the Monitoring Fund, the amount Exhibit B, item 5, states for each year, in advance, on the Approvals Date and on each anniversary of it. (b) **Uses and limits.** Module Section 1.21(b) to (e) govern the Monitoring Fund under every Election. In addition, the Custodian pays from it directly: the independent auditor and technical reviewers the Community Party engages for compliance review; the costs of preparing an objection by the Community Party to a valuation of the Community Payment, and any second-valuation cost Module paragraph V-9 places on it; the annual audits of the Community Benefit Account under Section 5.9(e) and of the Readiness Account; and the accountant engaged under Module Section 3.5(f) for a certificate, not more than [$__] for each certificate and not more than once in any [__] months for the same entity. The Monitoring Fund pays the accountant's engagement under Module Section 1.10(c) only within those limits, apart from a payment under the next sentence. Where the Monitoring Fund pays for an engagement, the Developer shall pay the Custodian for the Monitoring Fund, in addition to the amount Exhibit B, item 5, states and within [__] days after the Custodian's invoice attaching the accountant's invoice, the reasonable and documented cost of that engagement above the limit for each certificate, and the Custodian applies the payment only to pay the accountant directly. For an engagement that the limit of once in any [__] months excludes, the Developer pays the Custodian the whole reasonable and documented cost in the same way. The Developer's payment does not delay the engagement or any period under Module Section 1.10(c) or 3.5(a), and the Developer has no right to approve the accountant's engagement or scope or to receive its work papers. The Recipient's costs of complying with the Module, other than those Module Section 1.21(b) pays from the Monitoring Fund, are paid by the Administration Payment and, above it, under Module Section 1.5(f). (c) **Backstop audit.** Module Section 1.21(c) also applies where no independent certified public accountant has been engaged, by the date it states, for an audit this Section pays for. The engagement under it is for an audit, for that year, of every Account and of every payment due and made under this Agreement, and its report is also delivered to the Community Party. **Section 10.2 Custodian.** The Custodian holds every Account. Module Section 1.12 and paragraph T-25 apply to the Custodian and to every Account under every Election, with these additions: (a) the Custodian is also independent of every Fund Holder; (b) the account agreement is among the Custodian, the Developer and the Community Party, establishes each Account as a separate account, invests the reserve under Section 5.13 under a written investment policy the Community Party adopts and publishes, and makes each Fund Holder, as well as each Recipient, an intended third-party beneficiary from its acceptance; (c) the Custodian delivers its statements of each Account to the Community Party, and they are published under Section 4.3; (d) while there is no Recipient, the Community Party may replace the Custodian under Module Section 1.12(c), on notice that also goes to the Custodian, and chooses any successor on a resignation; (e) Module Section 1.12(e) applies to all security under Article IX; (f) the Developer's only rights in an Account are its rights to unapplied cash security under Section 9.3 and the rights Module paragraph T-25(f) states; and (g) Section 13.4 also governs the Custodian's fees. ## ARTICLE XI. ENFORCEMENT **Section 11.1 Notice and cure.** A Party claiming default, or [STATE COLLEGE] claiming a default under Section 7.4, gives written notice stating the default. The defaulting Party has [__] days to cure, extended while it diligently pursues a cure that cannot reasonably be completed in that time, but not beyond [__] days in total. A failure to pay money when due is cured only by payment of the amount, with any interest this Agreement provides, within [__] business days after it was due, and that period is not extended. Notice of a failure to pay is given where the law permits it, but is not a condition of a draw. **Section 11.2 Mediation.** Before suit, other than for emergency injunctive relief, the Parties shall mediate for not more than [__] days, and the Developer pays the mediator. **Section 11.3 Remedies.** (a) The Parties agree that the commitments of Articles V to VIII are unique and that money damages are inadequate. The Community Party, a Recipient, [STATE COLLEGE] as to Section 7.4 or, as to an Instruction Share due to it, the Instruction Institution or a former Instruction Institution may (i) obtain specific performance and injunctive relief; (ii) have the Custodian draw the security under Article IX; (iii) recover unpaid Community Payments, with interest at the Default Rate, paid as Section 5.7(b) provides; and (iv) recover unpaid Readiness Payments, Monitoring Fund payments, Administration Payments, Grant Administration Payments and Instruction Share payments, with interest at the Default Rate, paid into the Readiness Account, into the Monitoring Fund, to the Recipient, to the payee under Section 5.15, or to the Instruction Institution or former Instruction Institution to which it was due. For the share delivered in kind, the Community Party and the Recipient each also have the remedies of Module Section 1.24(b), and either may recover the amounts Module Section 1.18(e) states, paid into the Restricted Account. (b) Each Party bears its own attorney's fees and costs. (c) No political subdivision under s. 218.077(1)(f), Florida Statutes, including a Recipient, Host Institution or institution acting under Section 3.11(c) that is one, holds or enforces Section 7.3 or any term at Section 7.7(a) or (b). **Section 11.4 Third-party beneficiaries.** Each Qualified Operator, Host Institution and Instruction Institution and, as to an amount due to it, each former Instruction Institution is an intended third-party beneficiary from its written acceptance; each Access Institution is one as to payments due to it under Module Section 1.5(g)(iv) and disbursements to it under Section 6.2(b)(v); a Fund Holder is one as to Community Payments due to the Community Fund; an institution under Section 8.1 is one as that Section provides; [STATE COLLEGE] is one as to Section 7.4 from its acceptance under that Section; and each institution or Fund Holder to which a balance passes under Section 6.4(c) or Module Section 3.6(g) is one as to that balance, from its acceptance. Except as this Agreement expressly states, no person other than the Parties and their permitted successors and assigns has any right or remedy under it, and no resident, user, employee, applicant, grantee, contractor or other person is a third-party beneficiary of it. **Section 11.5 Force majeure.** (a) **Defined.** "Force majeure" means an event beyond the reasonable control of the Party claiming it, not caused by its fault, negligence or breach of this Agreement, that prevents its performance despite its reasonable efforts, and is limited to: a hurricane, tropical storm, tornado, flood, wildfire, earthquake or sinkhole; a fire or explosion; war, terrorism, sabotage, riot or civil disorder; an epidemic or an order of a public health authority; a failure of the regional electric transmission system or of a public water or wastewater system; a strike or other labor disturbance that is general in the region or in an industry and is not directed only at that Party or its contractors; and an order of a court or of a governmental authority. Force majeure does not include (i) economic or market conditions, an increase in cost or the unavailability of financing; (ii) a delay or shortage in the supply of equipment, materials or labor, or a delay of a contractor or supplier, unless itself caused by an event this subsection names; (iii) a delay in utility service, interconnection, or a permit or Approval; (iv) the financial condition of the Party claiming it; or (v) an event that the obligation claimed to be excused exists to meet. (b) **Notice; mitigation.** The Party claiming force majeure shall give the other Party written notice within [__] days after it learns of the event, stating the event, the obligations affected and the expected period of prevention; shall use reasonable efforts to mitigate the event's effect and to resume performance; and shall give written notice when performance resumes. An event noticed late excuses performance only from the date of notice. (c) **Effect.** Force majeure extends the time for performing a non-monetary obligation by the period performance is prevented and a restoration period after the event of not more than [__] days, and does not otherwise excuse performance. It never excuses maintaining the security under Article IX or paying any amount due, and no Community Payment abates by reason of it. For Exhibit B, Installed IT Capacity that force majeure or casualty destroys or disables is counted at its level before the event until it is restored, the Developer gives notice of permanent cessation under Section 13.2, or Abandonment occurs. Module Section 1.15(c) governs force majeure for in-kind delivery. (d) **Business interruption cover.** The Developer maintains business interruption coverage that treats the Community Payments, with the Grant Administration Payments on them, as a continuing expense for not less than [twelve (12)] [twenty-four (24)] months. **Section 11.6 Damages.** Neither Party is liable to the other for consequential or punitive damages. This Section does not limit any payment this Agreement or the Module requires, any amount under Module Section 1.18(e), or any draw on the security. Each payment this Agreement requires is performance owed, not damages or a penalty, and acceleration under Section 5.7(d) changes only its timing. ## ARTICLE XII. BINDING EFFECT ON THE PROJECT SITE **Section 12.1 Recorded memorandum.** Within [__] days after signing, the Developer and the fee owner shall record a memorandum of this Agreement in the official records of [COUNTY] County, stating that this Agreement binds the Project Site and every person who develops or operates a data center on it under the Approvals or any Replacement Approval, whether as successor owner, ground lessee or operator. **Section 12.2 Successors on the Project Site.** A termination by the Developer under Section 13.1(d), or an end under Section 13.3(b), does not release the Project Site if the Developer, an affiliate or a successor applies for an approval for a data center on it within the period the definition of Replacement Approval states. This Agreement then binds the Project Site, and every person who develops or operates a data center on it under that approval, as if it had not ended. **Section 12.3 Transfer.** The Developer shall not transfer the Project, or a controlling interest in the Developer, unless the transferee assumes this Agreement in writing delivered to the Community Party and the Recipient. The Developer remains liable until the assumption is delivered. **Section 12.4 Lenders.** A lender holding a recorded mortgage on the Project Site receives a copy of each notice of default and may cure the default. Failure to copy a lender affects only that lender's right to cure. The rights under Sections 8.3 and 8.6 are subordinate to the rights of every mortgage lender and equipment financier of the Project. Module Section 1.26(d) states the priority of lenders for rights under the Module. **Section 12.5 Estoppel statements.** Within [__] days after the Developer's written request, made not more than [__] times in any year, the Community Party and each Recipient deliver to the Developer, and to any lender or purchaser the request names, a signed statement of whether this Agreement is in effect, each amendment, each default of which it has given or received notice that remains uncured, and each amount it claims is due and unpaid. Within [__] days after a written request by the Community Party or a Recipient, made not more than [__] times in any year, the Developer delivers to it, and to any successor, transferee or lender the request names, a signed statement on the same terms. A statement binds only the person making it, only as to the facts it states as of its date, and waives no right not stated in it. **Section 12.6 Covenants running with the Project Site.** The obligations of Articles V to IX, and the Developer's other obligations under this Agreement as they concern those obligations, including those of Sections 2.5, 4.1(b) to (d), 4.3, 4.5, 10.1, 10.2, 11.5(d) and 12.7, and of Section 13.5 where this Agreement includes it, as they apply to capacity installed at the Project Site, are covenants running with the Project Site and bind each successor in title and ground lessee while it holds its interest. [Drafting note, remove before the draft is made public: The Open Legal Questions give the current reading of whether this Section binds a successor in title or ground lessee that has not assumed this Agreement; the assumptions under Sections 12.3 and 12.7 bind transferees, ground lessees and operators either way.] **Section 12.7 Ground lessees and operators.** Where any part of the Project Site is or becomes subject to a ground lease, or a person other than the Developer operates a data center on it, the Developer shall cause the ground lessee or operator to sign and deliver to the Community Party and the Recipient, before it occupies, develops or operates its premises, an acknowledgment of the memorandum recorded under Section 12.1 and a written assumption of the obligations of this Agreement as they apply to its premises. An acknowledgment or assumption is not a waiver of any right the ground lessee or operator holds independently, and this Agreement does not purport to waive any right of a person who is not a party to it. **Section 12.8 Preserving the record.** To prevent extinguishment of this Agreement and its covenants under Chapter 712, Florida Statutes, the Developer shall prepare, execute and record, in the form and manner ss. 712.05 and 712.06, Florida Statutes, prescribe, a notice preserving the memorandum recorded under Section 12.1, not later than the [twenty-fifth (25th)] anniversary of its recording and again not later than [twenty-five (25)] years after the most recently recorded notice, for so long as any obligation of this Agreement continues, at its own cost, and deliver a recorded copy to the Community Party and the Recipient. The Community Party or the Recipient may join in any notice and, if the Developer has not recorded one when due, may record it, and the Developer shall reimburse the reasonable cost of doing so. A failure of the Developer to record a notice when due is a default. This Section runs with the land. ## ARTICLE XIII. TERM AND TERMINATION **Section 13.1 Operative dates.** (a) These bind on signing: Articles I to IV, XII and XIV; Sections 5.4, 7.6(b), 10.2, 11.1 to 11.4 and 11.6; this Article; and the Module provisions Section 5.4(b) names. Section 11.3, including specific performance, applies from signing to every obligation that binds on signing. (b) These bind on the Approvals Date: Article VI; Section 5.10(b) and (c) as they apply to the Readiness Account; Section 10.1; Module Section 3.6(b) and (d) and the last sentence of Module Section 3.6(c), as Section 6.2(b)(iv) applies them; Sections 7.1, 7.3 and 7.5 as Section 7.6 applies them; and Articles IX and XI as they apply to Readiness Payments, Monitoring Fund payments and those Sections. (c) The rest of Articles V to XI binds when the Approvals Date has occurred and vertical construction of the first Compute Hall has commenced, by the Developer or any other person acting under the Approvals or any Replacement Approval. (d) If the Approvals Date has not occurred by [Approvals outside date], either Party may terminate this Agreement by notice, except that the Developer may not do so after vertical construction of a Compute Hall has commenced. (e) Module Part 3, Module Sections 1.10 and 1.11 and Module paragraph T-23 bind from the date Section 5.4(a) attaches them. The other Module provisions that Section 5.4(a) attaches bind when subsection (c) provides, except as Section 5.4(b) or subsection (a) or (b) provides. **Section 13.2 Term.** This Agreement continues until Abandonment or the Developer's notice of permanent cessation of data center operations on the Project Site under the Approvals or any Replacement Approval [or: for [__] years], and after that until the rights that an Abandonment or a Distress Event triggers under Article VIII and Module Section 1.13 are exercised or lapse. **Section 13.3 Termination.** This Agreement ends (a) under Section 3.9(a) or 13.1(d); (b) [__] years after the Approvals lapse, expire, or are surrendered or revoked before vertical construction of the first Compute Hall commences, if by then the Project does not proceed under, and no one has applied for, a Replacement Approval; or (c) by written agreement of the Parties and every Recipient then holding rights, published under Section 4.1. **Section 13.4 Wind-down.** Security, reporting and every Account, including the reserve under Section 5.13, continue after the term until every accrued obligation is performed, the transition under Module Section 1.14 is complete and, for each Account, its balance is spent for its purposes. After the term ends under Section 13.2 and every amount accrued before then, other than the Custodian's fees, has been paid, or once the Developer has failed for [__] days to pay the Custodian's fees after an Abandonment, a Distress Event or the Developer's dissolution: (a) the Custodian's customary fees for holding an Account, and the cost of any audit this Agreement requires of that Account, may be paid from it; (b) the documented cost of administering grants from the reserve under Section 5.13, or from any other balance of the Community Benefit Account, may be paid from it to the Community Party or its successor under Section 3.11, not more than [__] percent of the amount disbursed from it in a year; (c) an Account whose balance is below [$__] is no longer audited each year and receives a final accounting when its balance is spent, and the Custodian may, on [__] days' notice to the Parties and the Recipient, pay such a balance, for the same purposes, to the Recipient, to the Instruction Institution for the instruction account as Module Section 3.6(g) provides, or to the Fund Holder or the grantees the Community Party certifies for the Community Benefit Account, and close the Account; and (d) where the term has ended and every amount accrued before then, other than the Custodian's fees, has been paid, the Developer's duty to pay the Custodian's fees ends, except for fees accrued before then. **Section 13.5 [Optional] Legacy Reserve.** [Under a capacity or mixed Election, the Developer pays the Custodian each year, for a Legacy Reserve account held separately from the Restricted Account and invested, an annual amount that, invested at [__] percent a year and taking into account amounts already paid, accumulates by the expected end date of operations stated in Exhibit A to [__] years of the annual cost of serving the critical public workloads stated in the first transition plan under Module Section 1.14(c) (the successor host's published price or, where the successor host is the Recipient's own systems, the Recipient's published cost), adjusted each year by CPI-U, recomputed each year and paid until that date, with [$__] a year until that plan is published. Module Sections 1.19(b) and 3.4(b)(iv) and paragraph T-22 do not reach the account until the term ends or Abandonment occurs; after that it is applied to the uses of Module Section 1.19(b) through the successor host named in the transition plan.] ## ARTICLE XIV. GENERAL PROVISIONS **Section 14.1 Relationship.** The Parties are independent. Nothing in this Agreement creates a partnership, joint venture or agency. **Section 14.2 Law and venue.** Florida law governs this Agreement. Venue lies in the circuit court for [COUNTY] County. **Section 14.3 Amendment.** This Agreement is amended only in writing signed by the Developer, the Community Party and every Recipient then holding rights and, for an amendment that affects an Instruction Share due or to become due to an Instruction Institution or a former Instruction Institution, that institution. An amendment takes effect only when published under Section 4.1. **Section 14.4 Severability.** If any provision is held invalid, the rest continues. If a court holds that any provision makes the County a party or makes this Agreement a condition of any approval, that provision is severed and the rest continues. **Section 14.5 Conflicts of interest.** Each director and officer of the Community Party who has any financial relationship with the Developer or an affiliate discloses it in writing to the Community Party's board and takes no part in any decision of the Community Party under this Agreement, and the disclosure is published under Section 4.1. A director or officer with a financial interest in an applicant for a grant, or with a relationship this Section describes, discloses it and takes no part in the decision on that grant. **Section 14.6 Nothing reverts.** Nothing paid into or held in an Account reverts to the Developer, except the unapplied balance of cash security under Section 9.3 and the balances Module Section 1.26(e) states. **Section 14.7 No waiver.** No failure or delay in enforcing any provision of this Agreement waives it, and no waiver is effective unless it is in writing, signed by the person giving it and published under Section 4.1. **Section 14.8 Notices; counterparts; authority.** A notice under this Agreement is in writing and is given by hand delivery, by nationally recognized overnight courier, or by electronic mail followed by a copy by courier, to the addresses in Exhibit A, or in a person's acceptance, as updated by notice. A notice is given when delivered or, if delivery is refused, when refused; a notice by electronic mail is given when sent, if the courier copy is sent not later than the next business day. A copy of every notice of default goes to the Custodian, each Recipient, any Fund Holder and each lender entitled to notice under Section 12.4. This Agreement may be signed in counterparts and by electronic signature. Each signatory represents that it is authorized to sign, and board resolutions are attached. **Section 14.9 Entire agreement.** This Agreement, with its Exhibits, the Module provisions that form part of it, the agreements made under it and any agreement disclosed in Exhibit A or published as Section 4.2 requires, is the entire agreement of the Parties concerning the Project and supersedes every prior understanding between them. **SIGNATURES** [DEVELOPER ENTITY] By: ____________ Name: ____________ Title: ____________ Date: ____________ [COMMUNITY PARTY] By: ____________ Name: ____________ Title: ____________ Date: ____________ [FEE OWNER], joining under Article XII: By: ____________ Name: ____________ Title: ____________ Date: ____________ --- ## EXHIBIT A. PROJECT DESCRIPTION AND ELECTIONS 1. **Project.** The legal description of the Project Site; the Phases; the Approved Capacity; the Installed IT Capacity expected at each Phase, whether any of it is measured by contracted or provisioned load under Module Section 1.2, and the accelerated-computing share to use where none is reported; each Compute Hall; the Operations Commencement Date; the cooling architecture and water sources; on-site generation; and the setbacks and sound limits as applied for. 2. **Approvals.** Each Approval, and each Public Approver other than the County. 2A. **Other permits.** Each other state, regional and federal permit the Project requires, such as an environmental resource permit and a consumptive use permit, and the body that issues or acts on it. Each such permit is an Approval for the definitions of "Public Approver" and "Barred Person," for Sections 2.4 [and 4.4], and for no other purpose. 2B. **Possible Replacement Approvals.** For each Approval of the County, each state approval that could, after a change in law, be required in its place. An approval listed in this item is not an Approval, and is a Replacement Approval only when the definition of that term applies to it. 3. **Custodian and notices.** The Custodian; the Appointing Authority; and the addresses for notices under Section 14.8. 4. **Election.** The Election under Section 5.2 and, for a mixed Election, the percentage delivered in kind; any Permitted Purposes added under Section 5.10(a)(iii); and, for a capacity or mixed Election, how the Developer will deliver the Allocation (Section 5.2(b)(B)) and the Parties' record under Section 5.2(c), with the date of the letter of intent. [Any counties added to the Service Area under Module Section 1.5(a).] 5. **Community Payment.** The form under Section 5.8, if the Community Party chooses one, and any Fund Holder and successor Fund Holder. 6. **Other commitments.** Any other commitment under Section 8.7. Under a payment Election where Article VIII is used, the institution that holds each right (Section 8.1); and the institutions, offtakers, schools, facilities and terms that any Section of Article VIII calls for. 7. **Dates and choices.** [The expected end date of operations, where Section 9.1(e) or 13.5 is used.] [Any delay the Parties choose for valuation publications under Module paragraph V-11.] 8. **Disclosures.** Any disclosure under Section 4.2(a). 9. **Incentives.** Each economic development incentive from the State or a local government that the Developer or an affiliate has received or applied for for the Project, with its amount and the awarding body. 10. **Training equipment.** The training equipment and curriculum materials Section 7.4 requires, the trades and technologies each serves, and the amount of security for its maintenance, replacement and parts under Section 9.1(a). ## EXHIBIT B. PAYMENT SCHEDULE 1. **Community Payment (Section 5.6).** For each year: [[$__] for each megawatt of Installed IT Capacity, multiplied under a mixed Election by the percentage paid, the rate adjusted each year by CPI-U and never below the prior year's rate] [OR: the Replacement Cost under Module Schedule 3 of the Allocation, or of the share paid under a mixed Election, that Section 5.1 would require for that year] [OR: the greater of (A) that Replacement Cost and (B) [$__] for each megawatt of Installed IT Capacity, so multiplied and adjusted]. 2. **Readiness Payments (Section 6.1).** First: [$__]. Second: [$__]. Third: [$__]. [Each amount is adjusted by CPI-U from the date of this Agreement.] 3. **Grant Administration Payment (Section 5.15).** For the Community Party's cost, not more than [__] percent of each year's Community Payment. For the Fund Holder's fees, not more than [__] percent of that year's Community Payment. For preparing the Grant Policy, not more than [$__], paid with the first Grant Administration Payment. 4. **Administration Payment (Section 5.17).** For each year: [budgeted cost not exceeding [__] percent of the Replacement Cost of that share under Module Schedule 3] [OR: budgeted cost not exceeding [$__] a year for the whole Allocation, scaled to the share delivered in kind, adjusted each year by CPI-U and never below the prior year's amount] [OR: [$__] for each megawatt of that share, adjusted each year by CPI-U and never below the prior year's rate]. "Budgeted cost" means the Recipient's budgeted cost under Section 5.17(c). 5. **Monitoring Fund (Section 10.1).** [$__] each year, adjusted each year by CPI-U, and not more than [$__] in any year. ## EXHIBIT C. HOST INSTITUTIONS 1. **Institutions.** First: [name]. Second: [name]. Both are named under every Election. Under a payment Election they are the successors under Section 3.11, receive notice and any balance under Section 6.4, and may become the Recipient after a change of Election under Section 5.3. Where the Parties choose Module Section 3.6 and the Election includes a share paid as the Community Payment, each may accept that Section as its subsection (h) provides. 2. **Standards.** Module Section 1.11(a) to (c) applies to each institution under every Election. 3. **Letter of intent.** Before signing, the Parties obtain from the first institution a letter of intent stating the authority under which its board may accept the roles this Agreement gives it and, for a capacity or mixed Election, the users and uses it expects the Allocation to serve under Module Section 1.5 in its first [__] years of delivery. 4. **Acceptance.** The acceptance is an agreement among the institution, the Developer and the Community Party, with each later Recipient as intended beneficiary of the duties of Module Sections 1.6(d) and 1.9(e). It meets Module Section 1.11(c) and (d), and also states that the institution (a) serves [for the term] [for renewable terms of [__] years]; (b) will publish its budget and statement of costs under Section 5.17(c); (c) expects the Allocation to serve the users and uses under Module Section 1.5 that it states for the years item 3 states; and (d) where the Parties choose Module Section 3.6, accepts or declines that Section and, if it accepts, meets Module Section 3.6(b). 5. **Affidavit.** Before an institution that is a governmental entity under s. 287.138(1)(d), Florida Statutes, signs its acceptance, the Developer delivers to it the affidavit s. 287.138(4), Florida Statutes, requires, and states its ownership for the purposes of any other Florida law that restricts contracts or partnerships of public institutions with entities of foreign countries of concern. ## EXHIBIT D. FORM OF SECURITY Each letter of credit or bond under Article IX states at least these terms: 1. It is an irrevocable standby letter of credit from an issuer meeting Section 9.2(a), or a surety bond that meets Section 9.2(b) from a surety meeting Section 9.2(a). 2. It names the Custodian as beneficiary. 3. It may be drawn in one or more partial or full draws on presentation of a demand and a certificate, in the form it attaches, signed by the Custodian and stating a ground for the draw under Section 5.7(d), 9.1 or 9.2 or Module Section 1.12(e) or, where it also secures the share delivered in kind, under Module Section 1.18(f) or 1.20, and on no other document. 4. Presentation may be made [at an office in Florida] [or by the electronic means it states]. 5. It carries the renewal, non-extension and cancellation terms of Section 9.2(c) and (d). 6. If the place for presentation is closed on the last day for presentation, that day is extended to the [__] business day after it reopens. 7. A letter of credit is subject to [the International Standby Practices (ISP98)] [the Uniform Customs and Practice for Documentary Credits (UCP 600)] and, to the extent not inconsistent, Chapter 675, Florida Statutes. 8. It is [transferable to a successor Custodian] [amendable on request to name a successor Custodian]. 9. Where the step-down in Section 9.1(e) is used, it permits the draw in full that subsection requires. ## EXHIBIT E. FORM OF SUPPORT LETTER > [Date] > > To [the body holding the hearing], [COUNTY] County, for the record of [hearing and application number] > > [COMMUNITY PARTY] supports the application of [DEVELOPER] for [Approval], as described in the application. [One to three sentences giving the organization's own reasons, in its own words.] > > This letter states the position of [COMMUNITY PARTY] as an organization, adopted by its board on [date]. It does not speak for our individual members, who remain free to express their own views. > > In the interest of full disclosure: [COMMUNITY PARTY] is a party to an agreement with [DEVELOPER] under which it holds rights to community benefits from the project[, including an annual payment held by an independent custodian that it directs to community grants under a published policy,] [, including an annual payment by the developer to a fund of [COMMUNITY FOUNDATION] whose grants the foundation decides,] [, including an annual payment by the developer that will be held as a fund of [COMMUNITY FOUNDATION], whose grants the foundation decides, if it accepts in time, and otherwise by an independent custodian for grants we direct under a published policy,] [and the developer pays our documented cost of administering [those grants] [the computing allocation],] [and [INSTITUTION], a public [college] [university] [technical college], if it hosts the computing allocation and accepts, holds an interest under the agreement in an annual payment from the developer for teaching that uses the allocation, which [INSTITUTION] alone administers and in which we have no interest or role,] [and [INSTITUTION], a public [college] [university] [technical college], if it accepts, holds an interest under the agreement in an annual payment from the developer for teaching that uses computing bought with grants of the annual payment, which [INSTITUTION] alone administers and in which we have no interest or role,] and the developer funds independent monitoring of that agreement. > > [Signature, title] --- *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.*