*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** **MODULE M2: EMERGENCY POWER FOR COUNTY FACILITIES** Optional module for a host community development agreement or a county ground lease · Model form for Florida counties *Model form. Remove this heading block, and every drafting note, before the County first makes the draft public.* **What this is.** Module M2 is optional. A County that elects it for a host community development agreement or a County ground lease (the “Instrument”) inserts Sections M2.0 to M2.2 where the Instrument reserves them (agreement Section 4.4; lease Section 6.4) and attaches the forms of Exhibits “H” and “I” in the agreement’s Exhibits and Forms. **What it does.** The Developer provides emergency power for the critical loads of each Designated Emergency Facility the Impact Findings identify, ready and tested by the Readiness Date each year (Section M2.1(a), (b) and (f)). It answers only the Facility’s measured impacts on emergency response, not the reliability or cost of electric service, and none is due where the Impact Findings support none. It takes the first available of three forms (utility-owned equipment; Developer-owned equipment leased to the County at a nominal rent; or equipment conveyed to the County with funding for its upkeep), each later form starting when the one before it lapses or fails, unless the County elects a payment instead (Section M2.1(c) to (e)). No form sells electricity, and the County bears no capital, operating, maintenance, fuel or replacement cost (Sections M2.1(g) and M2.2). The Developer awards and bonds its work at a County facility as for public construction, and carries the air permit duties for its equipment (Section M2.1(i) and (j)). **Works with.** The Instrument supplies the terms Section M2.0 maps, and makes each reference to the Module of no effect where it is not elected (Section 1.2(c) of each). The County’s impact fee ordinance, where it charges for emergency power at County facilities, is the Module’s fee half; Section M2.1(a)(3) and the Instrument’s impact fee provisions then govern each facility the fee covers. The Drafter’s Notes list each blank and choice. **Before use.** Before electing the Module, ask the Interconnecting Utility in writing whether an approved tariff lets a third party pay for utility-owned backup at a County facility. Where none does, form (1) needs a new tariff or contract approval; if the Interconnecting Utility has not agreed in writing within the period Section M2.1(c)(1) sets, form (2) begins the next day, so a short period starts form (2) sooner and a longer one leaves more time for that approval. The Impact Findings state the facilities, critical loads and period, the Board sets each load and the period on the record within the range they support, and the County Emergency Management Director designates each facility (Section M2.1(a)(2) and (f)). The County elects any payment in place of equipment before the first building permit for a Compute Hall (Section M2.1(e)). **Known gaps.** No county has adopted this model, and no licensed attorney has reviewed it. No study has yet measured the emergency response impacts the capability answers, including any shelter demand a Facility creates. Some provisions rest on law that is not settled: whether form (2) makes the Developer a public utility (Section M2.1(c)(2)); fee credits for capability in service when a fee takes effect (Section M2.1(a)(3)); and the status of payments into the Mitigation Account under impact fee law (Section M2.1(c)(3) and (e)). The Open Legal Questions give the current reading of each. **Terms in brief.** Designated Emergency Facility: a facility of a kind Section M2.1(f) lists that the Impact Findings identify and support and the County Emergency Management Director designates. Impact Findings: the findings on the Facility’s measured impacts that the Instrument attaches. Readiness Date: the yearly date Exhibit “S,” Section S-1.2(a), sets. **Section M2.0 Terms.** In Sections M2.0 to M2.2, the “Instrument” is [this Agreement] [this Lease], “Developer” means the person the Instrument binds ([the Developer] [the Tenant]), and each other capitalized term has the meaning the Instrument gives it. Each term and reference in the table below is to the term or provision of the Instrument that the table names. [Drafting note, remove before the draft is made public: Keep only the bracketed words and the column of the table that fit the Instrument into which these Sections are inserted, and strike the others.] | Term or reference | Host community development agreement | County ground lease | |---|---|---| | Readiness Date | Exhibit “S,” Section S-1.2(a) | Exhibit “S,” Section S-1.2(a) | | Property; Facility | the Project Site; the Project | the Premises; the Project | | Impact Findings | Exhibit “B-1” (Section 4.1) | Exhibit “B,” Part 2 | | Mitigation Account | Section 4.6 | Exhibit “C” (Development Agreement Section 4.6) | | impact fee provisions | Section 4.7 | Exhibit “C” (Development Agreement Section 4.7(b) to (e)) | | annual compliance report | Section 6.1 | Exhibit “C” (Development Agreement Section 6.1) | | indemnity | Section 7.7 | Section 9.2 | | capacity increase | Section 3.1 | Section 6.5 | | cooperative or municipal utility | Section 5.6 | Exhibit “C” (Development Agreement Section 5.6) | | life of the use | Section 9.4 | Section 6.3 | | Exhibit “H” (letter of credit) and Exhibit “I” (equipment lease) | Exhibits “H” and “I” | Exhibits “H” and “I” | **Section M2.1 Emergency Power for County Facilities.** (a) **Capability.** (1) The Developer shall provide emergency power capability sufficient to carry the critical loads of each Designated Emergency Facility identified in the Impact Findings for not less than [__] consecutive days, ready for service by the Readiness Date of each year beginning with the first Readiness Date after the first Phase Operations Date, in the amount the Impact Findings attribute to the Phases then in operation and support as mitigation of the Facility’s measured impacts on emergency response, and not on the reliability or cost of electric service, which the Interconnecting Utility’s tariff under s. 366.043, Florida Statutes, or, for a cooperative or municipal utility, its rates and service terms, address. At a public shelter, that amount answers only the shelter demand the Facility creates, measured as the persons the County’s emergency management plan would shelter after evacuation of the area the fire official assigns to a battery, fuel or hazardous materials incident at the Facility, the Impact Findings stating that area and its basis; shelter demand from a hurricane or other area-wide event is not demand the Facility creates. (2) The Impact Findings state the facilities, their critical loads, and the period, and the Board sets each critical load and the period on the record within the range the Impact Findings support. Where the Impact Findings support no amount, this Section imposes no obligation. (3) Where the County has adopted an impact fee covering emergency power at a facility identified under this Section, the Instrument’s impact fee provisions govern that facility: the capability is delivered as equipment conveyed to the County and credited against the fee, or the fee is paid, and this Section governs only maintenance and fuel for it. A facility the fee does not cover, including an emergency operations facility, a law enforcement facility, and any public shelter the fee does not reach, remains under this Section. Capability in service under form (1) or (2) when the fee takes effect continues under this Section until the Developer conveys equipment to the County, or pays the fee, under the impact fee provisions. (4) On any amendment increasing the Approved Capacity, the capability is restated from supplemented Impact Findings under the Instrument’s capacity increase provision. (b) **Readiness test.** (1) Not later than [__] days before each Readiness Date by which subsection (a) requires the capability to be ready, the capability at each Designated Emergency Facility, in whichever form of subsection (c) applies, shall be run at not less than the full critical load set under subsection (a), by load bank or on the facility’s own load, for not less than [__] hours. (2) The Developer arranges and pays for the test, directly, except that under form (3) the County arranges it and pays for it from the Mitigation Account, and under form (1) the Interconnecting Utility conducts it under its tariff or contract, the Developer paying its charge. Where the approved tariff or contract does not provide for the test, the Developer shall ask the Interconnecting Utility in writing to conduct it, report the request and the answer to the County Emergency Management Director, and deliver instead the utility’s most recent written test record for the equipment. (3) The person who arranges the test shall give the Director not less than [__] days’ written notice of it. Each test is witnessed by the Director or the Fire Chief, or by a person either of them designates in writing. If no witness attends on the noticed date, the test proceeds and the result so states. (4) The person who conducts the test, and the witness if one attends, sign a written result stating the date, the load carried and for how long, the fuel or stored energy on hand, and each defect found. The result is delivered to the Director before the Readiness Date and included in the next annual compliance report. (5) The person who maintains the equipment under subsection (c) shall correct each defect and repeat the test before the Readiness Date. Until the equipment passes, the Developer may meet subsection (a) with temporary capability that passes the same test. (6) Under forms (1) and (3), the Developer performs this subsection by paying the charges or making the payment into the Mitigation Account that form requires, by giving each notice and delivering each record this subsection requires of it, and, under form (1), by enforcing its contract with the Interconnecting Utility. Under those forms, a failed test of equipment the Developer neither owns nor maintains is not, by itself, a failure of the Developer to perform this Section. Under form (1), equipment that has not passed by the Readiness Date is a failure of that form under subsection (c)(4). (c) **Forms, in fixed order.** The capability is provided in the first of the following forms that is available, each taking effect on the stated date, and each later form in every case on the lapse or failure of the form before it under paragraph (4), without any further finding of the County: (1) **Utility-owned.** Backup generation or storage owned, installed, operated, and maintained by the Interconnecting Utility at each Designated Emergency Facility under a tariff or contract approved by the Public Service Commission or, for a cooperative or municipal utility, by its governing body, with the Developer paying every charge directly to the Interconnecting Utility for the life of the use, under a contract in which the County joins only to grant site access and has no payment liability. The Developer’s payments are secured by an irrevocable standby letter of credit in the form of Exhibit “H,” naming the Interconnecting Utility as beneficiary, in an amount not less than [__] months of the charges under the emergency power contract. The contract requires the Interconnecting Utility to give the Developer and the County notice of nonpayment where the law permits it; notice is not a condition of a draw. This form applies if the Interconnecting Utility agrees in writing within [__] days after the Effective Date. (2) **Developer-owned and leased.** Otherwise, beginning on the day after that period or, where form (1) has applied, on the date it lapses or fails under paragraph (4), equipment owned by the Developer, installed at each Designated Emergency Facility, connected behind the meter serving the facility, operated only to serve that facility’s own load, and leased to the County at a fixed nominal rent payable from non-ad valorem revenues for the life of the use, by successive leases in the form of Exhibit “I,” each within the term s. 125.031, Florida Statutes, allows. At a public shelter the County does not own, the equipment is installed only under a written agreement with the shelter’s owner, joined by the County, that keeps the equipment for the shelter’s emergency use, gives the access Exhibit “I” requires, states who holds title to the equipment and, from 1 January 2027, comports with s. 163.3177(6)(h), Florida Statutes. The Developer maintains, repairs, and replaces the equipment at its own cost, and arranges and pays directly for its testing, by load bank or by an independent contractor. For fuel-dependent equipment, the Developer delivers fuel to the facility’s tank at its own cost, title passing on delivery, and the on-site tank capacity is sufficient for the full period stated in the Impact Findings, so that no delivery is needed during an event. Within [__] days after this form applies, the Developer petitions the Public Service Commission, at its cost, for a declaratory statement under s. 120.565, Florida Statutes, that its lease, maintenance and fuel delivery under this form do not make it a public utility. This form applies meanwhile; a statement that they do is a determination under Section M2.2(b). (3) **Conveyed with maintenance funding.** If the Public Service Commission or a court determines, or the County Attorney advises in writing, that the Developer’s operation or maintenance under form (2) would be the provision of utility service, or if form (2) otherwise lapses or fails under paragraph (4), the Developer shall convey the equipment to the County and shall pay into the Mitigation Account the amount an independent professional engineer determines is sufficient to maintain, refuel, and replace the equipment, and to perform the duties of subsection (j), for the life of the use, from which the County pays an independent contractor and fuel supplier. That payment is the funding for maintenance and replacement that the County’s impact fee ordinance, where adopted, requires before the County accepts equipment. At a public shelter the County does not own, conveyance is made under a written agreement with the shelter’s owner that keeps the equipment for the shelter’s emergency use, states who holds title to the equipment and, from 1 January 2027, comports with s. 163.3177(6)(h), Florida Statutes. The County holds equipment conveyed under this form, and equipment acquired from that payment to replace it, for the purposes of this Section for its useful life, as the engineer states it. If the County disposes of the equipment before the end of its useful life, other than by replacement with equipment of equal or greater capability, the net proceeds are paid into the Mitigation Account and applied only to emergency power at the Designated Emergency Facilities. Except by replacement with equipment of equal or greater capability, the County disposes of such equipment before the end of its useful life only by sale under s. 274.06, Florida Statutes, by transfer to another governmental unit that assumes the obligations of this form, or, for equipment without commercial value, as s. 274.06 permits. A disposition by the County does not revive, enlarge, or extend any obligation of the Developer as to the equipment disposed of or the capability it provided. (4) **Lapse or failure.** At a Designated Emergency Facility, form (1) lapses or fails on the date the emergency power contract, or the tariff or approval under which it is made, ends, is terminated, or is not renewed, or the Interconnecting Utility ceases, other than for repair or replacement, to provide the equipment, and on any Readiness Date by which the equipment has not passed the test of subsection (b) or, where subsection (b)(2) allows a test record in its place, that record does not show a passing test. Form (2) lapses or fails there on the date of a determination or advice described in form (3) or of a determination under Section M2.2(b), on a date subsection (d) states, or on the date its lease otherwise ends without a successor lease. From the date a form lapses or fails until the equipment of the next form is in place and passes the test of subsection (b), which shall be not later than [__] days after that date, the Developer provides temporary capability at that facility as subsection (h) provides, counting its period from that date, except while the equipment of the earlier form stays in place and carries the critical loads. No lapse or failure is a default of the Developer, except one caused by its own failure to perform. (d) **Successor leases.** If the Board does not approve a successor lease under form (2) before the current lease ends, the Developer is not in default, and the ending lease continues from month to month on its terms, but not beyond the date on which the lease would exceed the period s. 125.031, Florida Statutes, allows, on which date form (3) applies, until the Board approves a successor lease or elects, by written notice to the Developer, that form (3) apply, in which case the Developer conveys the equipment and makes the payment form (3) requires. The capability required by subsection (a) continues throughout. (e) **Payment in place of equipment.** Where the Impact Findings support it and the County so elects in writing before issuance of the first building permit for a Compute Hall, the Developer shall instead pay the cost of the capability under subsection (a), as an independent professional engineer determines it, into the Mitigation Account, restricted to emergency power at the Designated Emergency Facilities. (f) **Designated Emergency Facilities.** A “Designated Emergency Facility” is an emergency shelter, a potable water or wastewater treatment facility, an emergency operations facility, a fire station, an emergency medical services station, an emergency communications (911) center, or a law enforcement facility that the Impact Findings identify and support and the County Emergency Management Director designates in writing, and that the County owns or leases or, for a public shelter, that the County operates or designates. At every Designated Emergency Facility, no critical load serves a camera, video feed, license plate reader, link to a real-time crime center, or other means of surveillance of members of the public, and the equipment is not connected to any such load. At a law enforcement facility, the critical loads are also only those that serve emergency services, and the equipment is connected only to them. “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. The Director decides when and how the capability is used, which is an existing County function and creates no new County duty. (g) **No County cost.** Under every form, the County bears no capital, operating, maintenance, fuel, or replacement cost, gives no indemnity, and pledges no credit. The Developer shall indemnify the County under the Instrument’s indemnity for the installation, operation, and maintenance of Developer-owned equipment. Nothing in this Module waives the County’s sovereign immunity or the limits of s. 768.28, Florida Statutes. The County accepts equipment conveyed to it under this Module once: (1) it has passed the test of subsection (b) within [__] days before the conveyance; (2) it was installed as subsection (i) requires; (3) it is free of liens and security interests; (4) under form (3), the Developer has made in full the payment that form requires; (5) the Developer has delivered the engineer’s determination and each filing subsection (j) requires, with the records an owner or operator must keep; (6) for equipment that stores fuel, it has passed a release and tightness check of its tank and piping, made at the Developer’s cost, and an inspection the Developer pays for shows no release of fuel or other regulated substance at the equipment’s site that has not been cleaned up; and (7) where the impact fee provisions govern it, it meets the acceptance standards of its credit agreement. Nothing in this Module obligates the County to accept equipment that does not, and the County never accepts fuel-storing equipment that has not passed that check. (h) **Destruction.** If equipment that provides the capability at a Designated Emergency Facility is destroyed or disabled, the Developer shall, within [__] days after the event, provide at that facility temporary capability sufficient to carry the critical loads set under subsection (a), tested at the full critical load as subsection (b)(1) provides as soon as it is connected, and shall keep it in place until the equipment is repaired or replaced and passes the test of subsection (b). Under forms (1) and (3), where the contract with the Interconnecting Utility or the funds paid under form (3) do not provide that temporary capability within that period, the Developer arranges it and pays its cost directly to the person providing it. The County bears no part of that cost. (i) **Work at a Designated Emergency Facility.** For the installation at a Designated Emergency Facility of equipment under form (2) or (3), and of each pad, enclosure, tank, switch, connection, or other improvement it needs there, other than temporary capability under subsection (h), the Developer shall: (1) award the work of each project whose estimated cost exceeds the applicable amount in s. 255.20(1), Florida Statutes, as adjusted under s. 255.20(2), without dividing a project to come under that amount, to an appropriately licensed contractor, by sealed bids, to the lowest qualified and responsive bidder, or by a publicly advertised request for proposals or request for qualifications, in each case under solicitation and award procedures the County approves in writing as following those its ordinance sets for its own construction contracts, except for work that s. 255.20(1)(c)1. or 5., Florida Statutes, would except if the County did it; (2) require the contractor to execute and record the payment and performance bond s. 255.05, Florida Statutes, requires, naming the County and, at a public shelter the County does not own, the shelter’s owner as additional obligees, and to deliver a certified copy of the recorded bond to the County before work begins; (3) execute and record any bond s. 255.05 requires of the Developer itself; and (4) do the work to plans the County approves in writing, and discharge, or transfer to bond, any lien filed for it within thirty (30) days after it is filed. (j) **Air permits and emission rules.** Before fuel-burning equipment is installed at a Designated Emergency Facility under form (2) or (3), or for conveyance under subsection (a)(3), the Developer shall deliver to the County an independent professional engineer’s written determination whether the equipment, counted with every other emissions unit at that facility, is exempt from air permitting under Rule 62-210.300(3), Florida Administrative Code, or needs an air construction or operation permit, a revision of a permit for that facility, or registration under an air general permit under Rule 62-210.310. The Developer prepares at its cost each application, registration, and notice the Department of Environmental Protection requires, and pays each fee; each is made in the name of the person the Department requires, and the County signs as owner or operator of the facility only where the Department requires it. Where counting the equipment with the County’s own emissions units ends an exemption for those units or requires a permit, permit revision, or registration for them, the Developer prepares and pays for each filing that change requires and, for the life of the use, pays the County’s added cost of the duties it brings, as the engineer determines it, and under form (3) the engineer’s amount includes that cost. Under form (2) the Developer, under form (3) the County from the payment that form requires, and for equipment conveyed under subsection (a)(3) the person who maintains it under this Section, performs each duty of an owner or operator under the permit, registration, or exemption and under 40 C.F.R. Part 60, Subpart IIII or JJJJ, and Part 63, Subpart ZZZZ, as each applies to the equipment, including records, hour meters, maintenance, testing, and reports. Under form (1), the Developer’s contract with the Interconnecting Utility provides that the utility, as owner and operator of its equipment, holds and performs them, and the Developer pays any charge for doing so. Under forms (2) and (3), fuel-burning equipment is run only in an emergency and for maintenance and readiness testing, including the test of subsection (b), within the hours those rules and any permit allow an emergency engine, and never for peak shaving or demand response, to supply power to a grid, or to supply power to any premises other than the facility. On a conveyance under form (3) or subsection (a)(3), the Developer prepares and files at its cost each notice of transfer, or new application or registration, the Department requires. The County bears no cost under this subsection. **Section M2.2 No Sale or Off-Site Delivery of Electricity.** (a) **No sale or delivery.** No form under Section M2.1 involves a sale of electricity or the delivery of electricity from the Property to any other premises, and nothing in the Instrument requires or permits such a delivery. Equipment under form (2) serves only the load of the facility at which it is installed, behind the meter serving that facility. (b) **Next form on an adverse determination.** If the Public Service Commission or a court determines that a form would confer public utility status on the Developer or impair the territorial rights of any utility, the next form in Section M2.1(c) applies, and no such determination is a default of the Developer. (c) **Cooperative and municipal utilities.** Where the Interconnecting Utility is a rural electric cooperative organized under Chapter 425, Florida Statutes, or a municipal electric utility, the Instrument’s cooperative or municipal utility provision governs the allocation of cost-causation risk and is not displaced by this Module. (d) **Constitutional savings.** The County does not by this Module become a joint owner with, or stockholder of, the Developer, or pledge its credit, in violation of Article VII, Section 10 of the Florida Constitution. --- ## AUTHOR *Prepared by Timothy Smith · Citizen-prepared working draft · Not legal advice.* *Citizen-prepared. Not legal advice. The author is not licensed to practice law and is not affiliated with, and does not write on behalf of, any university, law school, clinic, law firm, or governmental body. No attorney-client relationship is created by this document or by any use of it. Any jurisdiction considering adoption should obtain review by licensed counsel admitted in that jurisdiction.* *The release notes (CHANGELOG) published with each release identify its contents and the current version of each instrument.*