The URL can be used to link to this page

Home My WebLink AboutContract 52160 w CITY SECRETARY" CONTRACT N0._ 5 a <(o Q ,,�ceboo, teo STATE OF TEXAS § COUNTY OF TARRANT § TAX ABATEMENT AGREEMENT This TAX ABATEMENT AGREEMENT ("Agreement") is entered into by and between the CITY OF FORT WORTH, TEXAS (the "City"), a home rule municipality organized under the laws of the State of Texas, and WINNER LLC, a Delaware limited liability company("Company"). RECITALS A. On January 29, 2019, the City Council adopted Resolution No. 5040-01- 2019, stating that the City elects to be eligible to participate in tax abatement and setting forth guidelines and criteria governing tax abatement agreements entered into between the City and various parties,entitled"General Tax Abatement Policy"(the"Policy"),which is incorporated herein by reference and hereby made a part of this Agreement for all purposes. B. The Policy contains appropriate guidelines and criteria governing tax abatement agreements to be entered into by the City as contemplated by Chapter 312 of the Texas Tax Code,as amended(the"Code"). C. On March 26, 2019 the City Council adopted Ordinance No. 23620-03- 2019 (the "Ordinance") establishing Tax Abatement Reinvestment Zone No. 99, City of Fort Worth,Texas(the"Zone"). D. Company owns or will own approximately 33.81 acres of Land in the City, as more particularly described in Exhibit"A". The Land is located entirely within the Zone. Contingent upon receipt of the tax abatement herein, Company intends to expend or cause to be expended at least Fifty Million Dollars ($50,000,000.00) in capital investment (as that term is defined in the Policy) for the construction and operation of an approximately 100,000 square foot data center on the Land. E. On or about August 20, 2018 Company submitted an application for tax abatement to the City concerning Company's plans for the development (the "Application"), which Application is attached hereto as Exhibit"B"and hereby made a part of this Agreement for all purposes. F. The contemplated use of the Land and the terms of this Agreement are consistent with encouraging development of the Zone and generating economic development and increased employment opportunities in the City, in accordance with the Page 1 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) b��, OFFICIAL RECORD �� CITY SECRETARY FT. WORTH,TX Q,cebo, tegk purposes for creation of the Zone,and are in compliance with the Policy,the Ordinance and other applicable laws,ordinances,rules and regulations. G. The provisions of this Agreement, and the proposed use of the Land and nature and minimum capital investment required for the Project Improvements, as defined in Section 2, satisfy the eligibility criteria for commercial/industrial tax abatement pursuant to Section 6 of the Policy(a data center"Mega Project"). )EL Written notice that the City intends to enter into this Agreement, along with a copy of this Agreement, has been furnished in the manner prescribed by the Code to the presiding officers of the governing bodies of each of the taxing units that have jurisdiction over the Land. I. The Abatement granted under this Agreement is in conjunction with a broader economic development incentive program governed by that certain Economic Development Program Agreement between the City and Company on file in the City Secretary's Office as City Secretary Contract No. 46728, as amended by City Secretary Contract No. 46728-A1 (the "EDPA"). The Land, as defined herein, also falls within the definition of the "Land" under the EDPA, and the Project Improvements constructed pursuant to this Agreement will also be counted as "Project Improvements" under the EDPA. For clarification,this Agreement is not in lieu of and does not replace the EDPA. This Agreement and the EDPA are provided in conjunction with one another and the EDPA retrains in full force and effect. NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties agree as follows: AGREEMENT 1. INCORPORATION OF RECITALS. The City Council has found, and the City and Company hereby agree, that the recitals set forth above are true and correct and form the basis upon which the parties have entered into this Agreement. 2, DEFINITIONS. In addition to terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them as follows: Abatement means (i) the abatement of twenty percent (201/6) of the City's incremental ad valorem real property taxes on the Land and all improvements located on the Land, based on the increase in values of the Land and all improvements located on Page 2 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) m(,eboo w � 490. the Land for the 2022 tax year over their values for the 2019 tax year(which is the year in which the parties entered into this Agreement); and (ii) the abatement of twenty percent (2094o) of the City's ad valorem taxes on New Taxable Tangible Personal Property, based on the taxable assessed value of the New Taxable Tangible Personal Property; provided, however, that if Company fails to meet the M/WBE Construction Commitment, as outlined in Section 4.2, the percentage of Abatement applied hereunder will be reduced from twenty percent (20%) to ten percent (10%) in accordance with Section 6 of this Agreement. Affiliate means all entities, incorporated or otherwise, under common control with, controlled by or controlling Company. For purposes of this definition, "control" means fifty percent(50%)or more of the ownership determined by either value or vote. Application has the meaning ascribed to it in Recital E. Certificate of Completion has the meaning ascribed to it in Section 5, Certified M/WBE Company means a minority or woman-owned business that (i) has received certification as either a minority business enterprise (MBE), a woman business enterprise (WBE), or a disadvantaged business enterprise (DBE) by the North Central Texas Regional Certification Agency (NCTRCA), D/FW Minority Supplier Development Council (MSDC), or Women's Business Council—Southwest(WBC), and that has a principal office located within Tarrant, Dallas, Denton, Johnson, Parker, or Wise Counties, Texas. For purposes of this definition, a "principal office" means an office facility that is fully operational and has sufficient equipment, supplies, and personnel to provide the product or service of the business in question to clients in the City without significant reliance on the resources of another entity or affiliate or of an auxiliary facility of the business which is located outside of Tarrant, Dallas, Denton, Johnson,Parker,and Wise Counties,Texas. Code has the meaning ascribed to it in Recital B. Completion Date means the date as of which a temporary or permanent certificate of occupancy for at least 100,000 square feet of space within the Project Improvements has been issued. Completion Deadline means December 31,2021, subject to extension on account of force majeure,as provided in Section 22. Comprehensive Plan means the City's 2019 Comprehensive Plan, adopted pursuant to Ordinance No. 23589-03-2019, adopted by the City Council on March 5, 2019. Consent to Collateral Assignment Agreement has the meaning ascribed to it in Section 11.2. Page 3 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) Legal Construction Costs means the aggregate of the following costs expended or caused to be expended by Company for the Project Improvements: actual site development and construction costs, general contractor and subcontractor fees, and the costs of supplies,materials and construction labor;engineering fees; and architectural and design fees;zoning fees;building permit fees; sewer basin fees;water and sewer tap fees; water, wastewater and thoroughfare impact fees; other costs and fees customarily incidental to construction of a commercial project; and insurance and taxes directly related to the construction of the Project Improvements. Construction Costs specifically excludes any costs associated with the acquisition or lease of the Land. Director means the director of the City's Economic Development Department. EDPA has the meaning ascribed to it in Recital I. Effective Date has the meaning ascribed to it in Section 3. Employment Goal has the meaning ascribed to it in Section 4.4. Event of Default means a breach of this Agreement by a party, either by act or omission, as more specifically set forth in Section 7 of this Agreement. Full-time Job means a job on (i) the Land or (ii) a combination of the Land and the land as such term is defined in the EDPA provided by Company or an Affiliate to one individual for (i) forty (40) hours per week or (ii) less than forty (40) hours per week if such other measurement is used to define full-time employment by Company or an Affiliate in accordance with its then-current personnel policies and regulations. For example, if Company or an Affiliate has a company-wide policy that considers full-time employment to be thirty-five (35) hours per week, a job on the Land provided by Company or an Affiliate for at least thirty-five (35) hours per week shall be considered a full-time job for purposes of this Agreement. Land means the real property described on Exhibit"A"which is attached hereto and incorporated herein by reference for all purposes under this Agreement. M/WBE Construction Commitment has the meaning ascribed to it in Section 4.2. Mortgagee means the holder of a mortgage on the Land. New Taxable Tangible Personal Property means any personal property that (i) is subject to ad valorem taxation and is rendered for that purpose to Tarrant Appraisal District or another appraisal district having jurisdiction over the Land; (ii) is located on the Land; (iii) is owned or leased by Company or an Affiliate; and(iv)was not located in the City prior to the Effective Date of this Agreement. Ordinance has the meaning ascribed to it in Recital C. Page 4 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) ,ebo, w ;0 teo Personal Property Commitment has the meaning ascribed to it in Section 4.3. Personal Property Report has the meaning ascribed to it in Section 4.5.2. Policy has the meaning ascribed to it in Recital A. Proiect Completion Report has the meaning ascribed to it in Section 4.5.1, Project Improvements means improvements constructed on the Land after the Effective Date of this Agreement, which must consist of, at a minimum, a data center facility containing at least 100,000 square feet. Real Property Improvement Commitment has the meaning ascribed to it in Section 4.1. Salary means the cash payment or remuneration made to a person holding a Full- time Job, including paid time off, commissions, and non-discretionary bonuses. A Salary does not include any benefits, such as health insurance or retirement contributions, reimbursements for employee expenses, or any discretionary bonuses. Server means any computer data processing, storage, or other transmission equipment and any equipment at any time substituted for and performing the same or similar functions. "Server" does not include the software installed on any computer or data processing equipment. Term has the meaning ascribed to it in Section 3. Zone has the meaning ascribed to it in Recital C. 3. TERM. This Agreement will take effect on the date of execution of this Agreement by both the City and Company (the "Effective Date") and, unless terminated earlier in accordance with its terms and conditions, will expire on December 31, 2022 (the "Term"). Company may terminate the Agreement at any time in its sole discretion without recourse; provided that, if Company terminates the Agreement it will no longer be eligible to receive the Abatement. Page 5 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) w,4cebo, � 4egk 4. COMPANY'S OBLIGATIONS AND COMMITMENTS. 4.1. Real Property Improvements and Uses. The Completion Date must occur on or before the Completion Deadline, and Company must expend or cause the expenditure by the Completion Deadline of at least Fifty Million Dollars ($50,000,000.00) in Construction Costs for the Project Improvements; provided, however, that if the Personal Property Commitment outlined in Section 4.3 is exceeded and if Company submits a written request to the City on or before submission of the Personal Property Report, the Director may reduce this Fifty Million Dollar ($50,000,000.00) minimum cost requirement by the same percentage by which the Personal Property Commitment was exceeded, but such reduction may not exceed twenty- five percent (25%), regardless of the percentage by which the Personal Property Commitment was exceeded, and with the understanding that any such reduction must be specified in writing and reflected in the Certificate of Completion issued pursuant to Section 5 (the "Real Property Improvement Commitment"). The Project Improvements are intended to be used as a "data center" as that term is defined in the City's Zoning Ordinance. After the Completion Deadline, the Project Improvements must be used for a lawful use related to the support and/or operation of Company's commercial, business, retail, or industrial uses and may not be used in conjunction with any use(s) that the City Council has determined cause or would cause materially adverse effects on the stability of the immediate neighborhood. 4.2. Construction Spendine Commitment for Certified M/WBE Companies. As a condition to receipt of the full twenty-percent (20%) Abatement (as further set forth in the definition of such term),by the Completion Date, Company must have expended or caused to be expended with Certified M/WBE Companies at least fifteen percent (15%) of all Construction Costs for the Project Improvements, regardless of the total amount of such Construction Costs (the 'IM/WBE Construction Commitment"), 4.3. Installation of Personal Property on Land. By the Completion Deadline, Company intends to install or otherwise locate on the Land (including within the Project Improvements), or cause to be installed or otherwise located on the Land, New Taxable Tangible Personal Property having an aggregate actual cost of at least One Hundred Million Dollars ($100,000,000.00); provided, however, that if the Real Property Improvement Commitment is exceeded and if Company submits a written request to the City on or before submission of the Project Completion Report, the Director may reduce this One Hundred Million Dollar ($100,000,000.00) minimum cost requirement Page 6 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) m�eboo¢ w 4egi�l by the same percentage in which the Real Property Improvement Commitment was exceeded, but such reduction may not exceed twenty-five percent (25%), regardless of the percentage by which the Real Property Improvement Commitment was exceeded,with the understanding that any such reduction must be specified in writing and reflected in the Certificate of Completion issued pursuant to Section 5 (the"Personal Property Commitment"). 4.4. Employment Goal. During 2022, Company will use commercially reasonable efforts to provide or cause to be provided at least four(4) Full-time Jobs on (i) the Land or (ii) a combination of the Land and the land as such term is defined in the EDPA that is owned by Company or an Affiliate, with, collectively, average annual Salaries of such four (4) Full-time Jobs of Forty-three Thousand Nine Hundred Ninety-two Dollars ($43,992.00) (the "Employment Goal'). Notwithstanding the foregoing, in order for a Full-time Job on a combination of the Land and the land as such term is defined in the EDPA to be counted towards the Employment Goal, the Full-time Job shall be in addition to Full-time Job(s) counted for purposes of satisfying the "employment goal" as such term is defined in the EDPA. 4.5. Reports and Filings. 4.5.1. Notice of Completion and Final Construction Report. Provided that the Completion Date occurred on or before the Completion Deadline, on or before February 28 of the year following the year in which the Completion Deadline occurs, Company must provide a written report to the City, substantially in the form specified by the EDPA, that specifically outlines the total Construction Costs expended for the Project Improvements, as well as the total Construction Costs expended for the Project Improvements with Certified M/WBE Companies,together with supporting invoices and other documents reasonably necessary to demonstrate that such amounts were actually paid (the "Project Completion Report"). As provided in Section 7.7 below, a failure to meet the M/WBE Construction Commitment does not constitute a default under this Agreement. 4.5.2. Personal Property Report. On or before February 28 of the year following the year in which the Completion Deadline occurred, Company must provide a written report to the City, substantially in the form specified by the EDPA, that specifically outlines the New Taxable Tangible Personal Property that has been installed or otherwise located on the Land, the legal owner of such New Taxable Tangible Personal Property, and the amounts actually paid Page 7 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) eboo �egs� for such New Taxable Tangible Personal Property, together with supporting invoices and other documents reasonably necessary to demonstrate that such amounts were actually paid (the "Personal Property Report"). 4.5.3. Employment Report. On or before February 28 of the first full calendar year following the year in which the Completion Deadline occurred, Company must provide the City with a report, substantially in the form specified by the EDPA, that sets forth the total number of individuals who held Full-time Jobs on (i)the Land or(ii)a combination of the Land and the land as such term is defined in the EDPA (if such jobs are to be counted towards the Employment Goal under this Agreement) as of December 31 (or such other date requested by Company and reasonably acceptable to the City) of the previous year, plus their Salaries, together with reasonable supporting documentation. If the Employment Goal was not met, Company must include an explanation as to why Company believes the Employment Goal was not met and the efforts that were utilized to meet the Employment Goal. As provided in Section 7.8 below,a failure to meet the Employment Goal does not constitute a default under this Agreement. 4.6. Audits. Provided at least ten (10) calendar days' notice is given and to the extent necessary to verify compliance with the terms of this Agreement or to otherwise administer the terms of this Agreement, but no more than once per calendar year, the City will have the right throughout the Term to audit the financial and business records of Company that relate solely to the Project Improvements,New Taxable Tangible Personal Property, and Salaries of individuals holding Full-time Jobs that are included in the employment report provided pursuant to Section 4.5.3, and that are necessary to evaluate compliance with this Agreement or with the commitments and goals set forth in this Agreement, including, but not limited to documents and invoices related to the construction of the Project Improvements and the purchase of New Taxable Tangible Personal Property. If documentation of any Construction Cost expenditures, costs of New Taxable Tangible Personal Property, or Salaries of individuals holding Full-time Jobs that are included in the employment report provided pursuant to Section 4.5.3 is contained in financial and business records of Company that also contain unrelated matters, and the City cannot verify such expenditures, costs, or Salaries in any other documents of Company, such expenditures, costs, and Salaries will not be counted for purposes of this Agreement unless Company allows the City to audit those records; provided, however, that if Company allows the City to audit those records, Company may redact any unrelated matters that are non-essential to the audit of any Construction Cost expenditures, costs of New Taxable Tangible Personal Property,and Salaries. If Company seeks to have Construction Cost expenditures Page 8 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) ceboo u.,� V! lQg�, made by another party; costs of New Taxable Tangible Personal Property by an Affiliate; or Salaries of individuals holding Full-time Jobs that are provided by an Affiliate counted for purposes of this Agreement, Company must make or cause to be made the financial and business records of that party that relate to the expenditures in question available to the City for audit (provided the party providing such records may redact any unrelated matters that are non-essential to the audit). Company must make all such records described in this Section 4.6 available to the City at Company's offices in the City or at another location in the City acceptable to both parties and shall otherwise cooperate fully or cause full cooperation with the City during any audit. Further, Company may require that all individuals reviewing the financial and business records of Company, an Affiliate or another party must first sign a reasonable confidentiality agreement under which they agree to not discuss or publicize information contained in those records except as necessary for them to complete an audit of such records in accordance with this Agreement. 4.7. Inspections of Land and Proiect Improvements. At any time during Company's normal business hours throughout the Term and following at least ten (10) calendar days' prior written notice to Company, the City will have the right to inspect and evaluate the Land and the Project Improvements, and Company will provide reasonable access to the same, in order for the City to monitor or verify compliance with the terms and conditions of this Agreement. Company will reasonably cooperate with the City during any such inspection and evaluation. Notwithstanding the foregoing, Company shall have the right to require that any representative of the City be escorted by a representative or security personnel of Company during any such inspection and evaluation, and Company shall be able to exercise its sole, reasonable discretion in scheduling a requested inspection so as not to interfere with ongoing business operations on the Land. 4.8. Use of Land. From and after the construction of the Project Improvements, the Land must be used at all times during the remainder of the Term of this Agreement for purposes connected with the business operations of Company, as described in the Recitals, and further described in Section 4.1, and otherwise in a manner that is consistent with the general purposes of encouraging development or redevelopment of the Zone. 5. CERTIFICATE OF COMPLETION. Within ninety .(90) calendar days following receipt by the City of the Project Completion Report and the Personal Property Report submitted by Company in accordance with Sections 4.5.1 and 4.5.2, and assessment by the City of the information Page 9 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) w',eboo leo contained therein, if the City is able to verify that the Completion Date occurred on or before the Completion Deadline, that at least Fifty Million Dollars ($50,000,000.00) in Construction Costs (or such lower amount if authorized by the Director in writing in accordance with Section 4.1) were expended for the Project Improvements by the Completion Deadline, and that New Taxable Tangible Personal Property having an actual cost of at least One Hundred Million Dollars($100,000,000.00) (or such lower amount if authorized by the Director in writing in accordance with Section 4.3) was installed or otherwise located on the Land (including within the Project Improvements) by the Completion Deadline, the Director will issue Company a certificate confirming that both the Real Property Improvement Commitment and the Personal Property Commitment have been met (the "Certificate of Completion'). The Certificate of Completion shall also indicate whether the M/WBE Construction Commitment, as outlined in Section 4.2, was met. The issuance of the Certificate of Completion by City shall not be unreasonably conditioned,withheld or delayed. 6. TAX ABATEMENT. Subject to the terms and conditions of this Agreement,provided that both the Real Property Improvement Commitment, as outlined in Section 4.1, and the Personal Property Commitment, as outlined in Section 4.3, were met, as confirmed in the Certificate of Completion issued by the City in accordance with Section 5, subject to all extensions of time allowed by this Agreement, Company will be entitled to receive the Abatement for the 2022 tax year; provided, however, that if the M/WBE Construction Commitment, as outlined in Section 4.2, was not met, the percentage of Abatement applied for the 2022 tax year will be reduced from twenty percent (20%) to ten percent (10%). Section 15.5 of the Policy, which provides for a cap on the maximum amount of any given tax abatement,does not apply to this Agreement. 7. DEFAULT TERMINATION AND FAILURE BY COMPANY TO MEET VARIOUS DEADLINES AND COMMITMENTS. 7.1. Failure to Meet Real Property Improvement Commitment or Personal Property Commitment. If the Completion Date does not occur on or before the Completion Deadline, or if the Real Property Improvement Commitment, as set forth in Section 4.1, or the Personal Property Commitment, as set forth in Section 4.3, are not met by the Completion Deadline, the City shall have the right, as its sole remedy, to terminate this Agreement by providing written notice to Company without further obligation to Company hereunder. Page 10 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) a 41cebo, Itegk 7.2. Failure to Pay City Taxes. An event of default shall occur under this Agreement if any City taxes owed on the Land or on business personal property located on the Land by Company or an Affiliate, or arising on account of Company's or an Affiliate's operations on the Land,become delinquent and Company or the Affiliate does not either pay such taxes or properly follow the legal procedures for protest and/or contest of any such taxes. In this event, the City shall notify Company in writing and Company shall have thirty (30) calendar days to cure such default. If the default has not been fully cured by such time, the City shall have the right to terminate this Agreement immediately by providing written notice to Company and shall have all other rights and remedies that may be available to it under the law or in equity necessary to collect such delinquent taxes. Either payment of such taxes or initiation of and ongoing engagement in legal proceedings for protest and/or contest of such taxes shall constitute a full cure pursuant to this Section 7.2. 7.3. Violations of City Code,State or Federal Law. An event of default shall occur under this Agreement if any written citation is issued to Company or an Affiliate due to the occurrence of a material violation of a material provision of the City Code on the Land or on or within any improvements thereon (including,without limitation, any material violation of the City's Building or Fire Codes and any other material City Code violations related to the environmental condition of the Land; the environmental condition other land or waters which is attributable to operations on the Land; or to matters concerning the public health,safety or welfare) and such citation is not paid or the recipient of such citation does not properly follow the legal procedures for protest and/or contest of any such citation. An event of default shall occur under this Agreement if the City is notified by a governmental agency or unit with appropriate jurisdiction that Company or an Affiliate, or any successor in interest thereto; or an occupant or tenant with access to any portion of the Land owned or operated by Company or an Affiliate pursuant to the express or implied permission of Company or an Affiliate if action was not taken within thirty (30) days of actual knowledge by Company or an Affiliate to resolve, mitigate or protest and/or contest such violation under proper legal procedures; or the City is in material violation of any material state or federal law, rule or regulation on account of any portion of the Land owned or operated by Company or an Affiliate, or on account of improvements owned or operated by Company or an Affiliate or any operations therein on the Land(including, without limitation, any material violations related to the environmental condition of any portion of the Land owned or operated by Company or an Affiliate;the environmental condition of other land or waters which is attributable to operations on any portions of the Land owned or operated by Company or an Affiliate;or to matters concerning the public health,safety or welfare). Upon the occurrence of any default described by this Section 7.3, the City shall notify Company in writing and Company shall Page 11 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) tegak have (i) thirty (30) calendar days to cure such default or (ii) if Company has diligently pursued cure of the default but such default is not reasonably curable within thirty (30) calendar days, then such amount of time as is reasonably necessary to cure such default. If the default has not been fully cured by such time, the City shall have the right to terminate this Agreement immediately by providing written notice to Company and shall have all other rights and remedies that may be available under the law or in equity. 7.4. Foreclosure. Subject to any rights of a lender that is a party to a Consent to Collateral Assignment Agreement executed pursuant to and in accordance with Section 11, upon the occurrence of any of the following events, the City will have the right to terminate this Agreement immediately upon provision of written notice to Company: (i)the completion of an action to foreclose or otherwise enforce a lien, mortgage or deed of trust on Company's or an Affiliate's interest in the Land or improvements located thereon; (ii) the involuntary conveyance to a third party of Company's or an Affiliate's interest in the Land or improvements located thereon; (iii) execution by Company or an Affiliate of any assignment of Company's or an Affiliate's interest in the Land or improvements located thereon or a deed in lieu of foreclosure to Company's or an Affiliate's interest in the Land or improvements located thereon; or (iv) the appointment of a trustee or receiver for Company's or an Affiliate's interest in the Land or improvements located thereon. 7.5. Failure to Submit Reports. If Company fails to submit any report required by and in accordance with Section 4.5, the City shall provide written notice to Company. If Company fails to provide any such report within thirty (30) calendar days following receipt of such written notice, the City will provide a second written notice to Company. If Company fails to provide any such report within five(5) business days following receipt of this second written notice, the City will have the right to terminate this Agreement immediately by providing written notice to Company. 7.6. Knowine Emulovment of Undocumented Workers. Company acknowledges that the City is required to comply with Chapter 2264 of the Texas Government Code, enacted by House Bill 1196 (80th Texas Legislature), which relates to restrictions on the use of certain public subsidies. Company hereby certifies that Company, and any branches, divisions, or departments of Company, does not and will not knowingly employ an undocumented worker, as that term is defined by Section 2264.00](4) of the Texas Government Code. In the event that Company, or any branch, division,or department of Company, is convicted of a violation under 8 U.S.C. Section 1324a(l) (relating to federal criminal penalties and injunctions for a pattern or practice of employing unauthorized aliens), subject to any appellate rights that Page 12 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) .eboo ¢ tegk may lawfully be available to and exercised by Company, Company shall repay, within one hundred twenty (120) calendar days following receipt of written demand from the City, the aggregate amount of the value of the Abatement received by Company hereunder, if any,plus Simple Interest at a rate of four percent(4916)per annum. For the purposes of this Section 7.6, "Simple Interest" is defined as a rate of interest applied only to an original value, in this case the aggregate amount of Program Grants paid pursuant to this Agreement. This rate of interest can be applied each year, but will only apply to the amount of the Abatement received hereunder and is not applied to interest calculated. For example, if the value of the Abatement received by Company hereunder is $10,000 and it is required to be paid back with four percent (41/6) interest five years later, the total amount would be $10,000 + [5 x ($10,000 x 0.04)], which is $12,000. This Section 7.6 does not apply to violations of any subsidiary or other Affiliate of Company,any franchisees of Company, or any person or entity with whom Company contracts. Notwithstanding anything to the contrary herein, this Section 7.6 shall survive the expiration or termination of this Agreement. 7.7. Failure to Meet M/WBE Construction Commitment. If the MA"E Construction Commitment, as outlined in Section 4.2, was not met, such event will not constitute a default hereunder, but, rather, will only cause the percentage of Abatement granted pursuant to this Agreement to be reduced from twenty percent(20%)to ten percent(10%). 7.8. Failure to Meet Employment Goal. If Company fails to meet the Employment Goal, such event will not constitute a default hereunder and will not cause the amount of the Abatement to which Company is entitled hereunder to be reduced. 7.9. General Breach. Unless and to the extent stated elsewhere in this Agreement, a party will be in default under this Agreement if that party breaches any term or condition of this Agreement and such breach remains uncured after thirty (30) calendar days following receipt of written notice from the other party referencing this Agreement(or, if the party in breach has diligently and continuously attempted to cure following receipt of such written notice but reasonably requires more than thirty (30) calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both parties mutually and in good faith). If a party is in default (after the aforementioned notice and cure periods), the non-breaching party will have the right to terminate this Agreement immediately by providing written notice to the other party as well as all other available rights and remedies under the law. Page 13 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) ,eboo� leg�, 7.10. City's Sole Remedy in the Event of Breach. Except as otherwise provided in this Agreement,the City's sole remedy in the event of Company's uncured breach of any condition or obligation under this Agreement will be the City's right to terminate this Agreement in accordance with its provisions. In addition, except as required by Section 7.6 and Section 7.11 of this Agreement, Company will not be required to repay any Abatement or property tax revenue lost as a result of this Agreement. 7.11. Damaizes for Failure to Obtain Certificate of Completion. Company acknowledges and agrees that termination of this Agreement due to a default by Company will (i) harm the City's economic development and redevelopment efforts on the Land and in the vicinity of the Land; (ii) require unplanned and expensive additional administrative oversight and involvement by the City; and (iii) be detrimental to the City's general economic development programs, both in the eyes of the general public and by other business entities and corporate relocation professionals,and Company agrees that the exact amounts of actual damages sustained by the City therefrom will be difficult or impossible to ascertain. Therefore, upon termination of this Agreement for a failure to obtain the Certificate of Completion,as authorized by Section 312.205(a)(4)of the Code, Company must pay the City all taxes that were abated in accordance with this Agreement and which otherwise would have been paid to the City in the absence of this Agreement. The City and Company agree that this amount is a reasonable approximation of actual damages that the City will incur as a result of an uncured failure by Company to obtain a the Certificate of Completion and that this Section 7.11 is intended to provide the City with compensation for actual damages and is not a penalty. This amount may be recovered by the City through adjustments made to Company's ad valorem property tax appraisal by the appraisal district that has jurisdiction over the Land and over any taxable tangible personal property located thereon. Otherwise, this amount shall be due, owing and paid to the City within sixty (60) days following the effective date of termination of this Agreement by the City. In the event that all or any portion of this amount is not paid to the City within sixty (60) days following the effective date of termination of this Agreement, Company shall also be liable for all penalties and interest on any outstanding amount at the statutory rate for delinquent taxes, as determined by the Code at the time of the payment of such penalties and interest (currently, Section 33.01 of the Code). 8. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Company shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Company shall have the exclusive right to control all details and day-to-day operations relative to the Land and any improvements Page 14 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) w'ac,eb% Legal thereon and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Company acknowledges that the doctrine of respondeat superior will not apply as between the City and Company, its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Company further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the City and Company. 9. INDEMNIFICATION AND RELEASE. 9.1. Indemnification. COMPANY, AT NO COST TO THE CITY, AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS,ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING,BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO COMPANY'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TIMT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) COMPANY'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF COMPANY, ITS OFFICERS, AGENTS, ASSOCLI TES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CIT19 OR SUBCONTRACTORS, RELATED TO THE LAND, IMPROVEMENTS ON THE LAND, INCLUDING THE PROJECT IMPROVEMENTS,AND ANY OPERATIONS AND ACTIVITIES THEREON, OR OTHERWISE TO THE PERFORMANCE OF THIS AGREEMENT. 9.2. Release. THE CITY HEREBY RELEASES AND AGREES TO HOLD IARMLESS COMPANY, ITS OFFICERS, AGENTS, AFFILIATES AND EMPLOYEES, FROMAND AGAINSTANYAND ALL CLAIMS,LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO. THOSE FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TIIAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) THE CITY'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANYNEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF THE CITY, ITS OFFICERS, SERVANTS, AGENTS, ASSOCLITES, EMPLOYEES CONTRACTORS (OTHER THAN COMPAN19 OR SUBCONTRACTORS, RELATED TO THE LAND, IMPROVEMENTS ON THE LAND, INCLUDING THE PROJECT IMPROVEMENTS, AND ANY Page 15 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) eboo w � OPERATIONS AND ACTIVITIES THEREON, OR OTHERWISE TO THE PERFORMANCE OF THIS AGREEMENT. 10. NOTICES. All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail,postage prepaid,or by hand delivery: City: Company: City of Fort Worth Winner LLC Attn:City Manager Attn: Data Center Counsel 200 Texas St. 1 Hacker Way Fort Worth,TX 76102 Menlo Park,CA 94025 with copies to: the City Attorney and Economic Development Department Director at the same address 11. ASSIGNMENT AND SUCCESSORS. 11.1. Affiliates. Company may at any time assign, transfer or otherwise convey any of its rights or obligations under this Agreement to an Affiliate that is in good standing to do business in the State of Texas, as determined by the Texas Secretary of State, without the consent of the City Council so long as Company, the Affiliate and the City first execute an agreement under which the Affiliate (and, if applicable, the owner of the Land) agrees to assume and be bound by all covenants and obligations of Company under this Agreement. Notwithstanding the foregoing, if the Affiliate is not the owner of the Land, the Agreement must also be assigned to the owner of the Land in accordance with Section 11.4. 11.2. Collateral Assignment. Company may assign its rights and obligations under this Agreement to a financial institution or other lender for purposes of granting a security interest in the Land and/or improvements thereon without the consent of the City Council, provided that Company and the financial institution or other lender first execute a written agreement with the City in substantially the same form as that attached hereto as Exhibit "C", together with such other terms and conditions as may be Page 16 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) ��eboo � �p legal agreed by the City, Company and the financial institution or other lender with respect to such security interest (a "Consent to Collateral Assignment Agreement"). 11.3. Sale/Leaseback. So long as Company or an Affiliate to which this Agreement has been assigned under Section 11.1 remains the ground lessee, or its substantial equivalent, Company may, with consent of the City Council in accordance with Section 11.3,which shall not be unreasonably withheld,transfer fee simple title to the Land to a third party and continue to exercise its rights and obligations under this Agreement, including but not limited to the Abatement, so long as the third party owner and Company or its Affiliate first execute a written agreement with the City under which both the third party owner of the Land and Company or its Affiliate, jointly or severally as may be appropriate under the circumstances, agree to be bound by all covenants and obligations of Company under this Agreement. 11.4. Other Assignment. Except as otherwise provided by Sections 11.1 and 11.2, Company may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any other person or entity without the consent of the City Council, which consent shall not be unreasonably withheld, conditioned on (i) the prior approval of the assignee or successor and a finding by the City Council that the proposed assignee or successor is financially capable of meeting the terms and conditions of this Agreement and (ii) prior execution by the proposed assignee or successor of a written agreement with the City under which the proposed assignee or successor agrees to assume and be bound by all covenants and obligations of Company under this Agreement. Any attempted assignment without the City Council's prior consent shall constitute grounds for termination of this Agreement following ten (10) calendar days of receipt of written notice from the City to Company and failure to cure. Any lawful assignee or successor in interest of Company of all rights under this Agreement shall be deemed "Company" for all purposes under this Agreement. 12. ESTOPPEL CERTIFICATE. Upon written request by Company to the City, as reasonably necessary to Company, the City will provide Company with a certificate stating, as of the date of the certificate, (i) whether this Agreement is in full force and effect and, if Company is in breach of this Agreement, the nature of the breach; (ii) a statement as to whether this Agreement has been amended and, if so, the identity of each amendment; and (iii) any other factual matters reasonably requested that relate to this Agreement. Page 17 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) oebe° �* V llega, 13. COMPLIANCE WITH LAWS,ORDINANCES,RULES AND REGULATIONS. This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances,as amended. 14. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 15. ADDITIONAL PROVISIONS. 15.1. Future Land Uses and Zoning. The City acknowledges that Company's proposed land use is consistent with the current industrial zoning classification of the Land. Moreover, the current Comprehensive Plan provides that uses consistent with this zoning classification are the most appropriate for the Land. In the event that the City receives any request for a residential zoning classification within 250 feet of the Land,the City will use reasonable efforts to provide Company with written notice of such request. 15.2. Expedited Permitting. During the Term, if requested by Company in writing, the City shall expedite the review and any response to the permits, approvals, maps, plans, inspections, applications and other administrative requests in connection with the Land and Project Improvements. The City shall use its best efforts to appoint an appropriate staff member with knowledge and experience in the relevant subject area for such permit or approval to organize and expedite such review. 16. NO WAIVER. The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that parry's right to insist upon appropriate performance or to assert any such right on any future occasion. Page 18 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) �meeboo� tega, 17. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 18. SEVERABILITY; CONFLICTING LAW. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. If any law is enacted after the Effective Date that prohibits either party from materially performing its duties and obligations under this Agreement, the parties agree to meet and confer in good faith for a period of no less than thirty (30) and no more than ninety (90) days to seek to effectuate an amendment to this Agreement that preserves, to the extent reasonably possible, the original intentions of the parties under this Agreement, with the understanding that this Agreement cannot be amended without the approval of the City Council,as specified in Section 25. 19. CONFIDENTIAL INFORMATION. The City acknowledges that some information it receives from Company under this Agreement may be considered confidential. Company understands and agrees that the City is subject to the Texas Public Information Act, Chapter 552, Texas Government Code. The Parties agree to comply with the terms and conditions of that certain Single Party Non-Disclosure Agreement between the City and Company that is on file in the City Secretary's Office as City Secretary Contract No. 46664 to the extent that it relates to the rights,obligations,documents and/or information related to this Agreement. 20. MUTUAL ASSISTANCE; DISPUTE RESOLUTION. The City and Company will do all things reasonably necessary or appropriate to carry out the objectives, terms and provisions of this Agreement and to aid and assist each other in carrying out such objectives, terms and provisions, including without limitation, the City facilitating approval of City permits, documents, and other instruments as may be reasonably necessary in carrying out such objectives. In case of any disputes arising under this Agreement, the City and Company agree to attempt to resolve such disputes through good faith negotiations between authorized representatives of both parties. If necessary, both parties agree to submit a dispute to a non-binding mediation. If a dispute cannot be resolved through non-binding mediation, either party may pursue any available legal remedies in any court of competent jurisdiction that satisfies the requirements of Section 17, or, if both parties mutually agree, the dispute Page 19 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) oeboo wm ;A leegk may be submitted to binding arbitration in accordance with procedures to which both parties agree. 21. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the City and Company, and any lawful assign or successor of Company, and are not intended to create any rights,contractual or otherwise,to any other person or entity. 22. FORCE MAJEURE. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God, strike, inclement weather, shortages or unavailability of labor or materials, unreasonable delays by the City (based on the then-current workload of the City department(s)responsible for undertaking the activity in question) in issuing any permits, consents, or certificates of occupancy or conducting any inspections of or with respect to the Land and Project Improvements, or other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement and the Completion Deadline shall be extended for a period of time equal to the period such party was delayed. Notwithstanding anything to the contrary herein, it is specifically understood and agreed that any failure to obtain adequate financing necessary to meet the Real Property Improvement Commitment or the Personal Property Commitment shall not be deemed to be an event of force majeure and that this Section 22 shall not operate to extend the Completion Deadline in such an event. 23. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party,regardless of the actual drafter of this Agreement. 24. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. Page 20 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) ceboo wm ;it 4egaN 25. ENTIRETY OF AGREEMENT. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Company, and any lawful assign and successor of Company, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. Notwithstanding anything to the contrary herein,this Agreement shall not be amended unless executed in writing by both parties and approved by the City Council of the City in an open meeting held in accordance with Chapter 551 of the Texas Government Code. 26. COUNTERPARTS. This Agreement may be executed in multiple counterparts,each of which shall be considered an original,but all of which shall constitute one instrument. 27. BONDHOLDER RIGHTS. The development will not be financed by tax increment bonds. This Agreement is subject to the rights of holders of outstanding bonds of the City. 28. CONFLICTS OF INTEREST. Neither the Land nor any improvements thereon are owned or leased by any member of the City Council, any member of the City Plan or Zoning Commission or any member of the governing body of any taxing unit with jurisdiction in the Zone. [SIGNATURES IMMEDIATELY FOLLOW ON NEXT THREE(3)PAGES] Page 21 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) ceboo�K tegk EXECUTED as of the last date indicated below: CITY CONTRACT COMPLIANCE MANAGER: By signing below,I hereby acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements: By: Name of City Employee: Title. D)r6et*- Page 22 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) OFFICIAL RECORD CITY SECRETARY FT. WORTH,TIC ceboo %T1 ;0 teo CITY OF FORT WORTH: Attested by: 0 By: Susan Alanis Mary J. KaysW, City 8e Assistant City Manager ............ Date:— 4 APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky Deputy City Attorney M&C: C-29080 03-26-2019 Form 1295: 2019-461427 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Susan Alanis, Assistant City Manager of the CITY OF FORT WORTH, a municipal corporation organized under the laws of the State of Texas, known to me to be the person and officer whose name is subscribed to the foregoing instrument,and acknowledged to me that the same was the act of the CITY OF FORT WORTH,that she was duly authorized to perform the same by appropriate resolution of the City Council of the City of Fort Worth and that she executed the same as the act of the CITY OF FORT WORTH for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this JOK&v of 2019. 'Not4ty Public in d for an MARIA S,SANCHEZ t e State of Texas My Notary ID#2256490 Expires December 19,2021 Notary's Printed Name Page 23 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) OFFICIAL RECORD CITY SECRETARY FT. WORTH,TX %tceboo 40 WINNER LLC, a Delaware limited liability company: By: Name. Robby Not)r, Title: Date: *44 STATE OF § COUNTY OF § BEFORE ME,the undersignXthth this day rsonally appeared f known to me to be the person who ' ed to the foregoing instrument, and acknowledged to me that s/he executhe purposes and consideration therein expressed,in the capacity therein stct and deed ofGIVEN UNDER MYD SEAL OF OFFICE this day of2019. Notary Public in and for the State of Notary's Printe9oame Page 24 Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) OFF10AL COW) CITY SECRETARY FT WORTH,TX ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Mateo On April 8, 2019 before me, Jacqueline Dory, notary public (insert name and title of the officer) personally appeared Bobby J. Hollis who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. JACQUELINE DORY WITNESS my hand and official seal. 117 Notary publIc-iiUrorn;. San Matio County CommissI66 M 2218073 My Comm.Expirts Oct}4,2021 Signature (Seal) OFFICIAL RECORD CITY SECRETARY FT. WORTHo TX ,.q a o;�t teOl EXHIBITS "A"—Legal Description of the Land "B"—Company's Tax Abatement Application "C"—Form of Consent to Collateral Assignment Tax Abatement Agreement between City of Fort Worth and Winner L1.0(2019 Expansion) ro�eb�° Ceg:9�1 EXHIBIT"A" Leval Description of the Land Lot 4R-IF,Block 3,Alliance Gateway North,an Addition to the City of Fort Worth,according to the Plat recorded in Instrument No.D219062890, Official Public Records of Tarrant County,Texas. Lot 4R-4,Block 3,Alliance Gateway North,an Addition to the City of Fort Worth,according to the Plat recorded in Instrument No.D219062890,Official Public Records of Tarrant County,Texas. Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) "yGeboo tega, EXHIBIT`B" Tax Abatement Application Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) FORTWORTH® Economic Development Incentive Applicat-ion Economic Development Department 1150 South Freeway Fort Worth, Texas 76104 (817) 871-6021 Incentive Application 1, APPLICANT INFORMATION Date: Company Name:Winner LLC d/b/a Ernst LLC Company Address: 1 Hacker Way City: Menlo Park State: CA Zip: 94025 Contact Person: Richie Kurtzman Title/Position: Economic Development Manager Telephone Number: Mobile Telephone Number: 773-209-8344 Fax Number: E-Mail Address:rurtzman@fb.com 1. If the applicant represents a Company.(If a Developer and not a Company,proceed to#2.) A. Company Ownership(check one): [I Publicly Traded Stock F7 Privately Held B. Form of Business (choose one): Corporation . C. How long has the company been in operation (Years)? D. Company Industry:Data Center E. Describe the Company's principal business: Winner LLC is a special purpose entity whose sole and principal business will be the operation and maintenance of the proposed data center for its parent company. Winner LLC's parent company is Facebook, Inc. F. Describe the Company's international presence, if any: None G. Describe the Company's corporate citizenship practices: 2. ff the applicant represents a Developer. A. Describe the Developer's experience and background. Please include similar projects that you have constructed including the project type and location (attach additional sheets as necessary): N/A B. Development Partners(Architect, Engineering Team, Interior Design, General Contract, etc.) N/A Page 2 of 6 R.PROJECT INFORMATION Please include below the project description, project benefits and how the project positively impacts the community. Any incentives given by the City should be considered only"gap"financing and should not be considered a substitute for debt and equity. However, the City is under no obligation to provide gap financing just because a gap exists. In order for a Company or Developer to be eligible to receive incentives for a project, the Company/Developer: A. Must complete and submit this application and the application fee to the City; B. Company/Developer or Company/Developer's principals must not be delinquent in paying property taxes for any property owned in Fort Worth; C. Company/Developer or Company/Developer's principals must not have ever been subject to the City of Fort Worth's Building Standards Commission's Review; D. Company/Developer or Company/Developer's principals must not have any City of Fort Worth liens filed against any other property owned by the applicant property owner/developer. "Liens" includes, but is not limited to, weed liens, demolition liens, board-up/open structure liens and paving liens. 1. Project Description (attach additional sheets as necessary): See Exhibit A. 2. In what way will the project benefit the surrounding area or serve as a catalyst for additional development and/or business opportunities for the local economy(i.e. attract suppliers or customers)? See Attached. 3. Describe how the project positively impacts the community. See Attached. III. PROJECT DETAILS 1. Proposed Project Site Address:14100 Park Vista Blvd., Fort Worth, TX 76177 2. Proposed Project Site Land Size(Acres):51.9 3. Will environmental remediation be required?No 4. Is this an existing facility or will a new facility be constructed? f New rVT Existing A. If new,what is the construction:Anticipated Start Date:N/A Anticipated Completion Date:N/A B. If existing, is this an adaptive reuse?Yes 5. Type of Project(choose one): Commercial/Industrial 6. Building Area(Square Feet) Requirements: (a)Office 3,500 (b) Manufacturing (c)Warehouse (d)Showroom/Retail (e)Other 322,000 Total Area(a+b+c+d+e): 325,500 SF 7.Will this facility be LEED certified, and if so, at what level? No 8. Public open space included within the proposed project site: 0 SF/Acres Page 3 of 6 111. PROJECT DETAILS (Continued) 9. If the applicant represents a Company:(If a Developer and not a Company,proceed to#10.) A. Is the Company expanding its existing local operations or relocating its operations from somewhere else to our area? [' Expansion [—Relocation B. If a relocation,where is the company currently located? C. Does the company plan to lease or own the facility in Fort Worth? r-1 Lease r'Own D. If the company is planning to lease space in Fort Worth,what is the lease term? 20 Years E. Describe the specific operations and services to be provided or products to be manufactured at the proposed Fort Worth facility(attach additional sheets as necessary): Winner would provide data hosting services to its parent company, Facebook. Facebook would have remote access to the content hosted in the data center. 10. Development requests that will be sought for the project(select all that apply): Replat Rezoning Current Zoning:N/A Requested Zoning:N/A Variances If yes, please describe: C Downtown Design Review Board Landmark Commission Public Infrastructure Assistance 11. Real Estate Investment A. Current Assessed Valuation of:Land$8,927,012 Improvements$41,072,988 B. Total Construction Costs: $25,000,000 C. Hard Construction Costs: $12,500,000 12. Business Personal Property and Inventory A. Business Personal Property Total investment on equipment, machinery, furnishing, etc.: $ 125,000,000 Lease F,7 Purchase *Estimated taxable value of equipment, machinery, furnishing, etc.: $ 125,000,000 *This is the value that will be on the tax rolls which includes all tangible property. B. Inventory and Supplies Value of Inventory: $N/A Value of Supplies: $ N/A Percent of inventory eligible for Freeport Exemption (inventory, exported from Texas within 175 days) N/A % 13. Total Capital Investment(Real Estate and Business Personal Property):$150,000,000 IV.EMPLOYMENT AND JOB CREATION On the Project Site 1. How many persons are currently employed? 0 2.What percent of current employees above are Fort Worth residents?0 % 3.What percent of current employees above are Central City residents?0 % Page 4 of 6 Ill. E IMP LOY ENT AND JOB CREATION (Cc ntinuedi 4. Please complete the following table for new jobs to be created from direct hire by applicant. Currently At Completion Estimated By Estimated By Fifth Year Tenth Year s , New Jobs to be Created 0 TBD TBD TBD Total Jobsat Project Site t7>. ' TBD, ... TBD TBD %of Net Jobs to be filled by N/A TBD TBD TBD Fort Worth Residents °, t�ii t lb; ffit'l�y' N/A 1 Bp TBD.a` TBD (�erttral Clay residents 5. Please attach a description of the jobs to be created, tasks to be performed for each and wage rate for each classification. 6. Does the applicant provide the following benefits: r7�, Retirement F', Health F Dental F Domestic Partner 7.Average wage paid to employees to be located at the project site: $ 114,073 8. Describe the Company's talent recruitment efforts: The expansion will allow continued investment and growth at the existing data center.Although exact job numbers are not known at this time,it is expected that the lease will allow for continued headcount expansion on site. V. INCENTIVES RE U€ST, Incentive(s) Requested: r; Tax Abatement r; Chapter 380 Economic Development Program Grant Do you intend to pursue abatement of County taxes? r'Yes r No If requesting a Tax Abatement,please refer to the Tax Abatement Policy for a comprehensive explanation of eligibility requirements. A LOCAL C M)7WNT5 During Construction 1. What percent of the total construction costs described in Section III, Question 11 will be committed to: A. Fort Worth businesses? B. Fort Worth Certified Minority and Women Business Enterprises? For Annual Supply and Service Needs Regarding discretionary supply and serviceexpenses(i.e landscaping, office or manufacturing supplies,janitorial services, etc., excluding utilities): 2. What is the annual amount of discretionary supply and service expenses? $ 500,000 3. What percentage will be committed to Fort Worth businesses? 4. What percentage will be committed to Fort Worth Certified Minority and Women Business Enterprises? VII, DISCLOSURES Is any person or firm receiving any form of compensation, commission or other monetary benefit based on the level of incentive obtained by the applicant from the City of Fort Worth? If yes, please explain and/or attach details. No Page 5 of 6 hill, ADDITIONAL INFORMATION (TO BE ATTACHED) These documents must be submitted with the application, otherwise the application will be deemed incomplete and will not be reviewed: a.)Attach a site plan of the project. b.) Explain why incentives are necessary for the success of this project. Include a business pro-forma or other documentation to substantiate your request. c.) Describe any environmental impacts associated with this project. d.) Describe the infrastructure improvements(water, sewer, streets, etc.)that will be constructed as part of this project. e.)Attach a talent recruitment plan, if applicable. f.)Attach a legal description or surveyor's certified metes and bounds description. g.)Attach a copy of the most recent property tax statement from the appropriate appraisal district for all parcels involved in the project. h.)Attach a brief description of the employee benefit package(s)offered (i.e. health insurance, retirement, public transportation assistance, day care provisions, etc.) including portion paid by employee and employer respectively. i.)Attach a plan for the utilization of Fort Worth Certified M/WBE companies. j.)Attach a listing of the applicant's Board of Director's, if applicable. k.)Attach a copy of Incorporation Papers noting all principals, partners, and agents and all Fort Worth properties owned by each. I.)Attach the purchasing representative's company contact information if known. The company is responsible for paying $5,000 as an application fee. If the application is withdrawn before the project is presented to City Council in Executive Session, the fee is refunded. Upon presentation to City Council in Open Session, $2,000 is non-refundable and is applied to offset costs incurred by the Economic Development Department. Upon approval by City Council, the balance of $3,000 can be credited towards required building permits, inspections fees, replatting fees, and other costs of doing business with the City related to the development. Any unused credit balance upon completion of the project will be refunded upon request from the company. IX. CERTIFICATION On behalf of the applicant, I certify the information contained in this application, including all attachments to be true and correct. I further certify that, on behalf of the applicant, I have read the current Incentive Policy and all other pertinent City of Fort Worth policies and I agree with the guidelines and criteria state therein. Printed Name: Title: Date: Signature: 4, ebo, tegdl EXHIBIT "C" Form of Consent to Collateral Assignment CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF TAX ABATEMENT AGREEMENT BETWEEN CITY OF FORT WORTH AND WINNER LLC (CITY SECRETARY CONTRACT NO. _ ) This CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF TAX ABATEMENT AGREEMENT ("Consent") is entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation organized under the laws of the State of Texas; and WINNER LLC ("Company"), a Delaware limited liability company;and ("Lender"), a RECITALS The City, Company and Lender hereby agree that the following statements are true and correct and constitute the basis upon which the parties have entered into this Consent: A. The City and Company previously entered into that certain Tax Abatement Agreement, dated as of , 2019 (the "Agreement") pursuant to which the City agreed to abate certain City ad valorem taxes in return for construction of a data center of approximately 100,000 square feet on property located at , as more specifically outlined in the Agreement (the "Project Improvements"). The Agreement is a public document on file in the City Secretary's Office as City Secretary Contract No B. Section 11 of the Agreement allows Company to assign its rights and obligations under the Agreement to a financial institution or other lender for purposes of granting a security interest in the Land and/or Project Improvements without the approval of the City Council, provided that Company and the financial institution or other lender first execute a written agreement with the City governing the rights and obligations of the City, Company, and the fmancial institution or other lender with respect to such security interest. C. Company wishes to obtain a loan from Lender in order to [state reason for loan] (the "Loan"). As security for the Loan, certain agreements between Company and Lender governing the Loan and dated , including, but not limited to, that certain Loan Agreement and [list other related documents] (collectively, the "Loan Documents") require that Company assign, transfer and convey to Lender all of Company's rights, interest in and to the Agreement until such time as Company has fully Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) legal satisfied all duties and obligations set forth in the Loan Documents that are necessary to discharge Lender's security interest in the Agreement(the"Assignment"). D. The City is willing to consent to this Assignment specifically in accordance with the terms and conditions of this Consent. AGREEMENT 1. The City, Company and Lender hereby agree that the recitals set forth above are true and correct and form the basis upon which the City has entered into this Consent. 2. The City hereby consents to the Assignment at the request of Company and Lender solely for the purpose of Lender's securing the Loan pursuant to and in accordance with the Loan Documents. Notwithstanding such consent, the City does not adopt, ratify or approve any of the particular provisions of the Loan Documents and, unless and to the extent specifically acknowledged by the City in this Consent, does not grant any right or privilege to Lender or any assignee or successor in interest thereto that is different from or more extensive than any right or privilege granted to Company under the Agreement. 3. In the event that the City is required by the Agreement to provide any kind of written notice to Company, including notice of breach or default by Company, the City shall also provide a copy of such written notice to Lender, addressed to the following, or such other party or address as Lender designates in writing, by certified mail, postage prepaid, or by hand delivery: or such other address(es)as Lender may advise City from time to time. 4. If Company fails to cure any default under the Agreement, the City agrees that Lender, its agents or designees shall have an additional thirty(30) calendar days or such greater time as may specifically be provided under the Agreement to perform any of the obligations or requirements of Company imposed by the Agreement and that the City will accept Lender's performance of the same as if Company had performed such obligations or requirements; provided, however,that in the event such default cannot be cured within such time, Lender, its agents or designees, shall have such additional time as may be reasonably necessary if within such time period Lender has commenced and is diligently pursuing the remedies to cure such default, including, without limitation, such time as may be required for lender to gain possession of Company's interest in the Company property pursuant to the terms of the Loan Documents, Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) c,eboov legO, 5. If at any time Lender wishes to exercise any foreclosure rights under the Loan Documents, before taking any foreclosure action Lender shall first provide written notice to the City of such intent (a "Notice"). Lender shall copy Company on the Notice and deliver such Notice to Company by both first class and certified mail return receipt concurrent with its transmittal of the Notice to the City and represent in the Notice that it has done so. Notwithstanding anything to the contrary herein,unless Lender enters into a written agreement with the City to assume and be bound by all covenants and obligations of Company under the Agreement, Lender understands and agrees that the City shall not have any obligation to Lender under the Agreement. In addition,Lender understands and agrees that if Lender wishes to sell all or any portion of the Land or Project Improvements to a third party following Lender's exercise of any foreclosure rights under the Loan Documents,the City shall not owe any obligation to such third party pursuant to the Agreement unless Lender and such third party comply with the procedure for assignment set forth in Section 11 of the Agreement, including the obligation of such third party to enter into a written agreement with the City to assume and be bound by all covenants and obligations of Company under the Agreement. 6. In the event of any conflict between this Consent and the Agreement or any of the Loan Documents, this Consent shall control. In the event of any conflict between this Consent and any of the Loan Documents, this Consent shall control. In the event of any conflict between the Agreement and any of the Loan Documents, the Agreement shall control. 7. This Consent may not be amended or modified except by a written agreement executed by all of the parties hereto. Notwithstanding anything to the contrary in the Loan Documents, an amendment to any of the Loan Documents shall not constitute an amendment to this Consent or the Agreement. 8. Once Company has fully satisfied all duties and obligations set forth in the Loan Documents that are necessary to discharge Lender's security interest in the Agreement and such security interest is released, Lender shall provide written notice to the City that Lender has released such security interest, in which case this Consent shall automatically terminate. 9. This Consent shall be construed in accordance with the laws of the State of Texas. Venue for any action arising under the provisions of this Consent shall lie in state courts located in Tarrant County, Texas or in the United States District Court for the Northern District of Texas,Fort Worth Division. 10. Capitalized terms used but not specifically defined in this Consent shall have the meanings ascribed to them in the Agreement. 11. This written instrument contains the entire understanding and agreement between the City, Company and Lender as to the matters contained herein. Any prior or Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) ro°ebo° tega"k contemporaneous oral or written agreement concerning such matters is hereby declared null and void to the extent in conflict with this Consent. 12. This Consent shall be effective on the later date as of which all parties have executed it. This Consent may be executed in any number of duplicate originals and each duplicate original shall be deemed to be an original. The failure of any party hereto to execute this Consent, or any counterpart hereof, shall not relieve the other signatories from their obligations from their obligations hereunder. EXECUTED as of the last date indicated below: [SIGNATURES IMMEDIATELY FOLLOW ON NEXT PAGE] Tax Abatement Agreement between City of Fort Worth and Winner LLC(2019 Expansion) 4b'4�t tegg' CITY OF FORT WORTH: APPROVED AS TO FORM AND LEGALITY: B3' By: Name; Name: Assistant City Manager Assistant City Attorney Date: M&C• none required WINNER LLC, a Delaware limited liability company: ,y:. Name: 771k; Two: By Date: Tax Abatenwa ASm ment behmn City of Fort Wm*Ord Wiuw Id.0(2019 ExVvWon) 4/11/2019 M&C Review Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FORT W COUNCIL ACTION: Approved on 3/26/2019 DATE: 3/26/2019 REFERENCE C-29080 LOG NAME: 17ED TA2019WINNER NO.: CODE: C TYPE: NON-CONSENT PUBLIC HEARING:NO SUBJECT: Authorize Execution of a Tax Abatement Agreement with Winner, LLC,for the Redevelopment of an Existing Data Center Located at 14100 Park Vista Boulevard (COUNCIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a Tax Abatement Agreement with Winner, LLC,related to the redevelopment of an existing data center located at 14100 Park Vista Boulevard. DISCUSSION: Winner, LLC,(Company),an established Delaware LLC,registered to do business in the State of Texas,will redevelop and operate an existing data center located at 14100 Park Vista Boulevard. The project will comprise approximately 100,000 square feet of space and Winner, LLC,will spend or cause to be expended at least$50 million in construction costs for real property improvements(exclusive of land costs) by December 31,2021. The project will be located on property designated by the City Council as Tax Abatement Reinvestment Zone No.99,City of Fort Worth,Texas. Winner, LLC,will expend and locate taxable business personal property(BPP)that is new to the City of Fort Worth on the Project Site having a minimum value of$100 million by December 31,2021. Winner, LLC,will spend or cause to be expended 15%of Total Construction Costs(hard and soft)with contractors that are Minority/Women Owned Business Enterprise companies located within the market areas applicable to the six county areas where the city spends 80%of its tax dollars. Those counties are Tarrant, Dallas, Denton,Johnson, Parker and Wise. Only firms with a principal office in the market area will be counted towards the MMIBE goals. Failure to meet the M/WBE construction requirement will result in a reduction of 10%of the Maximum Potential Abatement Percentage. Winner, LLC,will provide a minimum of 4 full-time jobs on the Project Site as of December 31,2021 with an average annual salary of$43,992.00. In return,the City will grant a 20 percent tax abatement on the incremental increase in value of real and personal property improvements for a period of one year. The City and Company intend for the Required Improvements to be counted as"Project Improvements"under the Economic Development Program Agreement(the"EDPA")between the City and Winner, LLC,(City Secretary Contract No. 46728). Construction of the Required Improvements will not change the manner in which the Program Grants under the EDPA are to be calculated or change the methodology set forth in the EDPA that determines the term of the EDPA or the maximum number of Program Grants payable under the EDPA. However,the Construction Costs expended for the Required Improvements and the costs of the New Taxable Tangible Personal Property counted under the Tax Abatement Agreement may also be counted for purposes of any Subsequent Investment Report submitted under Section 4.6.6 of the EDPA and for purposes of determining whether the City is obligated to issue a Subsequent Investment Certificate under Section 5.1.4 of the EDPA and whether Company is entitled to receive additional Program Grants under Sections 5.2.2 or 5.2.3 of the EDPA. This project is located in COUNCIL DISTRICT 7. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that upon approval of the above recommendations an estimated $235,500.00 in property taxes(calculated at current rate of.7850/100)will be abated over the one year period in the 2022 tax year.This amount will be included in the City's five year financial forecast. TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Chartfield 2 FROM Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Chartfield 2 Submitted for City Manager's Office by_ Susan Alanis(8180) Originating Department Head: Robert Sturns(2663) Additional Information Contact: Robert Sturns(2663) apps.cfwnet.org/council_packet/mc—review.asp?ID=26891&councildate=3/26/2019 1/2 4/11/2019 M&C Review ATTACHMENTS 1295 WinnerLLC.pdf W nnerLLCSitePlan.pdf apps.cfwnet.org/council_packet/mc_review.asp?I D=26891&councildate=3/26/2019 2/2