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HomeMy WebLinkAboutContract 46728 + �� t� % C '�SO �n�y� C �'i SECRETAW mIYL CONTRACT NO. 2- Mrd o CGNOMIC DEVELOPMENT PROGRAM AGREEMENT This ECONOMJC DEVELOPMENT PROGRAM AGREEMENT ("Agreement") is entered into by and between the CITU OF FORT WORTH, TEXAS (the "City"), a home rule municipality organized under the laws of the State of Texas, and WWl<lER LLC ("Company"),a Delaware limited liability company. RECITALS The City and Company hereby agree that the following statements are true and correct and constitute the basis upon which the City and Company have entered into this Agreement: A. Company or an Affiliate owns or will own approximately 110 acres of Land in the City located at the northeast corner of Alliance Gateway and Park Vista Boulevard. Company is considering the construction and operation of an approximately 250,000 square foot data center on the Land, with potential expansions and build-outs that could involve an aggregate investrnent of more than $250,000,000.00 in real and busiriess personal property improvements. B. Company's proposed project, including its construction of the Project Improvements, as defined in Section 2 of this Agreement, will benefit the City by developing currently vacant ]arid into a viable commercial operation with significant opportunities for employment and tax base growth. As recommended by the City's 2015 Comprehensive Plan, adopted pursuant to Ordinance No. 21693-03-2015, adopted by the m City Council on Maxch 17, 2015 (the "Comprehensive Plan"), and in accordance with r_i rResolution No. 3716-03-2009, adopted by the City Council on March 10, 2009, the City has established an economic development program pursuant to which the City will, on a o case-by-case basis, offer economic incentive packages authorized by Chapter 380 of the C= Texas Local Government Code that include monetary loans and grants of public money, as well as the provision of person:, i and services of the City, to businesses and entities that die City Council determines will promote state or local er;onontic development and stipulate business and commercial activity in the City in return for verifiable commitments from such businesses or entities to cause specific infrastructure, employment and other public benefits to be made or invested in the City (the "380 Program"). C. The City Council has determined that by entering into this Agreement, the potential economic benefits that will accrue to the City under the terms and conditions of flus Agreement are consistent with the City's economic development objectives and that Company's plans for development and use of the Land will further the goals espoused by the Comprehensive Plan for diversifying the economic base in the City and creating job opportunities. to addition, the City Council has determined that the 380 Program is an appropriate means to achieve the constru in rovements, which the Page 1 OFF1CiAL RECORD Economic Development Program AgeemcrnC S C7 NARY baween City of Fort Word}and Winner,LLC FT.WORTH!TX 14 City Council has determined is necessary and desirable, and that the potential econemic benefits that will accrue to the City pursuant the terms and conditions of this Agreement are consistent with the City's economic development objectives as outlined in the Comprehensive flan. The Agreement is authorized by Cbapter 380 of the Texas Local Government Code. D. The City has determined that the feasibility of the project described herein is contingent on Company's receipt of the Program Grants, as provided in this Agreement. The City's analysis is specifically based on financial information provided by Company. E. In addition to this Agreement, the City has also entered into that certain Tax Abatement Agreement of even date between the City and Company under which the City will grant Company a ten percent(10%) abatement on City ad valorem taxes on the Land and any improvements thereon, including the Project Improvements, as well as on New Taxable Tangible Personal Property, which Tax Abatement Agreement is a public document on file in the City Secretary's Office as City Secretary Contract No. (the "Tax Abatement Agreement"). NOW, THERE,raRE, in consideration of the mutual benefits and promises contained herein and for other Jgood and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties agree as fellows: AGREEl'VJENT 1. OVERVfEW. I.I. 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. 1.2. General Structure of the AgLeement Terms. As more specifically set forth in this Agreement, if by the Completion Deadline Company expends or causes to be expended at least Two Hundred Fifty Million Dollars ($250,000,000.00) in improvements to and on the Land (generally, expenditures of at least One Hundred Twenty-five Million Dollars ($125,000,000.00) in Construction Costs for the Project Improvements, and the installation or location on the Land, including and within the Project Improvements, of New "Taxable Tangible Persona; Property having a cost of at least One Hundred Twenty-five Million Dollars ($125,000,000.00), the City will Page 2 Economic Dcvelopment i'rogrmm Agreement between City of Fort Worth and Miner,LLC r pay Company ten (10) annual Program Grants. Pursuant to the Tax Abatement Agreement, the City wlll also provide Company with a one-year, ten percent (10%) abatement on City ad valorem taxes on the Land and any improvements thereon, including the Project Improvements, as well as on New Taxable Tangible Personal Property, which will be applied for the same tax year in which the first Program Grant hereunder is paid. Company may earn lave (5) additional annual Program Grants for each additional Two Hundred Fifty Million Dollars ($250,000,000.00) ingested by Company, which may take the form of additional Construction Cost expenditures for the Project Improvements, additional New Taxable Tangible Personal Property that is subsequently installed or otherwise located on the Land, or a combination of the two. All such additional investment must be made on or before the date that the City pays Company the seventh (7th) annual Program Grant under this Agreement. Additional investment made by Company after that date will not be counted. In addition, Company may not earn more than ten (10) additional annual Program Grants through subsequent investment, meaning that the initial ten (10)-year Term may be extended by five (5) years for the first Two Hundred Fifty Million Dollars ($250,000,000.00) of additional investment and another five (5) years for the second Two Hundred Fifty Million Dollars ($250,000,000.00) of additional investment, for an aggregate total of twenty (20) annual Programa Grants, but no more, regardless of the arnount of additional investment made on the Land (including within the Project Improvements). Company is not required to make investment in excess of the Real Property Improvement Commitment and the Personal Property Commitment in order to receive the base Program Grants outlined in Section 5.2.1. The amount of each annual Program Grant will be calculated in accordance with the amount (a) of(i) incremental ad valorem real property tax revenues from the Land and any improvements thereon that were received by the City with respect to any Twelve-Month Period as compared to the 2015 tax year; (ii) ad valorem personal property tax revenues from New Taxable Tangible Personal Property that were received by the City with respect to any Twelve- Month Period; (iii)- sales and use tax revenues received by the City on New Taxable Tangible Personal Property with respect to any Twelve-Month Period, including revenues received on Servers; (iv) revenues received by the City from electricity franchise fees collected from Company and paid to the City by Company"s provider of electricity services on the Land with respect to any Twelve-Month Period; (v) revenues received by the City with respect to any Twelve-Month Period from new taxes, if any, that are adopted by the City after the Effective Date and that are not restricted for a specific purpose and that are otherwise unrestricted; and (vi) after the issuance of the Certificate of Completion in accordance with Section 5.1.1, sales and use tax revenues on Data Center Systems received by the City with respect to any Twelve-Month Period, (b) less the net revenue retained by and benefitting the City on account of Company's location of its business operations on the Land, referred to in this Agreement as Page 3 Economic Development Program Agreement between City of fort wnrth and Winner,U.0 the "Required Minimum Annual Revenge." 173is minimum annual reduction will be Two Million One Hundred Fifty Thousand Dollars ($2,150,000.00) in the first Program Year and will increase each year by two percent(2%)over the amount of the previous year's reduction. Company may earn an annual reduction in this minimum annual deduction, defined in this Agreement as the "Local Spending Credit," by making increased Construction Cost expenditures for the Project Improvements with Fort Worth Companies and Cort Worth Certified MfWBE Companies. Depending upon the year that Company elects to receive its first 11'rogrwn Grant in accordance with Section 5.2.1.1,either the first or second year's economic development incentive will be a combination 10% tax abatement under the Tax Abatement Agreement and a Program Grant based on the tax revenues set forth above, excluding those amounts abated. This Section 1.2 is intended only to provide a general overview of this Agreement's terms and conditions. Any conflict between a statement in this Section 1.2 and another provision of this Agreement will be resolved in favor of that other provision. 2. DEFIINi'IIONS. In addition to terms defined in the body of this Agrwment, the following terms shall have the definitions ascribed to them as follows: 380 Program has the meaning ascribed to it in Recital B. Affiliate means any entity, 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. Certificate of Completion has the meaning ascribed to it in Section 5.1,1. Completion Date means the date as of which a temporary or permanent certificate of occupancy for at least I00,000 square feet of space within the Project tmprovements has been Issued. Com nletion Deadline means December 31, 2017, subject to extension on account of force majeure,as provided in Section 21. Comprehensive Plan has the meaning ascribed to it in Recital B. Comptroller means the Texas Comptroller for Public Accounts. Consent to Collateral Assignment Agreement has tlae meaning ascribed to it in Section 10.2. t}aev a Economic Development Program Agroement between Chv of Fort Worth and Winner,LIC. Contractor has the meaning ascribed to it in TmAs ADmNISTRATIVE Co©l3 §3.291 (a)(3)and §3.357(a)(2),as amended_ Construction Costs means the aggregate of the following costs expended or caused to he 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. Data Center Systems means the following items: (i) electrical systems; (ii) cooling systems; (iii) emergency generators; (iv) hardware or distributed mainframe computers or Servers; (v) data storage devices; (vi)network connectivity equipment; (vii) tacks, cabinets and raised floor systems; (viii) peripheral components or systems; (ix) software; (x)mechanical, electrical or plumbing systems that are necessary to operate any of the items listed in subsections (i)through (ix); (xi) a component part of any item listed in subsections (i) through (ix); and (xii)any other item of equipment or system necessary to operate any item listed in subsections (i) through (x). Without limitation, Data Center Systems does not include office equipment or supplies;maintenance or janitorial supplies or equipment; equipment or supplies used primarily in sales activities or transportation activities;or items that are rented or leased for a term of one(1)year or less. Data Center Systems Sales and Use Tax Revenues means revenues received by the City after the issuance of a Certificate of Completion in accordance with Section 5.1.1. from the one percent (M)available City sales and use tax that is presently in effect pursuant to Texas Tax Code §§ 32I.101(a) and 321.103, resulting from sales and use taxes paid by Company only on Data Center Systems (i) purchased for use in construction of any new Project improvements or finish-out of any partially completed Project Improvements, or (ii) purchased for a refurbishment or an expansion of existing Project Improvements; provided, however, that Data Center Systems Sales and Use Tax Revenues specifically excludes all revenues from (u) the Crime Control District Sales Tax imposed by the City pursuant to Texas Tax Code § 323.105 and Texas Local Government Code § 353.005, as may be amended, and (h) the Transit Authority Sales Tax paid to the City by the Fort Worth Transportation Authority pursuant to City Secretary Contract No. 19689, as previously or subsequently amended or restated, from the sales tax imposed by the Fort Worth Transportation Authority pursuant to Texas Tax Code Chapter 322. Sales and use taxes "paid by Company" includes sales and use taxes received by the City that are: (1) paid directly by Company to the State or other governmental entity and are then remitted to the City; (2)paid indirectly by a Contractor on Company's behalf and remitted directly to the State or other governmental entity and are then subsequently remitted to the City; (3) paid by Company to a Retailer who remits the sales and use taxes directly to the State or other governmental entity, which are then subsequently remitted to the City; or (4) paid indirectly by a Contractor on Company's Page 5 Economic Development Program Agrccraent between City of Fort Warih and Winner,LLC behalf to a Retailer who remits the collected sales and use taxes to the State or other governmental entity, which are then subsequently remitted to the City. If the City's sales and use tax rate is ever decreased to the extent that the City receives available sales and use tax revenues based on less than a one percent (1%) sales and use tax, then the meaning of Data Center Systems Sales and Use Tax Revenues shall automatically be adjusted to equal that lesser percentage. If the City's sales and use tax rate is ever decreased to the extent that the City receives available sales and use tax revenues based on less than a one percent (]%) sales and use tax and is then increased to a higher percentage whose use is not otherwise controlled, regulated, restricted or otherwise dedicated to a specific use by the City, then Data Center Systems Sales and Use Tax Revenues shall be computed to reflect "at increased percentage up to a maximum aggregate of one percent(1%). Director means the director of the City's Economic Development Department. Effective Date has the meaning ascribed to it in Section 3. Electricity Franchise Fee Revenues means the amount of fees paid by Company to an electric utility providing retail electricity services to the Land and Project Improvements as a municipal franchise charge imposed by the City pursuant to Section 33.008(b),Texas Utilities Code, or other applicable law or regulation. Employment Goal has the meaning ascribed to it in Section 4.5. First Program Grant Source Funds means the amount of City funds received for the first Program Grant payable hereunder, which amount is equal to the aggregate of the Project Real Property Taut Revenues; Personal Property Ad Valorem Tax Revenues; Personal Property Sales and Use Tax Revenues; Electricity Franchise Fee Revenues; and New Available Tax Revenues received by the City during the Twelve-Month Period ending during Program Year One (as selected by Company in accordance with Section 5.2.1.1) and appropriated in accordance with this Agreement that are in excess of the Required Minimum Annual Revenue for such Twelve-Month Period. Notwithstanding, the foregoing,-First Program Grant Source Funds will (i) include Personal Property Sales and Use Tax--Revenues received by the City on the sale of Servers from the Effective Date through the end of the Twelve-Month Period ending during Program Year One (as selected by Company in accordance with Section 5-11.1), and (ii) if Company has elected to receive its first Program Grant in 2019 in accordance with Section 5.2.1.1, exclude the amount equal to the taxes abated under the Tax Abatement Agreement. Except for Personal Property Sales and Use Tax Revenues on any Servers, First Program Grant Source Funds do not include any Data Center Systems Sales and Use Tax Revenues received by the City prior to the issuance of the Certificate of Completion in accordance with Section 5,1.1. Fort Worth Certified MIWt3E 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 Page s Economic Devolopment P€ogrnm Agreement between City offort.Worth and Winner,LI.0 North Central Texas Regional Certification Agency (NCTRCA); (ii) has a principal business office: located within the corporate limits of the City; and (iii) from such principal business oMee performs a function or provides a service useful or necessary for construction of the Project for which Company is also seeping credit under this Agreement. For purposes of this definition, a "principal" office does not mean, its headquarters and can be one of multiple offices throughout the state of Texas and/or the United States of America maintained by such company. Fort Worth Compariv means a business that has a principal office Iocated within the corporate limits of the City that performs a commercially useful function and that provides the services for which Company is seeking credit under this Agreement. For purposes of this definition, a"principal"office does not mean its headquarters and can be one of multiple offices throughout the state of Texas and/or the United States of America maintained by such company. Fort Worth Construction Commitmeat has the Meaning ascribed to it in Section 4.2. Fort Worth Construction. Pereentac has the meaning ascribed to it in Section 4.2. Full-time .lob means a job on the Land 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 in accordance with its then-current personnel policies and regulations. For example, if Company 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 Agreernent. Land means the real property described on Exhibit "A" which is attached hereto and incorporated herein by reference for all purposes under this Agreement, plus any additional land within a half-mile radius of the real property boundaries referenced on Exhibit "A" that is acquired by Company subsequent to the Effective Date for incorporation into the Project Improvements. Local Spending Credit means an amount equal to the sum of(i) One Hundred Thousand Dollars ($100,000.00) multiplied by the Fort Worth Construction Percentage, plus (ii) Fifty Thousand Dollars ($50,000.00) multiplied by the MIWBE Construction Percentage. MIWBE Construction Commitment has the meaning ascribed to it iii Section 4.3. M/WBE' Construction Percentage has the meaning ascribed to it in Section 4.3. Page 7 Aconomic Development Program Agreement tntwcen City of I'm Worth and Winner..LLC New Available Tax Revenues means revenues paid by Company and received by the City from any taxes that are adopted by the City after the Effective Date and are levied and assessed against Company, the Project Improvements, or the Land to the extent that such revenues are unrestricted and undedicated for revenue-generating purposes. Taxes"paid by Company"includes taxes received by the City: (l)paid directly by Company to the State or other governmental entity and are then remitted to the City; (2)paid indirectly by a Contractor on Company's behalf and remitted directly to the State or other governmental entity and are then subsequently remitted to the City; (3) paid by Company to a Retailer or other third party who remits the taxes directly to the State or other governmental entity, which are then subsequently remitted to the City; or (4) paid indirectly by a Contractor on Company's behalf and remitted indirectly to a Retailer or other third party who renis is the collected taxes to the State or other governmental entity, which are then subsequently remitted to the City. Any new takes, assessments, levies or other charges adopted by the City after the Effective Date and that are assessed against Company,the Project Improvements,or the Land for a specific, defined purpose,such as, by way of example only and without implying any limitation, a paving assessment, a fee for road, public safety, or property development costs, or a sales tax for mass transit development,are,by their nature,restricted in scope and dedicated for a specific revenue- generating purpose, and, thus, would not constitute "New Available Tax Revenues" under this Agreement. 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. Personal Properq ProperCommitment has the meaning ascribed to it in Section 4.4. Personal_Property Re has has the meaning ascribed to it in Section 4.6.2. Personal Property Ad Valorem Tax Revenues means revenues from ad valon�ln taxes on New Taxable Tangible Personal Properly,paid by Company and received by the City, based on the taxable assessed value of such New Taxable Tangible Personal Property, as established solely by the appraisal district that has jurisdiction over the Land at the time. Ad valorem taxes "paid by Company" includes ad valorem taxes received by the City that are: (1) paid directly by Company to the appraisal district or other govenumental entity and are then remitted to the City; or (2) paid indirectly on Company's behalf and remitted to the appraisal district or oilier governmental entity, which are then subsequently remitted to the City. _Personal Property Sales and Use Tax Revenues means revenues paid by Company and received by the City from the one percent (1%) available City sales and use tax that is presently in effect pursuant to Texas Tax Code §§ 321.101(a) and 321.103, resulting from sales and use taxes received by the City on New Taxable Tangible Personal Property purchased on or after the Effective Date of this Agreement; provided, PW a Economic Development Progsm Agreement between City of Fort Worth and Winner,LLC however, that Personal Property Sales and Use Tax Revenues specifically excludes all revenues from (a) the Crime Control District Sales Tax unposed by the City pursuant to Texas Tax Code § 323.105 and Texas Local Government Code § 363.005, as may be amended, and (b) the Transit Authority Sales Tax paid to the City by the Fort Worth Transportation Authority pursuant to City Secretary Contract No. 19689,as previously or subsequently amended or restated, From the sales tax imposed by the Fort Wortli Transportation Authority pursuant to Texas Tax Code Chapter 322. Sales and use taxes 'paid by Company" includes sales and use taxes received by the City that are. (1) paid directly by Company to the State or other governmental entity and are then remitted to the City; (2)paid indirectly by a Contractor on Company's behalf and remitted directly to the State or other governmental entity and are then subsequently rerrutted to the City; (3) paid by Company to a Retailer who remits the sales and use taxes directly to the State or other governmental entity, which are then subsequently remitted to the City; or (4) paid indirectly by a Contractor on Company's behalf to a Retailer who remits the collected sales and use taxes to the State or other governmental entity, which are then subsequently remitted to the City. If the City's sales and use tax rate is ever decreased to the extent that the City receives available sales and use tax revenues based on less than a one percent (10/a) sales and use tax, then the meaning of Personal Property Sales and Use Tax Revenues shall automatically be adjusted to equal that lesser percentage. If the City's sales and use tax rate is ever decreased to the extent that the City receives available sales and use tax revenues based on less than a one percent(1%) sales and use tax and is then increased to a higher percentage whose use is not otherwise controlled, regulated, restricted or otherwise dedicated to a specific use by the City, then Personal Property Sales and Use Tax Revenues shall be computed to reflect that increased percentage up to a maximum aggregate of one percent(1%). Program Grants means the annual economic development grants paid by the City to Company in accordance with.this Agreement and as part of the 380 Program. Program Year mean a calendar year in which the City is obligated pursuant to this Agreement to pay Company a Program Grant. Program Year Orae means the calendar year selected by Company in accordance with Section 5,2.1.1 for payment of its first Program Grant hereunder. Project Completion Report has the meaning ascribed to it in Section 4.6.1. Project Improvements means improvements constructed or caused to be constructed on the Land by Company after the Effective Date of this Agreement. Project Real Property Tax Revenues means revenues from ad valorem taxes on the Land and any improvements thereon, including the Project Improvements, paid by Company and received by the City minus the amount of ad valorem taxes payable on the Land and any improvements located thereon for the 2015 tax year, based on the taxable assessed value of the Land and any improvements located thereon for the 2015 tax year, as established solely by the appraisal district that has jurisdiction over the Land at the Page 9 Economic Development Progm n Agreement baween City of Fort Worth and Winner,LLC Ib time. Ad valorem taxes "paid by Company" includes ad valorem taxes received by the. City that are: (1)paid directly by Company to the appraisal district or other governmental entity and are then remitted to the City; or (2) paid indirectly on Company's behalf and remitted to the appraisal district or other governmental entity, which are then subsequently remitted to the City. Real ProyeImprovement Commitment has the meaning ascribed to it in Section 4.1. Re wired Minimum Annual Revenue means an amount of revenue received by the City in a given Twelve-Month Period from, collectively, Project Real Property Tax Revenues; Personal Property Ad Valorem Tax Revenues; Personal Property Sales and Use Tax Revenues (including revenues received on any Servers); Electricity Franchise Fee Revenues;New Available Tax Revenues;and, only after the issuance of a Certificate of Completion in accordance with, Section 5.1.1., all other Data Center Systems Sales and Use Tax Revenues in addition to the Personal Property Sales and Use Tax Revenues on any Servers. The Required Mnimum Annual Revenue for the Twelve-Month Period ending in Program Year One will be an amount equal to $2,150,000.00, minus the Local Spending Credit. The Required Minimum Annual Revenue for each subsequent Twelve Month Period will increase by two percent (2%) over the amount of the Required Minimum Annual Revenue for the immediately preceding Twelve-Month Period. Retailer has the meaning ascribed to it in TEXAS TAx CODE § 151.008 (a), as amended. Server means any computer data processing, storage, or other transmission equipment and any equipment at any time substituted for and perforrniug the same or similar functions. "Server" does not include the software installed on any computer or data processing equipment. State means the State of Texas. Subsequent investment Certificate has the meaning ascribed to it in Section 5.1.4. Subseguent Investment Report has the meaning ascribed to it in Section 4.6.6. Subsequent Program Grant Source Funds meads an amount of City funds received for Program Grants for Program Years subsequent to Program Year One, which amounts will equal the aggregate of the Project Real Property Tax Revenues; Personal Property Ad Valorem Tax Revenues; Personal Property Sales and Use Tax Revenues; Electricity Franchise Fee Revenues; Data Center System Sales and Use Tax Revenues; and New Available Tax Revenues received by the City in the Twelve-Month Period ending in the same Program Year in which the Program Grant for that Program Year is payable and appropriated in accordance with this Agreement that are in excess of the Required Minimurn Annual Revenue for such Twelve-Month Period ending in such Page 10 Economic Development Program Agreement between City of fort Worth and Winner,LLC Program Year. Notwithstanding the foregoing, if Company has elected to receive its first Program Grant in 2018 in accordance with Section 5.2.1.1, then (i) the tax abatement under the Tax Abatement Agreement will also be applied to the 201$ tax year, and (ii) Subsequent Program Grant Funds for the Program Grant payable in 2019 only will exclude the amount equal to the taxes abated under the Tax Abatement Agreement. Tax Abatement Aereement has the meaning ascribed to it in Recital E, Term has the meaning ascribed to it in Section 3. Twelve-Month Period means the period between February 1 of a given year and January 31 of the following year. 3. TERNVL This Agreement will take effect on the date of execution by both the City and Company (the "Effective Date") and, unless terminated earlier in accordance with this Agreement, will expire on the date as of which the City has paid all Program Grants required hereunder, as more specifically set forth in Section 5.2(the"Term"). 4. COMPANY OBLIGATIONS, GOALS AND COM1%flTMENTS. 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 One Hundred Twenty-five Million Dollars ($125,000,000.00) in Construction Costs for the Project Improvements-, provided, however, that if the Personal Property Commitment outlined in Section 4.4 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 One Hundred Twenty-five Million Dollar ($125,000,000.00) 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 5.1.1 (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. Ammer the Completion Deadline, the Project Improvements roust 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. Dollars Page !f Economic Development Program Agreement between City of Fort Worth and Winner,LLC counted as Construction Cost expenditures for purposes of measuring attainment of the Meal Property Improvement Commitment under the Tax Abatement Agreement will also be counted for purposes of measuring attainment of the Real Property improvement Commitment under this Agreement. 4.2. Construction Spending Commitment for Fort Worth Companies. Company intends to 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 with Fort Worth Companies (the "Fort Worth Construction Commitment"). The extent to which Company meets the Fort Worth Construction Commitment, expressed as a percentage (the "Fort Worth Construction Percentage"), will be used as the first of two mases for calculation of the Local Spending Credit, which,as further defined in Section 2, is an amount deducted from the Required Minimum Annual Revenue that the City is entitled to retain each year before paying Company a Program Errant for that year. For example, if Company only expended or caused the expenditure by the Completion Deadline of Forty Million Dollars ($40,000,000.00) in Construction Costs for the Project improvements with Fort Worth Companies, the Fart Worth Construction Percentage will be eighty percent (80%) ($40 million/$50 million). In that case, $150,000.00 of the Local Spending Credit attributable to the Fort Worth Construction Commitment would be reduced to $120,000.00 (80% of $150,0+04.00). if Company expends or causes the expenditure by the Completion Date of Fifty Million Dollars ($50,000,000.00) or more in Construction Costs for the Project Improvements with Fort Worth Companies, the Fort Worth Construction Percentage will be one hundred percent (100%), meaning that Company will be entitled to the full $150,000.00 of the Local Spending Credit attributable to the Fort Worth Construction Commitment. Construction Cost expenditures made with Fort Worth Companies after the Completion Deadline will not be measured for purposes of the Fort Worth Construction Commitment or included in the calculation of the port Worth Construction Percentage. 4.3. Construction Spendine Commitment for Fort Worth Certified M]WBE Companies. Company intends to expend or cause the expenditure by the Completion Deadline of at least Twenty-five Million Dollars($25,000,000.00)in Construction Costs for the Project Improvements with Fart Worth Certified MIWBE Companies (the "MI"BE COBstruction Commitment"). Dollars expended with Fort Worth Certified MIWBE Companies will also count as dollars expended with Fort Worth Companies for purposes of measuring the Fort Worth Construction Commitment outlined in Section 4,2. The extent to which Company meets the MfWBE Construction Commitment, expressed as a percentage (the "MIW1liE Construction Percentage"), will be used as the second of two bases for calculation of the Local Spending Credit. For example, if Company only expended or caused the expenditure by the Completion Deadline of Twenty-two Page 12 Economic Development Program Agreement between City orFort Worth and Winner,3_.I_C Million Five Hundred Thousand Dollars ($22,500,000.00) in Construction Costs for the Project improvements with Fort Worth Certified MIWBE Companies, the MIWBE Construction Percentage will be ninety percent(90%) ($22.5 million/$25 million). In that case, $100,000.00 of the Local Spending Credit attributable to the Fort Worth Construction Commitment would be reduced to $90,000.00 (90% of $100,000.00). If Company expends or causes the expenditure by the Completion Date of Twenty-five Million Dollars ($2.5,000,000.00) or more in Construction Costs for the Project improvements with Fort Worth Certified MIWBE Companies, the MIWBE Construction Percentage will be one hundred percent(100%), meaning that Company will be entitled to the full $100,000.[0 of the Local Spending Credit attributable to the N4/WISE Construction Commitment_ Construction Cost expenditures made with Fort Worth Certified MlWBE Companies after the Completion Deadline will not be measured for purposes of the M/WBE Construction Commitment or included in the calculation of the MIWBE Construction Percentage. 4.4. Installation of Personal Property on Land. By the Completion Deadline, Company kitends to install or otherwise locate on the Land, or cause to be installed or otherwise located on the Land (including within the Project Improvements), New Taxable Tangible Personal Property having an aggregate actual cost of at least One Hundred Twenty-five Million Dollars ($125,000,000.00); provided, however, that if the heal Property Improvement Commitment is exceeded and if Company submits a written request to the City on or before submission of the Project Completion Report,the Director may reduce this One Hundred Twenty-five Million Dollar ($I25,000,00flA0) minimum cosi requirement by the same percentage in which the Deal 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 specif ed in writing and rellected in the Certificate of Completion issued pursuant to Section 5.1.1 (the "Personal Property Commitment"). Dollars counted as expenditures for purposes of measuring attainment of the Personal Property Improvement Commitment under the Tax Abatement Agreement will also be counted for purposes of measuring attainment of the Personal Property Commitment under this Agreement. 4.5. Employment Goal. In the fust full calendar year following the year in which the Completion Deadline occurs and each year thereafter for the remainder of the Terni,Company will use commercially reasonable efforts to provide or cause to be provided at least forty (40) Full-time Jobs on the Land (the "Employment Gaal"). Fall-time Jobs counted for purposes of measuring attainment of the Employment Goal under the Tax Abatement Agreement will also be counted for purposes of Page 13 Economic Development Program Agreement between City of Fort Worth and Winner.LLC measuring attainment of the Employment Goal under this Agreement for the first full calendar year following the year in which the Completion Deadline occw-s. 4.6. Reports and Filings by Company. 4.6.1. 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 roust provide a written report to the City, substantially in the form attached hereto as Exhibit "B", 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 Fort Worth Companies and Fort Worth 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"). Provision of the Project Completion Report under the Tax Abatement Agreement will also constitute provision of the Project Completion Report under this Agreement. 4.6,2. Personal Property Reporf. 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 attached hereto as Exhibit "C", 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 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"). Provision of the Personal Property Report under the Tax Abatement Agreement will also constitute provision of the Personal Property Report under this Agreement. 4.6.3. Annual Sales and Use Tax Report. 4.6.3.1. For Program Year One. 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 an annual report, substantially lar the Lorna attached hereto as Exhibit "D", that sets forth the aggregate amount of sales and use tax paid to the Comptroller by Company and any Affiliates on New Taxable Page 14 Economic Development Program Agreement between City of Fort Worth and Winner.LLC Tangible Personal Property and on Servers from the Effective Date until the end of Program Year One, together with corresponding sales and use tax reports filed with the Comptroller for that time period. 4.6.3.2. After Prop-ram Year One. On or before February 28 of the second full calendar year following the year in which the Completion Deadline occurred and each subsequent year for the remainder of the Texan of this Agreement, Company must provide the City with an annual report, substantially in the form attached hereto as Exhibit °`D", that sets forth the aggregate amount of sales and use tax paid to the Comptroller by Company and any Affiliates on New Tastable Tangible Personal Property and on Data Center Systems for the previous Twelve-Month Period, together with corresponding sales and use tax reports Wiled with the Comptroller, 4.633. Failure to Submit Sales and Use Tax Report. Notwithstanding anything to the contrary in this Agreement, if Company fails to submit a sales and use tax report in accordance with this Section 4.6.3 in any given year, the City will notify Company in writing. Company will have ten (1 a) business days after receipt of such notice to provide the City with the report. If Company does not supply the report within this time frame, such failure will not constitute a default under this Agreement, but notwithstanding anything to the contrary herein, the City will have the right to exclude Personal Property Sales and Use Tax Revenues and, if applicable, Data Center Systems Sales and Use Tax Revenues from its calculation of the ProgramGrant payable to Company for that year, and any such Personal Property Sales and Use Tax :Revenues and Data Center Systems Sales and Use Tax Revenues received by the City in the time period that was to be covered by the report in question will be retained by the City and will not carry forward for payment of a subsequent Program Grant. 4.6.4. Annual Employment Report. On or before February 28 of the second full calendar year following the year in which the Completion Deadline occurred and February 1. of each year thereafter for the remainder of the Term, Company roust provide the City with a report, substantially in the form attached hereto as Exhibit "E", that sets forth the total number of individuals who held Full-time .lobs on the Land as of December l (or such other date requested by Company and reasonably acceptable to the Page Is Economic Development Program Agreement between City of Fort.Worth and Winner,LLC City) of the previous year, together with reasonable supporting documentation. if the Employment Goal was not met in the previous calendar year, 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 6.7 below, a failure to meet the Employment Goal does not constitute a default under this Agreement. Notwithstanding anything to the contrary herein, provision of the employment report under the Tax Abatement Agreement will also constitute provision of the initial employment report provided hereunder. 4.6.5. Electric' Franchise Fee Re ort. On or before February 28 of the first full calendar year following the year in which the Completion Deadline occurred and of each year thereafter, Company must provide a report to the City, substantially in the form attached hereto as Exhibit "F", that sets forth the aggregate amount of Electricity Franchise Fee Revenues paid in the previous Twelve-Month Period, together with supporting documentation, including invoices and bills received, reasonably necessary to demonstrate that such amounts were actually paid by Company. Notwithstanding anything to the contrary in this Agreement, if Company fails to submit an electricity franchise fee report in accordance with this Section 4.6.5 in any given year, the City will notify Company in writing. Company wilI have ten (10) business days after receipt of such notice to provide the City with the report. If Company does not supply the report within this time frame, such failure will not constitute a default under this Agreement, but notwithstanding anything to the contrary herein, the City will have the right to exclude Electricity Franchise Fee Revenges from its calculation of the Program Grant payable to Company for that year, and any such Electricity Franchise Fee Revenues received by the City in the time period that was to be covered by the report in question will be retained by the City and will not carry forward for payment of a subsequent Program Grant. 4.6.6. Subsequent Investment Reports. At any time between the date as of which both the Project Completion Report and Personal Property Report were submitted in accordance with Sections 4.6.1 and 4.6.2 and payment by the City of the seventh (7th) annual Program Grant hereunder, Company may file a "Subsequent Investment Report" with the City, substantially in the form attached hereto as Exhibit"G", to demonstrate that Company has made or caused to be made additional investment on the Land in an aggregate amount of at least Two Hundred Fifty Million Dollars ($250,000,000.00), which amount may be comprised of (i) additional Construction Cost expenditures for Project Improvements that were not outlined in the Page 16 Economic Development Program Agr"went between City of Fort Worth and Winner,LLC Project Completion Report or a prior Subsequent Investment Report} (ii) additional New Taxable Tangible Personal Property that has been installed or otherwise located on the Land and that was not outlined in the Personal Property Report or a prior Subsequent Investment Report; or (iii) a combination of(i) and (6), Company must include with any Subsequent Investment Report the same types of documentation required by Section 4.6.1 for any Construction Cost expenditures that are reported and the same types of documentation required by Section 4.6.2 for any additional New Taxable Tangible Personal Property that is reported. Notwithstanding anything to the contrary berein, any Construction Cost expenditures for the Project Improvements in excess of One Hundred Twenty-fine Million Mars ($125,000,000.00) (or such higher amount to the extent that such additional expenditures formed the basis for which the Director, in accordance with Section 4.4, lowered the minimum costs of New Taxable Tangible Personal Property that must be expended in order to meet the Personal Property Commitment) that were confirmed by the City in the Certificate of Completion issued pursuant to Section 5.1,1 and any aggregate costs of New Taxable Tangible Personal Property installed or otherwise located on the Land (including within the Project Improvements) that were confirmed by the City in that Certificate of Completion and that are in excess of One Hundred Twenty-five Million Dollars ($125,000,000.00) (or such lower amount if authorized by the .Director in writing in accordance with Section 4.4) may collectively be carried over and included in a Subsequent Investment Report. In addition, any Construction Costs expenditures for Project Improvements and any aggregate costs of New Taxable Tangible Personal Property installed or otherwise located on the Land that were previously confirmed by the City in the initial Subsequent Investment Certificate issued in accordance with Section 5.1.4, but that were in excess of the Two Hundred Fifty Million Dollars ($250,0017,000.00) of additional investment necessary for issuance of that Certificate, may collectively be carried over and included in a second Subsequent investment Report. 4.7. 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 and New Taxable Tangible Personal Property and are necessary to evaluate compliance with this Agreement or with the commitments 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 Page 17 Economic Development Program Agreement between City offort Worth and Winner,LE,C expenditures or costs of New Taxable Tangible Personal Property is contained in financial and business records of Company that also contain unrelated matters, and the City cannot verify such expenditures or costs in any odder documents of Company, such expenditures and costs 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 or costs of New Taxable Tangible Personal Property_ If Company seeks to have Construction Cost expenditures rude by another party or costs of New Taxable Tangible Personal Property by an Affiliate counted Fol- proposes 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. Company must make all such records described in this Section 4.7 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. 4.8. Inspections of Land and Project Imeavements. At any time during Company's normal business hours throughout the Term and Following at least ten (1 0) 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, solely 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 its ongoing business operations on the Land. Page 18 Economic Development Program Agreement between City of Fon Worth and Winner,LLC i 5. CITY OBLIGATIONS. 5.1. Reports and Filings by the City. 5.1.1. Certificate of Camgletion. Within ninety (90) calendar days following receipt by the City of the Project Completion Report and the Personal Property Report subnvtted by Company in accordance with Sections 4.6.1 and 4.6.2, and assessment by the City of the information contained therein, if the City is able to verify that the Completion Date occurred on or before the Completion Deadline, that at least One Hundred Twenty-five Million Dollars ($125,000,040.00) in Construction Costs 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 Twenty-6ve Million Dollars ($125,000,000.00) (or such lower amount if authorized by the Director in writing in accordance with Section 4.4) was inst llcd 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 Con-unitment and the Personal Property Commitment have been met (the "Certificate of Completion"). The Certificate of Completion will also state the total Construction Costs expended by the Completion Deadline for the Project Improvements; the extent to which the Fort Worth Construction Commitment and the M/WBE Construction Commitment were met; and the total costs of New Taxable Tangible Personal Property that was installed or otherwise located on the Land by the Completion Deadline. The issuance of the Certificate of Completion by the City will not unreasonably be conditioned, withheld or delayed. 5.1.2. Stiles and Use Tax Revenue Certificate. Within ninety (90)calendar days following receipt of the first sales and rise tax report submitted by Company in accordance with Section 4.6.3.1, the Director will issue Company a certificate that confirms the amount of Personal Property Sales and.Use Tax Revenues received by the City from the E1Tective Date until the Completion Deadline. Within ninety (90) calendar days following receipt of each subsequent annual sales and use tax report submitted by Company in accordance with Section 4.6.3.2, the Director will issue Company a certificate that confirms the amount of Personal Property Sales and Use Tax Revenues and, if applicable, Data Center Systems Sales and Use 'rax Revenues received by the City in the previous Twelve-Month Period, Page 19 Economic Duvelopmcnt Program Agmcment between City of Part North and Winmr,LLC 5.1.3. Electrici Franchise Fee Revenue Certificate. Within ninety (90) calendar days following receipt of each electricity franchise fee revenue report submitted by Company in accordance with Section 4.6.5, the Director will issue Company a certificate that confirms the amount of Electricity Franchise Fee Revenues received by the City in the previous Twelve-Month Period. 5.1.4. Subsequent Investment Certificates. Within ninety (90) calendar days of receipt of a Subsequent Investment Report and assessment by the City of the information contained therein, if the City is able to verify that at least Two Hundred Fifty Million Dollars {$250,000,000.00} of additional investment has been made on the Land (including within the Project Improvements) on or before the date on which the City has paid Company the seventh (7th) annual Program Grant hereunder and as otherwise described in Section 4.6.5, the City will issue Company a certificate stating the amount of additional investment that has been confirmed and the new projected expiration date of the Term of this Agreement (a "Subsequent Investment Certificate"). Construction Cost expenditures for the Project Improvements and expenditures for New Taxable Tangible Personal Property that are made after the date on which the City has paid Company the seventh (7th) annual Program Grant hereunder will not be counted as additional investment for purposes of a Subsequent investment Certificate or extension of the number of Program Grants payable under this Agreement. The issuance of a Subsequent Investment Certificate by the City will not unreasonably be conditioned,withheld or delayed. 5.2. Program Grants. 5.2.1.. Base Grants. Subject to the terms and conditions of this Agreement, provided that both the Real Property Improvement Comn-dtruent, as outlined in Section 4.1,and the Personal Property Commitment,as outlined in Section 4.4, were met, as confirmed in the Certificate of Completion issued by the City in accordance with Section 5.1.1,Company will be entitled to receive fioni the City ten (10) annual Program Grants. The first Program Grant payable hereunder (in other words, the Program Grant payable for Program Year One) will be paid by the City on or before .lune l of Program Year One (as selected by Company in accordance with Section 5.2.1.1). For Program Year One, the amount of the Program Grant payable hereunder will equal the First Program Grant Source Funds available for Program Year One, as set forth in the definition of"First Program Grant Source Funds." Each subsequent Program Grant payable hereunder will Page 20 Economic Development Program Agreement between City of Fort Worth and winner,LLC be paid by the City on or before June 1 of the Program Year in which that Program Grant is due. After Program Year One, for all Program Grants payable hereunder, the amount of each Program Grant will equal the Subsequent Program Grant Source Fonds available for the Program Grant payable in that year, as set forth in the definition of"Subsequent Program Grant Source Funds." 5.2.1..1 Selection of Program Year One for Receipt of First Proram Grant. Company, in its sole discretion, may elect to receive the first Program Grant hereunder in either 2018 or 2019. if company elects to receive the fixst Program Grant in 2018, the Certificate of Completion must be issued by December 31, 2017, If Company wishes to receive its first Program Grant in 2418 (in other words, if Company selects 2018 as Program Year One), Company must provide the City with written notice of Company's election by June 1, 2017; provided, however, that after delivering such notice, Company will have the right at any time until September 34, 2017 to retract this request and, instead; elect for Program Year One to be 2019. if Company (i) does not provide notice to the City in accordance with the preceding sentence or(ii) does provide notice in accordance with the preceding sentence but the Certificate of Completion is not issued by the City on or before December 31, 2017, then Program Year One will be in 2019, meaning that the first Program Grant paid hereunder will be in 2019. Regardless of whether Program Year One is 2018 or 2019, the tax abatement under the Tax Abatement Agreement will be applied to the 2018 tax year and the Program Grant paid in 2019 will exclude an amount equal to the taxes abated under the Tars Abatement Agreement. Selection of 2018 as Program Year One will only mean that the second Program Grant, rather than the first Program Grant, will reflect the exclusion of taxes abated under the Tax Abatement AgreenrenL In addition, regardless of whether Program Year One is 2018 or 2019, (the Term of this Agreement shall end upon payment of the final Program Grant payable hereunder. 5.2.2. Additional Grants for Initial Sruhseguent Investment. If the City issues Company a Subsequent Investment Certificate under Section 5.1.4, Company will be entitled to receive from the City an additional five (5) annual Program Grants, for an aggregate total of fifteen (15)Program Grants. In this event, the amount of each remaining Program Grant payable hereunder will equal the Subsequent Program Grant Source Funds available for the Program Grant payable in that year, as set forth in Page 21 Ewttomic Development Program Agreement hotween City of Pori Worth and Winner,LLC the definition of "Subsequent Program Grant Source Funds." Each Program Grant payable hereunder will be paid by the City on or before June 1 of the Program Year in which the Program Grant is due. 5.2.3. Additional Grams for Further Subsequent Investment. If the City issues Company a second and final Subsequent Investment Certificate under Section 5.1.4, Company will be entitled to receive from the City an additional five (5) annual Program Grants, for an aggregate total of twenty (20) Program Grants. In this event, the amount of each remaining Program Grant payable hereunder will equal the Subsequent Program Grant Source Funds available for the Program Grant payable in that year, as set forth in the definition of"Subsequent Program Grant Source Funds."Each Program. Grant payable Hereunder will be paid by the City on or before June I of the Program Year in which the Program Grant is due. In no event will Company be entitled to more than twenty (20) annual Program Grants hereunder, regardless of the total amount of investment ultimately made on the Land. 5.2.4. Effect of Required Minimum Annual Revenue. If the aggregate of the Project Real Property Tax Revenues; Personal Property Ad Valorem Tax Revenues; Personal Property Sales and Use Tax Revenues; Electricity Franchise Fee Revenues; New Available Tax Revenues; and, only for purposes of each Program Grant payable after the first Program Grant, Data Center Systems Sales and Use Tax Revenues received by the City during any Twelve,-Month Period is less than the Required Minimum Annual Revenue for the Twelve-Month Period ending in the Program Year in which a Program Grant is payable, Company will not receive a Program Grant in such year, but Company will be credited as if it had received a Program Grant in such year for purposes of calculating the number or annual Program Grants payable by the City hereunder, and Company will still be eligible to receive Program Grants in accordance with the terms of this Agreement in future Program Years. 5,2.5. Source of Funds. It is understood and agreed that all Program Grants paid pursuant to this Agreement shall come from currently available general revenues of the City and not directly from Project Real Property Tax Revenues; Personal Property Ad Valorem Tax Revenues; Personal Property Sales and Use Tax Revenues; Electricity Franchise Fee Revenues; Data Center Systems Sales and Use Tax, Revenues (to the extent applicable); or New Available Tax Revenues (to the extent applicable). Company understands and agrees that any revenues of the City other than those dedicated for Page 22 Economic Development Program Agreement between City of Fart Worth and Winner,LLC payment of a given annual Program Grant pursuant to this Agreement may be used by the City for any lawful purpose that the City deems necessary in the carrying out of its business as a home rule municipality and will not serve as the basis for calculating the amount of any f iture Program Grant or other obligation to Company. 5.2.6. Appropriation of Program Grant Funds. The City Council of the City is hereby authorized, without ftmher notice, hearing or other proceedings, to annually budget and appropriate funds to make Program Grant payments. The City Manager or his or her designee shall recommend a line-item for inclusion in the appropriation budget for each fiscal year during the Term of this Agreement which includes sufficient funds for the City to snake the Program Grants due during each Program Year. The City presently intends to appropriate such funds pursuant to the City Manager's recommendation; provided, however, that this is an expression of current intent and shall not be construed as creating a general obligation of the City to appropriate such funds for any fiscal year. The decision to appropriate such funds for a fiscal year shall he made in accordance with the City Council's normal procedures for making decisions and the then current City Council shall have the final responsibility for malting such decision. Notwithstanding the foregoing, in the event that the City does not appropriate funds for a Program Grant payable pursuant to the terms of this Agreement Company skull have the right to pursue all available rights and remedies under the law. Further, City and Company acknowledge that the Program Grants potentially available under this Agreement are a major factor in Company's decision to locate its operations on the Land, and any failure to appropriate funds for a Program Grant would be a substantial detriment to Company. Further, the Term of this Agreement shall automatically be extended by one year for every year in which the City does not appropriate funds for a Program Grant payable pursuant to the terms of this Agreement. 6. DEFAULT,TERM ENATION AND FAILURE BY COMPANY TO MEET_ VARIOUS DEADLINES AND COMMITMENTS. 6.1. Failure to Meet Real Property Improvement Commitment or Personal Property Commitment. Lf the Completion Date does not occur on or before the Completion Deadline, or if Real Property Improvement Commitment, as set forth in Section 4.1, or the Personal Property Improvement Commitment, as set forth in Section 4.4, are not met by the Completion Deadline, the City shall have the right, as its Page 23 Ee000rrac Develapment Program A.greernent between City of Fort Worth and Winner,LLC sole remedy, to terminate this Agreement by providing written notice to Company without fiuthcr obligation to Company hereunder. G.Z. 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 suelt 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 6,2. 63. Violations of City Codes 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 ou 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 goverririental 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 w 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 improveanents owned or operated by Company or an Affiliate or any operations therein on the nand (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 Page 24 F.conomie Development Progasn Agreement brtwuesi City of Port Worth and Winner,LLC 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 6.3, the City shall notify Company in writing and Company shall 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. 6.4_ 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 10, upon the occurrence of any of the following events, the City will have the riglit 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 the Land or improvements located on the Land; (ii) the involuntary conveyance to a third party of the Land or improvements located on the sand; (iii) execution by Company or an Affiliate of any assignment of the Land or improvements located on the Land or deed in lieu of foreclosure to the Land or improvements located on the Land; or(iv) the appointment of a trustee or receiver for the Land or improvements locates] on the Land. 6.5. Failure to Submit Reports. If Company fails to submit any report required by and in accordance with Section 4.6, other than any sales and use tax report required under Section 4.6.3, any electricity franchise fee revenue report required under Section 4.6.5, or any Subsequent Investment Report under Section 4.6.6, 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 inztnediately by providing written notice to Company. 6.6. knowing Employment of Undocumented Workers. Company acknowledges that the City is required to comply with Chapter 2264 of the Texas Government Code, enacted by [Nouse 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, sloes not and will not knowingly employ an undocumenled worker, as that term is defined by Section. 2264.001(4) of dee Pagc 25 Economic Devclopment Program Agrccment between City of Fort Waith and Winner,LLC Texas Government Code In the event that Company, or any branch, division,or department of Company, is convicted of a violation render 8 U.S.0 Section 1324a(l) (relating to federal criminal penalties and injunctions for u pattern or practice of employing unauthorized aliens), subject to any appellate rights that may lawfully he available to and exercised by Company, Company shall repay, within one hundred tiventy (124) calendar days following receipt of written demand from the City, the aggregate amount of Program Grants received by Company hereunder, if any,plus Simple Interest at a rate of four percent (4%) per annum, For the purposes of this Section 6.6, "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 Program Grants received hereunder and is not applied to interest calculated. For example, if the aggregate amount of Program Grants received by Company hereunder is $10,000 and it is required to be paid hack with four percent (4%) interest five years later, the total amount would be$10,000+ [5 x($10,000 x 0.04)1,which is$12,000. This Section 6.6 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 6.6 shall survive the expiration or termination of this Agreement. 6.7. Failure to Meet Construction Cost 5�endinQ Commitrrsrnts; Failure to Meet Em p1gyme3nt Goal. The failure to meet the port Worth Construction Commitment or the M/WBE Construction Commitment will not constitute a default hereunder or provide die City with the right to terminate this Agreement, but,rather, shall only cause the amount of the Local Spending Credit to which Company is entitled, as defined in Section 2, to be reduced in accordance with this Agreement, If Company fails to meet the Employment Goal in any given year, such event will not constitute a default Hereunder and will not cause the amount of the Program Grant that the City is required to pay in the following Program Year to be reduced. 6.8. 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) calendars days following receipt of written notice from the ether 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 care, as determined by both parties mutually and in Page 26 Economic Development Program Agreement between City of Fort Worth and Winner.LLC good faith), the non-breaching; party will have the right to terminate this Agreement immediately by providing written notice to the other as well as all other available rights and remedies under the law. 6.9. "Termination of Tax Abatement Agreement. In the event that the Tax Abatement Agreement is lawfully terminated in accordance with its terms and conditions, this Agreement will automatically terminate on the same date as the effective date of termination under the Tax Abatement Agreement. Expiration of the Tax Abatement Agreement will not cause this Agreement to terminate. 6.10. City's Sole Remedy in the Event of Breach by Company 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 wi]] be the City's right to terminate this Agreement in accordance with its provisions. In addition, except as required by Section 5.6, Company will not be required to repay any Program Grants received prior to the termination of this Agreement. 7. 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 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. 8. INDEMNIFICATION AND RELEASE. COMPANY, AT NO COST TO THE CITY, AGREES TO DEFEND, EVDEMNIFY AND HOLD THE CITY, ITS OFFICERS,AGENTS SER VANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, L,4 0SUITS, ACTIONS, COSTS AND EXPENSES OF ANY HIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDJ7VG ALLEGED DAMAGE OR LOSS TO COMPANY'S BUSEVESS AND ANY RESULTING LOST PROFITS) ANTIIOR PERSONAL INJURY, INCLUDfNG Page 27 Ewnornie Developmcnm Progrbm AgYCCMent between City of Fart Worth and Winner,LLC DEATH, THAT 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, ASSOCL4TES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) 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, THE CITY HEREBY RELEASES AND AGREES TO HOLD HARMLESS COMPANY, ITS OFFICERS, AGENTS, AFFILIATES AND EMPLOYEES, FROM AND AGAINST ANY AND 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 DEA TH, THA T MA Y RELA TE TO, ARISE OUT OF OR BE OCCASIONED B Y (i) THE CITY'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii)ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF THE CITY, .ITS OFFICERS, SERVANTS, AGENTS, ASSOCL4TES, EMPLOYEES CONTRACTORS (OTHER THAN COMPANY) 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. 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: Legal Department 1000 Throckmorton 1 Hacker Way Fart Worth, TX 75102 Menlo Park, CA 94025 with copies to: the City Attorney and Economic Development Department Director at the same address Page 28 Economic Development Program Agreement between City of Fort worth and Winner LLC 1.0. ASSIGNMENT AND SUCCESSORS. 10.1. Affiliates, Company may at any time assign, transfer or otherwise convey any of its tights 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 agrees to assume and be bound by all covenants and obligations of Company under this Agreement. 141.2. Collateral Assignment. In addition, 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 "H", together with suchh other terms and conditions as may be agreed by the City, Company and the financial institution or other lender with respect to such security interest (a "Consent to Collateral Assignment Agreement"). 147.3. Sale/Leaseback. So long as Company or an Affiliate to which this Agreement has been assigned under Section 10.1 remains the ground lessee, or its substantial equivalent, and the Land continues to be used in accordance with the requirements of this Agreement, Company may, upon prior written notice to the City, 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 receipt of Program Grants. 10.4. Other AssiWmeSt. Except as otherwise provided by Sections 117.1, 10.2 and 10.3, Company may not assign, transfer or otherwise convey any of its rights or obligations under Us 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 Page 29 Economic Development Program Agreement between City offort Worth and Winner,LLC 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 tern (I 0) 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 11. 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. 12. COMPLIANCE Wr M 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. 13. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immuriit es. Nothing contained in this Agreement shall be construed to limit the powers of future City Coaticils to carry out their general powers and duties under applicable federal, state and local laws. The parties expressly recognize and acknowledge that the City Couned will make any future decision(s) related to the rights and obligations contained in this Agreement based upon the City Council's normal procedures for making decisions and the then current City Council shall have the final responsibility for making such decision(s). 1.4. ADDITIONAL PROVISIONS. 14.1 Future Land Uses and Tyttina. 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 Page 30 Economic Development Program Agreement between City of Fort Worth and Winner,LLC 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. 14.2 Expedited Permittin During the Tenn, 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_ 15. NO WAVER. The failure of either party to insist upon the performance of any terra or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. 15, 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. 17. SEVERABILITY: CONFLICTING LAW. if any provision of.-tWs 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 ibis 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 21. Page 31 Economic Development Program Agreement between City of Fort Worth and Winner,LL-C IS. CCINMENTLAL 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. 45654 to the extent that it relates to the rights,obligations, documents and/or information related to this Agreement_ 19. 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 16, or, if both parties mutually agree, the dispute may be submitted to binding arbitration in accordance with procedures to which both parties agree. 20, NO THM 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. 21. FORCE NW EURE. 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 Page 32 Economia Development Progr=Agreement between City of Fort Worth and Winner,Ilk 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 Improvement Commitment shall not be deemed to be an event of force maaeure and that this Section 21 shall not operate to extend the Completion Deadline in such an event. 22. DV FERPRETATION. 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. 23. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 24. 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 coaflict 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. 25. COUNTERPARTS. This Agreement may be executed in multiple counterparts,each of which shall be Nage 33 Economic Development Pragmm Agreement between City o Fort Worth and Winner,LLC considered an original,but all of which shall constitute one instrument. EXECUTED as of the last date indicated below: CITY OF FORT WORTH: APPROVED AS TO FORM AND LEGALITY: By: By: Davi oke Peter Vaky City Manager Deputy City Attorney Date: 7 ` �/r m&c: C -27303 E-/ 2/—/SWINNER,LLC, a Delaware limited liability company: Atte bT By: M J. Ka s.e Name: Title: 0,� Date: "° �0 F+ G 0 S OFFICIAL RECORD Page 34 CITY SECRETARY Economic Dcvelopment Program Agreement FT,WORTH,TX between City of Fort Worth and Winner,LLC considered an original.but rill of which shall c,,n-.titute one instnsment. EXECUTED as of the last date indicated b%:lov%: CITY OF FORT WORTH: APPROVED AS TO FORM AND L.EuAL11 Y: By: --- By:-- David Cookc Peter Vak.y City Manager Deputy City .Attorney Date: MR:C: — WTNNER LLC. a DclaAare limited liability company: By: A'unme: 1 +• hs�� Title: U Date: PW-34 OFFICIAL REC'O'RD Economic Devc1opmcot Progrnsn Agrecmeni CrrY SECRETARY betwcm City of Fon Worth and Wisner LLC EXHIBITS "A"—Description and Map Depicting the Land "B"—Form of Project Completion Deport "C"-- Form of Personal Property Report "D"— Form of Annual Sales and Use Tag Report "E"— Form of Annual Employment Report "F"—Form of Annual Electricity Franchise Fee Report "G"— Foram of Subsequent Investment Report Liu"— Form of Consent to Collateral Assignment DESCRIPTION AND MAP DEPICTING THE LAND DESCRU'TION UE 110.71 ACRES BEING a tract of land situated in the F. Cuella Survey, Abstract Number 267,'Tarrant County, `texas and being a portion of two tracts of land describe by Bleed to AIL Investment, i.,P_, recorded in Volume 13588, Page 195 ('rracts l2 and 13),County Records,Tarrant County, Texas,being more particularly described by metes and bounds as follows: BEGINNING at the northeast corner of Lot I0. filock 3, AIIiatnce Gateway North,an addition to tate City of Fort Worth recorded in Instrument Number D208290670, in the south line of Lot 4R, Block 3 Alliance Gateway North,and addition to the City of Fort Worth recorded in Instrument Number D209069793, both of said County Records; TUE NCR S 89°56'01"E,368.25 reel; THENCE S 00004'42"W,540.00 feet; THENCE S 89055'36"E, 602.74 feet; THENCE N 7105I'00"E,445.20 feet; 'r1-IENCE N 62628'25"E,296.66 feet; THENCE N 90000'04"E, 1055.55 feet to the beginning ora curve to the right; THENCE with said curve to the right,an arc d istance o r 68.3 9 feet, through a central angle of 41 a 14'47", having a radius of 95.00 feet, the tong chord which bears S 69°22'3T'F,66.92 feet to the beginning of a curve to the left; THENCE with said curve to the left,an arc distance of 94.33 feet,through a central angle of 38°19'47", having a radius of 141.00 feet, the long chord which bears S 67°55'07"G,92,58 feet; THE NCR S 87005'00"'E, 103.97 feet to the beginning of curve to the right; THENCE with said curve to the:right,an arc distance or200.88 reet, through a central angle of 05155'58", having a radius of 1940.00 feet,the long chord which beaus S 08°09'47"E.200.79 feet; THENCE S 05015'42"E, 237.77 feet; THENCE S 33452'08"W, 95.68 feet to the beginning of a curve to the left; THENCE with said curve to the left,an arc distance of 143.68 feet,through a central angle of 02°29'57", having a radius of 3294,041-+et, the long chord which bears S 61°40'59"W, 143.67 feet to tate beginning of a curve to the left; Pciaton Job No.W iN 15001 Trucking No.Evoist Vrw April 21,2015 U-UOBIWIN15001 LRNS`t\SL110t,I1`GAI MN15001_FX4.DOCX s'agc i orit THENCE with said ourvc to the left,an arc distance ol'955.90 feet, through a central angle of 04°46'16", having a radius of 11479.16 feet, the long chord which bears S 58°08'59"W, 955.62 feet; THENCE S 55°45'15"W,459,78 feet to the beginning of curve to the right; THE, with said curve to the right,an arc:distance of 1237.97 feet, through a central angle of 09°18'33", having a radius of 7619.44 feet,the long chord which bears S 60124'08"W. 1236.61. feet; THENCE S 65044'38"W, 195.64 feet to the beginning oi'a curve to the left, THENCE with said curve to the left, an are distance of 392.71 feet, through a central angle of 05°51'36'', having a radius ol'3839.72 feet, the long chord which hears S 62°07'36"W,392.54 feet; THENCE S 5901 1'47"W, 152.1 1 feet; THENCE S 8901 1'47"W, 80.00 Meet; TFrENC E N 36010'14"W, 86.37 feet; THENCE N 00004'17"W,20.40 lest to the beginning ol'a curve to the left; THENCE with said curve to the left, an arc distance of 167.72 feet, through a central angle of 12°38'40",having a radius of 760.00 feet, the long chord which bears N 06°10'12"W. 167.38 feel to the beginning of a curve to the right; THENCE with said curve to the right,an are distance of 162.11 feet, through a cenlrai angle of 12133'05", having a radius of 740,00 feet,the long chord which beats N 06°12'59"W, 161.78 feet; TAENCF:N 00°03'31"E, 1482.86 feet to lite beginning of a curve to the right; THE, with said curve to the right, an,are distance of 89.82 feet, through a central angle of I 1°58'OT,having a radius of 430.00 tcet,the long chord which bears N 06'02'35"'E, 89.66 feet to the beginning of a curve to the left; ITIENCE with said curve to the left, an arc distance of 102.36 feet, through a central angle of I 1 058'07", 'having a radius of 490.00 feet,the long chord which bears N 06°02'35"E, 102.17 feet; THENCE N 00"01'34"1r,425.60 feet; THENCE S 89°56'45"E, 232.00 feet; 11cloton Job No_W IN 15001 Tracking No.vmSL I"FW April 21.2015 (i:13U1 XWIN15001 ERNSMUtt LEGALMNI5001_t;X4.1)UCX Page 201A MENCE N 00°01'18"E, 115.00 feet to the Point of Beginning and containing 4,822,528 square feet or 110.71 acres of land more or less. "Integral parts of this document'? 1. Description—3 Pages 2. Exhibit "Preliminary, this document shall not be recorded for any purpose and shat I not be used or viewed or relied upon as a final survey document"22 TAC 663.1 SC "Todd A. Bridges, RPLS 4940 Date: 04.21 ?015 Peloion Job No.W 1N 15001 Tracking No.Ernst 1:TW April 21,2015 G.13{7U IN 1500} ERNSAASU MLCCALIW[N 15001_EXCDOCX Page 3 of 4 Ad Gd: V,s L0111L/ WMI. r b la b li A9Va 5i F11-'4-ai%f0 9e$PY8'1 :A®WN09H01 eaPelB'M -AS$NMV,8U WOS;MA 1 1f BOf 05retsre,vYr.ac c�vf ra>,Isrl ale rnxrsiln lyes SNDlsnlos akin N0i013d � In n � u s— t X z 0Li K 5- LL '¢I'e' K 0 a's I �iy� •e�$�m 7 La C O LLI ELLZ cL y�� s cm +' ft CL ..■ W 4 UO �� a � � rra■ D�oY� �y-�da �!— in Y a I V7w6i 'a I I ��d�£. rC1 ✓7v ''��i +�a,R t aoYCS I � �q.It ti�� 1! �� I I fia.$ + ada 1 " Y � +.� �" •mom yP � � 1 o*yuSR _; s-6 ~ +FYI OJCr , up tj �ti Q W o m� 1 Azk ev �� � ,44'b►r �B sr .o r. Ln Ln +r o v, m N 11 n - r ■ 1:2 1h Owl ■ n, n;- :. a ams 0 � 1617 r g;p { iati i� . . . es.■ r a ry Y5•" m , s"n I■ v `3.PC.W.64N� leu a•Jv rKu,l w[v r1a3 tae■,1c.Yv4+.6A Y - W m q LD .ar Q • pay /k O YI I+ P I ,fp•mMm� MOP �q p m �7 �cBC r.�QdG2 �»r ti ne M b tEp? cp �� oV CiJsui . r e e 2 cr aJGS 6w R.R u oa-- rt� N m l � SO LD R tt12 - iY7 EXHMIT B" FORM OF PROJECT COMPLETION REPORT u � V 7 c C r o a ++ vii n ❑ U �, t a aV a � m E 'L O M ° m o O v C Li ❑ m m m Q m w c � a G � � a ° ° f in i^ V� 4A m — o a ai ccr u �ym 2 ❑ C C 4 N ra ❑ E }1 L Ecu 'N d E :v o y ° C � � rt ° ❑ LS �' f O `� E E ° E ° v ra Z O O w v N ~ a Z 2 $ aj Z ❑ `—' C a3 m > ui 4.0 C y Ea C 4FCi @ C u a� W 0 E t o bai w wo j° y C v p E C1 O CG o m u u a C LU M IL CL W cc c; E m v uj CL 0. 0 C9 C~ vy aW Z . m u 0) r GEL C ODN ° w m x u CL y y m r w til+ ro is LWL } CL C 10 ut = N r C EL N 4C1 .Z 0 {'r u U G C- S 3 E c '- ti= } � v o G V W m w u o ° m y r } W m ,: U a E m I- 0 G � E � ,6, o a o u N u 3 W C — d a m ma LL f7 aw E � � � X � W Y L cl C 3 ❑ C C c U y' Q R7 m a - B Q a .- uu C CL r�a+ ro a+ p c O E vF G N +.'Ci C !+� O O r u o E n+ G w U "= w Q e w E -0 a, n c C ❑ "C3 (tl ❑ r� U C d 0 E ` V N v 47 ni e°u U m m .' C 41 ar r o o a tko E 3 ei� p p C] C) O Q Q N a K .w y ° C N [a! [v E p C * v m w u CL tG Z y acs o E u w, g m N ai N N t C y ql 02 3 u N r E a EXHIBIT r,C„ FORM OF PERSONAL PROPERTY REPORT @ � ■ � o � b � � 2 2 � c 9- 4 } C6 r S 0 . 4 \ ¥ 2 § > E ■ 0 2LLJ w 2 a < rc E cr C § 2 / ± LU �: « CL 2 $ CL m / / V w cc [ uj m LL % LL uj 0 \ � \ Q § % Ln 6 r- 2 m & C § ( % d � Etka a / 0 af 2 i � / r _ M § E % 3 / .� ) / FORM OF ANNUAL SALES AND USE TAX REPORT 2 2 a � 2 § ■ ■ 2 § a ® 2 ■ & 2 X22 7 S CL \ t j J _ m } § I � a 2 B z � § 2 , k W- V / $ . ] n a ( m ' ® ° § § a \ \ W $ CL k � § � • F— ) ( k \ \ § � ) 2 ) § « a 2 � $ � � CL 0 / ) rL / \ 2 0 k � \0a k \ } ep ; C k LS k ƒ 7r4 m vt LA �. 00 al k \ t / \ \ . kit . \ k 3a § X35 � ! «- ] 2 � � } ■ §� \ � } � | � | � © k 2 § � 2 ! ) k- - ■ � . & { a' 2 ( § 3 § ) ) § � " ■2 t � qf � � r f; � } \ �dE $ � 13 ExE mrr f rEf t FORM OF ANNUAL EMPLOYMENT RIEPORT CITY OF FORT WORTH -CHAPTER 380 AGREEMENT ANNUAL EMPLOYMENT REPORT Date: Company: EffecOve Bate of Agreement: Redacted Employee Number Number Empiayer Start pate last 3 dl isf-llnfe(Ye!/IWo) 2 � 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 - 19 20 - 21 22 23 24 g2825 26 27 29 30 31 32 _ 33 34 35 36 37 38 39 40 r7otal Totaf EXHIBIT E-CHAPTER 380 AGREEMENT EXHIBIT"P" FORM OF ANNUAL ELECTRICITY FRANCHISE FEE REPORT � ® a % A� ■ & � � 2 a � � . � � t ui LU ixLO Lij I / c � § ƒ ± § k \ 2 % cc 19 t � 4 ° � # X 2j k { { L6 � 4 ai 2 \ \ 2 � § ( � / 2 u 2 & % 2 ' k § \ > m Gii M \ \ f } L o © � ■ ] 2 { [\ § _ � J ) \ % 2 { m \ A / § 7 wrNIm _ Lnei- coaiQr4 » £ ,. � / # ( k 222 in— : k 7\ E7MlBIT"G" FORM OF SUBSEQUENT iNvL,sTMENT RE,POrRT § � ■ CL 0 � a � ■ � $ 2 c 2 0 -0 ILI a 2 � E & a \ m � o £ � a) e { e ' § z 2 o 3 E 0 R ECL z _ 2 d � k � § a, k 2 § / Lu CL 2 tn L LU « � � E / � E § \ U � m w_ 0 M / 2 � AE [ m aj k % � ® § CL ± Ln W n i { q q q 0 G q q 7 m / D � { _ & CL 4- m § k in U w 2 EXHIBIT"U" FORM OF CONSENT TO COLLATERAL ASSIGNMENT EXHIBIT "H" Farre of Consent to Collateral Assignment CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ECONOMIC DEVELOPMENT PROGRAM AGREEMENT BETWEEN CITY OF FORT WORTH AND [CITY SECRETARY CONTRACT NO. This CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ECONONRC DEVELOPRENT PROGRAM AGREEMENT ("Consent") is entered into by and between the CYTTY OF FORT WORTH ("City"), a home rule municipal corporation organized under the laws of the State of Texas; and ("Company"), a and ("Lender"), a RECI'T`ALS 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 Economic Development Program Agreement, dated as of , 2415 (the "EDPA") pursuant to which the City agreed to pay Company certain Program Grants in return for Company's construction of as more specifically outlined in the EDPA (the"Project Improvements"). The EDPA is a public docurnent on file in the City Secretary's Office as City Secretary Contract No B. Section 10 of the EDPA allows Company to assign its rights and obligations under the EDPA to a Financial institution or other lender for purposes or granting a security interest in the Land and/or Project Tmprovernents without the approval of die 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 financial institution or other lender with respect to such security interest. C. Company wishes to obtain a loan from Lender in order to [state reason far loan] (the "Load"). 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 Mist other related clocurnents] (collectively, the "Loan Documents") require that Company assign, transfer and convey to Lender all of Company's rights, interest in and to the EDPA until such time as 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 HDPA (the"Assignment"). D. The City is willing to consent to this Assignment specifically in accordance with the terms and conditions of this Consent. AQUEMENT I. 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 docs 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 EDPA. 3. In the event that the City is required by the EDPA 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, hostage prepaid, or by hand del ivM-. or such other address(es) as Lender may advise City from time to time. 4. If Company fails to cure any default under the EDPA, 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 EDPA to perform any of the obligations or requirements of Company imposed by the EDPA and that the City will accept Lender's performance of the same as if Company had performed such obligations or requirements; provided, bowever, 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. 5. If at any time Lender wishes to exercise any foreclosure rights under the Loan Documents, before taking any foreclosm-e 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 EDPA, Lender understands and agrees that the City shall not be bound to pay Lender any Program Grants pursuant to the EDPA. in addition, Lender understands and agrees that if Lender wishes to sell all or any portion of the Laud or Project Improvements to a third party following Lender's exercise of any foreclosure rights under the Loan Documents, the City shall not be bound to pay such third party any Program Grants pursuant to the EDPA unless Lender and such third party comply with the procedure for assignment set forth in Section IO of the EDPA, 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 EDPA. In the event that payment of any Program Grants are withheld by the City pursuant to this Section 5, any rights to receipt of those Program Grants are hereby waived, but the number and amount(s) of any such Program Grant(s) shall nevertheless be counted for purposes of calculating the Terra of the EDPA, as set forth in Section 3 of the.EDPA. 6. In the event of any conflict between this Consent and the EDPA 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 EDPA and any of the Loan Documents,the EDPA steal I 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 EDPA. 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 EDPA 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 EDPA, 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 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 counietpart hereof, shall not relieve the other signatories from their obligations from their obligations hereunder. EXECUTED as of the last date indicated below: [SIGNATURES DAMTEDIATELY FOLLOW ON NEXT PAGE] CITY OF FORT WORTH: APPROVED AS TO FORM AND LEGALITY: By: By: Name: Name: Assistant City Manager Assistant City Attorney Date: M&C: none required By: Date: DALLAS 1/6540950 .1 57634-1 X5/2812015 City of Fort Worth, Teras Mayor and Council Communication COUNCIL ACTION: Approved on 5/19/2015 DATE: Tuesday, May 19, 20I5 REFERENCE NO.: C-27303 LOG NAME: 17ED EDPAWINNER SUBJECT: Authorize Execution of an Economic Development Program Agreement and Tax Abatement Agreement with Winner, LLC for Development of a Data Center to be Located on Approximately One Hundred Ten Acres of Vacant Land at the Northeast Corner of Alliance Gateway and Park Vista Boulevard (CODICIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council: 1. Authorize the City Manager to execute an Economic Development Program Agreement and a Tax Abatement Agreement with Winner, LLC related to the development of New Data Center at the Northeast Corner of Alliance Gateway and Park Vista.Boulevard; and 2. Find that the terms and conditions of the Economic Development Program Agreement, as outlined below, constitute a custom-designed Economic Development Program, as recommended by the 2415 Comprehensive Plan and authorized by Chapter 380 of the Texas Local Govenunent Code. DISCUSSION: Winner, LLC (Company), an established Delaware LLC registered to do business in the State of Texas, will develop and operate a build to suit Data Center to be located on approximately 110 acres of vacant land at the northeast corner of Alliance Gateway and Park Vista Boulevard. The project will comprise approximately 250,000 square feet of space with a total investment at build-out of$250,000,000.00 by December 31, 2017. In return, the City will pay the Developer up to 10 annual Economic Development Program grants, as authorized by Chapter 380, Texas Local Government Code. The first year's economic development incentive will be a combination 10 percent abatement of ad valorem real property taxes under a Tax Abatement Agreement and a Program.Grant based on the tax revenues outlined below, excluding those amounts abated. The amount of each annual Program Grant will be calculated in accordance with the amount of (i) incremental real property tax revenues from the land that were received by the City for the previous tax year; (h) personal property tax revenues from New Taxable Tangible Personal Property that were received by the City for the previous tax year; (iii)revenues received by the City from a one percent sales tax on taxable business personal property; (iv)revenues received by the City from electricity franchise fees collected from Company and paid to the City by Oncor; (v) revenues received by the City froth new taxes, if any; that are adopted by the City after the effective date and that are not restricted for a specific purpose and that are otherwise unrestricted, and, except for the first Program Grant; (vi) revenues received by the City from a one percent sales tax on any Data Center Systems that are integrated into the real property and are into considered taxable business personal property, less the Required Minimum Annual Revenue retained by the City. The Required Minimum Annual Revenue retained by the City will be established at $2,150,000.00 in year one and will increase two percent each year during the term of the Agreement. The Company may earn an annual reduction up to $150,000.00 in the Required Minimum Annual Revenue if the Company meets the following terms during construction: Expends a minimum of$50,000,000.00 with Fort Worth contractors during construction of the facility(worth a reduction of up to $100,000.00) • Expends a minimum of$25,000,000.00 with Fort Worth MIWSE contractors during construction of the facility(worth a reduction of up to $50,000.00) The actual amount of the reduction will be applied proportionally for each category. The overall project could consist of additional investment of$250,000,000.00 each and the aggregate amounts of the grants will be tied to the amount of total project investment made by the Company. However, the Company is not required to make investment in excess of the $250,000,000.00 real property improvement commitment and the personal property commitment in order to receive the base program grants with a term of 10 annual payments. For each additional $250,000,000.00 invested by the Company before the seventh annual grant payment, the number of annual grant payments will be increased by five, not to exceed a total of 10 additional grant payments or a total of 20 payments for the term. The Company wilI also provide or cause to be provided at least 40 full-time jobs during the term of the Agreement. Staff recommends entering into an Economic Development Program Agreement with the Company for the project. This project is located in COUNCIL DISTRICT 7, Mapsco 9J. FISCAL INFORMATION 1 CERTIFICATION: The Financial Management Services Director certifies that this action will not increase the total appropriations of City funds. FUND CENTERS. TO Fund/Account/Centers FROM Fund/Account/Centers CERTIFICATIONS: Submitted for Ci!y Manager's Office by: ❑avid Cooke (6116) Originating Department Head: Jay Chapa (5804) Additional Information Contact: Robert Stums (212-2663) ATTACHMENTS I. WIN15001 Site-CIOO.A-A OVERALL SITE PLAN.pdf (Public) 2. Winner LLC Site Plan.pdf (Public)