Appendix A — Two Contracts, One Data Center
The same facility under the company's draft and the community's draft, clause by clause. Every difference is a choice about who bears the risk. Model language for negotiation and public education — not legal advice.
Article 1 — Parties & Counterparty
Industry draft — what they'll offer. This Memorandum is entered into by ProjectCo LLC, a single-purpose limited liability company (the “Company”), and the County. The Company’s affiliates and parent entities are not parties to, and bear no obligation under, this Memorandum. The identity of the Company’s tenants or end users is confidential and need not be disclosed.
Community draft — what to demand. This Agreement is entered into by ProjectCo LLC (the “Company”) and its ultimate parent [Hyperscaler], Inc. (the “Guarantor”), jointly and severally, together with the County and the Community Coalition. As a condition precedent, the Company shall disclose its ultimate beneficial owner and the Facility’s end user. The Guarantor unconditionally and irrevocably guarantees every obligation in this Agreement.
Article 2 — Nature, Term & Incorporation
Industry draft — what they'll offer. This Memorandum of Understanding reflects the parties’ good-faith intentions and is non-binding. It expresses aspirations only and creates no enforceable obligations. It remains in effect for five (5) years and may be amended or terminated by the Company upon notice.
Community draft — what to demand. This is a binding contract, incorporated by reference as an exhibit to the Development Agreement and the conditional-use permit, and enforceable as a condition of every project approval. It runs for the operational life of the Facility, with mandatory public review every five (5) years. No failure to enforce any provision at any time shall waive the right to enforce it.
Article 3 — Energy & Ratepayer Protection
Industry draft — what they'll offer. The Company will work collaboratively with the serving utility regarding its power requirements and supports efforts to manage energy costs for the community. The Company intends to pursue clean energy where commercially reasonable and to be a responsible energy citizen.
Community draft — what to demand. The Company shall bear all incremental costs of generation, transmission, and substations serving the Facility and shall indemnify ratepayers against any such cost recovered from other customers. It shall take service under the State’s large-load tariff (minimum 12-year term; 80% minimum take; exit fees; collateral of $1.5M/MW or Guarantor guaranty), enroll at least 10% of load in demand response and curtail on emergency instruction, procure new zero-carbon supply matched to its load, and support the utility’s protective-tariff filing.
Article 4 — Water
Industry draft — what they'll offer. The Company is committed to responsible water stewardship and to a corporate goal of being “water positive” by 2030. Facility-specific water-use figures are proprietary and shall be treated as confidential commercial information.
Community draft — what to demand. The Company shall meter every water source and publicly report withdrawal, consumption, and discharge monthly, waiving any trade-secret claim over water quantity. Consumption shall not exceed [X] gallons/day at full buildout (liquidated damages of $[Y] per gallon over). In this water-stressed basin, evaporative cooling as primary heat rejection is prohibited; the Facility shall use closed-loop, air, or immersion cooling and source ≥ 50% reclaimed/non-potable water. The Facility curtails first and deepest in every declared drought stage, junior to residential and agricultural use. The Company funds an independent pre-construction hydrogeologic baseline and permanent monitoring; degradation of any well within 1.5 miles after construction begins is presumed the Company’s responsibility and remedied at its expense from a pre-funded escrow.
Article 5 — Environment, Noise & Air
Industry draft — what they'll offer. The Company will design the Facility to comply with all applicable laws and to be a good neighbor, and will address noise and air-quality concerns as appropriate. Backup generators will be operated consistent with applicable permits.
Community draft — what to demand. Noise at the nearest residential property line shall not exceed 50 dBA at night, with a 6 dBA penalty applied to any tonal noise unless disproven by narrowband analysis; compliance verified by continuous, public, independent monitoring with escalating per-violation damages. All on-site generation — backup or primary — shall be permitted as stationary sources with Best Available Control Technology; no “temporary” or “nonroad engine” classification; generator testing is daytime-only with run-hour caps and Tier 4 emissions; fenceline air monitoring (NOx, PM2.5, ozone, VOCs, formaldehyde) is public. Minimum 750-ft setback from residential property lines; dark-sky lighting; maintained vegetative buffers; and a binding construction-management plan.
Article 6 — Fiscal Terms
Industry draft — what they'll offer. The County will support the Company’s applications for available tax exemptions and abatements. The Company anticipates significant tax revenue, capital investment, and economic activity. No clawback or repayment obligation shall apply to any incentive granted.
Community draft — what to demand. An independent, Company-funded net-fiscal study (gross revenue less abatements, infrastructure, public-service, and ratepayer costs) shall precede any incentive vote. Any abatement is capped, carries a firm sunset and periodic review, and is performance-based, with retroactive clawback if investment, operating-year, or job milestones are missed. The Company shall not stack incentives, shall fund full public-service cost recovery (including fire/EMS capability for electrical and battery fires), and shall post a decommissioning bond sized to net removal and restoration cost that survives any change of ownership.
Article 7 — Workforce
Industry draft — what they'll offer. The Project is expected to create approximately [N] jobs and generate substantial economic activity for the region. The Company will encourage its contractors to consider local workers where feasible.
Community draft — what to demand. Construction and permanent jobs shall be reported as separate, defined quantities — construction in job-months, permanent in full-time-equivalents at full buildout — with no “supported” or “induced” figures substituted for headcount. A minimum of [Z] permanent FTEs at full buildout, with wage and benefit floors and clawbacks. Construction shall proceed under a project labor agreement with prevailing wage, [%] local-hire targets verified by residency, and registered-apprentice utilization. The Company shall fund a local community-college training pipeline, prioritize hiring from the most-impacted neighborhoods, and report workforce data publicly with audit rights.
Article 8 — Monitoring & Reporting
Industry draft — what they'll offer. The Company will provide periodic updates to the County and will self-report relevant operating metrics on a reasonable basis, subject to its confidentiality interests.
Community draft — what to demand. Compliance with every standard is verified by independent monitors selected by the Coalition and funded by the Company (and not offset against other benefits), reporting continuously and publicly. An anti-retaliation clause protects any resident, worker, or organization that participates in good-faith monitoring. Company self-reporting does not satisfy any monitoring obligation.
Article 9 — Remedies & Enforcement
Industry draft — what they'll offer. In the event of a disagreement, the parties will meet and confer in good faith. The County’s sole and exclusive remedy shall be termination of this Memorandum. The Company shall not be liable for consequential, punitive, or liquidated damages.
Community draft — what to demand. Each obligation carries a graduated remedy ladder: written notice and cure period, then escalating per-violation liquidated damages, then a draw on the financial assurance, then curtailment or suspension of operations, then permit revocation for the gravest or most persistent breaches. Injunctive relief remains available at all times. All enforcement, audit, and arbitration costs are borne by the Company.
Article 10 — Standing & Dispute Resolution
Industry draft — what they'll offer. Only the signatory parties may enforce this Memorandum; residents and other third parties are not intended beneficiaries. Any dispute shall be resolved by confidential binding arbitration, and the parties waive any right to litigate or to seek injunctive relief.
Community draft — what to demand. Residents and the Coalition are named third-party beneficiaries with independent standing to enforce this Agreement. No provision waives residents’ rights to pursue nuisance, citizen-suit, or other claims, or to seek injunctive relief. Any arbitration shall not preclude injunctive relief necessary to prevent ongoing or irreparable harm, and proceedings affecting public health or the public fisc shall be public.
Article 11 — Transparency
Industry draft — what they'll offer. The parties acknowledge that project information is commercially sensitive. The County shall keep confidential all information the Company designates as such, and County officials shall execute a non-disclosure agreement as a condition of negotiation.
Community draft — what to demand. No public official shall be bound by any non-disclosure agreement surviving the application filing. All project terms, incentive values, and this Agreement shall be posted publicly before any vote. The Company waives any trade-secret claim over water and energy quantities, emissions data, and subsidy values.
Article 12 — Guaranty, Successors & Oversight
Industry draft — what they'll offer. This Memorandum is personal to the Company and shall not bind its successors or assigns. The Company may assign its interests or terminate this Memorandum upon notice to the County.
Community draft — what to demand. The Guarantor’s guaranty is unconditional and continuing. This Agreement binds all successors and assigns; the bonds, standing, and remedies follow the asset through any sale, refinancing, or change of operator. A standing Community Advisory Board — representative of affected residents, labor, public-health, and the most-impacted neighborhoods, and funded for independent legal and technical capacity — meets at least quarterly to monitor and enforce for the life of the Facility.