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HomeMy WebLinkAbout2022-R-10 Resolution Approving Development Agreement for a Data Center ProjectSTATE OF INDIANA BEFORE JEFFERSONVILLE CITY COUNCIL RESOLUTION NO. = 2022 A RESOLUTION APPROVING DEVELOPMENT AGREEMENT FOR A DATA CENTER PROJECT WHEREAS, Blocke, LLC is pursuing a multi -year, large-scale project that may include. multiple phases extending over a period of years with the uses of one or more data centers and/or other facilities, buildings, structures, improvements and appurtenances (collectively, the "Project") within the City; and WHEREAS, in connection with the Project, Blocke, LLC is requesting certain assurances from the City to facilitate the development and operation of the Project; and WHEREAS, the Jeffersonville City Council and City of Jeffersonville have negotiated a Development Agreement with Blocke, LLC, attached as Exhibit A (the "Development Agreement") in order to provide such assurances. NOW THEREFORE, BE IT RESOLVED BY THE JEFFERSONVILLE CITY COUNCIL THAT: 1. It is hereby found that development of the Project will be of benefit to the health or general welfare of the City and its citizens and, thus, the City desires to encourage and aid the Project in order to recruit the Project to the City. 2. The City Council is authorized to approve the Development Agreement and the City is authorized to enter into the Development Agreement. 3. The City Council approves the Development Agreement based upon the terms of this Resolution and as further detailed within the Development Agreement. 4. The City Council approves the Development Agreement in substantially the same form of the attached, subject to necessary and appropriate revisions agreed to by the City and Blocke, LLC. 5. By adopting this Resolution, the City Council authorizes and directs the Mayor and President of the City Council to finalize and execute the Development Agreement in substantially the same form of the attached, subject to necessary and appropriate revisions agreed to by the City and Blocke, LLC. The signature of the Mayor and President of the City Council on the Development Agreement may be an electronic signature. 6. By adopting this Resolution, the City Council has approved the Development Agreement. 7. . If any section, paragraph or provision of this Resolution or the Development Agreement shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Resolution or the Development Agreement. 8. All resolutions and orders or parts thereof, in conflict with the provisions of this Resolution are, to the extent of such conflict, hereby repealed. 9. It is hereby determined that all formal actions of the City Council relating to the adoption of this. Resolution were taken in one or more open meetings of the City Council, that all deliberations of the City Council and of its committees, if any, which resulted in formal action, were in meetings open to the public, and that. all such meetings were convened, held and conducted in compliance with applicable legal requirements, including Ind. Code § 5-14-1.5 et seq., as amended. 10. The Mayor and President of the City Council are authorized to take all such further actions or to execute, attest and deliver such further instruments and documents in the name of the City as the Mayor and President of the City Council believe are necessary or advisable in order fully to consummate the Development Agreement and carry out the purposes of this Resolution. VOTED FOR: VOTED AGAINST: r / l- - J I /1 I W . Passed anA adopted by the City Council for the City of Jeffersonville, Clark County, Indiana on this N day of September, 2022. v Vj u-President n S ATTEST: isa Gi , Clerk Presented to me as Clerk to the Mayor of the City of Jeffersonville on this day of September, 2022. 2022. isa Gi 1, Clerk This Resolutikd is herebi approved and signed by me on thisd� day of September, Mike Mc City of J EXHIBIT A DEVELOPMENT AGREEMENT i f, DEVELOPMENT AGREEMENT HIS DEVEL PMENT AGREEMENT (this "Agreement") is made and entered into as of:. 2022 ("Effective Date") by and between the City of Jeffersonville, a municipall corporation of the State of Indiana (the "City") and Blocke, LLC, a Delaware limited liability company (together with its affiliates and their respective successors and assigns, the "Company"). The City and the Company are sometimes referred to herein collectively as the "Parties" and each individually as a "Party". I I RECITALS A. The Company fha e ri lat tQ ac_y rte / is ne�tat� ..'.l'a''irrg tl�e ra.a o acclui �] certain real property consisting of approximately 619 acres of undeveloped land located in' Clark County, Indiana, as more particularly described on Exhibit A hereto (the "Property"). f• ' B. If the Company acquires the Property, it has proposed to establish on the Property a multi -year, large-scale project that may include multiple phases extending over a period of years with the uses of one or more data centers and/or other facilities used to house, and in which are operated, inaintained.1 and replaced from time to time, computer systems and associated components, such as4elecommunications and storage systems, cooling systems, power supplies and systems for mana'bing property performance (including generators), and equipment -used for the transformation, transmission, distribution and management of electricity (including substations), internef-related equipment, data communications connections, environmental controls and securityi'devices, structures and site features, as well as certain accessory uses or buildings located on the Property and other related or associated uses, buildings or structures such as utility buildings, structures, improvements and appurtenances located on, adjacent or near the Property. that are reasonably related to the data center(s) (collectively, the "Project"). u C. The City finds developments such as the Project to be in the public interest of its citizens and thus desires to encourage and aid the Project in order to recruit the Project to the City. D. The Company .anticipates that the Project will require a substantial, long-term commitment of capital and resources of the Company, as well as the careful integration of public capital facilities, construction schedules and the phasing of the development of the Project, in order for the Project to be successful, both for the Company and the City. The Company is unwilling to risk such capital and ; resources without sufficient assurances from the City that, among other things, (i) the Property has been adequately entitled and zoned to permit the development and operation of the Projept, (ii) all required permits, approvals and entitlements for the Project have been granted, (iii) all,necessary public infrastructure will be available to facilitate. and support the development and operation of the Project, (iv) the City zoning ordinances, including the development standards set forth therein, in existence as of the Effective Date and applicable to the Project will remain unchanged with respect to the Property and the Project and (v) the City is committed to facilitate and assist the Company in the development and operation of the Project. If Use former if RRDA PS;A signed / later if RRDA PSA not yet signed 4373-5199-4673.3 1 . i; i; E. The Parties desire to incorporate their understandings and the City's assurances with respect to the Project into this Agreement. WITNESSETH: NOW, THEREFORE, in consideration of the foregoing recitals and mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Company hereby agree as follows: 1. ,,City Procedures; Actions. The City council and the legislative body of the City ("City Council''), after conducting aduly-noticed public meeting in accordance with all applicable existing laws, rules, regulations, ordinances and orders (collectively, "Applicable Laws"), adopted [ ' esohrtio e on 2022], effective immediately upon adoption, which,'resolution (i) confirmed -the City CouncWs approval of this Agreement and the City Council's ;;finding that the provisions of this Agreement are consistent with the Comprehensive Plan (as hereinafter defined), the Zoning Ordinance (as hereinafter defined) and the Applicable Rules.(as hereinafter defined) and (d) authorized the execution of this Agreement. The City represents a. d warrants to the Company that (a) the City has the full power and authority to enter into this Agreement and to perforrn its obligations hereunder, (b) this Agreement is a valid and binding obligation, enforceable against the City in accordance with the terms hereof and (e) the execution and delivery of this Agreement has been validly authorized by all necessary govermnental or other action and does not conflict with any other agreements entered into by the City. As used herein,;`Comprehensive Plan" shall mean that certain 2035 Comprehensive Plan of Jeffersonville, Indiana or successor Comprehensive Plan and "Zoning Ordinance" shall mean the City of Jeffersonville, W 2021 Unified Development Ordinance. 2. ;';Consideration. The Company has paid to the City the amount of Five Hundred and No/100'Dollars ($500.00) as consideration and inducement to the City to enter into this Agreement, whic} amount shall be non-refundable to the Company. The City believes that the Project will provide economic benefits to the City by stimulating economic growth in the region. The City is entering':into this Agreement to recruit the Project to the City by providing certain benefits and assurances to the Company. The City understands that the Company would not develop the Project in the City without such benefits and assurances, which the Company is reasonably and in good faith relying on to independently evaluate the economic feasibility and commercial reasonability of developing and operating the Project in the City. 3. 'Taxes. i (a) .;;Right to Oppose. The Company shall have the right, to the extent permitted by law, to protest, oppose and vote against any and all Taxes. As used herein, "Taxes" shall mean any and all taxes, special taxes, assessments, levies, impositions, duties, deductions, withholding, charges and fees, including those imposed with respect to any assessment districts, infrastructure financing, community",facilities districts, community taxing districts, maintenance districts or other similar districts. is (b) i New Taxes. City staff shall not during the Term (as defined below) recommend or suppoi i any new Taxes that are applicable solely. to the Project, the Property or the data center industry, or with the express or inferred intent to specifically or inequitably target the Project, the Property or the data center industry. (c) Fee Waiver. The City hereby waives, or shall cause to be waived, any and all impact fees and oiher.fees, including filing, application, review, inspection and permit fees, related to the Property, or the design, development, construction or occupancy of the Project. 4. ;Entitlements.' (a) :Entitlement to Develoy. The City represents to the Company that as of the EffectiveDate: (i) th , City's IR zone ("Existing Zoning") applies to the Property pursuant to the Zoning. Ordinance; (vi) electronic data management businesses, corporate campuses, offices, and research and development uses, upon approval by River Ridge Development Authority ("RRDX ), will be permitted uses under the Existing Zoning; (iii) no Applicable Rule (as hereinafter defined) prohibits, prevents or encumbers the development, completion, operation or occupancy of the Project or any portion thereof in compliance with the use, density, design, height, set back and signage regulations and requirements and other development entitlements that is or will be incorporated in the permits, approvals, reviews or other actions set forth -on Exhibit B hereto (the "Project Approvals'). Upon obtaining the Project Approvals, the Company will have the vested right to develop and operate the Project, including the right to' maintain, remodel, renovate, rehabilitate;irebuild, replenish or replace the Project or any portion thereof (including any, equipment used in operating the Project) throughout the Term for any reason, including in the event of damage, destruction or obsolescence of -the Project or any portion thereof (including any equipment used in operating the Project), subject only to the Applicable Rules. To the extent that the Project or any portion thereof (including any equipment used in operating the Project) is remodeled, renovated; rehabilitated, rebuilt, replenished or replaced, the Company may locate the Project or any portion- thereof (including any equipment used in operating the Project) at any -location within the City, subject only -to the Applicable Rules. As used herein, "Applicable Rules" shall mean all of the:fules, regulations, ordinances and official policies of the City in force and . effect as'of the Effective Date, including the Zoning Ordinance, and the restrictions set forth in the Project Approvals. (b) :Changes in Applicable Rules. No addition to, or modification of, . the Applicable Rules, including any zoning, land use or building regulation, adopted or effective after the Effective Date, shall be applied to the Project or the Property, unless the Company elects in its sole discretion upon notice to the City to have such addition or modification apply to the Project or the Property or anylportion thereof, in which case such addition or modification shall be deemed incorporated into the Applicable Rules with respect to the Project or the Property or such portion thereof, as applicable!The City represents to. the Company that no Applicable Rule conflicts with the provisions of this Agreement. If applicable State or federal laws or regulations prevent or preclude compliance; (with one or more provisions of this Agreement, such provisions of this Agreement shall be i tomatically suspended as necessary to comply with such State or federal II 3 ;i laws or regulations d the Parties shall promptly enter into an.amendment to this Agreement to ensure compliance wi h such laws or regulations. The City shall not add or modify any Applicable Rule, including any III nmg, land use or building regulation, with the express or inferred intent to specifically or inequi l ly target the Project, the Property or the data,center industry, or in a manner that adversely affects' the Project, the Property or the data center industry. City staff shall not support or initiate any zoning application to convert any property adjacent to the Property to residential purposes. ;I (c) IAltemative Enerey. The City acknowledges that the Company is exploring (but shall not be obligated to pursue) options to use alternative energy sources, including solar panels, geothermal cooling and wind energy, to operate the Project or a portion thereof. The City represents to the CoZany that, subject to RRDA's approval, such alternative energy sources are permitted uses on the, Property under the Applicable Rules. (d) , j `Project Approvals. The City represents to the Company that the Project Approvals are the onl permits, approvals, reviews and actions that are required to commence and complete the development of the Project under the Applicable Rules. Nothing herein shall prohibit the Company from -peeking other or further permits, approvals, reviews or other actions in connection with the I roject as may be deemed necessary or desirable by the Company in its sole discretion. The City taken all of the actions with respect to the Project Approvals indicated on Exhibit B and shall process any and all remaining Project Approvals in accordance with the timeframes set forth & Exhibit B. (e) Moratoria or Interim Control Ordinances. No ordinance, resolution, policy or other measure ena ed after the Effective Date that relates directly or indirectly to the Project or to fees associated wi or the timing, sequencing or phasing of the development or construction of the Project shall app. to the Property or this Agreement, unless it is (i) reasonably found by the City to be necessary to the public health and safety of the residents of the City and (ii) generally applicable on a City-yride basis (except to the extent necessary in.the event of a natural disaster). -_-_..-_.:___-...:.:-_expediteprocessmgi any. boards: and: cony connection with the review of any and all design, construction, (g) Company in conned governmental or qua: and (ii) similar docur connection with the connection with obta take final action witl such request; providi rimeframes . and Staffing for Processing and Review. The City shall all Project Approvals (including staff review and processing and actions by issidns) and any other approvals or actions requested by tiie.Company in -oject. The City.shall assign a building inspector. dedicated to the prompt lans and the prompt performance of any and all inspections required for the ;velopment and occupancy of the Project. Ither Approvals. The City shall assist and cooperate in good faith with the a with obtaining any (i) approvals and permits from RRDA and other ;overnmental agencies having jurisdiction over the Property or the Project its and instruments from third parties, as may be necessary or desirable in -velopment or operation of the Project. If City action is required in ng any such approvals, permits, documents or instruments, the City shall ten (10) Business Days (as defined below) following its ;receipt of each that such period shall be tolled for any period during which the City is 4 is awaiting revisions or additional information from the Company that are.necessary to complete the City process. (h) Timine and Rate of Development. The Project may include multiple phases extending over a period of years. The City acknowledges that as of the Effective Date, the Company cannot predict if, when or at what rate the development of the Project will occur, which will depend upon numerous factors, including factors outside of the control of the Company, such as market orientatioril and demand, competition, availability of qualified laborers and. weather conditions. Subject to; the Project Approvals, the Company may develop the Project in such order and at such rate and times as the Company deems appropriate in its sole and absolute discretion, which the City agrees is consistent with the intent, purpose and understanding of the Parties. Nothing in this Agreement shall be construed to require the Company to proceed with developing the Project or any portion thereof. . (i) 10ditional Property. This Agreement is hereby adopted and approved, by the City to apply to any real property within the municipal limits of the City that the Company may from time to time. acquire following the Effective Date (whether in one or more parcels, "Additional Property'). If the Company acquires Additional Property, then automatically upon notice thereof to the !City, this Agreement shall apply with respect to, and the definition of "Property" hereunderi shall include, such Additional Property regardless, of whether the legal description of such Additional Propertyis actually. attached hereto. 5. 1 (Infrastructure. Concurrently herewith, the City's Sanitary Sewer Board and the Company are entering into a Wastewater Agreement (the "Wastewater Agreement"), pursuant to which the City's Sanitary Sewer Board agrees to provide wastewater services to the Project. i . . 6. ,"Mortgages. (a) Mortgages. This Agreement shall not prevent or limit the Company from encumbering the Pro ,Perty or any estate or interest therein, portion thereof, or any improvement . thereon , in any manner whatsoevefby"one or more mortgage, deed of trust, sale and leaseback or other form -of secured;fmancing ("Mortgages").with respect to the construction, development, use. or operation of the Project of "any portion thereof. The City acknowledges that a holder of a Mortgage ("Mortgagee") may require certain interpretations and modifications of this Agreement. Upon the Company's;request from time to time, the City shall meet with the Company and such Mortgagee to negotiate in good faith any such requests for interpretation or modification. The City shallnot withhold its consent to any such requested interpretation or modification.that is consistent with the.intent and puiposes of this Agreement. (b) lMortgagee Not Obligated: A Mortgagee shall not have any obligation or duty to perform pursuant to. the terms set forth in this Agreement.' (c)CMortgagee Notice and Cure Rights. If requested in writing by a Mortgagee, the ity (shall deliver to such Mortgagee any notice of default delivered to the Company hereunder. ,Al Mortgagee shall have the right, but not the obligation, to cure such default 5 within one hundred twenty (120) days after such Mortgagee receives such notice, during which period the City shall not exercise any remedies hereunder. (d) :Disaffirmation. If this Agreement is terminated with respect to a portion of the Property by reason of any default by the Company or as a result of a bankruptcy proceeding of the Company, or if this Agreement is disaffirmed by a receiver, liquidator or trustee for the Company or its property, then the City, if requested by a Mortgagee, shall negotiate in good faith, with the most senior requesting Mortgagee, a new development agreement for the Project as to such portion of the Property. This Agreement does not require any Mortgagee or the City to enter into a new development agreement pursuant to this Section 6(d). 7. Term. The term of this Agreement (the "Term") shall commence on the Effective Date and continue until terminated in accordance herewith. The Company may at any time and for any reason terminate this Agreement automatically upon notice thereof to the City. S. Third Party Transactions. (a) !,:,Estoppel Certificate. At any time, and from time to time, either Party may deliver written noticei;to the other Party requesting that such other Party certify in writing that, to the knowledge of the;;dertifying Party: (i) this Agreement is in full force and effect and a binding obligation of the Parties; (ii) this Agreement has not been amended or modified, or if amended or modified, a description of each such amendment or modification; (iii) the requesting Party is not then in breach of tlisAgreement, or if in breach, a description of each such breach; and iv any other factual matters;: reasonably requested (an "Estoppel Certificate"). The D: Cit, t© canfii ] or its authorized designee may execute, on behalf of the City; any Estoppel Certificate requested;; by the Company that is consistent with this Section 8(a). The City acknowledges that an Estoppel Certificate may be relied upon by transferees or successors in interest to the Company and by Mortgagees holding an interest in the Property. (b) J.No Third Party Beneficiaries. The only parties to this Agreement are the City and..the Company. There are no third party beneficiaries under this Agreement, and except for assignees and 'successors -in -interests to either Party, this Agreement shall not be construed to benefit or be enforceable by any other party whatsoever. Default and Remedies. (a) Generally. In the event of a default of this Agreement, the non -defaulting Party shall provide written notice of the default to the defaulting Party and shall specify a period 'of not less than fiftee%% (15) days during which the defaulting Party shall have the right to cure such default; provided, however, that such cure period may be extended if (i) the default cannot reasonably be cured tivithin the cure period provided in such notice, (ii) the curing Party notifies the non -defaulting Party of such fact by no later than the end of the cure period provided in the notice, (iii) the curing; Party has theretofore been diligent in pursuing the cure and (iv) the curing Party in such extensio'i notice covenants to (and thereafter actually does) diligently pursue the cure to completion. If the'defaulting Party fails to cure the default, the non -defaulting Party may either R i (a) terminate this Agreement and seek damages from the defaulting Party or (b) enforce this Agreement by the remedy of damages or specific performance or both. (b) `{;Mutual Waiver of Consequential Damages. Except in the case of gross negligence, bad faith or willful misconduct, for which claims for consequential damages are expressly reserved by,:tlie Parties, each Party hereby waives all claims against the other Party for any consequential or indirect damages that may arise out of or relate to this Agreement. 10. `Miscellaneous. (a) ;`Force Majeure. If due to the occurrence of a Force Majeure Event (as hereinafter defined) ai Party .is unable to meet any obligation hereunder, then the deadline for performing such obligation shall be automatically extended by one (1) day for each day of such Force Majeure Event'! provided that such Party shall diligently and in good faith act to the extent within its power . to,'" remedy the circumstances of such Force Majeure Event affecting its performance or to complete performance in as timely a manner as is reasonably possible. As used herein, "Force Majetu a Event" shall mean a matter beyond the reasonable control of the Party to perform (excluding ;;unfavorable economic conditions), including: acts' of God, including earthquakes, fire, floods, tornados, hurricanes and extreme weather conditions; acts of terrorism; pandemics, epidemics; and wide -spread public health emergencies (such as, but not limited to, the COVID-19 pandemic); financial and/or banking crises that limit normal extensions of credit; civil disturbances; discovery of hazardous materials; and acts of the United States of America or the State (as hereinafter defined). (b) IiRecitals. The recitals of this Agreement are material terns hereof and shall be binding upon the Parties. (c) "!Notice. All notices and other communications given pursuant to this Agreement shall be ii writing and shall be (i) mailed by first class, United States mail, postage prepaid, certified, with return receipt requested, and addressed to the parties hereto at the address listed below, .(ii) hand delivered to the intended addressee, (iii) sent by nationally recognized overnight courier, orll(iv) or by electronic mail with'a confirming copy being forwarded by a - reputable. overnight courier service within twenty-four (24) hours thereafter to the recipient at the mailing address set forth below. If -notice is given by U.S. Certified Mail, then the notice shall be deemed to have been given on the second Business Day after the date the envelope contauung the notice is deposited in the U.S. Mail, properly addressed to the party,to whom it is directed, postage prepaid. Notice made by personal delivery, overnight delivery or electronic mail shall be deemed given when received:;"The parties hereto may change their addresses by giving notice thereof to the other in conformity with this provision. i City: 7 Company: Blocke, LLC c/o Ice Miller LLP One American Square, Suite 2900 Indianapolis, IN 46282 Attn: Matt DeLaruelle (d) ! (Assignment. The Company may assign its rights and obligations under this Agreement to any (A� 'affiliate controlling, controlled by or, under common control with the such assignment the assigning entity shall be relieved of its covenants, Company (and upon commitments and ob 'garions hereunder) or (H) subsequent owner of all or any. portion of the Property. If the Company sells the Property in its entirety and assigns its rights and obligations hereunder to its successor in title to the Property, then the Company shall be relieved of all of its covenants, commitments and obligations hereunder. The City shall not have the right to assign its rights and obligations under this Agreement to any party. (e) Run with the Land. This Agreement shall run with the Property and any portion thereof as it Ly be subdivided or recombined. The Company may record in the Clark County Recorder's office a memorandum of this Agreement setting forth the existence of this Agreement. M contains the entire or contemporaneous representatives with i this Agreement and e Property from time tc shall be effective to, writing and signed by If any term or provis remainder of this Ag .........:_.affected.thereby, and extent permitted _by - negotiated agreemen respective legal coup may have been prima over the terms of thi, the Parties' collective and positive commur Company. (g) . representation, term, waiving Party and sF Party of any conditic this Agreement shall: Entire Agreement. This Agreement, including all Exhibits attached hereto, ement between the Parties regarding the subject matter hereof; and all prior ;ommunioations or agreements between the Parties or their respective spect to the subject matter herein, whether oral or written, are merged into :inguished. Except for the Company's right to' modify the.de'scription of the ime as set forth in Section 4(i), no agreement, representation or inducement range, modify or terminate this Agreement, in whole or in part, unless in ie Party or Parries to be bound by such change, modification or termination. n of this Agreement or any application thereof shall- be unenforceable, the ement and any other application of any such term or provision shall not be ich provision of this Agreement shall be valid and enforceable to the fullest w::The Parties acknowledge and agree that this Agreement represents a having been drafted, negotiated and agreed upon by the Parties and their .1. Therefore, the Parties agree that the fact that one Party or`;the other Party y responsible for drafting or editing this Agreement shall not, in any dispute agreement, cause this Agreement to be interpreted against such Party. It is atention to encourage, promote and aid the Project so that the opportunities .y impacts of the Project are fully realized by the City, its citizens and the Waivers. Neither Party may waive any condition or breach of any )venant or condition of this Agreement, except in a writing signed by the ;ifically describing the condition or breach maived. The waiver by either or breach of .any representation, term, condition or covenant contained in )t be deemed to be a waiver of any other representation, term, condition or 8 covenant or of any subsequent breach of the same or of any other representation, term, condition or covenant of this Agreement. (h) No Joint Venture.- The relationship of the Parties shall be that of independent contractor'and nothing contained in this Agreement shall be deemed to create any relationship of agenc3joint venture or partnership. (i) lboveming Law. This Agreement is governed -by and shall be construed in accordance with the li" ws of the State of Indiana ("State"). 6) 1 Interpretation. The section headings of this Agreement are for convenience of reference only and shall not be deemed to modify, explain, restrict, alter or affect the meaning or interpretation of any provision hereof. Whenever the singular number is used, and when required by the context, the same includes the plural, and the masculine gender includes the feminine and neuter genders. All references herein to "Section" or "Exhibit" reference the applicable Section of. &s Agreement or Exhibit attached hereto; and all Exhibits attached hereto are incorporated herein and made a part hereof to the same extent as if they were included. in the body of this Agreement. The use in this Agreement of the words "including", "such as" or.words of similar import when used with reference to any general term, statement or matter shall not be construed to limit such term, statement or matter to the specific terms, statements or matters, unless language of limitation; such as "and limited to' or words of similar import are used with reference thereto. Rather, such: I terms shall be deemed to refer to all other items or matters that could reasonably fall within Ithe broadest possible scope of such term, statement or matter. I! (k) may be deemed nE counterparts, each counterparts shall a this Agreement, any effect as an original (1) that is -not a Saturd performance of any or legal holiday and the next Business D :ounterparts. This Agreement may be executed in as many counterparts as isary and convenient, and by the different parties hereto on separate which, when so executed, shall be deemed an original, but all such titute one and the same instrument. A scanned or photocopy signature on tndment hereto, or any notice delivered hereunder will have the same legal Business Days. -As used herein, the term "Business Day" shall mean a day Sunday or -legal holiday in the State. In the event that the date for the venant or obligation under this Agreement shall ffall on a Saturday, Sunday the laws of the State, the date for performance thereof shallbe extended to (m) ,; Effect on Other Vested Rights. This Agreement does not abrogate any rights established or preserved by any Applicable Laws, or by the Wastewater Agreement or by the Property Tax Exemption Agreement between the City and the Company, dated as of the:Effective Date, or by any other�agreement or contract executed by the City and the Company in connection with the Project, or that have vested or may vest pursuant to common law or otherwise. (n) Confidential Information. The Company may designate any trade secrets or confidential business;linformation included in any report or other writing delivered to the City pursuant to or in connection with this Agreement by any method intended to clearly set apart the i 9 i specific material thatithe Company claims to be either its trade secrets or confidential business information that, if released, would give an advantage to competitors or result in unfair competitive injury to the Company (such information, collectively, "Confidential Business Information"). For the avoidance of doubt, all building plans shall be deemed Confidential Business Information. To the extent permied by Applicable Laws, the City shall redact or delete any Confidential Business Informatio from any records it makes available for inspection or of which it provides copies. Within two O Business Days following the City's receipt of any request to inspect or obtain copies of publ c records relating to this Agreement or the Project, the City shall provide written notice of the same to the Company, which notice shall include a copy of such request. The City shall not allow ''inspection or provide copies of any such records until the Company shall have had not less than ten (i10) Business Days (following and excluding the day on which the Company receives such notice) 'to determine whether to contest the right of any party to inspect or receive copies of such records Any such action to enjoin the release of Confidential Business Information may be brought in the'name of the Company or the City. The costs, damages, if any, and attorneys' fees in any proceeding commenced by the Company or at its request by the City to prevent or enjoin the release of ;Confidential Business Information in any public records relating to this Agreement or the Project shall be borne by the Company. (o) i iAttomeys' Fees. If any action is brought by either Party against the other Party, relating to or arising out of this Agreement or the enforcement hereof, the prevailing Party shall be entitled to recover from the other Party the reasonable attorneys' fees, costs and expenses incurred in connection with the prosecution or defense of such action, including the costs and fees 'incurred in connectiO with the enforcement or collection of any judgment obtained in any such proceeding. A prevailing Party shall include, without limitation, a Party obtaining substantially the relief sought, whether by compromise, settlement or otherwise. The provisions of this Section 10 o shall survive the termination of this Agreement and the entry of any judgment and shall not merge, or be deemedto have merged, into any judgment. (p) 'Further Assurances. Upon the request of the other Party, each Party agrees to (i) furnish to the other Party such requested information, (ii) execute and deliver to .the other Party such requested documents and. (iii) do such other acts and things reasonably required for the - ... -.. purpose of carrying out the intent of this Agreement. (q) . `:iWaiver of Jury Trial. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMANDt1 ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (In IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO. EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUS�l OF ACTION SHALL BE DECIDED BY. A COURT TRIAL WITHOUT A JURY AND THAT EITHER PARTY MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS EVIDENCE OF SUCH WAIVER. (r) Anti -Corruption Compliance. In connection with the negotiation and performance -of this :;Agreement,- City, on behalf of itself and its agents and representatives, 10 represents, warrants, and covenants that it has complied with and that it has not engaged in and will refrain from offering, promising, paying, giving, authorizing the paying or giving of, soliciting, or accepting or agreeing to accept Anything of Value, directly or -indirectly to or from (i) any Government fficial to (x) influence any act or decision of a Government Official in their official capacity, (y) nduce a Government Official to use their influence with a Government Authority, or (z) otherwise secure any improper advantage; or (ii) any person or entity in any manner that would constitute bribery or an illegalkickback, or would otherwise violate any applicable anti -corruption law, rule, or regulation. "Anything of Value" includes, but is not limited to, money, cash or a cash equivalent (including "grease", "expediting" or facilitation payments), discounts,1' rebates, gifts, meals, entertainment, hospitality, charitable contributions, sponsorships, .use of materials, facilities or equipment,'transportation, lodging, or promise of employment. "Government Authority" means any multinational, national, regional, or local government, governmental or public department, court, commission, board, bureau, agency, ministry, university, political party, 'or other governmental instrumentality, public international organization, or subdivision, agent, commission, board; or authority of any of the foregoing. "Government Official" means any official or employee (or relative or household member thereof), or agent of a Government Authority; members of royal families; or candidates for political office. If the,;City becomes aware of any violation or suspected violation of this Section 1�, it must provide! prompt written notice to the Company and setting forth the relevant facts and circumstances. City will, consistent with Applicable Laws; cooperate with the Company in good faith to reviev�+i any suspected violations of this Section 10(r), including by providing, reasonable access to relevant documentation. (s) Ethical Business Practices: No Procurement Process. In connection with the negotiation and performance of this Agreement, the City represents and warrants that it has complied and covenants that it shall comply with all Applicable Rules and Applicable Laws, including without limitation anti -corruption laws, rules, and regulations, and that it has`used and shall use only legitimate and ethical business practices. The performance of any obligations under this Agreement does not require the Company, to submit any bid or otherwise participate in any procurement process-pf the City, or to undertake any other obligations required by procurement laws and regulations of the City. - (t) ; Severability.7'If any portion of this Agreement is held to be unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected and shall remain in full foce and effect. [Signatures appear on following page] 11 CITY: I City of Jefferson', le Indiana, a municipal cX p•af n of the By: lu -✓1--= ,' 11 Name: f1`l i li O Title: '../ ATTEST: i By: Name: Title: COMP Blocke; By: Name: Title: of Indiana npany [Signature Page to Develop►nent Agreement] EXHIBIT A PROPERTY Being a.portion of pr#'perry as owned by River Ridge Development Authority as recorded in Instrumenf #200513078 and being remainders of parcels previously conveyed by River Ridge Development Authority and being known as Parcels G-2: Instrument 201408525, G-3: Instrument 201408523, G-4: Instrument 201408522, and G-5: Instrument #'s 201604599 & 201518436. Also being a part of Survey Numbers 26, 27, 38 and 39 of the Illinois Grant, Clark County, IN, and being further described as follows: All iron pins set (IPS) this survey are five eighths inch diameter rebar thirty inches long with plastic identification caps marked "R. Neuhaus LS 20900162". . Beginning at a set iron pin (IPS) along the eastern right-of-way of International Drive, a 100-foot private right of way approximately 1350' southwest from its intersection with River Ridge Parkway and being S00°5913"W 2,438.07' from the north corner of Grant 39; thence creating new lines with the subject property the following calls S72°13'19"E, 137.56' to a IPS; thence S49011'16"E,1400.00' to an IPS; thence N40148'44"E, 150.00 to a IPS; thence S49°1Pl. VE, 1976.75' to an IPS injj h. a grant line and being S54°35'26"W, 409.28' from the east comer -of Grant 39, thence S49'11'16"E, 3943.34' to an IPS and point being S71016'38"W, 533.10' from a found iron pin in the eastern line of the subject property; thence S54°30'23"W, 2274.02'- to a found 5/8" rebar; thence S35°42'47"E, 445.97' to a IPS being N77°41'40"W, '1530.19' from the east corner of Grant ;thence S53°57'08"W, 300.00' to an IPS; thence S35°43'28,"E, 331.9l' to an IPS; thence S489 11111W, 1934.14' to an IPS; thence N53°57'29"W, 48.54'to a IPS in the line of a Mitigation &Conservation Easement as recorded in Instrument 201324005; thence with the line of the mitigation easement the following calls, N6005112611E, 45.29' to a 5/;8"iron.pin found "PETITT'; thence N2305847"E, 103.83' to a IPS thence.N34125'04"E, 234.55' to a IPS; 1104.12' to a IPS; thence NO3°49'09"W, 90.90' to a 5/8"iron pin found thence N44°14'18"E, "PETTIT"• thence N '2°52'35"E 141-.45' to a IPS; thence N56°4l'42"E ' 149.05' to'a IPS; thence N46°30'53"E,-60.18'19 a ]PS thence N43°51'33"E, 77.80' fo-a 5/8"iron pin found "PETITT'; thence.N35025'34:'EJ26.54' to a IPS; thence N36°26'19"W,114.30 to a IPS; thence S39°48'17"W, 87.42':lto a 5/8"iron-pin found "PETTTT'; thence S4598'14"W, 154.80'to a IPS; thence S53°30'44"W 201.47' to a 5/8"iron pin found "PETITT"; thence S45003'36"W,101.18' to a 5/8"iron pin found'11PETTTT"; thence S38°22'58"W, 333.15' to a IPS; thence S31035'02"W, 69.70' to a 5/8"iron pm found "PETTTT' ; thence S43°42'52"W, 184.25' to a IPS; thence N30907'20"W, 221.88' to a 5/8"iron pin found"PETTTT'; thence N43136'30"E, 136.18' to a IPS; thence N29003'20"E, 77.84' to a IPS; thence N26044'09"E, 97.98' to a IPS; thence N28°18' 15"E, 200.09' to a IPS; thence N25°28'33 "E, 44.11' to a IPS; thence N21 °56'26"E, 30.06' to a IPS; thence N17°48'267E, 56.16to a 5/8"iron pin found "PETI TT' ; thence N00°54'22"E, 68.12' to a 5/811iron pin found "PETITT'; thence N35°03'30"E,193.50' to a IPS; thence N30°0630"E, 48.33' to a IPS; thence N13 °05' 12"E, 120.02' to a IPS; thence N05°5427"E, 132.43' to a IPS; thence N07°21'35"W 88.15' to a IPS; thence N36°25'41 "W, 160.49' to a IPS; thence S43°31'45"W, 27.62' to a IPS; thence SO4°2N23"W, 65.34' to a IPS; thence S03°32'20"W, A-1 142.18' to a 5/8"iron pn "PET'T; thence S 13°57'51 "W, 95.03' to a IPS; thence. S 16°00'20"W, 120.91'1 to a IPS; thence S 16°17'31 "W, 9.97to a 5/8"iron pin found "PETTIT' ; thence S23°07'05"W,103.51' to a 5/8"iron pin found "PETTTT' ; thence S25°36'08"W; 102.78' to a IPS; thence S25°00'02"W, 47.82' to a 5/8"iron pin found "PETTIT"; thence S 15°40'42"W, 127.88' to a 5/8"iron pin found "PETTTT'; thence S27°00'39"W, 77.55' to a 5/8"iron pin found "PETITT"; thence S31°42'1OW, 249.151to a IPS; thence leaving the Mitigation & Conservation Easement and continuing to create new lines with the subject property the following calls, N23049'43"W, 400.69' to a IPS; thence N05°37'58"E, 203.71' -to a IPS; thence N01 °44'57"W, 45.88' to a IPS; thence N75142'27"W, 120.86' to a IPS set in the line of the Mitigation & Conservation Easement; thence with the line of the. Mitigation & Conservation Easement for the following calls, N01 °.1 T03 "E, 123.29' to a 5/8"iron pin found "PETTTT' ; thence 1401 °43'56"W, 409.20' to a IPS; thence N5200712311E, 8.04' to a 5%89ron pin found "PET -ITT"; thence N37041'28"W, 412.77, to a IPS; thence S38113'54"W, 29.45' to a 5/8"iron pin found "PETM ; thence S14°51'34"W, 55.44'to a 5/8"ironpinfound "PETITT'; thence S09102'17"E,126.00'to a IPS; thence S13°58'01"E, 135.851to a IPS; thence S16°50'46"E,156.95'to a IPS; thence S09°36'29"W, 172.55'to a IPS; thence S09031'50"W, 125.31' to a IPS; thence leaving the line of the Mitigation & Conservation Easement and creating new lines with the subject property the . following calls, S36°54'l71'W, 209.82' to a IPS; thence S70114'42"W, 54.95' to a IPS; thence S50017'50"W, 73.79' to a IPS; thence N39°42'10"W,143.85' to a IPS; thence N68°21'00"W, 528.18' to an IPS said point being N14058'08"W, 2818.57' from the south corner of Grant 26; thence N39006'49"W,12809.77' to an IPS, said point being N53°08'39"E, 810.79' from the west comer of Grant 26 in the centerline of New Castle Road, and being in the east right of way of International Drive; thence with International Drive for the following calls, NI2°28'23"W, 228.77' to a IPS; thence N12024'24"W, 612.18' to a IPS; thence N12°19'16"W, 264.35' to a IPS; thence along a curve to the right having a radius of 1,353.96', with an arc length of 489.42'. with a chord of NO2*01'35!1W, 486.76' to a IPS; thence. -along a compound curve to the right having a radius of.1,750.00, with an arc length of307.20', with a chord ofN12 *44'57"E, 306.80'to a IPS; thence N17146141 "E, 2,850.76' to an IPS being the point of beginning, and containing 619.48 Acres or 26,984,615.1 square feet as surveyed by Robert Neuhaus LS #20900162, of Qk4, Inc I A-2 is I J; EXHIBIT B PROJECT APPROVALS 1. City Council Resolution No. [ adopted on [ 2022], approving this Agreement 2. City Council Resolution No. [ adopted on [ 2022], approving the Wastewater Agreement between the City's Sanitary Sewer Board and the Company 3. City Council Resolution No. [ adopted on [ 2018], approving the Property T,ax Exemption Agreement between the City and the Company .�. is ether Ia�.i.e� Avni;ouals