Special Council Meeting

Special Council Meeting Agenda Tuesday, October 28, 2025 at 11:00 AM (or immediately following the Public Safety Committee) Economic Development Center, Council Meeting Room 803 South Main Street, Culpeper Page 1. CALL TO ORDER & ROLL CALL 2. AGENDA APPROVAL Motion to approve or amend the agenda. 3. REPORT & RECOMMENDATION 3.1 R/R Re: Approval of Electric Service Premise Agreement and 2 - 24 Minimum Revenue Agreement Electric Service Premise Agmt 10-17-2025.pdf Minimum Revenue Agreement 10-17-2025.pdf Motion to approve. 4. ADJOURNMENT Adjournment of Meeting Page 1 of 24 Agenda Item Summary Title: R/R Re: Approval of Electric Service Premise Agreement and Minimum Revenue Agreement Background: On October 10, 2023, Council authorized the Town Manager to negotiate electric service agreements and/or release the Town’s right to serve prospective electric utility customers with a power load of at least 5 megawatts to Dominion Energy and/or Rappahannock Electric Cooperative, within the McDevitt Drive Technology Zone. Since that time, staff has negotiated an Electric Service Premise Agreement with Owner and Dominion Energy which transfers the McDevitt Drive Technology Zone service territory to Dominion Energy. In consideration for the Town entering into the Electric Service Premise Agreement with Dominion Energy and to mitigate the impacts to the Town from potential tangible personal property tax exemptions that would lower the Town’s revenue from buildings on the property, the Town and Owner negotiated the Minimum Revenue Agreement. This Agreement will ensure the Town receives a minimum payment of $1,500,000 annually per data center building for a 15-year period starting with the issuance of the first building’s certificate to operate. This amount will increase annually based on the annual increase in the Producer Price Index. The Electric Service Premise Agreement and Minimum Revenue Agreement has been reviewed and approved as to form by the Town and Owner. Although Dominion Energy has reviewed the Electric Service Premise Agreement, approval by Council is requested prior to sending the final version to Dominion Energy for their formal review and approval. Financial Impact: In the event that the tenants of any building are tax-exempt, the financial impact would result in an increase in revenue of $1,500,000 per data center building per year. Currently there are 13 data center buildings proposed within the McDevitt Drive Technology Zone, resulting in an increase in revenue of $19,500,000 per year if all buildings are built and occupied with tax-exempt tenants. Page 2 of 24 Data center buildings occupied by tax paying tenants are anticipated to pay more than the minimum payment in tangible personal property taxes, therefore no additional financial impact is anticipated if the building tenant is taxable. Recommendation: That Council approves the Electric Service Premise Agreement and Minimum Revenue Agreement with changes as may be approved by the Town Manager and Town Attorney to finalize the agreements with the parties and authorize the Mayor and Town Attorney to execute the agreements. Page 3 of 24  [INSERT RECORDATION INSTRUCTIONS HERE] VIRGINIA TOWN OF CULPEPER, CULPEPER COUNTY THIS ELECTRIC SERVICE PREMISE AGREEMENT (this "Agreement") is made and entered into this ______ day of ___________, 2025 (the “Effective Date”), by and between VIRGINIA ELECTRIC AND POWER COMPANY, a Virginia public service corporation located in Richmond, Virginia and doing business in Virginia as Dominion Energy Virginia (“Dominion”) (index as GRANTEE) and the TOWN OF CULPEPER ("TOC"), a Virginia Municipal Corporation (index as GRANTOR) (either Dominion or TOC may be referred to herein as a "Party" and collectively as the "Parties"). SI NVA10 PH1 Holdings, LLC and SI NVA10 PH2 Holdings, LLC (the “Owners”; index as GRANTORS) have endorsed this Agreement solely (i) to acknowledge their consent to it and (ii) for purposes of Section 9 of this Agreement, but the Owners are not otherwise Parties to this Agreement. WITNESSETH WHEREAS, Owners own six unimproved parcels of land located in the Town of Culpeper Virginia and more particularly known as (the “Subject Properties”):  Tax Map # 41-103 being Parcel A containing approximately 58.15210 acres,  Tax Map # 41-104 being Parcel B containing approximately 58.14816 acres,  Tax Map # 41-105 being Parcel C containing approximately 33.389 acres,  Tax Map # 41-105A being Parcel D containing approximately 34.5105 acres,  Tax Map # 51-83D Parcel E containing approximately 12.176 acres, and  Tax Map # 51-83E being Parcel F containing approximately 35.599 acres. WHEREAS, Each of Parcel A and Parcel B was acquired by SI NVA10 PH2 Holdings, LLC as Instrument # 250004125 among the Culpeper County land records and Parcels C, D, E and F were acquired by SI NVA10 PH1 Holdings, LLC as Instrument # 250002188 among the aforesaid land records. WHEREAS, the Subject Properties lie within the service territory of TOC. WHEREAS, Owners desire to construct Data Center(s) (as defined in this Agreement) upon all or some of the Subject Properties, together with associated facilities and equipment such as substations, all at their own expense. WHEREAS, TOC does not have the electric capacity to serve said buildings due to the proposed electric demand being over 5 megawatts. WHEREAS, the Owners have asked TOC to allow Dominion to serve the proposed Data Center buildings lying within TOC service territory. WHEREAS, TOC will allow Dominion to serve the proposed Data Center within its service territory subject to the terms of this Agreement provided that subsequent to initial energization of the Data Center (1) the buildings remain in use as Data Centers and (2) the demand load at the Subject Properties is collectively equal to or greater than five (5) megawatts for four (4) consecutive hours each calendar month (the “Usage Threshold”) except for periods of Excusable Substandard Utilization (as -1- Page 4 of 24 defined below). TOC will serve any additional buildings (non-Data Center) on the Subject Properties unless TOC specifically allows Dominion (as determined by TOC and with the consent of Owners) to serve them by formal written agreement authorized by an affirmative vote of the Town Council of the Town of Culpeper (the “Town Council”). WHEREAS, If a Cessation Event (as defined in this Agreement) occurs, TOC shall provide the electric service to the buildings affected in accordance with the terms set out in this Agreement. WHEREAS, TOC and Dominion desire to set forth their respective service rights and obligations as it relates to the Subject Properties. WHEREAS, Dominion and TOC wish to make available dependable and adequate electric service to the Subject Properties. WHEREAS, Owners wish to guarantee to TOC the minimum revenues set out in the separate Minimum Revenue Agreement as inducement for TOC to enter into this Agreement and thereby give up a portion of TOC’s valuable service territory. NOW, THEREFORE, in consideration of the premises and the mutual benefits flowing to the Parties, Dominion and TOC, intending to be bound, agree as follows: 1. Dominion Service of Data Centers on the Subject Properties. 1.1. Service in Subject Properties. Dominion shall have the exclusive right to serve the Data Center within the Subject Properties until a Cessation Event as described in this Agreement. No other type of improvements erected thereon shall be served by Dominion until execution of an additional Electric Service Premise Agreement between TOC and Dominion (as determined by TOC and with the consent of Owners) with authorization by affirmative vote of the Town Council. As used in this Agreement, “Data Center” means one or more buildings (and all associated buildings, equipment and facilities) used to house or support computer systems and associated components, such as telecommunications and storage systems, together with necessary facilities for staff, utilities, and security in or near the Data Center. A building is not a part of the Data Center, however, if its primary purpose is to, and it generates more than one thousand dollars ($1,000.00) of revenue in any calendar year from business activities other than its use as a Data Center, except that revenue from a cafeteria serving the staff and not available to the general public does not count against this $1,000 maximum. 1.2. Facilities Development. If and to the extent permitted by the State Corporation Commission or other regulatory body with authority over Dominion, as between the Parties, Dominion shall have the exclusive right and duty to install, commission, operate, maintain, repair, replace, upgrade, and remove electrical facilities serving the Data Center on the Subject Properties (“Dominion Facilities”), including substations but not including emergency generators, from the Effective Date of this Agreement, subject to partial or total termination upon the occurrence of a Cessation Event as defined in this Agreement. (a) Dominion will take all commercially reasonable steps to accomplish the initial energizing of the Data Center within 5 years of the Effective Date of this Agreement (the “Initial Energization Target Date”). -2- Page 5 of 24  (b) If initial energization of the Data Center does not occur by the Initial Energization Target Date, TOC may serve written notice on Dominion and the Owners of the start of a cure period of three months (the “Notice to Cure”). Dominion or the Owners or each of Dominion and the Owners may respond to the Notice to Cure with a notice stating the reasons for any delay and the anticipated timeframe for cure (the “Notice of Excusable Delay”). Dominion will be entitled to a delay in the Initial Energization Target Date only for Force Majeure or unreasonable delays caused by TOC. TOC may, by notice to Dominion and the Owners, agree with the grounds and timeframe stated in the Notice of Excusable Delay. (c) Dominion’s failure to achieve initial energization by the Initial Energization Target Date, as extended due to delays excusable under Section 1.2 (b), will entitle the Town to terminate this Agreement by written notice to Dominion and the Owners. 1.3. Use of Dominion Facilities. The Dominion Facilities shall be used solely to serve Owners or their affiliates on the Subject Properties in accordance with the terms hereof or outside of the Subject Properties at the direction of Owners from time to time. The Parties acknowledge and agree that nothing herein, including a Cessation Event, shall prevent, curtail or limit Dominion’s, Owners’ or third parties’ ability to utilize the Dominion Facilities, including interconnection, distribution, or ancillary facilities and their egress and ingress over, through or under the Subject Properties as may be necessary or advisable to serve Owners or their affiliates outside the Subject Properties, as the case may be. Dominion and TOC shall reasonably cooperate with Owners and third parties identified by Owners from time to time to the extent such parties seek to interconnect their respective distribution facilities to the Dominion Facilities and to serve load of Owners or their affiliates outside the Subject Properties. 1.4. Cessation Event. (a) A “Cessation Event” for purposes of this Agreement occurs if, subsequent to initial energization of the Data Center either (1) a use other than Data Center begins on the Subject Properties or (2) except for periods of Excusable Substandard Utilization, demand load for the Subject Properties collectively falls below the Usage Threshold. A Cessation Event shall apply to and affect only those buildings and outdoor areas subject to these circumstances. (b) Upon the occurrence of a Cessation Event, Dominion must immediately notify the Owners and TOC in writing regarding the circumstances of such Cessation Event (a “Cessation Warning”). Owners may, at their election, propose a remediation plan (a “Remediation Plan”) within sixty (60) days of receipt of a Cessation Warning, which Remediation Plan shall be reasonably acceptable to the Parties and which shall state the time period required to enact the Remediation Plan. If Owners remediate the circumstances such that the Cessation Event described in the Cessation Warning is no longer continuing within the timeframe set forth in the Owner’s proposed Remediation Plan, such Cessation Event shall be disregarded for purposes of this Agreement. If Owners fail to remediate the circumstances in accordance with the Remediation Plan, Dominion shall propose a transition plan for the building or buildings to be returned to TOC electrical service (the “Transition Plan”). Failure to timely provide such notice or to -3- Page 6 of 24  timely propose a Transition Plan will constitute a material breach. If Dominion and TOC agree on a Transition Plan within 30 days of Owners’ failure to remediate the circumstances in accordance with the Remediation Plan (or, if Owners elected to not propose a Remediation Plan, within 30 days of the Cessation Event) (as applicable, the “Transition Plan Deadline”), such plan will govern the circumstances of the transition from Dominion to TOC for electrical service of the affected building or buildings. If Dominion and TOC are unable to agree on a Transition Plan by the Transition Plan Deadline, then TOC may set a date and time for the termination of Dominion’s service of the building or buildings subject to the Cessation Event (the “Cessation Notice”). From and after the date and time set in the Transition Plan or Cessation Notice, as the case may be (the “Reversion Time”), TOC will be the sole electric utility provider to the affected building or buildings and any associated facilities. Dominion and TOC may extend the time limits set out in this paragraph by mutual agreement in writing of Dominion’s Manager of Electric Distribution Design (or successor officer) and the TOC’s Town Manager. TOC and Dominion will use commercially reasonable efforts to ensure that any Transition Plan does not interrupt electrical service to the Data Center in accordance with good utility practices. (c) For the avoidance of doubt, no Cessation Event will be deemed to have occurred under Section 1.5(a)(2) during any period of Excusable Substandard Utilization. As used herein, the term “Excusable Substandard Utilization” will refer to any of the following (1) any period of interruption or reduction in billable capacity or delivery of electrical service by the utility Dominion, (2) the occurrence of a Force Majeure Event substantially impairing operations at one or more of the Subject Properties (including, if applicable, any period required to rebuild or remediate any damage caused to the Data Center following such Force Majeure Event), (3) any reasonable period of scheduled maintenance of the Data Center by the Owner or any occupant of the Data Center, (4) any period of re-tenanting following the expiration or earlier termination of a Lease during which the Owner is seeking a new tenant so long as Owner is using commercially reasonable efforts to diligently pursue a new lease with a subsequent tenant, and (5) any period of voluntary reduction in electrical utilization by any occupant of the Subject Properties. As used in this Agreement, a “Force Majeure Event” will refer to any event outside of the control of the Owners or Dominion control including without limitation (1) any order that prohibits operations of a Data Center usage enacted by any governmental entity, regulatory body or court with jurisdiction over the Data Center, (2) lightning, earthquake, fire, storm, hurricane, tornado, flood, washout, explosion or any other act of God, (3) war, act of public enemy, riot, terrorism, civil disturbance, sabotage, or blockade, or (4) public health emergency, pandemic or epidemic. 2. Assignment. Neither Party may assign or transfer any of its rights hereunder. Any purported assignment or transfer will constitute a material breach. For clarity, “Party” as used herein, does not include Owners (who have endorsed this Agreement solely (i) to acknowledge their consent to it and (ii) for purposes of Section 9 of this Agreement). 3. No Third Party Beneficiaries. Except as provided in Sections 1.3 or 9, (i) there are no third party beneficiaries to this Agreement, and (ii) the provisions of this Agreement shall not impart rights enforceable by any person, entity, or organization not a Party to this Agreement. -4- Page 7 of 24 4. Third Party Challenges. Dominion has the sole responsibility to defend against any challenges to the validity of any portion of this Agreement from non-Parties. Dominion will seek to intervene in any lawsuit brought against the TOC challenging the validity of any portion of this Agreement if Dominion is not initially named as a party in that lawsuit. 5. Dispute Resolution. The Parties will meet and confer at least once a year regarding operational and planning issues and may communicate on matters of shared interest informally between annual meetings. Except in the case of a material breach, any dispute or need of interpretation between the Parties involving or arising under this Agreement must be referred, in writing, to the designated representative of each Party, identified in Paragraph 7, entitled Notices, as a condition precedent to filing of any action with a court or administrative agency or the exercise of any self-help right that may exist. Upon receipt of a notice, which shall describe the dispute or issue and designate, by name, title, telephone number, physical address, and e-mail address, the notifying Party's representative responsible for handling the matter, the Party receiving such notice shall, within fifteen (15) days of receipt of the notice, designate, by name, title, telephone number, physical address, and e-mail address, its representative responsible for handling the matter to the notifying Party. The representatives so designated shall attempt to resolve the dispute on an informal basis as promptly as practicable. If the dispute has not been resolved within thirty (30) days after the notifying Party's notice was received by the other Party, or within such other period as the Parties may jointly agree, the Parties may exercise their respective rights and remedies. 6. Existing Agreements. Existing agreements, if any, between the Parties that are not related to the subject matter of this Agreement are not altered or affected by this Agreement. 7. Notices. All notices given pursuant to this Agreement shall be in writing, delivered in person, mailed by certified mail, return receipt requested, or delivery by a nationally operating overnight courier, postage or fees prepaid, addressed to a Party (or Owners) at the address given below, and shall be deemed effective upon the date received, via personal delivery, certified mail, or overnight delivery. The Parties shall be responsible for notifying each other of any change of address. Mailing addresses for Parties are as follows: Town of Culpeper Dominion Energy Virginia Owners: Attn: Town Manager Attn: Manager, Electric SI NVA10 PH1 HOLDINGS, LLC 400 Main Street Distribution Design and SI NVA10 PH2 HOLDINGS, Culpeper, VA 22701 PO Box 26666 LLC Richmond, VA 23261 Attn: Chief Legal and Administrative Officer 1700 Broadway, Suite 1750 Denver, Colorado 80290 8. Miscellaneous. 8.1. This Agreement constitutes the entire agreement and understanding between the Parties and it is understood and agreed that all undertakings, negotiations, representations, promises, inducements, and agreements heretofore entered into between the Parties with respect to the matters contained herein are merged in this Agreement. -5- Page 8 of 24  8.2. This Agreement may not be changed orally, but only by a written document signed by all Parties and Owners. 8.3. No waiver of any of the provisions of this Agreement shall be valid unless in writing and signed by the Party against whom it is sought to be enforced. 8.4. The provisions of this Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. 8.5. The provisions of this Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia. Venue for any legal action under this Agreement will exclusively be in the state courts for the County of Culpeper and may not be removed to the Federal Court System. 8.6. Headings contained in this Agreement are solely for the convenience of the Parties and do not constitute a part of this Agreement and shall not be used to construe or interpret any provisions hereof. 8.7. This Agreement shall be considered for all purposes as having been prepared by the joint efforts of the Parties and shall not be construed against one Party or the other as a result of preparation, substitution, submission, or other event of negotiation. 8.8. The invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect, and, if any such unenforceable provision hereof is enforceable in any part or to any lesser extent, such provision shall be enforceable in all such parts and to the greatest extent permissible under applicable law. 8.9. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument, and the Parties hereto may execute this Agreement by signing any such counterpart. 8.10. Upon signature of this Agreement by the Parties and the Owners, the Parties will fill in the Effective Date on page 1 with the date of the last entity to sign this Agreement. 9. The Owners have signed this Agreement solely for the following purposes: 9.1. Owners, for themselves and their successors and assigns, acknowledge the terms of this Agreement and consent to the allocation of electric service rights and duties made by this Agreement. 9.2. Owners and their affiliates are each a third-party beneficiary to this Agreement and is entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party hereto; provided, however, that Owner and its affiliates may not file suit against TOC to enforce any breach or default on the part of TOC under the terms of this Agreement which is capable of cure by TOC unless and until (1) Owner has provided written notice of such breach or default to TOC and (2) thereafter provided TOC a reasonable cure period of not less than 30 day from the date of such written notice to TOC to remedy such breach or default. -6- Page 9 of 24 9.3. This Agreement shall be binding upon the successors and assigns of each Owner (including, without limitation, in the event of a ground lease, the fee owner of the Subject Property as well as the ground lessee of the Subject Property, who will be deemed a successor in title under this Agreement). 9.4. Owners, for themselves and their successors and assigns, waive any rights, if any, to otherwise designate or choose to receive electric service for the Data Center at the Subject Properties from TOC, except in accordance with this Agreement. 9.5. If the Minimum Revenue Agreement is deemed invalid or unenforceable as determined by a final, unappealable order of a court of competent jurisdiction or TOC is otherwise unable to collect all or part of a payment due thereunder, then Owners will be jointly and severally obligated to fund any payments that would have been due under the Minimum Revenue Agreement under this Agreement as and when such amounts would have become due and payable under the Minimum Revenue Agreement. As used in this section 9.5, the terms “Owner” and “Owners” include any subsequent owner or owners of the Subject Properties, it being the intent of the Parties and the Owners that this obligation will run with the land. -7- Page 10 of 24  IN WITNESS WHEREOF, Dominion and the Town of Culpeper have executed this Agreement as of the day and year first written above. TOWN OF CULPEPER, a Virginia Municipal Corporation By: Name: Title: ATTEST: (Seal) Name: Title: STATE: CITY/COUNTY: I, , a Notary Public of the County and State aforesaid, certify that , as of the TOWN OF CULPEPER, personally appeared before me this day of , 20 , and executed the foregoing instrument on behalf of the said Town. Notary Public Notary Expiration Date: Notary Registration No.: (Affix Notary Seal Above Line) Page 11 of 24  VIRGINIA ELECTRIC AND POWER COMPANY doing business in Virginia as DOMINION ENERGY VIRGINIA By: Name: Edwina Linares Title: Director Electric Distribution Design ATTEST: (Seal) Name: Title: STATE: CITY/COUNTY: I, , a Notary Public of the County and State aforesaid, certify that Edwina Linares , as Director Electric Distribution Design of Virginia Electric and Power Company, doing business in Virginia as Dominion Energy Virginia personally appeared before me this day of , 20 , and executed the foregoing instrument on behalf of the corporation. Notary Public Notary Expiration Date: Notary Registration No.: (Affix Notary Seal Above Line) Page 12 of 24 ************************************************************************************* THE UNDERSIGNED OWNER, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, CONSENT AND AGREE TO THE ALLOCATION OF ELECTRIC SERVICE RIGHTS MADE BY THIS AGREEMENT AND WAIVE ANY RIGHTS, IF ANY, TO OTHERWISE DESIGNATE OR CHOOSE TO RECEIVE ELECTRIC SERVICE FOR THE DATA CENTER AT THE SUBJECT PROPERTIES FROM TOC, EXCEPT IN ACCORDANCE WITH THIS AGREEMENT. SI NVA10 PH1 Holdings, LLC, a Virginia limited liability company By: SI NVA10 PH1 Holdings Parent, LLC Its Manager By: Name: Title: STATE: CITY/COUNTY: I, , a Notary Public of the County and State aforesaid, certify that (Name of Notary Public) , as of (Name of Person Signing) (Title of Person Signing) SI NVA10 PH1 Holdings Parent, LLC, which is the Manager of SI NVA10 PH1 Holdings, LLC, a Virginia limited liability company, personally appeared before me this day of , 20 , and executed the foregoing instrument on behalf of the limited liability companies. Notary Public Notary Expiration Date: Notary Registration No.: (Affix Notary Seal Above Line) Page 13 of 24 ************************************************************************************* THE UNDERSIGNED OWNER, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, CONSENT AND AGREE TO THE ALLOCATION OF ELECTRIC SERVICE RIGHTS MADE BY THIS AGREEMENT AND WAIVE ANY RIGHTS, IF ANY, TO OTHERWISE DESIGNATE OR CHOOSE TO RECEIVE ELECTRIC SERVICE FOR THE DATA CENTER AT THE SUBJECT PROPERTIES FROM TOC, EXCEPT IN ACCORDANCE WITH THIS AGREEMENT. SI NVA10 PH2 Holdings, LLC, a Virginia limited liability company By: SI NVA10 PH2 Holdings Parent, LLC Its Manager By: Name: Title: STATE: CITY/COUNTY: I, , a Notary Public of the County and State aforesaid, certify that (Name of Notary Public) , as of (Name of Person Signing) (Title of Person Signing) SI NVA10 PH2 Holdings Parent, LLC, which is the Manager of SI NVA10 PH2 Holdings, LLC, a Virginia limited liability company, personally appeared before me this day of , 20 , and executed the foregoing instrument on behalf of the limited liability companies. Notary Public Notary Expiration Date: Notary Registration No.: (Affix Notary Seal Above Line) Page 14 of 24 4924-3135-4427, v. 19 Page 15 of 24  MINIMUM REVENUE AGREEMENT THIS MINIMUM REVENUE AGREEMENT (this “Agreement”) is made and entered into this _________ day of __________________, 2025, by and between the TOWN OF CULPEPER, VIRGINIA, a Virginia municipal corporation (“TOC”), and SI NVA10 PH1 HOLDINGS, LLC and SI NVA10 PH2 HOLDINGS, LLC, each a Delaware limited liability company (collectively, the “Owner”). TOC and Owner are occasionally referred to herein collectively as the “Parties”, and individually as a “Party”. RECITALS A. Owner owns certain real property located in the Town of Culpeper, Virginia, identified as Tax Map Parcels 41-103, 41-104, 41-105, 41-105A, 51-83D, and 51-83E (collectively, the “Property”). B. Owner intends to develop the Property with a data center campus (the “Development”) containing data center buildings (each a “Building”). For purposes of this Agreement, a “Building” shall not be interpreted or construed to include any administrative buildings, substations, or ancillary structures servicing or supporting the Development. C. Concurrently and in connection with this Agreement, TOC has entered into that certain Electrical Service Premise Agreement (the “ESP Agreement”) with Virginia Electric and Power Company (the “Service Provider”) to allow Service Provider to extend electrical service to the Development within TOC’s service territory. D. In consideration of TOC entering into the ESP Agreement with Service Provider and to mitigate the impacts to TOC from potential tangible personal property tax exemptions that would lower the TOC’s revenue from Buildings on the Property, Owner now desires to commit itself, and TOC desires to accept Owner’s commitment, to a minimum revenue payment guarantee upon the terms and conditions of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of TOC entering into the ESP Agreement with Service Provider, the mutual benefits to be derived by the Parties from the Development, and for other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows: 1. Conditions to Effectiveness; Term. a. Provided that all of the conditions of this Section 1(a) (the “Conditions to Effectiveness”) are and remain satisfied, Owner shall be required to pay the Minimum Payment (hereinafter defined) to TOC during the Term of this Agreement (hereinafter defined) upon the terms and conditions set forth in Section 2 below. For purposes of this Agreement, a third-party tenant or third-party subtenant that obtains the benefits of the Tax Exemption (hereinafter defined) is referred to as a “Tenant”, Page 16 of 24  and any lease or sublease with a Tenant for all or a portion of a Building is referred to as a “Lease”. i. The Owner or a Tenant has installed tangible personal property as defined in Section 58.1-3506(A)(43) of the Code of Virginia (1950) (as amended) (the “TPP”) within a Building; ii. all or a portion of the TPP is wholly or partially exempt from local tangible personal property taxes (the “Tax Exemption”) pursuant to applicable laws of the Commonwealth of Virginia then in effect (“Applicable Law”), and a Tenant obtains the benefit of the Tax Exemption; In the event one or more of the Conditions to Effectiveness is no longer satisfied during the Term, then Owner may cease making the Minimum Payment to TOC until such time as all Conditions to Effectiveness become satisfied. b. The “Term” of this Agreement shall commence on the date TOC issues the final certificate of occupancy for the first Building to be constructed on the Property (the “Effective Date”) and shall terminate after the fifteenth tax year after the Effective Date, except for any true-up under Section 2.c. of this Agreement for any outstanding tax assessment appeals, collection efforts, or tax payment sharing, which shall remain Owner’s obligation to pay until their final resolution. c. Owner shall use commercially reasonable efforts to ensure that TOC has sufficient accurate, timely, and complete information to calculate the TPP taxation from the Property. d. Owner shall notify TOC of a Lease in writing within ten (10) business days of any Lease effective date by providing either (i) a recorded memorandum of the Lease, or (ii) the following information: (1) the Lease’s effective date, (2) the nature of the Tenant’s business operations, and (3) the term of the Lease. e. If TOC has entered into an incentive agreement or other comparable agreement with a Tenant regarding the payment of tangible personal property taxes, or if Owner or Tenant receives the benefit of any existing incentive relative to TPP taxation, any discounts given by TOC to such Tenant or Owner will be treated as payments to the TOC for purposes of calculating the Minimum Payment as defined in section 2 of this Agreement, on a dollar-for-dollar basis. 2. Minimum Payment. “Minimum Payment” means One Million Five Hundred Thousand and NO/100 Dollars ($1,500,000.00) per Building that, in a given tax year, is actually constructed on the Property and for which TOC has issued a final certificate of occupancy. By way of example only, if during the Term Owner initially constructs three (3) Buildings, Page 17 of 24  as described herein, and the Conditions to Effectiveness are and remain satisfied, then the Minimum Payment is Four Million Five Hundred Thousand and NO/100 Dollars ($4,500,000.00); however, if during the Term Owner constructs an additional Building, as described herein, and the Conditions to Effectiveness are and remain satisfied, then the Minimum Payment increases to Six Million and NO/100 Dollars ($6,000,000.00). The Minimum Payment shall be increased by the annual increase (but not any decrease) in the Producer Price Index by Industry: Electric Power Distribution: Commercial Electric Power for Middle Atlantic Census Division (the “Index”), published by the U.S. Government. If the Index is not published for a year in which a Minimum Payment is due from Owner, then TOC shall reasonably select and apply the most similar government or industry index available. a. Subject to the Conditions to Effectiveness, beginning in the tax year immediately following the tax year in which the Effective Date occurs and annually thereafter during the Term, if the total tangible personal property tax payment actually received and retained by TOC (after final resolution of all tax assessment appeals, collection efforts, and tax payment sharing (“Sharing Agreements”) between TOC and Culpeper County, Virginia (the “County”)) from tangible personal property taxes payable on all tangible personal property installed at or on the Property (the “Actual Payment”) is less than the Minimum Payment, Owner shall pay to TOC the difference between the Minimum Payment and the Actual Payment. Owner shall make such payment within 30 days of being notified by TOC of the amount to be paid. Late payments shall bear interest at 10% per annum. If the Actual Payment exceeds the Minimum Payment in a given tax year, Owner shall not be required to make further payment to TOC during such tax year pursuant to this Agreement. b. The Minimum Payment shall not be adjusted for any changes in tax rates, for the effect of any Sharing Agreements, or for any other reason, except inflation increases pursuant to the Index. c. If as a result of the final resolution of a tax assessment appeal, collection efforts, or tax payment sharing, the Actual Payment for any tax year becomes less than the Minimum Payment, then the TOC may issue a supplemental notice of required payment (the “True-Up”) to the Owner. Such True-Up shall be payable within 30 days of its issuance and a late payment is subject to 10% interest per annum. The TOC may issue a True-Up at any point but not more often than twice a calendar year. Each True-Up may contain supplemental notice of required payment for more than one tax year. 3. Termination & Amendment. Prior to the expiration of the Term, this Agreement may be amended or terminated at any time by mutual written agreement of the Parties. This Agreement may not be amended or terminated orally. 4. Dispute Resolution. Except in the case of a material breach, any dispute or need of interpretation between the Parties involving or arising under this Agreement must be referred, in writing, to the designated representative of each Party, identified in Section 5, Page 18 of 24  entitled Notices, as a condition precedent to the filing of any action with a court of competent jurisdiction or administrative agency. Upon receipt of a notice, which shall describe the dispute or issue and designate, by name, title, telephone number, physical address, and e-mail address, the notifying Party's representative responsible for handling the matter, the Party receiving such notice shall, within fifteen (15) days of receipt of the notice, designate, by name, title, telephone number, physical address, and e-mail address, its representative responsible for handling the matter to the notifying Party. The representatives so designated shall attempt to resolve the dispute on an informal basis as promptly as practicable. If the dispute has not been resolved within sixty (60) days after the notifying Party's notice was received by the other Party, or within such other period as the Parties may jointly agree, the Parties may exercise their respective rights and remedies. 5. Notices. All notices given pursuant to this Agreement shall be in writing, delivered in person, mailed by certified mail, return receipt requested, or delivery by a nationally operating overnight courier, postage or fees prepaid, addressed to a Party at the address given below, and shall be deemed effective upon the date received, via personal delivery, certified mail, or overnight delivery. The Parties shall be responsible for notifying each other of any change of address. Mailing addresses for Parties are as follows: TOC: Owner: Town of Culpeper SI NVA10 PH1 HOLDINGS, Attn: Town Manager LLC and SI NVA10 PH2 400 Main Street HOLDINGS, LLC Culpeper, VA 22701 Attn: Chief Legal and Administrative Officer 1700 Broadway, Suite 1750 Denver, Colorado 80290 6. Assignment. Owner may transfer title to the Property without TOC’s consent. It is the Parties’ intent that Owner’s rights and obligations hereunder will run with the land to bind any future purchaser. To that end, the Parties will execute and the TOC will record the Memorandum of Agreement attached as Exhibit 1 in the land records of Culpeper County. 7. Entire Agreement. This Agreement and the portions of the ESP Agreement binding on Owner constitute the entire agreement and understanding between the Parties and it is understood and agreed that all undertakings, negotiations, representations, promises, inducements, and agreements heretofore entered into between the Parties with respect to the matters contained herein are merged in those Agreements. 8. No Waiver. No waiver of any of the provisions of this Agreement shall be valid unless in writing and signed by the Party against whom it is sought to be enforced. 9. Governing Law & Venue. This Agreement shall be governed by the laws of the Commonwealth of Virginia (without regard to its conflicts of laws principles). Venue for any legal action under this Agreement will exclusively be in the state courts for the County of Culpeper and may not be removed to the Federal Court System. Page 19 of 24 10. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. 11. Headings. Headings contained in this Agreement are solely for the convenience of the Parties and do not constitute a part of this Agreement and shall not be used to construe or interpret any provisions hereof. 12. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument, and the Parties hereto may execute this Agreement by signing any such counterpart. 13. Drafting. This Agreement shall be considered for all purposes as having been prepared by the joint efforts of the Parties and shall not be construed against one Party or the other as a result of preparation, substitution, submission, or other event of negotiation. 14. Severability. The invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect, and, if any such unenforceable provision hereof is enforceable in any part or to any lesser extent, such provision shall be enforceable in all such parts and to the greatest extent permissible under applicable law. [Balance of Page Intentionally Blank; Authorized Signatures to Follow] Page 20 of 24 WITNESS the following signatures and seals: TOC: TOWN OF CULPEPER, a Virginia Municipal Corporation By: Name: Title: ATTEST: (Seal) Name: Title: STATE: CITY/COUNTY: I, , a Notary Public of the County and State aforesaid, certify that , as of the TOWN OF CULPEPER, personally appeared before me this day of , 20 , and executed the foregoing instrument on behalf of the said Town. Notary Public Notary Expiration Date: Notary Registration No.: (Affix Notary Seal Above Line) Page 21 of 24 OWNER: SI NVA10 PH1 Holdings, LLC, a Delaware limited liability company By: Name: Title: Section 1.01 STATE: CITY/COUNTY: I, , a Notary Public of the County and State aforesaid, certify that (Name of Notary Public) , as of (Name of Person Signing) (Title of Person Signing) SI NVA10 PH2 Holdings, LLC, a Delaware limited liability company, personally appeared before me this day of , 20 , and executed the foregoing instrument on behalf of the limited liability companies. Notary Public Notary Expiration Date: Notary Registration No.: (Affix Notary Seal Above Line) Page 22 of 24 OWNER: SI NVA10 PH2 Holdings, LLC, a Delaware limited liability company By: Name: Title: Section 1.02 STATE: CITY/COUNTY: I, , a Notary Public of the County and State aforesaid, certify that (Name of Notary Public) , as of (Name of Person Signing) (Title of Person Signing) SI NVA10 PH2 Holdings, LLC, a Delaware limited liability company, personally appeared before me this day of , 20 , and executed the foregoing instrument on behalf of the limited liability companies. Notary Public Notary Expiration Date: Notary Registration No.: (Affix Notary Seal Above Line) 23824528.8 048239.00023 Page 23 of 24  Exhibit 1 Memorandum of Agreement [to be drafted] Page 24 of 24