*LICENSE: Creative Commons Attribution 4.0 International. Attribute to Timothy Smith.* --- **FLORIDA MODEL INSTRUMENTS FOR DATA CENTER DEVELOPMENT** # THE CONSIDERATION ADEQUACY AND FIT TEST ## For county ground leases and private community benefits agreements. Not for development agreements. *Methodology, version 1.6, Release 2026.4. Citizen-prepared working draft; not legal advice. No licensed attorney has reviewed it, and no county has adopted the instruments. Not yet applied to a real lease or agreement; use it as a structured checklist. It sets no dollar values and no thresholds; brackets mark terms each county or organization sets for itself. It contains no operative language and is not to be attached to or incorporated in any lease, agreement or ordinance.* --- ## SCOPE **Development agreements are not tested here.** A development agreement, and any impact fee, carries only mitigation of impacts measured in the County's studies (Exhibit "B-1" or the impact fee Technical Study), and each item is tested for nexus and proportionality under the In-Kind Eligibility and Characterization Test, Part 5. The agreement's vesting is what the development agreement statute provides, and its term and any campus development envelope are choices for the county board. None is a price, and this test does not treat them as one. **Where the test applies.** Two places where a two-sided bargain is lawful: | Use | Who applies it | The question | |---|---|---| | **A. Ground Lease track** (Part 3) | County staff, County Attorney and Board, with the County acting as **landowner** of its own land | Should the County lease at all and, if it does, is the rent, including any rent in kind, adequate and fairly priced for the leasehold the County gives? | | **B. Community Benefits Agreement** (Part 4) | The **community organization**, with its own board and advisers | Is the private agreement fair to the organization, and can it perform? | **The County has no role in a community benefits agreement.** County staff do not use Part 4, or Side 2 of the Decision Card, to advise a community group. --- ## PART 1. THE IDEA **1.1 A bargain must be real on both sides.** The In-Kind Eligibility and Characterization Test asks whether a benefit can be delivered. This test asks what each side gives, whether the other side actually values it, and whether the exchange is worth what it costs each of them. **1.2 The failure this test detects.** One side gives something that costs it something real, that the other side does not value, and receives little for it. - **On the lease track.** An option to expand onto an adjacent County parcel holds that land off the market for the option period. It is worth a great deal to a tenant that will build in phases and close to nothing to one that will build once. Offered by default, it costs the County rent it could have earned elsewhere. - **On a community benefits agreement.** A computing allocation promised to an organization that cannot screen users, protect resident data or keep the accounts is a benefit on paper. The organization has given its support for something it cannot receive. **1.3 What this test does not do.** It does not value anything in dollars, tell either side what to ask for, or decide what is lawful. Whether a county may lease particular land, and by what process, is a question of state law and local charter. Whether a term of a community benefits agreement is enforceable is a question for the organization's own counsel. **1.4 What it reaches.** | Reaches | Does not reach | |---|---| | Terms between the County as landowner and its tenant under a ground lease of County land | Any development agreement obligation, and the agreement's term, vesting, envelope or review procedures | | The exchange between a developer and a community organization under a private community benefits agreement | The Data Center Standards. Standards are not consideration for anything and are never traded | | | Any permit or approval | | | Conditions on a tax exemption, which are a separate track | --- ## PART 2. WHICH TRACK YOU ARE ON | Track | County's role | What is exchanged | How it is tested | |---|---|---|---| | Data Center Standards | Regulator | Nothing. Safety and environmental standards apply by their own force | Compliance only | | Development agreement | Regulator | Nothing. Mitigation answers measured impacts; vesting is an effect of the statute, and the term and any envelope are Board choices | Nexus and proportionality (In-Kind Eligibility and Characterization Test, Part 5). **Not this test** | | Ground Lease of County-owned land | Landowner | The leasehold and its terms, for rent, including any rent in kind | **Part 3** | | Community benefits agreement | None. Not a party, no role | The developer's commitments, for the organization's support | **Part 4** | **Two rules hold on every track.** 1. **Nothing given on one track buys anything on another.** A lease buys no approval. A community benefits agreement buys no approval. A development agreement buys no community benefit. 2. **County land is never a reason to steer a project.** Pointing a developer toward County land to obtain terms that regulation cannot reach defeats the separation this test depends on. --- ## PART 3. GROUND LEASE TRACK: THE COUNTY AS LANDOWNER *Section references in this Part are to the Model Ground Lease ("Lease") and to Module M3, Civic Compute Allocation ("Module"), which the Lease attaches as Exhibit "G" where the Board takes rent in kind.* ### 3.1 The two sides | The County gives: the leasehold and its terms | The tenant gives: rent and covenants | |---|---| | Possession of the land for the term (Lease Section 3.1) | Base rent at fair market rental value (Lease Sections 4.1 to 4.4) | | Extension options, only if the Board offers them (Lease Section 3.2) | Rent in kind, where the Board elects it: a computing allocation delivered to a Host Institution that already runs computing, with payments to the Access Institutions that serve outside users at a governmental host, never held by the County (Module Sections 1.3(b), 1.5(g), 2.2(c), 2.9) | | Landlord covenants: quiet enjoyment against the County as landlord; stated standards for landlord consents (Lease Sections 2.3, 10.1) | Additional rent, where the Lease provides it, and the payment in lieu of taxes (Lease Articles 4 and 5) | | Lender protections: notice, cure rights, a new-lease covenant, a transfer to the lender at foreclosure without consent (Lease Article 11; Section 10.1(d)) | Operating covenants: the County's standards and the supplemental covenants run as lease covenants for the life of the use (Lease Sections 6.2, 6.3) | | Any reserved land: an expansion option or right of first offer on adjacent County land | Reversion of improvements at the end of the term, backed by decommissioning security (Lease Article 13) | **What the County never gives in a lease.** Any approval or promise of approval; any review timeline on a permit; vesting; a waiver of any standard, hearing, concurrency or plan consistency requirement; a capacity reservation; or any promise about a future regulatory decision. The County signs only as landowner, the approvals stand on their own record, and the County's police, regulatory, taxing, emergency and eminent domain powers are untouched (Lease Section 15.1(a)). ### 3.2 The County's duty as landowner The County holds its land for the public. When it leases, it acts as a landowner and disposes of the leasehold only by the lawful route set out below. Section 125.35 sets no minimum rent, and Florida law makes leasing real property for economic development a public purpose and treats a below-market lease to a business as an incentive, reported each year if over $25,000 (s. 125.045(3), (5)(a)4.; see also Lease Section 3.2(b)). This test takes fair value as its floor as a policy choice (3.8), because full cash rent protects the public and keeps rent in kind additional. Leasing is a choice: the Board may decline to lease at any point before it awards a lease. | Requirement | What it means here | |---|---| | **Process** | s. 125.35, Florida Statutes (a Board determination that leasing is in the county's best interest, and award to the highest and best bidder for the use the Board deems highest and best), an ordinance under s. 125.35(3), or the county's charter procedure (Lease Recital A) | | **No gift** | Art. VII, s. 10, Florida Constitution. The County may not lend its credit to, or become a joint owner with, a private party (Lease Section 15.3) | | **The record** | The Lease's consideration and appraisal record (Lease Exhibit "B," not Exhibit "B-1" of the development agreement): the appraisals of fair market rental value with their written instructions (3.8), the request for information to bidders and lenders, an independent valuation of any rent in kind, the County administration cost (3.8), and the Board's adequacy and public-purpose findings. On this track it takes the place of the impact study | | **Rent delivered to someone other than the County** | The Board's public-purpose finding covers delivery of rent in kind to a Host Institution and, at a governmental host, to Access Institutions for the payments Module Section 1.5(g)(iv) provides (Module Section 2.2(c)). Base rent alone meets fair market rental value in cash; rent in kind is added to it and never credited against it (Module Sections 2.2(b), 2.4). Whether the County may direct rent value to a nonprofit recipient is open (Open Legal Questions, Counsel 21.1) | ### 3.3 The s. 70.45 question The Lease states that its rents are bargained-for consideration for the leasehold and not conditions on any permit (Lease Section 15.1(b)). **Whether s. 70.45, Florida Statutes, can still reach a term in a county's lease of its own land is open (Open Legal Questions, Question 22).** The parties' own statement may not bind a court. Until it is answered, build each rent-in-kind term so it holds under either answer: - tie it to the leasehold and nothing else; no permit, approval or hearing refers to the Lease; - support the whole rent with the fair-value record in 3.2; - keep the regulatory record for the same project separate: separate staff findings, and no permit condition that refers to the Lease. If s. 70.45 does reach lease terms, revisit each rent-in-kind term: either support it as mitigation with its own nexus and proportionality record, or take it out of the Lease. A community organization may still seek the same item in a private agreement on its own; the County takes no part in it (4.1). ### 3.4 Characterize what the County gives *Characterization comes before the criteria, because it decides who will pay for the item and what it costs the County to give.* | Type | What it is on this track | What it costs the County | Who would pay for it | |---|---|---|---| | **I. Tenure** | Term and any extension options the Board offers; quiet enjoyment against the County as landlord; a stated rent reset method; lender protections; stated surrender and decommissioning terms | The land's other uses for the term, and the County's freedom as landlord. Not cash | Bidders with long asset lives and lender financing. The more tightly the Lease bounds the County's discretion as landlord, and the more financeable the leasehold, the more the County gives up, and the more rent that tenure is worth. It never includes regulatory stability, which the County cannot sell | | **II. Responsiveness** | Landlord consents and deliverables on stated timelines and standards: plan approval as landlord, assignment consent, estoppel certificates, a defined due diligence and entitlement period | Staff time, and the landlord discretion given up at each step. No cash | Nearly every tenant and every lender. Give only those the Board decides to give, and price them. **Never includes review of any permit**, which runs on the regulatory record at the ordinary pace | | **III. Reserved land** | An expansion option on adjacent County land; a right of first offer; corridor easements over County land | **Real opportunity cost.** Land held off the market whether or not the option is used | Only tenants whose growth is genuinely phased and uncertain in timing. Never offer it by default; price it and give it a lapse date | ### 3.5 Stop first *If either is true, the item is not something the County can give as landowner, and no criterion is reached.* **S1. The County cannot give it as landowner.** Any approval or promise of one; any regulatory timeline; vesting; a waiver of a standard, hearing, concurrency or plan consistency; subordination of the County's fee; anything that lends the County's credit; disposal outside s. 125.35 or the charter procedure. **S2. It is not the County's to give.** Ask what the tenant's position would be with no lease. It would have no right to this land, so the leasehold itself is real. But it would keep every right it holds under the regulatory track, on this site or any other. Subtract those. What remains is what the County gives. ### 3.6 Can the County give it? (all five must pass) **C1. Fair value; no hidden subsidy.** Cash rent alone, without rent in kind (Module Section 2.4), is at least the fair rental value of everything the County gives, options included. Any abatement, free holding period or below-market option is a subsidy. Price it, make an express Board finding, and evaluate it openly under the law that governs subsidies. **C2. No regulatory discretion; each landlord decision reserved or bound, as the Board chooses.** No lease term requires the County to exercise regulatory judgment in the tenant's favor. For each landlord decision, the Lease states whether it is reserved to the County's discretion or bound by a stated standard, and the fair-value record reflects the choice. Where a County consent is bound by a standard or timeline, the tenant's parallel consents and deliverables carry the same. County silence never counts as consent (Lease Section 15.5). **C3. Survives a change of governing body.** Lease terms bind a later Board as landlord. Nothing depends on annual appropriation, an incumbent officer or goodwill. Ask what happens when a Board hostile to the project takes office: as landlord it is bound; as regulator it is free, and the Lease must say so (C4). **C4. Police power untouched.** The Lease reserves the County's police, regulatory, taxing and emergency powers, and quiet enjoyment runs only against the County as landlord. The standards also run as lease covenants, so they protect neighbors even if the Lease is assigned. **C5. Not a lever on regulation.** The private-land route under the Data Center Standards stays fully usable, and the tenant's permit applications are reviewed like anyone else's. The Lease competes with private land on price and terms, never on regulatory treatment. The County leases because the Board has found leasing to be in its interest as landowner, not to capture terms it could not obtain by regulation. ### 3.7 Does the County recover what the item costs it? (record each; an item that fails gives something no bidder will price, so leave it out or re-price it) **D1. Horizon.** Do the term and any options match the asset's payback period and the lender's loan term? A term well beyond the asset's useful life ties up County land for little added rent. A term shorter than the financing term may make the leasehold unfinanceable, and an unfinanceable lease draws no bidders. Ask lenders before the solicitation how many years of term they need after their loan matures, and take the answer from their term sheets. **D2. Binding constraint.** What actually limits this tenant: land near power, water or fiber; the utility interconnection queue; capital; workforce? If County land solves the constraint, the leasehold may command a premium. If the constraint is the utility queue or capital, the land is worth market rent and no more, and the County has nothing else to sell: it cannot offer help with the queue or with permits. **Ask the tenant**, and check the answer against the appraisal and the solicitation responses. **D3. Landlord discretion given up.** Which landlord powers does the Lease bound (a rent reset, a consent refusal, termination, the timing of reversion), and how tightly? Each bound is something the County gives up, and the fair-value record prices it. **D4. Phasing.** Will the project grow in discrete steps of uncertain timing? **If not, no bidder will pay for reserved land (Type III),** and holding land off the market for it is pure cost to the County. ### 3.8 Adequacy and fair pricing *Fit is not sufficiency. A well-matched lease can still be too thin.* - **Fair value, not rough equivalence.** The record must show at least fair value for everything the County gives. The payment in lieu of taxes is not rent for this purpose: it stands in for the property taxes the land would carry in private hands, and the fair-value computation leaves it out (Lease Section 5.3; Module Section 2.4(c)). - **Price rent in kind independently.** Value it at replacement cost by an independent valuer (Module Schedule 3), never at the tenant's internal cost, a promotional rate, or a nominal or per-unit buyout figure. - **Instruct the appraisers in writing.** Each appraisal of fair market rental value is made on written instructions kept in the record (Lease Section 4.4). They state what is appraised: the fair market rental value of the land, and not only the value of the fee, for the permitted use and for the leasehold the County gives (the years of its term remaining, every option the tenant holds, including any on reserved land, and every right the County reserves), on the Lease's terms other than rent, and subject to its operating standards. Each appraisal values the land with the power and fiber service a new customer could get at the site, leaving out what the tenant paid for or holds; disregards the rent in kind and any improvement the tenant makes; assumes only the entitlements the land would have in private ownership, discloses any assumption about pending approvals as a hypothetical condition, and includes no premium or discount for any County regulatory action (S2, C5). Each also reports, for information only, the value without the power and fiber premise, and the difference (Lease Section 4.4(e)). It derives a land rent rate from stated evidence, never from a capitalization rate on sales of a landlord's interest, and states its assumptions, comparables and adjustments. Each is a full appraisal report, from a firm other than the other appraiser's, checked by an independent review appraiser before it is used, and updated if it is more than a year old. Where the two appraisals differ by more than ten percent, a neutral chooses one side's final figure (Lease Section 4.4(h)). - **Count only what a recipient can hold.** Rent in kind that no recipient can operate is rent on paper. Before the solicitation, confirm that a named Host Institution meeting Module Section 1.11 can hold and operate it, and name a second institution and a restricted account for any period without one (Module Sections 1.9(c), 2.9). - **Count the County's cost.** Record in the fair-value record the County administration cost: the County's estimate of its own annual cost as landlord to monitor and enforce the Lease, stating separately the cost for the rent in kind (receiving and reviewing reports and valuations, notices, certificates and enforcement), and restate it each year (Lease Exhibit "B," Part 1(i); Module Sections 2.8, 2.12(16)). - **Publish the price.** Before setting the minimum lease terms, ask likely bidders and lenders, in a published request for information, about the term, the form of rent reset and the rent in kind (Lease Exhibit "B," Part 1(c); Module Section 2.12(16)). State the minimum lease terms, including any rent in kind, set by the Board before the solicitation, in the solicitation, so every bidder prices the same thing. The competitive award tests the price. - **The ratchet.** Do not trade the published terms down for one bidder after the solicitation. If no qualified bidder accepts them, the Board may revise them and solicit again, openly, or decide not to lease. If a tenant declines rent in kind, re-price what the County gives; do not hand over the same leasehold for less. - **The direction of the risk.** For the County the exposure runs toward too little: a below-value lease is a subsidy, to be priced, found and evaluated openly (C1). A generous tenant creates exposure only where the rent is tied, in fact or in appearance, to a permit (C5, 3.3). --- ## PART 4. COMMUNITY BENEFITS AGREEMENT: THE COMMUNITY ORGANIZATION'S TEST *Section references in this Part are to the Model Community Benefits Agreement ("CBA") and, where stated, to Module M3, Civic Compute Allocation ("Module").* ### 4.1 Who uses this part The community organization that would sign, with its own board and advisers. **The County is not a party, has no role, and does not use this part.** County staff do not refer community groups to a developer, attend or facilitate negotiations, comment on drafts, or describe a community benefits agreement in a staff report. A private agreement stays private only while the County stays out of it (Open Legal Questions, Question 1). ### 4.2 The two sides | The organization gives | The organization gets | |---|---| | A support letter for each listed hearing, stating its own reasons and disclosing its interest (Secs. 3.3, 3.4) | Enforceable commitments: by default an annual payment held by a community foundation fund or the custodian for fixed purposes or, where the organization elects it on the conditions of Sec. 5.2(b), the computing allocation; workforce and training items; and any optional items (Arts. V to VIII) | | Publication of the full agreement on its website before the first hearing (Sec. 4.1) | Security: a letter of credit or surety bond from a rated issuer, held by an independent custodian; no parent guaranty or self-bond (Art. IX) | | Monitoring | A Monitoring Fund: the custodian pays the auditor and technical reviewers directly, but no attorney's fees or litigation costs (Sec. 10.1; Module Sec. 1.21(e)) | | Its name and standing in the community | A recorded memorandum binding later owners and operators; transfer only with written assumption (Secs. 12.1, 12.3) | | Where capacity is elected, delivery of the allocation to a host institution or a qualified operator (Module Secs. 1.10, 3.2, 3.5) | An existing institution as first recipient, with its documented administration cost paid on top and readiness payments after approval (Art. VI; Sec. 5.17; Module Secs. 1.5(f), 3.2), and payment into a restricted account if no recipient accepts (Module Sec. 1.9(c)) | | | The right to withdraw support on a Material Change (Sec. 3.8) | **What the organization never gives:** a covenant not to oppose, a release of any claim, a waiver of its right to comment, appeal, seek enforcement of a standard or sue, or any control over its members and staff (Sec. 3.7). **What the developer values:** a published statement of the commitments each side has made, and the organization's support letters. Support letters carry little evidentiary weight at a quasi-judicial hearing, neither side may ask the County to consider the agreement (Sec. 2.2), and the developer's approvals do not depend on it, so a computing allocation is a negotiated ask that some developers will decline. ### 4.3 Stop first *If either is true, fix the term or do not sign.* **CS1. It draws the County in.** Any term that gives the County, or any other local government that acts on the approvals, a role, seat, custody, consent, enforcement right, or any property, money or capacity (Secs. 2.1, 2.4). Any letter that asks the County to approve, or approve sooner, because of the agreement. Any filing of the agreement in the County's application file. Any County referral, attendance or comment. **CS2. The community already has it.** Ask what the community gets if no agreement is signed: the Data Center Standards, any impact fee, and the development agreement's mitigation apply anyway. Subtract them. A commitment that repeats a standard (a sound limit, the heat rejection servicing area the standards already require) or a mitigation item is not something the developer gives for the organization's support. **This error is easy to make and hard to see.** Subtract also what mainly serves the developer itself: training only for its own positions, items whose main use is its own marketing, and anything open only to its own employees. Count such an item only for what it gives people other than the developer. ### 4.4 Can the organization give it without harming itself? (all five must pass) **O1. No money into the organization's own budget.** Money paid to the organization, its directors or its staff outside the published agreement is a side payment, and it is a default (Secs. 3.2, 4.2, 14.5). Monitoring money goes from the custodian to service providers, not to the organization (Sec. 10.1). **O2. Defined support, not open-ended support.** The organization owes letters for the listed hearings on the project as described in Exhibit A, in words it chooses (Sec. 3.3). Support for a changed project is not owed (Material Change, Sec. 3.8). The organization has no duty to restrain its members (Sec. 3.7). **O3. Survives a change on either side.** The organization's board changes: the agreement was authorized by board resolution and is published (Secs. 3.1, 4.1). The developer sells or restructures: the memorandum is recorded, a transferee assumes in writing, and the security stays in place (Secs. 12.1, 12.3; Art. IX). A recipient fails: the next host institution and the restricted account carry the benefit (Module Secs. 1.9(c), (d), 3.4). **O4. Keeps the organization's voice on standards.** No gag term, release or covenant not to sue. Letters never certify that the project meets a standard (Sec. 3.4(a)), and the duty to give one is suspended if the staff report finds a standard unmet (Sec. 3.5). Safety and environmental standards are never traded. **O5. Keeps the organization's standing.** It stays within federal tax rules on lobbying, political activity and private benefit, and any local lobbyist registration rule (Sec. 3.10; Open Legal Questions, Questions 24 and 25). Directors' financial relationships with the developer are disclosed and published (Sec. 14.5). ### 4.5 Will the commitments hold, and can the community use them? (all four must pass) **P1. Horizon.** Do the commitments last as long as the project, with first delivery by a stated date [__] and security sized for [__] years of the allocation's value or of the payment (Module Secs. 1.4(d), 1.20(a); Sec. 9.1(a))? **P2. The organization's binding constraint.** What limits a community organization is capacity to receive. Can it, or a named recipient, hold and use each benefit (Module Sec. 1.11)? See 4.6. **P3. Developer risk.** What could the developer do that would hurt the community: sell, restructure into a shell, cut capacity, fall into distress, offer a parent guaranty instead of security, or convert the allocation to cash at a low price? Check each against the agreement: rated-issuer security drawable on the recipient's certificate (Art. IX), transfer assumption (Sec. 12.3), distress triggers ("Distress Event," Sec. 1.1), and valuation at replacement cost by an independent valuer, never a nominal buyout (Module Sec. 1.17(c); Module Schedule 3). **P4. Scaling.** Does the allocation scale with installed capacity at each phase (Sec. 5.1(c))? If the developer goes ahead with a Material Change, do the commitments scale to the project as built (Sec. 3.9(b))? ### 4.6 Can the organization perform? | Duty | Who performs | If it cannot | |---|---|---| | Deliver each letter on time, with disclosure, to the official record and not to individual commissioners (Secs. 3.3, 3.4, 3.6) | The organization | Do not sign. A missed letter lets the developer terminate before the commitments begin (Sec. 3.9(a)) | | Publish the agreement before the first hearing (Sec. 4.1(a)) | Both parties | Simple, but a deadline. Calendar it | | Meet the qualifications: Florida not-for-profit in good standing, board resolution, conflict-of-interest policy, published membership and board selection, published funders, no developer funding outside the agreement (Secs. 3.1, 4.2(b)) | The organization | Fix before signing | | Never sign for a corporation that is not yet incorporated (Module Sec. 1.9(f); s. 617.0204, Florida Statutes) | Everyone | A person who acts for a corporation knowing it was not incorporated can be personally liable for what is incurred | | Recipient duties for the allocation: customer of record, acceptable-use policy, export-control screening, resident data protection, the Technical Schedule, insurance, separate accounts, reporting (Module Secs. 1.5, 1.22, 1.23; Module Schedules 1 and 2) | The Recipient: a host institution or a qualified operator | Most community organizations cannot perform these. Name two host institutions, whatever the election, because they are also successors (Exhibit C; Sec. 3.11(c)); the organization keeps its enforcement rights, and the Administration Payment pays the Recipient's costs, with Module Section 1.5(f) paying any above its cap (Secs. 5.17(c), (d)) | | Indemnify the developer for the Recipient's own negligence, up to the insurance limits, while the developer indemnifies the Recipient (Module Sec. 1.8(c)) | The Recipient and the developer | Only a Recipient that carries the insurance should accept. Where it must name the developer as additional insured, the developer carries insurance naming the Recipient (Module Sec. 1.23) | | Monitor and enforce | The organization and the Recipient | The Monitoring Fund pays the auditor and technical reviewers directly and pays no litigation costs; each party bears its own attorney's fees (Secs. 10.1, 11.3(b)) | ### 4.7 Warning signs | Sign | Why it matters | What to do | |---|---|---| | A payment, grant, sponsorship or job for the organization or its people outside the agreement | Side payment; the letters look bought | Refuse. Anything that remains belongs in the published agreement (Sec. 4.2) | | A term limiting what the organization, its members or staff may say | Gag term | Strike it (Sec. 3.7) | | A release of claims, covenant not to sue, or waiver of appeal | Gives away the community's remedies | Strike it. If the organization agrees to any covenant, limit it to the organization itself and to challenges to the listed approvals, and end it on any Material Change | | Any County role, request or review, or any County recipient | Can turn the agreement into a County condition | Stop (CS1) | | A letter template that describes the agreement's benefits or asks the Board to approve because of it | Invites the County to consider the agreement | Use the model letter (Exhibit E) | | A parent guaranty or self-bond in place of security | A guarantor's credit tends to fail with the project | Insist on rated-issuer security (Sec. 9.1(d)) | | A fee clause running only to the organization | May be made reciprocal under s. 57.105(7), Florida Statutes, exposing the organization to the developer's fees | Each side bears its own (Sec. 11.3(b)); the Monitoring Fund pays monitoring, not litigation (Sec. 10.1) | | A nominal buyout of the allocation, or a per-megawatt Community Payment set without regard to what the allocation is worth | Turns the benefit into a token | Value any buyout at replacement cost by an independent valuer (Module Schedule 3); set a per-megawatt rate against that value, or use the greater-of measure (Exhibit B, item 1) | | Commitments stated only as "efforts," with no delivery standard or reporting | Unenforceable in practice | Delivery terms, reported by the receiving institution (Sec. 7.5) | | A side letter or unpublished term | A hidden bargain | Default unless published (Sec. 4.2) | | Support requested for a project that has changed | The organization would be endorsing something else | Withdraw under Sec. 3.8 | ### 4.8 Adequacy and the ratchet - **Rough equivalence: not equal, recognizable.** The organization's letters, publication and name against enforceable, secured, monitored commitments is a bargain. Full support against efforts-only promises with no security is not; it is a donation of the organization's name. - **The ratchet.** If the developer cuts its commitments during negotiation, cut what the organization gives (a narrower letter, or none). After signing, use the Material Change clause. An organization that keeps full support while the commitments shrink has told the next developer its support is free. - **The direction of the risk.** For the organization the exposure runs toward too little. A richer agreement is not itself the risk; value that flows to the organization itself is (O1, O5; Open Legal Questions, Question 24). --- ## PART 5. APPLYING THE TEST **Lease track.** For each term the County would give, record: the track check (Part 2); the characterization (3.4); S1 and S2; C1 to C5; D1 to D4; and, for a failure, the criterion that disposed of it. Then for the package: the fair-value record; the valuation of any rent in kind; the named recipient and second institution; the s. 70.45 posture (3.3); whether anything the County gives is unpriced in the fair-value record; and whether reserved land is offered only where phasing is real. **Community benefits agreement.** For each commitment the developer offers and each thing the organization would give, record: CS1 and CS2; O1 to O5; P1 to P4; the performance table (4.6); and any warning sign (4.7). Then for the package: rough equivalence; the ratchet; and who the Recipient will be on the first delivery date. **Record the declines.** A tenant that declined an expansion option, or a developer that declined to post security, has said something about its plans; keep the record. --- ## PART 6. WHAT THIS TEST DOES NOT SETTLE - **Whether a county may lease particular land,** and by which process (s. 125.35, an ordinance under s. 125.35(3), or a charter procedure). - **Whether s. 70.45 reaches lease terms** (Open Legal Questions, Question 22). - **Whether the County may direct rent in kind to a nonprofit recipient** with the controls the Module gives it (Open Legal Questions, Question 21, Counsel 21.1). - **The dollar value of anything.** The criteria are ordinal. Where a tenant or developer states what a term is worth to it, record the statement as its own and test it against the appraisal or the independent valuation. - **Whether a community benefits agreement is enforceable as drafted:** how it binds a buyer (Open Legal Questions, Question 26), whether an institution identified only by its qualifications can be a beneficiary (Question 33), how much County contact converts it into a County condition (Question 1), and the tax questions (Questions 24, 25). - **Whether a development agreement's mitigation is proportionate.** That is the In-Kind Eligibility and Characterization Test, Part 5, applied to the County's impact study. --- *END OF METHODOLOGY PIECE. This document contains no operative language and is not to be attached to or incorporated into any lease, agreement or ordinance.* --- ## APPENDIX A. CONSIDERATION DECISION CARD *One page. Working aid only; the Consideration Adequacy and Fit Test governs, and where they differ, the test controls. **Not for development agreements:** those are tested for nexus and proportionality only (In-Kind Eligibility and Characterization Test, Part 5). The two sides are used by different people and should not be merged.* ### SIDE 1. THE COUNTY AS LANDOWNER (GROUND LEASE) **STOP FIRST.** | | | |---|---| | **S1** | **You cannot give it as landowner:** approvals, permit timelines, vesting, waivers, capacity reservations, fee subordination, County credit, disposal outside s. 125.35 or the charter procedure. *A promise you cannot keep is worse than none.* | | **S2** | **It is not yours to give.** Subtract whatever the tenant holds under the regulatory track, on this site or any other. | **CHARACTERIZE IT.** | Type | What it is | What it costs you | Who would pay for it | |---|---|---|---| | **I. Tenure** | Term, options, quiet enjoyment as landlord, lender protections | The land's other uses; landlord freedom | Long-lived, financed tenants | | **II. Responsiveness** | Landlord consents and estoppels on stated timelines | Staff time; landlord discretion given up at each step | Nearly everyone. **Never permit review** | | **III. Reserved land** | Expansion option, right of first offer | **Land held off the market** | Only genuinely phased growth. Never by default | **CAN YOU GIVE IT? All five must pass.** **C1** Fair value; any concession is a subsidy, priced and found. **C2** No regulatory discretion; each landlord decision either reserved or bound by a stated standard, as the Board chooses; silence never consents. **C3** Binds a later Board as landlord; nothing depends on appropriation. **C4** Police, regulatory, taxing and emergency powers reserved. **C5** Not a lever on regulation; no steering onto County land. **WILL IT EARN ITS COST? Record each.** **D1** Term and any options match payback and loan term. **D2** Does County land solve the bidder's binding constraint? *Ask, and check against the appraisal and the bids.* **D3** Each bound on your landlord discretion priced; never regulatory promises. **D4** Reserved land only for phased growth. **THEN THE PACKAGE.** Ask bidders and lenders first. Fair-value record: written appraisal instructions, appraisals and the review appraisal, independent valuation of any rent in kind, your own administration cost, Board findings. Appraise only the entitlements the land would have in private ownership; pending approvals only as disclosed hypothetical conditions; no premium or discount for any County regulatory action. Rent in kind at replacement cost, never a nominal buyout, on top of full cash rent and never credited against it. A recipient that can hold it, and a second. Minimum terms published to every bidder; no trading down for one. s. 70.45 is open (Open Legal Questions, Question 22): tie rent to the leasehold only. **Record the declines.** **OUTCOME:** ☐ Include ☐ Include if changed: [__________] ☐ Leave out, criterion: [______] ### SIDE 2. THE COMMUNITY ORGANIZATION (PRIVATE AGREEMENT) *For the organization and its own advisers. The County has no role; County staff do not hand this side to community groups.* **STOP FIRST.** | | | |---|---| | **CS1** | **It draws the County in:** any County role, seat, custody or recipient; any request, review or filing; any letter asking for approval because of the agreement. | | **CS2** | **The community already has it.** Subtract what the standards and the development agreement's mitigation already require, and what mainly serves the developer itself. | **WHAT YOU GIVE AND GET.** *Give:* letters disclosing your interest, publication, monitoring, your name. *Get:* enforceable commitments, rated-issuer security held by a custodian, a Monitoring Fund that pays providers directly, a recorded memorandum, host institutions with administration paid on top, the right to withdraw on a Material Change. *Never give:* a covenant not to oppose, a release, a waiver, control over your members. **CAN YOU GIVE IT? All five must pass.** **O1** No money into your own budget. **O2** Defined letters, not open-ended support. **O3** Survives your board change and their sale. **O4** Keeps your voice on standards: no gag, no release. **O5** Within tax-exempt and lobbying limits (Open Legal Questions, Questions 24, 25). **WILL IT HOLD, AND CAN YOU USE IT? All four must pass.** **P1** Lasts the life of the project; security for [__] years. **P2** A named host institution or qualified operator can perform the Recipient duties, with administration paid on top. **P3** Bounded against sale, shell, distress and nominal buyout. **P4** Scales with each phase and with any Material Change. **WARNING SIGNS.** Side payments · gag terms · releases · any County involvement · parent guaranty · one-way fee clause · nominal buyout · efforts-only commitments · unpublished side terms · signing for an unformed corporation. **THEN THE PACKAGE.** Recognizable, not equal: your letters and name against secured, monitored commitments. The ratchet: commitments cut, support cut. **Record the declines.** **OUTCOME:** ☐ Sign ☐ Sign if changed: [__________] ☐ Decline, reason: [______] --- *Prepared by Timothy Smith · Citizen-prepared working draft · Not legal advice.* *The author is not licensed to practice law and is not affiliated with, and does not write on behalf of, any university, law school, clinic, law firm, or governmental body. No attorney-client relationship is created by this document or by any use of it.*