*LICENSE: Creative Commons Attribution 4.0 International. Attribute to Timothy Smith.* --- **FLORIDA MODEL INSTRUMENTS FOR DATA CENTER DEVELOPMENT** # THE IN-KIND ELIGIBILITY AND CHARACTERIZATION TEST ## A Screening Method for Candidate In-Kind Items *Methodology, version 1.10, Release 2026.4. Citizen-prepared working draft; not legal advice. No county has applied this test or adopted the instruments, and no licensed attorney has reviewed the test or the instruments. Cross-references are by instrument name and section.* *This is a screening method. It contains no operative language, covenant, rate or dollar figure, and it is not to be attached to or incorporated in any instrument. County staff and counsel use it for a development agreement, for any impact fee credit and for any County lease. A community organization may use it on its own for a private agreement.* *Parts 1 to 7 are structural criteria. Part 8 states the Florida application and ends with a table of the statutes that bar particular items in particular homes (8.9). Part 9 lists the questions a drafter in another jurisdiction answers before relying on Parts 1 to 7.* ## PART 1: WHAT THE TEST DOES, AND WHERE IT SITS **1.1 The question.** The test decides **whether a candidate in-kind item belongs in an instrument at all, and if so, in which one.** The order is eligibility, then characterization, then valuation. An item that fails the test does not reach valuation. An item that passes is characterized under Part 2 before anyone prices it, because the three characterizations are priced differently. **1.2 Any candidate.** The test applies to any candidate, including one no list anticipates, and the record of its application states why each item is in or out. **1.3 The public question.** For each item, the record answers in public *why this item, and why this much*, and shows which candidates failed (6.2). It does so without disclosing any trade secret, naming each input withheld and the exemption that applies (s. 119.0715, Florida Statutes). **1.4 What the test does not do.** It does not establish that an item is lawful in a given jurisdiction, that a recipient wants it, that a grantor will agree to it, or that it can be valued. Those are separate showings. The test only excludes. **1.5 What the test reaches.** The test screens **in-kind items**: things of value delivered to the public side in a form other than money. It does not screen: - **Performance standards that limit an externality** (sound, water, lighting, setbacks). They have no recipient, and they belong in the Data Center Standards. A performance covenant in a development agreement that is stricter than the Data Center Standards, or on a subject they do not address (Model Host Community Development Agreement, Exhibit "S"), is not one of the Data Center Standards; Part 5 governs it. - **Priced services on preferential terms.** Screen the concession, not the service. The concession is the market price less the price charged, for the committed quantity and term, at present value at a disclosed rate. Where 3.6 covers the service, first confirm that the grantor may lawfully sell it. A concession is never required by ordinance or rule (s. 125.0103(1)(a), Florida Statutes); it may be a term of a County lease or of a private agreement. - **Protective machinery** such as escrows, payment assurance and decommissioning security, which secures other obligations and confers no benefit. **In-kind mitigation is screened.** This means capital or equipment delivered or provided to a public body to answer a measured impact, such as emergency power equipment at a County water treatment plant. Parts 2 to 4 decide whether it can be delivered and held; Part 5 decides whether it is proportionate. Do not apply Parts 2 to 4 to a commitment of another kind. **1.6 Where an item goes.** There are four homes. Performance standards go to the Data Center Standards and are not screened here (1.5). Each in-kind item that survives Parts 2 to 4 goes to one of the other three homes, or nowhere. Each home has its own legal test: | Home | What belongs there | The test that governs it | | --- | --- | --- | | Data Center Standards (Exhibit A to the Model Data Center Standards Ordinance) | Performance standards that protect public health, safety and the environment | The police power. Never traded for anything | | Development agreement (Model Host Community Development Agreement), or an impact fee (Model Data Center Public Safety and Emergency Power Impact Fee Ordinance) | Mitigation of an impact the County's impact study measures, including an operating covenant stricter than the Data Center Standards, or on a subject they do not address (Exhibit "S" of the agreement), where the study measures a site-specific impact the Standards leave unanswered | Nexus and proportionality, item by item and as a package (Part 5) | | Lease of the County's own land (Model Ground Lease, with Module M3 for rent in kind) | Rent, including rent in kind, that the County bargains for as landowner; on airport property under federal grant obligations, cash rent only (8.7) | The Consideration Adequacy and Fit Test | | Private community benefits agreement (Model Community Benefits Agreement) | Community benefits that are not mitigation, between the developer and a community organization; the County is not a party | No County test. The community organization may use the Consideration Adequacy and Fit Test to judge whether the agreement is fair to it | An item that passes Parts 2 to 4 but answers no measured impact leaves the County's process, except on County land other than airport property, where the County may seek it as rent (8.7). A community organization may pursue the item in a private agreement on its own; the County does not refer, recommend or track it. The development agreement's vesting is an effect of the statute that authorizes it, and its term and any development envelope are choices for the county board. None is a price for anything in the agreement. Nothing in this test is a reason to steer a project onto County land. ## PART 2: THE THREE CHARACTERIZATIONS Every in-kind item is one of three things. The characterization determines the valuation method, the enforcement mechanism, the durability analysis and the degree of exaction exposure. **2.1 Type A: Recurring allocation.** A defined share of ongoing output, delivered continuously over the life of the use. It requires a recipient with continuing operational capacity. Its burden value is the grantor's documented marginal cost of the share plus its forgone sales of equivalent capacity, net of any revenue or avoided cost the share produces for the grantor (3.1, 5.4). Its recipient value, where rent in kind, a conversion to money or the sizing of security needs one, is replacement cost: the price the recipient would pay an unaffiliated provider for equivalent committed use for the same period, set by an independent valuer (2.4), as Module M3, Schedule 3, paragraph V-2, measures it. **2.2 Type B: Capital oversizing, dedication or contribution.** The grantor builds or supplies a capital item, either by oversizing something it requires in any event or by furnishing a facility or equipment for a public body, and the excess or the whole passes to public use. One-time. It requires no operator on the public side beyond ordinary asset maintenance. **It is the characterization closest to a traditional exaction.** Required as mitigation, each type carries exposure under s. 70.45, Florida Statutes, even inside an agreement the developer signs, and Types A and C are the harder to prove proportionate (8.1). In a development agreement, capacity beyond the project's measured share is paid for at incremental cost, refunded from later connections or credited against a fee (s. 163.31801(5)(a)), and never required free (Model Host Community Development Agreement, Section 4.5). Work on public property follows Florida public construction law (8.9). **2.3 Type C: Contingent standby right.** A reserved right that costs the grantor little, beyond holding the capacity ready, until a defined triggering condition occurs, typically a declared emergency. **It is the hardest to value**, because a contingent right against a defined and infrequent trigger has no ready market comparable. Its burden value counts the cost of holding the capacity ready and the expected cost after the trigger. A Type C item passes only if (a) its source is located, elevated or hardened so that it can perform during the event that triggers it; (b) what it draws on is secured for the stated duration, is not shared with a reserve the grantor needs for its own life-safety systems, and is free of commitments to the grantor's customers at the trigger; and (c) its delivery does not depend on infrastructure the event is expected to disable, including grid power (3.5). The instrument names the triggering declaration (8.5) and starts delivery on written notice from the recipient (where the recipient is the County, its emergency management director); caps the days of use for each event and each year; yields without default to any order of the Governor; says who bears the operating cost after the trigger; keeps liability and insurance with the grantor, with no County indemnity beyond s. 768.28, Florida Statutes, and no reliance on s. 252.51; and requires the grantor to demonstrate the capability before [1 June] each year, witnessed by the recipient. The demonstration verifies the item and is not a benefit. **2.4 Valuation follows the characterization.** A package containing more than one characterization requires more than one valuation method, so identify the characterization before drafting the provision. An item's recipient value, where rent in kind, a conversion to money or the sizing of security needs one, follows the characterization: Type B, at fair market value on delivery where title passes, and otherwise at the fair market value of the capability for each period it is provided; Type A, use without title, at replacement cost for each period (2.1); Type C, at the market price of an equivalent standby reservation for the period held, where one exists. It is set by an independent valuer and does not replace the burden value (5.4). ## PART 3: THE ELIGIBILITY CRITERIA An item is eligible only if it satisfies all eight. The criteria are conjunctive. Failure of any one disqualifies the item, and a failure is not offset by strength elsewhere. **3.1 Divisibility and low marginal cost to the grantor.** The item must be severable into a share without impairing the grantor's remaining use, and the share's cost to the grantor, measured by its burden value, must be low relative to its value to the recipient. Record, each with its source, the grantor's marginal cost of the severed share, its forgone sales of equivalent capacity, and any revenue or avoided cost the share produces for the grantor. The marginal cost plus the forgone sales, net of that revenue and avoided cost, is the item's burden value (5.4). Where an input is a trade secret, an independent valuer holds it and the record states the valuer's finding (1.3). *Mitigation.* This criterion does not apply to in-kind mitigation, which is sized to the measured impact under Part 5. *Failure.* Where marginal cost is high, or the grantor would otherwise sell the capacity, the item fails. A share taken from genuine surplus, such as computing capacity that would otherwise sit idle, can pass. A share of capacity the grantor would otherwise sell is a purchase in another form and is treated as one. In two homes a costly item still passes this criterion, priced at its recipient value (2.4): County land other than airport property, as rent recorded under the Consideration Adequacy and Fit Test (8.7), and a private agreement, as consideration the parties bargain for. Spare conduit for the County is bought at incremental cost, not taken as surplus (3.6). **3.2 A capable recipient exists today.** There must be an identified entity, in existence at execution, with the operational capacity, staffing and authority to receive the item from this grantor, operate it and maintain it. Not an entity to be formed. Not an entity that will be staffed later. Some public recipients may not deal with a grantor tied to a foreign country of concern (8.9). *Option-preservation carve-out.* Where the item is a capital accommodation whose cost to the grantor is small, whose function is to preserve a future option rather than to deliver a present benefit, and which imposes no operating obligation on the grantor, this criterion is satisfied by a plausible future recipient rather than a present one, provided the item carries a stated revalidation or sunset so that an option nobody exercises does not persist as an unexamined encumbrance. The carve-out covers accommodations such as dig-once spare conduit the County buys, structural reservations for future rooftop generation, capacity in a duct bank the grantor owns, and capped thermal interface points. The proviso is not optional. The carve-out does not reach mitigation, which may not reserve capacity for a future need that is not scheduled unless the County pays for it (8.1). The reserved right is held by a present holder able to enforce it and name the eventual user, and is preserved under Chapter 712, Florida Statutes. A structural reservation is a lease or private agreement term; required by ordinance, it would be a local amendment to the Florida Building Code (s. 553.73(4)(b), Florida Statutes). **3.3 Direct public use value.** The item must be usable by the recipient for a public purpose without conversion, resale or an intermediate transaction. A commodity the recipient must monetize before it becomes useful is a revenue provision and is evaluated as one. **3.4 A stated relationship to the project's local footprint.** There must be a stated, non-generic connection between the project's local footprint and the item. How strong it must be depends on where the item goes (1.6). In a development agreement or an impact fee it is the legal test: the item must answer an impact the impact study measures, with its own nexus and proportionality record (Part 5). In a lease or a private agreement it is a test of legitimacy rather than of law. *What the relationship cannot be.* An item whose stated relationship to the project is a share of the increase in land value that a public decision creates, such as a rezoning or other approval, or a share of "data rent" (the income a business is said to earn from controlling data), fails this criterion wherever it would go. In the County's process the relationship must be a measured impact or, on County land, the leasehold. In a private agreement it is the project's local footprint, and the item is written as consideration the parties bargain for. *Practice note.* Each item carries its own nexus statement in the staff report (County Procedure and Records Kit, Part A, Section 13). A collective nexus statement covering a package of items is materially weaker than individual statements. **3.5 Deliverable by the signing party alone.** Performance must not depend on the existence, capacity, continued operation or consent of any party who is not a signatory. This criterion excludes industrial symbiosis proposals: waste heat delivered to a neighboring facility, byproduct exchanged between co-located operations, and shared infrastructure contingent on a second developer. A right that needs grid power in an emergency depends on the utility, which may curtail a large load customer then (s. 366.043(6), Florida Statutes), and passes only if the grantor's own power carries it. An item whose earlier forms depend on a non-signatory passes only where its forms deliver the same capability to the same recipient in a fixed order, each later form starting on a stated date or event and in every case on the lapse or failure of the form before it, without a new County finding, and the last can be performed by the signing party alone (Module M2, Section M2.1(c)). *The available structure.* Where a coupled benefit is attractive, the obligation is to **offer** on defined terms, keep the offer open for [__] days, and report the offer and any response; never to **deliver**. **3.6 No regulated intermediary holds the exclusive right to provide the item in service form.** Where a public utility, franchisee or licensee holds an exclusive right to provide a service, or the law bars the public body from taking the service in kind, an in-kind provision structured as the grantor providing that service to a third party implicates that right or bar, whatever the parties intend. In each affected sector, the *service* version of the benefit is legally difficult and the *capital* version is available within the limits stated; in a development agreement, capacity beyond the project's measured share needs payment or credit (2.2): | Sector | Service version (difficult) | Capital version (available) | | --- | --- | --- | | Electricity | Grantor supplies power to a public facility | Grantor funds hardened equipment or a transfer switch at the public facility, or pays for utility-owned backup there under an approved tariff (Module M2) | | Vehicle charging | Not utility service when a nonutility provides it (s. 366.94(1)); test it under 3.1 and 1.5 | Chargers at the public fleet's own depot, by agreement or lease and never by ordinance (s. 366.94(2)) | | Telecommunications | Grantor provides transport or retail service | Public body buys spare conduit at incremental cost and, where the grantor or an affiliate is a communications services provider, also pays a proportionate share of trenching and restoration (Model Host Community Development Agreement, Section 4.5); no County instrument requires or solicits it in kind from a provider, or from a dealer in that capacity; County service to others over it is subject to s. 350.81 (8.3) | | Water and reclaimed water | Grantor supplies water to third parties | Grantor oversizes a main it is already extending and conveys it to the utility that serves the area, which pays for or credits the oversizing | No item relies on the grantor's emergency engines or on-site generation to serve a public facility or the grid; air rules generally limit such engines to emergencies and testing (8.3), and an instrument that places equipment at a public facility assigns its permit duties. **3.7 Verifiability by the recipient without specialized capacity.** Compliance must be determinable by the public body using evidence it can obtain and evaluate. An item whose performance can be verified only by the grantor's own representation, or only by expertise the public body does not have and cannot fund, does not belong in any instrument. **3.8 Durability against transfer and against non-use.** The item must survive a sale of the facility and the grantor's bankruptcy, and how it does so depends on the home. In a development agreement, recording binds successors (s. 163.3239, Florida Statutes) for the term, which is at most thirty years unless extended after a public hearing (s. 163.3229), and later state or federal law can force a change (s. 163.3241). An obligation meant to outlast the term rests on a recorded declaration independent of the agreement, whose effect is not settled. On County land the item is written into the lease as rent, so it cannot be shed while the leasehold is kept. In a private agreement, a covenant owed to an organization that holds no land may not bind a successor that has not assumed it, so the agreement requires written assumption on any transfer and security held outside the grantor's estate. And the item must not degrade into worthlessness if unused in a given period, or if its recipient fails: the instrument names a class of successor recipients and who designates one, and, where value lies in equipment that ages, states it as a secured capability with a service level for a term, the grantor replacing the equipment. ## PART 4: CHARACTERIZATION EXCLUSIONS Two categories are excluded even where they meet the criteria. **4.1 Displacement relief funded from grantor resources.** Where a framework provides workforce or economic-transition support for persons displaced by the activity it regulates, the party whose activity causes the displacement must not fund that support, in cash or in kind, except instruction of the one kind described below. Two things stay excluded in every case: payments from that party to or for individual persons, such as tuition vouchers, training stipends or transition income; and training money from that party that the organization giving its support to the project receives, holds, certifies, directs or delivers. **The exclusion is narrow.** It does not reach: - **Training for the grantor's own positions.** A grantor's participation in training persons for its own operational positions is a local hiring and pipeline provision. Terms an employer gives its own employees, such as notice of automation-driven reductions, a first right to new roles, retraining or severance, are employment terms and not a relief program for the community. They belong only in a private agreement: no County agreement, lease or lease award may require or score employment benefits, except as a condition of a direct tax abatement or subsidy (s. 218.077, Florida Statutes). - **Instruction on the delivered capacity, or on computing bought with the money paid in its place, by an independent public institution.** Instruction in which students use an in-kind benefit, or computing bought with grants of a payment the grantor makes in its place, paid for by the grantor on a formula fixed when the instrument is signed and secured with its other obligations, is outside the exclusion where: the money goes only to an accredited public educational institution and never through the organization that gives support; the institution alone decides what is taught, by whom and to whom; enrollment is open to residents on the institution's ordinary terms; courses lead to credit or credentials usable with any employer; no student is promised employment, works on the grantor's site or does unpaid work for the grantor; nothing is paid to or for a student or trainee; and the institution, not the grantor, reports the results. Where the parties name the institution at signing, its independence from the grantor rests on tests the instrument states (Module M3, Section 1.11; Module M3 Options, Section 3.6). Two related lines hold in every case: programs the grantor runs or designs are not counted as community benefits, and no payment for training goes to a workforce board that the public body appoints or controls. The distinguishing question is **purpose scope**. Training for the facility's own workforce is a hiring provision. Support paid to or for other persons displaced by automation or closure is relief, and relief is funded by public programs or from the community's own resources, never by the grantor. **4.2 Conduct of the enterprise conducted inside the facility.** Land use authority reaches the facility and its physical externalities. It does not reach what is produced, computed or decided inside it, and a provision conditioning approval on the substantive conduct of the occupant's business is outside the authority being exercised. *What remains available.* An institution that receives an allocation and decides what to do with it, including a public institution, acts as owner and operator of its own resource, not as a regulator, and may set terms for its use, within the constitutional limits that bind a public recipient, that a public body acting as regulator could not impose. Locate such terms in the recipient's acceptable-use policy and in the instrument that delivers the allocation, including a ground lease, whose terms the County sets as landowner and not as regulator; never in an ordinance or an intergovernmental agreement. ## PART 5: PROPORTIONALITY AND COMPLETENESS OF A DEVELOPMENT AGREEMENT *This Part applies to a development agreement and to any mitigation the County requires. It is the whole of the substantive test this method applies; the authorizing statute sets its own requirements separately. A development agreement carries no item given in exchange for an approval: besides mitigation, it carries only statutory concurrency terms and County purchases at cost (Model Host Community Development Agreement, Sections 2.4 and 4.5), so there is no exchange to weigh and no consideration test to apply.* **5.1 Each item answers a measured impact.** - Every item in the agreement answers an impact that the impact study (Exhibit "B-1," Model Host Community Development Agreement, Section 4.1) measures, and carries its own written nexus and proportionality record. - No item answers an impact that another item or an impact fee already answers, or that a standard of the Data Center Standards, a utility tariff or a state permit condition already answers in full, such as a large load customer's cost of electric service (s. 366.043, Florida Statutes). - A covenant of Exhibit "S" to the Model Host Community Development Agreement stays only where Exhibit "B-1" measures a site-specific impact that the Data Center Standards leave unanswered at the site and shows the covenant is roughly proportional to that part (Model Host Community Development Agreement, Section 10.5). Otherwise it is left out, or the County adopts it in the Data Center Standards for every facility once the post-hurricane limits allow (6.1). Under a County ground lease the same covenants are terms the County sets as landowner (Model Ground Lease, Section 6.2). - Where the County adopts an impact fee for a category, the fee governs that category (Model Host Community Development Agreement, Section 4.7). Required in-kind capital mitigation in that category, including capital facilities the grantor delivers in place of the fee, and any required monetary contribution in it, is credited against the fee at its credit value (5.4) under the fee ordinance's credit procedure (Article IV, Sec. 4.4), which applies a credit only on written acceptance of the delivered facilities, so that nothing is charged twice. Where the County requires the item, it accepts a facility that meets the acceptance standards, so that the credit s. 163.31801(5)(a), Florida Statutes, requires is not withheld. No other in-kind item, and no voluntary or community benefit item, is credited against any tax or fee, except as s. 163.3180(5)(h) requires for transportation. - Where the County keeps transportation concurrency, transportation mitigation follows s. 163.3180(5)(h), Florida Statutes: a proportionate share, nothing for existing deficiencies, and a dollar-for-dollar credit (Model Host Community Development Agreement, Section 2.4(d)). - An item with no measured impact leaves the agreement (1.6). **5.2 The package is judged as a whole.** The package taken together must remain roughly proportional to the project's total measured impacts. Proportionality applies to the sum as well as to each part, each part measured as 5.4 provides, and a package whose items are each justified can still fail in aggregate. In a model instrument, each figure stays blank and reads "study-dependent" until a study supplies it. The Board chooses each figure within the range the study supports (Model Host Community Development Agreement, Section 4.1(b)). The low end is the hardest to challenge, because the County must show that a condition is proportionate to the impact (s. 70.45(4), Florida Statutes; for an impact fee, s. 163.31801(9), which allows the court no deference to the government); a higher figure needs a record that supports it. In an adopted agreement, an item no study supports leaves the agreement (5.1). Aggregate proportionality cannot be shown without an impact study that quantifies the project's total impacts by category. The County applies this Part to every item of a development agreement whether or not s. 70.45 reaches an agreement taken up after approval (8.1). **5.3 The package is complete when every measured impact is accounted for.** For each impact the study measures, the record states one of three answers: - answered by a standard of the Data Center Standards, or in part by a standard and for the rest by a covenant of Exhibit "S" to the agreement; - answered by an item in the agreement or by an impact fee, identified by section; - "no lawful item available," with the reason. The record also states, for each item, the impact it answers. An impact with no answer is a gap to close or explain. An item with no impact is an item to remove. No count of items and no dollar total is published or used as a pass line. The staff report records this table (County Procedure and Records Kit, Part A, Section 13). **5.4 The measurement and valuation burden.** Each characterization under Part 2 requires its own method; a package spanning all three requires three. In a development agreement, two measures are needed so that they can be compared: the study's measure of the impact, and the item's burden value, which is what the item costs the grantor. - The burden value of land or an interest in land is its fair market value. - The burden value of construction, equipment or a service is the grantor's documented cost of providing it plus its forgone sales, net of any reimbursement, revenue or avoided cost the item produces for the grantor. - For a share of output, it is the grantor's marginal cost of the share plus its forgone sales, net of any revenue or avoided cost the share produces for the grantor (3.1). - Forgone sales are the revenue the grantor would have earned by selling or leasing the equivalent capacity the item displaces, less the cost it would have borne to supply and sell that capacity, so that no cost is counted twice. They are zero for capacity that would otherwise sit idle. Until it is settled whether the burden value or the recipient value (2.4) governs rough proportionality (Open Legal Questions, Question 15; the authority that exists points to the grantor's cost), the record states both for each item other than land, and the item is treated as roughly proportional only if it is proportional at the higher of the two. Where an impact fee applies, the item also has a credit value: the value at which the fee statute credits it against the fee, which in Florida is its fair market value, dollar for dollar (8.2). The credit value serves the credit only and does not replace the burden value. In a lease or a private agreement, what is delivered is valued at its recipient value (2.4), set by an independent valuer and never at the grantor's own cost. A confidential input stays with the independent valuer, and the proportionality finding rests on the study and on independently derived values (1.3). *Drafting convention.* A model instrument keeps its core items few, chosen so that no two require the same method to be developed twice. Additional candidates belong in an optional appendix, measured and valued only if selected. **5.5 The generalization ceiling.** The more uniformly an in-kind obligation is applied across projects and sectors, and the more it rests on a generic impact narrative rather than a project-specific one, the more likely it is to be recharacterized as a fee imposed in kind and evaluated under the jurisdiction's development fee statute, which typically requires a supporting study, proportionality to the specific demand created, and earmarked accounting. In Florida a fee that fails the dual rational nexus test is invalid, or an unconstitutional tax, and a recurring obligation cannot be saved as an impact fee, which is a one-time capital charge (8.2). A sector-specific instrument with its own nexus generalizes by replication, with its own nexus and measurement for each sector, not by abstraction into a uniform schedule. A uniform program is an impact fee on a class-wide study, designed to the fee statute from the first line; the companion impact fee ordinance is that program for the capital mitigation categories it covers. ## PART 6: APPLYING THE TEST **6.1 Order.** State the candidate. Identify the characterization under Part 2. Apply the eight criteria in Part 3 in order and record the result of each. Apply the exclusions in Part 4. Place the item under 1.6. Check it against the statutory bars for its home (8.9) and record the result. For a development agreement, apply Part 5 to the resulting set rather than to the item. Confirm that: - each item answers a measured impact and has its own record; - no impact is answered twice, except that a covenant of Exhibit "S" may answer the part a standard leaves unanswered; - the set stays roughly proportional to the measured total impacts; - every measured impact is accounted for. Before proposing a new or tighter Data Center Standard or a new impact fee, record the County Attorney's written determination under the post-hurricane limits (8.6; County Procedure and Records Kit, Part E). Meanwhile a lease of the County's own land is most likely outside these limits, and a development agreement the owner initiates on its own land probably is too, though the point is open (Open Legal Questions, Question 3). A private agreement is between the developer and the community organization; the County does not require, negotiate, review or rely on it (8.8). For a lease, apply the Consideration Adequacy and Fit Test. For a private agreement, the County applies nothing (8.8). **6.2 Record the failures.** Keep each declined candidate and the reason for its decline in the drafting record. Where the County applies the test, keep that record with the staff report for a development agreement (County Procedure and Records Kit, Part A), or with the award record of a lease (Model Ground Lease, Exhibit "B"), for the life of the agreement or lease, and keep the record of a recurring item current at each revalidation (8.1). **6.3 Two worked examples, and one that fails.** A dedicated share of a facility's computing output, delivered as the Civic Compute Allocation to an existing institution that already runs computing (Module M3): - Type A; - divisible, but delivered as reserved capacity that is not preemptible (Module M3, Schedule 1, paragraph T-3), so its burden value includes forgone sales (3.1); - a recipient exists; - usable without conversion; - a stated relationship to the facility's local footprint; - deliverable by the signatory alone; - no exclusive intermediary; - verifiable by metering and audit; - durable if the covenant runs, the hardware is refreshed, recipient-owned hardware is kept separate and security is held (3.8). It passes Parts 2 to 4 only through the allowance in 3.1 for a costly item, priced at replacement cost (2.1; Module M3, Schedule 3, paragraph V-2). **It does not belong in a development agreement**, because no impact study measures an impact it answers. The County may seek it only as rent in kind on County land other than airport property (Module M3, Part 2). A community organization may bargain for it in a private agreement on its own (Module M3, Part 3). Emergency power for the critical loads of a County water treatment plant, sized by the impact study's measure of the project's impact on emergency response at County facilities, not on electric reliability or cost (Module M2, Section M2.1(a)(1)): - Type B, with a continuing covenant for maintenance and fuel; - 3.1 does not apply (mitigation, sized under Part 5); - a recipient exists; - usable without conversion; - answers that measured impact (3.4); - deliverable by the signatory alone, since Module M2 starts each later form on the lapse or failure of the one before it, its forms ending in a form the Developer performs alone (3.5); - consistent with 3.6: utility-owned backup under the utility's tariff, then Developer-owned equipment leased to the County, then conveyance (Module M2, Section M2.1(c)); - verifiable by inspection and testing; - durable through title in the third form, and otherwise through covenants, security and successive equipment leases (3.8). It passes Parts 2 to 4, and it belongs in the development agreement (Module M2), subject to Part 5 and to public construction law (2.2). Where the County adopts an impact fee for the category, conveyed equipment is credited against the fee instead, and equipment the applicant keeps is not, save as Sec. 4.2 provides (Impact Fee Ordinance, Sec. 4.2). A share of a facility's refrigerated storage capacity: Type A; **fails 3.1** as a low-cost item, because refrigerated capacity carries a high marginal operating cost, so it can be taken only at its recipient value in the two homes 3.1 names. The item that survives from the same sector at low cost is a contingent standby right to hardened cold storage during a declared emergency, which is Type C. It passes 3.1 as a low-cost item only where the space is surplus the grantor would not otherwise sell and is free of customer commitments at the trigger, and it must meet 2.3. It belongs in a lease of County land other than airport property or in a private agreement, unless the study measures an impact it answers. ## PART 7: THE BOUNDARY OF THE INSTRUMENT **7.1 Where the approval does not sit with the local body, the instrument does not apply.** Certain uses are approved, licensed or certified by a state or national authority under a regime that displaces local permitting. There is then no local approval to condition, however attractive a candidate benefit is. The boundary can split a site: a state-certified plant, line or pipeline leaves local approval, while the data center it serves, and the data center's own turbines, engines and batteries, generally do not (8.4). **7.2 Where the grantor is a regulated monopoly, the instrument does not fit.** A party whose costs are recovered through a rate proceeding cannot confer a benefit without passing its cost to ratepayers or having it disallowed. The test assumes a grantor with an unregulated revenue stream. A grantor that sells on-site power to colocated tenants may itself be a public utility (8.3). ## PART 8: FLORIDA APPLICATION **8.1 The exaction line.** *Nollan v. California Coastal Commission*, 483 U.S. 825 (1987); *Dolan v. City of Tigard*, 512 U.S. 374 (1994); *Koontz v. St. Johns River Water Management District*, 570 U.S. 595 (2013); *Sheetz v. County of El Dorado*, 601 U.S. 267 (2024). After *Sheetz*, a permit condition is not exempt from *Nollan* and *Dolan* because a legislature imposed it. The Court left open whether a condition on a class of properties must be tailored as specifically as one aimed at a single development, and two concurring Justices left open whether *Nollan* and *Dolan* reach a condition that would not be a taking if imposed outright. Both remain open: the remand opinion in *Sheetz* was depublished, and the Court declined review in No. 25-958 (15 June 2026) and No. 25-1187 (13 October 2026). A 2023 Sixth Circuit decision applied *Nollan* to a legislated dedication or fee in lieu (67 F.4th 816). Florida adds s. 70.45, Florida Statutes. A "prohibited exaction" is "any condition imposed by a governmental entity on a property owner's proposed use of real property that lacks an essential nexus to a legitimate public purpose and is not roughly proportionate to the impacts of the proposed use that the governmental entity seeks to avoid, minimize, or mitigate." The government must prove both nexus and rough proportionality, so the definition's "and" is no safe harbor; the owner proves damages; and the right to sue "may not be waived." Since Chapter 2021-203, Laws of Florida, the owner may also sue for a declaration of invalidity, at its choice once the condition is imposed or required in writing as a final condition of approval; injunctive relief has been available since 2015. The owner first gives notice at least 90 days before suit and within 180 days after imposition, the time the owner must comply, and the County answers in writing; attorney fees are mandatory for the owner where a condition lacks an essential nexus. A periodic obligation may be imposed again at each due date, so a recurring item stays scaled to the impact and its record current (6.2). Whether s. 70.45 reaches an item of an agreement taken up after approval is not settled; a later denial for an uncured default would likely bring the item within it, so the County applies Part 5 regardless (5.2). A county also may not contract away its police power; vesting under the Development Agreement Act is the statutory exception (93 So. 2d 86 (Fla. 1956); *Morgran Co. v. Orange County*, 818 So. 2d 640 (Fla. 5th DCA 2002)). Florida courts have rejected conditions that reserve land or capacity for a future need that is not scheduled (507 So. 2d 626 (Fla. 2d DCA 1987); 555 So. 2d 1319 (Fla. 5th DCA 1990)). Accordingly: - the Data Center Standards carry no fee or dedication (Sec. 1(f)), and because s. 70.45 reaches "any condition," each standard's record states its public purpose and its relation to the impacts of the class of facility; - mitigation goes in a development agreement under Chapter 163, Part II, only where the impact study measures the impact, and each covenant of Exhibit "S" carries its own record (5.1); - nothing in the agreement is given in exchange for its term, vesting or approvals (Model Host Community Development Agreement, Section 10.4(b)). **8.2 The fee route of 5.5.** Section 163.31801, Florida Statutes, as amended by Chapter 2026-161 (effective 1 January 2027), together with *Contractors and Builders Association of Pinellas County v. City of Dunedin*, 329 So. 2d 314 (Fla. 1976), and *St. Johns County v. Northeast Florida Builders Association*, 583 So. 2d 635 (Fla. 1991). Chapter 2026-161 defines an impact fee as "a one-time charge imposed by a local government on new development to fund the capital costs of public infrastructure needed to serve that development" and requires a plan-based study for a fee adopted or increased after 1 July 2026; whether emergency power at County facilities qualifies is for the study to show. A fee, or an in-kind obligation treated as one, that fails the dual rational nexus test is invalid, and a charge that funds general services is an unconstitutional tax (*Collier County v. State*, 733 So. 2d 1012 (Fla. 1999); *Volusia County v. Aberdeen at Ormond Beach, L.P.*, 760 So. 2d 126 (Fla. 2000)); the government bears the burden without deference (s. 163.31801(9)). Section 70.45 does not apply to impact fees adopted under s. 163.31801. Under s. 163.3233(2), a later law, including an impact fee, applies to a project under a development agreement after a public hearing on any of five findings, the most secure for a fee being that the agreement specifically anticipates and provides for it (paragraph (c); Model Host Community Development Agreement, Section 10.8). The credit under s. 163.31801(5)(a) is dollar for dollar at fair market value and reaches any required contribution in the category, including money; no credit is given in a category for which the County charges no fee (s. 163.31801(5)(b)). In the companion impact fee ordinance, a written credit agreement states each item's fair market value and its basis (Sec. 4.4), and emergency power equipment is credited at the fair market value of what is conveyed, as an independent professional engineer certifies (Sec. 4.2). **8.3 The regulated intermediary of 3.6, and other sector limits.** Electricity: Chapter 366, Florida Statutes, especially the definition of a public utility in s. 366.02(8), and *PW Ventures*, 533 So. 2d 281 (Fla. 1988), which has not been overruled; on the weight of its deference to the Public Service Commission, see Art. V, s. 21, Fla. Const., *Sun Gas Marketing & Petroleum, LLC v. BJ's Wholesale Club, Inc.*, No. 4D2023-0075 (Fla. 4th DCA 21 February 2024) (reporter citation to confirm), and Open Legal Questions, Question 19; the territorial jurisdiction of the Public Service Commission (s. 366.04); s. 366.043 (large load tariffs and emergency curtailment, Chapter 2026-65); and s. 366.94 (vehicle charging). Communications: ss. 337.401(3)(f) and (7)(d)1., 202.24(2)(b) and (c), 366.04(8) and 350.81, and 47 U.S.C. 253, with 47 U.S.C. 332(c)(7) and 542 where the grantor or an affiliate is a wireless provider or cable operator; s. 337.401(3)(f) saves voluntary agreements for in-kind compensation by a telecommunications company, and whether the rental exception in s. 202.24(2)(c)5. reaches rent paid in kind is open. Water: Chapter 367; ss. 373.250(3)(b) and (c), 373.203(3) and (4) and 373.262 (Chapter 2026-65); s. 403.064(13), under which a connection to reclaimed water is a development order condition that belongs in the Data Center Standards; and Chapter 62-610, Florida Administrative Code. Emergency engines: 40 CFR part 63, subpart ZZZZ, and part 60, subparts IIII and JJJJ, and Rule 62-210.310, Florida Administrative Code. **8.4 The boundary of 7.1.** The Florida Electrical Power Plant Siting Act, ss. 403.501 through 403.518, Florida Statutes, reaches steam or solar generating plants of 75 megawatts or more, and the determination of need under s. 403.519 is sought by an electric utility (641 So. 2d 396 (Fla. 1994)); also the Transmission Line Siting Act, ss. 403.52 through 403.5365; the Natural Gas Transmission Pipeline Siting Act, ss. 403.9401 through 403.9425; and federal licensing of nuclear facilities and the preemption line drawn in *Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission*, 461 U.S. 190 (1983). Local planning and land development authority over large load customers is preserved, and they are not substations under s. 163.3208 (s. 163.326). Federal carrier rules (49 U.S.C. 14501(c) and 49 U.S.C. 41713) limit what may be required of carriers but do not displace local approval; the airport rules are in 8.7. **8.5 The emergency trigger for Type C items.** Chapter 252, Florida Statutes, and the adopting county's comprehensive emergency management plan. The Governor declares a state of emergency (s. 252.36) and may commandeer private property to cope with it (s. 252.36(6)(d)), with compensation only for use beyond the owner's legal duty (s. 252.43). A county's local state of emergency lasts 7 days and may be extended in 7-day increments (s. 252.38(3)(b)5.). Section 252.51 relieves an owner who voluntarily lets premises be used for sheltering persons in an emergency, without compensation other than payment or reimbursement of costs and expenses, of liability for death, injury or property loss there, except for gross negligence or willful and wanton misconduct, and deems one who provides shelter space for compensation an instrumentality of the state or its applicable agency or subdivision for the purposes of s. 768.28; it reaches no other use, and whether space given as rent is given voluntarily and without compensation is open. A county may agree to indemnify another party only within s. 768.28 (Attorney General Opinion 2000-22). **8.6 Other Florida considerations.** Section 28 of Chapter 2025-190, Laws of Florida, bars each county listed in the federal disaster declarations for Hurricanes Debby, Helene or Milton, and its municipalities, from proposing or adopting more restrictive or burdensome comprehensive plan amendments, land development regulations or review procedures before 1 October 2027; a 2026 Senate staff analysis reports that every Florida county is listed, so confirm the county's listing in FEMA's data. Such a measure is "null and void ab initio," residents and business owners may sue for declaratory and injunctive relief, and only an application initiated by a private party that owns the property is saved; the section expires 30 June 2028. Section 252.422, Florida Statutes, bars the same measures for one year after a hurricane makes landfall, in each county listed in a federal disaster declaration that lies at least partly within 100 miles of its track. These limits most likely reach both a new or tighter Data Center Standard and a new impact fee ordinance (6.1; County Procedure and Records Kit, Part E). Also: Section 70.001; ss. 57.112 and 125.675 (Chapter 2023-309, Laws of Florida) and s. 70.91, each of the last three exempting ordinances adopted to implement Part II of Chapter 163, though whether that reaches a standard on how an existing facility operates is open; s. 125.66(3), which since 1 October 2024 exempts, of the ordinances implementing Part II, only those for development orders, permits and agreements and plan or land development regulation amendments a private party applies for, so that the Data Center Standards and an impact fee ordinance need a business impact estimate (County Procedure and Records Kit, Part D); and Article VII, Section 10 of the Florida Constitution as to any public appropriation supporting a program contemplated by an instrument. A public purpose finding supporting one program does not support a different one; two distinct programs require two findings. **8.7 The lease home of 1.6.** Section 125.35(1)(a), Florida Statutes, lets a county lease its land when the board determines it is in the county's best interest, "to the highest and best bidder for the particular use the board deems to be the highest and best." The award is competitive on published terms unless s. 125.35(1)(b) or an ordinance under s. 125.35(3) applies, and any rent in kind is published as a minimum term. Where no public credit is pledged, a public purpose is enough under Article VII, Section 10 (443 So. 2d 97 (Fla. 1983)); where the County directs value to a private recipient, the finding names the purpose and the controls the County keeps (Open Legal Questions, Question 21); where public credit is pledged, the purpose must be paramount. On airport property subject to 49 U.S.C. 47107(b) or 47133, rent is airport revenue, at not less than fair market value under FAA policy, spent only on the airport, its local airport system or another local facility of its owner or operator directly and substantially related to air transportation (49 U.S.C. 47133(a)); this method takes it in cash only, used for the airport. FAA policy generally limits below-market community use to land that is not needed for aeronautical use and cannot produce substantial income, and land a data center would lease can produce it; a sponsor that does not repay a diversion after notice may have federal funds withheld and, if it has not paid within 180 days after notice and withholding cannot recover the amount, may be sued for a civil penalty of double the diversion plus interest (49 U.S.C. 47107(m); 64 Fed. Reg. 7696 (1999); FAA Order 5190.6C, para. 15.12). Before using the lease home, confirm that the land is not FEMA hazard mitigation acquisition land (44 CFR 80.19), property acquired or improved under a federal award (2 CFR 200.311(b)), Land and Water Conservation Fund parkland (54 U.S.C. 200305(f)(3)) or Florida Communities Trust land (s. 380.510(3)), and, for land financed with tax-exempt bonds, that bond counsel confirms the lease will not make the bonds private activity bonds (26 U.S.C. 141). Rent in kind is tested by the Consideration Adequacy and Fit Test, not by Part 5. **8.8 The private agreement home of 1.6.** A county that requires, negotiates, reviews or relies on a private community benefits agreement risks having its terms treated as conditions of its approvals. The Data Center Standards (Sec. 16), the impact fee ordinance (Sec. 1.4) and the development agreement (Section 10.3) therefore bar the County from considering one in any decision. The same holds for the solicitation and award of a County lease, which also may not score wage or employment benefit terms (s. 218.077(2), Florida Statutes). **8.9 Statutory bars by home.** Before an item is placed, check it against these (6.1). Each line states the rule in short form and, where the law is open or allows more, this method's stricter rule; the sections cited give the detail and say where the law is open. | Home | What the law or this method requires or bars | Authority | | --- | --- | --- | | Every County agreement or lease | No agreement with, or grant from, a foreign country of concern or an entity it controls; no contract giving such an entity access to personal identifying information | ss. 288.860(2), 287.138, Florida Statutes | | Every County agreement or lease | No requirement or scoring of employment benefits, except as a condition of a direct tax abatement or subsidy | s. 218.077; 4.1 | | Every County instrument | Nothing required or solicited in kind from a communications services provider, or from a dealer in that capacity | ss. 337.401(3)(f), (7)(d)1., 202.24(2)(b); 3.6 | | Every County instrument | Trade secrets the County holds stay confidential | s. 119.0715; 1.3 | | Data Center Standards or impact fee ordinance | No new or tighter measure while the post-hurricane limits apply | Ch. 2025-190, s. 28; s. 252.422; 8.6 | | Data Center Standards | No fee or dedication; no regulation of vehicle charging stations; no preferential pricing; no structural reservation for future rooftop generation except as a local amendment to the Florida Building Code | Standards Sec. 1(f); ss. 366.94(2), 125.0103(1)(a), 553.73(4)(b) | | Development agreement or impact fee | Nexus and rough proportionality, proved by the County; capacity beyond the measured share only with payment or credit; nothing reserved for an unscheduled need unless the County pays for it | s. 70.45 (agreement); s. 163.31801(9) (fee); 2.2; 3.2; Part 5; 8.1 | | Development agreement or impact fee | Transportation within the proportionate share, with a credit, where concurrency is kept; a fee is a one-time capital charge on a plan-based study, with credit for required contributions | ss. 163.3180(5)(h), 163.31801; 5.1; 8.2 | | Work on public property | A payment and performance bond; a competitive award where the County pays, including from the Mitigation Account, by fee credit or by taking the facility as rent; no County labor terms on public works paid with local funds | ss. 255.05, 255.20, 255.0992; Model Ground Lease, Section 4.7A; Impact Fee Ordinance, Sec. 4.8; Module M2, Section M2.1(i) | | County lease | On airport property, cash rent only, used for the airport; not on land whose title or funding forbids the use; a competitive award; a public purpose, with controls; a tenant that is a foreign principal may be barred from owning improvements on some land, though likely not from holding the leasehold | 49 U.S.C. 47107(b), 47133; 44 CFR 80.19; 2 CFR 200.311(b); s. 125.35; Art. VII, s. 10, Fla. Const.; Part III, ch. 692; 8.7 | | County lease or private agreement | A standby right does not rely on s. 252.51, carries no County indemnity beyond s. 768.28, and yields to the Governor | ss. 252.51, 768.28, 252.36(6)(d); 2.3; 8.5 | | Private agreement | Not considered in any County decision, including a lease award; a state university or college host accepts no gift from a foreign principal, and no grant from, or academic or research agreement or partnership with, one without approval of the Board of Governors or the State Board of Education | 8.8; s. 286.101(10)(a); s. 288.860(3) and the rules adopted under it | ## PART 9: QUESTIONS FOR A DRAFTER IN ANOTHER JURISDICTION Resolve these before adapting any instrument outside Florida. **9.1** Does the jurisdiction authorize development agreements by statute, and on what terms? The architecture has four parts: - a police-power ordinance carrying no fee or dedication; - a development agreement carrying only study-backed mitigation; - a private community benefits agreement, to which the public body is not a party, for everything else; - where the public body owns the land, a lease. The second part depends on statutory authority for development agreements. Where it is lacking, mitigation needs another vehicle, such as an impact fee. **9.2** What does the jurisdiction's exaction and development fee law require, and does it treat in-kind contributions as fees? **9.3** Is retail electricity restructured? Where it is, the service-form disqualification in 3.6 weakens as to generation and retail supply, though distribution generally remains a regulated monopoly and the fork in 3.6 survives in narrowed form. **9.4** Is generation siting centralized in a state authority, and at what threshold? This determines whether 7.1 excludes a candidate use. **9.5** Does the jurisdiction have a private property rights statute analogous to s. 70.001, Florida Statutes, and a statutory mechanism for expedited challenge to local ordinances? **9.6** Does the jurisdiction impose constitutional limits on public appropriations to private entities, and how are they applied to community benefit programs? **9.7** What are the applicable resource conditions? Several candidate items depend on physical facts (thermal grade, topography, aquifer characteristics, geothermal resource) that vary and that no drafting can supply. --- *END OF METHODOLOGY PIECE. This document contains no operative language and is not to be attached to or incorporated into any agreement or ordinance.* --- *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.*