Motion-Secondary: MCCANN HOLDINGS LTD vs BENDERSON, RANDALL et al

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                                IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA

McCANN HOLDINGS, LTD.,
Plaintiff,
VS. CASE NO. 2011 CA 003897 NC
SDC COMMUNITIES, INC.,
VOTT-A, LLC, VOTT-B, LLC,
VOTT-C, LLC, VOTT-D, LLC, and
HENRY RODRIGUEZ,

Defendants.
/

 

DEFENDANTS SDC COMMUNITIES, INC. and HENRY RODRIGUEZ RESPONSE TO
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

   

Defendants SDC COMMUNITIES, INC. (“SDC”) and HENRY RODRIGUEZ
(“Rodriguez”) respond to Plaintiff's Motion for Summary Judgment and state as follows:

In its Motion, McCann seeks summary judgment on Count 1, an action for declaratory
relief. McCann seeks to invalidate the Agreement at issue because 1) the consideration for the
Agreement failed, or, alternatively, 2) the purpose of the Agreement has been frustrated.

MeCann’s Motion should be denied because:

e The purposes of the Agreement were achieved; specifically VOTT’s support for
the Comprehensive Plan Amendment at issue and keeping VOTT’s property in
Sarasota County’s Energy Economic Zone (the “EEZ”):

e Nowhere does the Agreement state it is contingent on passage of a comprehensive
plan amendment;

e The alleged “frustration” is addressed in the Agreement itself;

e Even if the purpose of the Agreement was frustrated, it was due solely to the

actions of McCann;

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 1 of 41e Even assuming frustration of purpose occurred, and further assuming it was not
the fault of McCann, other consideration supports the Agreement.

A. There has been no frustration of purpose.

First, there is no “frustration of purpose” simply because the outcome of a contract is not
what the parties anticipated when they went into the contract. See Williams, Salomon, Kanner,
Damian, Weissler & Brooks v. Harbour Club Villas Condominium Assoc., 436 So. 2d 233, 235
(Fla. 3d DCA 1983)(holding that when a contract is not for the results achieved, but for the
actions of the contracting parties, “... it cannot be said that the purpose of the parties' agreement
was frustrated because the actual outcome was one not originally anticipated”).

second, McCann’s entire premise that “the outcome” was contracted for is flawed. The
purpose of the VOTT Agreement was to do two things: ensure VOTT’s “support [for the]
adoption of the amendment and allow the VOTT property to remain in the proposed Energy
Economic Zone.” See Exhibit “1” Paragraph 3. The Court does not need the parties to argue
this point — the four corners of the Agreement make this quite plain.

The VOTT property was (and remains now) a part of the Energy Economic Zone (the
“BEZ”). See Ordinance 2012-005 sec. 38-303(c) and 38-304 attached as Exhibit “2”.
Specifically, the EEZ today includes:

Sec, 38-304. Energy Economic Zone Boundaries.

The EEZ shail be comprised of 681 Corridor Properties; the Central County Solid

Waste Disposal Complex permitted area, consisting of approximately 550 acres,

located at 4000 Knights Trail Road, Nokomis; Major Employment Center

(MECs); and Urban Service Areas within Sarasota County municipalities,

provided that the municipality has adopted a resolution or ordinance authorizing

those areas to be included in the EEZ.

The “681 Corridor Properties” are defined as those properties identified in the

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 2 of 41EEZ Pilot Program — McCann, SDC, and VOTT — the same as properties at issue in this
case. |

So, as to this purpose, the Agreement has been fully performed by VOTT.

As to the second purpose of the Agreement, support for the EEZ Amendment, McCann
believes that VOTT did not adequately “support the EEZ Amendment” because the EEZ
Amendment did not pass. Again, McCann’s premise is flawed.

The purpose of VOTT’s support was not (nor could it be) for VOTT to guarantee passage

 

of the FEZ Amendment. Such a guarantee would be impossible as it would constitute “contract
zoning” or “spot zoning’, which is illegal. See e.g. Chung v. Sarasota County, 686 So.2d 1356
(Fla 2d DCA 1996) (explaining the reasoning behind the illegality of contract or spot zoning).

Since passage of Amendment cannot be the purpose of the VOTT Agreement, the only
remaining issue is whether VOTT’s support was strong enough to suit McCann. The term
“support” is undefined in the VOTT Agreement. What the parties intended that term to mean is
a basic question of fact. Further, whether or not McCann actually got VOTT’s support is also a
question of fact and goes to whether the Agreement was breached. In no event does it involve
impossibility of performance.

Finally, McCann argues that the Agreement was contingent on passage of the Agreement —=—_
by the Board of County Commissioners. The Agreement simply contains no such provision. As
numerous courts have explained, if a contract does not contain an express contingency, it would
be a “gross violation of the parol evidence rule to consider [ ] testimony” to establish the
existence of such a contingency. See In re Fraine, 25 B.R. 368, 370 (Bankr. M.D. Fla. 1982)

Additionally, it is “hardly conceivable” that a party would have entered into a contract with some

dire consequence and not provide a written contingency for it”) Jd. Such is the case here.

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 3 of 41In sum, the twin purposes of the Agreement — to ensure VOTT support for the “EEZ
Comp Plan Amendment” and to keep the VOTT property in the EEZ were achieved; therefore
there has been no frustration of purpose.

B. The Agreement contemplates continuance.

McCann’s Motion also assumes that the VOTT Amendment could never be deferred.
This is again at odds with the Agreement itself. The VOTT Agreement contemplates this
possibility.

In paragraph 3 of the VOTT Agreement, VOTT and McCann included the following
provision:

Transmittal Public Hearing. A public hearing regarding the

transmittal will be held on or about June 23, 2010, as continued
from time to time.

 

See Exhibit “1”, Paragraph 3 (emphasis added).

By way of example, all parties agree the June 23, 2010 hearing was itself continued until

 

July 13, 2010. This was as contemplated by the provision above. For a subsequent hearing to be
continued as well is thus not only not unusual, it was the norm. Most importantly, it was
contemplated by the Agreement.

Again, there can be no frustration when the parties anticipated the very issue at hand. See
Valencia Center, Inc. v. Publix Super Markets, Inc., 464 So, 2d 1267, 1269 (Fla. 3d DCA 1985)
(holding that central to the doctrine of commercial frustration is the element of non-
foreseeability of the intervening event causing the frustration).

C. McCann itself sought to “kill” the Amendment.

In this case, if the “deferral” has the effect of a “denial”, that blame lies squarely at the

feet of McCann, not VOTT.

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 4 of 41Under the Agreement, the party responsible to pursue all land use authorizations is
McCann, not VOTT, and certainly not SDC or Rodriguez. See VOTT Agreement, para. 3,
attached as Exhibit “1”.

Here the Board of County Commissioners voted to defer consideration until January 15,
2011. McCann should have (but did not) re-set the hearing at that time.

On December 31, 2011, the time to re-set the hearing expired.’ McCann now argues that
somehow VOTT is to blame for McCann’s unexplained failure to re-set the hearing on the
deferred Amendment. This argument is completely backwards.

McCann, not VOTT, failed to re-set the hearing and in fact pushed to end the
Amendment. Specifically, on October 26, 2011, one year after the Commission deferred the
hearing, County Staff issued a report on the EEZ. See Staff Report attached as Exhibit “3”. In
the Staff Report the County stated as follows about the EEZ and the status of the EEZ
Amendment:

Sarasota County’s successful [EEZ] application was based on a land use
and economic plan comprised of five distinct parcels shown in figure 1
below [including McCann, SDC and VOTT properties]. A land use
amendment for the larger of the two parcels was deferred on October 26,
2010, pending resolution of issues between key stakeholders. That
deferral is still in effect.

See Exhibit “3” (emphasis added).

Therefore, as of October 2011, one year after the deferral, the deferral remained in

 

effect and the EEZ Amendment was alive and well.

 

' McCann suggests the deadline was November 15, 2010, 60 days after the County received the so-called “ORC
Report” from the Department of Community Affairs. This is a wrong conclusion. First, the County Staff obviously
didn’t agree. See Exhibit “3”. Second, the provision that local governments had 60 days to adopt a plan
amendment after receipt of the “ORC Report” has never been jurisdictional. As multiple cases hold, the 60-day
period was directory and not mandatory. See e.g., DCA vy, Hamilton County, DOAH Case No. 91-6038GM (1995)
(concluding that failure to adopt a plan amendment within the statutory 60-day deadline is “not a jurisdictional
matter” that would cause the amendment to be rejected “absent a showing of prejudice”); see also Sunset Drive
Holding LLC vs. City of Lake Worth and DCA, DOAH Case No. 00-1973GM (2011); Brevard County v. City of
Palm Bay, DOAH Case No, 00-1956GM (2003).

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 5 of 41In response, rather than moving the Amendment forward, on November 9, 2011, McCann
instructed the State Department of Community Affairs as follows:
Can you please send me the form letter sent by your office to all
municipalities, cities, and counties informing them that all open comp
plans will terminate by December 28, 2011.
See Exhibit “4”.
Six days later, McCann went one step further and asked the Department of Community

Affairs the following:

In summary, I need, on December 29, 2011, a letter from you or Ray or an
appropriate official acknowledging that my comp plan has terminated.

See Exhibit “5”,

Instead of re-setting the EEZ Amendment hearing (which was its obligation) McCann
worked to allow the EEZ Amendment to expire and to get evidence of that expiration. All of this
while McCann was suing all of the Defendants on the basis that the EEZ Amendment had
already expired: these exchanges took place six months after McCann filed this lawsuit alleging
the Amendment was “dead”.

Most importantly, as to the issue raised by McCann, these emails show that McCann
itself allowed its own comprehensive plan to expire. McCann cannot argue impossibility of

performance when it created the very impossibility of which it now complains,

In Marsh v. Butler County, 268 F. 3d 1014, 1022 (11" Cir. 2001), the 11" Circuit made
clear that a complaint 1s subject to dismissal when its allegations — on their face — show that an
affirmative defense bars recovery on a claim. /d. at 1022. Florida State courts agree: “[h]aving
committed the first breach, the general rule is that a material breach of the Agreement allows the
non-breaching party to treat the breach as a discharge of its contractual liability.” See Colucci v.

Kar Kare Automotive Group, Inc., 918 So.2d 431, 437 (Fla. 4" DCA 2006).

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 6 of 41Here, the Second Amended Complaint shows on its face that McCann breached the
Agreement by failing to re-set the deferred hearing, in fact actively seeking to “kill” the
Amendment on November 9 and 15, 2011. Because McCann did not pursue the appropriate land
use approvals, it cannot now be heard to complain, much less blame, VOTT or SDC or
Rodriguez.’

D. Other consideration supports the Agreement.

McCann’s Motion also ignores the other elements of consideration in the Agreement.
Because the Agreement reflects other consideration for the Agreement, the Agreement cannot
fail for lack of (or failure of) consideration. See Barnes v. Beaumont, 70 So. 2d 560, 563 (Fla.
1954)(while primary anticipated consideration for a contract did not constitute legal
consideration, other aspects of contract constituted sufficient consideration to keep contract from
being a nullity).

For instance, VOTT kept its property in the EEZ, where it remains to this day. Further,
both McCann and VOTT agreed to provide pedestrian and vehicular access across one another’s
property which can be accomplished without the cooperation of SDC. See Exhibit “1”,
paragraph 3. Finally, the VOTT Agreement obligated VOTT and McCann to support
intensification of use on “Area 2” property, which is a completely different parcel than

McCann’s parcel at issue in this case.

 

WHEREFORE, for all these reasons, the Court should deny Plaintiffs Motion for

Summary Judgment.

 

; By failing to re-set the hearing, it is also possible that other landowners could get EEZ benefits before Defendants.
Therefore, McCann’s failure to re-set the hearing has potentially damaged Defendants.

7

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 7 of 41CERTIFICATE OF SERVICE

J HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via Email only: STEVEN D. HUTTON, ESQ., SDH@bhuttonlawfirm.com and
EDWARD VOGLER, HI, ESQ., EdVogler@VoglerAshton.com this 2,-«7 day of November,
2012.

 

 

 

    

  

BENTLEY AND eo NG, PLA.

 

MORGAN ® BENTLEY, ESQ.

Fla. Bar #0962287

783 S. Orange Avenue, Suite 220

Sarasota, Florida 34236

Telephone: (941) 556-9030

Facsimile: (941) 312-5316

Attorneys for SDC COMMUNITIES, INC. and

HENRY RODRIGUEZ

Primary Email: mbentley@bentleyandbruning.com

Secondary Email: nwhite@bentleyandbruning.com
handrews(@bentleyandbruning.com

 

 

 

 

 

 

 

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 8 of 41. PREN E
' Edward Vogler If CLERK OF THE CIRCUIT Coe}
~ Vogler Ashion | BARAT Cae FLORIDA
| 2434 -AMenetes Avenue West . HIAHES Recelptaizao2

  

Prepared by\Return to; ) i23s .

 

 

ENERGY ECONOMIC ZONE -
JOINT COOPERATION AGREEMENT

THIS ENERGY ECONOMIC ZONE JOINT COOPERATION AGREEMENT
(Agreement) is made as of the date last executed below;~by and between SDC
COMMUNITIES, INC. a Florida Corporation (SDC*), VOTT-A, LLC, a Florida limited
liabaity company, VOTT-B, LLC, a Florida limited liability company, VOTT-C, LLC, a
Florida limited liability company, and VOTT-D, LLC, a Florida limited lability company,
{collectively “VOTT”) and MeGANN HOLDINGS, LTD., a Florida Limited Partnership
(“hicGann”) and is made with reference to the following facts:

RECITALS:

WHEREAS, VOTT is the record title holder of certain real property located in
Sarasola County, Florida, as legally described on Exhibit “A" attached hereto and
incorporated herein by this reference (“VOTT Property’), and —

WHEREAS, McCann is the record title holder of certain real property located in
Sarasola County, Florida, as legally described on Exhibit "B” attached hereto and
incorporated herein by this reference (“McCann Property’), and

WHEREAS, Sarasota County has initiated Comprehensive Plan Amendment
known as 2010-02-E (the “Amendment”) under which Amendment {i} the McCann
Property is designated as Area 1 of Special Planning Area 4 (“Area 1°), and {il) the
VOTT Property, together with certain real property owned by SDC COMMUNITIES;
INC. a Florida Corporation, is designated as Area 2 of Special Planning Area 4 (“Area
2 }, as depicted on the diagram attached hereto as Exhibit “C* and;

WHEREAS, the Amendment proposes to create an Energy Economic.Zone and
substantially increase the Intensity of uses authorized on the Area 1 property by virtue
of establishing an Major Employment Center and Village { Commercial Land Use

Designation within Area 1, and:

WHEREAS, VOTT is entitled to use the VOTT Property for approximately
development of 220,000 square feet of commercial and retail use the viability of which

will be severely impaired in the event McCann is..authorized to develop significant |
_ commercial and retail uses within Area 1 by virtue of the Amendmest,.and: ( a

i

Fited for Renord 08/30/2011 05:36 AM - Karen ©. Rushing, Clark of the Circuit Court - Sarasota County, FL - 2047 CA 003807 NC Dit-4 7pSa480 Page 19 of 34

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 9 of 41

 

fsFLORIOA:

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REM NENG HR LAY ASR UE A Me Een mate! | Ae ee BO Rese wo

gee Mah AE OR me A Ny a eT
2 &_ | WHEREAS, VOTT Is wilt Ing te withhold ites objection ta the Amendment and to
allow the VOTT Property to remain the proposed Energy Economic Zone only if
McCann agrees to the limitations set forth in this Agreement, and: |

___ WHEREAS, McCann and VOTT have jointly agreed to avoid undesirable
competition for commercial aff ttall uses, and have agreed to jointly support adoption

of the Amendment solely on the strict terms and conditions of this Agreement,

 

 

TERMS AND CONDITIONS

| NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of-which are hereby acknowledged,
'VOTT and McCann agree as follows: , :

4. ted Becke's. The above recitals are true and correct and are hereb:

incorporated herein. racist ier

_ Seventy HVE [ate (RUF,

2. Commercial Retdi| Limitation. McCann hereby covenants and agrees,

for itself and its successors gfid assigns, that commercial and retailluses located within

Area 7 shail not exceed ffiythousand (69,000) gross square feet in the aggregate. In

recognition of this agreement, McCann shall pursue all fand use authorizations and
entitlements in a manner that will effectuete the terms of this Agreement.

3. | Trangmittal Public Hearin

 

     
   
  

  

 

. Pu . A public hearing regarding the transmittal to
the Department of Community Affairs of the Amendment will be held on or about June
23, 2070, as continued from time to time, At that public hearing VOTT shall support
adoption of the Amendment, and will allow the VOTT Properly to remain the proposed
Energy Economic Zone. |

  
 

   
 

     
   

       
 

4. Sub t_Amendment Process _ar ation. Following
transmittal of the Amendment, the parties shall support the ndment in a manner
strictly consistent with this Agreement, including communications with the State of
Florida Department of Community Affairs, the adoption public hearing, any appeal
thereof, or any other process in connection with the Amendment Thereafter, all land
use enitiements and authorizations shall be pursued strictly In accordance with the
limitations provided for herein.

5. Enforcement. The parties hereto or their successors and
assigns, thay enforce the terms of this Agreement and all covenants and restrictions
coniained herein by any procedure avaiable at law or in equity or by any other
appropriate proceeding or legal process to enforce this Agreement, including without
limitation, bringing an action to restrain or enjoin any violation, attempted violation or

    

and

  

   

q SF teak a zim, a
eG cate kee A

a:

 

threatened violation of any of the covenants and restrictions contalned herein, and/or to .

recover damages for any such violation. The parties shall be authorized to take any and.
all action as they may determine in its sole and unfettered discretion, without notice and
all remedies shall be cumulative and shail be subject to simultaneous exercise without

an election at any time.

8 WE Strna ST Exceed. 2 (600 Fy Ek Cae? |
() @rv& PAawem ey WR 7D Excacst CE ete

 

 

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 10 of 41

 

RN A rm RE YR A CL eet

Fn NR NA Beata Nt A ele Tp A OM Aspe y ea. ae

at Bw RN AIEEE oes atthe os ee mee oe OL a fod ans at - eeenee . «he covenants and restrictions ~

tee structive Notice And Acceptar

contained in this Agreement shall run with the VOTT Property-and the McCani
Property, and shall bind and inure to the benefit of the successors tnd Neslons ware
and McCann. Every person and entity who now or hereinafter acquires any sight, title, -
estate, lease, or other interest in or to any of the parcels within the MeCann Prope is .
and shall be inclusively deemed to have consented and agreed to the restrictions _
contained in this Agreement, whether or not any reference to this Agreemenit’ is
contained in the instrument by which such person or entity acquires its interest in the

f. Miscellaneous,

7.1 Capacity. Each individual and entity executing this Agreement
hereby individually represents and warrants that he and/or it has the capacity set
forth on the signature pages hereof with full power and authority to bind the party
on whose behalf he and/or it fs executing this Agreement to the terms hereof.

    
 

 

 

 

7.2 Entire Agreement. This Agreement constitutes the entire
Agreement between Purchaser and Seller relating to this matter and supersedes
ali other prior agreements and representations in connection therewith.

7.3 No Amendment or Waiver. This Agreement shall not be altered,
amended, changed, waived, terminated or otherwise modified In any respect or
particular unless the same shall be In writing and signed by the parties hereto.

7.4 Governing Law/Venue. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Florida. The parties agree
that venue for any dispute arising out of this Agreement shall be brought in
Sarasola County, Florida.

_ 7.5 Headings. Section headings of this Agreement have been
inserted for convenience of reference only and will in no way modify or restrict
any provisions hereof or be used to construe any such provision.

 

_ 4.6 Severability. If any provision of this Agreement should be held to
be invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.

    

7.7 Interpretation and Enforcement: Attomeys’ Fees. |
action fs filed to interpret or enforce this Agreament, the prevailing party shall be
entitied to be awarded its reasonable attorneys' fees and disbursements through
ail appeals in addition to other costs and disbursements allowed by law, including

these incurred on appeal. |
71 & ape fe re) ERC Set? SP Keer™ FD

Conewaer (tap f Vella af Vif 2a OBL Trig? ig” “atte Malye

8. Effective Date. The “Effective Date” of this Agreement shall be the date
on which the last of VOTT and McCann executes this Agreement (the “Effective

Date") 2B gue Cine ee ce pep er rivrentihct Ds

HEE

not Mahe

 

 

  
 

 

 

 

 

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 11 of 41

 

Ste te ane nm ap fe

wt rte al

marc enewtrs oes at a rr’

rp teNcCANN HOLDINGS, LTD

A Florida limited partnership

By: Palmer Ranch Moldings, Inc.
A Florida corporation

Its: General Partner

 

a oe i HS, CL

 

Its: ,

 

STATE OF FLORIDA
COUNTY OF _ 5 P22 7S eI

This instrument was acknowledged before me this A? a7 dayof J #&e €
2010 by 4 tug h Ff Cv hte hove, & 8S _ eens. “of Palmer
Ranch Holdings, , Inc., Inc., a Florida corporation, as General Partner of McCann
Holdings, Ltd, a Florida fimited partnership, on behalf of the limited partnership. Ha DG
is personally known tome [ ] produced
identification.

 

  

 

  

Notary Public — State of E #10 *
My Commission Explres May 2%, 20 Bol.

Fed for Record 08/30/2011 08:36.4M - Karen E. Rushing, Clerk of the Clreut Court - ~ Sarasota County, Fl - 20717 CA O0887 NO Dit-a7nesasn Page 22 of 34

 

 

 

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 12 of 41VOTT-A, LLC:
a Florida limited fablity company

  
  
   

 

Its: Manager armky "ae oe Pueeh ore

VOTT-8, LLC
@ Florida limited lability company

WITNESSES: | VOTT.C, LLe

 

WITNESSES: VOTT-D, LLC

 

 

Filed for Record 08/30/2011 (8736 AM - Karen E. Rushing, Clerk ofthe Cheutt Court - ~ Sarasote County, FL - 2011 CAG Ne ona cea ASE

 

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 13 of 41

= = aera 92, —
Se racy ere ee eee re aan
> i

2 a TT A id arate AE reg iy yes ee,STATEOF Foci | : | [.
COUNTY OF Sue4s0777 ——

This instrument was acknowledged before me this > day of TURE 2010 by
David H. Baldauf, as Manager of VOTT-A, LLC; VOTT-B, LLG: VOTT-C.LL@ and VOTT-D,

LLG, all Florida limited lability companias, on behalf of tha companies. He is personally —
as identification’

known tome [ ] produced

 

Pei Name ot “Subs oe "] ae) EL the cp hk
My Commission Expires ma 3

   

 

Filed for Record 08/30/2011 08:36 AM ~ Karen E. Rushing, Clerk of the Circuit Court - ~ Saraota County, FL 2011 CA D03857 NC DkL-47062480 00 Faye 24ef 31 —_

 

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 14 of 41

 

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Legal Description

VOTT

 

A parcel of land being g portion of lands described in Official Records Instrument #2005] 98624.
Public Records of Sarasota County, Florida. This portion lies in Section 24, Township 38 South,
Range 18 East, Sarasota County, Florida, described as follows: “sa

Commence at the Southwest comer of Section 24, Township 38 South, Rarige 18 East, Sarasota
County, Florida; thence § $9°36'31" E, along the South line of said Section 24, a distance of
1714.03 feet lo a~point on the Easterly Right of Way of State Road 68! (Right of Way Width
varies), per Road Pist Book 2, Page 39, Public Records of Sarasoia County, Florida, the next five
(5) courses are along said Right of Way line; (1) thence N 26°04"17" E, a distance of [00.21 feet
to the point of curvature of a curve tuming to the left with a radius of 5859.58 feet, a delta angle
of 4°S122", & chord bearing of N 23°38'36" E, a chord length of 496.47 feet; (2) thence along the
arc of said curve, an are length of 496.62 feet to the POINT OF BEGINNING, same being a
point on the continuation of said curve turing to the left with a redius of 5859.58 feet, a deltz
angle of 14°28'23", a chord bearing of N 13°58'44" E, s chord length of 1476.23 feet; (3) thance
along the arc of said curve, an arc length of 1486.16 feet to a point on @ non-tangent line; (4)
thence N 03°4322”" E, a distance of 383.93 feet: (3) thence N 06°44°92" E, a distance of 756,43
feet, thence $ 81°39'35" E, leaving said Right of Way, a distance of 68,21 feet: thence N
| Tei? E, a distance of 33.27 feet; thence § 85°24'35" E, a distance of 154.65 feet; thence S
O4°33'25" W, a distance of 344.3) icet: thence 5 8$°24°35" E a distance of 959.97 feet toa point
on the West line of lands described in Official Records Instrument 42005008586, Public Records
of Sarasota County, Florida; thence 5 11°4726* E, along said West line, a distance of 960.09
feet: thence N B9°12'48" W, a distance of $12.83 feet to a point on a curve tuming to the left with
a radius of $26.00 fet, a delta angle of 125°30'37", a chord bearing of $ 78°3]'42" W, s chard
length of 757.48 feet: thence along the arc of said curve, an are length of 933.18 feet to the point.
of tangency; thence $ [5°46°23" W, a distance of 1159.50 feet; thence N 76°21°16" W. » distance

of 288.06 fvet to the Point of Beginning.

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Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 15 of 41EXHIBIT ogr
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Filed for Record 08/30/2011 08:36 AM - Karen £, Rushing, Clerk of the Circuit Court - Saraecta County, FL - 2011 CA 003897 NC Oid-470683480 Page 26 of 34

 

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 16 of 41

 

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Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 17 of 41

 

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PR rt pes neyC . ORDINANCE NO. 2012-005

AN ORDINANCE OF THE COUNTY OF SARASOTA, FLORIDA,

RELATING TO THE ENERGY ECONOMIC ZONE PILOT

PROGRAM, CODIFIED AS ARTICLE XIII OF CHAPTER 380F © =;
THE SARASOTA COUNTY CODE; PROVIDING FINDINGS OR=-. i=.
FACT; PROVIDING A SHORT TITLE; PROVIDING A2°S.. =) (2=
PURPOSE; PROVIDING DEFINITIONS; PROVIDING FOR*=!. °! oo
ENERGY ECONOMIC ZONE BOUNDARIES; PROVIDING FOR....0 = l=
ELIGIBILITY CRITERIA; PROVIDING FOR ENERGY2:20-
EFFICIENCY STANDARDS; PROVIDING FOR APPLICATION/ ==:
APPLICATION REVIEW/ BOARD DETERMINATION?” a
PROCESS; PROVIDING FOR PROGRAM REVIEW: 3 © =
PROVIDING A SUNSET DATE; PROVIDING A SEVERABILITY

CLAUSE; PROVIDING FOR AN EFFECTIVE DATE.

 

NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF SARASOTA COUNTY, FLORIDA:

SECTION IL. There is hereby created a new Article XIII of Chapter 38 of the Sarasota County
Code of Ordinances (the “Code), entitled “Energy Economic Zone Pilot Program”,

SECTION 2. Article XII of Chapter 38 of the Code is hereby created to read as follows:
ARTICLE XII. ENERGY ECONOMIC ZONE PILOT PROGRAM
Sec. 38-300. Findings of Fact.

(a) In 2009, the Florida Legislature created the Energy Economic
Zone (EEZ) Pilot Program (Section 377.809, Florida Statutes) for
purposes to include developing a model to help communities
cultivate green economic development, encourage renewable
electric energy generation, and promote the manufacturing of
products that contribute to energy conservation and green jobs. The
legislation set forth an application process for local governments
applying to the State for designation as a pilot community and
limited eligible locations within a pilot community to adopted
urban service areas and a county landfill outside the urban service
boundary.

 

(b) The application process required applicants to indicate: (1) the
anticipated boundaries of the EEZ, (2) how the projected EEZ
would lend itself to mixed-use and form-based standards.
multimodal transportation facilities and/or renewable energy
facilities, and (3) a strategic plan illustrating how the EEZ would
allow for promotion of land use and development patterns to: (i)
reduce reliance on automobiles: (ii) encourage certified green

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Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 18 of 41building development and renewable energy systems; (iii) ce
encourage creation of green jobs; and (iv) demonstrate how local (:
financial and regulatory incentives will be used in the EEZ. In

2009, Sarasota County and the City of Miami Beach were selected

by the State as the two communities to participate in the EEZ Pilot

Program.

(c)  In2011, the legislature amended Section 377.809, Florida Statutes,
providing that all the incentives and benefits available to enterprise
zones pursuant to state law and other specifically identified
benefits will be available within an EEZ and setting forth the
process by which each of the EEZ goveming bodies would
implement the EEZ Program within its jurisdiction.

(d) —s In order to provide EEZ incentives, the EEZ governing body must
adopt an ordinance no later than March 1, 2012 that establishes the
boundaries of the EEZ, specifies applicable energy efficiency
standards for businesses within the EEZ, and determines eligibility
criteria for those businesses applying for EEZ incentives. The
EEZ boundaries may be revised by amending the ordinance.

(e) Section 377.809, Florida Statutes further provides that effective
July .1,.2012, .the total:.amount.of state credits, refunds and
"A 2eRemnplions: that-may-be-provided hy-each. LEZ governing body to
-.- ., nceligtiesbusinesses. forckEZ- incentives tis/3300300 in any state
~ tr fiseahgear-ithe $306 0Gsincentiverap ismot- filly used:in any
single state fiscal year, the unused amount of the cap may be

carried forward for up to 5 years.

 

(f) Each EEZ governing body is responsible for allocating the
incentives, for verifying that businesses receiving such incentives
are eligible for the incentives provided, and for ensuring that the
incentives provided do not exceed the cap for the state fiscal year.

(zg) As provided by law, no later than February 15, 2015, the Flonda
Department of Economic Opportunity (DEO) is to evaluate each
EEZ Pilot Program and report to the Governor and Legislature any
recommended revisions.

Sec. 38-301. Short Title.

This article shall be known as the “Energy Economic Zone Pilot
Program”.

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Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 19 of 41a ae ye

C - Sec, 38-302 Purpose.

The Energy Economic Develop Zone Pilot Program has been developed to
help communities cultivate green economic development, encourage
renewable electric energy generation, manufacture products that contribute
to energy conservation and Green Jobs.

Sec. 38-303. Definitions.

(a) 681 Corridor Properties ~ properties identified in Sarasota
County’s application for the EEZ Pilot Program submitted to the
State, dated July 31, 2009,

(b) Board — Sarasota County Board of County Commissioners

{c) Clean Technology Business — business that produces products,
services, or processes that harness renewable materials and energy
sources, dramatically reduce the use of natural resources, and cut
or eliminate emissions and wastes.

(d) Green Business ~ manufacturing, industrial or research and

development business that is managed to minimize adverse

sie environmental impacts regardless of the product or services the
a business offers and is certified as a Sarasota County Green
= Business Partner or has committed to become certified within 6
ce
=.

 

months of receiving incentives.

(¢) Green Jobs - Jobs in either a Clean Technology Business or a
Green Business.

(f} Major Employment Center (MEC)} —- planned or existing
concentrations of industrial, manufacturing, wholesale, and office
employment in unincorporated Sarasota County, as shown on the
Future Land Use Map of the Sarasota County Comprehensive Plan,
dated October 2010. MECs are generally significant in size and
are located near major transportation routes with convenient access
for the working population. The land use plan for some MECs has
been created by the County through the recognition of existing
land uses and the recognition of future Opportunities, while the
land use plan for other MECs has come from approved
Developments of Regional Impact (DRIs).

(g) Manufacturing- making or processing goods, especially in large
quantities and by means of industrial machines.

(h) Urban Service Area — area identified in the governing body’s
comprehensive plan where public facilities and services, includin g,
but not limited to, central water and sewer capacity and roads, are
already in place or are indentified in the capital improvements

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Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 20 of 41element. This term includes any areas identified in the oon
comprehensive plan as urban service areas, regardless of local RS
government limitation.

Sec. 38-304, Energy Economic Zone Boundaries.

The EEZ shall be comprised of the 681 Corridor Properties; the Central
County Solid Waste Disposal Complex permitted area, consisting of
approximately 550 acres, located at 4000 Knights Trail Road, Nokomis;
Major Employment Centers (MECs); and Urban Service Areas within
Sarasota County municipalities, provided that the municipality has
adopted a resolution or ordinance authorizing those areas to be included in
the EEZ. |

Sec. 38-305. Eligibility Criteria. Eligibility to apply for EEZ incentives is
limited to businesses that meet all of the following criteria:

(a) Business located within the boundaries of the EEZ, as defined in
Section 38-304 herein,
(b) Business is either a Clean Technology Business or a Green
Business as defined in Section 38-303 herein,
(c). ..Business meets or exceeds the Energy Efficiency Standards set
/ o>. forth ta Section 38-306 herem, and a
. vaddnceBusinesssail-ereate five (5). new full time permanent jobs in the Co)
.. ww iwleanFechnologycor Green Business research and development *e
sectors or ten (10) new full-time permanent jobs in the Green
_ Business manufacturing or Green Business industrial sectors.

Sec. 38-306. Energy Efficiency Standards. Applicants must meet one of the
following three (3) standards:

(a) An ENERGY STAR Rating of 60 or higher in each of the
buildings which are the subject of the EEZ application and attach
to the application a report from the ENERGY STAR Portfolio - -
Manager program verifying the ENERGY STAR rating. In the
event the applicant’s building type, length of occupancy or other
factors affect its ability to be given an ENERGY STAR Rating
through Portfolio Manager, the applicant shall provide detailed
information as to why it cannot obtain the rating and request an
evaluation of energy use by staff which shall serve as an
alternative determination of achieving the required energy
efficiency standard. This information may be subject to
verification by staff in evaluating the application. In the event the
Applicant cannot meet an ENERGY STAR Rating of 60 or higher
at the time of filing the application, it may make a commitment to
do so within 6 months of approval of the incentive and must |

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Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 21 of 41present a comprehensive energy management strategy outlining
how it will do so. Failure to timely meet the required ENERGY
STAR rating may result in revocation of the EEZ incentives and
recovery of any tax rebates, fees or credits received by Applicant.

 

(b) An energy performance standard of at least five percent (5) above
state energy code requirements at the time of the application. The
application must include a copy of the energy code print report
(Form 405) for code compliance indicating compliance with this
requirement. In the event the applicant has not yet completed the
construction of the building(s), it must commit in its application to
meet this standard upon completion and present design documents
or statements by design professionals that indicate that the
requisite energy standard is included in the building plans. Failure
to timely meet the required energy code requirements may result in
revocation of the EEZ inceritives and recovery of any tax rebates,
fees or credits received by applicant.

(c) LEED certification or Florida Green Building certification.

Sec, 38-307, Application/ Application Review/Board Determination.

\
Hk d,

The Board shall adopt by resolution an EEZ Program Application and the

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& o processes for application review and final Board determination.
aig eo Sec. 38-308. Program Review.

The Board shall review the Energy Economic Zone boundaries, the
Eligibility Criteria and the Energy Efficiency Standards no later than six
(6) months from July 1, 2012 and at least annually thereafter throughout
the duration of the Program to determine if any revisions should be made.

Section 38-309. Sunset Date.

This Ordinance shall remain in effect until such date as the EEZ Program
is terminated by the State, unless repealed earlier by the Board.

SECTION 3. Severability Clause.

If any provision of this ordinance is for any reason final ly held invalid or unconstitutional
by any court of competent jurisdiction, such provision shall be deemed a separate
distinct and independent provision and such holding shall not affect the validity of the
remaining provisions. 7

SECTION 4. Effective Date.

| This Ordinance shall take effect upon filing with the Office of Secretary of State of the
| State of Florida. oe
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Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 22 of 41PASSED AND DULY ADOPTED bv the Board of County Commissioners of Sarasota -
County, Florida, thisol=) “day of February, 2012. C
BOARD OF COUNTY ITY FLoniba
ATTEST:
KAREN E. RUSHING, Clerk of the

 

Circuit Court and Ex-Officio Clerk
of the Board of County Commissioners
of Sarasota + County, Florida

  

 

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Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 23 of 41L SUMMARY

Sarasota County is one of two pilot communities in Florida chosen 4 ae and test pone

   
  

pilot communities are to develop policies and programs t
development, encourage renewable electric energy generation a

   

Sy

BEEZ boundaries, ‘establishes standards and aig val a e the incentives ‘and provide an
semitives are capped at $300,000 per

  
   
  

sveral econor ic ee clopment programs in recent years that

pie nol | County and The City of Miami Beach were , selected as
rogram policies.

Requirements for de‘ ie oping the EEZ program and incentives are contained in three main
documents: the 2009 law creating the program, Sarasota County’s application for selection as an
EEZ pilot community, and the 2011 legislation containing EEZ incentives.

 

Section 377.809, Florida Statutes (2009) - Energy Economic Zone Pilot Program Enacted

Purpose and Goals:

   

e Cultivating green economic development

 

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 24 of 41e Encouraging renewable electric energy generation
e Manufacturing of products that contribute to energy conservation

e Promoting the development of green jobs, and

e Promoting mixed-use land use patterns that incorporate multi-modal features

 
  
   
  
 
   

ving criteria:

e The energy economic zone must be within an adopted Urban Service Area or may
include a landfill outside of the Urban Service Area sO

« The zone must lend itself to mixed-use and ls... multimodal

 
 
 

   

strating that the zone. would allow

i See
fers to: 0) reduce”

eplan ills

     
   
 

automobiles: 2) encourage certified ereen ‘buil
systems; 3) encourage creation of green jobs; and, :

regulatory incentives will be used imthe energy econom

 

    
 
 
 
 

as

Sarasota County’s successful application was
of five distinct a areas shown in ligure L belo

 

  

2 Suto ee

F igure I: Sarasota County Energy Economic Zone — Current Boundaries

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 25 of 41Chapter 377.809, Florida Statutes (2011)

- EEZ Incentives Established

     

e By March 1, 2012, each local governing board that has jurisdiction over an EEZ must
adopt an ordinance to:

o Establish the boundary of the Energy Economic Zone, with a provision allowing a
change in boundaries by ordinance amendment

© Specify applicable energy-efficiency standards

o Determine eligibility criteria for the application of state and local incentives

  
 
   
 
 
 

e The total amount of state credits, refunds an:
governing body of each EEZ to eligible busir
designated EEZ in any state fiscal year. If the
any one state fiscal year by an EEZ, the unusec
forward for up to 5 years

EEZ pilot program communities

    
  

Enterprise Zone legislation
residents of th

 

purchase 6 of certain equipment. the lesser of $5, 000 or 97 percent of the tax said
For projects where at least 20 percent of the employees live in the EEZ or
enterprise zone, the refund is the lesser of $10,000 or 97 percent of the tax paid

o Urban EEKZ Jobs Credit against Sales Tax: Provides a sales and use tax credit
for up to 30 percent of wages paid to new employees who live within the EEZ or
an enterprise zone

© Business Property Used in an EEZ: Provides a refund for sales tax paid on the
purchase of certain business property, the lesser of $5,000 or 97 percent of the tax

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 26 of 41paid per parcel of property, which is used exclusively in the EEZ or enterprise
zone for at least 3 years

o Community Contribution Tax Credit: Provides up to 50 percent sales tax
refund for donations made to local community development projects (not
applicable to Sarasota County)

o Electrical Energy Used in an EEZ: Provides up to 50 percent sales tax
exemption to qualified businesses located within the EEZ or enterprise zone on
the purchase of electrical energy. Note that this would not apply in Sarasota
County as there is no County tax on electric energy 4

    

      
  
 
 
  
  

o Urban EEZ Jobs Credit against Corporate In ony fax: Provides a corporate
O°
O ovides up to a 50 percent credit on

um, tax, or a sales tax refund for

o Qualhfied Target Indust - .
business located in an EEZ m

developm ent transportation funding (the “Road Fund”) up to $3,000,000 per
project per year
Developments of Regional Impact (DRI): Developments in an EEZ may be

exempt from the DRI requirements set forth in Chapter 380.06, F.S., upon
approval of the local governing body with jurisdiction over the EEZ

   

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 27 of 41V._ OPTIONS FOR DESIGNING THE EEZ INCENTIVE PROGRAM

   

In the process of developing the EEZ ordinance, several questions have arisen on which Board
direction is needed. Like other incentive programs, prospective applicants will be required to
show some measure of job creation. However, unlike other incentive programs, the EEZ
incentive program is directed by state law to establish requirements related to energy efficiency,
EEZ boundaries and energy efficiency standards. These requirements affect program design in
two major areas: A) Eligibility Criteria and B) the Process and .Schedule for Awarding
Incentives.

  
 
  
  
  
     
      

A: ELIGIBILITY CRITERIA
1) Location and Boundaries of the EEZ

Option 1: Keep the boundaries in their current sonfeur yA, v
Solid Waste Disposal Complex (landfill, and four areas within . the Urban Service > Boundary
(USB) (see Figure 1, page 2). ‘3 “

 

 

 

 

 

 

 

 

 

A IBS Zane Fo

“en CITY OF NORTH PORT.

Figure 2 ~— Location of MEC areas in Sarasota County

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 28 of 41Option 4: Option 4 is a hybrid approach that opens up eligibility to all businesses within the USB
and the landfill. However, a point system assigns higher scores to those businesses located in
MECs. There are two variations:

a. Grant points to businesses located in any MEC.

b. Grant additional bonus points for the preferred MECs - one in North County and one in
South County.

   
  
 
 
 
  
  
  
  
  
 
  
 

2) Job Creation

Since promoting and creating green Jobs is an impor comp : at of the program, a ranking

creation threshold may need to be established.

3) “nergy Eifrereney | Standard

Se
Bh

efficiency standards”. “Staff is currently working v with the (
on how to apply this requirement. |

Several areas where energy efficiency  stimdards may apply ave been identified such as
buildings, transportation and items purcha: He j ives

that contribute t to energy oC
green busines ,

either have been certified as a Sarasota County Green Business
ted to become certified within 6 months of receiving incentives.

   
 
   

are ‘producers 0 oreen 1 products or services.

The EEZ team reviewed research from several organizations, as well as local economic
development information, to identify “Priority Sectors” based on Sarasota County’s areas of
economic strength and potential growth. Those Priority Sectors are as follows:

* Clean Energy Generation
e Energy Storage
¢ Energy Infrastructure

Filed for Record 11/20/2012 01:51 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2011 CA 003897 NC Dkt-36784220 Page 29 of 41¢ Energy Efficiency

¢« Green Construction

e Agriculture

¢ Water and Wastewa