Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW CORRIGAN, District Judge. In this case, plaintiff Jackson-Shaw Company (“Jackson-Shaw”) challenges a long term lease between the Jacksonville Aviation Authority (“JAA” or “Authority”) and a competing commercial developer for the developer’s long-term use of 328 acres of JAA-owned vacant land adjacent to Jackson-Shaw’s development near the Jacksonville International Airport in Jacksonville, Florida. Jackson-Shaw contends that JAA’s agreement with developer Majestic Realty Company (“Majestic”), in which the Authority granted Majestic a five to 15-year Option — at no cost to Majestic — to use and commercially develop the JAA’s property on terms favorable to Majestic, and with virtually no return to the JAA until Majestic’s development turns a profit, is unlawful. First, Jackson-Shaw argues that the transaction, which was negotiated between JAA and Majestic without public bids or requests for proposals from other developers, is invalid under JAA’s Charter, 2004 Fla. Law 464, and Section 315, Florida Statutes. (Doc. 65.) Further, Jackson-Shaw argues that the transaction violates the Florida Constitution’s prohibition against a government entity becoming a “joint owner” with, or lending or giving credit to, any corporation. Fla. Const, art. VII, § 10. Jackson-Shaw seeks declaratory and injunctive relief. The Court has diversity jurisdiction under 28 U.S.C. § 1332. The Court conducted a four-day bench trial in October 2006 (Docs. 89-92) and heard closing arguments on November 1, 2006. (Doc. 95.) Having reviewed the pleadings, examined the evidence, observed the witnesses, read the parties’ proposed findings and conclusions (Docs. 93, 94), and considered the arguments, the Court makes the following findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a). I. The Pertinent Evidence A. The Parties 1. Jacksorir-Shaw Jackson-Shaw is a large 35-year old development company headquartered in Dallas, Texas, with offices in Dallas, Las Vegas, Maryland, and Florida. It is involved in developments on a national scale, ranging from hotels to office buildings, warehouse and industrial properties. Implementing its business plan, the company came to Jacksonville in 2004 to research the market and find a commercial development project and entrepreneurial opportunity. In late summer 2005, Jackson-Shaw made an offer on a privately-owned parcel of commercially developed property known as the Jacksonville International Trade-port (“Tradeport”), which is located near the Jacksonville International Airport. (Tr. I at 56-60; Tr. II at 216-18, 222; Ex. 9.) Jackson-Shaw entered into a contract to purchase the Tradeport property in October 2005, and the sale closed in February, 2006. Jackson-Shaw paid $109,000 an acre, or a total of $58,215,000. (Tr. I at 83; Tr. II at 220-22; Tr. IV at 42, 50; Ex. 91; Doc. 94-2 at 12.) Tradeport is bounded on the west by International Airport Boulevard, on the north by Airport Road, and on the east by Duval Road. The southern boundary of Tradeport is adjacent to JAA’s property known as Woodwings East, which is the subject of this lawsuit; Tradeport is located immediately to the north of Woodwings East. When acquired by Jackson-Shaw, Tradeport consisted of nine multi-tenant distributional-type light industrial warehouse and office facilities, totaling 994,000 square feet which was 89% leased, plus seven tracts of vacant development parcels totaling 85 acres. (Tr. I at 60-61; Tr. II at 220, 222, 224, 264; Tr. IV at 50-51; see Exs. 42, 209.) Jackson-Shaw is currently attempting to expand the existing Trade-port portfolio of 994,000 square feet of buildings by adding a hotel, restaurants and commercial frontage on Airport Road, a multi-tenant office building, and 500,000 square feet of additional warehouse space. (Tr. I at 63-64; Ex. 189.) Jackson-Shaw’s planned first phase of development is a 400.000 square foot warehouse to be commenced by January 2007; the remaining 600.000 square feet of planned build-out will span a five year period. (Tr. IV at 52-53.) 2. The Jacksonville Aviation Authority The JAA is public body, established by Florida law to develop and administer public airports in Jacksonville, Florida. It is a political subdivision of the state of Florida, 2004 Fla. Laws 464, § 14, and it has responsibility for the planning, management and oversite of four airports located in Duval County, including the Jacksonville International Airport (“JIA”) and three smaller air fields, as well as management of a considerable portfolio of undeveloped land. The JAA derives its power and authority from its Charter, which is a special act of the Legislature. 2004 Fla. Laws 464. (See Tr. III at 18; Ct. Ex. 1 at 28.) The JAA was created to “operate, manage, and control all publically owned airports and ancillary facilities located within Duval County” as provided by statute. 2004 Fla. Laws 464, § 1(1). The JAA is governed by a seven-member board of directors, four appointed by the governor of Florida, and three appointed by the mayor of Jacksonville. (Tr. III at 103.) The JAA possesses no independent taxing authority, and receives its revenues from state and federal grants, landing fees, rentals, concession fees and facility lease fees. The JAA has approximately 4,000 to 6,000 acres of land in its portfolio available for development, depending upon possible future runway configurations. Much of the land available is located in the vicinity of JIA including 328-acre Woodwings East, and its sister parcel of vacant land, 890-acre Woodwings West across International Arport Boulevard, though some is predominantly wetlands. (Tr. I at 89; Tr. Ill at 237; Ex. 62 at 00105.) In 2004, the JAA created the Enterprise Division to focus on maximizing the value of the Authority’s undeveloped property, and to diversify the JAA’s revenue sources. (Tr. I at 130.) Bingham Parkinson was named president of the Enterprise Division on October 1, 2004. (Tr. I at 124.) The Enterprise Division is comprised of the real estate division and the consultative services division. The real estate division is responsible for leasing non-aeronautical land at JAA’s four airports to enable non-aeronautical development and generate revenue to the Authority. (Tr. I at 129-30.) Richard Rossi was hired as vice president for the real estate division on January 15, 2005. Board member Jack Deme-tree, a long-time Jacksonville developer, serves as the board’s liaison with the JAA’s staff in the Enterprise Division. (Tr. III at 269; Ct. Ex. 1 at 72; Ct. Ex. 6 at 7, 9-10.) 3. Majestic Majestic is a private corporation created in 1948 and headquartered in Los Angeles County, California, with regional offices in Atlanta, Dallas, Denver and Las Vegas. Majestic specializes in planning and development of business parks, with its primary holdings being industrial. It has an office, retail and industrial portfolio totaling more than 69 million square feet. (Exs. 99 at 00049; 128.) According to JAA board member Demetree and otherwise undisputed, Majestic has a good reputation as a developer, and is the largest privately held commercial developer in the country in terms of amount of square feet of buildings it controls. (Ct. Ex. 6 at 47.) In October 2005, while negotiating with JAA over the terms of the Woodwings East project, Majestic purchased 46.8 acres of vacant property at Tradeport, south of but not fronting on Airport Road. It paid $2.50 a square foot, or $108,900 an acre (or $5,096,520 for the entire parcel). (Tr. I at 85; Tr. II at 22-23.) 4. The Property Woodwings East is owned by JAA and consists of approximately 328 unimproved acres of land lying southeast of JIA. It is located approximately one mile west of Interstate 95, south of Airport Road and to the north of and contiguous to Interstate 295. Ground access to Woodwings East is available via Duval Road, which bisects a corner of the property, or via the new International Airport Boulevard. A portion of the property was acquired by eminent domain. It is a part of the Jacksonville International Airport Development of Regional Impact (“DRI”), and, at the time of trial, was tax exempt. (Ct. Ex. 5, ¶ 4; Tr. I at 131; see Exs. 62 at 00075; 194; and 209.) The Authority had attempted in the past to develop the Woodwings East parcel into an industrial and office park. (Ct. Ex. 5, ¶4.) In the late 1990’s, JAA had discussions with large-scale developer The St. Joe Company (“St. Joe”), which had approached the Authority in 1998 concerning the development of Woodwings East. As talks with St. Joe progressed, the negotiations were challenged by another developer. In response, JAA issued a Request for Qualifications and Experience. (Ex. 3.) Though JAA officials mistakenly believed that St. Joe was the only respondent, (Tr. II at 145-6; Ct. Ex. 1 at 144; Tr. Ill at 115, 241-42), three developers actually responded in March 1999. The Authority chose St. Joe of the three. (Tr. III at 137-43; Ex. 50 at 00193.) Negotiations with St. Joe eventually broke off. (Tr. Ill at 115-17,120; Ct. Ex. 1 at 143-45.) The JAA retained consulting firm Reynolds, Smith and Hills, Inc. (“RS & H”) to prepare recommendations for the highest and best use on undeveloped land at the airport. On September 15, 2004, RS & H recommended that Woodwings East be “developed as light industrial and commercial sites, with additional uses including service station/retail uses, logistics centers (truck terminals), and other complimentary commercial uses,” (Ex. 62 at 00080) and that hotels, restaurants, convenience and services businesses, be located adjacent to the new 1-295 interchange. (Id. at 00105; see Tr. I at 94.) The JAA has never had the Woodwings East property’s value appraised. Rather, the Authority estimated the value of Woodwings East based on a price it negotiated to purchase a parcel of undeveloped property located to the northeast. (Tr. 1 at 134-36; Tr. Ill at 167, 243-46.) That property, called Percy Oaks, consists of 36)6 acres, more than half of which are wetlands. It is zoned for single-family residential development. The JAA purchased Percy Oaks on September 6, 2006 for $690,000, or $18,904 an acre. (Tr. II at 62-66.) Based upon the Percy Oaks transaction, and upon conversations with real estate brokers, JAA real estate division vice president Rossi said the Authority estimated in 2005 that the Woodwings East property was worth between $35,000 and $50,000 an acre, or approximately $10 million. (Tr. Ill at 243-49.) At trial, a substantial question was raised whether JAA had failed to properly appraise the property and whether it had undervalued the property for purposes of its negotiations with Majestic. B. Marketing On August 18, 2003, the Authority conducted a Non-Aviation Real Estate Development Board Workshop to discuss strategies for putting some of the Authority’s real estate assets into production, including whether JAA should get directly involved in the development business, constructing infrastructure, and actually constructing buildings for lease. The goal of the meeting was to generate policy level guidance from the JAA Board regarding JAA’s non-aviation real estate development. According to notes of that meeting, JAA had available 700 acres near Jacksonville International Airport, plus nearly 700 acres of non-aviation development property near the other three smaller airports it owns and manages. (Tr. Ill at 120-21; Ct. Ex. 1 at 105; Ex. 60.) While the agenda for the meeting referred to three options for development: 1) ground leases, 2) “JAA build-to-suit,” and 3) “JAA’s forming partnership with developer to build facilities,” executive director Clark testified that the term “partnership” was used only to engender a sense of a business working relationship. “[W]e will call the airlines our partners ... [b]ut in fact they’re a tenant.” “[W]e know [by law] we can’t form partnerships.” (Ct. Ex. 1 at 108-09; Ex. 60.) Aso discussed at the strategy meeting was JAA’s required rate of return. (Ex. 60.) Director Clark testified that the JAA “do[es] not have a required rate of return. What we have operated on is what we consider kind of general norms or practices, industry norms and practices. And historically we have looked to get anywhere from eight to ten percent return,” which he said is the average rate of return in the airport industry. (Tr. Ill at 161; Ct. Ex. 1 at 110-11.) Further, Clark said “it was not our intent to underprice the market or directly compete. Clearly there is a level of competition, but the intent ... was to derive revenue for the airport to build that system.” (Ct. Ex. 1 at 120-21; Ex. 60.) The JAA determined that it would “ground lease only,” rather than use the Authority’s capital dollars to actually develop the property. “We wanted to enable development, not be in development,” according to Enterprise Division president Parkinson. (Tr. I at 164.) At that time and as an outcome of the workshop, the Authority created the Enterprise Division. (Tr. Ill at 160; Ct. Ex. 1 at 76.) The JAA did not retain a listing agent or any person to market the property directly, or a so-called “master developer” to oversee development of all of JAA’s non-aviation properties. (Ct. Ex. 1 at 74-75, 77-78, 124.) Rather, at the direction of Rossi, the Authority placed two signs on either side of International Airport Boulevard, one in Woodwings East, and another in Woodwings West. Additionally, the Authority issued a one-page brochure in 2003-04 stating that the JAA was looking for commercial and industrial development for Woodwings, without specifying that it was interested in a long term-lease. JAA officials had general discussions with several developers' and brokers about the availability of land for development near the airport, and attended chamber of commerce meetings. The Authority’s position was that the term of any leasehold would be determined by the developer’s level of investment and its plan to use the land; the larger the investment, the longer the lease. There were no discussions about possible options, lease terms, or value of the land, or of any specific deals. (Tr. I at 143-51, 161-62; Tr. II at 143; Tr. III at 129-31; Ct. Ex. 3 at 19-20; Ct. Ex. 6 at 24, 30; Exs. 27, 28, 31.) The Authority never considered putting the Woodwings East ground-lease development opportunity out for bid, subjecting it to a request for proposal or qualifications. (Ct. Ex. 1 at 207.) JAA says did not seek bids or proposals for the property because there was no indication of “multiple interest” in leasing and developing the property, combined with the fact that JAA had other vacant acreage available to lease for nonaeronautical development. In addition, as previously discussed, JAA was operating under the mistaken belief that the last time it requested proposals for the property in 1999, only St. Joe responded and negotiations broke down. “[W]e did it before and it didn’t materialize in a contract. So that’s something we wouldn’t keep doing and doing and doing,” testified Parkinson. (Tr. I at 152-54; see also Ct. Ex. 1 at 207; Ct. Ex. 3 at 24-25, 72.) We had several objectives when we were looking to obtain someone for the Woodwings East property. One of our main objectives was we wanted to make sure that we did not have to put out any more funds of ours other than the $750,000 [to construct a road] which was committed in our capital budget in 2005 which was the year before we even talked with Majestic.... ... We were looking for someone possibly of national exposure ... who could bring in companies who would increase the payroll and the jobs in the community- And also, we were seeking someone who would develop the entire parcel.... [W]e wanted a uniform campus, where we had control of the aesthetics and the appearance of the campus. (Tr. Ill at 232 (Rossi).) Specifically, the Authority did not want to be responsible for providing other infrastructure for Woodwings East, which the Authority estimated would cost $8 to $12 million, and would necessitate the Authority borrowing money impacting its debt ratios that it must maintain for an outstanding bond covenant. (Tr. III at 235.) Most important, the Authority was looking for a long-term revenue stream. (Id.) “Majestic ... came to the table, we had discussion with them, and we didn’t see the need to put it out [for bids].” (Ct. Ex. 1 at 207-08 (Clark); see also Tr. III at 135-36, 145; Ct. Ex. 1 at 210-11, 236.) Before reaching an agreement with Majestic, JAA received no indication or communication from Jackson-Shaw that it would be interested in leasing the Woodwings East property. (Tr. III at 148.) C. Negotiations Majestic executives first contacted JAA by telephone in February 2005, saying that they saw the JAA’s “For Lease” sign advertising Woodwings East. (Tr. II at 147-49; Exs. 27, 28.) Several weeks later, Majestic officials, who were fact-finding and looking into development possibilities in north Jacksonville, met with JAA real estate division vice president Rossi. This was followed by a series of phone conversations in which Majestic inquired into JAA’s requirements for business deals. The JAA provided the company with a map, and on March 24, 2005, Majestic forwarded to JAA by e-mail “a preliminary overview of the real estate and partnership structure we would propose creating (referred to as the Participating Ground Lease ‘PGL’),” attaching an outline of a PGL which provided for a long-term ground lease typically 50 years or longer. The overview explained that under the proposed PGL, the JAA and Majestic would split 50-50 the net revenues generated by the lessee’s improvements on the land, and JAA’s fee title would not be subordinated to the financing required to build the buildings or to attachment of liens. (Tr. II at 149-50; Ex. 64.) Rossi was the primary day-to-day JAA contact with Majestic. (Tr. III at 239, 250; Tr. IV at 14-15; Exs. 64-66.) In May or June 2005, Shane Bohart, Majestic’s associate director for national development, met at JAA a second time, this time to discuss what Majestic envisioned for developing the property as a commercial distribution center. Majestic’s proposed use was acceptable to JAA because “[w]e wanted someone to develop the entire parcel as one. We did not wish to piecemeal develop it” because the Authority wished the parcel to be aesthetically uniform. “We were also looking for someone with a substantial track record and successful track record in developing large pieces, where you had multiple buildings.” (Tr. II at 150-51 (Rossi).) The JAA requested that Majestic provide a site plan, which Majestic did in June or July, 2005. The possible structure of a transaction was not initially discussed. Several informational meetings followed throughout the summer of 2005. (Tr. II at 152-57.) Majestic supplied JAA with a participating ground lease form which it had used in other locations, and JAA provided Majestic with land lease forms containing provisions necessary to JAA. JAA worked with its legal counsel, the City of Jacksonville’s general counsel’s office, to “draft a lease arrangement.” Negotiations between Majestic and JAA were conducted via telephone; the only written record of the negotiations was the multiple successive and evolving drafts of the proposed agreement. (Tr. II at 164-66.) What emerged from the discussions by autumn 2005 was a two-part transaction: the Option to Ground Lease (“Option”) between JAA and Majestic, and the incorporated Participating Ground Lease Agreement (“PGL”). The proposed Option granted Majestic five years to enter into the first PGL with the Authority for a sub-parcel and to commence construction of commercial buildings. As construction proceeded, the Option would extend to up to 15 years, and Majestic and JAA would enter into a series of 65-year PGL’s for sub-parcels of Woodwings East on which Majestic would construct, operate and manage commercial buildings, leasing those buildings to third party tenants. Majestic and JAA would split the net revenue from those third party tenants on a 50-50 basis, after Majestic’s development, capital, and administrative expenses and other fees had been deducted from gross revenues. Majestic would not be required to pay for the Option. (See Exs. 73-80.) The parties did not negotiate over whether Majestic should pay a fee in return for the Option, or whether JAA should recover more than 50% of the net revenue. (Tr. Ill at 263.) On October 12-14, 2005, Rossi and Parkinson traveled to Los Angeles and met with management of Majestic “to complete the negotiations for their proposed ground lease of Woodwings East and to visit some of Majestic’s business parks in Southern California to gauge the quality of their developments.” (Tr. II at 158; Tr. IV at 19; Exs. 82, 83, 88.) However, inasmuch as negotiations over the framework were “pretty much completed,” there were no counter-proposals discussed at that meeting. Parkinson wrote that as a result of the meeting, JAA and Majestic “hope[d] to finalize the terms and conditions of the proposed lease ... by December 2005.” (Tr. I at 174; Ex. 88.) A two-page Majestic “PGL Proforma Illustration” summary, dated October 12, 2005, projected that the 3,378,000 square feet of buildings to be built by Majestic at Woodwings East would return to JAA $898.9 million of total revenue rent over the 65 year term of the PGLs, plus the $754.2 million projected future value of the “buildings/land” at the end of the PGLs, for a “total value to JAA” of $1,653,100,000. (Ex. 20; see Ex. 84 at 00486.) Majestic also presented a multi-page and detailed financial pro forma analysis, illustrating the projected year by year cash flow over the 80 year term of the deal. (Ex. 81.) On October 13, 2005, Majestic wrote to Parkinson and Rossi that “[a]s discussed, Majestic Realty Co. remains interested in establishing a long-term partnership with the Jacksonville Aviation Authority via a Participating Ground Lease (“PGL”) structure in regards to the ‘Woodwings East’ real estate (326.88 acres).” (Ex. 84 at 00465.) The binder provided by Majestic included Majestic’s proposed site plan concepts (master plan and phase 1), construction issues, financial pro formas, and the “[m]ost current version of the PGL document.” (Id.; Tr. IV at 19.) Parkinson said he looked at the “rental structure” and the “revenue potential” set forth in the pro formas but did not verify any of the numbers provided by Majestic or ask anyone to do so. Rather, he relied upon Rossi to determine whether the pro forma numbers were valid and that the proposal was comparable to the market rate of similar properties. (Tr. I at 169— 71, 193.) However, Rossi said that he never questioned or challenged Majestic’s pro forma financial estimates. (Tr. III at 272-74.) Clark said he believed Parkinson and Rossi analyzed Majestic’s proposed rent structure to determine whether it met the Authority’s 8 to 10 percent desired rate of return and he relied on Rossi and board member Demetree’s analysis of the transaction. (Tr. III at 161-62, 169.) Board members Burnett and Demetree both assumed that the Enterprise Division verified Majestic’s numbers to determine that they were comparable to the market. (Ct. Ex. 3 at 73-74; Ct. Ex. 6 at 70.) Upon return from California, Parkinson and Rossi reviewed the Majestic proposal with Clark and other members of JAA senior management team. None of the managers raised any concerns or had any specific questions. (Tr. I at 176-77.) When asked if he applied any “investment criteria” to evaluate the Majestic proposal, Parkinson said he “looked at the revenue stream that ... the aviation authority would generate on that deal ... the rental income plus the value of the investment, at a tune of about 1.6 billion [and] I thought that was a very, very good deal for the aviation authority,” which he said was a better return than any other JAA lease. Furthermore, Parkinson estimated that the Authority would average $25 million in annual revenue. Parkinson did not calculate the “rate of return” to JAA on the project, assuming that Rossi had done so. (Tr. I at 190-93.) Rossi said he made no studies into the validity of Majestic’s pro forma numbers or rate of return on the project. (Tr. Ill at 272-74.) At that point, following the October 2005 trip to Los Angeles, the JAA staff had concluded that Majestic and its proposal “met the [JAA’s] parameters.” “I was ready to do the deal, assuming we could come to terms on the contract. They met my objective.” (Tr. II at 159. (Rossi).) Based upon the “due diligence” by Rossi, and the pro formas provided by Majestic, Clark, Parkinson, and Rossi decided to recommend to the JAA Board that it approve the proposed agreement with Majestic. (Tr. I at 183-85; Tr. IV at 20.). Parkinson and Rossi first met with board member Jack Demetree. (Tr. II at 160; Ct. Ex. 6 at 63.) Demetree said he and Parkinson and Rossi went over the details of the October 2005 Majestic proposal, which Majestic had recalculated as of October 24 to yield an additional $20 million in net revenue to JAA. (See Ex. 90.) Demetree’s concern was JAA’s cost to attract Majestic to the property, and Majestic’s proposed rental which was based upon an equal split of the project’s net revenue; the bottom line being how much money would flow to the Authority. (Ct. Ex. 6 at 53-54.) Board chairman Burnett said she first heard about the Majestic proposal in October or November 2005, and that Clark briefed her “as to what a great deal this was going to be. That we had somebody who was interested in leasing Woodwings.” She testified that she did not review the Majestic written presentation or pro formas. (Ct. Ex. 3 at 40-41, 45-46.) Parkinson next scheduled individual meetings with JAA board members for November 15, 2005, because of the self-imposed “time constraints” to consummate the deal before the end of 2005, and the “complexity of the deal.” The meetings provided an opportunity for the JAA staff and Majestic representatives to brief the board members and to get them input prior to the next JAA board meeting. The individual meetings were conducted in the same JAA location, one after another. (Tr. I at 177-78; Tr. II at 158-61; Tr. III at 164-66; Tr. IV at 32-34; Ex. 92.) On November 30, 2005, two JAA board members traveled to California to view Majestic’s developments located there. (Tr. I at 179; Tr. II at 166-70; Exs. 103, 115.) Majestic provided JAA with a Participating Ground Lease pro forma, which Majestic endorsed as enabling JAA to “[rjealize more value from your vacant land without selling” and without subordinating JAA’s fee interest to the financing of the improvements on the land. (Tr. I at 179; Ex. 99 at 00036-37, 00040, 00094-95.) Majestic characterized the deal in which it would split net revenues generated by the leased improvements 50-50 with the JAA as a “win-win solution for both Landowners and Majestic alike.” (Ex. 99 at 00037-40.) By late November, the JAA, through its legal counsel, presented Majestic with a proposed contract representing the melding of the parties’ positions. (Tr. II at 171-72.) On December 19, 2005, the Option and incorporated PGL were presented to the JAA board of directors for the first time in a public meeting. The meeting was noticed on December 13, and the agenda for the meeting was on file at the Authority. (Tr. TV at 39; Ex. 124.) The Submission for Board Approval, which describes the framework of the deal, advised that Pursuant to its charge of diversifying the Jacksonville Aviation Authority’s (“JAA”) non-aviation revenue stream through the development of non-aeronautical real estate at JAA airports, the Enterprise Division identified and concentrated its efforts on the unimproved JAA real estate known as Woodwings East. The proposed arrangement provides JAA with a vehicle to generate significant cash flow for vacant non-producing land with a large industry leader with a successful track record of performing as promised and generating significant cash flow for landowners. (Tr. I at 189; Exs. 10 at 1, 2; 128 at 1, 2.) The proposed transaction was described as “a master plan development of the Woodw-ings East premises under a cash flow sharing lease agreement.” As presented to the Board, Under the Option to Ground Lease Agreement (“Option”), JAA grants Majestic the right/option to ground lease the Woodwings East premises (“Option Premises”) for a term not to exceed fifteen (15) years. In order to prevent “land banking”, the initial option term is five (5) years. It is extended one year for each one hundred thousand square feet (100,000 sq. ft.) of income producing properties Majestic constructs on the Option Premises up to a maximum of fifteen (15) years. Under the Participating Ground Lease (PGL) JAA leases a portion of Woodw-ings East option parcel to Majestic for a term of sixty-five (65) years. Majestic would design, finance, construct, manage, lease and operate the new building constructed on the PGL premises. The net revenue generated by the leased improvements would be split equally (50-50) between JAA and Majestic. The Net revenue computation is total revenue less projeet/operating costs, reserves (i.e. roof; mortgage etc.) and repayment of any equity contributions. JAA would retain fee ownership of the lease premises, “and there is no subordination of JAA’s fee interest to the financing required to build the buildings. JAA has no risk of liens attaching to the lease Premises as Majestic bonds against or discharges all liens made or filed.” (Ex. 128.) As part of the deal, JAA committed to spend $750,000 from its capital budget to extend Alvarez Road into the Woodwings East parcel. (Ex. 128; Ct. Ex. 3 at 31.) Clark testified that the Majestic deal is in the best interests of the Authority because “it’s a favorable agreement ... [that] meets exactly what we were intending to happen” because it “put[s] into place a long-term cash flow to the authority.” “On the short-term basis, we believe we have the abilities to raise revenues.... It’s the longer term and the intermediate term that we wanted.” The projected revenue over the 85-year life of the project “is very important to where we want to take the Aviation Authority future capital requirements.” (Tr. Ill at 122-23; Ct. Ex. 1 at 218.) According to board chairman Burnett, the presentation was that this was a good use for the property; “[t]here was some conversation before we voted at the board meeting ... and this was a good thing to do for the JAA.” (Ct. Ex. 3 at 49-51, 59 (“explanation and questions and answers” and “discussion”); Ex. 128; see also Ct. Ex. 6 at 66 (Demetree told the board that this was a “good deal”).) “[T]here was some discussion as to whether an option with no money was good or not. But we do a lot of incentive things to get companies to come to Jacksonville....” (Ct. Ex. 3 at 62.) As to the Option, Burnett testified that inasmuch as the land has been vacant, “[i]f that’s what it takes to get somebody to lease this property ..., let’s do whatever it takes to make the deal work.” (Id. at 62.) The JAA board unanimously approved the Option and PGL and authorized Clark to enter into and execute all necessary agreements. (Ex. 127 at 129.) Burnett said she voted for the project based upon the briefing at the meeting and the paper submission to the Board (Ex. 10) because “I thought in the best interest of the Jacksonville International Airport this was the right thing to do.... This was a good use for this property ... [I]t’s been vacant for many years. It was going to generate revenue. It was going to give people jobs. It was a good thing for the community.” (Ct. Ex. 3 at 56-57, 59-60.) Demetree called the transaction “[a] fair deal.” Demetree said he was not troubled by the “revenue rent” model because Majestic has incentive to make the project profitable. (Ct. Ex. 6 at 60-62.) At the time the Majestic proposal was submitted to the Board in December 2005, JAA was not aware that any other developer, including Jackson-Shaw, was interested in the property. (Tr. Ill at 155; Ct. Ex. 1 at 239-40; Ex. 130.) Likewise, Thomas Jones, partner in Jackson-Shaw and its northeast Florida regional developer, testified that his company was not aware that JAA would be willing to enter into a long-term lease for the property, but believed the Authority was only interested in short-term leases, which would not be economically viable. (Tr. I at 104.) Jones acknowledged that he had never met with Authority board members or staff to discuss the possibilities or intended use of the subject property. (Tr. I at 101-102.) The first time Jackson-Shaw learned of the JAA-Majestic transaction was in the newspaper after the JAA Board approved the deal on December 19, 2005. (Tr. I at 67; see also Tr. II at 131.) Clark testified that as of December 2005, the Authority would not consider another proposal to lease and develop Woodwings East, even if more lucrative, because JAA and Majestic negotiated in good faith, and “I am not a supporter of ... shopping a deal.... I don’t think that’s fundamentally fair way to do business,” or “prudent business judgment.” (Ct. Ex. 1 at 232, 240; see also Tr. II at 144, 178 (Rossi: bidding would hurt JAA’s credibility with potential developers by putting out negotiations on the street to bid against, taking advantage of the first party’s work)); Tr. III at 149, 170; Ct. Ex. 6 at 35, 80 (Demetree: the JAA is “not going to shop somebody’s bid” when the number is a “fair number”; “[w]e don’t do that. That’s not fair”.) Further, said Clark, the JAA has other non-aeronautical vacant property available for lease and development, and will entertain offers on that property. (Ct. Ex. 1 at 232.) After Board approval in December 2005, negotiations between JAA and Majestic about a number of specific terms continued in 2006. Among the issues negotiated was whether Majestic should pay JAA a fixed rent for its participating ground lease before the availability of “net revenues” to split. In January 2006, Rossi, in an e-mail to Majestic’s Shane Bohart, said that because of the Florida Constitution’s prohibition of public agencies such as the JAA “from entering into joint ventures or partnerships,” JAA must have a “ ‘guaranteed return’ or income on the venture.” Rossi said that without a fixed rent component, the office of the general counsel “advised that the PGL was a joint venture and prohibited by Florida law.” Rossi suggested that Majestic pay JAA “ ‘the greater of $500/ per acre or the market rate” ’ (i.e. the 50-50 net cash flow sharing agreement in the PGL), and that JAA would then contribute $600 per acre for infrastructure costs or other stated expense. Under Rossi’s “fixed rent” proposal, Majestic would come out ahead $100 an acre. (Tr. III at 258; Ex. 140.) Rossi’s ill-considered idea to try to circumvent the Florida Constitution was scrapped. (Tr. Ill at 262.) A fixed rent was indeed added on the advice of JAA’s counsel. The $500 fixed rent figure appeared in a February 1, 2006 Majestic Draft of the PGL, but the JAA responded that the amount of fixed rent should be changed to $1,380 + , and that JAA would be paid the greater of fixed rent or net revenue rent each year. (Exs. 158, at MAJ-1289; 162 at MAJ-0269; 163 at 1020.) The fixed rent amount of $1,380 per acre per year was calculated by determining the value of a 7 percent rate of return on a $16,000 per acre value (which was the value of the Percy Oaks property which JAA was negotiating to purchase). (Tr. III at 252-55.) On September 18, 2006, the JAA board of directors, in a public board meeting, approved the resultant Option and PGL. The September 2006 board submission mirrored that provided to the board in December 2005 with several amendments. In addition to the fixed rent provision, additional information as to the Option was provided in summary: The Option to Ground Lease Agreement (Option) grants Majestic a five year right/option to ground lease the Woodw-ings East premises (Option Premises). The Option term can be extended by one (1) year for every 100,000 square feet of commercial buildings substantially completed within the Option Premises up to the maximum term of fifteen (15) years. Substantially completed means the roof and exterior walls for the proposed commercial building have been completed. The Participating Ground Lease (PGL) comes into effect when Majestic elects to exercise the Option and take down a portion of the Option Premises. Under the PGL JAA leases the portion of the Option Premises taken down for a lease term of sixty-five (65) years. (Ex. 196.) The Option was signed by Majestic Realty Co., and then by Clark on October 9, 2006, the day before the commencement of the trial in this case, (Tr. III at 151; Ex. 214); thus it is now a binding agreement. D. Jackson-Shaw’s Proposal On May 26, 2006, after the initiation of this lawsuit and in response to Clark’s deposition testimony that the Authority had never received any other offers on the property, Jackson-Shaw made an offer to the JAA to lease 25 acres of the Woodw-ings East parcel located immediately south of and adjacent to Tradeport at the intersection of Alvarez and Duval Roads. Jackson-Shaw offered to “pay a fixed monthly rent equal to 8% per annum of the appraised fair market value for all 25 acres, beginning with the completion of a building site and infrastructure by the JAA of a minimum of 15 acres.” “Our plan would also call for the southern extension of Alvarez Road [by the JAA] through Woodw-ings East, with development to occur on either side of this new access corridor,” approximately the same location as Phase I of Majestic’s project. The Jackson-Shaw proposal would required JAA to contribute “infrastructure”, including the $750,000 Alvarez Road extension, drainage, water, sewer, electrical and other utilities. Under the proposal, ground rent would start at approximately $8,712 per acre per year, or $217,800 per year on the first 25 acre tract, and would increase every five years at 50% of the increase in the appraised valuation of like and similar tracts. The proposal stated: “Term: 65 Years, effective with the completion of the site [of the first lease].” (Tr. I at 95-97, 107-08; Tr. III at 155; Exs. 189, 191.) Jackson-Shaw’s proposal also contained an offer for a 65-year “rolling” option for future developments, for which it proposed to pay $25,000 upon execution of the initial lease at which time it would identify the next 25 acre tract on which it would hold a five-year option. Upon execution of the lease on the second 25 acre parcel, Jackson-Shaw would pay a second $25,000 option fee, identifying an additional 25 acres for the second option. Rent would be 8 percent of the appraised market value, tracking the formula and terms of the first lease. Land not under option would be available for other investors and uses. (Ex. 189.) There was no provision for the sharing of any profits with JAA. On July 12, 2006, the JAA, through its counsel wrote to Jackson-Shaw that it was unable to respond to the proposal because the parties were involved in the instant litigation. (Tr. 1 at 197; Ex. 195.) E. The Transaction 1. Summary The JAA approved a two-part agreement with Majestic, granting Majestic an option to designate and lease sub-parcels for commercial development from the 328-acre Woodwings East parcel for a period of five years, with the right to extend the Option up to 15 years. The Option encumbers the entire 328 acre tract, and is at no cost to Majestic. After exercising the Option on a sub-parcel by the end of the 5-year Option period, Majestic has up to four more years to prepare to lease it, all without a return to the JAA. The 65-year ground lease (PGL) which is incorporated into the Option, to be executed by the JAA and Majestic for each sub-parcel, provides Majestic an additional four years to “substantially complete” commercial development on the property. After a one-year grace period from the closing on each PGL, Majestic would pay JAA either a “fixed rent” of $1,380 per acre per year on the leased sub-parcel, or 50 percent of the “net revenue” generated by Majestic’s subleases of the commercial development (“revenue rent”), whichever is greater. “Net revenue” is determined after Majestic is reimbursed from gross revenue for all pre-development costs, management fees, construction costs (to an affiliate of Majestic), design, maintenance, financing, infrastructure and other costs and “advances”, with interest, and all “fixed rent” paid. Thus, at the point when JAA and Majestic each start receiving “revenue rent,” Majestic will have been reimbursed for all costs and money spent, and will have already realized market-rate profit from recoupment of fees and costs, and thus will be virtually out-of-pocket nothing. The JAA is obligated to construct a $750,000 road extension into the Woodw-ings East parcel, and to provide up to 50 acres of wetlands mitigation land, if necessary. These expenses are not reimbursed to the JAA. Relevant specifics of the documents are as follows. 2. Option to Ground Lease Agreement (Ex. 21L) The Option encumbers the entire 328 acre Woodwings East parcel, at no cost to Majestic, and gives Majestic the five-year right until October 5, 2011, to begin leasing parcels within Woodwings East (a procedure called “taking down” of parcels) by entering into a PGL, incorporated into the Option, on the parcel that it designates from the project’s master plan. If Majestic builds 100,000 square feet of building area on the designated parcel to “substantial completion,” the Option agreement is extended for an additional year. By continuing to “substantially complete” building area, Majestic can extend the Option up to a maximum of 15 years, including the initial five. In practice, if Majestic builds 100,000 square feet of building per year for ten years, it would have used fifteen years and would have constructed a million square feet. (Option at 1-2, ¶ 1; Ct. Ex. 5, ¶ 6; see Vol. II at 28.) A separate PGL is contemplated for each development parcel with a project development plan. (Option at 6, 7, ¶¶ 3.5, 3.7.) Majestic is not obligated under the Option to enter into a PGL until the Authority approves the project development plan for the designated parcel, and Majestic completes several “performance benchmarks.” The performance benchmarks provide the timetable for Majestic’s performance in preparing a parcel for construction, including obtaining a wetlands survey, applying for wetlands permits, submission of a project development plan to the City of Jacksonville for review, and applying for a building permit. (Option at 17-18, ¶ 12.1) If Majestic fails to comply with the performance benchmarks, the JAA’s sole and exclusive remedy is to terminate the Option as to the particular parcel. (Id. at 18, ¶ 12.3.) The initial five-year Option term, and Majestic’s obligations under the performance benchmarks, are further tolled while this lawsuit is pending through trial and appeal, though notwithstanding the tolling period, the option term may not exceed 15 years from the date of the Agreement. (Option at 18, ¶ 12.2.) Jackson-Shaw expert C. Allen Watts testified without contradiction that these benchmarks, if all exercised to the maximum amount of time allowable, conceivably could delay the closing on a PGL, and thus the recovery by the JAA of any rent, for the development parcel for an additional four years or a total of nine years from the exercise of the Option (plus an additional one-year grace period provided by the incorporated PGL agreement, for a total of 10 years out), all without Majestic breaching or forfeiting the Option. If, after the nine years, Majestic fails to close on the PGL, it withdraws the exercise of the Option as to that development parcel, and may walk away from the deal, without liability for breach or damages to the Authority. (Tr. Ill at 44-47, 70-73.) The benchmark timetable was not provided to the Board in December 2005, but was in the September 2006 draft of the Option approved by the Board. (Compare Exs. 120, 201.) The JAA’s obligations under the Option include constructing the currently planned and budgeted north-south extension of Alvarez Road through the Woodwings East parcel at a cost “not to exceed” $750,000. (Option at 19 ¶ 13.1.) Further, the JAA agreed to provide, at no cost to Majestic, up to 50 acres of wetlands mitigation that may be required by Majestic’s development of Woodwings East (in addition to wetlands mitigation required for the Alvarez Road extension). Any additional wetlands mitigation required by Majestic will be treated as an “advance” and reimbursed to Majestic out of gross revenues. (Option at 20 ¶ 13.5.) “Advances” means costs incurred by Majestic, including all “pre-development costs,” approved infrastructure costs; and other enumerated costs incurred in modification of the PUD; relocation of an electric utility easement; signs; obtaining required government approvals and permits for development; land platting; and wetlands mitigation expenses. (Option at 2, ¶ 2.2; at 10, ¶ 5.1; at 11, ¶ 6.4; at 13, ¶ 7.1; at 15, ¶¶ 8.2, 9.1, 9.2; at 17, ¶¶ 10.1, 10.2, 10.4; at 20, ¶ 13.5.) If the Option is terminated or expires (other than because of breach by the Authority) Majestic may recoup all unreim-bursed pre-development costs and approved infrastructure costs through the then-existing PGLs. (Option at 16, ¶ 9.4.) If JAA materially breaches the Option or any PGLs, then JAA must reimburse all outstanding pre-development and infrastructure costs paid by Majestic. (Id. at 16, ¶ 9.5.) Each project development budget will include a 4% Development Fee to be paid to Majestic. (Option at 5, ¶ 3.2.) All costs incurred by the JAA to comply with its obligations under the Option, however, shall not be treated or reimbursed to JAA as an “advance.” (Option at 15, ¶ 9.2.) JAA agreed in the Option that Majestic can use its affiliate, Commerce Construction Co., for construction of the commercial buildings on the designated development parcels. (Option at 17, ¶ 10.2.) 3. Participating Ground Lease (Ex. 21L) The terms of the 65-year PGL, (see PGL at 10, ¶ 1.2.1), which is incorporated as Exhibit “C” to the Option, describe the rent and revenue structure of the transaction between JAA and Majestic. “Rent” is the greater of 1) $1,380 per acre per year per year, subject to periodic increases based upon the Consumer Price Index, (“Fixed Rent”) or 2) 50 percent of the net revenue during each whole or partial calendar year (“revenue rent”). (PGL at 9, ¶ 1.1.44.) “Net revenue” is defined as cash remaining after deduction from total revenue of Majestic’s 1) debt service; 2) project costs (all costs incurred and paid by Majestic in designing, development, financing, constructing, owning, operating, maintaining, leasing and managing the premises and commercial facilities); 3) a “reasonable reserve” for future project costs or as required by any lender to Majestic; and 4) repayment of advances with interest set at 250 points over prime. (PGL at 7, ¶ 1.1.33,1.1.40; see also PGL at 1, ¶ 1.1.1; at 4, ¶ 1.1.22.) Rent does not commence until one month past the first anniversary following the effective date of the PGL (PGL at 12, ¶ 1.7.1.) Thus, once Majestic enters into a PGL with the Authority, it receives one year rent-free. Further, Once Revenue Rent is payable to [JAA] by [Majestic], the amount of all Fixed Rent previously paid by [Majestic] at any time during the Term of this Agreement shall be credited, dollar for dollar, against the Revenue Rent otherwise payable by [Majestic], thereby reducing the amount of Revenue Rent actually payable, provided the total Rent paid to [JAA] by [Majestic] shall not be less than the Fixed Rent payable under this Lease. Such crediting of previously paid Fixed Rent shall continue throughout the Term of this Agreement. (Id.) As in the Option, “development fees,” which are reimbursed to Majestic from gross revenues prior to determination of “net revenue,” means the fee paid to Majestic in the amount of four percent of the construction and improvement costs in the development budget. (PGL at 2-3, ¶ 1.1.13.) “Management fees” paid to Majestic for the administration of the commercial facilities in Woodwings East range from three to five percent of the total revenue received by Majestic from subles-sees. (PGL at 6, ¶ 1.1.31.) The PGL requires construction to commence on the development parcel within two years of the execution of the PGL, and for construction to be substantially complete two years later, otherwise, Majestic will be in breach of the PGL. (PGL at 11, ¶¶ 1.5.2.1, 1.5.3.) Thus, if Majestic uses all time provided under the PGL, revenues from sublessees may not be generated for four years or more after a PGL is signed. While the PGL contemplates no incum-brance or liens on JAA’s fee simple title to the land, (PGL at 21, ¶ 2.6.1; id. at 30, ¶ 2.15.1), loans to Majestic in connection with its development of commercial facilities and improvements on the land “may be secured by a mortgage or deed of trust encumbering the leasehold estate” created by the PGL. (PGL at 5, ¶ 1.1.29; see also Id. at 29, ¶ 2.15.1.) If the leasehold interest is foreclosed upon by a Majestic lender, revenue rent may be abated. (Id. at 13, ¶ 1.7.4.1.) Thus, Majestic’s lenders may foreclose on its leasehold interest, and the foreclosing lenders will step into Majestic’s shoes, assuming a preferred position, with its debt being repaid prior to maintenance expenses, and prior to the determination of net revenue to be shared with the Authority. (See Ex. 119.) All improvements and buildings constructed on the premises by Majestic are owned by Majestic until the expiration or termination of the PGL. (Id. at 10, ¶ 1.3.3.) At termination of the PGL, Majestic will leave the premises and title and ownership in the buildings and other improvements to the property will pass to JAA. (Id at 29, ¶¶ 2.14.1, 2.14.2.) If Majestic defaults on the PGL by failing to pay rent, or abandoning the premises or failing to fulfill other terms and conditions set forth in the agreement, JAA may pursue all rights in law and equity. Any money judgment in favor of JAA resulting from default by Majestic “shall not exceed an amount equal to the fair market value of [Majestic’s] interest in the Premises,” subject to several exceptions, including when Majestic “intentionally commits waste on the Premises.” (PGL at 27, ¶ 2.11.7.) F. Expert Real Estate Testimony Heyward Cantrell, professional real estate appraiser, broker and consultant, provided expert testimony and analysis of the transaction on behalf of Jackson-Shaw. Cantrell testified that he appraised Woodwings East in April 2006 by comparing the value of sites in the Tradeport area, including the price Majestic paid for property in Tradeport, and other industrial parks in north Jacksonville. Cantrell concluded that the value of Woodwings East was $2.60 a square foot of developable area (which does not include wetlands), or $113,256 an acre (or approximately $25 million for 225 usable (non-wetlands) land). (Tr. II at 14, 21-23, 62-65, 107.) Using the standard annual rate of return on the use of real property of 10 percent (the median rate between the standard range of 8 and 12 percent), the market lease rate for Woodwings East is between $10,000 and $10,900 per acre per year, according to Cantrell. (Tr. II at 51-53.) Cantrell opined that 1) the transaction between JAA and Majestic is below market value and provides economic assistance from a public entity to a private business; 2) the benefit of the transaction is more than incidental to Majestic; 3) the transaction enables Majestic to unfairly compete with private business; and 4) the JAA has not exercised sound prudent business judgment or acted in the best interest of the Authority. (Tr. II at 32; Ex. 11.) In reaching this conclusion, Cantrell focused upon the following features of the Option and PGL: a) The Option gives Majestic control over 234.15 acres of usable land for up to 15 years at no cost; b) JAA provides a $750,000 road extension and 50 acres of suitable land to provide wetlands mitigation, plus additional wetlands mitigation land necessitated by the road extension (at a cost of $47,500 to $62,500 per credit), at nacost to Majestic; c) The fixed rent of $1,380 per acre per year (which Majestic pays if greater than the JAA’s 50 percent share of net revenue). The market rate, according to Cantrell, is 7.25 times that amount; d) Majestic recovers from gross revenues for all “advances” made by Majestic, plus interest at 250 basis points over prime rate, prior to determination of the project’s net revenues. Advances may include additional wetlands mitigation required; e) Majestic receives its development fees in the amount of 4 percent of the construction and tenant improvement costs, out of gross revenues, prior to the determination of net revenues, which fees according to Majestic’s November 15, 2005 pro forma, will equal $6,732,207 upon full build-out of the contemplated project; f) Majestic receives a monthly Property Management Fee of between 3 percent and 5 percent of the rental revenue buildings, which according to the Majestic pro foma will equal $68,359,353 over the life of the agreement; g) Majestic receives leasing commissions, which based upon the Majestic proforma, will equal $64,783,425; h) Majestic’s affiliate Commerce Construction Co. L.P. will be paid total construction fees estimated at $13,464,413. (Ex. 11; Tr. II at 30-36, 39, 40-47, 51-53;) According to Cantrell’s interpretation of the Option and PGL and Majestic’s pro formas, Majestic will receive potential fees (all of which are at market rate) in the amount of $153,339,398, plus repayment of advances with interest at 2.5 percent above prime rate, from gross revenues prior to the determination of net revenues. Total net revenues then paid to Majestic and the JAA, according to the Majestic pro forma is $898,880,645 for each. Thus, Majestic projects that it will receive a total of $1,052,220,043, plus a return of all monies advanced plus interest; and JAA will receive $898,880,645, (plus return of the land and buildings after 80 or more years, which Majestic projects to be worth $754,200,000), according to Cantrell’s analysis. (Tr. II at 31-53; 76-77; Ex. 11; PGL at 1, 12, ¶¶ 1.1, 1.7.2.) Cantrell, however, questioned the value of buildings 80 years hence, and said that in present-day value, they would be worth nothing. Further, Cantrell testified that the net present value of $898 million (the JAA’s projected 50 percent share of net profits over 65 years, and discounting the present value of the buildings to zero) is $5 million less than the present net value of cash flow over the same term if JAA was instead paid at a fair market lease rate of between $10,000 and $10,900 per acre per year. (Tr. II at 51, 53, 94-98, 109-110.) Jackson-Shaw regional development partner Thomas Jones supplied his own economic analysis of the JAA-Majestic transaction. According to Jones, a commercial lease rate is normally based on the economic value of the land itself, determined as either the appraised value or the implied value. The typical rate of return paid annually to the landowner is between 10 percent and 14 percent based on the market value of the property, with an adjustment to the lease rate every three to five years. (Tr. I at 70-71.) According to Jones, because Majestic’s land costs are zero, it will be able to sub-lease “their buildings for much less, say, anywhere from 60 to 80 cents per square foot less than a competing project.” (Tr. I at 79-80.) According to Jones, Majestic projects its rental rate at $4 per square foot on the first building for the first year, which undercuts Tradeport, which has a first-year rental rate between $4.50 and $5.00 a square foot. A second competing commercial development called Northpoint has stated lease rates in the range of $4.25 to $4.50. (Tr. I at 80 Ex. 99 at 00115.) Using Majestic’s numbers, which show a total projected return on the first building of 10.13 percent, taking the $1,380 per acre rent figure, backing those figures out yields a per acre value of approximately $14,000 per acre value for the 328 acres at Woodwings East, according to Jones. (Tr. 1 at 81-82; Ex. 99 at 00115.) This compares to the $108,900 per acre that Jackson-Shaw paid for 46 acres of Tradeport in February 2005, and is considerably less than the per acre price of other parcels in the area, which range from $100,000 an acre to $283,000 (depending on size and location). (Tr. I at 83-87.) II. Discussion A. Subject Matter Jurisdiction In the week before trial, eight months after suit was filed, JAA for the first time, moved to dismiss the case contending that the Court lacked subject matter jurisdiction because Jackson-Shaw failed to meet its burden of establishing that it sustained damages in excess of $75,000, the jurisdictional amount in this diversity action. 28 U.S.C. § 1332. (Doc. 72.) In response, Jackson-Shaw submitted the affidavit of Michele Wheeler, its chief financial officer, in which she stated that based on her calculations, Jackson-Shaw’s equity interest in Tradeport “will incur $565,464 in valuation losses” resulting from the JAA-Majestic agreement that is the subject of this case. (Doc. 73 at 9 ¶ 4 (Wheeler affidavit).) Wheeler stated that if the JAA-Majestic transaction is allowed to proceed, “Jackson-Shaw will be injured through Majestic’s competitive advantage arising from its control of valuable public land at essentially no cost which enables Majestic to price space in its proposed warehouses on Woodwings East at lease rates below what its competitors (such as Jackson-Shaw, who must pay for its land) must charge ... directly injuring] Jackson-Shaw through the loss of customers, commissions, fees and profits.... ” (Id. at 9-10, ¶ 7.) The Court heai’d argument of counsel at the commencement of trial (Tr. I at 10-35), and determined that there was a sufficient legal and factual basis to support the Court’s subject matter jurisdiction, subject to reconsideration upon receipt of the evidence at trial. (Tr. I at 35-44.) At trial, Wheeler testified that, based upon her review of Majestic’s financial projections as contained in its pro formas (Ex. 99), she believes that Majestic will directly compete with Jackson-Shaw’s Tradeport industrial buildings. Because of the terms of the transaction between JAA and Majestic, Jackson-Shaw will suffer two types of injury: 1) injury incurred because Jackson-Shaw is precluded from bidding on and developing Woodwings East itself; and 2) injury incurred as a result of the terms favorable to Majestic. (Tr. II at 224-27.) Wheeler focused on the Majestic pro forma which indicates the Majestic’s Phase I land cost is zero dollars. (See Ex. 99 at 00115). Assuming that Majestic would be able to charge a lower rent for its commercial and industrial buildings because it did not have to pay for the land they are on, and that a market-rate rent is 10 percent of costs, Wheeler analyzed the impact of the transaction on Parcel 6 of Tradeport, a 25.32 acre parcel of land with 19.32 net buildable acres for which Jackson-Shaw paid $2,250,000, and which will be developed with 300,000 square feet of buildings. Adding the cost of the land and the development, Wheeler calculated the total project cost for the 25-acre Parcel 6 at $15.4 million. Ten percent of the $51.54 per square foot cost yielded a market rate rent of $5.16 per square foot, for a 10 percent return that is “generally accepted within the development community for a yield.” Then, to compare with what Majestic could charge for the same property under the terms of its transaction with the JAA, and still receive a 10 perce