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 UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

COMMUNITY MARITIME PARK

ASSOCIATES, INC.,

Plaintiff,

v. Case No. 3:11cv60/MCR/CJK

MARITIME PARK DEVELOPMENT

PARTNERS, LLC,

Defendant.

_______________________________/

ORDER

The Court has previously determined that the public works contract at issue in this

case, which Plaintiff awarded Defendant in August 2009, is void for material

noncompliance with Florida’s competitive negotiations statute, known as the Competitive

Consultants Negotiations Act (“CCNA”), Fla. Stat. § 287.055 and that disgorgement is the

proper remedy. In light of Defendant’s affirmative defense of equitable setoff and to 1

resolve issues of fact regarding whether fraud occurred in the CCNA process, the Court

held a final evidentiary hearing on January 30, 2013, through February 5, 2013. This order

sets forth the Court’s findings of fact and conclusions of law on these remaining issues. 

Procedural Background

In 2011, Plaintiff Community Maritime Park Associates, Inc. (“CMPA”) brought suit

in state court seeking rescission and cancellation of a public works development contract

(“Development Agreement”) it entered into with Defendant Maritime Park Development

Partners, LLC. (“MPDP”), alleging fraud, misrepresentation, and rescission on public policy

grounds for the violation of Florida’s competitive award statutes. MPDP removed the case

No other public bidding process was engaged in pursuant to Florida law. See Fla. Stat. § 255.20.

1

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to federal court. CMPA later moved for summary judgment on Count III of its complaint for

violation of the CCNA, which the Court granted partially, declaring the professional services

portion of the Development Agreement void. (Doc. 207). On reconsideration, the Court

determined that the entire Development Agreement was void for violation of the CCNA and

because no other Florida competitive award or bidding statute was engaged in, which in

turn required disgorgement of all public monies paid on the void contract in an amount yet

to be determined. (Doc. 252). The parties have stipulated to the undisputed facts set forth

in the prior orders, and the Court incorporates those facts herein by reference, without

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reciting them again in full (doc. 306, at 28, ¶1). The following summary of the operative

undisputed background facts from those orders, however, will be helpful to an

understanding of the remaining issues.

CMPA is a publicly funded non-profit corporation governed by a Board appointed

by the City of Pensacola, Florida, tasked with developing and managing city-owned

property known as the Vince Whibbs, Sr. Community Maritime Park, a project originally

estimated to exceed $38 million in construction costs. In seeking a Master Developer for

the project, CMPA was required by the CCNA to competitively award the contract to the

most highly qualified firm. Accordingly, in early 2007, CMPA proceeded to engage in a

3

two-stage competitive negotiations process under the CCNA, first selecting the most

qualified firm and then engaging with that firm in contract negotiations. To solicit qualified

professional services firms to compete for the project, CMPA issued a formal Request for

Qualifications (RFQ). Among the requirements listed in the RFQ, candidates for Master

Developer had to demonstrate the following regarding their businesses: (1) previously

completed projects of at least $50 million; (2) successful development of at least one major

The parties also stipulate to the facts set forth in the Court’s order granting CMPA a preliminary

2

injunction (doc. 227) to preserve the status quo regarding funds owed to MPDP by Magi Construction, LLC,

a firm created between MPDP and Hoar Construction Company for purposes of the design-build contract, until

the Court determined the final amount to be disgorged.

Pursuant to the CCNA, any firm desiring to participate in the competitive selection process must

3

first be certified by the agency as qualified, that is, "fully qualified to render the required service," based on

its capabilities, adequacy of personnel, past record, and experience of the firm. Fla. Stat. § 287.055(3)(c).

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mixed-use project; (3) ability to obtain or attract financing for all aspects of the proposed

project; (4) a team including qualified professionals registered in the State of Florida, and

(5) a team record of long-term management of completed projects, (6) a team record of

small and minority business inclusion, and also (7) a record of satisfying clients and end

users. All personnel assigned to the project were required to be employees of the Master

Developer or a collaborative partner and had to be approved by CMPA. Master Developer

candidates were required to identify each organization that would provide services,

including company principals. Another crucial requirement of the qualifications process

was that the chosen Master Developer be able to demonstrate sufficient financial capacity

in order to obtain and attract adequate financing for all aspects of the project. This

requirement–to demonstrate financial capacity–garnered the highest point total on CMPA's

Master Developer evaluation sheet included in the RFQ. Based on the applicants’ RFQ

submissions, CMPA selected four qualified firms, with an organization known as Land

Capital Group, Inc. (“Land Capital”) ranked as the top firm.4

CMPA then issued a Request for Proposals (RFP), soliciting proposals only from

the four finalists and requesting more details regarding each candidate's vision, concept

and implementation plans for development of the park. The RFP did not require the four

finalists to restate their RFQ responses and qualifications but did permit supplementation

of the prior submissions and emphasized the importance of the applicant’s experience and

financial capacity. The finalists were also required to submit a transmittal letter identifying

the lead proposers and any persons with an equity interest in the project, describing their

legal and financial relationships and confirming that any legal entity created for the project

was in existence and that the person signing the letter was authorized to act on its behalf. 

The finalists also participated in oral presentations before CMPA.

Land Capital submitted an RFP response to CMPA on May 30, 2008, and presented

an oral presentation on June 13, 2008. Both included representations by Land Capital’s

The CCNA required the agency to evaluate qualifications of the firms, including professional

4

personnel and past performance, and to "select in order of preference no fewer than three firms deemed to

be the most highly qualified." Fla. Stat. § 287.055(4)(a), (b).

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CEO Scott Davison that Land Capital had partnered in a joint venture with entities known

as Brass Real Estate Fund and Magi Real Estate (“Brass/Magi”), owned by an individual

named Richard Rodriguez. Davison stated in the RFP transmittal letter that Land Capital

and Brass/Magi had created a project specific development entity–Defendant MPDP–to

enter into the Development Agreement with CMPA, and that Jeffrey Galt, Chief Financial

Officer of Brass/Magi, would serve as president of MPDP and Davison as vice-president. 

Galt and Bruce Cutright, the individual named in Land Capital’s RFP as the project

manager, both participated in the June 2009 oral presentation with Davison. Land

Capital’s RFP response outlined in detail Cutright’s impressive project history. CMPA was

impressed by Land Capital’s written response and “assembled team” of professionals, as

well as its oral presentation, and as a result, Land Capital maintained its top ranking

following the RFP process.

As the top-ranked firm, Land Capital earned the right to engage in contract

negotiations with CMPA. The contract negotiations commenced in August or September 5

of 2008 between Galt and Davison for MPDP, and CMPA’s representative, Owen Beitsch. 

Later in the process, Barry Abramson participated as the City’s representative, as well as

City Attorney Rusty Wells, among others, while Trinity Capital Advisors, the second most

qualified firm, waited on standby, in case negotiations with MPDP did not produce an

acceptable agreement. 

During the course of the negotiations and prior to the execution of the Development

Agreement, Land Capital financially collapsed and was unable to play any role in the

project. Although CMPA was not aware of Land Capital’s demise, it did become aware in

December 2008 that Land Capital was suffering financial difficulties; however, Davison and

Galt assured CMPA and the public that its financial partner, Brass/Magi, was sound and

therefore Land Capital’s financial troubles would not threaten the project. In late April

Under the CCNA, if negotiations with the most highly qualified firm did not result in a contract,

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CMPA was required to negotiate with the next most highly qualified firm. In this case, the second-ranked firm

was an entity known as Trinity Capital Advisors.

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2009, after an audit confirmed that Brass/Magi was financially sound, CMPA and the City 6

Council approved a final Development Agreement which identified MPDP as Master

Developer. The record unquestionably reflects that at that time, CMPA understood, based

on the representations of Davison and Galt, that MPDP was a joint venture between Land

Capital and Brass/Magi. 

The final Development Agreement, which was executed by all parties on August 14,

2009, set forth four separate roles for the Master Developer: (1) to act as Project

Coordinator, for which it would be paid a 4% Development Fee; (2) to act as CMPA's agent

in managing the facilities, for which it would be paid a management fee; (3) the potential

to act as design-build contractor, in CMPA's sole discretion, for an additional 3% fee; and

(4) to act as developer of private improvements under a separate sub-lease. The

Development Agreement required the Master Developer to be a qualified design-build

contractor as of the date of the Agreement was executed, although the design-build

contract would be awarded separately, at CMPA's discretion. CMPA ultimately voted in 7

January 2010 to award the design-build contract to MPDP. MPDP, however, proved to be

unable to acquire the necessary bonding without the aid of another company, Hoar

Construction, with whom MPDP formed a new company, Magi Construction, LLC (not to

be confused with Brass/Magi), to be named as the general contractor. As a result of this

arrangement, MPDP and Hoar Construction agreed to share the Master Developer’s 3%

fee for the design-build contract.

After entering into the Development Agreement with MPDP, CMPA became aware

of the following: (1) Land Capital had not merely suffered financial difficulties but had

actually collapsed during the contract negotiations; (2) neither Land Capital nor MPDP

were members of a joint venture with Brass/Magi; and (3) MPDP, which was a projectThe audit was performed by Mort O'Sullivan, a certified public accountant.

6

City Attorney W ells testified that he counseled the City not to execute the contract until Mark W hite

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– whom MPDP intended to use as the qualifying contractor for purposes of the design-build contract– was fully

licensed as a contractor in Florida. The contract execution date was delayed from April until August 2009 due

to delays in W hite obtaining a Florida contractor’s license.

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specific corporation with no assets and no professional qualifications of its own, had

entered into the Development Agreement as Master Developer without any legal affiliation

with Brass/Magi or Land Capital, the firm selected as the most qualified under the CCNA

procedures. As a result, CMPA rescinded the contract in January 2011 and filed this law

suit.

In its prior orders granting summary judgment, the Court concluded that the

Development Agreement had been awarded to a shell entity, i.e., MPDP, and not the firm

selected as the most highly qualified through the CCNA competitive qualifications

procedure, which was Land Capital. The Court found that this irregularity constituted a

material noncompliance with the CCNA. Although in Florida a public body has “wide

discretion” to implement competitive award procedures for public improvements and courts

will not interfere when the procedures are “based on an honest exercise of this discretion,”

Liberty Cnty. v. Baxter’s Asphalt & Concrete, Inc., 421 So. 2d 505, 507 (Fla. 1982), the

Court in this case concluded that CMPA had no discretion under the statute to award the

professional services portion of the Development Agreement to an entity that was not

affiliated with the firm deemed “most highly qualified” within the meaning of the CCNA and

which did not compete at all in the qualifications portion of the award process. Also,

because no other competitive award procedures were used, the Court concluded that the

entire Development Agreement was void and that disgorgement of money paid under the

void public contract was required. Additionally, the Court entered a preliminary injunction,

requiring MPDP to deposit with the Court any money it received as profit from the designbuild contract, up to the sum of $460,786, in order to preserve the status quo until the

amount of disgorgement could be determined.

8

Although it was not necessary for purposes of summary judgment to determine

whether the statutory noncompliance resulted from knowing misrepresentations by MPDP,

The Preliminary Injunction Order is currently the subject of an appeal to the Eleventh Circuit Court

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of Appeals (see doc. 235, notice of appeal); however, this Court retains jurisdiction over the complaint. See

State of Ala. v. EPA, 871 F. 2d 1548, 1553-54 (11th Cir. 1989) (stating, “[t]he district court had jurisdiction to

grant summary judgment and to dismiss the suit despite the pending interlocutory appeal” of a preliminary

injunction).

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as CMPA argued, or from a good faith mistake, as MPDP argued, this factual issue must

now be resolved in order for the Court to determine the amount that is due to be repaid to

the public treasury by MPDP. As explained in prior orders (see docs. 207 & 252), an

equitable defense of setoff is only potentially available to MPDP to the extent no fraud or

misrepresentation invaded the statutory competitive award process. MPDP insists it should

not be required to repay any amounts it received on the void contract, arguing it acted in

good faith by providing valuable services under the contract. CMPA argues that all

amounts paid on the void public contract must be disgorged because misrepresentations

of MPDP’s officers corrupted the statutory competitive award process. To resolve these

remaining issues of fact and determine the amount of money MPDP must return to CMPA,

the Court held an evidentiary hearing. Now, having fully considered the testimony and

evidence presented at the hearing, the complete record, the applicable case law, and the

arguments of counsel, the Court makes the following findings of fact and conclusions of

law.

Findings of Fact 

1. Through the RFQ issued in February 2007, CMPA sought a "firm" that

possessed "the experience, professional qualifications, financial resources, and willingness

to enable it to undertake and complete" the project. (Doc. 18-3). The RFQ required,

among many things, that all personnel assigned to the project be employees of the Master

Developer or a collaborative partner. Also, the requirement to demonstrate financial

capacity, which garnered the highest point total on CMPA's Master Developer evaluation

sheet included in the RFQ, illustrates the importance of this factor to CMPA in making the

award. Land Capital’s application named Land Capital and Silver Cloud Partners, Inc., as

Master Developers, with Silver Cloud’s founder, Harold DeBlanc listed as project manager. 

Halcyon Ltd., and its president, Michael Buckley, were listed as the team’s development

strategists, and other team members included various architectural, design, financing, and

marketing specialists. Davison, as Land Capital’s CEO, represented in his cover letter

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accompanying Land Capital’s RFQ application that this team of professionals had been

“assembled” for the project.

2. The RFP issued to the four finalists in February 2008 required, among other

things, a letter identifying the lead proposers and persons with an equity interest in the

project, along with a brief description of the legal and financial relationships of the team. 

It also required general team information, including the Developer’s experience, an outline

of the project concept, and anticipated project financing, among other things. The proposal

also had to identify the roles of the individual personnel who would work on the project,

along with details regarding the project manager’s experience, in addition to demonstrating

the proposer’s financial capacity to carry out the proposed project and honor any

obligations and responsibilities negotiated. The RFP stated expressly that information

previously provided in the RFQ response regarding the proposer’s team did not need to

be restated in the RFP response. 

Davison represented in Land Capital’s RFP proposal letter in May 2008 that Land

Capital was the “lead proposer;” that Brass/Magi would have an equity interest in the

project; that MPDP would serve as the Developer’s “legal entity;” and that MPDP was a

“joint venture” between Land Capital and Brass/Magi, “each represented by their own

limited liability companies.” Land Capital’s RFP response omitted reference to Silver

Cloud, which previously had been listed in the RFQ response as one of the master

developers with Land Capital, and instead identified Land Capital as lead developer with

Brass/Magi as co-developers and financiers. Bruce Cutright, identified as a consultant and

project manager, was a new team member at the RFP stage along with various

architectural, design and civil engineering companies, only three of which had been named

as team members in the RFQ. Davison emphasized during the RFP oral presentation on

June 13, 2008, that Land Capital was the “managing partner” of the team. Davison also

stated during that presentation that MPDP was an equity stakeholder and a “partnership”

between Brass/Magi and one of Land Capital’s “subsidiaries,” but no further detail was

provided regarding MPDP’s members. 

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3. In the interval between Land Capital’s RFQ and RFP submissions, Land

Capital’s financial stability had drastically deteriorated, as both Davison and Galt testified,

yet they did not fully disclose this substantial change, or the extent of it, in their RFP written

responses or oral presentation on June 13, 2008, but instead represented to CMPA that

Land Capital would be the “lead developer” on the project. Davison particularly

emphasized during the oral presentation that “without a doubt” Land Capital would be the

“lead developer” for the project, though he knew at the time that Land Capital was

financially collapsing. Davison admitted on cross examination that, while making these

representations, he did not expressly disclose that Land Capital was (1) undergoing

financial difficulties; (2) operating with only one to four employees instead of the 85 or 90

employees as originally represented to CMPA; or (3) in danger of being evicted from its

business offices. Davison attempted to explain at the hearing that he had been referring 9

to the project team as a whole in representing that Land Capital had 90 or so employees,

but this was not the impression given during his RFP presentation to CMPA. Galt knew

of Davison’s financial difficulties before joining in and submitting the RFP response; he

testified that he became involved in the project at the RFP stage because Davison was

looking for new financial backing due to his personal and business financial troubles.10

4. Davison and Galt also failed to fully disclose that Land Capital’s team

qualifications had substantially changed between the RFQ and RFP stages. Neither Land

Capital’s written RFP proposal nor Davison’s presentation before CMPA on June 13, 2008,

included any express disclosure that RFQ-identified team members, such as Silver Cloud

and Halcyon–whose qualifications and employees had helped Land Capital earn the

W ithin a month of the oral presentation–by July 2008–Land Capital had been evicted from its

9

offices, and Davison admitted that by October 2008, he had closed the last Land Capital office. Before the

Development Agreement was signed, all of Land Capital's staff had been laid off. Davison said he did inform

CMPA during a public meeting in December 2008 that Land Capital's project pipeline had decreased from

$500 million to $150 million, but on cross examination, he admitted that the project pipeline projection he

provided to CMPA still included projects that he had hoped to obtain and develop but for which Land Capital

had no contract.

Rodriguez testified that he was aware of Davison's financial troubles sometime after Land Capital’s

10

RFP submission and before the Development Agreement was entered.

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number-one ranking at the RFQ stage–were no longer involved with the team or relevant

to the project, or that Bruce Cutright, touted in the RFP as the project manager with an

impressive project history, was not, and never had been, actually employed by any of the

team members. Moreover, in the RFP, Davison linked Land Capital to Brass/Magi for

purposes of meeting the financing requirement, representing repeatedly that they were

“joint venture partners,” but testimony by Galt and Rodriguez demonstrated that no actual

joint venture ever existed. It is also significant that Land Capital and Brass/Magi together

did not possess the requisite mixed-use project experience without the team members that

had been presented to CMPA in the RFQ response and that CMPA did not know those

team members were no longer involved. 

11

The record is clear that CMPA understood the firm or team qualifications of the four

finalists–as represented in their RFQ presentations–would continue to exist throughout the

selection process, as supplemented by additional detail presented in the RFP responses

and subject to CMPA’s right to approve replacement personnel. The Honorable Lacey

Collier, Chairman of CMPA during the qualifications phase and throughout 2010, testified

that he understood the RFP to be a continuation of the qualification process with the topranked firms, not a chance for participants to start over, and he further testified that Land

Capital would have been eliminated from the competitive process had CMPA known at any

time before entering the contract that Land Capital no longer met the minimum

requirements of the qualifications stage. Ed Spears, Executive Director of CMPA, similarly

testified that the minimum qualifications set forth by Land Capital in the RFQ were never

The parties do not dispute that the Land Capital team submitted an RFQ response that met the

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requisite qualifications, including multi-use waterfront projects comparable to the project planned here, but

the evidence is clear that the substituted team set forth in the RFP lacked any multi-use waterfront project

history. Davison admitted during the hearing that Brass/Magi did not have mixed use waterfront experience

as required by the RFQ. Land Capital’s original team touted the qualifications of Silver Cloud with its

employee project manager DeBlanc, and Halcyon with its employee Buckley, to satisfy the project qualification

requirements, including that of mixed-use waterfront developments. As noted above, there is no evidence

that CMPA was directly informed that Silver Cloud and Halcyon were no longer part of the team. Richard

Rodriguez, the owner of Brass/Magi, testified in his deposition that his companies employed persons licensed

in areas of construction, architecture, and accounting, but he admitted that neither his companies nor Land

Capital possessed all of the qualifications required for this project.

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formally amended or altered during the competitive award process. Davison testified that

Land Capital’s RFQ representations were accurate when they were made but that

circumstances changed before the RFP response was submitted, requiring him to bring in

new team members and a new financial partner and that CMPA simply “presumed

incorrectly” that prior team qualifications were still relevant. The Court finds that any

incorrect presumption on CMPA’s part was the direct result of Davison’s omission of

material information regarding both Land Capital’s financial troubles and the true nature

of its changing team. 

5. Davison represented his team as already assembled and as “partners,”

although in fact they were not bound together by any formal agreement or legal

arrangement, in spite of the fact that the team and legal relationships were required to

have been formed and in place before the proposals were submitted. For example,

Davison touted Cutright as a key team member while knowing Land Capital had not

secured him as an employee or by any other formal agreement. Judge Collier testified that

team members were required to be employees or “partners” in the legal sense. He said

the CMPA Board had relied heavily on Land Capital’s representations of in-house

capability during the qualifications process, envisioning that the team members would have

employee status and Land Capital thus would have in-house capability to manage

professionals, such as architects and engineers, as required by the express terms of the

original RFQ. Judge Collier also testified that Cutright’s impressive project history was

highly influential in CMPA’s decision to select Land Capital’s team as the most highly

qualified, and he believed Davison had misrepresented Cutright as a team member in 2008

for purposes of qualifying for the project without having secured him through a formal

agreement. City Attorney Wells testified that he, too, expected there to have been some

12

Also, the RFP required candidates to demonstrate the extent and nature of meaningful involvement

12

by local and minority contractors. Judge Collier testified that Davison persuaded many Board members to

vote for Land Capital during the CCNA qualifications process by pledging to donate $250,000 of the

developer's fee to a contractor academy – a minority contractor inclusion and education program. Judge

Collier testified that the Board later learned Davison had intended this to be only an "in kind" contribution

(Davison considered his participation in meetings and workshops with the minority contractors as his

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contractual arrangement between Cutright and the proposer before Land Capital included

him in the RFP proposal. This expectation was based on requirements in the RFQ/RFP

process as well as the CCNA, both of which contemplated the selection of “a qualified firm”

as defined in the CCNA. 

Davison testified that he intended Cutright to be a team member, but it did not work

out in the end, and he blamed the failure on the lengthy contract negotiations phase,

insisting MPDP could not offer Cutright a contract until the Development Agreement was

signed. During the negotiations, however, Davison continued to lead CMPA to believe 13

Cutright was secured for the project. This is evidenced by Beitsch’s comments during a

public meeting on March 13, 2009, when, based on an impression Davison had given him,

Beitsch stated Cutright had become a “formal part of the team.” But Davison knew this

was not true. The evidence shows that on October 3, 2008, during the contract

negotiations, Skip Greeby, Cutright's employer, sent Davison an email informing him that

Cutright might not be available for the project if MPDP did not formalize an agreement with

him soon. Greeby encouraged Davison to finalize an agreement with Cutright soon

because Cutright had been represented as "an integral part" of Land Capital's team, and

it might otherwise appear as though a “bait and switch” had occurred. Cutright stated in

his deposition that he had been available from September through December 2008 and

needed the work but that he was never offered a contract by MPDP. In the end, he

accepted a job with the University of Texas, but he testified at the hearing that he would

have been prepared to return and work full time on this project if MPDP had offered him

an agreement. The Development Agreement ultimately identified Cutright as a key figure,

who could be replaced only on approval of CMPA and guaranteed he would devote a

contribution), which, according to Judge Collier, “really amounts to nothing.” Judge Collier further testified that

during the process he became personally skeptical of representations made by Davison, who, according to

Judge Collier, always had an answer for any issue that arose and as a result, he had voted against Land

Capital during the qualifications procedures.

If Land Capital or MPDP had been a qualified firm with the financial capacity required, it would have

13

had the capacity to employ key personnel in house, as contemplated by the RFQ and RFP.

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minimum of one day per week to the site preparation project and would visit the site twice

per month. Even then, MPDP had no formal agreement with Cutright, and by the time the

Development Agreement was signed in August 2009, Cutright had taken the job in Texas. 

It is clear that CMPA’s members were led to believe that Cutright was an employee of Land

Capital or a listed collaborative partner, when he was not. It is also clear that because 14

of his impressive project history, Cutright’s role as project manager was highly influential

in CMPA’s decision to award the Development Agreement to Land Capital.

Moreover, the evidence showed that nearly Land Capital’s entire project team

changed between the RFQ and RFP stages, and there was never even an informal

agreement between Land Capital and any team member. At most, the testimony of

Richard Rodriguez and Cutright suggests that they had “intended” to partner with Davison

and Land Capital when first approached to join in the project, but circumstances, of which

CMPA plainly was never informed, changed. Unable to present evidence of any binding

relationships between the entities of Land Capital, MPDP, and Brass/Magi, Davison and

Galt testified that they thought the individuals identified in the RFP were “the team” and

that therefore, the project entity and legal relationships were not significant. Galt testified

that Land Capital's asset was Davison, and Davison agreed, comparing himself to a movie

director and testifying that although he works with collaborative partners, it is his knowledge

that “makes the thing go.” Again, this was clearly not CMPA’s understanding. By the plain

language of the formal requests for qualifications and proposals, CMPA sought a qualified

“firm” with in-house professionals with the requisite expertise, an extensive project history,

and the financial wherewithal to complete the project, not simply knowledgeable individuals

who were willing to contract out the work. Davison in fact had no “assembled team” or firm

possessing all of the necessary qualifications, contrary to his representations to CMPA,

because no formal or informal agreements bound his company to any other “team”

Although the term “collaborative partner” was not explicitly defined in the RFQ, and Davison

14

testified that he viewed his team members as collaborative partners in a loose sense of the word, this clearly

was not CMPA’s understanding. In fact, it defies common sense to suggest on this record that anything other

than a legally secure partnership was intended. In any event, it is undisputed that Cutright was not employed

by Land Capital, and his employer, Greeby, was not listed in the RFP as a partner or team member.

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members or licensed professionals. Davison himself admittedly had no contractor’s

license, no engineering or architecture license, no accountant, landscaping or real estate

brokers license, and no project history as required of the winning "firm" under the plain

terms of the CCNA and the RFQ, and neither did Galt or MPDP. 

6. Beginning with Land Capital’s May 2008 letter accompanying the RFP,

Davison linked Land Capital to Brass/Magi for purposes of meeting the financing

requirement by representing repeatedly that they were “joint venture partners,” each

represented by its own limited liability company. However, the testimony of Galt and

Rodriguez demonstrates that no actual joint venture ever existed. Davison also falsely

represented during the June 13, 2008, oral RFP presentation that Land Capital was the

“managing partner” of MPDP. The evidence shows that when these representations were

made, MPDP's sole equity member was MP-LC Development Partner, LLC ("MP-LC"), a

shell corporation that Davison testified he created for the special purpose of being a

member of MPDP. MP-LC had no assets or professional employees, and there was no

evidence that it was ever connected to or controlled by Land Capital or Brass/Magi.15

Rodriguez created a Texas LLC, Maritime Park Development Partners, LLC (“the Texas

LLC”), which joined MPDP on July 31, 2009, over a year after Davison represented to

CMPA that MPDP was a joint venture between Land Capital and Brass/Magi through their

limited liability companies. Rodriguez was the CEO of the Texas LLC, but Rodriguez 16

individually was not an equity member. Furthermore, the Texas LLC was not connected

Davison transferred his interest in MP-LC to his friend Mark White prior to execution of the

15

Development Agreement due to Davison’s own financial difficulties. W hite did not bring any financial strength

to MPDP, and he testified that he would not have been involved with Land Capital in an equity ownership

capacity because he knew of Davison's financial troubles. After the Development Agreement was signed in

August 2009, White became a vice president and employee of MPDP, earning an annual salary of $275,000

from MPDP.

The RFP contemplated that any legal entity created to enter into the Development Agreement

16

would be in existence prior to the RFP. Davison created MPDP prior to submitting Land Capital's RFP

response with only a shell corporation as its member, and Rodriguez's Texas LLC did not join the entity until

over a year later. Even then, MPDP clearly was not a joint venture or partnership with Brass/Magi as

represented.

Case No. 3:11cv60/MCR/CJK
Page 15 of 31

with Brass/Magi except to share Rodriguez as a common owner, and Brass/Magi was not

a member of MPDP. Rodriguez denied being financially responsible for MPDP and denied

having any joint venture partnership with Land Capital or MPDP.17

The record contains no evidence of a joint venture or partnership between Land

Capital, Magi/Brass and MPDP. Davison testified that he had used the terms “joint

venture” and “partner” only in the loose associational or general sense of the words, not

in a legal sense. Similarly, although Galt made statements at CMPA meetings

representing that Land Capital had “partnered” with Brass/Magi for the project, during his

testimony at the evidentiary hearing, he emphasized that he had “partnered” with Davison

for this project, and even then, only in a loose sense. Galt testified that he was aware of

Land Capital’s financial problems before entering into the RFP and because of those

problems, he would not have entered into a joint venture with Land Capital. He also

confirmed that neither Land Capital nor Davison were equity owners of the development

entity, MPDP, again, because of Land Capital’s financial problems. There is no evidence 18

that Davison or Galt disclosed Land Capital’s financial problems to CMPA or explained

their casual use of legal terms during the process. Based on the testimony, it is obvious

to the Court that CMPA used and understood the terms joint venture and partner in their

commonly accepted legal sense, and in any event, no disclosure was made to lead them

to believe otherwise. Davison and Galt were sophisticated businessmen engaged in a

Rodriguez also testified that MPDP was not a "shell" corporation because that implies it had no

17

purpose. He testified that instead, it had intellectual capital and was a special purpose entity in contemplation

of a transaction. The CCNA procedures, however, were designed to ensure the Development Agreement was

awarded to a qualified “firm” comprised of qualified professionals with the expertise and financial capability

to complete the project, not a special purpose entity with only intellectual capital and no legal connection to

a qualified firm.

In fact, in his deposition testimony, Galt went so far as to say that anyone who read the newspaper

18

would have known of Land Capital’s financial problems. On cross examination at the hearing, Galt also

acknowledged that Land Capital’s changed circumstances between the time of the RFQ representations and

the time MPDP signed on as Master Developer was something he, as a business man, would have expected

to be disclosed. Nonetheless, although he continued to represent himself to CMPA as a partner with Davison,

he never disclosed the true facts about Land Capital to CMPA.

Case No. 3:11cv60/MCR/CJK
Page 16 of 31

formal public procurement process, and both were fully aware of what was expected and

what they were representing.

7. Davison did not disclose that Land Capital was having any financial

difficulties until directly questioned during a public meeting on December 12, 2008, after

CMPA board members and the public had begun to hear rumors and news reports that

some Land Capital projects had fallen into foreclosure. CMPA Board member Betina Terry

testified that previously, Davison had visited her office on many occasions and had

personally assured her and told her not to worry about the rumors of Land Capital project

foreclosures. He told her that the facts had been misrepresented in the media and that

19

the project financing was sound. By this time, although Davison testified that he was

hopeful Land Capital would come through, Land Capital was unquestionably collapsing. 

Davison’s deposition testimony indicates that by December 2008, he had “considered” the

possibility that Land Capital would be unable to be involved in the project going forward.20

When confronted about the foreclosure proceedings during a public meeting in December

2008, Davison acknowledged them but assured CMPA that Land Capital had remedied

each situation and had changed to an out-sourcing business model, which, according to

Davison, was a common measure taken by other companies as well. Davison continued

to assure CMPA that it was “business as usual” at Land Capital. Furthermore, he assured

CMPA that Land Capital’s financial problems did not put the project at risk, explaining that

the development entity, MPDP, was isolated from Land Capital’s financial difficulties. 

Davison again emphasized that Land Capital was “a joint venture” with Brass/Magi, who

were the “equity partners” and “predominant owners of the project.” Davison told CMPA

he had purposefully secured this “strong financial partner” because he knew the project

 Davison testified that he relied heavily on his ability to develop strong personal relationships. He

19

boasted at a public meeting that "[t]he CMPA Board has come to know me very well."

Certainly Galt and Rodriguez knew this as well, as their testimony confirms they knew of Land

20

Capital’s financial difficulties from the beginning and for this reason, Land Capital was not involved in MPDP.

Case No. 3:11cv60/MCR/CJK
Page 17 of 31

was too big for Land Capital alone. In reality, there was no joint venture partnership. 21

Rodriguez disclaimed having any individual liability for MPDP, and, although he owns the

Texas LLC that is the predominate owner of MPDP, the Texas LLC was created solely for

this purpose with no assets and also is not connected to Brass/Magi.

8. Davison testified that he disclosed Land Capital’s demise by telephone to

Abramson, the City’s representative, while negotiating the contract in late February or

March 2009. According to Davison, an email from Abramson dated March 7, 2009,

requesting Magi’s financial statements for review is proof that he made this disclosure. 

The Court does not agree, and even assuming Davison made such a disclosure by

telephone, this does not amount to a public disclosure to CMPA. 

Abramson’s deposition testimony, a portion of which was admitted at trial, neither

confirmed nor denied Davison’s purported disclosure. Instead, Abramson testified that he

recalled hearing of Davison's financial troubles from Beitsch, CMPA’s representative,

sometime between November 2008 and April 2009. Abramson recalled that they

discussed their understanding that Brass/Magi were the development partners providing

the financial wherewithal for the development entity, as opposed to Davison and Land

Capital, with Rodriguez as the “real money guy” in Brass/Magi. This understanding is

consistent with Davison’s public representations. However, neither Abramson nor CMPA 22

were aware that in reality, Rodriguez was not financially obligated in any way. Abramson

testified that based on the representation that Brass/Magi were the financial partners, he

suggested having a qualified auditor look into this “member’s” financial records. This was

Judge Collier testified that he had contacted the second-ranked applicant, Trinity Capital Advisors,

21

to make sure it was still on board in case the negotiations with Land Capital were unsuccessful. He further

testified that CMPA would not have proceeded with Land Capital had it known of Land Capital’s lack of

qualifications, but he said he was satisfied by Davison’s explanations at the December 2008 meeting

regarding CMPA’s partnership with Brass/Magi and because of CMPA’s subsequent review of Magi’s

financials.

Furthermore, the RFP had stated Brass/Magi was the financial partner and offered its financials

22

for CMPA to review. According to Judge Collier, CMPA had decided in December 2008 to reassess the

financial strength of Magi based on Davison's assurances at the public meeting that Brass/Magi was the

financially responsible partner.

Case No. 3:11cv60/MCR/CJK
Page 18 of 31

done by Mort O’Sullivan, who reported during a CMPA Board meeting on March 13, 2009,

that he had reviewed “the financial statements of the stronger of the partners, Magi

Financial,” and found them to be financially sound. Thus, Davison’s assertion that

Abramson requested Brass/Magi’s financials in response to Davison’s telephone

“disclosure” is inconsistent with Abramson’s testimony. 

9. Instead of making a full public disclosure regarding Land Capital’s demise

and making sure that CMPA was well aware of the fact that Land Capital would no longer

be involved in the project, the record shows that throughout the contract negotiations,

Davison and Galt continued to lead CMPA to believe that MPDP was a joint venture

partnership between Land Capital and Brass/Magi. Davison appeared at public meetings

on December 1 and December 12, 2008, and again in January 2009, and continued to

refer to a partnership. He also never corrected or clarified statements made at these

meetings by Beitsch and Abramson that confirmed this relationship. Specifically, on

December 1, 2008, during a public meeting before the CMPA Board, CMPA’s

representative Beitsch, who had been negotiating with Davison and Galt, explained that

CMPA should refer to the Developer as MPDP, not Land Capital, because MPDP was the

development entity created to carry out the project and it was important to correctly identify

the party CMPA was dealing with. Beitsch further explained at this public meeting his

understanding that the development entity was comprised of Brass/Magi and Land Capital,

whom he described as the “active participants” in the development group. Davison was

present at the meeting and addressed CMPA after Beitsch yet he did not offer any

correction, or clarification, in spite of the fact that Land Capital was collapsing and there

was no joint venture agreement. In fact, both Galt and Rodriguez now deny that a joint

venture ever existed. 

At the December 12, 2008, meeting discussed above, Davison continued to mislead

CMPA by expressly assuring CMPA that Magi was “the financially strong” partner in the

development entity. Also, at a public workshop on January 28, 2009, Abramson reported

that the development entity consisted of Land Capital and Brass, and he dispelled public

Case No. 3:11cv60/MCR/CJK
Page 19 of 31

concern by expressing confidence that Davison had a sense of the overall picture of this

project and that Land Capital and Magi would bring in the necessary expertise to get the

job accomplished, and Davison sat by quietly. Galt spoke on behalf of MPDP at a

23

January 2009 meeting, and again represented that he had “partnered” with Davison, and

he touted the benefits of proceeding through MPDP, which would serve as the one

responsible entity for the project, though Davison knew MPDP had no assets or financially

responsible “members.” 

Again, in Abramson’s email to Galt on March 7, 2009, he expressly referred to Magi

as one of MPDP’s “members,” and neither Galt nor Davison corrected this false

impression. Instead, Davison and Galt gave CMPA a false sense of security by providing 24

Magi’s financials for CMPA’s review while knowing that Magi was never a joint venture

partner in MPDP in a legal sense, which was the only relationship that mattered to CMPA. 

Judge Collier and City Attorney Wells testified that CMPA considered Magi’s financial

statements to be more than adequate, satisfying their concern about Land Capital’s

financial difficulties. Thus, the record reflects that CMPA reasonably believed Brass/Magi

were members of, or partners in, MPDP, based on Davison and Galt’s representations. 

10. Galt testified that CMPA knew Land Capital was no longer involved at the

time the Development Agreement was signed because Davison was asked to sign the

Development Agreement only on behalf of MPDP, not Land Capital, and an express

Abramson’s statement that MPDP would bring in the requisite professionals merely illustrates his

23

trust in Davison and does not contradict the requirement in the RFQ and RFP that the Developer have inhouse professionals to manage the project, which is what CMPA expected all along. There is no reason

Abramson would have known of the RFQ requirement as he was not involved at that time, and he had no

authority to reassess the qualifications of the firm chosen by CMPA as most qualified. Judge Collier testified

that the CMPA Board anticipated team members would be employees or formal partners of the firm chosen,

and he confirmed that the City did not have the right to renegotiate the qualifications of an applicant outside

of the formal qualifications process.

Abramson asked for "MPDP members' (Magi's) financial statements." (Defendant's Ex. 22). Galt

24

testified he provided Magi's financials only because CMPA requested them, maintaining he did not represent

them as MPDP's financials, and Davison testified that MPDP was a new entity with no assets so there was

no reason to submit MPDP's financials. Nonetheless, it is clear from the record that Galt and Davison

intended CMPA to believe that MPDP and Brass/Magi were linked together as joint venture partners, which

was not true.

Case No. 3:11cv60/MCR/CJK
Page 20 of 31

provision in the Development Agreement stated, "As of the effective date of this

Agreement, the Developer is Controlled by Richard J. Rodriguez." However, by the time 25

the Agreement was approved in April 2009, enough had been disclosed about Land

Capital’s financial difficulties that CMPA clearly looked to Rodriguez as the “partner” who

would be providing the financial capacity for the team, based on Davison and Galt’s

misrepresentations, when in reality, neither Rodriguez nor Brass/Magi were legal members

or joint venture partners in MPDP as CMPA contemplated and had been led to believe. 

It is clear from the evidence that CMPA was not fully aware of the true makeup of the

development entity or the complete demise of Land Capital, the winning firm, until well after

the Agreement was approved and signed. 

11. CMPA also required the Master Developer to be prepared and qualified

through the CCNA process to assume the design-build contractor role at the time of

entering into the Development Agreement, although CMPA retained discretion to

separately award that portion of the contract. The Development Agreement provided for

an additional 3% fee to the Master Developer if named the design-build contractor as well. 

This arrangement was intended to promote greater efficiencies and cost savings for the

project. However, after execution of the Development Agreement and subsequent award

of the design-build contract to MPDP, CMPA learned that MPDP was actually not

financially positioned to step into the design-build construction general contractor role, as

had been contemplated. 

In January 2010, Mark White, a vice president of MPDP who took over as project

manager after it was clear that Bruce Cutright would not fill that role, requested that MPDP

be awarded the design-build contract. CMPA approved the request, but MPDP was unable

Rodriguez actually controlled the Texas LLC, which was the controlling member of MPDP. The

25

Texas LLC did not become a member of MPDP until July 2009, which was after the Development Agreement

had been negotiated and approved but before it was formally executed. The problem was that neither

Rodriguez nor Brass/Magi were financially responsible for any obligations of the Texas LLC or MPDP. To

compound the problem, Davison was not listed as in control of the development entity or as a key person for

any particular role to be performed by the Master Developer. CMPA maintains it was not aware of the true

makeup of MPDP until it began its discovery in this case, which is supported by the record.

Case No. 3:11cv60/MCR/CJK
Page 21 of 31

to secure the necessary bonding for the project and instead cobbled together a last-minute

proposal to create an LLC with Hoar Construction to provide the requisite bonding capacity. 

CMPAultimately approved an arrangement whereby MPDP and Hoar Construction formed

a new company, Magi Construction, LLC, which was then named as the general contractor

on the design-build contract. This was done in some haste because MPDP’s inability to

secure the requisite bonding placed CMPA in danger of losing nearly $12 million worth of

new market tax credits for the project. The creation of Magi Construction LLC prevented

the loss of these tax incentives and cured–for the moment–the problem of MPDP not

having the bonding capacity as represented. Under this arrangement, Hoar Construction

and MPDP agreed to share the Developer’s 3% fee for the design-build contract. It is 26

significant that MPDP would not have had the opportunity to create this arrangement and

share in the design-build fee had it not prevailed as Master Developer through the CCNA

public procurement process. 

12. The parties stipulated that CMPA paid MPDP a total of $2,547,429.96

27

pursuant to the Development Agreement, consisting of $1,490,263.35 as reimbursable

project costs; $150,000 as reimbursement for attorney’s fees and legal expenses; and

28

$907,166.61 as the Developer’s 4% Development Fee. The parties also stipulated that

MPDP’s share of the profits from the design-build contract is $560,785.96, consisting of

Hoar Construction is the controlling partner of Magi Construction LLC with a 51% interest and

26

MPDP shares a 49% interest; Hoar and MPDP agreed to split the 3% Master Developer’s fee for the

design-build project according to these percentages. After the Court’s summary judgment ruling, CMPA

requested a preliminary injunction to preserve the status quo regarding profit owed to MPDP from Hoar

Construction based on the design-build contract. The Court granted the motion, and MPDP appealed. This

appeal is still pending, see supra Note 8.

In paragraph 3 of the parties’ stipulated facts, the total is stated as $2,547,529.96, which the Court

27

disregards as a misprint. The individual amounts listed correctly add up to $2,547,429.96, which is consistent

with paragraph 2 of the stipulated facts and counsel’s representation during closing arguments.

 CMPA’s attorney stated during closing argument that within this total of reimbursable costs is the

28

sum of $70,922, which was paid to MPDP for lot clearing. The parties stipulated that MPDP paid $64,808 of

that amount directly to a subcontractor.

Case No. 3:11cv60/MCR/CJK
Page 22 of 31

$100,000, which was already paid, and an additional $460,786 that it is scheduled to

receive, which is the subject of the Court’s preliminary injunction.

Conclusions of Law

“A contract that contravenes an established interest of society can be found to be

void as against public policy.” Chandris, S.A. v. Yanakakis, 668 So. 2d 180, 185 (Fla.

1995); see also Am. Cas. Co. v. Coastal Caisson Drill Co., 542 So. 2d 957, 958 (Fla.

1989). Also, public policy concerns are “heightened” when a public entity is involved in the

contract. See City of Hialeah Gardens v. John L. Adams & Co., 599 So. 2d 1322, 1324

(Fla. 3d DCA 1992), rev. denied, 613 So. 2d 5 (Fla. 1992). In Florida, competitive bid and

qualifications-based competitive award statutes are designed to protect the public. See

Emerald Corr. Mgm’t v. Bay Cnty. Bd. of Cnty. Cmm’rs, 955 So. 2d 647, 652 (Fla. 1st DCA

2007); City of Sweetwater v. Solo Constr. Corp., 823 So. 2d 798, 801 (Fla. 3d DCA 2002),

rev. denied, 845 So. 2d 888 (Fla. 2003); see also Coastal Caisson Drill Co., 542 So. 2d at

958 (stating Fla. Stat. § 255.05 is for the protection of the public). Florida courts have

observed that the state’s competitive award or competitive bid statutes confer “reciprocal

benefits” on the participant and the public authority but also impose “reciprocal obligations”

on each. Emerald Corr. Mgm’t, 955 So. 2d at 652 (internal quotation marks omitted); see

also City of Sweetwater, 823 So. 2d at 801. The aim of Florida’s public policy in the

competitive award context is “to eliminate improper influence, or the temptation to exert

improper influence, in the obtaining of [CCNA] project funding awards and to eliminate

arrangements which encourage the payment of inequitable fees bearing no reasonable

relationship to the services actually performed.” City of Hialeah Gardens, 599 So. 2d at

1325 (specifically discussing contingency fee arrangements, which are expressly prohibited

in the CCNA). 

Case No. 3:11cv60/MCR/CJK
Page 23 of 31

Florida courts have long held that a municipality “may recover the full amount paid”

on a contract that is void as expressly prohibited by law. Town of Boca Raton v. 29

Raulerson, 146 So. 576, 577 (Fla. 1933); see also Wester v. Belote, 138 So. 721, 724

(1931) (recognizing that where an illegal or void contract already has been awarded and

executed, and payments made by the public entity, the payments may be recovered back

for the public treasury). Additionally, “courts have an ‘affirmative duty’ to avoid allowing a

party who violates public policy to receive any substantial benefits from his or her

wrongdoing.” City of Hialeah Gardens, 599 So. 2d at 1325 & n.3 (also noting that it is the

court’s duty to avoid "a raid on the public treasury" ); see also Cooper v. Paris, 413 So. 30

2d 772, 774 (Fla. 1st DCA 1982). The Court concludes that in order to protect the public

treasury, these principles must apply equally as a warning to participants in a public

The Florida Supreme Court explained in Town of Boca Raton v. Raulerson:

29

This rule may, at a glance, seem a harsh one, because under it the town would be

allowed to keep what it needs and uses and escape payment therefor, but the statute is upon

the books for all to read and heed. It is a warning to those who become public officers that

they may not take advantage of their position by dealing with themselves, and, being so

warned, they enter upon such transactions at their peril. Should we apply in such instances

the rule that recovery should be limited to the profit enjoyed from the transgression, it would

open the way and extend the invitation to fraud as well as violation of the law.

Town of Boca Raton v. Raulerson, 146 So. 576, 577 (Fla. 1933).

This comment was made in the slightly different context of considering a contingency fee

30

arrangement regarding a project within the scope of the CCNA. See City of Hialeah Gardens, 599 So. 2d at

1323-24. The CCNA requires professionals, namely, architects or engineers, to represent that they have not

agreed to pay a contingency fee for the purpose of securing the award of a public contract within the scope

of the CCNA and criminalizes the payment of such a fee, see Fla. Stat. § 287.055(6); as a result, the court

in City of Hialeah Gardens concluded that such an agreement renders the contract void and unenforceable

as against public policy. In this case, although CMPA also alleged and provided some evidence that MPDP

had offered to pay a contingency fee for the award of the Development Agreement (see doc. 18-5), there was

no evidence that a contingency fee was ever actually paid. Nonetheless, the Court finds that the context

here–i.e., the failure to comply with the CCNA-required qualifications process coupled with findings in this

Order showing false and misleading statements and intentional omissions were made during the CCNA

qualifications process–is sufficiently analogous in nature to warrant applying the same general principles

articulated in City of Hialeah Gardens. Also, although the Florida Supreme Court subsequently has reversed

a decision relying on City of Hialeah Gardens, see Rotemi Realty, Inc. v. Act Realty Co., 911 So. 2d 1181,

1183 (Fla. 2005), the Court finds that decision, which involved a real estate brokerage arrangement, is

factually distinguishable from the fraud context of this case and does not preclude reliance by this Court on

the general principles stated in City of Hialeah Gardens.

Case No. 3:11cv60/MCR/CJK
Page 24 of 31

procurement process who attempt to take advantage of the system by injecting material

misrepresentations and omissions into the process to gain or retain a competitive

advantage over other applicants competing in the public award process. As explained in

City of Hialeah Gardens, citizens have a right to expect good faith and honest dealings with

regard to expenditures of public money. Id. at 1325. 

It is also firmly established in Florida law that where a competitive public contract

was awarded in violation of a statute but “in apparent good faith, in an honest effort to

pursue the requirements of competitive bidding statutes, and it is not shown that the

contract as actually entered into is to the public’s disadvantage in any way, nor that it has

been entered into with unlawful or fraudulent intent,” the decision of whether to restrain

payments to the contracting party – or, presumably the converse, whether to require

complete disgorgement payments received on the void contract – will rest with the court’s

discretion in light of the equities involved. Wester, 138 So. at 726. Relying on this

principal, the Florida First District Court of Appeal permitted quantum meruit recovery of

money spent in reliance on a public contract declared void due to a failure to meet

statutory bidding requirements on grounds that, although the public official had required

performance of the void contract, there was no indication of “fraud, corruption or unfair

practices on the part of either party to the contract.” Robinson’s Inc. v. Short, 146 So. 2d

108, 114-18 (Fla. 1st DCA 1962), cert. denied, 152 So. 2d 170 & 155 So. 2d 548 (Fla.

1963). In Robinson’s, the court reasoned that the contract at issue in the case, which “was

considered void for direct evasion of an express mandatory [statutory bidding] provision,”

had been awarded for an honest bid, despite the statutory noncompliance. Id. (noting the

bid had disclosed that a major portion of the contracted printing would be performed out

of state, contrary to the statutory requirements). The court further stressed that the public

had benefitted from performance of the contract because the services provided were

necessary and there was no taint of fraud; thus, equitable quantum meruit recovery was

not precluded. See id. After distinguishing other contexts where the law precluded any

payment of public funds on a void contract (such as where there was no effort to comply

Case No. 3:11cv60/MCR/CJK
Page 25 of 31

with the statutes or a theory of implied contract), the Robinson court further explained that

if some equitable recovery is appropriate, it is limited to actual cost of goods and services

provided for the public’s benefit, not to exceed their reasonable fair value, and may not

include any element of profit. Id. at 116-17. In sum, where a contract has already been

awarded and performance has been rendered, quantum meruit, or presumably a right of

setoff, regarding the public money will lie in equity upon proof of the following: (1) good

faith in the competitive award process by all parties; (2) the services and supplies provided

were necessary and beneficial to the public entity, no effort was made to restrain the

performance, and performance was essential to prevent loss to the public; and (3) the cost

did not exceed reasonable fair value for the goods and services provided. Id. at 118.

In this case, MPDP has asserted it acted in good faith in the CCNA process, that it

performed and provided development services pursuant to the contract for over a year,

which benefitted the public, and that the cost of those services did not exceed their fair

value. CMPA disagrees, arguing that despite its own good faith attempt to comply with the

competitive award statutes, the statutory noncompliance, which was the award of the

Development Agreement to an unqualified firm, resulted because of fraud and

misrepresentations on the part of MPDP’s principals, foreclosing any equitable setoff and

requiring MPDP to repay all public money received pursuant to the contract. Having

carefully reviewed all of the evidence, the Court finds, for reasons stated in the findings of

facts listed above and below, that material misrepresentations and omissions invaded the

competitive award process, precluding MPDP from benefitting from a defense of setoff

based on any services it may have provided as Master Developer and requiring MPDP to

disgorge the Development Fee.

Having been chosen to negotiate in this statutory public procurement process based

on qualifications, Land Capital and MPDP through their officers, Davison and Galt, had a

continuing duty to disclose material information or withdraw if material qualifications were

no longer met. See generally Loc. No. 234 v. Henley & Beckwith, Inc., 66 So. 2d 818, 823

(Fla. 1953) (“[O]ne who has entered into a contract or undertaking which is violative of

Case No. 3:11cv60/MCR/CJK
Page 26 of 31

public policy owes to the public the continuing duty of withdrawing from such an

agreement.”). The record before the Court demonstrates that instead of complying with

this duty, Davison and Galt repeatedly to misled CMPA by failing to fully disclose material

facts about Land Capital and MPDP for the purposes of qualifying for and maintaining a

competitive advantage in the public procurement process. “Florida law recognizes that

fraud can occur by omission and places a duty on one who undertakes to disclose material

information to disclose that information fully.” ZC Ins. Co. v. Brooks, 847 So. 2d 547, 551

(Fla. 4th DCA 2003), rev. denied, 860 So. 2d 980 (Fla. 2003); see also Gutter v. Wunker,

631 So. 2d 1117, 1118-19 (Fla. 4th DCA 1994) ("[W]here a party in an arm's length

transaction undertakes to disclose information, all material facts must be [fully] disclosed."). 

Galt and Davison were sophisticated businessmen on whom the importance and formality

of a public procurement process would not have been lost. 

Beginning with the RFQ process, Davison created false impressions that he had an

impressive and professional “assembled” team, knowing there were no binding legal

relationships among the members as contemplated by the RFQ. In fact, the team

completely changed between the RFQ and RFP submissions, and Davison acknowledged

in his testimony that he did not disclose expressly, either verbally or in writing, that the

initial team members were no longer involved, although it was clear CMPA believed

otherwise. This “assembled team" had helped Land Capital secure the number one

ranking during the initial stage of the CCNA process. The RFP also required a fully

assembled team, and Davison again represented that he had one when in fact he did not

and instead merely hoped that he had one. He also misled CMPA to believe that Cutright

was a team member and would be a key figure, when in fact Cutright had not been secured

contractually as an employee or through any legally binding consultant agreement. 

Moreover, Davison and Galt both made repeated assertions in the RFP proposal,

during the RFP oral presentation to CMPA, and during public meetings throughout the

contract negotiations that there was an existing “partnership” or “joint venture” relationship

between Land Capital and Brass/Magi through MPDP, despite the absence of one. "A joint

Case No. 3:11cv60/MCR/CJK
Page 27 of 31

venture is a legal relationship, similar to a partnership but more limited in scope." 

Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 1089 (Fla. 2008). Joint

ventures are created for the purpose of a particular business deal or transaction and must

arise out of a contract which includes: "(1) a community of interest in the performance of

the common purpose, (2) joint control or right of control, (3) a joint proprietary interest in

the subject matter, (4) a right to share in the profits and (5) a duty to share in any losses

which may be sustained." Id. (internal marks omitted). Although MPDP was created out

of a community interest in a common purpose, Land Capital and Brass/Magi had no joint

control of MPDP, no right to share in the profits of MPDP, and no obligation to share in any

losses sustained by MPDP, as is required of a joint venture member. See Jackson-Shaw

Co., 8 So. 3d at 1089. Neither MPDP nor its true legal members (the LLCs created to be

MPDP’s members) had any assets nor were they connected to Land Capital or Brass/Magi

as Davison repeatedly assured CMPA. The record confirms that Davison and Galt

continued to lead CMPA to believe that Brass/Magi was Land Capital’s financial “partner,”

joint venture member, or at least was affiliated with MPDP’s LLC legal members, despite

the fact that Richardson would not allow his companies to be an equity partner with Land

Capital. In fact, Richardson denied the existence of any joint venture relationship between

his companies (Brass/Magi) and Land Capital or MPDP. The Court rejects Davison’s and

Galt’s assertions that they used the terms “joint venture” and “partnership” only in a loose

sense with no intent to mislead. Their repeated use of these terms throughout the formal

public procurement process for the purpose of securing the Master Developer Agreement

over other competitors demonstrates an intent to deceive.

Davison also falsely represented that Land Capital would be the “lead developer”

when, as noted, he knew it was financially collapsing. It is clear from the record that Land

Capital was failing even as Davison and Galt presented the RFP proposal. Its financial

difficulties were the reason that Galt and Rodriguez became involved in the project

(Davison needed a financial backer), and also the reason that neither Galt nor Rodriguez

was willing to enter into a legal joint venture with Davison or Land Capital. Galt testified

Case No. 3:11cv60/MCR/CJK
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that he knew of Davison’s and Land Capital’s financial troubles before the RFP was

submitted. Obviously, Davison was fully aware of it as well. Davison, Galt and Rodriguez

all testified that the circumstances had changed between the time the RFP proposal was

submitted and the Development Agreement was approved and executed, and they insist

they did their best to work through a difficult situation when Land Capital began to fail. 

However, the Development Agreement was not approved or executed until well after Land

Capital’s demise was obvious to them, and the parties did not disclose either its collapse

or the lack of any legally binding joint venture agreement between Land Capital and

Brass/Magi or MPDP’s members. Based on Davison’s and Galt’s assurances, CMPA was

misled to believe it was negotiating with the most highly qualified firm under the CCNA and

that Land Capital had in place the team and joint venture arrangement promised, in

addition to the financial commitment of Brass/Magi. Despite a continuing obligation to fully

disclose the legal relationships and true state of affairs of Land Capital and MPDP, and

many opportunities to do so, no such disclosure was ever made. As a consequence,

Davison and Galt wrongfully gained a competitive advantage for Land Capital and MPDP

over Trinity Capital Advisors, the next most qualified firm.

The Court rejects as contrary to the evidence Davison’s assertion that he acted out

of optimism that Land Capital would survive, as opposed to bad faith. The Court also

disagrees with MPDP’s assertion that Land Capital’s demise was fully disclosed by

Davison’s public acknowledgment of some of Land Capital’s financial troubles as well as

the wording of the Development Agreement. As noted above, Davison’s public statements

misled CMPA to believe Land Capital would pull through and that MPDP was controlled by

Rodriguez and the financially strong partner, Brass/Magi. Regarding the Development

Agreement, although it was signed by MPDP, not Land Capital, and included a provision

naming Rodriguez as the person in control of the development entity, neither the true legal

members of MPDP nor its true “shell” status were disclosed. In the face of Davison’s and

Galt’s repeated public assurances that Brass/Magi was the financially responsible joint

venture partner of Land Capital and MPDP, neither the general awareness of Land Capital’s

Case No. 3:11cv60/MCR/CJK
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financial troubles nor the wording of the Development Agreement can be considered

adequate disclosure of MPDP’s true members or the true state of affairs.31

Based on Davison’s and Galt’s material misrepresentations and omissions on behalf

of Land Capital and MPDP in this public procurement process, the Court concludes that the

circumstances of this case do not fall within the narrow good faith exception established in

Robinson’s, and thus there is no need to consider the remaining factors set forth in

Robinson’s, such as fair market value for services provided by the Master Developer.32

Consequently, the entire amount paid to MPDP as the Master Developer’s Development

Fee of $907,166.61 must be disgorged, regardless of any services actually provided by

MPDP as Master Developer. The Court has “an affirmative duty to see that the party

violating public policy not benefit in any way as a result of his wrongdoing.” Cooper, 413

So. 2d at 774. Also, consistent with the Court’s Preliminary Injunction Order, MPDP must

disgorge the profit from the design-build contract, which totals $560,785.96 ($100,000 that

MPDP already received plus $460,786). Although the validity of that contract is not at 33

issue in this case and is not challenged, MPDP’s profit from the design-build contract flowed

directly from the rights it wrongfully obtained as Master Developer under the Development

Agreement and through the CCNA process. Thus, this profit must be disgorged as well. 

CMPA also would have the Court require MPDP to repay amounts that passed

through MPDP as reimbursable costs paid directly to project professionals and

Even if the Court accepts Davison's testimony that he made a private "disclosure" of Land Capital's

31

demise to Abramson in late February 2009, this informal telephone conversation with Abramson, who was

not a CMPA Board member, was too little too late to constitute full disclosure.

The Court finds it puzzling that MPDP argues in its trial brief that it should not have been required

32

to litigate fair market value without notice in the pleadings that any harm had occurred, when in fact, the

Court’s use of the Robinson’s analytical framework was to MPDP’s benefit. If there had been no fraud, MPDP

might have been permitted to retain that portion of the Development Fee that was the fair market value of the

services it provided as a setoff. In light of the material misrepresentations and omissions, however, there is

no need to consider whether MPDP provided any valuable developer services.

To the extent payment amounts discussed in the Preliminary Injunction Order or in other previous

33

orders are inconsistent with this Order, this Order controls. At the time of all prior orders, the evidentiary

hearing had not yet been conducted, and the parties stipulated to the amounts stated in this Order in their

pretrial statement.

Case No. 3:11cv60/MCR/CJK
Page 30 of 31

subcontractors, totaling $1,490,263.35, and amounts reimbursed for legal fees, totaling

$150,000. With one exception, there is no dispute that the project reimbursable costs

totaling $1,490,263.35 were paid directly to the project professionals and subcontractors

for services they provided. The one exception is that CMPA reimbursed MPDP $70,922 for

lot clearing but MPDP only paid the contractor $64,808, leaving a difference of $6,114,

which MPDP apparently retained. This benefit to MPDP must be disgorged. Similarly, the

$150,000 legal fees were reimbursed for MPDP’s benefit and must also be disgorged. In

all other respects, however, the record shows that MPDP acted as a mere payment agent

for CMPA with regard to the reimbursable costs. There is no dispute that qualified

professionals and subcontractors, not MPDP, provided these valuable services and that

MPDP remitted the reimbursement directly to them. In fact, for over a year, CMPA 34

approved the invoices as reasonable payment for services provided by the professionals

and subcontractors, and the public benefitted from the work. Requiring repayment of 35

these amounts from MPDP would be more in the nature of damages and a windfall to the

public, as opposed to equitable disgorgement.

The reimbursable costs were paid based on receipts from the professionals after CMPA reviewed

34

them without objection to the cost of the work or materials provided. CMPA did not plead that it was harmed

by the work or materials provided by the project professionals or subcontractors.

The park is now constructed, so CMPA will not have to restart the public procurement process with

35

a qualified Master Developer. Although the Court previously concluded that MPDP is not entitled to the benefit

of an equitable setoff under the Robinson’s analysis, these reimbursable costs fall outside the scope of that

analysis because the record clearly indicates that these costs were not incurred by the Developer. The Court

is not here applying a setoff but simply concluding as a matter of equity that MPDP did not derive any “benefit”

from these payments. The Florida cases suggesting that a municipality may recover all money paid on a

contract that is void for violation of competitive bid statutes used discretionary language, i.e., "may," and did

not involve the type of developer agreement at issue in this case. Those cases involved contracts for a

particular material or service that was provided by the contractor whereas here, as stated above, the project

reimbursable costs were not compensation paid to MPDP for any materials or services that MPDP provided.

However, this is not to say that CMPA still owes MPDP on any outstanding invoices for costs. The

Development Agreement is void, and MPDP can claim no rights under a void contract. See Harris v. Sch. Bd.

of Duval Cnty., 921 So. 2d 725, 735 (Fla. 1st DCA 2006) (“‘A contract entered into in violation of statutes and

rules requiring competitive bids is absolutely void . . . and no rights can be acquired thereunder by the

contracting party.” (quoting Wester, 138 So. at 724)). The Court concludes only that equitable disgorgement

of these amounts from MPDP is not appropriate.

Case No. 3:11cv60/MCR/CJK
Page 31 of 31

Accordingly:

1. Defendant Maritime Park Development Partners, LLC, is ordered to disgorge

to Plaintiff Community Maritime Park Associates, Inc., the total sum of $1,624,066.57.36

2. The Clerk is directed to enter judgment accordingly in favor of Plaintiff and

against the Defendant and tax costs against the Defendant.

DONE and ORDERED this 4th day of February, 2014.

 M. Casey Rodgers 

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE

The total judgment represents amounts CMPA paid on the void Development Agreement as the

36

Development Fee ($907,166.61), the reimbursement of MPDP’s attorney's fees ($150,000), MPDP's profit

on the lot clearing ($6,114), and MPDP's profit from the design-build contract ($560,785.96).

Case No. 3:11cv60/MCR/CJK