SOUTH FLORIDA WATER MANAGEMENT bistict 3301 Gun Club Road aon West Palm Beach, Florida 33406 HARRY PEPPER & ASSOCIATES, INC., Petitioner, v. SFWMD 2005-143-FOF-CONT SOUTH FLORIDA WATER DOAH CASE NO. 05-002765BID MANAGEMENT DISTRICT, Respondent. FINAL ORDER The SOUTH FLORIDA WATER MANAGEMENT DISTRICT ("District"), by and through the undersigned, after receipt of Order Closing File canceling the Final Hearing on this matter issued by the State of Florida Division of Administrative Hearings, pursuant to a Settlement Agreement entered into by both parties and executed by the Governing Board on September 14, 2005, and being otherwise fully informed, issues this Final Order containing Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. On July 15, 2005, the District posted its notice of decision or intended decision to award contract RFB CN050254 to GlobeTec Construction, LLC to construct the Hillsboro ASR Pilot Project. 2. The Petitioner, HARRY PEPPER & ASSOCIATES, INC. (“Petitioner”) filed a Notice of Protest ("Notice") and subsequently a Formal Written Protest in the form of a Petition (“Petition”) on July 8, 2005 and July 15, 2005, respectively, contesting the District's decision. Page 1 of 5 3. District staff issued an Order on Petition’s Compliance stating that the Petition met the requirements of a “Formal Written Protest” as defined in Section 120.57(3), Fla. Stat. and Rules 28-106.201(2) and 28-110.004, Fla. Admin. Code; and forwarded a request for a Formal Administrative Hearing to the Division of Administrative Hearing on July 29, 2005, pursuant to Sections 120.57(1) and 120.569, Fla. Stat. 4. District staff forwarded the Petition to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct all the necessary proceedings required by law pursuant to Sections 1 20.57(1), 120.57(3)(e), and 120.569, Fla. Stat., and to thereafter submit a recommended order to the District. 5. On September 6, 2005, the parties filed a Joint Motion to Relinquish Jurisdiction requesting that the Administrative Law Judge cancel the Hearing scheduled for September 12, 2005, and relinquishing jurisdiction to the District because the parties had reached a settlement. 6. On September 7, 2005, based upon the parties’ Joint Motion to Relinquish Jurisdiction, the Administrative Law Judge entered an Order Closing File, canceling the Final Hearing on the matter (Exhibit “A”) and thereby, relinquishing jurisdiction of this matter to the District for final disposition. ULTIMATE FACTS AND CONCLUSIONS OF LAW 7. Pursuant to Section 373.083(1), Fla. Stat, and the implementing regulations found in Chapter 40E-7, Fla. Admin. Code, the District is authorized to, among other things, contract with public agencies, private corporations, or other persons. Page 2 of 5 8. Section 120.57(3)(b), Fla. Stat., requires persons adversely affected by an agency decision or intended decision concerning a bid solicitation or a contract award to file a protest with that agency. 9. In any proceeding conducted pursuant to Subsection 120.57(1)(i), Fla, Stat., the Administrative Law Judge may enter an order relinquishing jurisdiction to the agency when there no longer exists a dispute of material fact. 10. The disputed issues of fact were resolved by the parties in a Settlement Agreement signed by the Governing Board on September 14, 2005 (Exhibit “B"), 11. Pursuant to the Settlement Agreement, Petitioner withdrew its Bid and its Bid Protest within five (5) days after the Governing Board executed the Settlement Agreement (Exhibit “C"), 12. Pursuant to Subsection 373.083(5), Fla. Stat., and District Policies and Procedures, Section 101-22(a)(5), the Governing Board has delegated to the Executive Director and General Counsel authority to enter Final Orders approving the withdrawal of a petition for administrative hearing. 13. The Notice of Rights is attached hereto as Exhibit “D". ORDER Based on the foregoing Findings of Fact and Ultimate Facts and Conclusions of Law, itis ORDERED that: A. Jurisdiction over the subject contract matter is accepted; B. The Administrative Law Judge's Order Closing File is adopted: C. Petitioner withdrew its Bid and Bid Protest within five (5) days after the Settlement Agreement was executed; and Page 3 of 5 D. Dismissal of the Petition is accepted; thereby allowing the District to continue its procurement process for RFB CNO50254 to construct the Hillsboro ASR Pilot Project. DONE AND SO ORDERED this 23rd day of September, 2005. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, BY ITS GENERAL COUNSEL SOUTH FLORIDA WATER MANAGEMENT DISTRICT BY ITS GENERAL COUNSEL ss . Assistant Secreta SHERYL G.OWOOD, ESQ. General Counsel DATE: etore ty Libr olf, XO Page 4 of 5 CERTIFICATE OF SERVICE | HEREBY CERTIFY that true and correct copies of the foregoing, have been furnished by U.S. MAIL fo the Honorable Michael M. Parrish, Department of Administration, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and Nestor Bustamante, Esquire, Intervener, located at 150 South Pine Island Road, Suite 400, Fort Lauderdale, FL 33324 and U.S. MAIL and Facsimile to: Brian P. Kirwin, Attorney for Respondent, located at 338 Morse Blvd., Suite 150, Winter Park, FL 32789 (Fax No. 407-740-6363), and Joseph C. Staak, Esq., Attorney for Petitioner, located at 2600 Harris Tower- Peachtree Center, 233 Peachtree Street NE, Atlanta, GA 30303 (Fax No. 404-688- 0671) this 23rd day of September, 2005. Catherine Linton, Esq. Florida Bar No. 0717908 Page 5of 5 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS HARRY PEPPER & ASSOCIATES, INC., Petitioner, Case No. 05-2765BID vs. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Respondent. ORDER CLOSING FILE This cause having come before the undersigned on a Joint Motion to Relinquish Jurisdiction filed September 6, 2005, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing in this cause scheduled for September 12 through 16, 2005, is cancelled. 2. The file of the Division of Administrative Hearings is closed with leave for either party to request the Division to re-open the case, should the parties’ settlement fail to resolve this matter. See Section 120.569(2) (a), Florida Statutes. EXHIBIT "A" DONE AND ORDERED this 7th day of September, 2005, in Tallahassee, Leon County, Florida. _thla fe MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 2005. COPIES FURNISHED: Joseph Staak, Esquire Smith, Currie & Hancock LLP 2600 Harris Tower 233 Peachtreee Street, Northeast Atlanta, Georgia 30303-1530 Cathy Linton, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Brian P. Kirwin, Esquire Kirwin Norris, P.A. 338 Morse Boulevard, Suite 150 Winter Park, Florida 32789 Nestor Bustamante, Esquire Ferencik, Libanoff, Brandt, Bustamante and Williams 150 South Pine Island Road, Suite 400 Fort Lauderdale, Florida 33324 SETTLEMENT AGREEMENT See AGRER MENT f~This Settlement Agreement (hereinafter “Agreement") is made and entered this iY day of September 2005 by and between the South Florida Water Management CK District, a water management district established pursuant to the laws of the state of Florida (the “District’) and Harry Pepper & Associates, Inc., a Florida licensed contractor with offices in Jacksonville Florida (“Pepper”), WHEREAS, on or about April 18, 2005, the District issued a Request for Bids on RFB No. CN 050254, entitled Hillsboro ASR Pilot Project, in Palm Beach County, Florida (hereinafter the “Project” or the “RFB”), including Instructions to Bidders, a required bid form, and other specific documents that bidders were required to complete, WHEREAS, Pepper prepared and on May 23, 2005 submitted a bid on the RFB in accordance with the terms and requirements of the RFB in the Base Bid amount of $2,221,198.00, WHEREAS, Pepper's bid was the lowest responsive bid received by the District to the RFB; WHEREAS, in a May 31, 2005 letter, the District, gave Pepper written notice that it was the apparent low bidder on the RFB and asked Pepper to submit a written verification of its bid, payment and performance bonds and insurance certificates, which Pepper timely provided; WHEREAS, the District thereafter decided to reject Pepper’s bid on the RFB on the grounds that Pepper was not a responsible contractor, said determination being based on events surrounding Pepper’s performance of an earlier contract for the District, the STA1-West lmprovements, Contract No.C-E107 (hereinafter the STA1-West Contract), as well as the ensuing litigation between the Parties over claims asserted by AEL, a subcontractor to Pepper on the STA1 West Contract; WHEREAS, the bases of the District’s determination that Pepper was not a responsible contractor on the RFB due to the events surrounding Pepper's performance of WHEREAS, Pepper disputes the District’s finding that Pepper is not a responsible bidder and disputes the allegations and findings contained in the June 22, 2005 Memo and the December 2004 Memo; WHEREAS, in Tuly 2005 Pepper initiated a Formal ‘Protest pursuant with Florida Statutes § 120.57 (3) (the “Protest”, challenging the District’s finding that Pepper was not a responsible contractor, and seeking a ruling that Pepper was entitled to an award of a contract on the RFB as the lowest responsible and responsible bidder; WHEREAS, the Protest was forwarded to the Division of Administrative Hearings (“DOAH”) for adjudication and the DOAH hearing officer has scheduled a hearing on the Protest to begin on September 12, 2005; litigation on the STA1-West Contract, and questions regarding whether Pepper is a responsible contractor; For and in consideration of the mutual promises, obligations and agreements contained herein, the District and Pepper do hereby agree as follows: 1, The WHEREAS Clauses set forth above are incorporated into and are become an operative part of this Agreement. 2. Within 5 days of the execution of this Agreement, Pepper shall withdraw its bid and bid bond on the RFB, The District agrees to allow Pepper to withdraw its bid and bid bond on the RFB. 3. Immediately after the District allows Pepper to withdraw its bid and bid bond on the RFB, Pepper shall withdraw or otherwise dismiss its pending Protest on the RFB. The Parties further agree that each Party shall bear jts own costs and attomeys fees in connection with the Protest and the disputes arising from the District’s efforts to declare that Pepper was not a responsible contractor, 4, Prior to execution of this Agreement by the District, the District and Pepper shall submit to the DOAH hearing officer a Joint Stipulation for Dismissal of the Protest, relinquishing the hearing officer of further jurisdiction over the protest. In the event that the District doesn’t execute this Agreement, then Jurisdiction over this matter shall be retuned to the DOAH hearing officer for resolution. 5, Pepper understands that it is in the best interests of both Parties to have a cooling off period subsequent to the RFB and the District support a finding that Pepper is not a responsible bidder or is not otherwise qualified to perform such future procurement. 22 2005 Memo and the December 2004 Memo at the earliest Possible time as authorized as amended. 8. The purpose of this Agreement js to settle all controversies between the Parties relating to the Protest and the asserted finding by the District that Pepper is not a responsible contractor. It is also the purpose of this Agreement to Serve as a waiver and release of any and all claims that the District and Pepper may have against each other 9. This Agreement is not intended to alter any of the provisions of the two settlement agreements previously executed in connection with the STAI West Contract and the ensuing litigation concerning the STA1-West Contract, the first settlement agreement being the “Stipulation for Compromise/Settlement and Dismissal with Prejudice, and Order Approving of Dismissal with Prejudice” filed with the Court on or about April 28, 2003 (said Order being signed by the Court May 5, 2003), and the second being the “Mutual General Release, Settlement and Hold Harmless Agreement” dated February 25, 2004, 10. Subject to the provisions otherwise contained in this Agreement, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the respective Parties, 11. This Agreement may be executed in any number of counterparts with the same effect as if the Parties had all signed the same document. All counterparts shall be construed together and shall constitute one agreement. 12, The rights and obligations of the Parties and the interpretation and performance of this Agreement shall be govemed by the law of the State of Florida. 13. If the services of an attorney are required by any party to secure the performance of this Agreement or otherwise upon the breach or default of another party to this Agreement, or if any judicial remedy, administrative protest, or alternative dispute remedy, administrative protest, or alternative dispute resolution procedure as a result of the breach of this Agreement or any of its provisions shall include an award of prejudgment interest from the date of the breach at the maximum amount of interest allowed by law. 14. This Agreement is not intended to constitute or support a finding that Pepper was or was not a responsible contractor on the RFB, IN WITNESS WHEREOF, the undersigned Parties have, by and through their duly authorized representatives, have executed this Settlement Agreement under seal as of the date set forth above. The South Florida Water Management District Ay fa / By: Keu' MG Is Cher Swom to and subscribed before me this IA day of Spf , 2005. py: CLL Peer A Pensonary *V ow een ELLEN J, MacARTHUR “4 a MY COMMISSION # DD 146870 “opi EXPIRES: October 16, 2008 1-8000-NOTARY FL Nousy Servion & Bonding, Inc. Harry Pepper & Associates, Inc FE By:_| Cuy Broome ur Its: —txecutive Vice-Pres/Treas Sworn to and subscribed before me this 1) <+day of Sept _, 2005. By “-e KE, pla Otary Public / Martha H Pepper Personally Known xX. Or Produced Identification tb Martha H. Pepper MY COMMISSION # DD172524 EXPIRES : January 12, 2007 RRA BONDED THRU TROY FAWN INSURANCE, INC. HARRY PEPPER ASSOC. INC September 20, 2005 Via FACSIMILE TRANSMISSION (561-682-6010) CONFIRMING Cory VIA OVERNIGHT FEDEX DELIVERY ee EE OETA UVERNIGHT FEDEX DELIVERY Ms. Rachel Rich District Clerk South Florida Water Management District 3301 Gun Club Road West Palm Beach, FL 33406 Re: Request For Bid No. CN050254 Hillsboro ASR Pilot Project, Palm Beach County, Florida Dear Ms. Rich: Harry Pepper & Associates, Inc. hereby requests to withdraw its Bid on the above- referenced RFB which was originally submitted on May 23, 2005. This request is being made pursuant to Paragraph 2 of the Settlement Agrecment entered into between Harry Pepper & Associates, Inc. and the South Florida Water Management District, said Settlement Agreement being executed by the District on September 14, 2005 and by Harry Pepper & Associates on September 1, 2005. This request to withdraw its bid should be interpreted consistent with the referenced Settlement Agreement and otherwise without prejudice to Pepper. By this letter Harry Pepper and Associates also withdraws its Formal Bid Protest on the above-referenced RFB which was filed with the District on July 15,2005. Again, the withdrawal of Pepper’s formal Bid Protest is pursuant to Paragraph 2 of the Settlement Agreement. Please contact me if you have any questions. Very truly yours, HARRY PEPPER & ASSOCIATES, INC, Ch! Lye David L, Peoed President DAP/bjc cc: Ms. Catherine E. Richards, Contract Specialist (via facsimile, 561-682-5009) Brian P. Kirwin, Esq. (via facsimile, 407-740-6363) Catherine M. Linton, Esq. (via facsimile, 561-682-5009) EXHIBIT "c" 215 Century 21 Drive » Jacksonville, Florida 32216 Post Office Box 19477 » Jacksonville, Florida 32245-9477 904-721-3300 « Fax: 904-721-5222 « e-mail: slamm@hpepper.com NOTICE OF RIGHTS SASUKE OF RIGHTS Section 120.569(1}, Fla. Stat. (1997), requires that “each Notice shall inform the recipient of any administrative hearing or judicial review thal is available under this which must be followed to obtain th Please note that this Notice of Rights is not intended to Provide Pplicable or appropriate remedy. You may wish to consult an allorney regarding your detailed below may be an a legal rights. Petition for Administrative Proceedings 1. A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected Person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1 511, Fla, Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below. Petitions are deemed filed upon receipt of the original documents by the SFWMD Clerk. a. Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Slat. or for mediation pursuant to Section 120.573, Fla. Stat. within 24 days, except as provided in subsections c. and d. below, of either written notice through mail or posting or publication of notice that the SFWMD haé or intends to lake final agency action. Petitions must substantially comply with the requirements of Rule 28-106.201(2), Fla. Admin. Code, a copy of the which is altached to this Notice of Rights, b. Informal Administrative Hearing: If there arora! Administrative Hearing: the affected are no issues of material fact in dispute, Person seeking an informal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(2), Fla, Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21,days, except as Provided in subsections c. and d. below, of either written notice through mail or Posting or publication of notice that the SFWMD has or intends to take final agency action. Petitions must substantially comply with the requirements of Rule 28-106.301(2), Fla. Admin, Code, a copy of the which is attached to this Notice of Rights. c. Administrative Complaint and Order: If a Respondent objects to a SFWMD Administrative Complaint and Order, Pursuant to Section 373.119, Fla. Stal, (1997), the person named in the Administrative Complaint and Order may file a petition for a hearing no faler than 14 days after the date such order is served, Page lof 4 } S section, S. 120.57, ors. 120.68; shall indicale the Procedure @ hearing or judicial review, and shall state the time limits which apply.” legal advice. Not aif the legal Proceedings Petitions must substantially comply with the requirements of either subsection a. or b. above, d. State Lands Environmental Resource Permit: Pursuant to Section 373.427, Fla, Stat., and Rule 40E-1.511(3), Fla, Admin. Code (also published as an exception to the Uniform Rules of Procedure as Rule 40E- 0.109(2)(c)), @ petition objecting to the SFWMD's agency action consolidated applications for SLERP. Petitions must substantially comply with the requirements of either subsection 4. or D. above, e. Emergency Authorization and Order: A person whose substantial interests are affected by a to file a petition under Sections 120.569, 120.57(1), and 120.57(2), Fla. Stal., as provided in subsections a. and b. above, However, the person, or the agent of the person f. Order for Emergency Action: A person whose substantial interests are affecied by a SFWMD Order for Emergency Action has a right to file a petition Pursuant to Rules 28-107,005 and 40E-1.611, Fla. Admin. Code, copies of which are attached to this Notice of Rights and Section 373.119(3), Fla, Slat., for a hearing on the Order, Any Subsequent agency action or Proposed agency action to initiate a formal revocation Proceeding shall be Separately noticed pursuant to section g. below, 2. Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the SFWMD's final action may be different from the position taken by it previously. Persons whose substantial interests may be affected by any such final decision of the SFWMD shall have, pursuant to Rule 40E-1.511(2), Fla. Admin, Code (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109(2)(c)), an additional 21 days from the date of receipt of notice of said decision to request an administrative hearing. However, the scope of the administrative hearing shall be limited to the substantial deviation. 3. Pursuant to Rule 40E-1.511(4), Fla. Admin. Code, substantially affected persons entitled to a hearing pursuant to Section 120.57(1), Fla. Stat., may waive their right ta such a hearing and request an informal hearing before the Governing Board Pursuant to Section 120.57(2), Fla. Stat.,. which may be granted at the option of the Governing Board. 4. Pursuant to Rule 28-106.117(3), Fla. Admin. Code, persons may file with the SFWMD a request for extension of time for filing a petition. The SFWMD, for good cause shown, may grant the extension. The request for extension must contain a certificate that the petitioner has consulted with all other parties, if any, concerning the extension and that the SFWMD and al! other parties agree to the extension. CIRCUIT COURT 5. Pursuant to Section 373.617, Fla. Stat., any substantially affected person who claims that final agency action of the SFWMD relating to permit decisions constitutes an unconstitutional taking of property without just compensation may seek judicial review of the action in Circuit court by filing a civil action in the circuit court in the judicial circuit in which the affected Property is located within 90 days of the rendering of the SFWMD's final agency action. 6. Pursuant to Section 403.412, Fla. Stat., any citizen of Florida may bring an action for injunctive retief against the SFWMD to compel the SFWMD to enforce the laws of Chapter 373, Fla. Stat., and Title 40E, Fla. Admin. Code. The complaining party must file with the SEWMD Clerk a verified complaint Setting forth the facts upon which the complaint is based and the manner in which the complaining party is affected. If the SFWMD does not take appropriate action on the complaint within 30 days of receipt, the complaining party may then file a civil suit for injunctive relief in the 15" Judicial Circuit in and for Paim Beach County or circuit court in the county where the cause of action allegedly occurred. 7. Pursuant to Section 373.433, Fla, Stat, a Private citizen of Florida may file suit in circuit court to Page 20f4 require the abatement Of any stormwater management system, dam, impoundment, reservoir, appurtenant work or works that violate the Provisions of Chapter 373, Fla. Stat, DISTRICT COURT OF APPEAL _ 8. Pursuant to Section 120.68, Fla, Stat.. a party who is adversely affected by final SFWMD action may Second copy of the notice with the SFWMD Clerk within 30 days of rendering of the final SFWMD action. LAND AND WATER ADJUDICATORY COMMISSION 9. A party to a “proceeding below" ma Yy seek review by the Land and Water Adjudicatory Commission é rendition of the SFWMD's order. Simultaneous with filing, a copy of the request for review proceeding below. A copy of Rule 42-2.013, Fla, Admin, Code is attached to this Notice of Rights. the real property is located within 1 year of the SFWMD action pursuant to the Procedures set forth in Subsection order or notice of agency action Pursuant to the procedures set forth in Subsections 70.51(4) and (6), Fla. Stat, MEDIATION 12. A person whose substantial interests are, or may be, affected by the SFWMD's action may choose Revised Oecember 21, 2001 mediation as an alternative remedy under Section 120.573, Fla. Stat. Pursuant to Rule 28-106.111(2), Fla. Admin. Code, the petition for mediation shall be filed within 24 days of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Choosing mediation will not adversely affect the right to an administrative hearing if mediation does not result in settlement, Pursuant to Rule 28-106.402, Fla. Admin. Code, the contents of the petition for mediation shal contain the following information: (1) the name, address, number of the person requesting mediation person's representative, if any; (2) a statement of the Preliminary agency and telephone and that action; (3) an explanation of how the person's substantial interests will be affected by the agency determination; and (4) a statement of relief sought. As provided in Section 120.573, Fla. Stat. (1997), the timely agreement of all the parties to mediate will toll the time limitations imposed by Sections 120.569 and 120.57, Fila. Stat., for requesting and holding an administrative hearing. Unless otherwise agreed by the parties, the mediation must be concluded within 60 days of the execution of the agreement. if mediation results in settlement of the dispute, the SFWMD must enter a final order incorporating the agreement of the parties, Persons whose substantial interest will be affected by such a modified agency decision have a tight to petition for hearing within 21 days of receipt of the final order in accordance with the requirements of Sections 120.569 and 120.57, Fla. Stat., and SEWMD Rule 28-106.201(2), Fla. Admin. Code. If mediation terminates without settlement of the dispute, the SFWMD shall notify all parties in writing that the administrative hearing process under Sections 120.569 and 120.57, Fla. Stat., remain available for disposition of the dispute, and the notice will specify the deadlines that then will apply for challenging the agency action. VARIANCES AND WAIVERS 13. A person who is subject to regulation Pursuant to a SFWMD rule and believes the application of that rule will create a substantial hardship or will violate Principles of fairness (as those terms are defined in Subsection 120.542(2), Fla, Stat.) and can demonstrate that the purpose of the underlying statute will be or has been achieved by other means, may file a petition with the SFWMD Clerk requesting a variance from or waiver of the SFWMD tule. Applying for a variance or waiver does not substitute or extend the time for filing a petition for an administrative hearing or exercising any other right that a person may have concerning the SFWMD's action. Pursuant to Rule 28-104.002(2), Fla. Admin. Code, the Petition must include the following information: Page 3 of 4 7 (a) the caption shail read: Petition for (Variance from) or (Waiver Of) Rule (Citation) (b) ; The name, address, telephone numbe, and any facsimile number of the petitioner. (c) The name, address telephone numbe; and any facsimile number of the attorney or qualified representative of the petitioner, (if any); (d) the applicable rule or Portion of the rule; ; (e) the citation to the Statue the rule js implementing; (f) the type of action requested; (q) the specific facts that demonstrate a substantial hardship or violation of Principals of fairness that would justify a waiver or variance for the petitioner; (h) the reason why the variance or the waiver requested would serve the Purposes of the underlying statute; and ; (i) @ statement of whether the variance or waiver ‘8 permanent or temporary, {f the variance or waiver is temporary, the petition shall include the dates indicating the duration of the requested variance or waiver. A Person requesting an emergency variance from or waiver of a SFWMD tule must clearly so state in the Caption of the petition. In addition to the requirements of Section 120.542(5), Fla. Stat. Pursuant to Rule 28. 104.004(2), Fla. Admin. Code, the petition must also include: a) the specific facts that make the situation an emergency; and b) the specific facts to show that the petitioner will suffer immediate adverse effect unless the variance or waiver is issued by the SEWMD more expeditiously than se cable timeframes set forth in Section 120.542, Fla. at. WAIVER OF RIGHTS 14, ; Failure to observe the relevant time frames Prescribed above will constitute a waiver of such right. 28-106.201 INITIATION OF PROCEEDINGS (INVOLVING DISPUTED ISSUES OF MATERIAL FACT) (2) All petitions filed under (hese rules shall contain: (a) The name and address of each agency affected and each agency's file or identification number, if known; petitioner; the name, address, and telephone number of the petitioner's representative, if any, which shall be the address for service Purposes during the course of the proceeding, and an explanation of how the petitioner's substantial interests will be affected by the agency determination; (c) A statement of when and how the petitioner received notice of the agency decision: (d) A statement of all disputed issues of material fact. If there are none, the Petition must so indicate; Revised December 21, 2007 (e) A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the petitioner to relief; and (f) A demand for relief. 28-106.301 INITIATION OF PROCEEDINGS (NOT INVOLVING DISPUTED ISSUES OF MATERIAL FACT) (2) All petitions filed under these rules shall contain: (a) The name and address of each agency affected and each agency's file or identification number, if known; (b) The name, address, and telephone number of the petitioner, the name, address, and telephone number of the petitioner's representative, if any, which shall be the address for service purposes during the course of the proceeding, and an explanation of how the petitioner's substantial interests will be affected by the agency determination; (c) A statement of when and how the petitioner received notice of the agency decision; (d) A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the petitioner to relief; and (e) Ademand for relief. SUSPENSION, REVOCATION, ANNULMENT, OR WITHDRAWAL (3) Requests for hearing filed in accordance with this rule shall include: (a) The name and address of the party making the request, for purposes of service; (b) A stalement that the party is requesting a hearing involving disputed issues of material fact, or a hearing not involving disputed issues of material fact; and (c) A reference to the notice, order to show cause, administrative complaint, or other communication that the party has received from the agency. 28-107.004 REQUEST FOR REVIEW PURSUANT TO SECTION 373.114 OR 373.217 (1) In any proceeding arising under Chapter 373, F.S., review by the Florida Land and Water Adjudicatory Commission may be initiated by the Department or a party by filing a request for such review with the Secretary of the Commission and serving a copy on any person named in the rule or order, and on all parties to the proceeding which resulted in the order sought to be reviewed. A certificate of service showing completion of service as required by this subsection shall be a requirement for a determination of sufficiency under Rule 42-2.0132. Failure to file the request with the Commission within the time period provided in Rule 42-2.0132 shall result in dismissal of the request for review. 42-2.013 (2) The request for review shall identify the rule or order requested to be reviewed, the proceeding in which the rule or order was entered and the nature of the rule or order. A copy of the rule or order sought to be reviewed shall be attached. The request for review shall state with particularity: Page 4of 4 (a) How the order or rule Conflicts with the requirements, provisions and Purposes of Chapter 373, F.S., or rules duly adopted thereunder, (b) How the rule or order sought to be reviewed affects the interests of the party seeking review; ({c) The oral or written statement, sworn or unsworn, which was submitted to the agency concerning the matter to be reviewed and the date and location of the statement if the individual or entity requesting the review has not Participated in a Proceeding previously instituted pursuant to Chapter 120, F.S., on the order for which review is sought; (d) If review of an order is being sought, whether and how the activity authorized by the order would substantially affect natural resources of statewide or regional significance, or whether the order raises issues of policy, statutory interpretation, or rule interpretation that have regional or statewide significance from a standpoint of agency precedent, and all the factual bases in the record which the petitioner claims support such determination(s); and (e) The action requested to be taken by the Commission as a result of the review, whether to rescind or modify the order, or remand the Proceeding to the waler management district for further action, or to require the water management district to initiate rulemaking to adopt, amend or repeal a rule. 28-107.005 EMERGENCY ACTION (1) If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency action, the agency shall summarily suspend, limit, or restrict a license. (2) the 14-day notice requirement of Section 120.569(2)(b), F. S., does not apply and shall not be construed to prevent a hearing at the earliest time practicable upon request of an aggrieved party. (3) Unless otherwise provided by law, within 20 days after emergency action taken Pursuant to paragraph (1) of this rule, the agency shall initiate a formal suspension or revocation proceeding in compliance with Sections 120.569, 120.57. and 120.60, F.S. 40E-1.611 EMERGENCY ACTION (1) An emergency exists when immediate action is necessary to protect public health, Safety or welfare; the health of animals, fish or aquatic life; the works of the District; a public water supply, or recreational, commercial, industrial, agricultural or other reasonable uses of land and water resources. (2) The Executive Director may employ the resources of the District to take whatever remedial action necessary to alleviate the emergency condition without the issuance of an emergency order, or in the event an emergency order has been issued, after the expiration of (he requisite time for compliance with that order, Revised December 21, 2001

Docket for Case No: 05-002765BID