Findings Of Fact The Respondent Dennis Soucek is a licensed dentist in Florida. On April 11, 1981, Ms. Elaine Yarbrough consulted the Respondent Soucek concerning dental treatment for extreme protrusion of her four front teeth. The Respondent and Yarbrough discussed various treatment plans including fixed and removable prostheses and orthodontics. On June 23, 1981, the Respondent Soucek extracted Yarbrough's four protruding teeth and provided her with a temporary bridge. The Respondent intended for Yarbrough to wear the temporary appliance until her gums had receded sufficiently to receive a permanent fixed bridge. In normal cases, a six-week period is advised after extraction and before impressions are taken for a permanent bridge to allow gum recision to take place. In this case, however, the Respondent allowed a period of approximately three months to transpire before the permanent impression was made. The added period of time was taken by the Respondent as a precautionary measure due to the extreme protrusion which was present in Yarbrough's mouth prior to the extractions. However, notwithstanding the three-month period, Yarbrough's gums continued to recede after the impressions were made and the bridge was installed, which caused a pronounced ledge to form around the gum line and the pontics. Approximately two months after permanent placement of the bridge, Yarbrough returned to the Respondent's office and asked him to solve a problem that had developed of air entering under her bridge. The Respondent attempted to solve the problem by using a porcelain repair kit. When the Respondent could not get the kit to properly bond to the teeth, he suggested to Yarbrough that more time be allowed for the unforeseen shrinkage to end before further repair attempts were made. The Respondent never saw Yarbrough again after this final visit. The Petitioner's expert, Dr. Mervyn Dixon, D.D.S., who examined Yarbrough, was primarily concerned that the pontics installed by the Respondent showed poor adaption to tissue in that the gingival facial aspect of the pontics exhibited the "heavy ledge" referred to previously and that the labial tissue surfaces of the central pontics were pressing against the incisive papilla to the extent that there was a blanching due to lack of circulation. Additionally, Dr. Dixon testified that it is not acceptable to use filling material to repair a new bridge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Board of Dentistry finding the Respondent Soucek guilty of violating Section 466.028(1)(y), Florida Statutes (1981) in his treatment of the complainant, placing him on probation until such time as he furnishes evidence of completion of thirty (30) hours of continuing education in bridge work, and imposing a $1,000 administrative fine. DONE and ORDERED this 24th day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hugh Maloney, Esquire PATTERSON & MALONEY 790 East Broward Boulevard Post Office Box 030520 Fort Lauderdale, Florida 33303 Fred Varn, Executive Director Florida Board of Dentistry Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. CASE NOS. 0024080 (DPR) 82-2947 (DOAH) DENNIS SOUCEK, D.D.S., Respondent. /
The Issue Who are the owners of the two dams in question? Are there structural deficiencies in the two dams that render them unsafe, and what repairs and improvements should be required? What are the steps and methods by which the deficiencies should be corrected, and who should make the corrections? Is the breaching of the two dams, as urged by the Northwest Florida Water Management District, an appropriate remedy?
Findings Of Fact The Complainant, Northwest Florida Water Management District (hereinafter "District"), is a public agency authorized by and operating pursuant to Chapter 373, Florida Statutes, and Chapter 40A, Florida Administrative Code, with it headquarters located in Gadsden County, Florida. In approximately 1962, two earthen dams were constructed in what is known as the Dogwood Lakes Subdivision located in Holmes County, Florida (Petitioner's Exhibit 11 at p. 5; Esry, T at 230). An inspection in 1983 revealed that there were serious deficiencies in the maintenance of these dams and their appurtenances. The District has undertaken various title searches prior to the hearing to determine ownership of the two dams; however, ownership of the dams could not be determined due to conflicting claims. The District noticed all those persons who had an ownership interest or potential interest in the dams. The District also notified Holmes County and the Dogwood Lakes Homeowners Association (Recio, T 61-62). Respondent, The Dogwood Lakes Homeowner's Association, is a voluntary association of property owners in the Dogwood Lakes subdivision. The Association does not claim title ownership to either of the dams or the lakes; however, the Association claims a beneficial interest in the impoundments, which its members use for recreational purposes, and an interest in maintaining the lakes, which substantially enhance the value of the property within the Dogwood Lakes subdivision, particularly the property surrounding the two lakes. The dams, lakes, and property surrounding the lakes are within Holmes County, Florida (hereinafter "County"), which was noticed and made a Respondent in this case. Holmes County has expressed concern that removal of the dam could result in lower tax assessments for the properties surrounding the lakes (see, e.g., County's response to Amended Administrative Complaint). The road running along the top of the dam, Sherwood Drive, has not been dedicated to or accepted by the County for maintenance. The County does not have an ownership interest in the dam. Deeds received in evidence as Petitioner's Exhibits 1 and 2 reveal that Respondent, Ben Campen, may own the bottom of all existing lakes, and easements for roadways, water lines, utilities and other ingress and egress to the golf courses, lakes, ponds and waterways (Petitioner's Exhibits 1 and 2). Petitioner's Composite Exhibit 3 reveals that Respondent, John Maitland, owns a significant portion of the undeveloped lands, including the northerly right-of-way line of Sherwood Drive and Parcel 10, which includes much of dam number 1. The evidence further shows that Respondent, Maitland, owns Parcel 17, which includes the westerly edge of dam number 2 (Petitioner's Exhibit 3). Respondent, O'Sullivan, admitted in Answers to Interrogatories that he owns the two lake bottoms at Dogwood Lakes (Petitioner's Exhibit 4, answer to interrogatory numbers 2 and 12). Respondents, Ben Campen, Jack Maitland, and Kevin O'Sullivan, have ownership claims to all or portions of the two dams. While the County and the Association have interests sufficient to permit them to be heard in this matter, they do not have any ownership interests. No other persons have asserted claims of ownership of the dams (Recio T, 65-66 and 68). The two dams, designated dam number 1 and dam number 2, were designed in 1960 and 1961 by the Soil and Conservation Services as low-risk facilities for agricultural purposes which assumes no downstream hazards and only agricultural runoff from the watershed (Musgrove, T at 93 and 95; Esry, T at 229-230; Petitioner's Exhibit 10). Agricultural runoff coefficients were used in designing the dams based upon the agricultural use of the surrounding property (Esry T at 220 & 238-39), and the dams were built prior to significant development around the lakes or below the dams. Dam number 1, the larger of the two dams, is constructed of earthen materials and is 800 feet long, 29.5 feet high, 21 feet wide at the crest, and 190 feet wide at the base (Musgrove, T 96-97). Dam number 1 impounds a 49-acre lake (Petitioner's Exhibit 11 at page 14), which lake contains 372 acre feet of water impounded at the normal lake level and 468 acre feet at flood storage capacity (Musgrove, T at 116). The principal spillway for dam number 1 consisted of an 18-inch corrugated metal pipe (CMP) riser with a 15-inch CMP barrel running through the base of the dam which discharged at the back slope (Musgrove T 97; Petitioner's Exhibit 11 at p. 16). The initial design of the principal spillway called for asphalt-coated pipe to be used, but little or no coating was used on the pipe (Petitioner's Exhibit 11 at p. 16). The emergency spillway for dam number 1 is a natural outlet designed to provide flow over a 10 0-foot wide area along the northeastern side of impoundment for dam number 1 (Petitioner's Exhibit 11 at p. 20; Musgrove, T at 98). Sherwood Drive, the major access road through the Dogwood Lakes subdivision, runs the entire length of dam number 1 (Musgrove, T at 99). Local traffic, including school buses, use this road. The smaller of the two dams, dam number 2, is 700 feet long, 21.5 feet high, 14 feet wide at the crest, and 150 feet wide at the base (Musgrove, T at 97). Dam number 2 impounds an 18-acre lake (Petitioner's Exhibit 11 at p. 23) which contains 82 acre feet of water at the normal pool level and 109 acre feet of water at the flood storage level (Musgrove, T at 116). The principal spillway for dam number 2 consists of an 18-inch CMP riser and a 12-inch CMP barrel. Dam number 2 does not have an emergency spillway but discharges excess water through a canal, which connects lake number 2 with lake number 1, and out its emergency spillway (Musgrove, T at 98; Petitioner's Exhibit 11 at p. 26). The principal spillway components for both dams (riser and discharge barrel) had a design-useful life of 20 to 25 years (Esry T at 230). Over the years, neither dam nor its control mechanisms have been maintained properly. Both dams have trees and other woody vegetation growing on the front and back slopes of the dams (Esry T at 237, 241, and 244; Musgrove T at 125 and 133) The development of the Dogwood Lakes subdivision, including construction of houses, streets, and a golf course around the subject lakes, changed the nature of the land use from agricultural to residential (Musgrove T at 25 and 98). There are three permanent residences located below and within the flood plain of dam number 1 (Musgrove T at 114, Petitioner's Exhibit 13; Carolyn Whitehurst, T at 254-255; Melvin Rhodes T 261-263). Melvin Rhodes lives approximately 800 feet downstream of dam number 1 and resides there on a permanent basis with his family, including his two young children, ages 2 and 4 (Rhodes, T at 261-262). In approximately September of 1982, the principal spillway for dam number 1 failed causing an uncontrolled release of water. Respondent, O'Sullivan, attempted to repair the spillway mechanism but in the process, irreparably damaged the principal spillway (Musgrove, T at 120). The discharge barrel in dam number 1 was plugged to prevent a continued, uncontrolled release of water (Musgrove, T at 105-106). Plugging the discharge barrel caused the couplings of the corrugated pipe to blow out, creating multiple leaks deep in the dam (Musgrove, T at 107-109). The principal spillway for dam number 1 is no longer operational as a result of failures and unpermitted attempts to repair the spillway in 1982 (Musgrove T at 105-106). Respondent, O'Sullivan, subsequently attempted unpermitted repairs to the principal spillway by excavating down to and crushing the discharge barrel, removing the riser pipe and refilling the entire area with earth materials covered with a layer of bentonite, a low permeability clay or water sealant, to prevent any further flow through the discharge barrel (Musgrove, T 122-123). The blowout in the principal spillway for dam number 1 further caused the out fall of the discharge barrel to fall 5 feet from its originally designed and constructed height (invert elevation) (Musgrove T at 122). The blowout of the discharge barrel has resulted in erosion on the back slope, water seepage through the dam, and infiltration of the earthen embankment materials through the discharge barrel (Musgrove, T 126-128). The emergency spillway for dam number 1 has not been maintained and has trees and other growth which restricts the flow of water (Petitioner's Exhibit 11 at p. 20). The principal spillway for dam number 2 is also inoperable because it is plugged with debris and material, including concrete (Musgrove, T at 138). Water seepage through dam number 2 has also been noted in its back slope (Musgrove, T 138-139). In March, 1983, the District was called out to the Dogwood Lakes subdivision because of extremely high water within the two lakes which has inundated yards and caused septic tanks to back up (Musgrove, T 104-106). The high-water levels had been caused by the plugging and damage to the two principal spillways of both dams (Musgrove T 104-105). Attempts by the District to have Respondent, O'Sullivan, submit a permit application to make the necessary repairs was unsuccessful (Petitioner's Exhibit 11 at p. 11-12). The District made emergency repairs to dam number 2 during the period of May 4 through 25, 1983, by installing eight-inch siphons to draw down the water levels (Petitioner's Exhibit 11 at p. 12-13). In June and July, 1983, the District made emergency repairs to dam number 1 by installing 2 eight-inch PVC pipes through the dam, across and under Sherwood Drive, to provide a temporary spillway to control the lake level (Petitioner's Exhibit 11 at page 13). On October 10, 1983, District officials again met with directors of the Association in Marianna, Florida, to discuss the situation involving the dams and to make recommendations to the Association on how to repair the dams (Recio, T 64-66; Petitioner's Exhibit 7). On August 8, 1984, officials of the District again met at the Dogwood Lakes clubhouse with directors of the Association to discuss the continuing problems of the lakes and dams and to arrive at some solution thereto (Petitioner's Exhibit 11 at p. 13; Petitioner's Exhibit 6; Recio T 63-64). While no permanent solution was reached at the August 1984 meeting, the Association's directors agreed that a control breach in dam number 2 was necessary as a temporary measure to relieve flood pressure on the dam. The control breach was constructed in September of 1984 (Recio, T at 60; Petitioner's Exhibit 11 at p. 13-14; Petitioner's Exhibit 6; Musgrove, T at 135). The temporary measures, including the control breach in the dam number 2 and the 2 eight-inch PVC pipes constructed under dam number 1, are not permanent in nature and do not obviate the need to repair either dam (Musgrove, T 143- 144) The District follows the engineering standards set forth in the National Dam Safety Standards Program, as promulgated by the Army Corps of Engineers in conjunction with Public Law 92-367. These standards are also followed by the Bureau of Reclamation, the Federal Emergency Management Agency (FEMA) and the Soil Conservation Service (Musgrove, T 99-104). The standards used by the District also establish hazard criteria, promulgated by the Federal Dam Safety Program, which establishes hazard classes for the various different sizes of dams and incorporates acceptable hydraulics and spillway capacities for dams. These standards are found in the reference book, Design of Small Dams by the Bureau of Reclamation, Department of Interior, Third Edition, as well as the textbook, Safety of Small Dams, compiled by the American Society of Civil Engineers (Musgrove, T 102-104). The application of these standards was supported by the expert testimony of the District's experts, who established that these standards are reasonable. The principal spillways for both dams are undersized, according to these standards. Dam number 1 does not comply with the applicable engineering and design standards for dam safety and is a threat to public health, safety and welfare because: The principal spillway is totally inoperable; Damage has occurred to the principal spillway barrel via the plugging of the pipe and the erosion and water seepage along the backslope, including the disjointing of the pipes; The discharge barrel downstream of the principal spillway has been crushed; The principal spillway pipe has outlived its design-useful life; The principal spillway is undersized for the present runoff conditions of the developed watershed; There is a significant growth of trees on the front and backslopes; and Lack of maintenance on the emergency spillway has resulted in the growth of woody vegetation and trees which constricts the normal emergency outflow; Under the applicable design and safety criteria, dam number 2 is unsafe and presents a risk to the health, safety and welfare of the public because: The principal spillway has been plugged and closed off; There is no emergency spillway; Trees are growing on the backslopes; There has been limited or no maintenance of the dam; The components of the principal spillway have exceeded their design-useful life; and Water seepage is occurring in the dam. In order to bring dams 1 and 2 up to proper standards and render them safe, the following must be undertaken: The existing principal spillway components for dam number 1 must be removed and replaced with a 120- inch CMP riser and 60-inch CMP barrel; alternatively The owners or interested persons must submit engineering design specifications to complete remedial repairs and alterations of the dam and its appurtenant works to the Districts; The trees and woody vegetation, including all root systems, must be properly removed from the front and back slopes of both dams; All root systems must be fully removed, voids refilled with like materials and properly compacted. Side slopes of the dam should be graded to design conditions (3:1 slopes) and all disturbed areas must be mulched and grassed for future maintenance; The principal spillway on dam number 2 must be removed and replaced with a 36 inch CMP riser and 24 inch CMP; An emergency spillway must be constructed on the southern end of dam number 2 equal to the hydraulic capacity of the present "control breach"; The temporary spillway pipes and excavated areas in dam number 1 and the control breach in dam number 2 must be removed and/or refilled and the embankments restored to properly designed conditions; The proper channel hydraulics for the diversion channel must be restored by excavating and removing soil and vegetated materials. The side slopes of the channel should then be properly slopped and grassed to prevent erosion; and A complete analysis of hazardous conditions below each dam must be provided to determine if remedial measures are necessary below the dams to limit any impact to structures or facilities. The District has estimated that the total cost of bringing the two structures into compliance is approximately $115,000.00 (Petitioner's Exhibit 11 at page 32-33). The upgraded spillway sizes are predicated upon restoring the dams and lakes to their original design height and lake levels (Laird, T 221). The spillway designs and specifications could be down sized, depending upon other design criteria, such as lower lake levels (Laird, T 224-225). Such modifications of the original specifications would have to be considered and approved by the District in the application process. A catastrophic failure of either dam would most likely occur at existing principal spillways due to the existing deterioration and damage to both the dams and pipes, including the piping conditions, the age of the pipe and corrosion thereof (Musgrove, T 114 and 142). A catastrophic failure in dam number 1 would result in the inundation of the three residences below that dam, with at least 1 to 3 feet of water, lasting approximately 6 hours (Laird, T 199-00). The intensity of this inundation was based upon minimal rainfall conditions impacting the existing rivers and creeks. In actuality, the likelihood of a catastrophic failure with low water levels in the creeks and rivers below the dams is unlikely. It is more reasonable to expect the dams to fail when there has been substantial local rainfall and the rivers and creeks are at or near flood stage. The water level and duration of flooding under less favorable assumptions would be devastating downstream.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED as follows: Respondents, Maitland, Campen, and O'Sullivan, who have ownership interests in the dams or parts thereof, be ordered to submit an application to the District within 30 days of the date of the Final Order for the repair of the subject dams in accordance with applicable safety design and engineering standards for dams and as outlined in the Findings of Fact, above; In the event that Respondents, Maitland, Campen or O'Sullivan do not make application to the District as hereinabove directed, the Association, the County or other interested parties may submit applications to the District for a permit to repair the dams in accordance with the aforementioned standards within 60 days of the date of the Final Order; If either application is approved, the required repair work to the dams and the appurtenant works shall be completed within 120 days of the issuance of the necessary permits by the District; In the event that no permit application is submitted to the District, or if the work is not timely completed, then the District may, in its discretion, complete the repairs or de-water the impoundments by breaching the dams in order to eliminate the existing safety hazards; and The Administrative Complaint against Respondent, Sheila Walker, be dismissed. DONE and ORDERED this 10th day of July, 1990, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1990.
Findings Of Fact Respondent, South Florida Water Management District (District) is a multipurpose water management agency of the State of Florida. Its duties include the operation and maintenance of a vast network of canals which provide flood control and other benefits to Palm Beach County. Pertinent to this proceeding, the District is the owner in fee of a 600' right of way which contains a canal known as C- The tidewater reach of C-18 extends east from a control structure (S-46) near State Road 706 downstream for a distance of 8,375' (1.6 miles) to the southwest fork of the Loxahatchee River. Of this distance, 7,322' lie upstream from a small bridge, which crosses the C-18 at Loxahatchee River Drive (the bridge) and 1,053' downstream. The canal is approximately 200' wide, with 200' of overbank right of way on its north and south sides. The River Trails Development Petitioner, River Trails, Ltd (River Trails) is the developer of a 28 acre condominium community in Palm Beach County known as River Walk. The River Walk development, comprised of 347 townhouse units, is contiguous to 2,500' of the south overbank right of way of the C-18, approximately midway between S-46 and the southwest fork of the Loxahatchee River. On December 9, 1983, River Trails filed an application with the District for a right of way occupancy permit to selectively clear and regrade the C-18 right of way and to construct a marina facility within the right of way consisting of a temporary parking area, boat ramp and 3 docking facilities with a combined capacity of 97 boats. The District approved River Trails' application and issued it a permit on January 12, 1984. That permit provided: WORK PROPOSED WILL BE COMPLETED ON OR BEFORE 1-31, 1985, otherwise, this permit is voided and all rights thereunder are automatically cancelled unless an extension to the construction period is applied for and granted. Upon receipt of the District's permit, River Trails began to selectively clear the bank of the canal of exotic vegetation, primarily Brazilian pepper, and to regrade the bank to a more gentle slope than its existing 12'-14' vertical drop on the west and 2'-3' vertical drop on the east. In the process, 28 mangrove trees were damaged or destroyed.1 To settle a dispute which arose between Palm Beach County and River Trails over the destruction of the mangroves, River Trails agreed to plant additional mangroves and spartina grass along the southeasterly shoreline of the C-18. To consummate that agreement, River Trails requested that the District modify its permit to allow the selective planting of mangroves and spartina grass along the shoreline and in a tidal slough, to alter the bank slope to provide a wider intertidal zone to accommodate the plantings, and to move the proposed docks further out from the bank of the canal. The District granted River Trails' requested modification on June 25, 1984 subject to the following special conditions: Construction of the boat dock facilities as originally permitted and modified hereunder is subject to the issuance of a permit from the DER. Prior to commencement of construction, the applicant shall submit a DER permit for the boat docking facilities. Any future modification of the boat docking facilities by the applicant must have the approval of the governing board prior to construction. Rule 40E 6.301(c), Florida Administrative Code, requires an applicant to give reasonable assurances that the proposed use of the works of the district "does not degrade the quality of the receiving body and meets the standards of the Florida Department of Environmental Regulation for the receiving body. The board may waive the strict enforcement of this provision." Neither issuance of the original permit nor this modification shall be construed as a waiver of this provision as it applies to the per- mitting activity of the DER relative to this project. Department of Environmental Regulation Permitting On December 22, 1983, River Trails applied with the Department of Environmental Regulation (DER) for a permit and water quality certification to construct its boat ramp and 97 slip marina. During the processing of that application, River Trails requested two waivers of the 90 day time period prescribed by Sections 120.60(2) and 403.0876, Florida Statutes, (180 days total) in order to conduct a hydrographic survey of the area in order to respond to water quality concerns raised by DER. River Trails did not submit a hydrographic survey to DER, nor did it offer such a survey in this proceeding. On December 20, 1984, DER advised River Trails that its proposed boat ramp was exempt from permitting requirements. Thereafter, on December 21, 1984, DER issued its "intent to deny" the balance of River Trail's application predicated on its conclusion that the project was expected to have a long and short term adverse impact on the water quality and biological resources of the C-18 canal and the adjacent Outstanding Florida Waters of the Loxahatchee River. Specifically, DER found that degradation of water quality in the project's Class II waters and the adjacent Outstanding Florida Waters would likely occur due to: Shading from docks and walkways that would likely prohibit recolonization of shoreline vegetation. Marinas can be expected to lower water quality by the accumulation of marina source contaminants, including heavy metals, greases, oils, detergent ,and litter. Increased boat traffic (97+ boats), and their associated wakes will result in increased shoreline erosion. This additional erosion can prohibit the recolonization of shoreline vegetation beneficial to water quality. The cumulative impact of this project and other similar projects within the C-18 canal would be expected to degrade water quality. Prop wash from outboard motor boats in shallow littoral shelf areas will cause turbidity problems and adversely impact existing benthic communities. DER further found the proposed activity contrary to the public interest provisions of Chapter 253, Florida Statutes, since the proposed marina would substantially interfere with the conservation of the Florida Manatee and the destruction of natural marine habitat. River Trails declined to pursue its DER application for the 97 slip facility any further. Instead, it filed an application with DER for a docking facility of less than 1,000 square feet, accommodating 37 boats, to qualify for the exemption provided by Section 403.812(2)(b), Florida Statutes. Following a successful rule challenge in April 1985, River Trails received its statutory exemption. The District's emerging management policy. Shortly after the District approved River Trail's modification on June 25, 1984, it began to receive a great deal of negative comment from the public, DNR, DER, and the United States Fish and Wildlife Service. These comments, of which the District was not previously aware, included concerns for the Loxahatchee River, the Florida manatee, and negative biological and water quality assessments. Accordingly, the District's Governing Board requested that its staff investigate and evaluate various management options for the overall development of the 18 right of way. During the ensuing months the District's staff solicited input from DER, DNR, the Florida Game and Fresh Water Fish Commission and the United States Fish and Wildlife Service; investigated the C-18; and formulated its recommendations for the future management of the canal. On January 10, 1985, the District's staff submitted its management plan to the Governing Board. The plan recommended that the intertidal zone be widened a minimum of 10 and planted in mangrove and spartina to combat erosion of the canal banks by boat wakes; that the canal banks be regraded to a minimum of one vertical on four horizontal slope and stabilized with a combination of grasses, native trees and shrubs; and that the overbank right of way be cleared of exotic species and replanted with native trees and shrubs. In keeping with the main goal of habitat improvement, staff recommended that the cumulative linear extent of areas provided for bankfishing and viewing be limited to 10 percent of the shoreline and that no structure be located waterward of the mean high water line. Subsequent to its January 10, 1985, meeting the District has pursued its management plan for the alteration of the shoreline and berms of C-18. Since that time two permits have been issued to large developers who agreed to reslope and revegetate, at their expense, the banks of the C-18 in accordance with the District's plan, and in exchange for the esthetic view accorded by C-18. No dockage, boat ramps, or other structures have been permitted. River Trails' permit expires Following DER's denial of its application for a permit to construct the 97 slip marina, River Trails requested that the District modify its permit to reflect a 37 slip facility and extend the permit for one year. River Trails subsequently withdrew its request to modify the permit. On January 10, 1985, the District entered an order denying River Trails' request for a one year extension of its permit. The District's denial was predicated on its perceived environmental sensitivity of the C-18 canal and the Loxahatchee River system, and its conclusion that the project was contrary to the restoration concept of the District's developing management plan for the C-18. River Trails filed a timely request for hearing, and the matter was referred to the Division of Administrative Hearings and assigned Case No. 85-2272. On July 16, 1985 River Trails reapplied to the District for approval of its modified proposal for a boat ramp and 37 slip marina. The District denied River Trail's request on September 12, 1985. Reasons for denial included adverse water quality impacts, endangerment of the manatee population, increased bank erosion and increased liability risks to the District associated with increased boat usage of the C-18. River Trails filed a timely request for hearing, and the matter was referred to the Division of Administrative Hearings and assigned Case No. 85- 3678. Impacts of the River Trails Development Because of its location and physical characteristics, boating activity in the C-18 has not been extensive. The canal joins the Loxahatchee River on its western shore, opposite the popular boating areas in the intercoastal waterway and Atlantic Ocean adjacent to the River's eastern shore. Access to the canal is restricted by a bridge with a 6' clearance, and its western expanse is blocked by S-46. Accordingly, boating activity within this 1.6 mile stretch of 18 has been generally limited to fishing trips to S-46, sightseeing, and occasional water skiing. River Trails' facility will increase boating within the C-18 well beyond the 37 slip capacity of its dock facility. River Trails proposes to provide upland storage for the boats of a all condominium unit owners, and expects a majority of owners to utilize the slips or boat ramp. Accordingly, use of the facility will not be limited to 37 boats but, rather, will reach into the hundreds. The District's management plan for the C-18 is designed to restructure the canal's present configuration to provide natural habitat, reduced erosion and scenic beauty. As originally designed, the C-18 had 1 on 2 side slopes throughout its reach, however, erosion of the bank downstream from S-46 has resulted in nearly vertical, unstable side slopes above mean high water along 40 percent of its length. The overbank right of way is heavily vegetated with exotic species. With the exception of several areas near the downstream end of the canal, mangroves are not well established along the existing shoreline due to the shading effect of overhanging Brazilian pepper and a rather narrow unstable intertidal zone. Currently, little use of the overbank right of way is made by the public due to its dense vegetation, and any view of the canal is severely impeded. Under the District's management plan the intertidal zone would be expanded and planted in mangroves and spartina to combat erosion from boat wakes and to provide natural habitat; existing vertical banks would be recontoured to a more gentle slope and stabilized with grasses and native trees; and the overbanks would be cleared of exotics so that native trees could prosper. To date the District has been successful in carrying out its plan; however, the survival of the mangrove seedlings and spartina is dependent on minimal disturbance. The introduction of the boats from River Trails would increase erosion and prevent the recolonization of shoreline vegetation beneficial to water quality, marine habitat, and canal bank stabilization. Furthermore, existing and proposed development along the C-18 right of way can be reasonably expected to exacerbate the erosion problem if River Trails' permit is granted. River Trails' proposed marina also raises the specter of adverse impacts to water quality, wildlife and habitat. The C-18 is classified as a Class II surface water body, and supports a diversity of aquatic life. Commonly observed species include snook, mullet, mangrove snapper, pinfish, needlefish and filter feeding organisms such as oysters. The endangered Florida Manatee, Trichechus manatus, is also observed in the C-18 and downstream in the Loxahatchee River. The Loxahatchee River is classified as outstanding Florida waters (OFW) and critical habitat for the Florida manatee. The river, as well as C-18 up to the S-46 control structure, has also been included by the Department of Natural Resources (DNR) within the Loxahatchee River Zone of the Florida Manatee Sanctuary Act.3 Due to the restricted access from C-18 into the Loxahatchee River, boats located at River Trails' development will likely be approximately 23' in length and powered by outboard motors. Such watercraft, through their introduction of oils and greases, contribute to a degradation of water quality however, neither party addressed the potential impacts to water quality which would be occasioned by the total number of boats that would utilize the boat ramp and boat slips at the proposed facility. By failing to address this issue, and limiting its proof to the impacts from a maximum of 97 boats, River Trails has failed to give reasonable assurances that its proposed project will not cause or contribute to a violation of Class II water quality standards. The impact of River Trails' project upon the Florida manatee is less clear than its impact upon the C-18. Although designated part of the manatee sanctuary, C-18 presently offers little in the way of food source for the manatee with the exception of some plant materials near S-46. The grass Fla. within the Loxahatchee River and the intercoastal waterway are the manatee's primary food source and congregating areas; however, as the mangrove and spartina plantings along the intertidal zone of the canal mature, the manatee may more often. venture into the canal. Whatever their frequency within the narrow confines of the C-18, the numbers of boats that would be introduced by River Trails would drive the manatee from the area. These boats would not, however, pose a significant threat to the manatee or its habitat within the Loxahatchee River since its navigation channels are well marked to avoid grass flats. Indeed, there has been no boat related manatee mortality in the Loxahatchee River area since 1977. The District's concern regarding increased liability risk is unpersuasive. Pursuant to rule the District requires that an applicant for a permit to occupy right of way provide the District with insurance coverage satisfactory to the District, There is no suggestion that the insurance coverage tendered by River Trails, and accepted by the District, was inadequate or otherwise unsatisfactory. The District's decision to deny River Trail's application was not inconsistent with its existing practice. While the District has permitted docks and boat ramps in other canals, there was no showing that those canals abutted a sanctuary or were under redevelopment to improve the works of the District.
The Issue The issue in this case is whether Respondent, the Southwest Florida Water Management District (District), should grant Environmental Resource Permit (ERP) No. 43023532.000 authorizing Respondent, Florida Department of Transportation (DOT or Department), to construct the Pinellas Bayway Bridge Replacement and associated surface water management system.
Findings Of Fact The Florida Department of Transportation is a state agency charged by statute with the construction, maintenance, and operation of the State Highway System. The Pinellas Bayway Bridge in Pinellas County, Florida, is part of the State Highway System. The Southwest Florida Water Management District is a political subdivision created pursuant to Chapter 61-691, Laws of Florida (1961), which exists and operates under the Water Resources Act, Chapter 373, Florida Statutes. The District has the regulatory authority to implement the ERP program in Pinellas County, Florida. The existing Pinellas Bayway Bridge (the Existing Bridge) is a two-lane bascule structure located within and spanning Boca Ciega Bay, an Outstanding Florida Water. It has three-foot wide walkways on both sides, with no shoulders for the travel lanes. The Existing Bridge connects the cities of St. Petersburg and St. Pete Beach, and was built approximately 40 years ago upon perpetual easements "for public State Road right of way purposes" conveyed in 1960 and 1961 from BOT/IITF to the State Road Department, the predecessor of the Department. The perpetual easements do not contain any restrictions on the perpetual right to construct and maintain a "public state road upon and/or over said land," other than conditions that recognize prior rights of the United States of America and prior grants by the Board of Trustees. The proposed replacement of the Existing Bridge will be located entirely within the boundaries of those perpetual easements. The practice and policy of the Board of Trustees of the Internal Improvement Trust Fund (BOT/IITF), and the Department of Environmental Protection (DEP), has been that, under Section 253.002(1), Florida Statutes, perpetual easements such as those conveyed for the Bayway Bridge are sufficient authorization for expansion of bridges within the boundaries of the perpetual easements. Since the time of construction of the Existing Bridge, the area served by it has transformed from a largely uninhabited barrier island to a densely developed area. The Department has been studying and preparing for replacement of the Pinellas Bayway Bridge since the early 1980's, and studying alternatives since the early 1990's. In the year 2000, with the concurrence of the Pinellas County Metropolitan Planning Organization, the cities of St. Petersburg and St. Pete Beach, and the United States Coast Guard, the Department determined that the best alternative for replacing the Existing Bridge was a fixed-span, high level bridge with four travel lanes and a pedestrian walkway along the southern side of the bridge (the Replacement Bridge or Project). The fixed-span alternative was selected as superior to low-level and mid-level bascule options for superior traffic efficiency, superior access for emergency vehicles, superior emergency evacuation, and improved boat traffic. As part of the design process of the Replacement Bridge, the Bayway Bridge Beautification Committee was formed to provide the Department with input from the residents as to the aesthetics of the Replacement Bridge. The Bayway Bridge Beautification Committee was made up of representatives from the neighborhood and homeowners associations in the area, and submitted a report containing suggested improvements that were incorporated into the ultimate design of the bridge, including lighting, hardscape, and landscape features. Each of the three replacement alternatives (low-level, mid-level, or high-level) would result in the elimination of parking spaces within existing Department right-of-way adjacent to the east and west ends of the Existing Bridge. These parking spaces are intended for the use of drawbridge tenders and Department maintenance vehicles; currently, they also are utilized by fishermen and others recreating on the Existing Bridge. Neither the cities of St. Petersburg nor St. Pete Beach provides public parking in the vicinity of the Existing Bridge. Navigation and Shoaling The height of the Replacement Bridge will allow all boats using the Intracoastal Waterway (ICW) with mast heights of less than 65 feet to freely go under the bridge. Large boats currently must wait for the Existing Bridge to open and have to either circle or move forward and backward while waiting for the drawbridge to open. This will not be the case with the proposed bridge. The fenders lining the channel crossing under the proposed bridge will also be widened to 100 feet from the existing 90 feet. The Replacement Bridge also will be higher in places other than the ICW crossing, including 39 feet high near the west end where Mud Key Channel crosses (versus 9 feet under the Existing Bridge). As a result, more boats will be able to pass under the Replacement Bridge in Mud Key Channel than with the Existing Bridge, and fewer will have to use the so-called Entrance Channel paralleling the south side of the bridge between the ICW and Mud Key Channel. In this respect, the Replacement Bridge will improve navigation. Petitioners contend that additional use of Mud Key Channel, coupled with changes in the ability of boaters to see other boats on the opposite side of the bridge will change, will create a navigation hazard and safety concern for boaters, wading fishermen, and occasional swimmers using Mud Key Channel and the Entrance Channel. As for wading fishermen and occasional swimmers, their activities occur mostly to the south of the extreme western end of the bridge, and boats using Mud Key Channel would pass them whether they pass under bridge at Mud Key Channel or pass under at the ICW and use the Entrance Channel to or from Mud Key Channel. The Replacement Bridge will not increase the number of boats passing by them. As for boaters' ability to see, the Existing Bridge is lower, has more but narrower pilings. The higher Replacement Bridge will have fewer pilings but they will be wider, including 22 feet square pile caps 7 feet high at the water line. In terms of boaters' ability to see through the bridge, the Existing Bridge and Replacement Bride have advantages and disadvantages, depending on the particular circumstances and location of the boats, wading fishermen and occasional swimmers in question. It was not proven that the Replacement Bridge, compared to the Existing Bridge, will create navigation hazards and safety concerns. The Replacement Bridge will extend some 70 feet into the Entrance Channel to Mud Key Channel. Currently, the width of the Entrance Channel is 215 feet, narrowing to 130 feet at the junction with Mud Key Channel. The width of Mud Key Channel at some points is only 100 feet. The Replacement Bridge will narrow the Entrance Channel to a minimum width of 145 feet, will not affect the width at the junction with Mud Key Channel, and will not affect the width of Mud Key Channel itself. The currents in this area are felt least within the Entrance Channel. Boats are currently able to pass each other safely in the Intercoastal Waterway and the narrow confines of Mud Key Channel, which are both narrower than the Entrance Channel will be upon completion of the Project. Boats with masts higher than 65 feet will not be able to go under the Replacement Bridge. Petitioner, Michael T. (Ted) Irwin, has a boat with a 90-foot mast (with radio antenna), which he keeps at his residence north of the bridge site. Once the Replacement Bridge is constructed, he will have to either access the Gulf of Mexico by heading north through Johns Pass, or move his boat to another mooring location. Mr. Irwin testified that Johns Pass, while navigable in his boat, is much more difficult and much less desirable for him than going through the drawbridge at the Existing Bridge. There are over 11,000 boat crossings per year by boats with masts too tall to pass under the Existing Bridge. Of these 11,000, Mr. Irwin's boat accounts for 20 to 60 of those crossings. Mr. Irwin testified that there are three or four other boats in the area with masts taller than 65 feet. Even assuming that those boats are kept north of the bridge site, which was not clear from the evidence, there was no evidence as to the extent to which those boat owners would be inconvenienced by having to use Johns Pass, or as to whether they could make suitable alternate arrangements. Clearly, the Replacement Bridge will have some impact on navigation. While the Replacement Bridge will require Mr. Irwin to change his current boating practices, and while the Entrance Channel will be narrower, the impact on navigation in the area will generally be positive. For the vast majority of boaters, boat traffic will move more freely through the area and, at least in some circumstances, with better visibility. With respect to sediment transport or shoaling, the Department introduced evidence in a bridge hydraulics report showing that the Replacement Bridge would not experience scour around the pilings during either a 100- or 500-year storm event. In addition, there was expert testimony that harmful erosion or shoaling would not occur as a result of the Project. Petitioners offered only speculation on the likelihood of erosion or shoaling, candidly admitting that their concern was that such conditions "might" occur. There is an undisputed evidentiary basis to conclude that sediment transport or shoaling will not occur around the Replacement Bridge. Fishing and Recreation People currently fish from the Existing Bridge using the two three-foot wide catwalks. Although not designated for public parking, people who do not live within walking distance of the bridge site currently park on either end of the Existing Bridge within the Department's right-of-way. All of these parking spaces will be eliminated by the Replacement Bridge; but they would be eliminated under all designs considered, including a low level drawbridge. Other bridges in immediate vicinity are not used for fishing due to lack of nearby parking. Fishing will be allowed from the Replacement Bridge from the single 11-foot wide multi-use path along the south side of the Replacement Bridge. While the multi-use path will allow fishermen and other users to get farther away from passing car traffic, fishing on strong incoming (south-to- north) tides will be less desirable from the south side of the Replacement Bridge, and the higher bridge elevations also will make fishing generally less desirable. There are several other locations within 20 minutes of the Existing Bridge that are available for fishing by the public. In particular, the fishing pier at the old Skyway Bridge in southern Pinellas County is specifically designated for public fishing, as are several other locations. The Replacement Bridge's multi-use path also will be more user-friendly for people who want to walk or bike across. Also, the path will continue from the bridge site to the intersection of State Roads 679 and 652, providing a safe sidewalk where none currently exists. The path will ultimately tie into a trail system linking the area to Fort DeSoto Park. The Replacement Bridge will also be more wheelchair accessible than the Existing Bridge. Water Quality Boca Ciega Bay is an Outstanding Florida Water. The ambient existing water quality in Boca Ciega Bay meets the standards which are applicable to that waterbody in the location of the Replacement Bridge, as demonstrated by the water quality data gathered from Pinellas County and by the Department. Such data were comprised of dissolved oxygen readings from the County and the analysis of water samples provided by the Department. Petitioners questioned whether such water quality data were sufficient, but testimony from District experts demonstrated the sufficiency of these data. Petitioners introduced no evidence to indicate that water quality does not meet standards in the vicinity of the Project. Within the limits of the Project, including the bridge site, the western approach to the bridge, and State Road 679 to the intersection of State Road 652 of the eastern side of the bridge site, there currently is a very limited amount of surface water runoff treatment. Although the project will involve adding several acres of impervious surface, after construction there will be less untreated surface water runoff than exists currently. The proposed treatment system will primarily involve three ponds: two lined effluent filtration ponds along State Road 679; and a wet detention pond located adjacent to the Sunshine Skyway Bridge, known as the compensation pond. The compensation pond is proposed because there is not enough right-of-way in the project area to build ponds or other treatment systems to treat the runoff from the Replacement Bridge. The compensation pond will treat surface water runoff from the Skyway Bridge that today is discharged untreated into the same Outstanding Florida Water, Boca Ciega Bay. The two effluent filtration ponds will be lined with an impermeable material up to the level of seasonal high ground water elevations within the vicinity of those pond sites to prevent groundwater drawdown and prevent interaction between water in the pond and groundwater. DOT introduced detailed site plans, engineering studies and credible expert engineering testimony that the three stormwater treatment ponds will detain stormwater runoff in a manner that complies with the presumptive criteria in the District's Basis of Review. In addition, the two effluent filtration ponds have been oversized so as to treat 100 percent more volume than is required for treatment systems discharging into Outstanding Florida Waters. Less untreated surface water runoff will be discharging into Boca Ciega Bay after construction than is today. Further, much of the impervious area to be added will not be automobile travel lanes, and these areas will not generate the heavy pollutant loadings associated with the travel lanes. In addition, the pollutant loading from the travel lanes on Replacement Bridge will be less than from the Existing Bridge. At the Existing Bridge, pollutant discharge into Boca Ciega Bay occurs in several ways. First, oils and greases from the actual drawbridge mechanism itself drip straight down into the Bay. With the elimination of the drawbridge, this discharge will stop. Second, stopped cars and trucks waiting for the drawbridge to open and close drip oils and greases onto the roadway in greater concentrations than traffic which is moving. This was evident by examining photographs of the travel lanes on either side of the drawbridge, and the dark staining of the roadway where traffic is stopped. With no drawbridge to stop traffic, less oil and grease will be discharged. Third, boats waiting for the existing drawbridge to open also discharge undetermined amounts of uncombusted gasoline and oil into the water. (Generally, their engines are kept running and in and out of gear to maintain steerage while waiting for the bridge to open.) Those boat engines will have to run for less time in the vicinity of the Project if the boats do not have to wait for the existing drawbridge, thus reducing the discharge of uncombusted gasoline and oil into the Bay. Another boost to water quality will occur as a result of the mitigation for the Project. District rules allow impacts to wetlands and other surface waters to be mitigated, and the Department does so in accordance with the program set forth in Section 373.4137, Florida Statutes. That program calls for the Department to contribute a dollar amount to the District based upon the expected acres of wetlands and other surface waters impacted by the project. Mitigation provided for this purpose in accordance with Section 373.4137, Florida Statutes, and approved by the Secretary of DEP, is deemed to satisfy mitigation requirements. In this case, the mitigation project to compensate for impacts by the Replacement Bridge to sea grass beds within the affected surface waters is a water circulation project at Fort DeSoto Park, located at the southern end of Boca Ciega Bay, in the same receiving waters where the impacts will occur. The project consists of opening a dead-end section of the Bay created by the SR 679 causeway to Fort DeSoto Park to improve water flow. Improved water flow will improve dissolved oxygen levels, which in turn will improve conditions for sea grasses, which will in turn lead to more dissolved oxygen. This Project has been approved by separate final order by DEP, satisfying the mitigation requirement. In addition, the Department and the District demonstrated that the mitigation project will improve water quality in the receiving waters. The Project will not degrade water quality in Boca Ciega Bay, and the record is also clear that the Project will actually improve water quality in the Bay. This means that the Project is consistent with the Surface Water Improvement Management Plan adopted by the District, which calls for improved water quality and increased sea grasses. Petitioners called no witnesses with respect to the water quality issue. Although Petitioners listed a water quality expert, James Shirk, as a witness in answers to interrogatories, and even though Respondents deposed Mr. Shirk; Petitioners not only decided not to call Mr. Shirk as a witness, they objected to introduction of Mr. Shirk's deposition into the record of the case. In their PRO, Petitioners criticized a lack of studies to determine the efficacy of proposed Ponds 1 and 2 and the Compensation Pond. They also criticized a lack of studies of water quality impacts of untreated discharges from a 18-inch pipe to be constructed at the western end of the bridge. They argue that, due to the asserted lack of studies, reasonable assurances were not given either that the Project will not degrade water quality or that it will result in a net improvement in water quality. But, based on the evidence in this case, studies of the kind Petitioners want to require were not necessary to prove that the Project will not degrade water quality but rather will result in a net improvement in water quality. In their PRO, Petitioners also cited the deposition testimony of Jeremy Craft that Ponds 1 and 2 discharge into Class III waters "in the vicinity of a Class II water body" and criticized the lack of a "plan or procedure with respect to protection of the Class II waterbody that demonstrates that the regulated activity will not have a negative impact and will [not] result in violations of water quality standards in such Class II waters, as required in the District's Basis of Review [BOR] Section 3.2.5(b)." But there was no other evidence that Ponds 1 and 2 will be a "regulated activity" or "system" that is "adjacent or in close proximity to Class II waters." To the contrary, the evidence that the nearest Class II waters were over a mile away from the Project site and would not be affected negatively by the Project. Similarly, Petitioners in their PRO contend that the Compensation Pond "discharges to Class II waters and waters that are prohibited for shellfish harvesting" and that "[t]here has been no plan or procedure provided with respect to protection of that Class II waterbody that demonstrates that the regulated activity will not have a negative impact on Class II waters and will not result in violations of water quality standards in such Class II waters, as required in the BOR Section 3.2.5(a) and (b)." The basis cited for this criticism was reference to "Shellfish Harvesting Area Classification Map #42 (Effective: June 18, 1997)," that appears to show the Compensation Pond adjacent to or in close proximity to an area where shell fishing is prohibited. There was no testimony explaining the map, which did not purport to map Class II waters. In any event, if the Compensation Pond is "adjacent or in close proximity" to Class II waters which are not approved for shellfish harvesting, and if it is considered to be the "regulated activity" or "system," creation of the Compensation Pond to treat previously untreated discharges will not have a negative effect on Class II waters or result in violations of water quality standards in the Class II waters. Petitioners in their PRO also cite the Final Roadway Soil Survey and Stormwater Pond Report (Report) prepared by the Department's consultants for the purpose of establishing the fact: "Groundwater data beneath the roadway near the east end of Pond 2 indicate that the seasonal high groundwater table is between 4.0 and 4.5 feet, NGVD." Although never made explicit, Petitioners' PRO seems to raise the specter that the liner for this pond was deficient because it only came up to 2.5 feet, NGVD. No witness explained where the Report establishes the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2," or if it even does. It appears that Sheet 9 of Appendix B of the Report indicates a single datum point of groundwater at approximately 4.0 feet, NGVD, on June 1, 2002; meanwhile, Table 4 of Appendix A of the Report also states that the "Estimated Seasonal High Groundwater Table" at the same location is at the "Approximate Elevation" of 1.2 feet, NGVD. In any event, even assuming that the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2" were 4.5 feet, NGVD, all of the expert testimony on the subject of the liner was that it came up high enough to function properly in the location of Pond 2. The last water quality issue raised in Petitioners' PRO addresses the amount of impervious surface runoff treated under the Replacement Bridge Project. Specifically, Petitioners seem to contend that BOR 5.8(b) was interpreted to only require treatment of the runoff contributed by the two additional automobile travel lanes provided by the Replacement Bridge Project; the area of the existing travel lanes and the multi-use path was not figured in the calculation. While not clearly explained, the expert testimony was that the Project met the requirements for water quality treatment under both BOR 5.2.e. and BOR 5.8(b) and (c). BOR 5.2.e. requires projects discharging into Outstanding Florida Waters to provide treatment for a volume 50 percent more than otherwise required for the selected treatment system. BOR 5.8(b)1. requires that, for "off-line treatment systems and on-line treatment systems . . . which provide storage of the treatment volume off-line from the primary conveyance path of flood discharges," the contributing area to be used in calculating the required treatment volume is the area of new pavement. It appears that BOR 5.8(b)1. was used for the parts of the Project not treated by Ponds 1 and 2. The "area of new pavement" was considered, for purposes of BOR 5.8(b)1. to be just the new travel lanes; the area of the multi-use path apparently was not added for purposes of BOR 5.8(b)1. because it would not be expected to add much, if any, pollutant loading. In addition, BOR 5.8(c) provides: When alterations involve extreme hardship, in order to provide direct treatment of new project area, the District will consider proposals to satisfy the overall public interest that shall include equivalent treatment of alternate existing pavement areas to achieve the required pollution abatement. While also not clearly explained, the expert testimony was that BOR 5.8(c) also applied and was met by the Project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the application of the Florida Department of Transportation for Individual Environmental Resource Permit No. 43023532.000. DONE AND ENTERED this 25th day of November, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. LAWRENCE JOHNSTON 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 25th day of November, 2003. COPIES FURNISHED: Robert C. Downie II, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 William D. Preston, Esquire 2937 Kerry Forest Parkway Suite B-1 Tallahassee, Florida 32309-6825 Steve Rushing, Esquire David C. Ryder, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Petitioners Kayla and Eric Douglas in DOAH Case No. 89-6367 failed to appear or send a qualified representative on their behalf to formal hearing, and, accordingly, their petition is subject to dismissal, pursuant to Rule 221- 6.022 F.A.C. Applicant Ratkovic owns two adjacent rectangular-shaped pieces of property, Lots #5 and #6, located at 19 Magnolia Drive, within the city limits of St. Augustine, Florida. These lots are bounded on the north by Oceanway Street, a dirt road, and on the east by Magnolia Drive. The Ratkovic house is located on the lot which directly abuts Magnolia Drive (Lot #6). Lot #5 is immediately to the east of Lot.#6 and is separated from it by a ten-foot wide alleyway. Oceanway Street deadends into Salt Run, a Class III Water of the State, which is next to Lot #5. Lot #5 is 55 feet wide in a north-south direction and 82.5 feet long in an east-west direction. Lot #5 is completely within the landward extent of Salt Run. Lot #5 may be cnaracterized as a flat, intertidal sand beach and DER's jurisdiction with respect to it extends to the ordinary mean high water line. Salt Run is an embayment off of the Atlantic Ocean which, with the help of a concrete artificial groin, forms a cove in the vicinity of the proposed project. Water flow in the cove is serene enough to allow a tidal marsh to grow along parts of the shoreline of the cove, but there are still two areas of the cove in which no vegetation grows: waterward of Applicant's property and waterward of the property of Petitioners Steger (DOAH Case No. 89-6366). The Steger property is several lots south of the Applicant's property. Marine vegetation grows in the southeast quadrant of Lot #5 and to the north of Lot #5. The proposed project involves the placement of 19 pilings on 4'8" centers along the northern lot line of Lot #5. The proposed pilings would run on a line in the middle of the unvegetated area, approximately halfway between the two areas of tidal marsh growth, out to the waterward edge of Lot #5. 7. The Applicant desires a dock for Lot #5 and has already availed himself of the general permit provisions of Rule 17-312.808 F.A.C. The dock has not been constructed because he has been unable to obtain local approval for its construction. Respondents assert as a legal proposition that a 1,000 square foot (6 foot wide) piling-supported dock, if built on Lot #5, would be exempt from the requirement of obtaining a DER dredge and fill permit such as the one at issue here, and because of Respondents' assertion, it is one of Petitioners' concerns in this proceeding that the Applicant not be permitted to do by indirection that which he has been prohibited by local government (but not DER) from doing directly. However, that dock permit and those peripheral legal propositions need not be resolved in this proceeding for the reasons set out infra. The Applicant intends that the proposed pilings at issue here will serve as the northern support structure of his proposed dock, if local approval is eventually granted for the dock. However, without such local approval of his proposed dock, the Applicant's proposed pilings would still serve as a barrier to vehicular traffic which presently has unrestricted access across the beach and across his private property, Lot #5. The Applicant represented that he wants to install the pilings with or without the dock approval so as to prevent late night driving of cars on his beachfront property. Salt Run is full of docks, and this vicinity of Salt Run is the only area totally unobstructed by docks. This vicinity also has the only bottom area in Salt Run not encrusted with oyster or other bivalve shells. The only water quality standard to be impacted by the proposed project is turbidity. Turbidity results from the resuspension of bottom material and will occur briefly during the placement of the pilings. At the proposed project site, the bottom material is sand, which when resuspended, rapidly falls to the bottom and therefore has little environmental impact under the circumstances of this application. However, turbidity controls have been required by Specific Condition 4 of the DER Draft Permit. The foregoing factors assure that water quality standards will not be violated by the proposed pilings. The testimony of DER's agency representative, Jeremy Tyler, who was accepted as an expert in oceanography and the impacts of dredge and fill projects to wetlands and water quality, is accepted that because the proposed pilings will be located on a flat, intertidal sand beach, and because installation of the pilings requires appropriate turbidity controls, the placement of the proposed pilings will not generate turbidity sufficient to impact the tidal marsh, and, accordingly, their placement will not adversely affect the conservation of fish, wildlife, or their habitats. Similarly, it is found that fishing, marine productivity,- and the current conditions and relative value of functions being performed by the tidal marsh will not be adversely affected by the proposed project. The proposed project will not have any effects upon the public health, safety, or welfare, the property of others, or significant historical or archaeological resources. It will be permanent. The proposed project will not adversely affect the flow of water at the proposed site and will not cause harmful erosion or shoaling. Depending upon the time of the month, the time of the year, and the height of the tide, water could wash up to the landward side of Lot #5, or could leave the lot high and dry. Oceanway Street, the dirt road adjacent to the Applicant's property on the north, has historically been used by the neighbors and general public to drive down to Salt Run. These persons have used the cleared area between the tidal marsh sections described supra for wading, swimming, throwing of cast nets, and launching of boats and windsurfing boards. Because it is within the city limits, the area is also very attractive to those who just wish to stroll up the beach on a north-south tangent. In gaining access to the water of Salt Run, some persons have not differentiated between Lot #5, which is private property, and Oceanway Street. One reason for this lack of discernment seems to be that nearby Ingram Street, also a public access, is in such disrepair that prudent persons avoid it. Also, Applicant either built on Lot #6 or moved into the house on that lot only within the last few years, and while Lot #6 was formerly unoccupied, the neighbors and the public were free to walk dogs, moor and launch boats, and enjoy virtually all recreational activities in public areas and on Lot #5 with impunity. In essence, Lot #5 has been treated as a public beach. In the recent past, the Applicant's attempts to "run off" persons who have utilized his property in these ways have caused bad feelings in the neighborhood. Also, Lot #5 has been inadvertently used for recreation some of the time that it is covered with water, and this seems to be the source of some persons' confusion over where the Applicant's right to "run off" the public begins and ends; however, the evidence is insufficient to establish a public easement across Lot #5. If the proposed piling project were constructed, beach walkers, swimmers, or waders approaching one of the piles (and if local approval is obtained, ultimately the dock) might have to alter their course to avoid a collision. The 4'8" gap between pilings would allow this, but in the event a dock is installed, it might be more prudent to avoid the area altogether. Cast netters would have to alter their net throws so that their backswing or release would not intersect the position of a proposed piling and so that their nets would land along the line of the proposed pilings instead of on the pilings or dock. This could be done. Boaters and windsurfers, after placement of the proposed pilings, would have a far narrower area within which to launch and land their boats and boards. However, this narrowing would not preclude such launching or landing. Boats often start and end their journeys at docks, which, from a boat hull's perspective, are nothing more than a row of pilings. Windsurfing boards are approximately two feet at their widest. When a windsurfer capsizes in open water, he typically rights his board and starts anew. Here, if windsurfers do not wish to launch in the clear area remaining to the north of the last piling, which they could easily do, they would be able to walk their boards out to the last piling and start as they would in open water. The proposed pilings will make it more difficult to launch or land a windsurfing board, but it would not preclude such use of the water. There is also a public boat ramp at Lighthouse Park, the northern boundary of which is four blocks to the south and three blocks to the west of the proposed project site. Boaters or windsurfers who did not choose to use the end of Oceanway Street to obtain access to Salt Run would be able to use that location.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order Dismissing the Petition in DOAH Case No. 89-6367; Denying the Petitions in DOAH Case Nos. 89-6363, 89-6364, 89-6365, 89-6366, and 89-6368; and Granting the dredge and fill permit application as specifically conditioned by the Department of Environmental Regulation's Intent to Grant. DONE and ENTERED this 19th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1990. APPENDIX TO RECOMMENDED ORDER CASE NOS. 89-6363, 89-6364, 89-6365 89-6366, 89-6367, 89-6368 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioners Stegers' PFOF filed May 22, 1990: Paragraph 1: Sentences 1, 3, and 4: Accepted as fact, however, the degree of obstruction, the significance of recreational values within the applicable statutory balancing test, and the legal implications of that balance as contained in the Recommended Order more accurately reflect the record as a whole. Sentence 2: Accepted as modified to more accurately reflect the record as a whole. Sentence 5: Rejected as unproved. See what was proved and what was speculated in FOF 9 and 11 and COL 11. Paragraph 2: Rejected as not proved. Respondent DER's PFOF filed May 22, 1990: 1-16 Accepted as modified to more accurately reflect the credible, competent, substantial evidence of record as a whole. To date, no other PFOF have been filed. COPIES FURNISHED: Judson and Annelle West 4 Lighthouse Avenue Anastasia Island St. Augustine, Florida 32084 Virginia Quill Myers Mary Susanna Myers 322 Ponce de Leon Avenue Anastasia Island St. Augustine, Florida 32084 Ronald Asner 37 Magnolia Drive Anastasia Island St. Augustine, Florida 32084 Dan and Sue Steger 25 Magnolia Drive Anastasia Island St. Augustine, Florida 32084 Kayla K. and Eric Douglas 69 Lighthouse Avenue Anastasia Island St. Augustine, Florida Mary H. Acebal 32084 E. V. Acebal 10 Lighthouse Avenue Anastasia Island St. Augustine, Florida 32084 Mr. Jack Ratkovic Post Office Box 4482 St. Augustine, Florida 32085 William H. Congdon Assistant General Counsel, DER Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Petitioner has standing to administratively challenge, on the ground that navigation will be adversely affected, the Department of Environmental Regulation's determination, announced in its May 2, 1989, Notice of Permit Issuance, to issue Permit No. 061594966 authorizing Respondent Avatar Corporation to conduct dredge and fill activities in the Northwest Channel in Broward County, Florida, in connection with the construction of a fixed span bridge traversing that waterway? Whether its challenge was timely instituted? Whether the permit should be issued and under what additional conditions, if any?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a homeowners association. Its 300 dues-paying members 1/ own homes in an area of the City of Hollywood bounded on the north by Sheridan Street, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by U.S. Highway One. Avatar is a developer. It owns land in the City of Hollywood that it has platted and now desires to develop into a residential community known as Harbor Islands consisting of, among other things, 3,175 dwelling units, a hotel, and retail stores. In addition, four parcels of land (Parcels 2, 3, 11 and 11A) within the planned community, totaling approximately 30 acres, have been dedicated to the City of Hollywood for use as public park land. Avatar's right to develop this land for residential use was affirmed in the final judgment entered in Broward County Circuit Court Case No. 72-4252 on September 20, 1974, as supplemented by the supplementary final judgment entered in that case on December 17, 1981. Neither Petitioner, the Department, nor any other state agency was a party in Broward County Circuit Court Case No. 72-4252. The land that Avatar seeks to develop is situated on three islands and is bounded on the north by the Washington Street Canal, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by the DeSoto Waterway. Two waterways, the Venetian Waterway and the Northwest Channel, run through the interior of the planned Harbor Islands development (Development). The Venetian Waterway lies between the two southernmost of the Development's three islands. From its northern terminus at the Northwest Channel, it follows a southerly course beyond the southern boundary of the Development and into the City of Hallandale. On its southward trek, it passes under two bridges, one within the Development and one in the City of Hallandale. These bridges are of the fixed span variety and both have a vertical clearance of approximately ten to 12 feet. The Northwest Channel separates the northernmost of the Development's three islands from its other two islands while connecting the DeSoto Waterway with the Intracoastal Waterway. It is a man-made canal, the construction of which was the subject of a 1969 agreement between Avatar's predecessors in interest, who will hereinafter be referred to as the "Mailmans," and the City of Hollywood and Broward County, among others, 2/ that settled a lawsuit the Mailmans had filed. Numbered paragraphs 5, 6, 12 and 15 of the agreement provided as follows: NORTH AND SOUTH CHANNELS. The MAILMANS agree to construct and perpetually maintain at their expense, a channel or canal, running from the southerly portion of the DeSoto Waterway, as shown on Exhibit B, attached hereto, the same to be located in the vicinity of the present existing channel or within 500 feet south thereof, and in a like manner to construct and maintain a similar channel or canal, running from the northerly portion of the DeSoto Waterway, easterly to and connecting with the Intracoastal Waterway as shown on Exhibit B, attached hereto. Said channels shall have a minimum depth of 10 feet and shall be sufficient for all vessels requiring a clearance of 16 feet, and a minimum width of 100 feet. The parties acknowledge that the purpose of said channels or canals is to provide the general public the unobstructed and perpetual means of navigable access to the Intracoastal Waterway from any part of the DeSoto Waterway both north and south of Northeast Ninth Street. BRIDGES. The parties agree that the MAILMANS shall have the right to construct bridges, at their expense, across the aforesaid channels described in paragraph 5, hereinabove, together with necessary approaches and abutments. Said bridges shall be either "turntable" or stationary bridges, of a minimum height of 16 feet, as measured at high tide, with a clear span of not less than 30 feet. The parties further agree that the MAILMANS shall have the right to construct at their expense a bridge across DeSoto Waterway at Northeast Ninth Street, together with necessary approaches and abutments, which bridge shall be the only one not required to have clearance of 16 feet. Said bridge, together with necessary approaches and abutments, if constructed, shall be of such size and construction as shall not block, obstruct or interfere with the use of any part of Diplomat Parkway or Northeast Ninth Street lying west of DeSoto Waterway as each public thoroughfare presently exists. The parties further agree that under no circumstances shall any bridge be constructed so as to hinder or obstruct perpetual and navigable access of vessels requiring a minimum clearance of 16 feet at mean high tide, to the Intracoastal Waterway from any part of DeSoto Waterway lying North and South of Northeast Ninth Street. The MAILMANS agree that in the event of the aforesaid construction, they shall permanently maintain said bridges in safe working order. Said parties further agree to provide, at their expense necessary personnel to operate all turntable bridges at all times. 3/ 12. COVENANTS RUNNING WITH THE LAND; RECORDING. The parties agree that all of the covenants contained in Paragraphs 4, 5, 6, 7, and 8, herein are to be construed as running with the land; that a copy of this Agreement is to be recorded among the public records of Broward County, Florida; and that appropriate reference or specific designation of this agreement is to be made in any instruments of conveyance or development by deed or plat or otherwise, which shall be executed by the MAILMANS, their successors or assigns, as to any property described on pages 1 or 6 hereinabove. 15. BINDING EFFECT. All rights and obligations under this Agreement shall be binding upon and inure to the benefit of and be enforceable by successors, assigns, nominees, heirs and personal representatives of the parties. As the plat for the Development reflects, the Northwest Channel is privately owned by Avatar and has not been dedicated to any governmental entity. 4/ The depth of the water in the Northwest Channel ranges from approximately ten to 12 feet at its shallowest point to approximately 25 feet at its deepest. At present, there are no bridges crossing the Northwest Channel. The Northwest Channel is the only means of access to the Intracoastal Waterway for boats using the DeSoto Waterway north of the Atlantic Shores Boulevard (Northeast 9th Street) bridge in Hallandale (which portion of the waterway will hereinafter be referred to as the "Northern DeSoto Waterway") and the Washington Street Canal west of the culvert crossing at Three Islands Boulevard (which portion of the waterway will hereinafter be referred to as the "Western Washington Street Canal") that are too tall to safely navigate under the Atlantic Shores Boulevard bridge, which is a fixed span bridge and has a vertical clearance of approximately six to eight feet. 5/ The Northern DeSoto Waterway and the Western Washington Street Canal are used by pleasure boaters and water skiers. Neither watercourse has a high volume of traffic. Approximately 35 of Petitioner's members own waterfront homes adjacent to the Development on the other side of either the Washington Street Canal (which homeowners have a Washington Street address) or the DeSoto Waterway (which homeowners have a Diplomat Parkway address). Most, if not all, have docks behind their homes. 6/ They do not have to rely on marine transportation to reach their homes, however, inasmuch as they have easy access to their property by land. One such homeowner is Kenneth Hark, who lives at 1415 Diplomat Parkway. Hark owns a boat, the "Marcy," that he docks behind his home on the DeSoto Waterway south of where it meets the Northwest Channel. The "Marcy" is approximately 34 feet long. With its outriggers extended, it is approximately 30 feet high. It is approximately 18 feet high with its outriggers lowered. Hark uses his boat approximately once a week. Because of the height of his boat, he must traverse the Northwest Channel to get to the Intracoastal Waterway. Rowland Schaefer is another member of Petitioner who lives along the DeSoto Waterway and docks his boat behind his home. His boat is approximately 60 feet long, 17 to 18 feet wide and 25 to 28 feet high. There are other boats that are regularly docked on the Northern DeSoto Waterway and the Western Washington Street Canal. One of these boats is the "My Lady," which is approximately the same height as Hark's boat. Homeowners living along the Northern DeSoto Waterway and the Western Washington Street Canal also occasionally have visitors who arrive by boat. For instance, Hark's next door neighbors have an adult son who, on occasion, comes to their home in a sailboat that is approximately 40 feet in height. Another boat that brings visitors to the neighborhood is a vessel that is approximately 80 to 90 feet long and 25 to 30 feet high. About three to five times a year this boat docks behind the Cowan residence. In mid-December of 1988, Avatar submitted a "short form" application to the Department for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel at Three Islands Boulevard, where the average depth of the water is approximately 15 feet. The proposed bridge would connect the northernmost of the Development's three islands with the southern island that lies to the west of the Venetian Waterway. The project and its anticipated impacts were described in Avatar's response to Item 10 on the application form as follows: The applicant proposes to construct a fixed bridge approximately 220 feet long and 71.25 feet in width to provide access for development of the northernmost island of the Harbor Islands Development community. The proposed bridge will have a vertical navigational clearance of 17.04 feet above mean high water, 19.34 above mean low water, and a horizontal clearance of 51.83 feet between pile caps. There will be no dredging and filling associated with the proposed work, and no significant encroachment of the floodplain will occur. Benthic vegetation along the slopes of the Northwest Channel consist primarily of green algae, including sporadic stolons of Caulerpa sertularioides. In deeper portions of the channel, where light is limited, the benthic substrate is barren. Water quality impacts will be temporary in nature, with turbidity controls such as but not limited to turbidity curtains implemented to ensure that turbidity values do not exceed 29 N.T.U.'s above background. Item 5 on the application form requested the "NAME AND ADDRESS INCLUDING ZIP CODE OF ADJOINING PROPERTY OWNERS WHOSE PROPERTY ALSO ADJOINS THE WATERWAY." Avatar's response was "None." Aside from Avatar there were no other private property owners who owned land adjoining the Northwest Channel. Accordingly, Avatar's response to Item 5, to the extent that it conveyed such information, was accurate. Avatar's application was processed and reviewed by staff in the Department's Southeast District office, who in February of 1989, sent Avatar a letter advising it that the application was incomplete and that additional information and clarification was needed. The letter provided as follows with respect to Avatar's response to Item 5: Item No. 5 was not completed. Please provide the name and address including zip code of the nearest adjoining property owners with waterfront residence. On or about March 8, 1989, Avatar submitted a written response to the Department's February, 1989, letter. The response stated the following regarding "adjoining property owners:" The proposed project is located in the center of a large piece of property owned exclusively by [Avatar]. There are no adjoining property owners. The nearest potential adjoining property owners are located over 2000 feet from the proposed project site. In fact, Avatar did not own all of the property within the Development. It had dedicated certain land to the City of Hollywood and therefore no longer owned the entire property. Among these parcels of land that Avatar had dedicated was Parcel 11. Parcel 11 is located on the northernmost island of the Development a short distance (approximately 250 feet) to the north of the site of the proposed bridge. Furthermore, there were private homeowners with waterfront residences on the DeSoto Waterway and Washington Street Canal, including members of Petitioner, who also owned property less than 2,000 feet from the proposed project site. The Department did not forward a copy of Avatar's application to these or any other homeowners. Neither did it require Avatar to publish notice of the filing of the application. It, however, did send a copy of Avatar's application to the Mayor of the City of Hollywood and the Chairperson of the Broward County Board of County Commissioners, accompanied by a letter advising them of a local government's right to timely file objections to an application for a dredge and fill permit and to request an administrative hearing after receiving the Department's notice of intent to issue the requested permit. Neither the City of Hollywood nor Broward County filed any objections to Avatar's application. Moreover, no member of the general public commented on the application. On May 2, 1989, the Department issued a notice of its intent to grant Avatar's application for a dredge and fill permit (Permit No. 061594966). The notice explained that a person whose substantial interests were affected by the granting of the permit had a right to file a petition for an administrative hearing within 14 days of his or her receipt of the notice and that the Department's issuance of the permit would be considered "final" if no such timely petition was filed. A copy of the notice was mailed to Avatar, as well as the United States Army Corps of Engineers, the Department of Natural Resources, the Broward County Environmental Quality Control Board and the Broward County Property Appraiser. Neither Petitioner nor its members were sent a copy of the notice. There was no publication of the Department's notice. On August 30, 1991, Avatar requested that Permit No. 061594966 be modified to reflect a reduction in the length of the permitted bridge from 220 feet to 130 feet. The plans submitted by Avatar in support of its request indicated that the modified structure would have a vertical clearance of 17.1 feet at mean high water and 19.4 feet at mean low water and a horizontal clearance of 52 feet. In October of 1991, the Department approved the requested permit modification. Avatar was notified of the Department's decision by letter, a copy of which was sent to the United States Army Corps of Engineers, the Department of Natural Resources and the Broward County Office of Natural Resource Protection. The letter described the modification as "minor." Pilings that will support the bridge have already been driven and are in place. If construction of the bridge is completed in accordance with the plans approved by the Department, some boaters who now use the Northwest Channel as their sole means of travelling back and forth between the Northern DeSoto Waterway and Western Washington Street Canal to the west and the Intracoastal Waterway to the east will no longer be able to do so because their boats will be unable to safely navigate under the bridge. While the bridge will not be able to accommodate all of the boats that currently use the Northwest Channel, its vertical clearance is greater than that of the typical bridge crossing a canal in a residential area. To redesign the bridge to raise its vertical clearance several feet would require lowering the design speed to approximately ten to 15 miles per hour, which would pose a potential safety hazard. Navigational problems associated with vertical clearance would be eliminated if Avatar constructed a turntable bridge or a drawbridge instead of a fixed span bridge. Turntable bridges and draw bridges, however, are considerably more costly to build and maintain than fixed span bridges of comparable size. Furthermore, because of concerns regarding incompatibility, they are generally not constructed in residential neighborhoods. Petitioner first became aware of the issuance of Permit No. 061594966 in the spring of 1992, when two of its members visited the Department's Southeast District office and reviewed the contents of the Department's file on the permit, including Avatar's application for the permit and the Department's notice of its intent to grant the application. 7/ After its Board of Directors voted to challenge the issuance of the permit and the membership assented to launch such a challenge, Petitioner filed its request for a formal hearing on the matter. 8/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a final order granting Avatar's application for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel as the Department proposed to do in its May 2, 1989, notice of intent to issue Permit No. 061594966. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of December, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1992.
The Issue The issue here presented concerns the entitlement of the Applicant/Respondent, Raymond B. Spangler, to construct a boat dock of approximately 800 square feet, included in that dimension is a boat house. The Respondent, State of Florida, Department of Environmental Regulation, has indicated its intention to grant the permit application request and the Petitioner, Louise C. Stone, has opposed the Department's intention to grant the permit.
Findings Of Fact THIS CAUSE comes on for consideration based upon the Petitioner, Louise E. Stone's petition and request for formal proceedings to consider the propriety of the State of Florida, Department of Environmental Regulation's granting of an environmental permit to Raymond B. Spangler. This petition was filed after the Petitioner had received the Department of Environmental Regulation's Notice of Intent to Grant the permit. That notice was dated July 10, 1979, and a copy of that notice has been received into evidence as Department of Environmental Regulation's Exhibit No. 5. The Secretary of the Department of Environmental Regulation opted to have the Division of Administrative Hearings consider this case and on November 5, 1979, a formal hearing was held before a Hearing Officer with the Division of Administrative Hearings. The Petitioner is an adjacent landowner to the Respondent, Raymond B. Spangler, with property located on Lake Minneola. The applicant's project is located in the northwest corner of his property and is as far removed from the common property line with the Petitioner as is possible without violating setback lines. The Petitioner's property is located to the southeast of the project. The project as now contemplated calls for the construction of a boat deck and boat house with dimensions of approximately 800 square feet. The details of this construction may be found in a copy of the Application for Permit which is the Department of Environmental Regulation's Exhibit No. 1 admitted into evidence. The boat house and boat dock would be constructed on Lake Minneola, Lake City, Florida, near the town of Clermont, Florida. Lake Minneola is a navigable waterway and the boat dock and boat house would extend into the navigable water body. The discussion of the project as found in the Respondent, Department of Environmental Regulation's Exhibit No. 1 is an accurate depiction with the exception that the dock will have an increase in length from the original proposal of 70 feet to a new proposal of some 80 to 84 feet. Nonetheless, with the optimum extension, the amount of square footage still closely approximates the initially requested 800-square-foot amount. The reason for the change is due to the rise in the water level of the lake causing the mean high water line to be further landward than was the case at the time the permit was first applied for. The additional extension of the dock is necessary to allow for dry access to the water and to reach the open waterway beyond the growth of maidencane grass (Panicum Hemitomon) near the shoreline. In keeping with allowed exemptions found in Section 403.813, Florida Statutes, and Rule 17-4.04, Florida Administrative Code, 500 square feet of the deck has been constructed and this portion of the dock as constructed may be seen in the Respondent, Raymond B. Spangler's Exhibit No. 10 admitted into evidence, which is a photograph of the partially completed dock. Other photographs of the partially completed dock and the surrounding area of the lake showing the adjacent property may be found as Respondent, Spangler's Exhibits 5 through 9. The Respondent, Spangler's Exhibit No. 4, a composite which was admitted into evidence, is a series of photographs and an overlay which by scale shows a view of the completed dock and a depiction of the boat house when completed. The dock, when completed, will be constituted of a four-foot walkway extending approximately 80 to 84 feet into the water, intersecting at right angles at the terminus of the dock and forming a "T" shape. The boat house would be located adjacent to the walkway leading to the deck terminus. The dimensions of the covered boat house would be 25 feet by 14 feet. The depth of the water in the lake at the location of the continuing dock construction is sufficiently deep to allow the construction of the dock without the necessity of dredging. There is an extensive grassy community mostly constituted of maidencane (Panicum Hemitomon) and although some of the grassy community has been removed during the construction phase of the project, the denuded area may be easily reconstituted and the applicant has expressed his intent to achieve this end as a means to avoid further erosion which has started to occur at the site. None of the erosion which has occurred has interfered with the property of neighboring landowners. The impact of the continued construction in its affect on water quality would be inconsequential. Furthermore, the construction as now completed and as contemplated does not and would not constitute a hazard to navigation, nor interfere with and cause a danger to participants in water sports and related activities that take place on Lake Minneola. When the project is completed the aquatic vegetation can be expected to return and to remain as a viable wetland community. This is due to the fact that the amount of water surface covered by the project is slight and there is sufficient sunlight to support the aquatic vegetation even in the shaded areas. During the construction phase the amount of turbidity caused by the construction has been de minimis, and will be, in view of the fact that the bottom of the lake is a sand base which settles out quickly. This settling effect was seen by the project evaluator, James Morgan, Department of Environmental Regulation, when he toured the site of the construction and saw Respondent Spangler placing pilings. Morgan noted that the turbidity involved was of a short duration. The project will not interfere with fish and wildlife either in their day-to-day activities or in their propagation. None of the standards pertaining to water quality as found in Chapter 17-3, Florida Administrative Code, will be violated by the project. The project will not be an unreasonable obstruction to the view of adjoining riparian owners and the applicant does not intend to use the boat house as a dwelling. When the project was first reviewed by the State of Florida, Department of Environmental Regulation, that agency notified the Florida Game and Fresh Water Fish Commission; the St. Johns River Water Management District, and the Department of Pollution Control of Lake County, Florida. None of these agencies have made known any objection to the project and the Department of Pollution Control of Lake County has specifically indicated their lack of opposition by written comment, a copy of which may be found as the Department of Environmental Regulation's Exhibit No. 3 admitted into evidence.
Recommendation It is recommended that the Applicant/Respondent, Raymond B. Spangler, be allowed to conclude the construction of the boat deck and boat house as contemplated by the application of May 11, 1979, with the addendum that the dock length be extended to 80 feet to 84 feet as necessary; with the proviso that the applicant ensure that the grassy community be returned to its pristine condition in the area of his project, to prohibit further erosion and that these results be accomplished by the issuance of a permit pursuant to the conditions as outlined. DONE AND ENTERED this 16th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert F. Vason, Jr., Esquire Raymond B. Spangler 408 East Fifth Avenue Route 3, Box 319 Mount Dora, Florida 32757 Clermont, Florida 32711 Segundo J. Fernandez, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Respondent, Department of Transportation’s (“Department” or DOT”), notice of intent to award a contract to Intervenor, Archer Western De-Moya, Joint Venture (“AWD”), for a transportation project involving the design and reconstruction of federal and state roadways in Miami, Florida (“the Project”), is contrary to governing statutes, DOT’s rules, or the bid specifications; and, if so, whether the award is contrary to competition, clearly erroneous, or arbitrary and capricious.
Findings Of Fact Project, Parties & Participants Respondent, DOT, is the state agency authorized by section 334.30, Florida Statutes, to issue requests for proposals to solicit competitive bids for private-public (“P3”) partnership projects. The Project was located in District VI of the Department. Greg Schiess is the manager of the Strategic Initiatives Office for DOT. Mr. Schiess oversaw the Project and was the agency representative for DOT at the final hearing. Nadine Chinapoo was DOT’s procurement officer who oversaw the RFP process for the Project. The RFP had strict rules of contact between bidders and any DOT employee or officer. The Department designated Ms. Chinapoo as the “single contact and source of information” for the RFP. The Miami-Dade Expressway Authority (“MDX”) is a state agency created in 1994, authorized by Miami-Dade County, and funded through toll revenues. MDX has regional oversight of five expressways in Miami-Dade County, including State Road 836 (“SR 836”). On February 6, 2017, DOT issued the “Design-Build Request for Proposal for SR 836/I-395 from West of I-95 to MacArthur Causeway Bridge and I-95 Pavement Reconstruction and I-95 Southbound to SR 836 Westbound and SR-836 from West of NW 17th Avenue to Midtown Interchange (SR-836/I-395/I-95)” (“RFP”). The Department developed the RFP pursuant to section 334.30, Florida Statutes, which allows DOT to enter into a P3 to finance, design and build transportation construction and facilities. No one timely filed an objection to any of the RFP specifications. The RFP involves two contracts: (1) the DOT contract for federal interstates 95 (“I-95”) and 395 (“I-395”), and a portion of SR 836 leading to and from MacArthur Causeway Bridge; and (2) the MDX contract which involves another portion of SR 836 from Northwest 17th Avenue to the Midtown Exchange at I-95. A key component of the RFP was the replacement for “Bridge No. 8/9” of I-395, which would run east to west (“Signature Bridge”). According to the RFP, the Signature Bridge would take traffic over a portion of downtown Miami to and from the MacArthur Causeway. Ultimately, the winning bidder or design-build firm (“DB Firm”) would provide preliminary designs, coordinate design services with the Department to finalize the engineering and construction plans, and perform construction of the finalized designs. It would also need to self-finance the design and construction of the Project, because payment would be made by DOT into an escrow account and then disbursed to the selected DB Firm on periodic intervals. This form of payment was referred to as “gap financing.” BCC is a private civil engineering firm based in Florida specializing in roadway projects. The Department engaged BCC to advise and draft concept plans and portions of the RFP related to roadway design, roadway geometrics and temporary traffic control (also known as maintenance of traffic (“MOT”)). Staff from BCC also represented the Department in meetings with bidders as allowed by the RFP.4/ The Project Selection Committee (“PSC”) was made up of three members: Javier Rodriguez, Executive Director of MDX; Gerry O’Reilly, Secretary of DOT for District IV; and Dat Huynh, District Planning and Environmental Administrator of DOT for District VI. The PSC selected the Best Value Proposer (“BVP”) based on scores given for the bidders’ Technical Proposals, contract time, price proposals, and a passing grade for the bidder’s financial health. The PSC also met publicly at various times during the RFP process. The Technical Review Committee (“TRC”) was the group in the RFP process responsible for reviewing and scoring the Technical Proposal. The TRC was made up of four DOT engineers and one MDX engineer. The Technical Proposal was made up two volumes. Volume 1 was worth a total of 60 points and included criteria such as construction methods, MOT plans, and innovation. Volume 2 was worth up to 30 points, and addressed aesthetic criteria such as streetscapes, lighting and enhancements. The Aesthetic Review Committee (“ARC”) was the group assigned to review and pass acceptable Signature Bridge options. The ARC also was responsible for reviewing and scoring Volume 2 of the Technical Proposals from each bidder. There were originally five members: four non-DOT representatives from the local community; and Brian Blanchard, the DOT assistant secretary. Mr. Blanchard withdrew from the ARC prior to the scoring of Volume 2, when his duties at DOT increased after the DOT Secretary resigned. Each bidder could submit three bridge designs or options. The ARC members gave a “pass” or “fail” grade to each Signature Bridge option submitted. These pass/fail grades determined which proposals moved to the next phase of the RFP involving the technical aspects of the entire proposal. Although the ARC members also ranked each of the bidders’ options, these rankings were for “informational purposes only.” Leon Corbett, the Department’s finance manager for the RFP, was responsible for overseeing the final phase of the RFP process of evaluating the financial fitness of the intended DB Firm. Mr. Corbett was experienced in evaluating financial proposals submitted in response to requests for proposals, and specifically had experience in evaluating bidders for proposals involving P3s. Mr. Corbett and DOT staff evaluated the financial proposal of the highest scorer on a pass/fail basis. Petitioner, FAM, is a joint venture organized specifically to submit a response to the RFP. The corporate members of FAM are Fluor Enterprises, Inc. (“FEI”), Astaldi Construction Corporation and Munilla Construction Management, LLC (“MCM”). All three members of FAM are civil construction contractors that were prequalified by DOT to submit bids to the RFP. Hope Grumbles, FEI’s director of sales and infrastructure, served as the corporate representative for FAM at the hearing. AWD was also organized to submit a response to the RFP. AWD is composed of Archer Western Contractors, LLC (“Archer”), and the de Moya Group, Inc. (“de Moya”), both DOT- prequalified contractors. Ultimately, DOT issued a notice of intent that AWD had been chosen as the winning proposer or DB Firm. Kevin McGlinchey, the vice-president over Florida and the Caribbean for Archer, served as the corporate representative for AWD at the hearing. History and Groundwork for Project and RFP Planning for improvements to I-395 and the bridge to the MacArthur Causeway began in the early 1990s, but did not result in any renovations. Research on the project began again in 2004 with the beginning of a project development and environmental study (“PD&E”) and culminated in 2010 with the issuance of a Final Environmental Impact Statement and the Record of Decision.5/ The purpose of the PD&E study was to produce a recommendation for final designs and construction. Separate PD&E studies were done for the I-395 and SR 836 projects. The original PD&E premise was simply to replace the bridge on I-395, but that project did not move forward because of concerns that the bridge and the construction itself may have negative impacts on the area underneath and adjacent to the bridge, including Overtown, a historic black neighborhood located adjacent to I-395. At some point after the release of the PD&E studies, DOT created a Project Advisory Group which met numerous times until 2013. The Project Advisory Group consisted of representatives of numerous stakeholders in the road improvements, including governmental agencies and civic organizations from the local area. Meanwhile in 2010 and early 2011, BCC, on behalf of the Department, began developing the RFP language. Although it was not involved in the original I-395 PD&E, BCC reevaluated the PD&E for factors, such as environmental and socioeconomic impacts, traffic issues, and right-of-way requirements. These changes were incorporated in the concept plans and procurement language for the final advertisement requesting proposals for the Project. In 2013, a lawsuit filed against DOT in Miami-Dade County sought equitable relief relating to any bridge renovations by DOT. As a result, DOT agreed that any renovation or improvements by DOT to the I-395 interchange would include a “Signature Bridge” as part of the Project. In furtherance of this goal and to allow local input regarding the visual impact of the bridge on the area, DOT created an Aesthetic Steering Committee to review alternatives for the “Signature Bridge” and recommend a specific bridge design to DOT. Despite meeting numerous times, however, this committee was unable to reach consensus on any one specific design. The committee disbanded, but the concept of the committee’s role was incorporated in the RFP process in the form of the ARC. During this time, MDX also had plans to reconstruct portions of SR 836. DOT and MDX agreed to conduct the SR 836 renovations and the bridge replacement as part of the same project for convenience and to save resources. As a result, DOT partnered with MDX to conduct a multi-phased and comprehensive reconstruction project that would address the traffic and aesthetic concerns of the local citizens. The project would include three major components: (1) a “Signature Bridge”; (2) SR 836 renovations; and (3) I-395 renovations. Also as a result of the public’s concerns related to the visual impact of the Project to the surrounding areas, the Department developed an Aesthetic Manual (found at Joint Exhibit 3) for the Project. This manual focused on the Signature Bridge and area underneath the bridge. As explained in the Aesthetic Manual: [T]he signature bridge will be the crown jewel of the Project. The purpose of this structure is two-fold: to provide Downtown Miami with a contemporary infrastructure icon, and to improve the quality of the space below 1-395 by relieving it of obstructing piers and columns. . . . Irrespective of the ultimate design, the Signature bridge shall still adhere to [certain] constraints: [The] Signature bridge shall have a constant depth superstructure. The signature bridge shall be two fully independent bridges that are made to look like one form (e.g. twin basket handle bridges void of a visually unifying element will not be allowed). This structural autonomy is necessary because the EB and WB structures will be constructed sequentially, yet the stakeholders have insisted upon the appearance of one aesthetic entity. Concept Plans To provide bidders with an established set of design objectives (i.e., an idea of what it was looking for in the final product), DOT created concept plans that identified the project’s physical boundaries, the scope of the interstate reconstruction and proposed layouts. The RFP concept plans were developed and approved as part of the PD&E studies that were conducted for the I-395 and SR 836 projects prior to the issuance of the RFP. It is clear from the RFP itself and the testimony at the hearing that changes to the concept plans were anticipated and encouraged. A bidder’s improvements to the basic requirements and layouts to the concept plans could garner more points in the final bid score. The RFP described the purpose of concept plans. The Concept Plans have been developed to illustrate the work required for the Total Project. The Design-Build Firm may make use of the design in the Concept Plans as a starting point for the design. However, the Design-Build Firm is not limited to only the work identified in the Concept Plans but must stay within the constraints of the Department Commitments and the requirements of the RFP. Anthony Jorges, a civil engineer and the BCC consultant working with the Department on the roadway design, geometrics and MOT requirements of the RFP, gave clear and convincing testimony. He testified the concept plans were to serve as a launching pad for the proposals. [The concept plans are] essentially a starting point for the design-build teams. [I]t really is a conceptual level, about a 30 percent level design, but it gives the teams a point to start. It by no means is final or unmodifiable. It’s just a starting point . . . a baseline to start off with. No one timely filed any protest of the concept plans. RFP Timing and Process The procurement process took place over a year, from the date of advertisement to the selection of the DB Firm. The RFP process was broken down into four phases. Phase I: Short Listing Phase II: Aesthetic Signature Bridge Submission Pass/Fail Phase III: Technical Proposal Submissions and Scoring Phase IV: Price Proposal and Financial Proposal Submittals Although addressed in detail below, in summary, prequalified bidders were first required to submit a letter of response with specific preliminary information about the bidder. DOT then created a shortlist of bidders based on review of these letters. Each shortlisted entity was then given the opportunity to submit Aesthetic Signature Bridge Proposals. Each bidder that had a passing Aesthetic Bridge submission was permitted to submit a Technical Proposal and Financial Proposal. After the Technical Proposals were scored, the scores were announced along with each bidder’s price proposal and proposed contract time. After getting a pass grade on its financial proposal from the Department, the PSC selected the BVP. Phase I In Phase I, each proposer was to provide DOT a “Letter of Response” with general information, such as the proposer’s past projects and résumés of designated key staff positions. Specific to this protest, bidders were to designate a bridge architect and engineer of record for the Signature Bridge. Each timely Letter of Response submitted to the Department was to be evaluated on specific criteria by the PSC. DOT would then post a shortlist of bidders authorized to submit proposals. Petitioner and Intervenor submitted a Letter of Response and the PSC selected both for the shortlist, thereby advancing both to the second phase of the RFP process. Phase II Each proposer that was shortlisted provided a draft submittal of its Signature Bridge design or design options. These drafts were vetted by DOT through meetings that allowed the proposers and the Department to discuss any questions or concerns either had about the draft proposals. No members of PSC, TRC or ARC attended these “vetting” meetings; the meetings were solely intended to provide feedback and answer questions between DOT staff and the proposers. After the “vetting” meetings, each shortlisted proposer submitted up to three final Signature Bridge options to the ARC. Each ARC member then gave each option a “pass” or “fail” grade. If a proposer submitted more than one option, the ARC members ranked that proposer’s options by preference. These grades and rankings were provided to the PSC for review. To move to the third phase, a proposer must have received at least one “pass” rating. The RFP specifically provided the ARC’s rankings of individual options “are purely for informational purposes only, and will have no direct impact on the Pass/Fail decision or on the evaluation of the Proposer’s Technical Proposal.” On August 19, 2016, DOT issued the “Aesthetic Bridge Proposals Pass/Fail Posting Notice” indicating that the PSC had reviewed the ARC’s rankings. As allowed by the RFP, the PSC determined that the bidders that received three out of five passes would move on. AWD’s Signature Bridge proposal was a fountain-like design with multiple arches sprouting from a unified point. FAM’s Signature Bridge design consisted of two cabled structures that were similar, but inverted. Each had an arm with a rotating disk extending into the air. Ultimately, the PSC approved these submissions from FAM and AWD to proceed to the third phase of the RFP process. Phase III Whereas Phase II focused on the Signature Bridge, Phase III involved the Technical Proposals from the bidders. Each Technical Proposal was made up of a Technical Volume (Volume 1) and Aesthetic Volume (Volume 2). The TRC members reviewed and scored both volumes; the ARC members only scored Volume 2. According to the RFP, the technical scores were based on an “adjectival scoring system” that required each of the TRC and ARC members to review the volume or volumes of the proposals he or she was assigned and give each section an “excellent,” “very good,” “good,” “fair,” or “poor.” These descriptive ratings were later converted to a numerical value and announced at the public meeting held on April 24, 2017, to open the contract time and price proposals. Ms. Chinapoo provided the Technical Proposals, the individual scores of the evaluators, and a spreadsheet compiling all the scores to the PSC for review prior to the April 24 public meeting. Unlike the other bidder’s proposals, AWD’s Technical Proposal included a viaduct made up of two by-pass lanes in each direction on an elevated freeway along the center of the existing SR 836. The viaduct had construction and safety advantages over traditional “parallel lane” formats and would eliminate interaction between I-95 traffic and special event traffic in downtown Miami. Because this was a novel concept not addressed in the RFP or concept plans, AWD was required to get DOT’s approval before submitting the preliminary designs. After the TRC and ARC members reviewed the Technical Proposals, AWD received a 53.980 out of 60 points on Volume I and 24.389 out of 30 points on Volume II; FAM received 50.180 points for Volume I and 28.656 on Volume II. ATC Process Bidders were allowed to obtain permission to deviate from the concept plans and RFP requirements in certain aspects. The RFP outlined a process for approving requests for an Alternative Technical Concept (“ATC”), which included any deviation from a component of the technical requirements, or any proposed material or technology not addressed in the RFP. The RFP schedule anticipated that bidders would submit their ATC requests after Phase I and, if approved, incorporate them in the Technical Proposals submitted in Phase III. The purpose of the ATC process was to allow “innovation, flexibility, time and cost savings on the design and construction of Design-Build Projects while still meeting the Department Commitments.” The ATC process included one-on-one discussion meetings between the Department (or its representatives from BCC) with bidders “to describe proposed changes to supplied basic configurations, Project scope, design criteria, and/or construction criteria.” The purpose of these one-on-one ATC meetings was to discuss the ATC proposals, answer questions that the Department may have related to the requested deviations, review other relevant information, and establish whether the ATC proposal met the requirements for approval when possible. Representatives from the bidders and/or their engineers or designers, and DOT staff were involved as needed to provide feedback on the ATC. None of the TRC, ARC, and PSC members attended ATC meetings or participated in the ATC process. An ATC was deemed worthy of approval if the concept suggested was equal to or better than the existing requirements of the RFP, as determined by the Departments. ATC requests, which reduced scope, quality, performance or reliability, would be rejected. The Department retained discretion to approve or deny an ATC without a need to state justification. Once approved, an ATC was treated one of two ways: with an addendum to the RFP so all proposers were aware of the deviation; or (2) without an addendum so only the proposer that submitted the ATC would be permitted to utilize the approved ATC in its design. Not all concept plans or RFP requirements were modifiable; some could not be changed through an ATC. Specific to these proceedings, the RFP had “specific ATC restrictions” (or what the parties referred to as “nonmodifiables”) on the following requirements: Minimum basic number of lanes [for I-395 and I-95] as shown in Attachment A-33. All Signature Bridge components shall be part of the structural system that carries bridge Dead Load (DL) and Live Load (LL). Minimum basic number of lanes [for SR 836] as shown in Attachment MDXA-02. Minimum widths of mainline lanes and ramp lanes [for MDX]. Preliminary Plans and Confirmation Letter During Phase III, each remaining bidder was required to submit a technical proposal in which the bidder provided design concepts with preliminary plans. The RFP did not seek proposals of final designs that were ready for construction. Rather, as explicitly stated, the actual preparation of final plans and designs was to be part of the contract work being solicited, and would be performed after contract execution. As was clear from the RFP and testimony at the hearing, the goal of the procurement was not for the award recipient to provide final signed and sealed plans. Instead, it would provide plans as deliverables in the contract, submitted to DOT engineers for review, comment, and approval. More precisely, the RFP and contract required the winning bidder to submit--during contract performance--60- percent plans (plans that are 60-percent complete) for DOT comment and approval, followed by 90-percent plans for further DOT review. Only after the 90-percent plans were finalized, were they to be signed, sealed, and submitted to DOT for construction. In other words, the final design plans were to be developed by the DB Firm’s designers in collaboration with DOT’s (and MDX) staff as part of contract performance and deliverables--not as part of the procurement itself. Because of the unique fluid nature of the proposal drawings, the RFP provided that DOT may waive minor irregularities in proposals as follows: Waiver of Irregularities The Department may waive minor informalities or irregularities in Proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department’s interest and will not affect the price of the Proposals by giving a Proposer an advantage or benefit not enjoyed by other Proposers. Any design submittals that are part of a Proposal shall be deemed preliminary only. Preliminary design submittals may vary from the requirements of the Design and Construction Criteria. The Department, at their discretion, may elect to consider those variations in awarding points to the Proposal rather than rejecting the entire Proposal. In no event will any such elections by the Department be deemed to be a waiving of the Design and Construction Criteria. Because the proposal plans were merely preliminary, DOT required each bidder to submit a “Written Confirmation Letter” (“Compliance Letter”) stating that regardless of the preliminary plan, if chosen as the DB Firm, it would comply with and be bound by all requirements in the contract documents during contract performance. The winning bidder was required to fully comply with the Design and Construction Criteria and other RFP requirements for the price bid, regardless of the preliminary designs or if the proposal was based on a variation. AWD and FAM each submitted Compliance Letters. Phase IV and Selection of AWD as BVP In Phase IV, FAM, AWD, and two other bidders submitted their price proposal and total project calendar days. During the public meeting on April 24, 2017, price proposals from each proposer were opened. The price proposals also included each proposer’s total estimated contract time. Based on the formula set forth in the RFP, each proposal received a score for its price proposal. The members of the PSC were not involved in evaluating the price proposals or the contract time. Instead, the prices and contract times were evaluated by DOT staff, who were to alert the PSC members to issues with a proposer’s price or contract time. The record established DOT staff were not concerned and did not alert the PSC members to any issues. Both AWD and FAM received a score of 4.99 points for their price proposals. AWD proposed a total contract time of 1,460 days; FAM proposed a total contract time of 1,825 days. The RFP provided the formula for scoring the proposed contract times as: 5 x (a/b), where a = lowest number of calendar days proposed by any bidder; and b = number of calendar days proposed by that bidder. Using this formula, AWD received 5.00 out of 5 points; and FAM received 4.00 points. The total scores were then noticed by the Department. The next step in this phase was for the Department to evaluate the financial fitness of the intended award. The Department’s finance manager for the RFP, Leon Corbett, and DOT staff evaluated the financial proposal of the highest scorer on a pass/fail basis. As noticed in the RFP, the financial review portion for this RFP was to occur after the April 24 public meeting announcing the technical scores and price proposals. The RFP states that the “PSC shall select the BVP for the Total Project.” It also states that “[t]he Proposer with a responsive Proposal will be evaluated by the PSC for award of the I-395 Agreements as the Best Value Proposer as set forth in this RFP.” Finally, the RFP provides as follows: The PSC will review the evaluations of the Technical Proposal and the scores for the Proposed Contract Time and Scored Price Proposal for each Proposer and make a final determination of the highest score. The PSC has the right to correct any errors in the evaluation and selection process that may have been made. The Department is not obligated to award the I-395 Agreements and the PSC may decide to reject all Proposals. If the PSC decides not to reject all Proposals, the I-395 Agreements will be awarded to the Proposer determined by the PSC to be the Best Value Proposer. Before the scheduled PSC meeting on May 12, 2017, Ms. Chinapoo provided each PSC member with the technical proposals submitted by the vendors, the individual scores of the evaluators, and a spreadsheet compiling the scores. On May 12, 2017, the PSC met to consider the scores, as well as DOT staff’s evaluation of the AWD financial proposal. The PSC unanimously determined that AWD was the “Best Value Proposer” based on the highest technical score, the best value proposer and the best contract time. One PSC member, Mr. Rodriguez, testified that before the May 12 meeting he spent about 12 hours reviewing the material before making the final decision as to which bidder would be BVP. He also testified that he considered AWD the BVP because “they had the best score, after they were scored, they had a compliant price, and they had the best time.” Mr. Rodriguez indicated he would have asked any questions at the meeting had he seen anything unusual, untoward, or problematic about the scoring of the proposals. Mr. Rodriguez noted there was one anomaly in the technical scores of one ARC member who preferred the FAM’s proposal. Whereas the other members of the ARC gave AWD scores of 26.2, 24.6, and 17.80 out of 30 points for Volume 2, John Richard gave AWD a score of 7.20 points; while awarding FAM a nearly perfect score of 29.300. Mr. Richard awarded the other two proposals (not FAM or AWD) 9.00 and 2.5 points. Mr. Rodriguez considered, but was not concerned about Mr. Richard’s individual scores because Mr. Rodriguez felt the scores were based on “aesthetics” and just “an opinion” about which proposal Mr. Richard thought offered the prettier bridge. There is no evidence establishing the PSC failed in its responsibilities or did not follow the RFP process in selecting the BVP as described in the RFP. After the PSC determined the intended award, the Federal Highway Administration was required to concur, the DB Firm was required to submit final financial documents, and the parties would then execute the contracts. DOT’s Scoring In the Amended Protest, FAM asserts the bid award should be rejected because the Department used the wrong methodology for assigning the technical scores for Volume 2. DOT took all of the reviewers’ scores, added them together and divided them by the number of reviewers. FAM claims that correct methodology would be to take the ARC members’ individual scores and average them to one score (x); take the TRC members’ individual scores and average them to another score (y); and then average x and y to arrive at a technical score for Volume 2. Although the RFP was specific as to what criteria the ARC and TRC members were to use in grading the technical proposals, and how those grades were converted to numbers, it was silent as to how the individual reviewers’ scores would be combined to come up with one score for Volume 2. As explained previously, all members from the TRC and the ARC used an “adjectival scoring system” that required individual evaluators to rate portions of the proposals as “excellent,” “very good,” “good,” “fair,” or “poor.” Consistent with the RFP, non-reviewers (Mr. Schiess and a DOT in-house attorney) assigned numerical equivalents to the adjectival scores. These individual numerical conversions were delivered to Ms. Chinapoo, who kept them secure until the scores of all proposers were presented in a spreadsheet during a public meeting on April 24, 2017. As established by the evidence at the hearing, typically in DOT procurements there are technical reviewers scoring the technical part of proposals. In that situation all of the reviewers’ scores are averaged (i.e., added all together and divided by the total number of reviewers). Unlike other procurements that are based only on technical components and price, this RFP involved an additional component relating to aesthetics. Therefore, in this RFP process there were two separate scoring committees, ARC and TRC, each starting out with five members each. Mr. Rodriguez testified the method used by DOT-– calculating the final score by adding up the scores from the individual reviewers and then dividing it by the number of reviewers--was common practice. Theoretically, under this typical method, for the Aesthetic volume of the Technical Proposals, DOT would have added the scores from each of the ten committee members and divided by ten to reach the technical score. During the course of the procurement, however, one of the members, Brian Blanchard (the sole DOT representative on the ARC) resigned from the committee, and was not replaced. The RFP is silent as to how the absence of a committee member should be treated. DOT addressed the reduction in ARC membership by notifying the proposers that Mr. Blanchard was no longer on the ARC; and explaining the “scoring of your Technical Volume 1 will be done by the five-member Technical Review Committee (TRC), who will also score your Aesthetic Volume 2, along with the four remaining members of the ARC.” It did not clarify how the individual scores would be used to arrive at a total score. As reflected in Joint Exhibit 46, DOT converted the adjectival description provided by each ARC and TRC member and then calculated the scores of each of the reviewers to reach a total sum, which was then divided by the number of reviewers for each volume of the technical proposal. The language in DOT’s notice announcing Mr. Blanchard’s departure from the ARC is ambiguous. The fact, however, that the Department did not provide a formula (as it did for scoring the price proposal or contract time scores) and that it mentioned the “members,” and not the committees, supports the use of the typical averaging methodology, averaging scores of all nine evaluators. As Mr. Schiess testified, this is the way an evaluator’s scores would be treated in any other procurement. Q.: Do you know who made the decision on how to average those numbers? A.: The decision to average the scores has been something the Department has been doing. That’s just common practice. Q.: And what is the common practice? A.: To average the scores of the evaluators. Q.: Just take a straight average, add up all the evaluators and divide the scores by the number of evaluators? A.: Correct. Similarly, the testimony of the PSC members established this was common practice. Mr. Rodriquez testified that he has served on numerous DOT project selection committees over the years and that scores of evaluators are typically averaged. Dat Huynh, another PSC member, described the process as “regular averaging” as “just combining the number and dividing by the number of people that were in participation.” The testimony established any contrary method would need to have been clearly spelled out in the RFP. At the May 12 public hearing, FAM’s representatives raised the issue of the scoring and claimed it defeated the public’s role in the process. The evidence, however, established the public did have a key role in the selection of the Signature Bridge. The ARC’s role was to provide public input. In addition to scoring Volume 2, the ARC evaluated the Signature Bridge design proposals on a Pass/Fail basis and served as the “gate-keeper” keeping any designs it did not approve from moving further in the process.6/ John Morris, president of the third-place proposer, also indicated at the May 12 public meeting that based on his experience the process was not unusual: My team came in third in that process. And I’m not really here representing my joint venture team. I’m really more here as someone who has done a great deal of work with the Department of Transportation and bid on a lot of design-build projects over the last 20 years, and as far as I’m concerned, the DOT followed the process that they laid out in the RFP. Additionally, a plain reading of the RFP indicates it was the weight of the individual ARC members, not the ARC as a whole, that was valued. For example under the section titled “Aesthetic Signature Bridge Proposals Pass/Fail,” the RFP stated in relevant part: Each ARC member will independently pass or fail each option submitted. Each ARC member will also rank the options provided by a Proposer against the other options provided by the same Proposer against the other options provided by the same Proposer. * * * Although the ARC members will rank the different options . . . these rankings are purely for information purposes only, and will have no direct impact on Pass/Fail decision or on the evaluation of the Proposer’s Technical Proposal. * * * [T]he PSC will recalculate the options based on “passing” being lowered to three (3) out of five (5) passes from the ARC members. (RFP at 20)(emphasis added). There is also support for using individual scores in the RFP section titled “Final Selection Process,” which provides that at the public meeting where the price proposals are opened, “the Department will announce the adjectival scores for each member of the TRC and ARC, by category, for each Proposer.” (emphasis added). This interpretation makes sense given that the previous form of the ARC, the Aesthetic Steering Committee, could not come up with a consensus regarding a style or appearance for the Signature Bridge. Moreover, given that it was the DOT’s representative and not a public member that resigned, it cannot be said that the method used by DOT undermined the public’s participation in the process. There is no evidence that the method put forth by FAM is supported by the RFP, any rules or by any industry or departmental precedent; nor is there evidence that the ARC and TRC were to contribute to the scoring process equally. There is no evidence that the averaging methodology used by DOT is contrary to any statute or rule. The Department’s deriving the total score for Volume 2 by averaging all the evaluator’s scores was not clearly erroneous, contrary to competition or arbitrary and capricious. AWD’s Contract Time As stated previously, the RFP provided the formula for scoring the proposed contract times as: 5 x (a/b), where a = lowest number of calendar days proposed by any bidder; and b = number of calendar days proposed by that bidder. Additionally, the RFP noted: “The Proposed Contract Time should incorporate and set forth an aggressive but realistic time frame for the required completion of the Total Project.” According to the RFP, any time more than 1,825 days would be nonresponsive. AWD’s Proposed Contract Time was 1,460 days; FAM’s Proposed Contract Time was the maximum provided by the RFP-– 1,825 days. This comes out to be a 365-day or a one-year difference. As a result, using the formula in the RFP, AWD achieved a score of 5.0 out of 5 points for its contract time, and FAM achieved a score of 4.0 points. FAM challenges AWD’s contract time, claiming it was not realistic. FAM argues the 1,460 days proposed by AWD was unrealistic and insinuates this number was done solely to manipulate the scoring. AWD counters, not only was it realistic, it was aggressive, as requested by the RFP. There is no evidence of collusion or that AWD knew the individual technical scores before it came up with its proposal or that there was any kind of unethical or improper conduct relating to the contract time. Rather there was competent and convincing evidence that AWD’s shorter time proposal was realistic given its resources and experience. Kevin McGlinchey, who was involved in developing AWD’s contract time, testified the calculation of AWD’s contract time was an on-going process and was not finalized until a short time before the price and time submission was due. The evidence established AWD’s joint members had previous experience with DOT and P3/design-build projects. In addition, AWD was a very large contractor in the state with access to adequate local labor. Archer employs 1,300 workers in the area; de Moya employees up to 300 workers in the area. For example, depending on equipment availability AWD could have five eight-hour shifts, five ten-hour shifts, or six eight-hour shifts; or AWD could increase the number of crews working each shift. This access to labor afforded AWD the ability to increase its crews and shifts, thereby reducing the length of total work time. AWD also reduced its contract time over the procurement process by changes in its construction plan that allowed it to overlap construction phases and work on more than one segment of the Project concurrently, instead of running consecutively as originally anticipated when it submitted preliminary design documents and MOT plans. Mr. Schiess testified that he and a DOT bridge expert reviewed AWD’s Proposed Contract Time to determine whether it was realistic. This review was conducted between the time the scores were publicly released on April 24, 2017, and the PSC meeting on May 12, 2017. Mr. Schiess testified “based on our experience in Florida and other projects [with] these contractors [Archer and de Moya], that [1,460 days] was not an unrealistic time.” Because there was competent evidence AWD had the resources and a plan to complete the Project in the 1,460 days, its contract time proposal was aggressive, realistic, and responsive to the RFP. AWD’s Financial Proposal FAM also challenges the “Pass” grade DOT awarded AWD on its Financial Proposal. It argues (1) DOT failed in not reviewing FAM’s financial proposal; (2) AWD’s original financial proposal was non-responsive; and (3) DOT improperly allowed AWD to supplement information to its original financial proposal. Section VI, M., of the RFP addresses the financial requirements of the RFP and the documentation that must be provided by bidders. The financial evaluation is a two-step process with an initial Financial Proposal to be submitted on the due date for the price proposals. After the PSC chose a BVP, Mr. Corbett and his staff was also responsible for reviewing a final letter of commitment or credit provided by the DB Firm, which was due 15 days following the Department’s posting of its Intent to Award. Mr. Corbett and his staff conducted the initial financial review for this procurement after the public meeting, announcing the technical scores, price proposals and contract times. The Department was to give the highest scoring bidder either a pass/fail grade, which was relayed to the PSC to make its final decision. During this period, the RFP specifically allowed Mr. Corbett to obtain additional financial information. It states: The Department’s evaluation of a Financial Proposal is solely for the benefit of the Department and not for the benefit of the Design-Build Firm, any entity related thereto, the public or any member thereof, nor create for any third party rights. . . . The Departments evaluation of each Financial Proposal will be on a pass/fail basis. Analysis of the Design-Build Firm’s Financial Proposal by the Department will include, but not be limited to the following: * * * d. Review of the Lender Letter(s) of Commitment or Demonstration of Line(s) of Credit to determine if it meets the financing needs established in the Project Financial Plan. * * * The Department reserves the right to request any additional information or pursue other actions required to meet its obligations to complete the financial due diligence. (RFP at 70.) As an initial matter, although Mr. Corbett did not conduct a concurrent pass/fail review of the financial proposal submitted by FAM (or the other bidders who made it to Phase IV), nothing in the RFP required the Department to review and assess the financial proposals of all the bidders. FAM asserts by failing to have its financial proposal evaluated, the PSC was deprived of the option of awarding the contract to FAM. However, if the PSC had opted not to award the contract to AWD despite its status as the highest scoring bidder, nothing in the RFP would have precluded the Department from initiating a pass/fail review of the FAM financial proposal at that point to assess FAM’s financial viability for the contract award. The Department did not err in evaluating only the highest scoring bidder, AWD. Regarding AWD’s responsiveness to the financial requirements of the RFP, AWD timely submitted its financial proposal to DOT on August 24, 2017, which included a preliminary letter of commitment (“PLOC”) from BankUnited. According to the RFP, the PLOC was required to contain the following information at a minimum: The lender was interested in providing financial support for the project; The lender had reviewed the financial requirements of the RFP; The amount of financial support the Lender intended to provide (no minimum amount was required by the RFP); Any special conditions to the PLOC. After AWD was ranked as the highest scoring bidder, Mr. Corbett and his staff conducted DOT’s initial review of AWD’s financial proposal. There is no dispute that DOT had the right to request any additional information or pursue other actions required to meet its duty of due diligence. The evidence established the original financial proposal met the minimum requirements of the RFP, but DOT requested additional assurances and clarification regarding its PLOC, which AWD provided. As Mr. Corbett explained, AWD’s Financial Proposal was responsive to the RFP requirements, but he had questions relating to the PLOC. Q.: And so this determination of responsiveness was made after you had the original financial proposal, Archer Western- de Moya, the first supplemental proposal and a second supplemental proposal that we just went over, correct? A.: So I mean, there is responsiveness and there is pass/fail, and I think that’s where we have to explore a little bit more. The letter states responsive, meaning it meets the minimum requirements. And then there is the pass/fail, which I don’t know why I didn’t address pass/fail, why I didn’t say it’s a pass in the letter. But the pass came at that point, too, yes. * * * So my answer is it wasn’t an additional proposal, it was--the original proposal was what was evaluated for responsiveness. We asked for additional assurances to make sure they were headed towards a path of getting the resources necessary to finance the project. So the determination was made after receiving all that information. It is evident on the face of the BankUnited PLOC that it is responsive, as it complies with the following minimum RFP requirements. BankUnited confirmed “its interest in providing financing” for the project. BankUnited stated it “has taken careful consideration to review and understand the financial elements of the Project.” BankUnited specified it was “prepared to provide a credit facility up to” $125 million; and the $125 million credit facility consists of $75 million from BankUnited and another $50 million from other participating banks. It is this reference to “other participating banks” that triggered Mr. Corbett to request further information. Attached to the PLOC was a term sheet from BankUnited that sets forth the conditions for its $125 million credit facility. Although FAM contends that the BankUnited PLOC is nonresponsive because BankUnited is only committing to provide $75 million of the $125 million credit to AWD, the evidence at the hearing established BankUnited was proposing to provide a single credit facility totaling $125 million, some of which BankUnited may obtain through group or a “pool” of lenders. The financial proposal was that BankUnited would be the lead arranger of multiple banks participating in the “lending pool.” Nothing in the RFP prohibited this type of “pool,” and the testimony at the hearing established DOT has accepted this kind of loan structure in the past. Where a single credit facility in the form of a loan pool is being proposed, there is nothing in the RFP that precluded BankUnited, as the lead arranger, from submitting the PLOC on behalf of all of the lenders that are or would be participating in the credit facility. Regardless, even if BankUnited’s PLOC is treated as offering a credit facility in the amount of $75 million rather than the full $125 million, this does not render the AWD financial proposal nonresponsive since the RFP merely requires that the PLOC state the “amount the Lender intends to lend,” and does not require what amount that should be. The RFP only states that the commitments “should meet the required amount [of gap financing] identified in the Project Financial Plan.” Obviously, the goal was to ensure the winning bidder had the ability to secure preliminary commitments equaling the amount it may have to put forward for completion of the Project because DOT would be making period payments, but not until after the DB Firm had incurred the expenses. Given BankUnited’s PLOC meets the minimum requirements of the RFP, AWD’s financial proposal was responsive. Moreover, the RFP allowed DOT to look beyond the bare minimum requirements of the RFP to obtain a higher level of assurance before finalizing a “passing” grade. Mr. Corbett also wanted the information in anticipation of questions that the PSC members may have. Specifically, the evidence established that on April 25, 2017, Ms. Chinapoo’s requested AWD to provide additional information regarding the proposed pooling loan being offered by BankUnited. In particular, Mr. Corbett sought “additional assurances” that BankUnited would be able to obtain the balance of the “pool” financing from other participating banks. On April 27, 2017, AWD responded to DOT’s request for additional assurances. In this response, AWD reaffirmed that BankUnited was committed to provide the Final Letter of Commitment that was required under DOT’s RFP. Because AWD’s compliance with the request for information was provided prior to the agency’s announcement that it intended to award the contract to AWD, these additional documents did not violate section 120.57(3)(f). On April 28, 2017, AWD also confirmed to DOT that it had taken steps toward finalizing the $125 million pooling credit facility described in the BankUnited PLOC. AWD also provided another PLOC from Private Bank indicating Private Bank also had an interest in participating in the BankUnited credit facility. Private Bank’s PLOC proposed that it would participate in BankUnited’s credit facility (rather than offering its own credit facility) and that its proposed $50 million loan to the $125 million pool would be the same as the conditions set forth in BankUnited’s term sheet. AWD’s April 28 response also advised that it was continuing to explore the possibility of having BankUnited provide a credit facility for the entire $125 million in gap financing needed. The details regarding this alternative credit facility were described in a letter from BankUnited that was attached to AWD’s April 28 response. Mr. Corbett admitted he considered the additional information received from AWD before announcing his final decision to “pass” the AWD financial proposal; and this information solidified his decision to give AWD a passing grade. Although hypothetically it is possible that had AWD provided different information, Mr. Corbett would have not been assured and may have reached a different result, this is not evidence of an error. Rather it is the essence of conducting “due diligence.” It is also true the additional information BankUnited provided included information that was not contained in AWD’s April 24 financial proposal. Based on this, FAM argues that the April 27 and April 28 responses constitute modified or amended financial proposals that were submitted after the RFP’s financial proposal deadline in violation of section 120.57(3)(f). However, FAM’s position must be rejected for several reasons. First, the RFP expressly authorized DOT “to request any additional information or pursue other actions” in furtherance of its financial due diligence. This clearly is broad authority that does not limit DOT’s inquiry to information that merely clarifies the financial proposal. Having failed to challenge this “due diligence” language in the RFP provision within the time permitted by section 120.57(3)(b), FAM has waived any objection to DOT’s use of this provision. Further, in both its April 27 and 28 responses, AWD reaffirmed that it was prepared to move forward with the BankUnited credit facility proposed in AWD’s April 24 financial proposal. Although AWD’s April 28 response included information from Private Bank, this information did not propose a new or different credit structure, it simply provided additional information regarding the pool structure expressed originally by BankUnited. Because the BankUnited credit facility indicates that there would be other lenders participating in its credit facility, the identification of Private Bank is consistent with, rather than amending or modifying, the financing plan presented in AWD’s financial proposal. Again, the purpose of the Financial Proposal and PLOC was not to obtain a final commitment from the DB Firm to a particular financing arrangement with a particular lender. Instead, the RFP only required the proposer to present its “preliminary” or possible financing plans so that DOT could evaluate the likelihood that the final award would go to a proposer that had the financial resources necessary to finish the project on time. Only after the contract was awarded would AWD be required to present DOT with its final financing plan in the form of a final letter of commitment. Nothing in the RFP required that this final financing plan be identical to the preliminary financing plan that was presented in AWD’s initial Financial Proposal. As such, the Department’s request for and consideration of the information from AWD regarding the BankUnited PLOC and the pooling credit structure did not violate section 120.54(3)(f), and was not clearly erroneous, contrary to competition or arbitrary and capricious. FAM also argues the Preliminary Term Sheet (“PTS”) attached to the BankUnited PLOC conflicts with the RFP, which specifies the circumstances under which money paid under the proposed contract may be assigned to a lender as security for a loan. The RFP provision at issue, referred to by the parties as the “Assignment Clause,” states in relevant part, as follows: Reimbursement shall be made to the Design- Build Firm by warrant mailed to the Project Specific Escrow Account [“PSEA”] using a unique vendor number sequence. The Design-Build Firm may, with the express written consent of the Surety(ies) and the Lender(s) Financier(s), sell assign or pledge any monies paid into the Project Specific Escrow Account by the Department in favor of third parties and including but not limited to the Design-Build Firm’s Surety(ies) and Lender(s)/Financier(s); however, any such sale, assignment or pledge must only attach to payments made by the Department after such funds have been paid by warrant mailed to the Project Specific Escrow Account, and no sale, assignment or pledge of any receivable from the Department is authorized nor will be permitted by the Department. (RFP at 63)(emphasis added). AWD submitted with its Financial Proposal the BankUnited PLOC, which had an attachment with the following relevant language: Seller [AWD] proposes to sell the right of certain future [DOT] payments . . . to one or more Purchasers in order to finance the Project. As established by Mr. Corbett and Department e-mails, the intent of the Assignment Clause was to make “each [contract] payment payable to the vendor/contractor executing the agreement.” In this regard, the RFP treats the deposit of funds into the PSEA as payment to the contractor. The assignment is permitted under the RFP’s Assignment Clause if AWD’s assignment of a contract payment to a lender does not divert DOT’s payments away from the PSEA to BankUnited. In other words, there is no violation if the funds continue to be deposited into the PSEA. If, however, the assignment gives BankUnited the right to receive payments from DOT before the payments are mailed to the escrow account, it violates the RFP’s Assignment Clause. There is no dispute that the BankUnited PTS purports to assign certain rights held by AWD to the BankUnited as collateral for the proposed credit facility. The terminology used to describe the assignment is non-specific and creates ambiguity as to what the particular right is that is being assigned or sold. For instance, there is language in the PTS indicating that AWD is selling or assigning its “right to payment from DOT” without describing what that right is. In order to know what “right to payment” is being assigned, it has to be determined what right to payment AWD would actually have under its DOT contract since AWD cannot sell or assign contract rights that it does not have. See Cole v. Angora Enters., Inc., 403 So. 2d 1010 (Fla. 4th DCA 1981). As established by the RFP and testimony at the hearing, AWD will have no right under the DOT contract to receive payments directly from DOT; rather, payments from DOT will first be deposited into the PSEA, which will then be available for disbursement to the DB Firm. Because AWD will have no right to direct payment from DOT (as opposed to indirectly through disbursement from the PSEA), AWD cannot assign or sell a right to direct payments from DOT to any lender, including BankUnited. Stated differently, the only “right to payment” that AWD can assign is its right to payment from the PSEA. Moreover, the plain meaning of the PTS establishes AWD does not intend to assign or sell to BankUnited the right to receive payments from DOT before the payments are deposited into the Project Specific Escrow Account. The PTS states as follows: The Seller [AWD] shall establish a project specific escrow account (the “Project Specific Escrow Account”) with the Escrow Agent. All payments payable by DOT under the Department Contract will be deposited into the Project Specific Escrow Account. (emphasis added). Consistent with this directive, the PTS requires the parties, including BankUnited, to execute the “DOT Project Specific Escrow Account Form” as part of their financing transaction. As established by the Department’s exhibits, the purpose of DOT Project Specific Escrow Account Form, which must be signed by both the bidder and lender (or in this case AWD and BankUnited), is to “irrevocably” request, authorize and direct DOT “to process, issue and transmit any and all future payments otherwise payable directly to [the DB Firm] to now be processed, issued and transmitted using DB Firm’s Project Specific Escrow Account . . . in lieu of DB Firm’s regular vendor account. . . .” This irrevocable request to DOT would be made in the name of AWD as the DB Firm contracting with DOT. As the lender, BankUnited’s signature on the form would indicate its consent and agreement “to be so bound by the entirety of the terms of [AWD’s] Request for Specific Escrow Account ” In other words, by signing this form, BankUnited will be agreeing to be bound by AWD’s irrevocable request to have all DOT payments deposited into the Project Specific Escrow Account. This means that, in accordance with the RFP’s Assignment Clause, BankUnited will be irrevocably agreeing not to receive payments from DOT before payments are deposited into the Project Specific Escrow Account. The arrangement between AWD and BankUnited does not violate the Assignment Clause and is, therefore, responsive. AWD’s Technical Proposal FAM challenges a number of aspects of AWD’s technical plan as being non-responsive to the RFP. Specifically, it claims AWD’s proposal violates the non-modifiable requirements for the number of lanes on certain portions of the Project and the lane width requirements. Basic/Continuous Lane Requirements for I-395 (Attachment A-33) As described earlier, AWD made substantial changes to the RFP’s concept plans for I-395 and SR 836 by proposing a two- tiered road formation made up of a two-lane viaduct on an upper level and a collector road system on the lower level. In order to pursue this design, AWD submitted an ATC proposal which was eventually approved as “ATC 12C”. The proposed viaduct would have two continuous lanes in each direction between the two major highway systems, SR 836 and I-395, without being impeded by local SR 836 traffic. The local traffic would be carried on a lower roadway or Collector- Distributor (“CD”) road underneath the viaduct. This lower CD road would also have one continuous lane in each direction, for a total of three continuous lanes in each direction. DOT determined that the viaduct concept and changes were an improvement over the RFP concept plan. As explained by Anthony Jorges, a traffic roadway engineer for BCC: First with the viaduct, by separating the traffic, it provides you unimpeded access to and from Miami Beach to the east, so it improves the emergency evacuation and improves access for emergency services. This addresses the event traffic issue that I brought up earlier. While you have events that may cause backups on the lower level for local traffic, we do have a separate level for the mainline that’s going to carry through. So you have those two lanes on top free at all times. So that was a significant advantage that we were looking at. And in addition to that, there is also the additional lane on the westbound to northbound--I am sorry, the eastbound to northbound movement, and that is taking it from the one lane that was in the RFP concept to the two lanes that Archer Western de Moya provided. That provides significant improvements to the operations of the mainline. It also provides safety benefits because now traffic that was queuing up on this ramp back on to the mainline is separated. Whatever traffic queues up here is separate from the mainline, and you won’t have the possibility for the speed differential, which contributes significantly to accidents. FAM contends that DOT erred in approving a technical proposal ATC 12C, because the number of continuous basic lanes on the highway was a non-modifiable requirement of the RFP. According to the testimony at the hearing and American Association of State Highway and Transportation Officials Policy on Geometric Design of Highways and Streets (“AASHTO Manual”), highway lanes can be grouped into two categories: basic lanes and auxiliary lanes.7/ A basic lane is essentially one that is designated and maintained over a significant length of a route, irrespective of changes in traffic volume and lane balance needs. The parties also referred to a “basic lane” as a “continuous” lane-–one that allows traffic to move over a “significant length of route” without having to change lanes. An auxiliary lane is essentially all lanes other than the basic lanes. It is defined as “the portion of the roadway adjoining the through lanes for speed change, turning, storage for turning, weaving, truck climbing and other purposes that supplement through-traffic movement.” As part of the 2010 I-395 PD&E, DOT found that I-395 lacks sufficient capacity “for system linkage” with SR 836 and other roadways due, in part, to the fact that it has only one continuous lane in each direction while the linking roadways have three. One continuous lane on I-395 was inadequate to provide the necessary access or linkage to the other road systems. Initially, the Federal Highway Authority (“FHWA”) approved a plan to address I-395’s deficiencies which added one additional continuous lane in each direction. On June 15, 2015, however, the FHWA approved the Final Re-Evaluation (completed by BCC) for the I-395 PD&E. This version included a design change allowing “three (3) continuous lanes in each direction to match 836 on the west and MacArthur Causeway on the east.” (emphasis added). DOT noted that this design change was supported by AASHTO design principles, including the basic lane concept. A concept plan for the I-395 project, which included the three continuous lanes and later became the RFP concept plan, was attached to the Final Re-Evaluation. Section VI of the Final Re-Evaluation addressed DOT’s commitments for the I-395 project, including commitment number 14: “[m]aintain and enhance continuity between SR 836/I-95 facility on the west and the MacArthur Causeway on the east.” DOT concluded on page 18 of the Final Re-evaluation that the addition of the third continuous lane on I-395 was necessary to support this commitment, stating: STATUS: [ ] Design Changes No. 1 and No. 7 describe the need to add an additional lane in each direction and widen a portion of the westbound MacArthur Causeway Bridge in order to accommodate the changes to the ingress and egress points of the Port of Miami Tunnel. These changes allow the I-395 project to be compatible with both roadways to the east and west and provide system continuity. DOT also noted that the I-395 project would be constructed concurrently with the SR 836 project, which was the subject of a separate PD&E that was completed in 2011. The SR 836 PD&E Study noted on page 6: More specific improvements potentially involve the provision of a minimum of six continuous (i.e., 3 directional) mainline lanes and the provision of parallel collector distributor facilities to separate the system to system traffic from the local to system traffic. This language establishes MDX also intended that there be three continuous lanes in each direction as proposed by DOT for the I-395 project. In short, DOT’s intent was to have three continuous lanes that would extend from the western boundary of SR 836 to the eastern boundary of I-395. This would allow a driver in any of these lanes to travel from one end of the project to the other without having to change lanes. As a result of the re-evaluation of the PD&E, BCC developed the language for the RFP that related to continuous lane requirements also found in Attachment A08. This language states, in relevant part: The Department has prepared a set of Reference Documents, which include Concept Plans. These plans convey an established set of design objectives to which the Design-Build Firm is required to accomplish in [the I-395] component of the project. The Department’s design objectives include: * * * Provide 3 continuous through lanes to the I-395 Mainline in the Eastbound and Westbound direction. The RFP also provided “[t]he Design-Build Firm shall not modify the following requirements with an ATC Proposal . . . Minimum basic number of lanes shown in Attachment A-33.” Mr. Jorge’s testimony was that the purpose of this language was to be consistent with the objective to provide three continuous lanes in each direction on I-395 to and from the Signature Bridge. The reason the word “minimum” was included in there was we wanted to make sure that we were getting at least three lanes in each direction, and that is the intent behind having the word “minimum.” We did understand that there would be a possibility for changes. But we wanted to make sure that we had at least three lanes in each direction. Attachment A-33 is titled, “I-395 Lane Schematic” and includes information relating to the number of “basic lanes,” “auxiliary lanes,” and the “direction of lanes” at various points of entry via connector roads and ramps onto I-395. For the Signature Bridge, Attachment A-33 has a footnote that states, “The Signature Bridge Shall Accommodate a Minimum of Four 12’ Lanes in Each Direction[.]” The plain reading of Attachment A-33 in the context of the RFP is that the three continuous or basic lane requirements applied to the roadways, but that the Signature Bridge was required to have four continuous lanes. On its face, Attachment A-33 is a schematic drawing that shows all of the lanes in the RFP concept plan for I-395. Although four of the lanes depicted in Attachment A-33 are identified as auxiliary lanes, the rest are identified as basic lanes. However, absent is any indication of some “minimum” number of basic lanes that must be maintained and that cannot be altered through the ATC process, except at one location, which is at the Signature Bridge. For that specific location, Attachment A-33 states that there must be a “minimum of four 12’ lanes in each direction.” (emphasis added). The fact that a minimum is specified at one location on Attachment A-33, but not others, is an indication that DOT did not intend to establish a minimum for other locations on the schematic. Indeed, if DOT had intended for all basic lanes depicted at each location to be the minimum number of lanes for that location, then there would have been no point to including a specific note to express that the number of lanes at the Signature Bridge location was a minimum of four lanes. Mr. Jorges confirmed that this language requiring four lanes in each direction in Attachment A-33 applied only to the Signature Bridge. Q.: And what is the minimum number of basic lanes that there need to be at that [the Signature Bridge] location? A.: Four. Q.: And is a minimum number of basic lanes indicated on attachment A-33 at any other location? A.: No, it’s not. Q.: Can you explain how indicating a minimum number of lanes at the signature bridge is consistent with the PD&E? A.: The PD&E called for three lanes in each direction of I-395, so at the signature bridge, you have 16 a situation where you have the three lanes from I-395 plus the one lane from the eastbound connector, and that’s how we arrived at the four. Like I mentioned before, it was beyond the minimum three that we were expecting, and that’s why we felt it was necessary to identify minimum for that specific location. * * * Q.: Do you have a view or an opinion as to whether or not it would make sense to have a minimum basic number of lanes at every location that’s depicted on A-33? A.: Well, if every lane there was designated as a minimum requirement, there would be no room for any sort of modification or changes by the team, so it essentially eliminates any possibility for innovation and really negates the design- build process. Q.: Can you explain whether or not that would be consistent or inconsistent with the objective of the RFP? A.: It’s--the attachment is consistent with the objectives. One of the key objectives was to have three lanes in each direction. And there is other objectives stated, but they are not specific as to the number of lanes. Although Petitioner’s roadway engineer offered its own interpretation of the Attachment A-33 and the RFP language regarding continuous lanes, Mr. Jorges’ testimony was more reliable and convincing. Mr. Jorges was familiar with the history of “continuous lane” requirements and the reasons for including that requirement in the RFP. He and others from BCC were involved in drafting the concept plans and the RFP language that included the “three continuous-lane” requirement in the RFP. In reality, while the RFP stated the proposals were to “adhere to the number of lanes” in the concept plans, each bidder also had the option of pursuing an ATC that would allow it to deviate from this requirement. The purpose of the ATC process was to encourage the proposers to offer innovative solutions or an approach that was equal to or better than the RFP concept plans or other requirements in the RFP. The viaduct design offered by AWD was found to be “equal to or better” to the concept plan and thus meets the standard for issuing an ATC because (1) AWD’s ATC proposal does not preclude DOT from “meeting the Department Commitments,” which are defined to include the ones “listed in the PD&E, FEIS/ORS and any Reevaluations attached” and (2) AWD’s ATC proposal did not violate the Specific ATC Restrictions set forth in the RFP. Attachment A-33 plainly states there must be a minimum number of basic lanes at the Signature Bridge location only. FAM’s argument that every basic lane identified on Attachment A-33 should be treated as a “minimum” continuous lane that cannot be modified is rejected. The Department did not violate the RFP by issuing ATC 12C, and AWD’s proposal with this ATC is responsive to the RFP. Basic Lane Requirements for SR 836 (Attachment MDXA-02) FAM also challenges the number of lanes proposed by AWD for the MDX’s portion of SR 836 of the Project, which are established by attachment MDXA-02. Specifically, FAM argues AWD’s plan is “one basic lane short of the four basic lanes required by the RFP from Northwest 10th Avenue going eastbound through to I-395.” (FAM’s PRO, p. 16 at para. 45) The issue to be determined is whether the RFP and MDXA-02 requires four continuous lanes for this portion of the Project. Unlike Attachment A-33, Attachment MDXA-02 is not a schematic of all the lanes on the SR 836 concept plan. Instead, Attachment MDX-A02 contains only “typical sections” or a view of a cross-section (not a linear) of the roadway at a particular location. It is not possible to determine from only a cross- section view of a segment of the roadway whether any of the lanes are continuous over a significant length of SR 836. Thus, Attachment MDX-A02 does not reveal which lanes on SR 836 are basic or continuous. Although Mike Madison, FAM’s roadway engineer, testified it was “possible” by reference to the typical sections “to determine what the basic lane requirements are for State Road 836 even if they are not identified as basic lanes on those typical sheets,” he did not rely on (or even refer to) Attachment MDX-A02. Instead, he relied on the RFP concept plan and the industry definition of “basic lane.” The RFP’s SR 836 concept plan referenced by Mr. Madison does identify which lanes are continuous. Again, the concept plans were to serve as reference documents for proposers to build off of and improve. The SR 836 concept plan serves as “general information only,” except as “specifically set forth in the body of” the RFP. Regardless, both parties offered evidence that AWD’s SR 836 proposal includes three basic or continuous lanes. Mr. Jorges’ testimony established the SR 836 concept plan has three basic lanes on the mainline and no basic lanes on the adjacent collector ramp. Instead, the fourth lane that FAM claims was necessary and non-modifiable was actually an auxiliary lane, not a basic lane. The evidence established the “fourth lane” in question is a CD road. Although a CD road can be a continuous lane, here it was not. In the concept plan, the CD road merely collects traffic from Northwest 12th Avenue, which it then distributes to I-395 without providing any access to or from SR 836. Because the CD road on the concept plan does not serve traffic that originates from SR 836, the concept plan’s CD road does not serve the function of a continuous or basic lane for SR 836. Further, the alleged “fourth lane” on the RFP concept plan’s CD road is not continuous and, thus, cannot be considered a “basic” lane. Mr. Madison admitted the concept plan’s CD road does not originate at the western boundary of the SR 836 project. Instead, the concept plan’s CD road originates at Northwest 12th Avenue, nearly halfway between the Project’s western and eastern boundaries. Thus, traffic cannot navigate the length of the SR 836 project on this fourth lane without changing lanes as required by the PD&E. Hypothetically, as explained by Mr. Jorges, a driver would not have access to a continuous lane on the concept plan’s CD road; on the concept plan, a driver entering the CD road via the northbound Northwest 12th Avenue entrance cannot reach the interchange and I-395 without shifting to another lane. After the interchange, this same driver would be forced to shift to another lane again to reach the MacArthur Causeway. By contrast, a driver accessing AWD’s CD road at the western boundary of SR 836 would be able to reach the MacArthur Causeway with no lane changes. Finally, as noted above, the Final Re-Evaluation for the I-395 PD&E proposed the addition of a third continuous lane to I-395 so that I-395 would have “three continuous lanes to match 836 on the west.” (emphasis added). The goal of the I-395 project was therefore symmetry in the number of basic lanes to improve linkage between the I-395 and SR 836 systems. The RFP required three basic or continuous lanes for the MDX portion of SR 836. AWD’s proposal was responsive to this basic lane requirement. Minimum Lane Width Requirements FAM next contends AWD’s proposal is non-responsive because it reduces the lane width for the lane and ramps for the SR 836/I-95 interchange. There is no dispute AWD’s lanes were reduced by an ATC from 12 feet to 11 feet at the ramp in question, but at issue is whether the ramp is in the I-95 portion of the Project, which is modifiable (i.e., not subject to the ATC restrictions); or is in the MDX portion of the Project, which is non-modifiable. The RFP states that “services performed by the Design-Build Firm shall be in compliance with” DOT’s Plans Preparation Manual (“PPM”). (RFP at 77.) Included in the PPM is a 12-foot lane-width requirement. For that portion of the roadwork within the scope of the MDX project, the RFP states that the winning bidder “shall not modify” through the ATC process the “[m]inimum widths of mainline lanes and ramp lanes.” (RFP at 84.) However, pursuant to Addendum 11, this ATC restriction was removed from the RFP for roadwork that is part of DOT’s I-395 project. In ATC 12C, AWD indicated it would be reducing the lane width of the SR 836 west-north connector from 12 feet to 11 feet starting at the physical gore. A “gore” is the area where a ramp joins the mainline or where two streams of traffic converge. Although there was testimony about a “theoretical gore” as opposed to a “physical gore,” engineers use the physical gore to mark the point where the ramp ends and the highway begins. In this case, AWD, through ATC 12C, sought to narrow the width of the traffic lanes at the point where the northbound ramp physically joins and transitions onto I-95. According to FAM’s roadway engineer, this reduction in the lane width is necessary because this ramp connects eastbound SR 836, which has 12-foot lanes, with northbound I-95, which has 11-foot lanes. The evidence establishes the portion of the connector road at issue is not part of the MDX project because it is owned and maintained by DOT, not MDX. This is confirmed by the fact that DOT owns the Northwest 17th Street Bridge (Bridge ID 870369), which is on the connector road to the south of the lane-width reduction area. DOT’s ownership of the lane-width reduction area is also consistent with DOT’s I-395/I-95 maintenance map, which shows that DOT (and not MDX) maintains this part of the roadway. FAM does not rely on the jurisdictional or maintenance maps, but rather relies on two documents in AWD’s ATC 12C application in which AWD referred to “836” as the applicable “State Road Number” and “MDX” as the “Approving Agency” for the proposed lane-width reduction. FAM also noted that AWD used station markers referring to SR 836 to identify the lane-width reduction area. However, as confirmed by the attachments to the RFP, including the DOT maintenance maps and DOT’s bridge inspection report, AWD was mistaken that MDX owned this segment of the roadway. This does not make DOT’s granting of the ATC erroneous. Moreover, FAM offered no document prepared by either DOT or MDX, including the RFP itself, which established MDX’s jurisdiction over this portion of the roadway. Here, the lane-width reduction occurs north of the physical gore, which is the point where the lanes originating from the ramp become physically connected to the lanes on the existing highway, I-95, via pavement that lies between the converging lanes. For safety purposes, according to the AASHTO Manual, once a roadway becomes physically connected to the highway, it is good engineering practice to design the roadway to match the criteria for the highway (e.g., 11-foot lanes) rather than to continue using the ramp criteria (e.g., 12-foot lanes). Even FAM’s roadway engineer acknowledged that, at some point before reaching I-95, the lanes joining I-95 from the connector road must transition from 12 feet to 11 feet to match the I-95 lanes, and that good engineering practice requires that this transition be done gradually rather than “suddenly.” He conceded that the lane-width transition proposed by AWD was reasonable, but disagreed whether the ramp ended at the physical or theoretical gore point. Q.: Right. You agree with me that at some point the lanes that are coming in to I-95 have to transition from 12 to 11 to match? A.: They would have to at some point. Q.: You can’t just go from 12 and all of a sudden have an 11-foot lane, right, that’s bad engineering practice? A.: Yes. Q.: As a matter of fact, the PPM won’t let you do it that way and AASHTO, too, you’ve got to have a transition? A.: Correct. Q.: Okay. So we are not questioning the reasonableness of having a transition? A.: Reasonableness, no. Q.: Okay. So I think to figure out the disconnect again, do you think the ramp doesn’t end at the gore? A.: No, it ends north of the gore, the other side of the gore point. Q.: But you just said there are two points. A.: Theoretical gore points. Q.: You believe the ramp ends at the theoretical gore point? A.: Yes. At the same time, FAM offered no evidence to show that it would still be possible to comply with the gradual transition requirement in the PPM and AASHTO if the lane reduction were delayed until after the theoretical gore when there is no longer any pavement separating the 12-foot lanes from the connector road and the existing 11-foot I-95 lanes. Because MDX neither owns nor maintains that part of the roadway where the lane is narrowed to 11 feet, this road segment is not within MDX’s portion of the Project or jurisdiction. Because the portion of AWD’s proposed lane narrowing for the ramp to I-95 was in the Department’s I-95 jurisdiction, it was modifiable. Therefore, AWD’s ATC proposal with the lane-width reduction was responsive and also a reasonably safe way to transition traffic to I-95. FAM’s Proposal Prior to and at the hearing, AWD argued FAM’s proposal was non-responsive to the RFP and to DOT’s regulations in a number of ways: (1) FAM’s engineer of record, FIGG-WGI, was a joint venture and, as such, could not work on the Project; FAM’s bridge architect, Linda Figg, was not qualified to serve in that capacity; (3) FAM’s Financial Proposal lacked the requisite audited financial statements; and (4) FAM’s technical proposal was inconsistent with the RFP requirements. FIGG-WGI, Inc. First, AWD claims FAM’s designation of FIGG-WGI as an engineer of record violates Florida Administrative Code Rule 14- 75.003(2), which states as follows: (2) The Department shall not recognize joint ventures for purposes of qualifying consultants to work for the Department. Each individual or firm will be annually qualified based upon individual or firm capability. FAM designated in its Letter of Response both “FIGG Bridge Engineers, Inc.,” and “Wantman Group, Inc.” as two subcontractors as part of the FAM team. Later, however, FAM designated FIGG-WGI as FAM’s “Lead Design Firm.” Prior to submitting its Letter of Response, David Wantman asked DOT what information a design joint venture needed to submit to receive DOT approval to participate in this procurement. Carla Perry, a DOT procurement manager, was responsible for the prequalification process for this RFP. She informed FIGG-WGI engineering joint ventures “are not recognized” and that WGI would need to be designated as the engineering firm instead of the joint venture. She suggested the following: The foreign firm could sub to the Construction JV (or to Wantman), but the Engineering JV you referenced below would not be recognized for purposes of fulfilling the technical qualification in the engineering work types, and would be found non-responsive. . . . FAM’s position at final hearing and in its PRO was that FIGG–WGI was not a “legal joint venture.” This position is contrary to the evidence in FAM’s technical proposal noting FIGG–WGI was “organized as a fully integrated, single-purpose entity, which is the engineering firm of record” and the testimony at the hearing establishing FIGG-WGI was formed for legal reasons to insulate its members (Figg Engineering and Wantman) from third-party liability on large construction projects. FIGG-WGI is a joint venture and its participation in the Project, had FAM been chosen, would have violated DOT’s rules regarding what type of business structures can work on DOT projects. The violation, however, was curable. The RFP allows changes in designated key personnel and “teaming arrangements” subject to the Department’s approval. Approval of changes would be based on “whether or not the proposed substitutions in Partner/Teaming Arrangements are comparable to the Partner/Teaming Arrangements identified in the Letter of Response and/or Technical Proposal.” Here, the evidence establishes that the members of the joint venture are both individually prequalified to do work for DOT. In reality, their employees are the same employees of the joint venture which would have been working on the Project had FAM been chosen as the BVP. Moreover, the testimony at the hearing established that if FAM was chosen, both Figg Bridge Engineers, Inc., and Wantman Group, Inc., would have individually contracted with FAM in whatever corporate form would have been required by DOT. The RFP “Waiver or Irregularities” also provides FDOT may waive irregularities in proposals “where such is merely a matter of form and not of substance, and the correction . . . of which is not prejudicial to other Proposers.” Here, AWD failed to sufficiently establish how it suffered (either potentially or actually) from FAM’s designation of FIGG-WGI, LLC. Nor was there any evidence of how AWD would have been prejudiced if FAM was allowed to substitute the individual members of the joint venture, if FAM had been chosen to be the BVP. Any error in designating FIGG-WFI, LLC, as its lead designer and engineer of record was a curable minor irregularity that would not have made FAM’s proposal non-responsive. Linda Figg Second, AWD makes the same arguments regarding Linda Figg’s designation as “Bridge Architect” as it did in its pre- hearing motions as to why FAM’s proposal was non-responsive: the RFP required bidders to designate a bridge architect; and Linda Figg, the person designated by FAM, is not an architect. FAM designated Ms. Figg in its Letter of Response as its “Lead Bridge Architect.” Ms. Figg is not licensed as an architect with the State of Florida under chapter 481, Florida Statutes, (Architecture, Interior Design, and Landscape Architecture) nor is she licensed in any other state. The RFP is silent as to the qualifications of a bridge architect. Nothing in the RFP indicates the designated bridge architect must be registered or licensed; nor does it require the designated bridge architect to meet specific educational or other qualifications. No evidence was provided at the hearing as to how the Department defined “bridge architect.” In fact, FDOT did not join with AWD in this argument. Nor was there evidence at the hearing establishing the industry standard for defining a “bridge architect.” Merriam-Webster defines “architect” as “a person who designs buildings and advises in their construction.” Architect, Merriam-Webster Online (2017), https://www.merriam- webster.com/dictionary/architect (accessed on February 23, 2017). Ms. Figg meets this definition of “architect.” Moreover, Figg Engineering is prequalified by DOT and has available professional staff (other than Ms. Figg) who are licensed architects and/or professional engineers. As such, FAM’s designation of Ms. Figg as its Lead Bridge Engineer did not make its proposal non-responsive. FAM’s Bridge Design – Load AWD also asserts FAM’s Signature Bridge proposal violates the RFP’s non-modifiable requirement that “[a]ll Signature Bridge components shall be part of the structural system that carries bridge Dead Load (DL) and Live Load (LL).” “Dead load” is the actual weight of the bridge structure; “live load” is the added weight of the traffic traveling on the bridge. As explained at the hearing, “components” are the necessary parts of the bridge: superstructure (what cars drive on); substructure (pylons or columns); and foundation (what the pylons and columns are set on). In contrast, railings are safety devices and considered “appurtenances” as opposed to “components.” FAM’s bridge design contained two rotating disks, each on top of an extended arm. Bridge components that do not serve a purpose or carry any weight were not allowed by the RFP, and bidders could not obtain an ATC to change this requirement. FAM’s own bridge engineer, Denny Pate, testified that nonstructural parts of the bridge were prohibited by the RFP. Q.: Can you give the judge an example of a nonstructural bridge component that would be noncompliant under the RFP? A.: The RFP requirement, obviously, is--in my opinion, is saying: We don’t want fake bridge components. For example, there is a project development over here just west of Port St. Joe on the coast there called WindMark. And as part of their entrance to their development, they have a very standard short-span girder bridge, but they have put up steel, fake steel trusses along the sides that basically add interest to the bridge, make it visually more unique, but they don’t do anything. They are not structural. Mr. Pate went on to testify that the rings on the tops of FAM’s proposed bridges do not carry any live load. They were not necessary and could be removed without any effect on the bridge’s structural integrity.8/ This was consistent with the testimony of John Corven, AWD’s bridge engineering expert. Mr. Corven explained the loads in FAM’s Signature Bridge proposal picked up by the cables into the pylon did not find their way into the single arm with a rotating disc and, thus, the arm and disc would not be part of the load-carrying capability of the bridge. The inclusion of non-load bearing components was more than a minor irregularity. One could imagine a scenario where an aesthetic design may compromise safety concerns. More importantly, failure to adhere to the restriction requiring only load-carrying components had the potential of prejudicing other bidders who complied with this requirement from coming up with more eye-pleasing bridge designs. Mr. Corven testified: Q.: As an engineer, what would be the impact if that restriction were lifted in terms of the work you are doing from an engineering standpoint, meaning if you no longer had to worry about dead and live load components, how does that impact how you go about designing a structure? A.: Well, I think it would free the engineer to more artistic and aesthetic expressions for elements that might capture a visual appeal but not be functional structurally. Although the rotating ring may have been aesthetically and architecturally interesting, it was prohibited by the RFP. As such, FAM’s Signature Bridge design with the arm and rings was non-responsive. Twin Structures AWD also asserted FAM’s Signature Bridge proposal violated the RFP’s prohibition against “twin structures” found in the Aesthetic Manual for the RFP which states: The signature bridge shall be two fully independent bridges that are made to look like one form (e.g. twin basket handle bridges void of a visually unifying element will not be allowed). This structural autonomy is necessary because the EB and WB structures will be constructed sequentially, yet the stakeholders have insisted upon the appearance of one aesthetic entity. Elsewhere the RFP notes, the bridge proposals must adhere to the following minimum requirements: “No twin structures.” The common sense meaning of “twin structures” is two bridges that are identical or exact duplicates. Simply looking at the design, FAM’s proposal’s eastbound and westbound structures are not identical, but rather inversely similar. Moreover, as established by Mr. Pate’s unrefuted testimony, there were a number of “non-twinning” aspects of FAM’s Signature Bridge proposal. The westbound bridge runs straight, whereas the eastbound bridge contains a horizontal curve. The towers are mirrored so that the features are not in the same direction. The features on the two structures are staggered. There are a different number of spans in the overall length of the structures. The overall structures are different lengths: Bridge 8 (eastbound) has a signature bridge length of 980 feet and 1,432 feet of overall length between the spans; and Bridge 9 (westbound) has 977 feet for the Signature Bridge and 1,207 feet in overall length. FAM’s proposed Signature Bridge design did not contain twin structures prohibited by the RFP requirements. Constant Girder Depth AWD also challenges FAM’s Signature Bridge as being non-responsive to the Aesthetic Manual’s requirement “the signature bridge shall have a constant depth superstructure.” The language of the RFP does not include this reference, but does require “[g]irder depth on each side of the expansion joints shall be the same, i.e., no steps allowed.” As explained at the hearing “girder depth” is “basically what your eye sees as the distance from the top to the bottom of the roadway surface.” Both AWD’s and FAM’s bridge engineering experts testified the girder depth on each side of the expansion joint was the same in FAM’s Signature Bridge design and complied with the RFP language requiring equal girder depth on each side of the expansion joint. FAM’s Signature Bridge was responsive to the RFP’s girder depth requirement. MOT Plan Next, AWD contends FAM’s MOT plans are non-responsive because (1) the plans do not illustrate pedestrian access; (2) the plans do not have the requisite number of traffic lanes; and (3) the plans contain two reverse curves without a tangent. The RFP requires the following: The Construction Phasing/Sequencing Plan shall provide information regarding Traffic management for Total Project . . . [and] shall include a narrative describing the means by which the Design Build Firm will move vehicular, bicycle and pedestrian traffic along the Project Limits. The evidence established FAM provided a narrative description of pedestrian access in its technical proposal and submitted MOT plans that allow for the same level of pedestrian access as exists in the present condition. As such, FAM met the pedestrian access requirements of the RFP, and its MOT was responsive to the pedestrian access requirements. AWD next contends that the RFP requires that three lanes of traffic be maintained during all MOT phases because that is what exists in the present condition. However, DOT clarified in writing during the Q&A phase that proposers need only provide the same number of lanes shown in the RFP concept plans during MOT. The evidence at the hearing established FAM provides the same number of traffic lanes shown in the Concept Plans, and as such its MOT plans are responsive to this requirement. Finally, AWD contends FAM’s MOT plans are deficient because one of the ramps (Ramp D1) contains two reverse curves without a tangent. A tangent is the straightaway leading a driver in a certain direction when he or she comes around the curve. Although the testimony surrounding the curves in the MOT plan was highly technical, Mr. Madison, FAM’s roadway engineer, convincingly explained that the two reverse curves in FAM’s MOT are not super-elevated or abnormally cross-sloped. A cross-slope is the pitch of the roadway from one side to the other; a normal cross-slope is two percent. The testimony at trial established FAM’s MOT plan contains two curves that are two percent in one direction at all times and meet industry safety standards. Thus, they do not require a tangent. Regardless, even if the curves required a tangent, there was no evidence that failure to include this tangent put other bidders at a disadvantage. Finally, if Ramp D1 required a tangent, the plans AWD complains about are preliminary in nature. During the Q&A phase, DOT notified FAM that its Ramp D1 design needed a tangent between two curves or otherwise needed to be redesigned to meet the standards. FAM agreed to do so. Because this was a “modifiable” aspect of the MOT, had the PSC selected FAM as BVP, adjustments and corrections to Ramp D1 could be achieved per FAM’s commitment to comply with the RFP in its Confirmation Letter. FAM’s MOT plans were responsive to the RFP, and any need for an adjustment to include a tangent could have been provided in the final plans as allowed and anticipated by the RFP. Audited Financial Statements AWD argues FAM’s Financial Proposal was non- responsive because it did not contain audited financial statements from one of the members of its joint venture. The winning bidder was required to self-finance portions of its work as it would not receive full payment from DOT until after it had incurred costs for design and construction. This type of structure is often referred to as “gap financing.” The RFP required each bidder to submit a Financial Proposal “so the Department can be assured that the Design-Build Firm has sufficient financial resources to construct the Department Project within the allotted Contract Time, based on the Cash Availability Schedule.” To satisfy itself that the entity who would ultimately design and build the Project was able to finance the labor and construction costs, the Department required each bidder to provide a financial proposal that contained, among other things, audited financial statements. The RFP required the following in the Financial Proposals: The minimum required documents the Design- Build Firm must submit to the Department as part of the Design-Build Firm’s Financial Proposal shall include, but may not be limited to, the following: . . . Financial Statements of members of the Design-Build Firm or any partners of the joint venture that make-up [sic] the Design-Build Firm that will be responsible for the repayment of financial support related to the Department Project or directly provides financial support related to the Department Project. Lenders that are not members of the Design-Build Firm or partners of the joint venture that make up the Design-Build Firm are not required to provide Financial Statements. Financial Statements shall include: For the most recent two (2) fiscal years in which audited Financial Statements are available, audited Financial Statements prepared in accordance with U.S. Generally Accepted Accounting Principles. Required Financial Statements shall include: Opinion Letter (Auditor’s Report); Balance Sheet; Income Statement; Statement of Retained Earnings or Changes in Stockholders Equity; Statement of Cash Flows; and Notes to Financial Statements. * * * If audited Financial Statements are unavailable for the most recently completed fiscal year, unaudited Financial Statements, prepared in accordance with U.S. Generally Accepted Accounting Principles, shall be provided for such fiscal year. An affirmative statement shall be provided indicating that the Financial Statements for the most recently completed fiscal year are still being audited. These unaudited Financial Statements shall be certified as true, correct and complete by the Chief Financial Officer or treasurer of the entity. Requirements for unaudited Financial Statements are the same as for audited Financial Statements, except an Opinion Letter (Auditor’s Report) is not required. (RFP at 67–68.) As described in the RFP, the RFP required a joint- venture bidder to submit the audited financial statements of each of its members in accordance with U.S. Generally Accepted Accounting Principles (GAAP); if a partner of a joint-venture member would provide financial support for the project, that partner’s audited financial statements were required to be submitted as well. There is no dispute FAM did not and could not include any audited financial statements for one of its members, FEI, because FEI is not audited. There is also no dispute that FEI will be responsible for the repayment of financial support related to the Project or would directly provide financial support related to the Project. FAM did not qualify for the alternative included in the RFP for providing audited financial statements when such statements are unavailable for the most recent fiscal year. Moreover, it was clear from the testimony put on by FAM that such audited statements could not have been provided in a timely matter, even if the Department had allowed FAM to supplement its financial proposal. Brian Smith, the assistant corporate controller for Fluor Corporation, testified if FAM had been selected BVP and the Department had requested the audited financial statements for FEI, it could not have provided them until well after the May 18, 2017, date set forth in the RFP for selecting the BVP. Q.: Had you been asked by DOT for an FEI audited financial statement for 2016 back in April of 2017, what is the soonest that FEI could have provided that information to DOT? A.: An audit of this nature would generally take four to six weeks, on an expedited basis, probably four weeks. FAM counters it provided equivalent information and thus there was no effective harm. The RFP, however, specifically requires audited financial statements, not the information in those statements. This seems especially prudent given the size of the Project and when, as in this case, the bid was awarded as a public–private transportation facility under section 334.30, Florida Statutes, which emphasizes the financial health of bidders. Moreover, the failure to submit audited financial statements has been found to render a proposal non-responsive when such statements are required by an RFP. See Jani-King Gulf Coast Region v. Escambia Cnty. Sch. Bd., Case No. 16-2762BID, RO at 23 (Fla. DOAH Aug. 26, 2016) (explaining the importance of audited financial statements, noting they “provide a much higher level of assurance as to the validity of the financial information presented,” than unaudited statements). Nor can FAM satisfy the requirement for audited statements from FEI simply by submitting such statements from FEI parent corporation. See Consultec, Inc., d/b/a Gen. Am. Consultec, Inc. v. Fla. Dep’t of Admin., Case No. 91-5950BID, RO at 29 (Fla. DOAH Nov. 25, 1992) (finding submission of financial information from parent company failed to satisfy RFP requirement to provide audited financial statements and thus proposal was non-responsive). As explained in Consultec, FAM would have had an advantage had it not been required to provide such statements. Succinctly, . . . its failure to comply with the audited financial statement requirement of the RFP gave it an advantage not enjoyed by other bidders since by submitting the balance sheet of its parent company, as opposed to its own financial statements, HCPP effectively precluded any assessment of its own financial soundness. Id. As such, FAM’s failure to include the audited financial statements of FEI renders its Financial Proposal non- responsive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Petitioner Fluor-Astaldi-MCM, Joint Venture’s Amended Formal Written Protest, and affirming Respondent Florida Department of Transportation’s Notice of Intent to award to Intervenor Archer Western-de Moya, Joint Venture. DONE AND ENTERED this 10th day of April, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2018.
Findings Of Fact The Respondent, Diane Hashil, has been a toll booth attendant for the Harbormaster of the City of Clearwater since July, 1992. On or about April 2, 1993, she was given a Letter of Reprimand for speaking in a discourteous tone of voice to a customer passing through her toll booth on March 20, 1993, a Level 2 offense under paragraph 2, Guidelines for Disciplinary Action: "Discourtesy to persons with whom an employee comes into contact while in the performance of duties " On December 17, 1993, the City gave the Respondent written notice that she was being suspended for two days, effective December 21 through 22, 1993, on charges that she violated Rule 14, Section 1, paragraph (e), of the Civil Service Rules and Regulations of the City of Clearwater: "Has been offensive in his conduct or language toward his fellow employees, City officers, or the public." The specifications of the charge were: On November 11, 1993, Mr. Joe Lain, Water Safety Supervisor, in a memo to Mr. Held [the Harbormaster] and Mr. Hancock, related Ms. Hashil's continued unfriendly treatment of himself and other beachguards who pass through the toll plaza on a daily basis supervising Sand Key Park and Clearwater Beach. On November 17, 1993, Mr. Lee Achterhof, Lead Marine Facility Operator, wrote a memo concerning Diane Hashil's treatment of a customer. The customer lost quarters Ms. Hashil had given them and asked for more change. Ms. Hashil told them she had already given them change, turned her back on them and ignored them as traffic started backing up. This also is a Level 2 offense under paragraph 2, Guidelines for Disciplinary Action: "Discourtesy to persons with whom an employee comes into contact while in the performance of duties . . .." The guidelines provide for a letter of reprimand for the first such offense and a one- to four-day suspension for the second such offense. On the afternoon of Christmas day, December 25, 1993, a woman from Wesley Chapel named Sharon Kressl was driving her mother, Evelyn Campbell, and at least one friend sight-seeing on the Clearwater beaches. They became disoriented on Sand Key and found themselves approaching the Clearwater Pass Toll Bridge without money to pay the 75 toll. The Respondent was the attendant at the toll booth at the time. When Kressl tried to explain their predicament to the Respondent and ask to be allowed to turn around, the Respondent answered, in a manner considered by Kressl and Campbell to be curt and rude: "No. You have to pay and go through." She did not fully explain the City's policy that, after paying the one-way 75 toll and going over the bridge, they would be allowed to turn around and return across the bridge free of charge. She initially also did not explain the City's policy that someone without money to pay the 75 toll could agree to pay at a later date. When Kressl and Campbell asked if they could mail in the 75 , the Respondent got them an envelope and promise to pay that was pre-printed for that purpose. The Respondent got the car's license tag number to fill out the form and read them the part of it that said: "With my signature below, I do hereby agree that I was passed through the above mentioned toll facility without payment. I promise to pay $.75 within 72 hours or this slip will be turned over to the Marine Department for further action." Kressl, as driver, started to sign the form but saw that it was written for the signature of her mother, as owner of the vehicle, and signed her mother's name instead. After crossing the bridge onto Clearwater Beach, Kressl and Campbell realized that they could get home from Clearwater Beach without returning to Sand Key and that they did not have to turn around and return across the bridge. They drove across the bridge from Clearwater Beach to Clearwater and drove home along Alternate U.S. Highway 19. Both women were upset by what they considered to be the rudeness of the Respondent's curt manner. When they got back to their home in Wesley Chapel, Sharon Kressl decided to telephone a complaint. Kressl made at least two telephone calls that day, one to the police to get an address and telephone number for the supervisor of the toll booth attendants and one that by chance was answered by the Respondent, unbeknownst to Kressl. The Respondent told Kressl to call back the next morning to speak to a supervisor. The Respondent inquired as to the nature of the complaint. When Kressl explained it to her, the Respondent realized who Kressl was and that Kressl was complaining about the Respondent. After Kressl hung up, the Respondent wrote a memo denying any misconduct. Kressl made several telephone calls in the next several days trying to contact the Respondent's supervisor. Again, one of the calls was answered by the Respondent. This time, an argument ensued. The two women, in their testimony, gave diametrically opposed versions of the telephone call. The Respondent testified that she gave Kressl the telephone number of her supervisor, that the telephone call was conducted in a calm fashion and that, as soon as the Respondent identified herself to Kressl, Kressl hung up. Kressl, on the other hand, testified that, after the Respondent identified herself, a nasty argument ensued, during which Kressl threatened to have the Respondent fired, and the Respondent called Kressl a "bitch." It certainly would be a clear injustice if Kressl were lying about the telephone conversation. But, taking all of the relevant evidence into consideration, it is found that the two women did have an argument and that the Respondent did use the term "bitch" to describe either Kressl or her conduct. As for the incident on December 25, 1993, Kressl and Campbell assert that the Respondent was "discourteous" or "offensive"; the Respondent maintains that she was not. Those concepts are inherently difficult to define precisely. Gross discourtesy and grossly offensive conduct might be easy to recognize, but it is difficult to describe the precise borderline between acceptable manners versus manners that are discourteous and offensive. In addition, different people's perceptions of behavior may not be entirely objective. People can be overly sensitive and perceive as discourteous and offensive behavior that objectively is not; on the other hand, some people cannot recognize their own discourteous and offensive behavior and are oblivious to the effect it has on others. Bearing in mind these difficulties, it is found that, taking all of the relevant evidence into consideration, the Respondent's behavior towards Kressl and Campbell on December 25, 1993, was discourteous and offensive. It is found that she was curt and that she was not forthcoming in helping Kressl and Campbell resolve their dual predicament of not wanting to cross the Clearwater Pass Toll Bridge and not having the 75 to pay for the toll. She should have been more helpful and more polite.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Civil Service Board enter a final order suspending the Respondent without pay for three days. RECOMMENDED this 29th day of July, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1363 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-2. Accepted but subordinate and not necessary. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. 5.-6. Accepted but subordinate and not necessary. First sentence, accepted but subordinate and not necessary. The rest is argument or subordinate and not necessary. Argument or subordinate and not necessary. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. 1.-2 Accepted and incorporated. 3.-4. Accepted but subordinate and not necessary. Accepted and incorporated. Rejected as contrary to facts found and as contrary to the greater weight of the evidence that her "priors" "consisted mainly of" those things. Accepted that she was warned about those things, too, but subordinate and not necessary. Accepted but subordinate and not necessary. Rejected. (Her motivation was not established by the evidence.) Accepted but subordinate and not necessary. Rejected as contrary to facts found that they asked to "back up" or that she explained the "U-turn" policy. (She said they could not turn around or back up and that they had to pay the toll.) Otherwise, accepted and incorporated. 11.-15. Accepted but subordinate and not necessary. Last sentence, rejected as contrary to the greater weight of the evidence. (The Respondent thought it was Evelyn Campbell because that was the name she had on her paperwork and she thought the driver was Campbell.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence. (Other City employees also assumed that Campbell was telephoning because her name was on the paperwork.) Accepted and incorporated (although Campbell did speak to City personnel at some point in the process.) 19.-21. Rejected that they were lying. They may have been confused. It is believed, as found, that Kressl began to sign her own name, saw that the form required her mother's signature, and signed her mother's name (contributing to the Respondent's confusion who was who), but it is possible that she passed the form to her mother to sign, unbeknownst to the Respondent (likewise contributing to the Respondent's confusion who was who.) 22. Accepted but subordinate and not necessary. 23.-24. Accepted and incorporated. (After crossing the Clearwater Pass Bridge from Sand Key to Clearwater Beach, they went over the bridge from Clearwater Beach to Clearwater.) In part rejected as contrary to facts found (that they asked to back up); otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and not necessary. Rejected as contrary to facts found and to the evidence. Accepted but subordinate and not necessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P. O. Box 4748 Clearwater, Florida 34618-4748 J. Robert McCormack, Esquire Wiggins & McCormack 3040 Gulf-to-Bay Boulevard Suite 100 Clearwater, Florida 34619 Michael Laursen Secretary City of Clearwater Civil Service Board P. O. Box 4748 Clearwater, Florida 34618-4748
