The Issue Whether the Respondent's decision to reject the Petitioner's bid proposal for Contract No. E4A83, Financial Project No. 231494-1-52-01, State Project No. 99904-3404, is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Transportation is authorized to "enter into contracts for the construction and maintenance of all roads designated a part of the State Highway System . . . ." Section 337.11(1), Florida Statutes. On June 9, 1998, the Department's District Four office issued an Invitation to Bid in which it solicited proposals for the "installation of traffic monitoring sites on State Road 93 (I-75) and State Road 862 (I-595) in Broward County and on State Road 9 (I-95) in Palm Beach County." The project was identified as "State Project Number FM # 23149415201." One hundred fifty days were allotted for completion of the work. The work described in the Traffic Monitoring Site Plans, which are part of the Invitation to Bid, consists of installing traffic monitoring devices, referred to as loop-speed classification assemblies, in ten locations on the specified roadways. A loop-speed classification assembly consists of a piece of wire laid in a trench cut in the center of a lane in a roadway and attached to a computer on the side of the road. The loop sets up a magnetic field, which is broken when a car crosses the wire, and the car is counted by the computer. Installation of a loop-speed classification assembly involves cutting a six-foot- square trench in the pavement approximately three-eighths of an inch wide and two inches deep. The wire is laid in the trench, and the trench is filled with epoxy. It takes approximately an hour to make the cut and lay the wires. Pursuant to the site plans, two loop-speed classification assemblies are to be installed at each of the ten locations, and the assemblies are to be laid ten feet apart. Accordingly, the work zone needed to install two loop-speed classification assemblies is one lane, or twelve feet, wide and twenty-two feet long. One or more lanes of traffic must be closed whenever a loop-speed classification assembly is installed. An important aspect of the project specifications is maintenance of traffic, which involves placing traffic control devices on the roadway to divert traffic whenever a lane or lanes of traffic must be closed for installation of loop-speed classification assemblies. Signs, barricades, and flashing lights, among other devices, are placed in configurations that are established by the Department in a document entitled "General Information for Traffic Control Through Work Zones." This document includes both the number of barricades, and lights to be used to close a lane or lanes of traffic and their exact placement in the roadway, which varies with the speed limit and the number of lanes to be closed. The specifications in the Traffic Monitoring Site Plans provide that lane closures to create work zones for the installation of loop-speed classification assemblies can occur only between the hours of 10:00 p.m. and 6:00 a.m. Sunday night through Thursday night and that work may be done at only one location per night. According to the specifications, a lane or lanes of traffic can be closed to create a work zone only when all the labor and material are on site, and traffic control devices can be placed only at a location where work is actually in progress. The site plans require that traffic control devices be removed from the roadway when construction is not in progress and that the roadway be made safe for traffic before the devices are removed; that is, on Monday through Friday, all barricades and flashing lights put onto the roadway at 10:00 p.m. the previous night must be removed and all lanes of traffic must be open by 6:00 a.m., and the roadway must be in a safe condition before the lanes are opened to traffic. No work can be done on the project between 6:00 a.m. on Friday and 10:00 p.m. on Sunday, and no barricades or flashing lights may be placed on the roadway during this time, or at any time when work is not actually being performed. The District Contracts Bid Price Proposal form included in the materials provided by District Four in the Invitation to Bid specifies the pay item numbers for each component of work and material required for the project, plan quantities for each item calculated by the engineers in District Four, and the item description in words. The bidders were directed to include on the proposal form the unit price for each pay item and the total price for each pay item, calculated by multiplying the unit price by the plan quantities specified. Five companies submitted proposals for the project: Santa Fe Technologies, Inc.; Control Specialists Company; The Signal Group, Inc.; Transportation Safety Contract; and Designed Traffic Installation. Santa Fe Technologies was the lowest bidder at $166,805.20; Control Specialists Company was the second lowest bidder at $167,305. An award team composed of employees of the Department's District Four office reviewed the proposals submitted for the project and decided to award the contract to Control Specialists Company, the second lowest bidder, concluding that the prices included in its bid "adequately reflect the scope of work as presented." Even though Santa Fe Technologies was the lowest bidder for the project, the District Four award committee concluded that the prices submitted by Santa Fe Technologies "did not appear totally balanced to the scope of work as presented" with respect to Maintenance of Traffic pay items 2102-74-1, "barricade (Temporary) (Types I, II, VP & Drum)," and 2102-77, "high intensity flashing lights (Temp - Type B)," and with respect to Traffic Operations pay items 2660-70-124, "loop speed clas assem (F & I) (2 loop per lane) (4 lane)," and 2660-70-125, "loop speed clas assem (F & I) (2 loop per lane) (5 lane)." The award committee based its conclusion that the Santa Fe Technologies' bid was unbalanced on the following analysis: Item No. Average Price Other (4) Santa Fe Tech 2102-74-1 $ 0.52 $ 5.00 1/ 2102-77 $ 2.75 $ 40.00 2660-70-124 $3,180.59 $675.00 2660-70-125 $4,042.08 $675.00 The notes taken during the deliberations of the award committee, which accurately reflect the discussion, include the following: Low bidder - unbalanced MOT [Maintenance of Traffic] items loaded. (barricades, flashing lights) Incentive to look for delays. Doesn't appear to be "a good faith bid." loops - very, very low. - unrealistic Vote to award to second low bidder. Bid reasonable, fair. These remarks reflect the concern of the award committee with both Santa Fe Technologies' high unit prices for the Maintenance of Traffic pay items as compared with the average unit prices of the four other bidders and Santa Fe Technologies' low unit prices for the loop-speed classification assemblies as compared with the average unit prices of the four other bidders. Santa Fe Technologies specializes in traffic monitoring and has contracts with several states for the same type of work required for the project at issue in this case. For the past four years, Santa Fe Technologies has had a contract with the Department's Tallahassee office to maintain and repair traffic monitoring sites throughout the state. The manager of the Department's traffic data section, who administers the contract, considers Santa Fe Technologies an excellent firm with regard to its technical capability, and he believes that Santa Fe Technologies has done more than satisfactory work for the Department. The work included in the Traffic Monitoring Site Plans prepared by the Department's District Four office is virtually identical to that required by Santa Fe Technologies' statewide traffic monitoring contract with the Department's Tallahassee office. The unit prices in the proposal submitted to the Department's District Four office by Santa Fe Technologies in response to the Invitation to Bid were based upon, and similar to, the prices in its contract with the Department, including the prices for temporary barricades (pay item 2202-74-1), temporary flashing lights (pay item 2202-77), and loop-speed classification assemblies (pay items 2660-70-124 and 2660-70-125). Santa Fe Technologies also included similar unit prices for these items in a proposal it submitted in response to an Invitation to Bid issued by District Two for a project similar to the one at issue herein and was awarded the contract for that project. It has been the experience in District Four that, with respect to road construction contracts, cost overruns on maintenance of traffic items are very common. The Department pays the contractor the unit price for the quantity of barricades and flashing lights actually used rather than the estimated quantity included in the bid documents; payment is made on a "per each per day" basis. Consequently, District Four's concern regarding the "unbalanced" nature of Santa Fe Technologies' unit prices for these pay items is that the final pay quantity will increase and that, were Santa Fe Technologies to be awarded the contract, the Department would have to pay $3.00 for each additional unit for pay item 2201-74-1 instead of the $0.50 bid by Control Specialists Company and $40.00 for each addition unit for pay item 2201-77 instead of the $2.00 bid by Control Specialists Company. The award committee apparently reasoned that Santa Fe Technologies deliberately and in bad faith bid a high unit price for barricades and flashing lights, as measured against the average unit prices of the four other bidders, in anticipation of increasing the quantities of these pay items and reaping a windfall on the contract. The most common cause for increased final pay quantities for maintenance of traffic pay items in road construction projects is rain delays which add additional days onto the days allotted for completion of the project. Another cause for increased final pay quantities for maintenance of traffic pay items in road construction projects is the need to set out additional traffic control devices because of unexpectedly heavy traffic flow or other safety reasons. Neither rain delays nor safety concerns are relevant considerations in the context of the traffic monitoring project at issue herein. Crews cannot work on the roadways to install loop-speed classification assemblies when it is raining; pursuant to the terms of the Traffic Monitoring Site Plans, if work is not in progress at a site, no barricades and flashing lights will be set out at the site. 2/ Additionally, the Traffic Monitoring Site Plans specifically provide that "[a]t the discretion of the [Department's] engineer, if a lane closure causes extended congestion, the contractor shall be directed to re-open the closed lane(s) until such time as traffic flow has returned to an acceptable level." Finally, because the Department specifies the number of barricades and flashing lights to be used for lane closures and the precise placement of these devices, it is not likely that additional units will be needed for safety reasons since such concerns are considered by the Department in formulating its specifications for traffic control plans. Santa Fe Technologies included in its $3.00 unit price for pay items 2201-74-1 and 2201-77 the cost of labor to put out and take down the barricades and flashing lights, using a four- man crew, as well as the cost of the barricades and lights themselves. The unit price bid by Santa Fe Technologies is reasonable even though it is higher than the average unit price bid by the four other companies submitting proposals. The bid analysis also identified as unbalanced the unit prices included in Santa Fe Technologies' proposal for loop-speed classification assemblies, as noted above in paragraph 12. The notes of the award committee indicate that it viewed as "very, very low. - unrealistic" the unit prices Santa Fe Technologies bid on these pay items, as measured against the average unit prices of the four other bidders. The Department did not offer any direct evidence of the reasons for the award committee's concern that the unit prices bid on the loop-speed classification assemblies were substantially lower than the average bid of the four other bidders. It is not likely that the award committee was concerned about cost overruns on these pay items since the plan quantities of loop-speed classification assemblies are not subject to cost overruns because the planned quantities and locations are fixed and will not change as a result of site conditions, weather conditions, or other factors involving their installation. Santa Fe Technologies estimates that, at most, the cost of the material in a loop-speed classification assembly is $100. The remainder of the $675.00 unit price it specified for pay items 2660-70-124 and 2660-70-125 is the cost of labor for the actual installation of the loop-speed classification assembly, which, as noted above in paragraph 4, involves cutting a trench into the pavement six-feet square, three-eighths of an inch wide, and two inches deep, laying loops of wire in each trench, sealing the trench with epoxy, and connecting the wires to a computer at the side of the roadway. Its bid of $675.00 per loop-speed classification assembly unit is reasonable even though it is substantially lower than the average unit prices bid by the four other companies submitting proposals. The Department's decision to reject the low bid of Santa Fe Technologies on the grounds that it is unbalanced is arbitrary and capricious because it is not supported by logic and is not based on a reasoned consideration of the requirements of the Traffic Monitoring Site Plans on which the responses to the Invitation to Bid were based. Although the unit prices for barricades and flashing lights Santa Fe Technologies included in its proposal were significantly higher than the average unit prices bid by the four other companies, the evidence submitted by Santa Fe Technologies is sufficient to establish with the requisite degree of certainty that the unit prices of $3.00 and $40.00, respectively, are reasonable. The evidence presented by Santa Fe Technologies is also sufficient to establish with the requisite degree of certainty that the assumption of the District Four award committee that there is a substantial likelihood of cost overruns on the contract because of an increase in the number of barricades and flashing lights used for traffic maintenance is unfounded. Likewise, although the unit price for loop-speed classification assemblies Santa Fe Technologies included in its proposal was significantly lower than the average unit prices bid by the four other companies, the evidence submitted by Santa Fe Technologies is sufficient to establish that its unit price of $675.00 is reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order sustaining the bid protest and awarding the subject contract to Santa Fe Technologies, Inc. DONE AND ENTERED this 9th day of December, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1998.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Human Development Center (HDC) is a nonprofit corporation which is located in Tampa, Florida and is dedicated to providing rehabilitative services to mildly and moderately mentally retarded clients received primarily through the respondent Department of Health and Rehabilitative Services (HRS). The services provided include transportation, education and training for the development of daily living skills, recreation skills and work-related skills. A one-year written contract existed between HDC and HRS for the provision of and payment for the professional services of education, training and transportation for HRS clients. The termination date of this contract was September 30, 1980. As early as February of 1980, negotiations began as to the rates for a new written contract for the provision of these same services for the following year beginning on October 1, 1980. In August of 1980, petitioner was advised of the Grant Review Committee's recommendations concerning the rates which HRS would allow for the provision of services during the next contract year. A special audit review team conducted an analysis of petitioner's facility and found insufficient ground for awarding levels of funding in excess of those recommended by the Grant Review Committee. The rates recommended were less than the previous years' rates. By letter dated September 22, 1980, petitioner's Executive Director was notified by respondent that respondent was in the process of preparing the contract for the following year and the contract amounts were stated. In a letter dated September 25, 1980 petitioner's Executive Director notified respondent that the proposed contract rates were unacceptable and advised respondent of the rates petitioner would charge effective October 1, 1980. This letter stated: "Should you choose to have your HRS clients continue in the Sunrise program beyond September 30th, 1980, you will be billed at these rates." Based upon petitioner's refusal to enter into a contract with the respondent, respondent orally advised petitioner on September 29 or 30, 1980 that HRS clients would be removed from petitioner's facility. On September 30, 1980 respondent's District Program Supervisor for Developmental Services went to the petitioner's facility for the purpose of removing those clients in the custody of HRS and advising other clients of the status of the contract between petitioner and the respondent. Sufficient HRS personnel and transportation accompanied her to the facility to accomplish this purpose. Several clients were removed, but most clients expressed a desire to remain at the petitioner's facility. The majority of HRS clients who were placed at the petitioner's facility were not in the sole legal custody of HRS and could not be summarily removed without their consent, or, if they were minors, without their parent's or guardian's consent. Alternative placement plans were pursued by the respondent during the month of October, 1980. Petitioner's Executive Director was advised on September 30, 1980, that payments for room and board, as well as for additional other services on a pre- authorized basis, would be provided for HRS clients remaining at the facility. This agreement was affirmed in writing by letter dated October 2, 1980, which stated: "To facilitate counselling clients as to their rights and plan for placement in other facilities, HRS will continue to provide Long Term Residential Care funds. These monies will provide for basic care and supervision. Any additional services will be purchased on an individual client basis and is to be pre- authorized by the social worker. (Example: transportation of employed clients to place of employment through reimbursement at 19 cents a mile.) Expiration of the 1979-80 Purchase of Services Contract prohibits any payment by HRS of services previously covered by that contract." By letter to respondent dated October 4, 1980, petitioner's Executive Director, while protesting "the abrupt and cruel manner in which your office is discontinuing services for Sunrise clients," acknowledged petitioner's understanding that respondent would only continue to fund its clients room and board expenses at petitioner's facility. Respondent did pay petitioner for its clients' room and board during October of 1980 in spite of the fact that no written contract existed. Although it never sought pre-authorization for the provision of additional services, petitioner continued to provide the additional services of education, training and transportation to HRS clients. Respondent's personnel were aware, through visits to petitioner's facilities, that these services were being provided by petitioner to HRS clients. Effective November 1, 1980, petitioner and respondent did enter into a new written contract for the provision of and payment for educational, training and transportation services for the following year. The rates agreed upon in this contract were more than those originally offered by respondent in its September 22nd letter, but less than those stated in petitioner's letter of September 25, 1980. On or about November 3, 1980, petitioner submitted to respondent five invoices amounting to $13,841.75 for the payment of educational and transportation services performed by petitioner for HRS clients during October of 1980. The rates charged by petitioner corresponded to the new rates established in the contract which became effective on November 1, 1980. Respondent refused payment on these invoices by letter dated November 18, 1980, stating, in part: "Lack of a contract between HRS and the Human Development Center during the month of October prohibits payment of the purchase of service invoices submitted with your letter of November 3, 1980. After its informal attempts to secure payment from respondent failed, petitioner requested an administrative hearing on the issue pursuant to Section 120.57(1), Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petition of the Human Development Center be DISMISSED. Respectfully submitted and entered this 10th day of March, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 10th day of March, 1982. COPIES FURNISHED: George L. Waas, Esquire Slepin, Slepin, Lambert & Waas 1114 East Park Avenue Tallahassee, Florida 32301 Claire D. Dryfuss, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue in this case is whether the application filed by the Florida Department of Environmental Protection (DEP) for abandonment of a segment of Mission Road, from the Ocala Drive intersection to a point east of Yonview Drive, should be granted; and, if so, what conditions should be placed on the abandonment.
Findings Of Fact Proposed Abandonment and Vicinity The eastern terminus of Mission Road is at Ocala Road. At one time, Mission Road intersected Ocala Road and extended farther east along the alignment of Tennessee Street. However, when Tennessee Street was extended farther west, the intersection of Tennessee Street and Ocala Road was moved slightly south of the juncture of Ocala Road and Mission Road. Now at the junction of those roads, Mission Road is designed to have only a right turn in from Ocala Road southbound, and a right turn out from Mission Road onto Ocala Road, headed south. Mission San Luis (Mission) is bisected by Mission Road near its eastern terminus at Ocala Road. While the Mission is accessible from Mission Road, its main entrance is on Tennessee Street just west of Ocala Road. The Mission has administrative offices and an archeological laboratory on the south side of Mission Road, while the re-created Mission and Apalachee Village, along with most of the archeological remains, and visitor parking, are on the north side of Mission Road. Yonview Drive joins Mission Road from the south. The juncture of those two roads marks the western terminus of the part of Mission Road that is the subject of the application for abandonment; Ocala Road marks the eastern terminus of the proposed abandonment. All of the land on either side of this part of Mission Road is owned by the State and is part of the Mission. Proceeding west from Yonview, the Mission is on the northeast side of Mission Road, which provides access to the current parking lot for the Mission and the current visitor center, which is an adaptive use of a house built in 1938. Along that stretch of Mission Road, The Timbers condominium development is on the southwest side of Mission Road. Just west of the Mission property, San Luis Road intersects Mission Road. To the north of Mission Road, San Luis is a public road that proceeds north, past Leon County's San Luis Park (which is on the east side of the road), and residential neighborhoods to the west side, to where San Luis Road intersects Tharpe Street. To the south of Mission Road, aligned with San Luis Road, is an entrance to The Timbers. Sometimes referred to as an extension of San Luis Road, the roadway within The Timbers actually is private and serves as access to The Timbers condominium units; it continues through The Timbers and continues between other properties to the development's other entrance on White Drive. As Mission Road proceeds west from San Luis Road, the rest of The Timbers is on its south side; on its north side, Solana Drive joins it from the residential neighborhood to the north. Solana Drive is a short street between San Luis Road and Mission Road. The northern terminus of Solana Drive is near the southern end of the County Park. Petitioners and Their Interests Petitioners are The Timbers Homeowners’ Association, Inc. ("HOA"), and Brian Moran and Christy Baldwin, individually. The individual Petitioners each own one or more units within The Timbers. Ms. Baldwin has resided there for nearly ten years. The HOA is charged with representing the interests of the owners and residents of The Timbers. It owns and has responsibility for the repair, maintenance, and improvement of the common areas within the development. Mr. Moran and Ms. Baldwin are officers of the HOA. The Timbers is a 223-unit condominium community that fronts, along its entire length, the south side of Mission Road between White Drive and Yonview Drive. A portion of this frontage is located directly across Mission Road from what is now Mission San Luis. The private road within The Timbers between Mission Road and White Drive is how The Timbers connects to the public road system. As it fronts Mission Road, The Timbers is a pleasant, wooded community of multiple condominium structures, each of which fronts on a side street connected to its private "San Luis Road." The Timbers is conveniently located for easy access to Florida State University, Florida A&M University, and other points to the south or east of The Timbers (including downtown Tallahassee). A significant number of residents of The Timbers use Mission Road by turning right onto Mission Road, which takes them to a right turn onto Ocala Road, with no stop sign, stop light, or significant intersection in between. From there, they can go straight south on Ocala Road or turn east or west on Tennessee Street. If the abandonment application is granted, that route would be eliminated, and there would be two remaining ways to leave The Timbers--via the White Drive exit, or by making two left turns, one onto Mission Road and the second, after a stop sign, onto White Drive. Meanwhile, drivers traveling east (toward town) on Mission Road from virtually all points west of The Timbers (and thus west of White Drive) on Mission Road, would take a right curve onto White Drive from Mission Road but they would do so with the right-of-way or, if signalized, a traffic light timed to give them a “longer green” preference. Those Timbers residents, owners, and visitors exiting at White Drive would have to negotiate their left turn without the right-of-way and against whatever increased traffic might be introduced onto White Drive if Mission Road were closed. From there, depending on the ultimate destination, traffic could either go straight on White Drive towards Pensacola Street or turn left onto Tennessee Street to reach the Tennessee Street/Ocala Road intersection. The intersection at White Drive and Tennessee Street is signalized but is not consistent with current design standards in that it has an offset center line. According to the planned unit development documents for The Timbers, the White Drive entrance was supposed to be the main entrance to the development. However, the Mission Road entrance has come to function more like the actual “main” and is more attractive aesthetically. Petitioners have spent significant effort and money in beautifying and otherwise maintaining its private extension of San Luis Road through curbing, landscaping, signage, etc. The part of the road that joins The Timbers to White Drive is not as well constructed and is not bounded by The Timbers but rather by other properties. It also is where the garbage dumpsters for the development are located. (On the other hand, the mailboxes for the development also are located off that part of the private road.) The closure of Mission Road probably will shift some internal Timbers traffic from the Mission Road entrance to the White Drive entrance. It also is possible that some external traffic coming south on San Luis Road might use the private extension of the road within The Timbers as a "short-cut" to White Drive. However, the road through the Timbers may not prove to be a desirable "short-cut" because it is a lower-quality road, has potholes, and is not designed for through-traffic but rather as a feeder road for the parking areas of the development. There are three stop signs; the turns are tight; and cars sometimes are parked along the side of the road. As a result, "friction" would slow through-traffic and discourage use of the road as a cut- through. The design of San Luis Road also makes it less likely that The Timbers would be used as a short-cut to White Drive. There is a hard right turn in the road signed for 15 miles per hour that people tend to avoid by turning onto right onto Solana Drive. Many residents walk within The Timbers, including to the mailboxes, to the tennis courts, and to the dumpsters, or to walk their dogs (perhaps in the green space created by an abandoned railroad right-of-way in the vicinity) on the western side of The Timbers. If traffic increases on that side of the private extension of San Luis Road, both the safety and the subjective experience of those pedestrians would be adversely affected to some extent. However, those effects are speculative. A resident-controlled gate system for the Mission Road entrance to prevent cut-through traffic likely would cost The Timbers HOA in the neighborhood of $15,000. Associated costs for telephone connections to each of the units, electrical service, and maintenance would likely range from $75 to $80 per residential unit per year. But such a gate is not desired by Petitioners as it would constitute a significant inconvenience for Petitioners and others who reside in or visit The Timbers. Should the Timbers elect to install sidewalks along its San Luis Road to accommodate increased or shifted traffic within The Timbers, the costs associated with that could reasonably exceed $110,000, including engineering, permitting, utilities, and remediation. The owners of units within The Timbers would ultimately bear the costs of any needed improvements or additional maintenance that would result from a closure of Mission Road. However, it is speculative whether such measures will be needed or actually undertaken. It is possible that the owners of units in The Timbers might suffer some diminution in property value as a result of the proposed abandonment. According to a property appraiser, Richard Boutin, there will be diminution in value of approximately one percent of the value of units, which ranges between $120,000 and $150,000, that would materialize over time, taking two-to-five years to occur. Whether such a diminution in value actually will occur is uncertain. As described above, due to the location of The Timbers, the proposed abandonment will adversely affect Petitioners more than it will adversely affect most of the rest of the general public. Most of the greater adverse effects on Petitioners will be similar in kind to the adverse effects on most of the general public. At least one of the greater effects on Petitioners also is different in kind -- namely, some drivers probably will use Petitioners' private road as a cut-through. See Findings 9-10, supra. Standards for Abandonment Applications A guiding principle for all City Commission action is to act in the public interest. The City Commission must act in the public interest, whether stated in a regulation or not, including when acting on an application for abandonment of right- of-way. City Commission Policy 410 has been used as a guide for reviewing abandonment applications. Policy 410 provides: The City of Tallahassee will not consider any application for right-of-way abandonment, if the subject right-of-way is currently being used by the City, or if the City has any plans to use the right-of-way at some point in the future. Abandonment of a right-of-way must be demonstrated to be in the best interest of the general public. Neither abandonment of a right-of-way solely for the purpose of placing it on the tax rolls in its current state, nor abandonment of a right-of-way solely to benefit an abutting property owner, is considered to be sufficient to meet the test of "in the public’s best interest". Abandonment of right-of-way automatically reverts only to abutting property owners with one-half of the right-of-way going to each owner by operation of law upon adoption of a City ordinance. Provide applicant with a Quit [sic] Deed for recording, if the right-of-way is abandoned. Unlike ordinances, policies can be waived. Notwithstanding paragraph 1 of the Policy, the evidence was clear that the City abandons right-of-way that is in use, either explicitly or implicitly waiving paragraph 1. Over 90 percent of the abandonment applications processed by the City have been for rights-of-way that are currently being used, including some that were being used heavily. The actual standards for determining whether to abandon a road have been found in the other parts of Policy 410, especially in paragraph 2. Although Policy 410 had a sunset date of March 25, 1997, it has not been replaced, and the Planning Department continued to use it as a guide for review of abandonment applications. On February 23, 2005, the City Commission reviewed proposals from the Planning Department for modifications to the City’s abandonment policies, procedures, and fee requirements. The proposed modifications included revised procedures, added definitions, and added the following specific review criteria: The approval of the application shall not create any safety or public health hazard, including any environmental health hazard; The approval of the application shall not result in the preclusion of right-of-way or fee simple access to any existing parcel/lot of record; The approval of the application shall not result in the preclusion of access to any publicly-maintained facility or infrastructure; The approval of the application shall not create any condition inconsistent with the Tallahassee-Leon County Comprehensive Plan, including the Long Range Transportation Plan included therein; The approval of the application would not eliminate or preclude a street or bicycle/pedestrian interconnection that the City Commission intends to retain; The approval should not adversely affect service access required for any official public safety, utility service, waste collection service provider; the United States Postal Service; Leon County Schools (school buses); or TalTran. On February 23, 2005, the City Commission approved the modifications and approved the Planning Department's recommendation to repeal Policy 410 since the modification would be more definitive. The City Commission approved the Planning Department’s recommendations, and directed staff to draft an ordinance incorporating the proposed modifications to the abandonment policies, procedures, and fee requirements and to bring the ordinance back before the Commission for adoption. As of this date, due to staffing constraints, the Planning Department has not taken an ordinance back to the City Commission for review and action. Conditions of Abandonment The City's Planning Department has placed several conditions on the proposed abandonment to address issues raised by the reviewing departments during the processing of abandonment applications. Placing conditions on abandonment of right-of-way is authorized and common. A standard condition for abandonment is that easements be retained by the City for any utilities. It also is standard to require the maintenance of adequate emergency access for the fire and police departments. Also standard, a vehicular turn- around will have to be constructed at the new eastern terminus of Mission Road. To connect with other bicycle-pedestrian trails in the area and enhance these modes of transportation and the City's Bicycle-Pedestrian Master Plan, the Planning Department recommends that a bicycle/pedestrian easement around the perimeter of the Mission be dedicated to the public as a condition of the abandonment. Finally, the Planning Department recommends that the proposed abandonment be conditioned on payment by the State for signalization at the Mission Road and White Drive intersection if, within 12 months of the abandonment, traffic increases to a point where signalization there is warranted. In testimony, the Executive Director of the Mission, Dr. Bonnie McEwan, supported the idea of a bicycle/pedestrian easement for the City, and DEP did not oppose either the standard or recommended conditions of abandonment. Effects of New Mission Visitor Center on Pedestrian Safety The building that currently functions as a Visitor Center for the Mission is an adaptive use of a 1938 house. Limited restrooms are in a separate building next to the house. Currently, due to the lack of accommodations, frequent requests to hold major events, weddings, receptions, and special functions must be denied. Currently, Mission staff must cross Mission Road between their offices and the public northern section. Staff crossings are a cause for concern because of the limited sight- line distance around the curve in Mission Road to the west. They are warned regularly to use caution, but no other measures to protect staff have been implemented or requested to date. Currently, visitors to the Mission drive to the public parking area on the northern portion of the site. Visitors then remain on the north side of Mission Road until they return to their vehicles to leave. In 2006, the Florida legislature appropriated funds to build a new Visitor Center at the Mission. This Center will be in excess of 20,000 square feet and will include public classrooms, a place to show orientation films, exhibits, 20 public toilets, and a meeting room accommodating 250 people. The new Visitor Center will be a vast improvement over the current facility. The evidence was that the best location for the new Visitor Center is on the western portion of the Mission property south of Mission Road. The site was selected because it is relatively flat and because the relatively few archaeological remains there have been mitigated. The plans are to have people enter the Mission using the driveway entrance on Tennessee Street, park around the new Visitor Center, proceed through the Visitor Center for their orientation, and then walk to the main area of the park, where the re-created Fort, Mission, Apalachee Village, and rich archeological sites are located. If Mission Road is not abandoned, the visitors would be crossing just east and quite close to a sharp curve in the relatively narrow, canopy-like road, which has deep-cut banks. Petitioners suggest that the new Visitor Center could be put on the northern part of the site. Indeed, before the State acquired the land on the south side of Mission Road where it now intends to build the new Visitor Center, the State was planning to build it on the north side of the road. However, the evidence was that the recently acquired site on the south side of the road is better suited and would be a much greater benefit to the general public. In any event, the evidence was that the State is going forward with its plans for the new Visitor Center and already has proceeded with obtaining environmental and building permits for construction on the preferred site. A conservative count of on-site visitation at the Mission last year was 30,239. There are activities year-round, including costume interpretation, a living history program, special events, and camps, including every teacher planning day and break. Most of the Mission programming is geared towards children, and approximately ninety percent of the visitors are children. The State hopes and expects that visitors to the Mission will increase dramatically with construction of the new Visitor Center. The State continues to expect that a high percentage of these visitors will be children. The application for abandonment is based on the reasonable prospect of increased future use of the facility. The application for abandonment seeks to protect the expected increased number of visitors, including many groups of children, and staff from the danger of having to cross back and forth across Mission Road. Pedestrian safety in connection with the use of the planned Mission facilities is a clear benefit to the general public. The abandonment application also would enable the State to optimize the functioning of the Mission, which also benefits the general public. Negative Effects of Abandonment At the same time, granting the application for abandonment would cost the general public in other ways, which the Petitioners point out. The segment of Mission Road proposed to be abandoned has a "canopy-road-like feel" (although it is not officially designated as a canopy road). The public no longer would be able to experience driving on it. A traffic study done by Wilson Miller on behalf of the State confirmed that traffic on the segment of Mission Road in question is relatively light. Traffic count data from 2008 showed that the annual average daily traffic ("AADT") was 1,500 vehicles a day, including both directions. Approximately 57 percent of the 1,500 cars move in an easterly direction. By comparison, the AADT for other area roads in the vicinity is significantly higher: 9,000 vehicles for White Drive; 34,000 for Ocala Road; and 42,500 for Tennessee Street. Mission Road is classified as a minor collector road. The capacity of a minor collector is between 13,000 and 14,000 AADT. The AADT established by the Wilson Miller study is only about 10% of the road's capacity, which is very light for a minor collector road. If the application for abandonment is granted, traffic will shift to other roads. However, the Wilson Miller study was not an origin and destination study and was not sufficient to determine with any precision how the traffic would shift. For that reason, Petitioners' attempt to use the traffic study to identify and quantify the costs associated with such travel shifts was not convincing. Some increase in traffic on other area roads will occur, but it is speculative based on this record where the increases might occur, how large they will be, and whether they will result in the need for taxpayer-funded road and traffic construction. Petitioners contend that the proposed abandonment will shift some eastbound traffic on Mission Road to White Drive. If it does, White Drive is a major collector with recent improvements and excess capacity. Any additional traffic on White Drive would not be significant from a traffic planning standpoint. It might make the road network more efficient overall (even though certain trips may become less efficient). It is possible that the re-routing of traffic from the Mission Road and Ocala Road intersection may be significant enough to warrant a traffic signal at White Drive and Mission Road. For this reason, the City staff recommends, as a condition for abandonment, that the State pay for signalization at that intersection if the need arises within a 12-month period after the abandonment. Based on the evidence, it should not be anticipated that other road and traffic improvements will be necessary as a result of the abandonment, except perhaps reversal of the stop condition at Mission Road and San Luis Road and possibly a turn lane on Solana Drive at its Mission Road junction. Petitioners also contend that the value of the 1.34 acres of road right-of-way to be abandoned is a cost to the general public that should be considered. The appraised value of the 1.34 acres was $240,000, using an "across the fence" appraisal methodology and assuming high-density residential property "across the fence" even though the property on either side of the proposed abandonment would be park land, and the transfer of use from road to park would be from one public purpose to another public purpose. In any event, the City cannot legally "charge" for abandoning right-of-way, and the value of abandoned right-of-way is never a consideration in the City's review of an abandonment application. See Conclusion 77, infra. Petitioners also contend that the proposed abandonment will have the negative effect of hampering emergency response in the area. Any road closure could result in a longer emergency response time by a matter of minutes in a particular circumstance and, depending on the emergency, it is possible that a delay of mere minutes could be significant and even mean the difference between life and death. But the evidence was clear that, from any reasonable planning perspective, the proposed abandonment would not present significant difficulties to fire, hazardous material, or police responders, assuming that maintaining adequate emergency access into the Mission itself is made a condition of the abandonment. Geographic areas are assigned to Fire Department stations for primary response. The response routes of drivers are not assigned, but are instead discretionary on the part of the driver based on the time of day, traffic patterns, nature of the road, and possible school zones. The primary station is called as the First Due, with the secondary being Second Due, and so forth. Station 4, located at the corner of Pensacola Street and Appleyard Drive, is the First Due Station, or engine company, for the area of the proposed abandonment, including The Timbers. The typical route for Station 4 would be to travel from its location at Appleyard Drive and proceed to Tennessee Street, turn right and proceed east to White Drive, then turn left and proceed north to Mission Road. This route would not be affected by the proposed abandonment. The Second Due Station for this area is the Main Fire Station located at 327 North Adams Street. The probable emergency response route for a fire truck coming from this Station would be to travel west on Tennessee Street, go through the Ocala Road intersection with Tennessee Street, turn right and proceed north on White Drive, and turn right and proceed east on Mission Road. The alterative route of proceeding north on Ocala Road at the Tennessee Street intersection and turning left onto Mission Road would be extremely difficult to navigate for a large fire truck, particularly in light of traffic, and typically would not be the preferred route. The typical route from the Second Due station is not affected by the proposed abandonment. The Third Due station for this area is Station 8, which is located on Hartsfield Road. This Station is situated to the west of the Timbers and the Mission. A typical route from this Station to the Timbers would be to drive east on Hartsfield Drive and take one of several southerly connections to Mission Road, and then drive east on Mission Road to access The Timbers or the Mission. Another consideration for Fire Department emergency access is the specialized functions of certain stations in two areas--Urban Search and Rescue, and the Hazardous Material Response. The Urban Search and Rescue team provides specialized services including searching through collapsed buildings and piles of debris. The primary station response for Urban Search and Rescue is Station 4, and its access is unaffected by the abandonment. The primary Hazardous Material Response team is Station 2, located on Sharer Road. There is a secondary specialized station for hazardous materials response, Station 3, which is located on South Monroe Street at Paul Russell Road. In addition, all of the stations have some ability to provide hazardous materials response. Currently, a possible route from Station 2 to the Timbers eventually would take Ocala Road to Mission Road. However, this route is only available for single engine fire trucks. Due to the nature of the equipment it uses, the hazardous materials team may instead proceed along Interstate 10 to Capital Circle and head back east to the area. During a response to an incident, this specialized team would be driving en route, meaning with traffic and not in emergency mode, and the First Due station would already have sent a truck to the site along a route unaffected by the proposed abandonment. As for the Police Department, the main type of call from The Timbers has been for public disturbances, which are frequently related to parties and generally not emergencies. In the three years of calls, only one call received could be considered an emergency response, which was for a young lady who had erratic breathing after passing out from drinking too much alcohol. In contrast to the Fire Department, police patrol cars have no fixed locations but rather are constantly on patrol. Dispatch for police prioritizes current needs and locations of vehicles. The Police Department has a number of methods it can use to access an area in case of an emergency. In addition to the standard method of reaching an area by car, potential options to reach an area include by foot, bike, and helicopter. Even deployment of an armored car/tank type vehicle would be possible if the situation warranted it. If the abandonment occurs, there will be three main routes to access the area, including San Luis Road, White Drive, and Mission Road from the west. With the two entrances to The Timbers, these routes provide at least five different ways to access The Timbers. Some locations in the City, such as cul-de- sacs, have only one access route. The various approaches to the area in question provide more than sufficient access. The proposed abandonment would result in the elimination of a less-than-ideal intersection at Mission Road and Ocala Road. Resulting from the extension of Tennessee Street to the west of Ocala Road, the intersection at Mission Road and Ocala Road does not meet current design standards because it is too close to Tennessee Street. It is not unusual for cars turning right from Mission Road onto Ocala Road to cross two or three lanes within a very short distance in order to turn left onto Tennessee Street. This maneuver is dangerous and illegal. Of six accidents at the intersection over four years, five involved oncoming traffic striking a vehicle turning onto Ocala Road from Mission Road. In a three-month period in 2006 alone, there were three such collisions. One reason there are not more similar accidents appears to be that the danger is so obvious that most drivers--both those attempting the maneuver and those driving south on Ocala Road--use caution. In addition, many of the local residents have become quite skilled at negotiating the intersection. Another illegal maneuver at this less-than-ideal intersection is sometimes used by cars heading north on Ocala Road and crossing Tennessee Street. Since it is not possible to make a legal turn left onto Mission Road, some turn left into a business parking lot on the northwest corner of Tennessee Street and Ocala Road, drive through the business parking lot, and then turn left onto Mission Road. Petitioners contend that the proposed abandonment will shift traffic from the Mission Road/Ocala Road intersection to the White Drive/Tennessee Street intersection, which also is inconsistent with design standards due the centerline offset, making the left turn onto Tennessee Street from White Drive potentially dangerous. However, whether and how much traffic would be shifted to that intersection was not proven. In addition, most of the traffic experts who testified were more concerned about the dangers inherent in the Mission Road/Ocala Road intersection and thought elimination of the Mission Road/Ocala Road intersection would make the Ocala Road/Tennessee Street intersection more efficient. Comprehensive Plan The evidence was that, with the conditions recommended by the City's Planning Department, the proposed abandonment does not create any condition that is inconsistent with the Tallahassee-Leon County Comprehensive Plan, including the Long- Range Transportation Plan. Goal 2 of the Historic Preservation Element of the Comprehensive Plan is to “[e]nsure that all municipal and county actions encourage and promote the preservation of this community’s historic resources.” Closing the proposed portion of Mission Road will serve Goal 2 by supporting and satisfying Policy 2.1.3 (mitigate the impact of development on historic resources), Policy 2.1.5 (property listed in the Florida Master Site File), and Objective 2.4 (develop a land conservation program to protect historic resources). The proposed abandonment also is consistent with other parts of Goal 2, namely: Objective 2.5 (establish a program to protect significant archaeological resources); Policy 2.5.1 (mitigation of adverse impacts to significant sites); Policy 2.5.2 (archaeological sites to be filed with Florida Master Site File and Archaeological Sensitivity Zone Maps of Leon County); Objective 3.2 (provide for the interpretation of local government-owned historic resources in parks and other public lands); Policy 3.2.1 (support and encourage local projects involving walking, bicycling and driving tours through historic areas); and Policy 3.2.2 (include the existence of historic resources as a criterion in the acquisition of public parks). The recommended bicycle/pedestrian path easement condition is consistent with Goal 6 of the Conservation Element of the Comprehensive Plan, which encourages the City/County to "implement a county-wide greenways network . . . to provide for . . . educational and historical interpretive opportunities and increased opportunities for alternative modes of transportation." Goal 6 of the Conservation Element of the Plan and supporting Policies 6.1.1 through 6.1.4 were the origin of the Tallahassee-Leon County Greenways Master Plan. The intent was to link historic and natural resources throughout the community, linking them to residential, work, and business areas. The bicycle/pedestrian easement link San Luis City Park trails with an existing trail at the intersection of Tennessee and Ocala. The proposed abandonment is consistent with the Parks and Recreation Element of the Comprehensive Plan in that state facilities may be included to meet state-required levels of service. Parks are essential to a sustainable community. The Land Use Element of the Comprehensive Plan has the general goal of protecting natural and aesthetic environments and residential areas. One way to protect residential areas is not to route collector roadways through them. Everything adjoining the western boundary of the Mission is classified as Residential Preservation. Closing Mission Road will force traffic away from this area and protect 18 homes on San Luis Road from cut-through traffic. The Planning Department would downgrade area street classifications to "local streets" to reflect their true use and provide better neighborhood protection. Studies performed by the Planning Department resulted in a multi-modal transportation district and a greenways master plan. The City operates under the Tallahassee/Leon County Multimodal Transportation District Plan. That Plan focuses on bike paths, mass transit, and sidewalks to facilitate greater mobility with fewer roads. Service levels for bicycle paths in the San Luis area are close to critical. The bicycle/pedestrian easement will provide greater connectivity, thereby improving service levels. Many students reside in the vicinity of the proposed road closure and provision of a bike path connecting the areas north of Mission Road with the Ocala Trail south of Tennessee Street would attract more bicycle traffic in the hopes of changing the mode of transportation for college students. The City has a Tallahassee-Leon County Greenways Master Plan (Greenways Plan). The abandonment application provides an opportunity under the Greenways Plan. The bicycle/pedestrian easement will connect an existing trail at the intersection of Tennessee Street and Ocala Road to San Luis City Park. This is consistent with the Greenways Plan. The City has adopted the Bicycle and Pedestrian Master Plan (Bike/ped Plan). The purpose of the Bike/ped Plan is to facilitate greater awareness of bike and pedestrian facilities and to promote construction of new facilities. The bicycle/pedestrian easement would provide greater accessibility to existing amenities and infrastructure and meet the intent of the Bike/ped Plan. Petitioners argued that there already exists a better connection between the existing trail at the intersection of Tennessee Street and Ocala Road to San Luis City Park via Ocala Road and Continental Avenue. However, the evidence did not prove that the existing route would be safer or better than the connection that would become available as a result of the bicycle/pedestrian easement condition on the proposed abandonment. Even if it would be, an additional route and connection still would serve a public benefit. Petitioners also pointed out that State could dedicate an easement through its property for purposes of a bicycle/pedestrian connection without applying for abandonment of right-of-way and that the City never asked for such a dedication before the State applied for application of the right-of-way. But it is typical to consider such matters in the context of an application for abandonment. Alternatives to Abandonment Petitioners concede that pedestrian safety at the Mission San Luis "would be rendered perfect if the road were abandoned, closed, and eliminated." However, they contend that other steps could be taken to protect the pedestrians as well or better without abandoning the road. First, Petitioners suggest the alternative of a pedestrian crossing with a pedestrian-controlled stop light and advance warning flashers. This suggestion was supported by the testimony of Petitioners' traffic expert, Wayne Coloney. But he assumed there would be 360 feet between the pedestrian crossing and the curve in Mission Road. Actually, the pedestrian crossing would be only approximately 210 feet from the curve, which is less than the 330 feet that Mr. Coloney considered to be safe. The other traffic experts also believed that it would be unsafe to design a pedestrian-crossing that close to the curve, even with advance warning flashers--a design that works best on straight roads with long sight-line distances, such as Meridian Road. Next, Petitioners suggest the construction of an overpass. This would be a more expensive proposition. It would require the construction of ramps, stairs, and elevators to comply with the Americans with Disabilities Act. In addition, to be effective in protecting pedestrians, fencing would have to be installed for a considerable distance on both sides of the road to discourage pedestrians from crossing the road instead of using the overpass. According to Mr. Coloney, all of this would cost between $300,000 and $390,000 to install and between $20,000 and $30,000 to maintain. Both the overpass and the fencing would be at odds with the environment the State would be trying to re- create and maintain on the Mission property. Petitioners also suggest digging a tunnel under the road, which would be less obvious than an overpass. However, this also would require fencing to be effective and would be the most expensive of the suggested alternatives--costing between $450,000 and $690,000 to install. In addition, it would require digging a tunnel through artifact-rich earth, which would be contrary to the a primary purpose of Mission San Luis. Application of Findings to Standards Paragraph 2 of Policy 410 requires a demonstration that an abandonment of right-of-way is "in the best interests of the general public." It is clear that the proposed abandonment is not in any private interest since the abandonment is to the State for incorporation in its Mission San Luis, a public facility. The abandonment is not for the sole purpose of placing property on the tax rolls, or for the benefit an abutting private property owner. It is to benefit the public. It also is primarily to protect the safety of pedestrians working at and visiting the facility, including many school children. For these reasons, the abandonment clearly is in the public interest, as opposed to any private interest. Whether it is in the best interest of the general public is a more difficult judgment to make. But, on balance, the abandonment application, with the standard and recommended conditions, probably is in the best interest of the general public. The proposed abandonment also meets the new policy criteria for abandonment of right-of-way. It does not create any safety or public heath hazard, including environmental health hazard. It does not preclude access to any existing parcel or lot of record. It does not preclude access to any publicly- maintained facility or infrastructure. It does not create any condition inconsistent with the Comprehensive Plan, including the Long-Range Transportation Plan. It does not eliminate or preclude a street or bicycle/pedestrian interconnection that the City Commission intends to retain. It does not adversely affect any required service access for any official service provider.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Planning Commission recommend to the City Commission that DEP's application for abandonment of right- of-way be granted, with the standard and recommended conditions. DONE AND ENTERED this 2nd day of June, 2008, 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 2nd day of June, 2008. COPIES FURNISHED: Deepika Andavarapu Tallahassee-Leon County Planning Department 300 South Adams Street, Fourth Floor Tallahassee, Florida 32301-1721 William H. Davis, Esquire Dobson, Davis & Smith 610 North Duval Street Tallahassee, Florida 32301 Jonathan P. Sanford, Esquire Office of the City Attorney 300 South Adams, Box A-5 Tallahassee, Florida 32301 Lisa M. Raleigh, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that respondent certify petitioner Metro Signal Company, Inc. as a duly qualified Woman Business Enterprise. RECOMMENDED this 20th day of July, 1984, at Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of July, 1984.
The Issue Whether Petitioner is a substantially affected party and entitled to a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes. Whether LYNX' 1992 application for "Section 9" federal grant funds complied with the planning and grant requirements of the Federal Transit Act, 79 U.S.C. 1601, et seq, as amended, and state law. Whether LYNX complied with the Private Enterprise Participation requirements of the Federal Transit Administration (FTA). Whether the level of demand for mass transportation service in the International Drive Corridor requires that increased service capacity be provided and under what criteria. Whether the proposed restructured service for the International Drive Corridor should be provided by LYNX or a private mass transportation provider.
Findings Of Fact Central Florida Regional Transportation Authority (CFRTA) and the Orange-Seminole-Osceola Transportation Authority (collectively, LYNX) are each a public body authorized to provide mass transportation services within the counties of Orange, Seminole and Osceola, as well as all cities within those counties, including the City of Orlando. The two Authorities operate as one entity and have merged their activities and assets, with CFRTA being the successor entity. LYNX is the duly constituted regional transportation authority for the Central Florida Region, which includes Seminole, Orange and Osceola Counties. It is created and established pursuant to the Interlocal Agreement dated May 2, 1972, under the authority of Section 163.01, Florida Statutes, and Section 343.63, Florida Statutes. LYNX is a designated recipient of local federal transit assistance. Trykap Transportation Management, Inc., d/b/a World Transportation, Inc. (WTI) is a closely-held for-profit corporation which operates a mass transportation bus service, transporting riders from a number of hotels and motels in the Kissimmee, Lake Buena Vista and Orlando area to tourist attractions in Central Florida. Jay Kaplan is the president of WTI. The Federal Transit Administration (FTA) is the federal agency responsible for reviewing and approving applications for the use of federal grant funds in local transportation projects. ETC of Central Florida, Inc. (ETC) is a Florida not-for-profit corporation organized in 1988. Beginning in 1991, ETC has been instrumental in proposing and encouraging increased mass transportation service in the International Drive area. ETC supported the establishment of a special taxing district for the purpose of funding increased transportation service on International Drive. The International Drive Master Transit and Improvement District Municipal Service Taxing Unit (the District), an independent special district created by ordinance of Orange County, Florida, was created in December 1992 for the purpose of developing additional transit service for the International Drive area. This local government unit is an independent entity and is not related in any way to LYNX. The Orlando Urban Area Metropolitan Planning Organization (MPO) is responsible for transportation planning in the Orlando urbanized area. The MPO is responsible for preparing the Transportation Improvement Program (TIP) for submission to Florida's Department of Transportation and the FTA. The "International Drive (I-Drive) corridor" consists of a major north/south collector roadway, International Drive, which extends from Kirkman Road on the north to Central Florida Parkway on the south, a distance of approximately 4.6 miles. There are hotels, attractions, the Orange County Convention Center, restaurants and other commercial retail establishments located within the corridor. There are no residential areas located along the I-Drive corridor. Since 1976, LYNX has continuously provided bus service on and around International Drive. LYNX currently provides service on International Drive with 7 different routes. For several years, the International Drive corridor has been the subject of transit studies done by the City of Orlando, Orange County, ETC, the Metropolitan Planning Organization and other public and private entities having an interest in the International Drive corridor. As the regional transit authority, LYNX was involved early on in various discussions with ETC and the District regarding their plans for developing transportation on International Drive. Part of LYNX's responsibility as the regional transit authority is to offer assistance and advice in the promotion and development of public transportation. Consistent with that responsibility, LYNX staff met frequently with representatives of ETC and the District to answer technical and operational questions as well as to offer assistance, support and the benefit of LYNX's expertise and experience. In 1989, James F. Charlier was retained by the City of Orlando and the ETC as a transportation planning consultant. Charlier produced numerous studies, letters and presentation materials in regard to the I-Drive Project and appeared before numerous local government agencies on behalf of the Public Transit Project (PTP). A comprehensive study was also completed by Gannett- Fleming, Inc. for the PTP, entitled "Orlando/International Corridor Transportation Study Final Report" which analyzed four public transportation alternatives, including bus service for the I-Drive area. Following the formation of the District in December 1992, and through 1993, LYNX staff began to have conceptual discussions with the District about the possibility of LYNX enhancing its existing bus service on International Drive under contract with the District. During all of 1993 and the early part of 1994, there were dozens of meetings, workshops and public hearings conducted by various agencies in the community on LYNX's consideration of whether to restructure its current bus service. WTI participated fully in these preliminary proceedings. Jay Kaplan of WTI, often accompanied his legal counsel, attended between fifteen and twenty meetings regarding transportation services on International Drive, and he spoke at approximately half of those meetings. Kaplan's legal counsel also spoke at various meetings regarding transportation services on International Drive. WTI requested and received numerous documents as early as January, 1993, and continued to request and receive information throughout the course of the proceedings. At the same time, the District continued to explore the possibility of contracting with a private provider for transportation service on International Drive. Once the District began to develop more specifically its service needs, LYNX commenced its own analysis of whether to restructure its International Drive service. On March 22, 1994, LYNX issued a Draft Feasibility Analysis and Request for Written Comments Regarding New or Restructured Service in the International Drive Corridor relating to the provision of restructured bus service along International Drive. This Draft Feasibility Analysis stated the intent of LYNX to restructure its bus service in the International Drive corridor and also disclosed the specific costs and service plan for the project. The Draft Feasibility Analysis requested public comment on proposed public transportation service changes in the International Drive corridor. LYNX provided the Draft Feasibility Analysis and request for comment to over 200 private transportation companies whose interests might be affected by LYNX's decision, including WTI. WTI provided a written response within the 30-day comment period. Two other providers, Gray Line and A-1 Bus Lines, also submitted formal comments on the Draft Feasibility Analysis regarding restructured service on International Drive. The written comment on the Draft Feasibility Analysis submitted by WTI included WTI's complete response to the LYNX analysis. LYNX staff considered all comments filed in response to the draft feasibility analysis and prepared a staff recommendation for the LYNX Board. On May 9, 1994, LYNX gave notice of its intent to take action on May 12, 1994 on the restructured bus service. The details of the restructured service plan contemplated by LYNX appear in the Final Feasibility Analysis and Staff Recommendation published May 12, 1994. On May 12, 1994, LYNX held a board meeting for the purpose of receiving the LYNX staff recommendation and approving or rejecting the enhanced service plan. LYNX permitted counsel for WTI to address its concerns at the May 12, 1994 LYNX Board Meeting, and counsel for WTI presented a summary of its objections to implementation of the new or restructured bus service on International Drive. At the May 12, 1994 LYNX Board Meeting, the LYNX Board approved implementation of the restructured bus service on International Drive to commence on June 26, 1994. The Board also authorized entering into an interlocal agreement with the District. In June, 1994, the Governing Board of the District authorized the District to move forward with an agreement with LYNX for the provision of that service. LYNX did not reach a formal agreement with the District for the provision of bus service on International Drive prior to June 1994. The enhanced service commenced on June 26, 1994. In August 1992, LYNX submitted an application for so called "Section 9" federal grant funds under the provisions of the Federal Transit Act, 79 U.S.C. App. 1601, et seq. for the purchase of approximately 54 buses. The grant approval date was December 1992. LYNX ultimately ordered 47 buses, including fifteen thirty-passenger buses. The application was for federal formula grant dollars available to LYNX. The FTA allocates Section 9 grant dollars based upon a formula which considers a number of variables. The formula determines the amount of funding assistance to which each grantee is entitled under the Section 9 program, which is essentially a block-grant program. In its August 1992 application to the FTA, LYNX applied for grant funds to purchase buses for replacement of old equipment and expansion of its fleet generally. For purposes of the federal transit assistance program, the term "service level" refers to the location and number of individual bus transit stops, the frequency of service to such stops (also referred to as "headway"), extension of routes or internal changes to routes, and similar matters concerning passenger service. The Final Feasibility Analysis states that LYNX's restructured bus service involves changes in service levels in an existing corridor of service. The restructured service follows closely that service historically provided by LYNX along International Drive. The substantial difference between the restructured service and the service that LYNX has provided continuously along International Drive since 1976 is that additional bus stops have been added and those stops are serviced more frequently by new equipment, 1/ with the buses having clearly identifiable logo. A "transportation improvement program" (TIP) is a locally developed and controlled planning device. It is mandated under the provisions of the federal Mass Transit Act and regulations and guidance have been issued by the FTA to implement the Federal Transit Act. A transit grantee must disclose in the TIP federally-funded capital projects. A "project" for federal transit grant purposes is any proposal for new equipment, service or facilities which cannot be undertaken by a grantee with resources already in the control of that grantee. Changes in service levels, such as those made by LYNX on International Drive pursuant to the Final Feasibility Analysis, are not "projects" and do not require a modification of a TIP even if federally-funded buses are used to increase the service levels. "New" service is a project which must be included in a TIP. "New" service is defined as service provided in a new transit corridor not previously serviced by the transit grantee. Any enhancement of service in an already existing corridor is not "new" service, and therefore need not be included in the TIP. LYNX was not required to disclose its restructured service along the International Drive Corridor in the TIP or elsewhere in the grant application filed in August, 1992. Three things are required before service levels can be changed, these are: 1) an analysis of the demand for services, 2) an analysis of the cost of providing the revised service, and 3) notice to the public and interested parties and an opportunity for public comment. Each of the three prerequisites for modifying service may be satisfied by a written analysis which addresses service cost and other operating characteristics of the proposed service modification, and provides an opportunity under legal notice for comments to be received in writing from the public and interested parties. LYNX complied with these requirements by virtue of its Draft and Final Feasibility Analyses. Prior to the recision of the Federal Transit Administration's Private Enterprise Participation Policy, grant recipients were subject to certain private enterprise participation requirements in connection with their subsequent use of federal grant funds. Grant recipients developing new and restructured transit services were required to provide: 1) early consultation, a description of how new and restructured services would be evaluated (i.e., service criteria for the proposed change in service and a disclosure of the fully allocated costs of providing the proposed service directly with the grantee agencies' own equipment and personnel, 3) an opportunity for comment from the public and other interested parties, including private providers of transportation, 4) an analysis which reasonably flows from the record in support of the decision to provide the service either in-house or under contract, and 5) a dispute resolution process. The Draft Feasibility Analysis of new and restructured service for the International Drive corridor issued by LYNX in March 1994 complies with the federal private enterprise participation requirements. Lynx provided "early consultation" within the meaning of the federal private enterprise participation requirements with regard to new and restructured service in the International Drive corridor as part of the feasibility analysis of 1994. For a period of years prior to 1994, there were various public meetings, studies, and other elements of consultation with and among all sectors of the community, including private transportation providers. There were abundant opportunities for the public, including private transportation providers, to evaluate conditions, consider alternative service concepts for transit service in the International Drive corridor prior to the formulation of specific service criteria. The 1994 Draft Feasibility Analysis specifically afforded all interested parties a concrete opportunity to comment on LYNX's specific proposals regarding service criteria, costs and proposed operations. It also afforded interested parties an opportunity to have such comments analyzed and incorporated by LYNX into the Final Feasibility Analysis before the proposed modifications of service levels were presented to the LYNX governing board for review and decision. On or about March 24, 1994, LYNX issued a Notice of Draft Feasibility Analysis and Request for Written Comments Regarding New or Restructured Service for the International Drive Corridor (DFA). The DFA defined the I-Ride service and LYNX's intent to operate it. The DFA also incorporated by reference several prior studies. The DFA was sent to private providers, and requested submission of comments by April 25, 1994. The DFA provides an adequate description of how new and restructured service for the International Drive corridor would be evaluated. The DFA enumerates the pertinent service criteria (i.e., the number of vehicles proposed for the service, hours and days of service operation, the route and scheduled stops for the service, the qualifications and training of drivers and supervisors, and maintenance to be required). The DFA provides an adequate disclosure of the fully allocated costs of the proposed service. The DFA includes a breakdown of all of the cost pools which comprise the actual costs to LYNX of providing the service, including both direct costs and indirect costs. The submission of a private enterprise participation policy, including a complaint resolution process, is a requirement of receiving a federal transit assistance grant. The FTA's acceptance of the adequacy of a local private enterprise participation policy, including a complaint resolution process, is a precondition of receiving a federal transit assistance grant. As an FTA agency recipient, LYNX had in place a private enterprise participation policy, including a complaint resolution process, which conformed to the applicable federal requirements. On April 25, 1994, WTI filed its comments objecting to the I-Ride Project and requested a formal hearing prior to final agency action by the LYNX Board. On May 6, 1994, LYNX Executive Director issued an Operating Order to its drivers, dispatchers, and supervisors concerning the "Special Requirements of operators who elect to pick I-Ride division work assignments." Special training efforts were made to handle tourist relations and "ambassador training" was provided for I-Ride drivers before the service began. On May 9, 1994, LYNX gave Notice of Intent (NOI) to take action on May 12, 1994 to implement the I-Ride service, and to enter into an Interlocal Agreement with the District for the I-Ride bus service. The NOI failed to state the right or a time limit for a person substantially affected by the proposed action to request a formal hearing pursuant to Section 120.57(1), Florida Statutes. On May 12, 1994, prior to the LYNX Board meeting, WTI filed a formal Petition requesting a 120.57(1) hearing. At the May 12, 1994 Board meeting, WTI also appeared through counsel and requested a formal hearing. The request for hearing was initially denied. The LYNX Board proceeded to approve implementation of the I-Ride bus service to commence on June 26, 1994 and authorized entering into the interlocal agreement with the District. The LYNX Board erred in proceeding with implementation of the bus service. WTI is entitled to a hearing under Section 120.57(1) because it has demonstrated a "substantial interest" in this matter and is substantially affected by the proposed agency action, to wit: the implementation of the I- Ride services and interlocal agreement. The LYNX Board should have granted the petition and proceeded forward only as a party litigant. WTI's request for a formal hearing was granted by order, dated May 26, 1994, and a member of the LYNX Board was subsequently appointed as the hearing officer. The case was set for hearing. Upon denial of a motion to disqualify the presiding officer, the interlocutory order was appealed to the Fifth District Court of Appeal. The restructured I-Ride bus service was implemented and commenced service in mid-June, 1994 and is currently in operation. LYNX operates traditional fixed route local bus service with on-street stops. LYNX service does not use tour buses or shuttle vans, but rather regular city buses. The restructured LYNX service does not reach any area attractions that are not located on International Drive. LYNX buses do not stop or pick up or disembark passengers on private hotel property. The LYNX fare is 75 cents one way. WTI provides express "point-to-point" (i.e., door-to-door) shuttle service between a number of hotels located on International Drive and major attractions in the Orlando area. WTI's bus and shuttle van service picks up customers at hotels and delivers them to certain area attractions. Although WTI services a predetermined route, they only stop at hotels along that route if customers at the hotels have called ahead of time to make reservations. If there are no reservations at a given hotel, the shuttle van does not stop at that hotel and instead travels directly to its destination. In addition, the shuttle vans picks up customers only at such other locations on the route as are prearranged by the customers. WTI's bus service picks up customers from designated locations on International Drive and delivers those customers to the following locations only: Sea World, Universal Studios and Walt Disney World theme parks. Customers on WTI's buses disembark at the ultimate destination. Customers do not embark at any other stop along the route. The current fare charged by WTI for trips to Universal Studios and Sea World is $5.00 round trip and $3.00 one way per customer. The current fare to the Walt Disney World theme parks is $9.00 round trip and $5.00 one way per customer. The U.S. Department of Transportation defines the term "local bus service" as a bus service that picks up and discharges passengers at frequent, designated places (stops) on city streets. Such service does not require passengers to go to any particular destination stop. FTA Circular 9030.1A, Appendix A, Definitions. The service offered by LYNX is a "local bus service" as defined by the Department of Transportation. The U.S. Department of Transportation defines the term "gather service" as a service that collects passengers from many origins and delivers them to a specific point. Gather service passengers do not disembark at intermediate points on a route other than the designated final destination. FTA Circular 90.30.1A, Appendix A, Definitions. WTI's service falls within the Department of Transportation's definition of a "gather service." For purposes of federal transit planning and grants, a gather service does not compete with a local bus service. Applying the federal guidelines, the LYNX service on International Drive does not compete with WTI's service because the two are distinct kinds of service which serve different purposes and different markets. In addition, the LYNX service does not compete with WTI because there is very little overlap in actual destinations serviced by WTI and the LYNX service. The LYNX restructured service does not travel to Universal Studios, Walt Disney World theme parks or Belz Outlet Mall. The only destination serviced both by WTI and LYNX is Sea World. Sea World is geographically located near the end of International Drive. As a result, LYNX services Sea World and has done so for many years. Under its restructured plan, LYNX continues to service Sea World. The only change is the frequency with which LYNX buses service that stop. The competition that does result from service to Sea World was well known to WTI before it began its operations on International Drive in 1990. WTI has not shown substantial injury in fact because the bus services offered by WTI and LYNX are different and are not significantly competitive. WTI has not proven by a preponderance of evidence it has suffered actual economic loss as a result of the I-Ride service. The International Drive portion of WTI's total passengers in both 1993 and 1994 is less than 2 percent. WTI's total annual revenue from shuttle bus and point to point shuttle services was higher for 1994 than for 1993. In addition, WTI's average monthly revenue was also higher for 1994 than for 1993. Any losses suffered by WTI have not been proven to be attributable to the LYNX service. The daily average number of passengers taking a WTI shuttle bus or point to point shuttle from International Drive to Universal Studios during the latter half of the year was lower in 1994 than for the same period in 1993. Likewise, the daily average number of passengers taking a WTI point to point shuttle from International Drive to Belz Outlet Mall during the latter half of the year substantially decreased in 1994 from the 1993 level for the same time period. However, LYNX's restructured service does not go to the Belz Outlet Mall or Universal Studios. Therefore, WTI's decrease in passengers to Belz and Universal have not been shown to be the result of competition from LYNX's service. There is also strong direct correlation between WTI's 1994 revenue from shuttle bus and point to point shuttle services and the 1994 occupancy rates of hotels and motels on International Drive. When hotel and motel occupancy is up, so is WTI's revenue. Likewise, when hotel occupancy is down, WTI's revenue is also down. Changes in WTI's revenues correlate proportionately to changes in occupancy levels. LYNX's restructured service has had no apparent impact on the revenue generated by WTI from its International Drive services. Likewise, LYNX's I-Ride service has had no apparent impact on the number of passengers utilizing the transportation services of WTI on International Drive. The service proposal offered by WTI in response to the Draft Analysis is incomplete. WTI has not demonstrated significant cost efficiencies which would be realized by the LYNX by contracting out the service. The level of demand for mass transportation services in the International Drive corridor has grown to the point where increased service capacity is necessary. As the Regional Transportation Authority, LYNX is responsible for providing an integrated, efficient, and comprehensive public transportation system throughout the three-county area. LYNX is the only provider of scheduled mass transportation fixed route bus service in the International Drive corridor. LYNX operated eight fixed route scheduled bus routes serving the International Drive corridor prior to 1994. Based upon consideration of all of the evidence it is concluded that it would be more efficient for LYNX to directly operate the proposed restructured mass transportation fixed route bus service for International Drive. From the evidence of record, the proposed restructured service should be based upon the LYNX staff recommendation contained in the Final Feasibility Analysis and Staff Recommendation, dated May 12, 1994, and consisting of the following: The proposed new or restructured service would provide fixed route local circulator service between a terminal at the bus/shuttle/taxi drop off location in the Sea World complex near Sea Harbor Drive and a proposed terminus on American Way near the International Drive/ Kirkman Road intersection (see Exhibit H to the Draft Analysis for a map of the proposed route alignment). Southbound buses would operate along Sea Harbor Drive to International Drive, through several key employment, residential, commercial and tourist activity centers to the Kirkman Road terminal, making approximately 25 local stops. Northbound buses would proceed along International Drive from Kirkman Road to American Way and a temporary terminal at the Sea World complex. The initial Northbound route would make approximately 25 stops. As set forth in the Final Feasiblility Analysis the following service characteristics and criteria for the proposed new or restructured service on International Drive should include: The new service shall be implemented as soon as practicable. The proposed International Drive service will be provided 365 days a year from 5:00 a.m. to 2:00 a.m. The proposed level of service is five (5) to ten (10) minute headways. The International Drive service alignment shall be as depicted in Exhibit I of the Draft Analysis. The vehicles utilized for the International Drive service shall be new standard 30 foot coaches. A peak fleet of 12 coaches shall be provided with an additional provision of 4 coaches as spares. The system will require 2.5 terminal supervisors/starters who will be equipped with a van type vehicle. All maintenance and dispatch responsibilities shall be coordinated through LYNX Central Dispatch and Maintenance, currently located at 1200 West South Street, Orlando, Florida. All operators and supervisors must go through a special training program and must meet the qualifications required of LYNX drivers and supervisors. All vehicles must have equipment compatible with the LYNX radio communications program. LYNX must approve any fare/transfer policy as well as marketing strategy and/or policy. There shall be a formal maintenance and preventive maintenance program for the fleet and facilities which meets LYNX requirements. All labor, insurance, liability, maintenance, operations, safety systems, general reporting and recording, financial reporting and audits, and personnel/equal opportunity employment regulations required by or of LYNX must be met by the new system. All applicable licensing requirements, federal, state, and local, must be met. New or restructured fixed route scheduled bus service is necessary to meet the changing transportation requirements in the International Drive corridor. The service criteria enunciated in the Final Analysis constitutes the appropriate base-line to evaluate the dynamic service requirements of the International Drive corridor during a 2-year test period. The information provided to demonstrate the preparedness of private sector operators to undertake International Drive corridor service within the parameters of the service criteria which have been established is inadequate. No thorough, adequate, or credible comparison of costs and benefits has been offered to establish any potential benefits to contracting out the new or restructured service in the International Drive corridor. New or restructured fixed route scheduled bus service in the International Drive corridor should be established pursuant to the service criteria and alignment identified in the Final Analysis and be operated directly by LYNX as an in-house service. Staff should be authorized to enter into interlocal agreement with the District for said services.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that LYNX enter a final order which finds that: 1). WTI's is a substantially affected party and entitled to a formal hearing, pursuant to Section 120.57(1), Florida Statutes. LYNX's 1992 application for "Section 9" federal grant funds complied with the planning and grant requirements of the Federal Transit Act. LYNX complied with the Private Enterprise Participation requirements of the FTA and federal law. The level of demand for mass transportation service in the International Drive Corridor requires that increased service capacity be provided. LYNX can best provide the increased service capacity through its restructured service under the criteria set forth in the Final Feasibility Analysis and Staff Recommendation. WTI's request for attorney's fees and costs is denied. DONE and ENTERED this 28th day of August, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 28th day of August, 1995.
The Issue Whether the segment of N.E. 26th Street from Old Dixie Highway to its easternmost point in the City of Wilton Manors should be reclassified as an Urban Collector and reassigned to the City's road system as proposed by the Department of Transportation? Did the Department of Transportation comply with the requirements of Florida Administrative Code Rule 14-12.013(5) in connection with its proposed reclassification and reassignment of this road segment? If not, what remedial action, if any, should be taken?
Findings Of Fact Based upon the evidence received at hearing, the Hearing Officer makes the following Findings of Fact: N.E. 26th Street is an east-west artery that lies entirely within the incorporated area of Broward County. Its western terminus is North Andrews Avenue. As it runs east from North Andrews Avenue, it intersects with Old Dixie Highway and then North Federal Highway before ending in a cul-de-sac. The length of N.E. 26th Street from North Andrews Avenue to North Federal Highway is approximately two miles. A short distance west of where it intersects with North Federal Highway, N.E. 26th Street crosses over a bridge. The middle of the bridge marks the jurisdictional boundary between the City of Wilton Manors and the City of Fort Lauderdale. To the West of this boundary line, N.E. 26th Street is entirely within the corporate limits of the City of Wilton Manors. The remaining portion of N.E. 26th Street is wholly within the corporate limits of the City of Fort Lauderdale. From North Andrews Avenue to Old Dixie Highway (hereinafter referred to as "Segment 1"), N.E. 26th Street is a two-way, two-lane roadway with a posted speed limit of 30 miles per hour. Since 1978, Segment 1, which travels through a primarily residential area of the City of Wilton Manors, has been functionally classified as an Urban Collector and has been the jurisdictional responsibility of the City of Wilton Manors. The functional classification and jurisdictional assignment of Segment 1 are not in dispute in the instant case. From Old Dixie Highway to North Federal Highway (hereinafter referred to as "Segment 2"), N.E. 26th Street passes through a primarily commercial area and has a posted speed limit of 35 miles per hour. This portion of N.E. 26th Street has two eastbound lanes and two westbound lanes. It also has a turning lane separating eastbound and westbound traffic. The Department has proposed to change the functional classification of Segment 2 from a Minor Arterial to an Urban Collector and to reassign jurisdictional responsibility for Segment 2, to the extent it lies within the corporate limits of the City of Wilton Manors, from Broward County to the City. The instant controversy concerns these proposed actions. In 1987, the Department began the process of reevaluating the functional classification and jurisdictional assignment of all roads and road segments in Broward County, including Segment 2. Evaluation points were awarded to each of these roads and road segments in accordance with the Department's rules. Data collected by the Department reflected that the Average Daily Traffic on Segment 2 was 16,540 vehicles. Accordingly, Segment 2 was given seventeen points for traffic volume. It was also awarded two points for length; fifteen points for number of lanes; five points for speed; and fifteen points for being a divided roadway, for a total of 54 points. Other roads and road segments in Broward County received more evaluation points than did Segment 2. The combined length of these other roads and road segments with a higher point total than Segment 2 was not less than 416 miles. Therefore, the Department determined that Segment 2's functional classification should be changed from a Minor Arterial to an Urban Collector. Because N.E. 26th Street lies entirely within the incorporated area of Broward County, the Department further determined that the jurisdictional responsibility for Segment 2 should be reassigned to the City of Wilton Manors and the City of Fort Lauderdale, with the former exercising responsibility for that portion of the road segment within its corporate limits and the latter doing the same with respect to that portion of Segment 2 within its corporate boundaries. On July 29, 1988, following a public hearing on the matter, the Department sent a letter to the Mayor of the City of Wilton Manors advising him, among other things, of the foregoing conclusions it had reached regarding the appropriate functional classification of Segment 2 and the assignment of jurisdictional responsibility for this road segment. The letter was not sent by certified mail, return receipt requested. The City of Wilton Manors received the letter on August 4, 1988. By letter dated August 23, 1988, it requested that the Department reconsider its determination to functionally reclassify that portion of Segment 2 within the corporate limits of the City and to reassign it to the City's road system. In its letter, the City requested a formal hearing on the matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order functionally reclassifying that portion of N.E. 26th Street from Old Dixie Highway to the easternmost point of the City of Wilton Manors as an Urban Collector and assigning jurisdictional responsibility of this road segment to the City. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th of August, 1989. 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 30th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5068 The following are the Hearing Officer's specific rulings on the Proposed Findings of Fact submitted by the Department of Transportation: Accepted and incorporated in substance in this Recommended Order. Rejected as not supported by competent substantial evidence. It appears from the date stamp on the Department's July 29, 1988, letter to the City that it was received by the City on August 4, 1988, not August 9, 1988. Accepted and incorporated in substance in this Recommended Order, to the extent that it addresses Segment 2 of N.E. 26th Street. Insofar as it asserts that the Department proposes to functionally reclassify other segments of N.E. 26th Street, it is rejected as not supported by competent substantial evidence. Rejected as unnecessary. Rejected as more in the nature of a conclusion of law than a finding of fact. Rejected as more in the nature of a conclusion of law than a finding of fact. Rejected as more in the nature of a conclusion of law than a finding of fact. Accepted and incorporated in substance in this Recommended Order. Accepted and incorporated in substance in this Recommended Order. Accepted and incorporated in substance in this Recommended Order. Accepted and incorporated in substance in this Recommended Order. Accepted and incorporated in substance in this Recommended Order. Rejected as contrary to the greater weight of the evidence. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 George Richardson, Jr. City Attorney City of Wilton Manors 524 N.E. 21st Court Wilton, Manors, Florida 33305 Kaye N. Henderson, Secretary Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida" 32399-0450 Thomas H. Bateman III, Esquire General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450
Findings Of Fact At all times material hereto, Edward P. Skiff has been the owner and operator of Petitioner Skiff's Workingman's Nursery. For 28 years the nursery was located on State Road 7 (US 441), one of the busiest traffic arteries in Broward County. In 1981, Respondent Department of Transportation first contacted Skiff to advise him that he would be required to relocate his business due to the construction of I-595, the Port Everglades Expressway. In 1985 Respondent purchased the property on which Skiff's Workingman's Nursery was located and ordered Skiff to vacate the property by January 1, 1986. Between 1981 and 1985 Skiff searched for a comparable piece of property on which to operate a retail nursery in Broward County. As requested by the Respondent, Skiff submitted to the Department a list of six properties he was considering, only 2 or 3 of which were platted. There is no indication that Department employees objected to any of sites under consideration. Skiff closed on his new site located on Hillsboro Boulevard in Broward County in 1985. At the time, that site was not yet platted, and Skiff was required by Broward County to plat the property. Prior to his purchase of the site, no mention was made of impact fees by the Department or anyone else. Skiff began processing his application for plat approval with Broward County. During the processing, he was advised that he would be required to pay impact fees to Broward County for the relocation site, a requirement that had been imposed by Broward County for any site within that county and not just for the relocation site selected by Skiff. The Department of Transportation knew at the time that impact fees had been imposed for any development in Broward County so that relocating businesses would be required to pay such fees. When Skiff was several months into the platting process with Broward County he was further advised that his relocation site had been annexed by the City of Coconut Creek, Broward County, Florida. Accordingly, Skiff became obligated to pay impact fees assessed by the City of Coconut Creek in addition to the impact fees assessed by Broward County. Skiff was required to pay to Broward County transportation impact fees as a condition precedent to recording the plat for Skiff's Workingman's Nursery. He was also required to pay to the City of Coconut Creek water, sewer, and street connection charges as a condition precedent to obtaining a building permit and a certificate of occupancy. Skiff paid to Broward County, in order to record his plat, impact fees in the amount of $32,887.00. Skiff also paid to the City of Coconut Creek water and wastewater impact fees in the amount of $4,499.20 and sewage and street connection charges in the amount of $24,634.00. None of the connection fees paid to the City of Coconut Creek involved bringing the utilities from the right-of-way to a building or improvement upon Skiff's property. The impact fees imposed by the City of Coconut Creek and by Broward County were necessary and reasonable. The fees were derived according to a specific formula which has a correlation to estimated usage, and they were not arbitrary numbers. Likewise, the mandatory sewage connection charges were both reasonable and necessary and involved the construction of a lift station required by the City of Coconut Creek. When Skiff submitted to Respondent his claim for reimbursement of the impact fees paid by him to Broward County and the City of Coconut Creek, Respondent preliminarily denied that claim reasoning that operating expenses of a business are not reimbursable under the Department's relocation assistance program. The Department never considered whether an impact fee is reimbursable as a license, permit, or certification required of a displaced person at the replacement location. The sole basis for the Department's denial was a memorandum written by an employee of the United States Department of Transportation Federal Highway Administration in a different case which did not address the question of whether an impact fee qualifies as a reimbursable permit, license, or certification required by a governmental entity prior to the creation of a new business. At the time that Respondent denied Skiff's claim for reimbursement of impact fees, the district relocation administrator believed those fees to be reimbursable. However, the state relocation administrator who was new to her job, who could not define the term "operating expense of a business," who was unaware of the regulations qualifying permits and licenses and certifications as expenses eligible for reimbursement, and who did not consider whether the impact fees were eligible under those provisions, denied the claim. Her successor also believed the claim to be reimbursable. There are no definitional guidelines as to the terms "operating expense", "license, permit or certification", or any of the other terms relevant to these proceedings, contained in either the Code of Federal Regulations or in the Florida Department of Transportation guidelines. Accordingly, those terms must be given their common, everyday meaning. An impact fee is a developmental permit fee, i.e., a one-time fee mandated by a governmental entity which must be paid prior to that governmental entity's permitting development; it is a charge which allows a new or relocating business to start conducting business activities at a new location. An impact fee is therefore a start-up cost and not an operating expense since an operating expense is an ongoing cost of doing business for an existing business. The Department's decision-making personnel who testified in this proceeding all agree that the term "operating expense" assumes that a business is in operation. The Department has failed to consider whether impact fees are reimbursable under the proper criteria. In preparation for its move to the relocation site, Skiff's Workingman's Nursery paid professional consultant's fees (architectural and engineering) in the amount of $14,915.85 for site planning and site preparation planning for the a nursery. Skiff submitted his claim for reimbursement for design services to Respondent. Although the district relocation administrator believed those costs to be reimbursable under the specific provision allowing reimbursement for professional services related to the move of personal property, the claim was denied by the state relocation administrator who was new to her job and who stated that nurseries were excluded, without identifying where in the law such an exclusion was written. While the Department was considering Skiff's claims for reimbursement for impact fees and design services, it conducted its own survey of nurseries asking those nurseries for information pertaining to relocation of a nursery, asking specifically about eligible move costs and necessary land and soil preparations if a nursery had to be relocated to virgin land. Responses received by the Department indicated the importance of site location, plant layout, and soil considerations required by both the plants and customers of the nursery and the importance of paying impact fees. There is no evidence that the information the Department gleaned from its own survey was considered in determining whether the payment of impact fees by a nursery and whether the payment of professional design services by a nursery were reasonable and necessary expenses incurred by a displaced nursery required by the government to relocate to a new site. The Department took the position that although nurseries were an exclusion from the provision that businesses were entitled to be reimbursed for professional services attendant to relocation, an exception to the exclusion could be granted based upon appropriate documentation. It concluded, however, that Skiff's had not submitted the appropriate documentation. Yet it failed to advise Skiff as to what documentation would be appropriate and failed to request any additional documentation. After Skiff's plat was recorded, he filed an application with Broward County to modify that plat in order to provide access to the nursery from Hillsboro Boulevard, the main thoroughfare, rather than requiring customers to gain access to the nursery from the back of the nursery off a side street. Access from Hillsboro Boulevard was approved, and Skiff paid $7,500.00 to construct a traffic turn lane from Hillsboro Boulevard onto the nursery property. The first claim for reimbursement for that cost which would give Skiff's Workingman's Nursery access to a major thoroughfare comparable to the major thoroughfare from which it had been displaced by the Department was made during the course of the final hearing in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered: Granting Petitioner's claim for reimbursement for water and wastewater impact fees imposed by the City of Coconut Creek in the amount of $4,499.20; Granting Petitioner's claim for reimbursement for transportation impact fees imposed by Broward County in the amount of $32,887.00; Granting Petitioner's claim for reimbursement for sewage and street connection charges imposed by the City of Coconut Creek in the amount of $24,634.00; Granting Petitioner's claim for reimbursement for professional consultant's fees for design services in the amount of $14,915.85; and Denying without prejudice Petitioner's claim for reimbursement for the cost of constructing a traffic turn lane in the amount of $7,500.00 which was not properly a part of this proceeding. DONE and RECOMMENDED this 28th day of November, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1652 The first unnumbered paragraph of Petitioner's proposed findings of fact has been rejected as being unnecessary for determination of the issues herein. Petitioner's second through sixth unnumbered paragraphs of Petitioner's proposed findings of fact have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1-3 have been rejected as not being supported in their entirety by the weight of the evidence in this cause. COPIES FURNISHED: Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 J. Philip Landsman, Esquire Emily Tracey, Esquire Broward Financial Centre 500 East Broward Boulevard Suite 1850 Fort Lauderdale, Florida 33394 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32301 Thomas H. Bateman III, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32301 =================================================================
The Issue The issue in this proceeding is whether the proposed action of the Department with regard to procurement of the State of Florida Statewide Law Enforcement Radio Communications System, DMS Number 21-725-001-W, is contrary to the Department's governing statutes, rules, policies, or any applicable bid or proposal specification.
Findings Of Fact General Background Pursuant to Section 282.1095, Florida Statutes, the State of Florida established the State Agency Law Enforcement Radio Trust Fund (Trust Fund) in the Department to fund the construction, maintenance, or support of a statewide law enforcement radio system. On or about January 31, 2000, the Department issued RFP No. 21-725-001-W entitled "Statewide Law Enforcement Radio Communications System." The RFP sought proposals for providing the statewide law enforcement radio communication system. The purpose of the proposed radio system is to allow various state law enforcement officers to communicate from one end of the state to the other. Motorola was the vendor responsible for the construction and operation of Phases I and II of the radio system. In this procurement, the Department sought proposals for continued maintenance and operation of Phases I and II and completion of Phases III, IV, and V of the radio system. The Department sought "innovative proposals from the private sector that will result in a more economical and timely completion of a statewide radio communications system." The Department stated that it would "consider all approaches, methods, alternative technologies . . . provided that the proposal is reasonable, clearly achievable, and can be accomplished with minimal or no cost to the State of Florida to the extent permitted by law." On March 7, 2000, Com-Net and Motorola submitted proposals in response to the RFP. Com-Net and Motorola were the only two vendors that submitted proposals. On April 4, 2000, the Department posted a notice terminating the RFP and declared both proposals non-compliant. On April 5, 2000, the Department sent a letter to Com- Net and a letter to Motorola, advising each vendor of the major areas of the proposals deemed non-responsive. The letters also informed the vendors that the Department had determined to follow a negotiation process pursuant to Section 287.057(4), Florida Statutes. On April 10, 2000, the Department sent a letter to Com- Net and a letter to Motorola, advising each vendor of the procedures for the negotiation process. The letters included a list of questions and vendor evaluation guidelines and advised the vendors to bring their proposals into compliance with the specifications and requirements of the terminated RFP document. The April 10, 2000 letters also advised Com-Net and Motorola that the Department reserved the right to negotiate concurrently or sequentially with the vendors. On April 19, 2000, Com-Net and Motorola each submitted responses to the questions in the Department's April 10, 2000 letters, revisions to technical and financial proposals, and other information. After Motorola and Com-Net submitted their respective modified proposals on April 19, 2000, the Department conducted an initial meeting on May 12, 2000, with both vendors to provide further direction on how the negotiation process would work and to answer questions. At the May 12, 2000 meeting, the Department introduced a five-member evaluation team. The Chairman of the evaluation team, Roy Cales, explained to the proposers that there would be an evaluation process followed by a negotiation process. During that process, focus would initially be on the technical proposals, while later consideration would focus on cost proposals. Each member of the evaluation team brought different relative strengths and perspectives to the decision process. Kourosh Bastani's primary expertise was technical. As the coordinator of Phase I and II, field manager of the radio system, and twenty years' experience in the Florida Highway Patrol, Captain Keith Gaston brought the skills and perspective of a system user and manager. Lisa Saliba has an extensive background in state budgeting, planning, and coordination of projects with agencies. Rick Blankenship is an investment banker and brought considerable financial expertise to the process. As Chairman of the evaluation committee and Chief Information Officer for the State of Florida, Roy Cales possesses technical expertise and experience with state procurement of technology products. The evaluation team was assisted by a technical advisory team composed of technical experts employed by the state, Bruce Meyers and J.P. Saliba, and external technical consultants, Jeff Ellis and Mike Thayer of the Gartner Group. From May 12, 2000 to June 22, 2000, representatives of the evaluation team and technical advisory team met on several occasions with the proposers, both individually and together. During these meetings, the parties engaged in discussions regarding changes to both technical/financial aspects of the proposals and potential contract. After the series of meetings with one or both vendors present, the evaluation team met in private on June 22, 2000, to review the proposals one last time and to make certain all team members understood the financial aspects of both proposals. On June 23, 2000, the evaluation team met in public and voted to rank Com-Net's proposal first and Motorola's proposal second, and to negotiate sequentially beginning with Com-Net. On that same day, the Department posted notice of its proposed agency action which stated that if the negotiations with Com-Net were successful, a contract would be awarded to Com-Net. If the negotiations with Com-Net were not successful, the Department would proceed to negotiate with Motorola and, if successful, a contract would be awarded to Motorola. On July 10, 2000, Motorola filed its Petition to Formally Protest Decision to Negotiate Sequentially, and Initially, with Com-Net Ericsson Critical Radio Systems, Inc. The sole relief sought by Motorola in its Petition is a final order "declaring that the Department is required to conduct concurrent negotiations with both Com-Net and Motorola . . . and that Motorola be ranked No. 1." On or about July 19, 2000, the Department referred Motorola's protest to the Division of Administrative Hearings and requested that an Administrative law Judge be assigned to conduct a hearing. On August 9, 2000, the Administrative Law Judge entered an Order granting the Petition of Com-Net to intervene in this proceeding. The Evaluation Process Motorola's Allegations The Department terminated the RFP with its April 4, 2000 posting, and any specific scoring or weighting stated in the RFP. The Department's April 10, 2000 letter, explicitly advised that the state would use the attached evaluation criteria only as a "negotiation guideline" and that "these guidelines may not be all-inclusive of the criteria to be considered. Further not all of these criteria will necessarily be considered with the same weighting." Motorola, in its Petition acknowledges that it "was directed [by the Department's April 10, 2000 letter] to forget the RFP, think out of the box, and be creative." By Motorola's own admission, the Department's clear direction to "forget the RFP" and "think out of the box" put Motorola squarely on notice that the RFP was at most a guideline in the Section 287.057(4), Florida Statutes, negotiation process. In internal e-mails, Motorola personnel stated that the Department had "given us the opportunity to change the assumption of our models, get outside the bounds of the RFP and find ways to reduce costs . . . ." Motorola understood that in addition to its response to the April 10, 2000 letter, it had the opportunity to submit technical and financial alternatives "outside the boundaries of the RFP and current technical question submittals." Motorola cited no provision which would prohibit the Department from disregarding the RFP and negotiating in the best interests of the state. Motorola alleged that the Department impermissibly permitted Com-Net to materially alter its proposal after the April 19, 2000 deadline for re-submission of modified proposals during "improper negotiations not in accordance with the procedures set forth in the April 10, 2000 letter." Motorola, however, presented no evidence at hearing as to what "improper negotiations" occurred. The evidence presented does establish that Motorola availed itself of an opportunity to significantly change its April 19, 2000 cost proposal. A simple comparison of Motorola's April 19, 2000 and June 22, 2000, cost proposals reveals substantial differences. Motorola did not establish at any time in this proceeding an absence of Department authority to allow proposers to change their proposals after April 19, 2000. Both proposers were clearly on notice that the Department was seeking changes to the proposals. Both proposers were informed of the process and had an equal opportunity to respond. There was no advantage to one proposer over another when the Department sought modifications to proposals during the negotiation process under Section 287.057(4), Florida Statutes. Evaluation Team Determination Four out of five members of the evaluation committee voted for sequential negotiations and ranked Com-Net first and Motorola second. The only member of the evaluation committee who did not rank Com-Net first and vote for sequential negotiations was Kourosh Bastani. Mr. Bastani ranked Motorola first and voted for concurrent negotiations, although he acknowledged that the rankings were meaningless in concurrent negotiations. He had concerns about both proposals, describing Motorola's technical proposal as "acceptable" and Com-Net's technical proposal as "viable," yet believed that both vendors "provided good proposals, and they were worthy of further consideration." Despite being the only team member who did not rank Com-Net first and vote for sequential negotiations, Mr. Bastani unequivocally expressed his belief in the fairness of the evaluation process and respect for the votes of the other members by stating: I believe that the process provided me an opportunity to objectively review both proposals and provide an opportunity for both vendors to provide clarifications and answer questions. And I was able to, in a fair and objective manner, arrive at my decision. So I believe in the integrity of the process, whether I agree with their vote or not, I think they reached it in an informed manner. Mr. Bastani could think of no basis or prejudice in the process that would undermine the validity of the decision. Captain Gaston voted to negotiate sequentially with Com-Net first because he felt the cost difference between Motorola and Com-Net was so great it was unlikely Motorola was going to get within the "ballpark." His interest is in securing a contract as quickly as possible and he believed concurrent negotiations would delay the final outcome. Ms. Saliba voted to negotiate sequentially with Com-Net first because she wanted the opportunity to concentrate on negotiations with a single vendor without the distraction of lobbying and external communications from representatives of competing vendors. In addition to the cost factor, she favored Com-Net because Com-Net is attempting to gain a "foot-hold" in the industry through this contract to establish itself as a credible provider and therefore is committed to reaching an agreement that will satisfy the state's needs. She did not have that confidence in Motorola. Mr. Cales voted to negotiate sequentially with Com-Net first based on a determination of the overall best value for the state. He informed the vendors from the beginning of the evaluation process that if one stood out above the other, the negotiations would be sequential. In that circumstance, concurrent negotiations would have penalized the vendor that stood out and Mr. Cales determined that Com-Net stood out. Additionally, in Mr. Cales' view, concurrent negotiations (e.g., double sessions with a single DMS negotiation team) would take twice as long and time is a critical factor. Com-Net's proposal stood out because it guaranteed a system that would do the job, guaranteed a cost within the trust fund revenue stream and guaranteed the state would have the level of service it would contract for without additional cost to the state. Motorola's proposal did not provide those guarantees. In fact, the only way the Motorola proposal would not cost the state millions of dollars more than Com-Net would be if projected tower lease revenue was realized, and those projections were unreasonable and unsubstantiated in Mr. Cales' assessment. Mr. Blankenship voted to negotiate sequentially with Com-Net first based on a determination that doing so would be in the best interests of the state because Motorola required the state to assume risk while Com-Net did not; Motorola required the state to borrow money which was not authorized; Motorola's proposal entailed operating at a deficit for years three through seventeen; Motorola's tower revenue projections were unreasonable and unreliable; and Com-Net's proposal included technology refreshers that Motorola did not. Technical Proposals After several meetings with both vendors to review their technical proposals and after considering the input of the technical committee, the evaluation team determined that the two technical proposals were either equivalent or that, if not equivalent, both vendors could do the job. The responsiveness of both vendors' technical proposals is not at issue in this proceeding. Both vendors met any "threshold" requirements in the Department's April 10, 2000 letter, and were eligible to be considered for negotiation. Cost Proposals Motorola alleges that the Department "failed to properly calculate the cost to the State of Motorola and Com- Net's proposals," and the Department "improperly assigned a zero revenue figure to the revenue sharing financial component of Motorola's June 22, 2000 financial proposal." Both Com-Net and Motorola submitted cost proposals on April 19, 2000, and submitted revised cost proposals on June 22, 2000. Both Com-Net and Motorola outlined modifications to their respective cost proposals during meetings with the Department evaluation team on June 22, 2000. The major components of both vendors' cost proposals are similar, including up-front cash payments from the vendor to the state, an initial first-year payment from the state to the vendor of a portion of the current balance in the Trust Fund, continuing payments from annual Trust Fund revenues to the vendors, and sharing with the state of revenues that the vendors expect to derive by renting excess tower space to third party users of "tower tenants." While the major components in the two proposals are similar, the dollar figures and guarantees differ substantially. The proposals can be fairly summarized based on the major components which most greatly affect the cost to the state. On April 19, 2000, Com-Net's proposal was for revenue sharing to the state of 33 percent, an initial capital contribution from Com-Net to the state for tower upgrade and enhancement, an initial payment to Com-Net of $39 million from the current Trust Fund balance, and annual payments to Com-Net of all Trust Fund revenues, plus $2 million per year. On June 22, 2000, Com-Net reduced the revenue sharing component to 15 percent, eliminated the $2 million per year payment, and proposed to charge the state the annual net revenues from the Trust Fund. Com-Net represented to the evaluation team that this proposal would give the state its "entire wish list within the confines of the trust fund." Com-Net proposed to build, operate, and maintain the radio system for no more than the amount of the current balance and annual revenues in the Trust Fund. Steve Savor, Chief Executive Officer of Com-Net, told the evaluation team on June 22, 2000: We want you to be in a position where you do not have to go back to the Legislature. We are guaranteeing a position where we do not come back to you. Regardless of whether the state ever receives a single dollar of revenue sharing, it can obtain the radio system from Com-Net without exceeding the confines of the Trust Fund. The total cost to the state of Com-Net's June 22, 2000 proposal as calculated by the evaluation team was approximately $331 million. Com-Net's June 22, 2000 proposal included an initial contribution from Com-Net to the state of $20 million, a first-year payment to Com-Net from the Trust Fund of $39 million, and annual payments from the state to Com-Net of all future Trust Fund revenues over twenty years totaling $348 million. Com-Net also proposed to include two features not included in Motorola's June 22, 2000, proposal - a mobile data system valued between $25 million to $40 million and "technology refreshes" valued between $10 million and $50 million. Motorola's April 19, 2000 cost proposal included two alternates. The cost of the primary proposal was approximately $80 million more than the cost of the alternate. Motorola acknowledges that its cost proposal as of April 19, 2000 was "considered outrageous" by the Department. At the June 22, 2000 evaluation team meeting, Motorola presented a revised cost proposal which it explained to the team. Motorola proposed a total cost of $418 million. This figure exceeded the projected Trust Fund revenues of $348 million by $70 million. Because the proposed annual payments to Motorola would exceed available monies to the state in the early years, Motorola proposed to loan the state the funds to cover these shortfalls, and charge the state an estimated total of $55 million in interest. In that the interest cost is only an estimate and funds available to the state could differ from that projected by Motorola, the actual interest cost to the state could increase. Motorola's witness, David Kliefoth, testified that despite the cost of $418 million offered to the Department in Motorola's June 22, 2000 proposal for the project, Motorola's real or "net" price is actually $364 million. Even after making adjustments to the costs of both proposals, Mr. Kliefoth admitted that Motorola's "net price" was $34 million more than Com-Net's price. In order to pay for the radio system, Motorola proposed three sources of funds: i) Trust Fund current balance and projected annual revenues of $348 million, ii) revenue sharing from third party tower rentals of $68 million, and iii) an initial cash contribution from Motorola of $32 million, for a total of $448 million. Although the annual Trust Fund revenues are not sufficient to cover the annual payments to Motorola, the company contends that its proposal provides the state with ample revenue sharing that will allow the state to have a $30 million positive balance in the Trust Fund at the end of twenty years. Yet, despite repeated requests by the evaluation team, Motorola failed to guarantee the projected amount of revenue sharing required to "make the deal work" within the confines of the "Trust Fund. As Motorola representatives told the evaluation committee on June 22, 2000, if Motorola's projected third party tower rental revenues or the projected Trust Fund revenues did not materialize, the state would be expected to make up the difference. The most Motorola was willing to do was to say they "could talk about it." As a basis for its third party tower rental revenue projections, Motorola told the evaluation team on June 7, 2000, that its tower company partner, Pinnacle Tower, had an average of 4.9 tenants per tower nationally and an average of 3.9 tenants per tower in Florida. On June 22, 2000, just two weeks later, Motorola doubled the estimate, claiming that Pinnacle Tower would average 10 tenants per tower in Florida. Motorola raised its estimate without any explanation and despite the fact that tower industry financial research analysts, such as Lehman Brothers, limit their estimates to a more conservative five tenants per tower. In contract to Motorola, Com-Net used a more conservative figure of 1.1 to 2.4 tenants per tower when estimating future third party tower rental revenues. As Com-Net stated to the evaluation team at its June 22, 2000 meeting, third party revenues are "speculative at best." Because they considered both vendors' projections of potential future revenues to be speculative and because neither vendor could guarantee the projections, the evaluation team decided to disregard both vendors' revenue sharing projections and evaluate both proposals based on cost alone. On that basis, the evaluation team determined that the Motorola proposal would be significantly more expensive to the state. Depending on how the proposals were viewed and the assumptions made, most of the evaluation team members determined that the Com-Net proposal would cost the state approximately $91 million less than the Motorola proposal. Each of the evaluation team members decided that the two technical proposals were either equivalent or that, while not equivalent, both vendors could do the job. Having determined that both proposers could do the job, the paramount consideration for most team members became cost. Motorola's internal e-mails demonstrate that it fully understood the importance of cost to the state. Motorola's June 9, 2000 internal e-mail states that the evaluation committee "continues to place higher percentage priority on cash flow of the trust fund and revenue sharing funds versus technology, system performance and long-term maintenance" and that "the State is trying to back into the completion of [the radio system] by using funds available and doing the best they can [to] reduce the scope of work and technology if that's what it takes to finish the State buildout." Motorola alleges that the Department impermissibly altered Motorola's financial proposal such that Motorola's true financial proposal was not fairly considered. Specifically, Motorola argues that the evaluation team disregarded Motorola's revenue-sharing projections by assigning a zero revenue figure. Yet Motorola points to no statute, rule, or policy which would prohibit the Department from such flexibility in evaluating the proposals. Motorola refused to guarantee the revenue-sharing projections and the Department was free to accept or reject such projections. Motorola also complains that the evaluation committee did not inform Motorola of its decision to disregard revenue-sharing projections; yet again Motorola points to no authority imposing an obligation on the committee to do so. The evaluation team treated Motorola and Com-Net equally in this regard by ignoring both vendors' revenue projection and focusing instead on cost. The team recognized the risks and speculation involved in predicting market conditions and revenue streams twenty years into the future. Motorola also alleges that it was told to provide a stronger revenue-sharing model, and thus having been explicitly solicited, its revenue-sharing projections should not be disregarded. However, Mr. Cales established in his testimony that what he asked for was not a higher percentage of revenue sharing or for the state to bear more risk, but rather by "stronger model" he meant he wanted to see the numbers and assumptions behind the projections. Mr. Cales was especially concerned that Motorola kept changing its projected tower revenue figures and that except for changes in the sharing percentage, the total revenue projections should not change. At 6:51 p.m., on June 22, 2000, Motorola transmitted by e-mail to a Department technical consultant additional information from Pinnacle Tower relating to tower tenants. At the time of the e-mail the evaluation team was in session and the team did not know of the information that night. Some of the team members saw it at some point, but the information would not have affected their votes. Pinnacle Tower had a full opportunity to state its case for tower revenues at the June 7, 2000, meeting and at that time projected only five tenants per tower. Moreover, Pinnacle Tower was present at the meeting site on June 22, 2000, but Motorola elected not to have them present in the meeting room even though Motorola understood the team had serious concerns about the revenue projections. As Mr. Cales made clear in his testimony, the last-minute information from Pinnacle Tower concerning tenant projection did not resolve concerns over the substantial increases in projections or their speculative nature. Further as to Motorola's tower revenue projections of June 22, 2000, Mr. Bastani believed the projection of 10 tenants per tower was unrealistic. The other team members likewise did not accept Motorola's assumption that it would achieve 10 tenants per tower. Ultimate Findings of Fact Motorola's June 22, 2000 proposal did not guarantee that the cost of the contract would be within the revenue from the Trust Fund. Motorola's projections of revenue from tower leases was not reliable and was not guaranteed by Motorola. Com-Net's cost proposal of June 22, 2000, was substantially less costly than Motorola's proposal and provided a guarantee that the cost of the contract would not exceed the revenue from the Trust Fund. The decision to negotiate sequentially beginning with Com-Net was logical and reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Management Services enter a final order denying Motorola's protest. DONE AND ENTERED this 3rd day of October, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 3rd day of October, 2000. COPIES FURNISHED: C. Everett Boyd, Jr., Esquire Melissa Fletcher Allaman, Esquire Ervin, Varn, Jacobs & Ervin Post Office Drawer 1170 Tallahassee, Florida 32302 W. Robert Vezina, III, Esquire Mary M. Piccard, Esquire Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301 William E. Williams, Esquire J. Andrew Bertron, Jr., Esquire Huey, Guilday & Tucker, P.A. 106 East College Avenue, Suite 900 Tallahassee, Florida 32301 Alan C. Sundberg, Esquire Mark K. Logan, Esquire Smith, Ballard & Logan, P.A. 403 East Park Avenue Tallahassee, Florida 32301 Shari M. Goodstein, Esquire Shipman & Goodwin, LLP One Landmark Square Stamford, Connecticut 06901 Pennington G. Kamm, Esquire Terry A. Stepp, Esquire Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Cynthia Henderson, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms. The notice of violation in this cause names Gene Simms as the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation take no action regarding the subject DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Gene Simms Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186 Bonifay, Florida 32425
Findings Of Fact Respondent, Circle K Corporation (Circle K), is the owner of a piece of property at mile marker 30.5, big Pine Key, Monroe County, Florida. As sited, the subject property is located within that part of Monroe County designated as an Area of Critical State Concern (ACSC). On June 26, 1986, Circle K applied to Monroe County for a building permit to construct a convenience store, with two service islands for the sale of gasoline, upon the subject property. As sited, the property occupies the southeast corner of the intersection of U.S. 1, also known as State Road 5, and Chapman Road. As proposed, the convenience store would face U.S. 1, and would accord its patrons direct access to U.S. 1 by way of a curb cut that was located 80 feet from the intersection of U.S. 1 and Chapman Road, and direct access to Chapman Road by way of a curb cut that was located 60 feet from the intersection of U.S. 1 and Chapman Road. Attached hereto as Appendix II is a copy of Circle K's site plan, which graphically depicts the proposed project and curb cuts. Pertinent to this case, that portion of Circle K's plan which sought approval to gain direct access to U.S. 1 by way of a curb cut that was located 80 feet from Chapman Road was denied by Monroe County's Planning Director. Circle K appealed that decision to the Monroe County Planning Commission which, on September 3, 1987, reversed the decision of the planning director and approved Circle K's proposal. In so doing, the planning commission articulated the following reasons for its action: The decision of the Planning Director is overturned and the appeal is granted pursuant to: (1. Section 9-1404 granting temporary parallel access on the basis that to deny this would create a safety hazard. AND (2. The FD0T permit is to be considered superior to local driveway permitting. The FDOT (Florida Department of Transortation) permit referenced in the Commission's decision was a connection permit issued by FDOT to Circle K on May 28, 1987. That permit authorized Circle K to connect its driveway to U.S. 1, provided the connection was constructed in accordance with existing FDOT regulations, and carried the following legend conspicuously stamped thereon: VALIDITY OF THIS PERMIT IS CONTINGENT UPON PERMITTEE OBTAINING NECESSARY PERMITS FROM ALL OTHER AGENCIES INVOLVED. On September 25, 1987, the Monroe County Building and Zoning Department, in accordance with the Commission's decision, issued Permit No. A18731 to Circle K. That permit approved Circle K's plan to construct a convenience store on the subject property, with direct access to U.S. 1 as initially proposed. Petitioner, Department of Community Affairs (Department), pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission) contesting the propriety of the aforesaid permit (development order) because it authorized development with direct access to U.S. 1 by way of a curb cut spaced less than 400 feet from an existing street on the same side of U.S. 1. Monroe County land development regulations Pertinent to this case, Monroe County Land Development Regulations (MCLDR) provide: ... ACCESS STANDARDS Sec. 9-1401. Major Road Access. No structure or land shall be developed, used or occupied unless direct access to U.S. 1 or County Road 905 is by way of a curb cut that is spaced at least 400 feet from any other curb cut that meets the access standards of the Florida Department of Transportation or an existing street on the same side of U.S. 1 or County Road 905. Sec. 9-1402. Parallel Access. Lots that cannot meet the major access standard in Section 9-1401 shall take access from platted side streets, parallel streets or frontage roads. Such access shall be acquired by installing a parallel street or frontage road, through combined parking lots or by combining lots by sharing drives, or the provision of easements of access. * * * Sec. 9-1404. Temporary Access. No applicant shall be denied development approval for the sole reason that the lot cannot meet the requirements of Sections 9-1401 or 9- 1402. To provide access the Director of Planning shall issue a temporary access permit provided that the landowner's site plan provides for the eventual connection to a parallel access on an adjoining property, and that the owners agree, with suitable legal documents to close the temporary access when connection to adjoining properties is feasible. The foregoing provisions of Monroe County's land development regulations have been found consistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern, and constitute land development regulations for the Florida Keys Area of Critical State Concern in Monroe County.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue permit number A18731, and deny Circle K's application for such permit. It is further recommended that such final order specify those items set forth in paragraph 7, Conclusions of Law, as the changes necessary that would make Circle K's proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1988.
