The Issue The issue is whether AHG Hotels, LLC's application for a Type B site plan and deviation should be approved.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background On September 11, 2002, the Development Review Committee (DRC) of Respondent, City of Tallahassee (City), approved a Type B site review application authorizing the construction of a Hampton Inn & Suites by Respondent, AHG Hotels, LLC (AHG). The DRC also granted AHG's request for a deviation from development standards contained in Section 10.6RR of the City's Zoning Code by allowing AHG to exceed the four-story height limitation and to add a fifth floor to the structure. Two other deviation requests by AHG were determined to be either inapplicable or exempt from Zoning Code requirements because of vesting, and thus they are not at issue here. On October 10, 2002, Petitioner, Capital City Hotels, Inc. (Petitioner), which owns and operates a Hilton Garden Inn near the proposed construction, timely filed a Petition for Formal Proceedings to contest the approval of the deviation request. On October 15, 2002, a determination of standing as to Petitioner was issued by the Tallahassee-Leon County Planning Commission (Commission), which will issue a final order in this matter. As stipulated by the parties at hearing, the only issue is whether AHG failed to satisfy three of the seven criteria that must be met in order for the DRC to grant a deviation. Those disputed criteria are found in paragraphs (iii)-(v) of Section 23.3 of the City's Code of Ordinances (Code) and provide as follows: The deviation requested is the minimum deviation that will make possible the reasonable use of the land, building, or structure; and The strict application of the requirements of this chapter will constitute a substantial hardship to the applicant, which hardship is not self- created or imposed; and There are exceptional topographic, soil, or other environmental conditions unique to the property; The parties agree that all other criteria for the site plan and deviation have been satisfied by AHG. In addition, a related request by AHG for a technical amendment to the boundaries of the parcel will be granted by the DRC, assuming that AHG obtains a favorable ruling in this case. History of the Property The property which is the subject of this case is identified as lot of record 454 and fronts on the west side of Lonnbladh Road, lies south of Raymond Diehl Road and several hundred feet east of Thomasville Road, and is just southeast of the major intersection of Interstate 10 and Thomasville Road in Tallahassee. The zoning for the property is Commercial Parkway (CP), a mixed-use zoning district which applies to areas exhibiting an existing development pattern of office, general commercial, community facilities, and intensive automotive commercial development abutting urban area arterial roadways with high traffic volumes. Among the numerous permitted uses in that land use category are hotels and motels. The property is part of a 7.1-acre site originally owned by Kingswood Land Partners, Ltd. (Kingswood). In January 1990, Kingswood obtained from the City a minor subdivision approval, dividing the 7.1 acres into three lots of record, including lot of record 454. The three lots consisted of a 2.44-acre lot running along most of the western portion of the property with the exception of a small area on the southern end, a 1.68-acre lot on the northeast portion of the property, and a 2.98-acre lot on the southeast portion of the property (lot of record 454). In November 1990, Kingswood received from the City a verification of vested status (vested rights certificate) for the 7.1-acre site. The vested rights certificate provided that the 7.1-acre site was exempt from the consistency and concurrency provisions of the Tallahassee-Leon County Comprehensive Plan (Plan) and was vested for an 89,887 gross square foot commercial non-medical office building and a 135- unit hotel/motel. In 1991, Kingswood utilized the vesting for a 135- unit, five-story hotel and constructed what is now known as the Cabot Lodge on the 2.44-acre lot. It also constructed on part of the southeastern 2.98-acre lot a paved area with parking places. In 1992, Kingswood conveyed to Twin Action Hotels, Inc. (Twin Action) the 2.44-acre lot which included the Cabot Lodge Hotel, but not the paved parking area on the 2.98-acre lot. The same year, Kingswood also conveyed to New Horizons Unlimited, Ltd. (New Horizons) the remaining two lots, which two lots were vested for a commercial non-medical office six- story building of 89,887 gross square feet. At the time of the conveyances of the New Horizons property and the Cabot Lodge property to New Horizons and Twin Action, respectively, these parties entered into a Grants of Reciprocal Easements dated June 23, 1992, recorded in Official Records Book 1570, at page 1072 of the Public Records of Leon County, Florida. Around 1994, the Florida Department of Transportation acquired .333 acres of the northernmost lot owned by New Horizons for a project which included realigning and four-laning Raymond Diehl Road and relocating the eastbound entrance ramp to Interstate 10, immediately in front of the Cabot Lodge lot. This acquisition reduced the New Horizons 1.68-acre lot to 1.347 acres. On October 14, 1998, the City approved a vested rights transfer request submitted by New Horizons, which provided that the New Horizons property could be used for a 107-room, four-story business hotel and 59,162 gross square feet of commercial non-medical offices, instead of the vested 89,887 gross square feet of commercial non-medical offices. Since the acquisition by New Horizons of the two remaining lots, that property has remained vacant and unimproved with the exception of the westernmost portion immediately south of the Cabot Lodge building, on which is located pavement and parking spaces. The parking spaces are not legally available to Cabot Lodge for use. The property located immediately west of the Cabot Lodge 2.44-acre lot is property which is referred to as the Thomasville Road Executive Park (Executive Park) property. On an undisclosed date, this property was divided into three separate lots by a minor subdivision approval consisting of Parcel A on which was constructed the Unisys Building and parking spaces, Parcel B which is now improved with a Hilton Garden Inn owed by Petitioner, and Parcel C which remains undeveloped. In 1996, Petitioner filed its site plan application to develop Parcel B. Included in the site plan application was a request for a technical amendment to adjust the boundary lines between Parcels A and B of the Executive Park property. Like AHG has done here, Petitioner also requested a deviation to the then height limitation of 45 feet, requesting that the City allow it to build the building 50 feet high, rather than the required 45 feet. Although the property on which the Hilton Garden Inn is now located was vested for a three-story commercial office building, subject to CP zoning, the City agreed that the vesting could also be used for a hotel use consisting of four stories rather than three stories. The City granted Petitioner's request to allow it to build a four-story hotel on Parcel B. It also granted Petitioner a height deviation so that the midpoint or peak of the roof would be not higher than 50 feet. However, the top of the roof is 59 feet, 6 inches. The facility has 99 rooms. No objection was made by Cabot Lodge, Unisys, or New Horizons to Petitioner's application for approval of its site plan, the technical amendment adjustment to boundary parcels, the use of the property for a four-story hotel instead of a three-story office building, or the granting of a height deviation. In April 2002, AHG entered into a contract with New Horizons for the purchase of 2.23 acres of the southeastern property owned by New Horizons for approximately $1.5 million. The 2.23 acres is part of the 2.98-acre lot of record known as lot 454. The application On July 5, 2002, AHG filed with the DRC its site plan application to construct a 122-room, five-story hotel on the 2.98-acre lot. On the same day, it filed a Deviation from Development Standard Request asking that it be allowed to construct a five-story hotel on the parcel rather than being limited to a four-story hotel, as required by the development standards for the CP zoning district in which the property is located. New Horizons has also requested a technical amendment to the boundaries of the 1.68-acre lot and the 2.98- acre lot that would result in the 2.98-acre lot on which the hotel will be built being reduced to 2.23 acres. The DRC intends to approve that request, assuming that AHG prevails in this proceeding. AHG's site plan uses the largest footprint for construction of the hotel building that is allowed under current applicable Code restrictions relating to the amount of impervious surface allowed to be constructed on a 2.23-acre lot, as well as the required amount of green space which must be maintained. If current zoning rules and regulations are strictly applied, AHG would be unable to have more than approximately 107 rooms in the hotel, utilizing the maximum footprint and only four stories on the 2.23 acres. The only way to accommodate the construction of 122 rooms is to obtain a deviation from the current restriction of four floors and allow a fifth floor to be built. The proposed height of construction of the five- story hotel will be 53 feet, 10 inches, except for several small areas of parapet walls which will be no higher than 58 feet, 4 inches. The subject site is relatively flat, with no excessive slopes, and it has no remarkable features from an environmental standpoint. It is unique in the sense that it is flat, barren land. It does not have wetlands, pristine water bodies, or other protected conditions. Also, it has no endangered plant species requiring special protection, no patriarch trees, no protected trees, and no native forests. Should the Deviation be Approved? A deviation under Section 23.3 is an amendment to a "set requirement" in the Code, such as a setback or height restriction. Between 60 and 75 percent of all applications filed with the DRC for a site plan approval are accompanied by a request for a deviation from a development standard, which are standards prescribed for each zoning district in the Code. One such development standard for the CP District is a four- story height limitation on structures found in Section 10.6RR of the Zoning Code. The DRC is a four-person committee comprised of representatives from the City's Utility Department, Public Works Department, Growth Management Department, and Planning Department; it is charged with the responsibility of deciding whether to grant or deny a deviation request. For at least the last six years, and probably much longer, the DRC has consistently applied and interpreted the deviation standards in Section 23.3 in the same manner. Although Section 23.3 provides that "the granting of deviations from the development standards in this chapter is not favored," they are not discouraged since more than half of all applicants cannot meet development standards due to site characteristics or other factors. Rather, the intent of the provision is to prevent wholesale deviations being submitted, project after project. Requests for a deviation are always approved, when justified, in order to give both the City and the applicant more flexibility in the development process. Here, AHG's application was treated the same as any other applicant. This case represents the first occasion that an approval of a deviation has been appealed. After an application for a deviation is filed, it is forwarded to all appropriate City departments as well as members of the DRC. Each reviewing agency is requested to provide information to the DRC members on whether or not the request should be recommended for approval. In this case, no adverse comments or recommendations were made by any City Department. After reviewing the Department comments, and the justification submitted by AHG, the DRC approved the deviation. Under Section 5.1 of the Code, the City's land use administrator, Mr. Pitts, has the specific responsibility to interpret all zoning and development approval regulations, including Section 23.3, which provides the criteria for granting a deviation. That provision has an apparent inconsistency between the first two sentences: the first sentence includes a phrase that all criteria set forth thereafter must be met to approve a deviation while the second sentence appears to provide that only the conditions necessary to granting a particular deviation must be met. In resolving this apparent inconsistency, Mr. Pitts does not construe the Section as requiring that all seven criteria must be met in every case. Instead, even though all criteria are reviewed by the DRC, only those that are applicable must be satisfied. If this were not true, the DRC "would grant very few deviations as part of [its] site plan or subdivision regulation [process]," and the intent of the Section would be undermined. For example, in order to justify a deviation, the DRC does not require that an applicant show that there are exceptional topographical soil features if, as here, there are no exceptional environmental features on the property. This interpretation has been consistently followed over the years, is a reasonable and logical construction of the language, and is hereby accepted. As a part of its application, AHG submitted a narrative justifying the granting of a deviation under each of the seven criteria. To satisfy the first disputed criterion, AHG indicated in its application that "[t]his deviation is the minimum allowed to make reasonable use of the property and to compete with adjacent hotels who enjoy the same height opportunity." AHG's use of the property is consistent with adjoining developments, including the neighboring Cabot Lodge, which is five stories high and has 135 rooms, and the Hilton Garden Inn, which was originally vested for an office building, but was allowed by the DRC to construct a four-story hotel. There is no other property available to AHG at this site on which to construct a hotel. The evidence shows that New Horizons initially offered to sell AHG only 2.05 acres; when AHG advised that anything less than 2.23 acres would render the project financially unfeasible, New Horizons "very reluctantly" agreed to sell an additional .18 acres. Because New Horizons intends to build a restaurant on its remaining 2.097 acres, any further reduction in the acreage would reduce its highest and best use of the property. Thus, AHG does not have the option of purchasing more property to expand its hotel laterally, as Petitioner suggests, rather than by adding a fifth floor. In addition, AHG does not have the ability to reduce the size of its hotel rooms in order to squeeze more rooms out of a four-story structure. This is because Hampton Inn (the franchisor) will not grant a franchise for a new hotel unless the franchisee agrees to build a hotel with prototypical room sizes. The present design of the hotel meets the minimum size required. There is no evidence that there is any other minimum deviation that could be granted which would make possible the use of the property for construction of 122 rooms under the standards set forth by Hampton Inn, the franchisor. Thus, the only practical adjustment that can be made is to obtain a height deviation. Accordingly, the criterion has been satisfied. To satisfy the second disputed criterion, AHG stated in its narrative that "[t]he strict application of this requirement would place this property and proposed hotel at a competitive disadvantage by a lower number of available rooms." Through testimony of an AHG principal, it was established that in order for AHG to make reasonable use of its property, the addition of a fifth floor is necessary. The evidence shows that as a general rule, a developer can only afford to pay approximately $10,000.00 per room for land cost. In this case, based on the 2.23 acres, at a purchase price of $1,500,000.00 and a hotel with 122 rooms, the projected land cost is $12,000.00 per room. This is the maximum that can be paid for land and still make AHG's project economically feasible. The strict application of the Zoning Code will make the project financially unfeasible, which will create a substantial hardship to AHG. The hardship is not self-created or imposed. At hearing, Petitioner's representative contended that "there are some companies who would find it financially feasible" to construct a four-story hotel with fewer rooms on the same site. However, the more persuasive evidence on this issue was presented by the AHG principal and shows the contrary to be true. The evidence further shows that the granting of the deviation will result in an almost equal efficiency factor of the total square footage of building versus the total square footage of the site when comparing AHG's proposed project to the neighboring Cabot Lodge. On the other hand, strict application of the Zoning Code could result in a substantially less and disproportionate efficiency factor of AHG's property as compared to the adjoining Cabot Lodge. This is because the highest point of the proposed Hampton Inn and Suites is 58 feet, 6 inches, with the majority of the hotel being 51 feet high. The adjoining five-story, 135-room Cabot Lodge has its highest point at 55 feet, 6 inches, with the majority of the building at 46 feet high. The Hilton Garden Inn has the highest roof with its maximum height at 59 feet, 6 inches, which runs across the entire peak of the roofline. 40. To satisfy the final disputed criterion, AHG indicated in its application that "[t]he absence of any environmental features on this property, or any adjacent environmental features that might be impacted[,] help support the deviation." As noted above, the property in question is unique in the sense that it is flat, treeless, and has no remarkable environmental features. If a site is devoid of environmental features, as it is here, the DRC has consistently interpreted this provision as having no application in the deviation process. This is the same interpretation used by the DRC when it approved Petitioner's application for a height deviation in 1996 to construct the Hilton Garden Inn. Like AHG's property, Petitioner's property was also devoid of environmental features. Therefore, this criterion does not apply. Even assuming arguendo that this provision applies, the addition of a fifth story to a four-story building has no impact whatsoever on the environmental characteristics of the site. Finally, there is no evidence that the deviation request is inconsistent with the Plan, or that the deviation will have any adverse impact to the general health, safety, and welfare of the public. Indeed, as to any Plan implications that might arise through the construction of a hotel, the evidence shows that the project is wholly consistent with the purpose and intent of the CP land use category, which is to promote higher intensity and density in CP-zoned land and to discourage urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Tallahassee-Leon County Planning Commission enter a final order granting AHG's Type B site plan review application and its application for a deviation from the height restriction for the CP land use category. DONE AND ENTERED this 22nd day of January, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 22nd day of January, 2003. COPIES FURNISHED: Charles R. Gardner, Esquire Gardner, Wadsworth, Shelfer, Duggar & Bist, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308-7914 Linda R. Hurst, Esquire City Hall, Second Floor 300 South Adams Street Tallahassee, Florida 32301-1731 John Marshall Conrad, Esquire Ausley & McMullen Post Office Box 391 Tallahassee, Florida 32302-0391 Jean Gregory, Clerk Tallahassee-Leon County Planning Commission City Hall 300 South Adams Street Tallahassee, Florida 32301-1731
The Issue The issue is whether the local technical amendments to the Florida Building Code adopted by the City of Port Orange and the City of South Daytona comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001).
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner Florida Home Builders Association, Inc. (FHBA) is a Florida not-for-profit corporation. FHBA's organizational purpose is to monitor government activity affecting the construction industry and to provide assistance to its local chapters on statewide issues. The local technical amendments adopted by Respondents are within FHBA's general scope of interest and activity because they affect the construction industry and because they have the potential to undermine the statewide uniformity of the Florida Building Code. FHBA has over 15,000 members statewide, including 553 members (approximately 3.69 percent) in Volusia County. FHBA's Volusia County membership corresponds to the membership of the Volusia Home Builders Association, Inc. (VHBA), and includes only 20 members (approximately 0.13 percent) in South Daytona and only 50 members (approximately 0.33 percent) in Port Orange. Petitioner VHBA is a Florida not-for-profit corporation. VHBA is a local chapter of the FHBA. VHBA's organizational purpose is essentially the same as that of the FHBA, except that the scope of its interest is Volusia County and not statewide. The local technical amendments adopted by Respondents are within VHBA's general scope of interest and activity. VHBA has 553 members, all of whom are located in and conduct business in Volusia County. Of those members, 20 (or 3.62 percent) are located in South Daytona and 50 (or 9.04 percent) are located in Port Orange. The members of FHBA and VHBA include all types of persons and businesses involved in the construction industry, including general contractors, sub-contractors (including electrical contractors), real estate professionals, lenders, and attorneys. The record does not reflect the precise number of electrical contractors in either organization. FHBA and VHBA both initiate and participate in legal proceedings on behalf of their members that relate to regulatory issues affecting the home-building industry. Both organizations were duly authorized to initiate this proceeding, and the relief that they are seeking -- invalidation of the local technical amendments -- is the type of relief that is appropriate for them to receive on behalf of their members. Petitioner Stan Shirah is a general contractor whose firm, Shirah Builders, is located in Volusia County. Mr. Shirah is a member of both FHBA and VHBA. Mr. Shirah engages in new home construction, remodeling, commercial development, general construction, and land development throughout Volusia County and central Florida. He has undertaken these activities within the cities of Port Orange and South Daytona in the past, and intends to do so in the future. As a result, he will be required to comply with the local technical amendments. Neither Mr. Shirah nor his firm does electrical installations. That work is done by sub-contractors on projects that Mr. Shirah is the general contractor. However, as the general contractor (and president of his firm), Mr. Shirah is ultimately responsible to the owner for the building's compliance with the applicable regulatory requirements. Mr. Shirah and the members of FHBA and VHBA are affected by the Florida Building Code on a daily basis. A uniform building code is important to them (and, with respect to FHBA and VHBA, their members) because it allows them to conduct their business in any jurisdiction under the same set of rules. Local amendments to the Florida Building Code undermine that uniformity and, potentially, make compliance with the Code more difficult and/or time consuming thereby causing delays in construction and increasing construction costs. Each of the Petitioners participated in the challenge to Respondents' local technical amendments at the Volusia/Flagler Counties Code Compliance Review Board. Respondents are incorporated municipalities located in eastern Volusia County. Each municipality adopted the same nine technical amendments to the Florida Building Code which are at issue in this proceeding. The amendments add more stringent requirements to the National Electric Code (NEC), which is incorporated by reference into the Florida Building Code. Respondents are coastal communities. A small portion of Port Orange's boundary extends to the Atlantic Ocean. South Daytona's boundary does not extend to the Atlantic Ocean, but it abuts the Halifax River, which is a salt-water body. Port Orange also abuts the Halifax River. Adoption of and Challenge to the Local Technical Amendments Adoption of the Amendments City of South Daytona South Daytona adopted the local technical amendments at issue in this proceeding on or about December 11, 2001. The amendments became effective on March 1, 2002, to coincide with the effective date of the Florida Building Code. The amendments were filed with the Commission on April 2, 2002, which is 112 days after their adoption and 32 days after they became effective. The ordinance or resolution through which the amendments were adopted is not part of the record of this proceeding. Nor does the record include agenda items or meeting minutes which might reflect what information or evidence was before South Daytona's City Council when the amendments were adopted. Accordingly, there is no credible evidentiary support for the representation made by South Daytona's attorney at the hearing (and in the interrogatory responses received as Exhibit P2) that the City Council relied upon the findings and recommendations of the Volusia County Unified Code Committee (Volusia UCC) as the basis for adopting the local technical amendments. City of Port Orange Port Orange adopted the local technical amendments at issue in this proceeding on February 19, 2002, through Ordinance No. 2002-10. The first reading of the Ordinance occurred on January 29, 2002. The Ordinance included determinations that "local conditions justify the local amendments"; that "the local amendments do not discriminate against products, materials and construction techniques"; "that the products, materials and techniques referred to and restricted in the local amendments do not have demonstrated capabilities"; and that "it is in the best interests of the citizens of the City of Port Orange to adopt the local technical amendments " The Ordinance also included the following "findings of fact": Port Orange is partially a coastal community and is more susceptible to the effects of corrosion than other non-coastal parts of Florida due to the close proximity of large bodies of salt water. This corrosion has negative, unique, and possibly dangerous, local effects on the following materials rendering these materials unsafe for local use: Aluminum or Copper Clad Aluminum conductors which are smaller than #1 [see NEC Table 310.16]; Service drop conductors and wiring [see NEC Section 336-4]; Ground fault circuit breakers [see NEC Section 680-20]; Swimming pool equipment rooms with wiring not suited for a coercive [sic] environment including galvanized and sheradized conduit [see NEC Section 680-11]; Electrical metallic tubing for protection above ground [see NEC Section 230-50] The Ordinance made no specific findings or determinations with respect to the high wind conditions in Port Orange, nor did it make any specific findings or determinations with respect to the local amendments to NEC Sections 230-52, 230-70, 339-3, or 680-8. The amendments became effective on March 1, 2002, to coincide with the effective date of the Florida Building Code. The agenda package for the City Council meeting at which the amendments were adopted included detailed information relating to the amendments. Specifically, the package included a report prepared by the Volusia Chapter of the Electrical Council of Florida (Volusia ECF) analyzing each of the amendments, the minutes of a meeting of Port Orange's Construction Regulation Board which recommended approval of the amendments after considerable debate, and a vote sheet indicating that the Volusia UCC recommended approval of the amendments. The agenda package also included letters from various electrical engineering firms or consultants expressing their support for the amendments. None of those letters cited specific local conditions that necessitated the amendments. Instead, they focused on the greater protection to the public that would result from the amendments by exceeding the minimum standards in the NEC. The Volusia ECF's report included a general analysis of the fiscal impact of each of the amendments and also included a justification for each of the amendments. In most instances, the justification listed was not a specific local condition such as high winds or the corrosive local environment. Instead, generalized public safety concerns were listed as justifications for the amendments. The agenda package also included letters from the VHBA and the Florida Pool and Spa Association expressing opposition to the amendments upon the basis that they were not supported by any unique local conditions. Also included in the agenda package was a report prepared by Alcan Cable which compared the performance and reliability of aluminum and copper conductors (wires) and concluded that there were no significant differences in the performance of the two types of wires. That study contradicts the justification set forth in the Volusia ECF report for the local technical amendment to NEC Table 310.16. The justification in the Volusia ECF report was apparently accepted by the City Council through its adoption of the amendment to that table. A City of Port Orange staff report, dated January 18, 2002, recommended against approval of the ordinance containing the local technical amendments. The staff report stated: Staff . . . has not contested the fact that certain proposed amendments may be more stringent and create a safer condition than provided in the Florida Building Code. However, we do not feel they meet the criteria in the Florida Building Code, established by State Statute for local technical amendments. Specifically [sic] are not unique to Volusia County or the City of Port Orange as the same conditions exist throughout the State of Florida and are discriminatory against a product. Therefore, staff cannot recommend approval of this ordinance. (Emphasis supplied). Despite that adverse staff report, the agenda for both City Council meetings at which the ordinance was considered -- January 29 and February 19, 2002 -- stated that staff recommended approval of the ordinance. The amendments were sent to the Commission on September 26, 2002, which is 222 days after the adoption of the amendments and 210 days after the amendments became effective. The amendments were received by and filed with the Commission on October 3, 2002. 2. Petitioner's Challenge to the Amendments On or about April 4, 2002, Petitioners initiated a challenge to Respondents' local technical amendments at the Volusia-Flagler Counties Code Compliance Review Board (Board). The Board was established through an interlocal agreement between Respondents and other municipalities in Volusia and Flagler counties, and it serves as the "countywide compliance review board" for those counties in accordance with Section 553.73(4)(b)7., Florida Statutes (2001). The Board conducted a hearing on Petitioners' challenge on November 19, 2002. At the conclusion of the hearing, the Board adopted motions upholding the local technical amendments and finding them in compliance with Florida law. On January 3, 2003, the Board memorialized its decision through a "Written Determination" which stated that the local technical amendments adopted by the Respondents "are hereby found to be in compliance with [Section] 553.73(4)(b), Florida Statutes." Petitioners timely "appealed" the Board's decision by filing a petition with the Commission, and this proceeding followed. Substance of and Respondents' Justification for the Local Technical Amendments Generally The local technical amendments modify Sections 210-52, 230-50, 230-70, 336-4, 339-3, 680-8, 680-11, 680-20, and Table 310.16 of the NEC. The NEC was incorporated by reference into the Florida Building Code without modification. Each of the local technical amendments was part of the Respondents' local building codes in effect prior to the adoption of the Florida Building Code. Accordingly, by adopting the amendments, Respondents sought to maintain the status quo within their jurisdictions, at least with respect to the subjects of the amendments. Each of the local technical amendments impose more stringent requirements than the NEC. The local technical amendments do not introduce new subjects into the Florida Building Code. The electrical installations required by the local technical amendments are more costly than those which would be required under the NEC without the amendments. Thus, if the amendments were not part of the local building codes, the cost of electrical installations in Port Orange and South Daytona would be lower. The Commission and the Commission's Electrical Technical Advisory Committee (TAC) considered revisions to the NEC similar to those in the local technical amendments when it adopted the NEC as part of the Florida Building Code. Those revisions were rejected by the Commission and the TAC because there was no Florida-specific justification for them. Respondents contend that the local technical amendments are justified on account of corrosive conditions and/or high wind conditions which purportedly exist within South Daytona and Port Orange. Salt is a corrosive agent, and corrosion can adversely affect electrical equipment. Corrosion also affects other materials, as reflected by the corroded metal pipe received into evidence as Exhibit R4. Coastal communities, to varying degrees, have a higher level of atmospheric salt than inland communities. This higher level of atmospheric salt is experienced by communities in proximity to either the Atlantic Ocean or the Gulf of Mexico, including 35 counties that border on the coast, and, to a lesser extent, other counties that are located close to the coast. The evidence fails to establish that the corrosive conditions in Port Orange and South Daytona are more severe than in all other areas of Florida. Nor does the evidence establish that the corrosive conditions in Port Orange and South Daytona are more severe than in other coastal communities. The Florida Building Code includes a map designating six different wind speed zones in Florida ranging from 90 miles per hour (mph) to 150 mph. Generally, the higher wind speed zones are located closer to the coast, and the lower wind speed zones are inland. The Florida Building Code prescribes stricter construction standards for structures located in higher wind speed zones, but the electrical provisions of the Florida Building Code do not change based upon the wind speed zone designation. The evidence does not establish that the wind conditions in Port Orange and South Daytona are more severe than in all other areas of Florida, or even in all other coastal communities. To the extent that Port Orange and South Daytona experience higher winds than might be experienced in inland communities, they are no different than other coastal communities around the state, or at least those along the Atlantic Ocean. Port Orange is located in the 120 mph wind speed zone, which is not even the highest wind speed zone. Other coastal communities are located in higher wind speed zones, such as Palm Beach (140 mph zone) and the Keys (150 mph zone). 2. NEC Section 210-52 (Separate Circuit for Certain Appliances) NEC Section 210-52 requires certain kitchen appliances to be on dedicated (i.e., separate) circuit breakers, and allows some items to be placed on circuit breakers with other items. The local technical amendment to this section requires more appliances -- dishwasher, refrigerator, freezer, microwave, and water pump systems -- to be on separate circuit breakers. The amendment allows the garbage disposal to be on the small appliance circuit breaker. The circuit breakers are attached to a "bus bar" which is located behind the panel of the breaker box. The breaker box has multiple "bus bars." The breaker box is typically (although not always) placed inside rather than outside where the corrosive conditions that might exist could impact the box. Multiple circuit breakers can be attached to each "bus bar" depending upon its rating. For example, a 60-amp "bus bar" can accommodate four 15-amp circuit breakers or two 30-amp circuit breakers or one 60-amp circuit breaker. The purpose of the amendment is to spread the electrical load from the listed appliances among more circuit breakers, rather than concentrating the load on one or two circuits breakers. The effect of spreading the electrical load among more circuit breakers is to reduce the number of times that the breaker might "trip" on account of an overload. The evidence fails to establish that the amendment would actually have its intended effect, i.e., reducing the possibility of a fire resulting from overloading a corroded "bus bar." Although the amendment prevents multiple appliances from being on a single circuit breaker attached to the "bus bar," it does not prevent those same appliances from being attached to the same "bus bar" on separate circuits breakers. As a result, the same electrical load would be placed on the "bus bar." The evidence also fails to establish that "bus bar" corrosion is a common problem in Port Orange or South Daytona. The burned "bus bar" received into evidence (Exhibit R2) was not in service in either municipality and it was not established that the burning was the result of corrosion. Respondents have not attempted to justify this amendment based upon high wind conditions, and it is not. 3. NEC Section 230-50 (Types of Conduit Allowed for Risers) NEC Section 230-50 establishes requirements for protecting service entrance conductors from physical damage, and specifies five types of conduit which can be used to run the wires through. The conduit is also called a "riser" because the wires in the conduit rise from the meter to the overhead power lines. The local technical amendment to this section eliminates two of the conduit alternatives -- EMT and "other approved means" -- which are comparably the "weakest" means of protecting the service entrance wires. The remaining options are rigid metal conduit, intermediate metal conduit, and rigid nonmetallic conduit (i.e., PVC pipe) suitable for the location. Service entrance conductors are the wires that run from the electric meter at the building, up the side of the building, to the point at which the power company's overhead utility lines come to the building. That point is typically several feet from the structure itself. As a result, there is typically several feet of exposed wire between the top of the conduit in which the service entrance wire is located and the point at which the power company's line is connected. EMT is a metal pipe. The EMT's exterior wall is thinner than that of rigid metal conduit and the other remaining means of protecting the service entrance wires. EMT is commonly called "thin wall" by electricians. "Other approved means" allows flexibility in meeting the requirements of the Florida Building Code. One example of "other approved means" is service entrance cable, which is a cable made up of individual wires wrapped with a copper braid and a protective plastic sheath. Because of its relatively thinner wall, EMT may be more be more impacted by corrosive conditions than rigid metal conduit. However, the evidence does not establish whether the degree to which EMT is more affected is material or not. It is possible that high winds can affect the conduit used to protect the service entrance wires. The winds typically do not blow the conduit itself because the power company and the NEC require the conduit to be securely attached to the wall of the structure. However, if hurricane winds down a tree or some other large object onto the overhead power line, that line could pull on the attached service entrance wire which, in turn, could crease, bend, or collapse the conduit. Under such extreme circumstances, EMT and rigid metal conduit would be similarly affected. EMT and "other approved means" have proven to be effective and capable means of protecting service entrance wires in coastal communities and elsewhere. This amendment discriminates against EMT by prohibiting it from being used as a riser for service entrance conductors. 4. NEC Section 230-70 (Location of Main Disconnect Switch) NEC Section 230-70 prescribes standards for locating the "main disconnect" for the building's electrical power. The NEC allows the "main disconnect" to be located within five feet of the point that electrical service enters the building. If electrical service enters the building underground, it is possible that the "main disconnect" could be located inside the building. The NEC does not require a "shunt trip" even if the "main disconnect" is located inside the building. The local amendment to NEC Section 230-70 requires the "main disconnect" for commercial or multi-family buildings to be located outside of the building or, alternatively, for such buildings to have a "shunt trip" control located outside of the building. The "main disconnect" is similar to a master on/off switch for all of the electric power to a building. A "shunt trip" is an electronic device or button placed on the exterior of the building which can be used to turn off the power to the building from the outside when the "main disconnect" is located inside the building. It can be important for firefighters to turn off the power to a building in the event of an emergency. If the "main disconnect" is located in the interior of the building, it may not be easily accessible. Other alternatives are available to the firefighters in such circumstances, including contacting the power company to turn off the power to the building at the transformer or "pulling" (i.e., removing) the meter. "Pulling" the meter can be accomplished in virtually no time. This amendment cannot be justified on account of any corrosive conditions that might exist within Port Orange or South Daytona. Indeed, by requiring the "main disconnect" to be located outside of the building, it is more subject to corrosion than it would be if it is located inside of the building. The amendment is not justified by wind conditions in Port Orange or South Daytona. Indeed, there are any number of circumstances unrelated to hurricanes or high wind which would make it desirable for there to be a means to turn the power to a building off from the outside, but those same circumstances exist throughout Florida. 5. NEC Table 310.16 (Minimum Size of Aluminum Wires) NEC Table 310.16 is an ampacity chart for wires, and prescribes the size of wire that can be used for various purposes. The uses vary based upon the wire's size and its composition, i.e., copper or aluminum. The NEC allows the use of aluminum wire as small as "number 12"; it allows the use of copper wires as small as "number 18." The local technical amendment to NEC Table 310.16 prohibits the use of aluminum wire smaller than the "number 1" size. Wire sizes are measured such that the smaller the number, the larger the wire. "Number 1" wire is relatively large, approximately one-half inch in diameter. (For sake of comparison, the wire received into evidence as Exhibit R3 is a "number 6" wire.) The effect of the amendment is to require copper wire to be used in applications involving wire smaller than "number 1." This, in turn, has the effect of increasing construction costs because aluminum wire is typically less expensive than copper wire of the same diameter. Aluminum wire has a higher resistance than copper wire of equal size. Corrosion of the wire increases its resistance, and because resistance creates heat, the chance of a fire is also increased. Copper wire and aluminum wire are both susceptible to corrosion. Aluminum wire has demonstrated capability. It is used in coastal communities throughout Florida and, more specifically, it is used by the power company within Port Orange and South Daytona in a variety of sizes (including smaller than "number 1") in outdoor environments. Aluminum wire functions effectively in those applications. Moreover, data reflects that aluminum wire, when used with approved connectors (as the NEC requires), is more durable than copper wire. The local amendment to NEC Table 310.16 discriminates against aluminum wire by prohibiting its use in a size smaller than "number 1." Respondents have not attempted to justify this amendment based upon high wind conditions, and it is not justified. 6. NEC Section 336-4 (Limitation on Use of NM Wires) NEC Section 336-4 relates to the use of Type NM, NMC, and NMS wires. These non-metallic wires are typically referred to as Romex cable, which is a common brand name for the wires. The local technical amendment to this section restricts the use of Romex cable to one- and two-family dwellings, and prohibits its use in other structures -- e.g., commercial and multi-family -- unless it is routed through conduit. Romex cable typically consists of two to four wires wrapped in paper and all within a plastic sheath. It is used for internal wiring. Because Romex cable is used indoors and because it is protected within a plastic sheath, it is not directly subject to corrosive conditions or wind conditions. Respondents attempt to justify this local amendment upon safety concerns which, Respondents contend, are heightened in multi-family and commercial buildings since those buildings are typically not owner-occupied. To the extent those concerns are legitimate, they are certainly not unique to Port Orange and South Daytona. Romex cable has been used extensively for more than 30 years, and has proven effective. There is no evidence that Romex cable has ever failed on account of corrosive conditions, high wind conditions, or that its use in multi-family and commercial buildings is unsafe. The local amendment discriminates against Romex cable by providing additional standards for its use in multi-family and commercial buildings. 7. NEC Section 339-3 (Limitation on Use of UF Cable) NEC Section 339-3 relates to the use of underground feeder wire, which is also known as UF cable. The local technical amendment to this section restricts the use of UF cable to single-family residential property. UF cable is similar to Romex wire in that it is a group of wires inside a plastic sheath. UF cable is designed for use outside, and is most commonly used for wiring exterior lights. UF cable is installed underground. As a result, it is not impacted by wind conditions. UF cable is not subject to corrosion unless the plastic sheath is breached. UF cable is sometimes nicked after installation. In such circumstances, a breach in the cable would likely result in the circuit breaker being "tripped" and the cable no longer being energized. UF cable has demonstrated capabilities and has proven effective for external uses. There is no evidence that UF cable has failed on account of corrosive conditions. The alternative to UF cable is running standard wires through conduit. The conduit might protect the wires from being nicked by a shovel, but it might not protect the wire from being cut altogether by a backhoe or similar piece of large equipment which could break the conduit. The potential for damage to UF cable on account of digging by the property owner is a circumstance that can occur in any community in Florida. This amendment discriminates against UF cable by restricting its use to single-family residences and thereby effectively prohibiting its use in connection with all other types of structures. 8. NEC Section 680-8 (Prohibition on Wires Over Pools) NEC Section 680-8 is a table that establishes overhead clearances for wires. It provides height requirements for wires that run over swimming pools and surrounding areas. The local technical amendment to this section eliminates the table and, as a result, prohibits the installation of wires above existing pools and prohibits the placement of new pools under existing wires. Respondents have not attempted to justify this amendment based upon corrosive conditions, and it is not. The justification for the amendment offered by Respondents is that the amendment will prevent the wires from falling into and energizing the pool in the event of a hurricane or other the high wind condition. None of the witnesses who testified at the hearing, including those who testified for the Respondents, had ever heard of a situation where an overhead wire had fallen into and energized a pool. As a practical matter, swimming pools are no longer (if they ever were) constructed under overhead wires and overhead wires are no longer (if they ever were) strung over swimming pools. 9. NEC Section 680-11 (Protection of Wires in Swimming Pool Equipment Rooms) NEC Section 680-11 prescribes requirements for electrical wiring in swimming pool equipment rooms. The local technical amendment to this section requires such wiring to be placed in PVC pipe or other conduit designed for use in the chlorine environment. The amendment specifically prohibits plain galvanized and sheradized conduit which are metal pipes that are susceptible to rust and corrosion. The justification for the amendment offered by Respondents is that by requiring electrical wiring in the pool room to be placed in PVC or similar pipe, the risk of the wiring coming in contact with water (which is not uncommon in pool equipment rooms) is reduced. That requirement in turn, reduces the risk that a person in the pool room might be electrocuted by an ungrounded wire. Pool equipment rooms are highly corrosive environments because of the presence of chlorine, not because of atmospheric conditions. Respondents have not attempted to justify this amendment based upon high wind conditions, and it is not. 10. NEC Section 680-20 (Underwater Pool Light Voltage) NEC Section 688-20 allows underwater lights in swimming pools to carry as much as 150 volts. The local technical amendment to that section reduces the maximum allowable voltage to 15 volts. Underwater swimming pool lights are protected by glass and water-tight seals. If the pool water somehow comes into contact with the light bulb or its wiring, a ground fault interrupter (GFI) "trips" and shuts off the electrical current to the light. A GFI measures the amount of current going to a device and returning from the device. If there is a difference between the current going and coming, the GFI "trips" and stops electrical current from being delivered to the device on that circuit. The GFI used in connection with a pool light has two components. One is the "push to test" button located in the breaker box, and the other is the "test" and "reset" buttons located on an outlet in a bathroom, garage, kitchen, or similar location. Because of their locations, neither component is exposed directly to the weather. The purpose of the local technical amendment is to reduce the potential harm that a swimmer might suffer in the event that water came into contact with the pool light or its wiring and the GFI failed. To the extent that GFIs are susceptible to corrosion (and because of their location they are not likely to be), they are no more so susceptible to corrosion in Port Orange and South Daytona than they are elsewhere. In any event, if a GFI fails (because of corrosion or otherwise) it is not likely to fail in the "closed" position. Instead, it will fail in the "open" position and, in that position, no electricity is being delivered to the pool light. It is also possible that the GFI will fail if it is installed backwards. To the extent that a safety hazard is created by that failure, it is the result of the incorrect installation, not a local condition such as the corrosive environment or high winds. The newer GFIs are designed in such a manner that if the GFI is installed backwards, it will not work. Respondents have not attempted to justify this amendment based upon high wind conditions, and it is not.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Building Commission issue a final order which determines that: Each of the local technical amendments adopted by the City of South Daytona fails to comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001); and Each of the local technical amendments adopted by the City of Port Orange fails to comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001). DONE AND ENTERED this 29th day of April, 2003, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 29th day of April, 2003.
The Issue The issue for consideration at this hearing is whether Respondent's certification as a communications systems specialty contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board, was the county agency responsible for licensing contractors in the construction trades in Pinellas County and for the regulation of the profession of contracting in that county. Respondent, Michael G. Linton held license No. C-5513 as a certified communications systems specialty contractor in Pinellas County. On or about June 14, 1995, Kim and Vincent Carter, tenants at a residence located at 118 7th Street in Belleair Beach, Florida, contacted Respondent to secure his assistance in moving the satellite reception dish which he had initially installed for them to their new residence. On that date, Respondent issued an invoice to the Carters on which he indicated he was to reinstall their satellite system for $300.00. The statement was signed by Respondent and also bears the apparent signature of V.J. Carter. Mr. Linton claims it was Mrs. Carter who signed the statement authorizing the work, however, but she denies it and Mr. Carter claims it was he who signed it. Mr. Carter disconnected the system inside the residence and helped to take down the outside dish. Respondent moved the dish from the Carter's old residence to their new residence where it was to be reinstalled. Respondent did not pull a permit from the City of Belleair Beach to construct the base for the antenna dish. A permit was required. Mr. Linton claims he did not dig the hole for the base into which he poured the cement but that the base hole was dug by Mr. Carter. Mr. Carter denies having done so. Whoever dug the hole, it did not meet code requirements since it was only 20 inches deep and the code requires a base of concrete at least 48 inches deep. The length and breadth of the slab depends on the size of the satellite dish and the length of the pole on which it will be affixed. The Carters deny that they agreed to pull the permit for this work, claiming that since they are not the owners of the property, they cannot do so. This is not so, however, because, under the terms of the Code, (Section 6- 3(a)(1), either the owner of the property or the authorized agent of the owner can pull the permit. If authorized by the owner of the new residence, either the Carters or the contractor may have pulled the permit. Neither did. Respondent claims he was hired by the Carters only to help them move their satellite system. He was to be paid between $300.00 and $350.00, and Mr. Carter was to help. Because Carter and Mr. Moore, the building official, were old friends, Carter was to pull his own permit and that was put on the invoice. The Carters claim this notation was not there when they signed the invoice. Respondent claims he would have charged $150.00 extra to pull the permit. Respondent admits he holds himself out as a communications systems contractor and that he was retained by the Carters to do work related to the move of their satellite system from one residence to another, but only to help Mr. Carter. He admits he knew a permit was required for the construction of the new base and, though he may not have known whether a permit had been pulled before he poured the new base, he did not pull it himself or insure that one had been pulled. He now admits he should not have relied on the Carters' representations that they would take care of it. He also did not insure that the base which was poured conformed to the requirements of the approved engineering for the installation. The city's building official, Mr. Moore, inspected the work site, on two separate occasions. He first found the hole to be too shallow. When he came back to reinspect, the cement had been poured and he could not gauge the depth, finally accepting the certification of the subsequent contractor that the base conformed to specifications. The conforming work was not done by Respondent but by a subsequent contractor hired by the Carters, Satellite Communications and Electronics, Inc. The Carters were billed an additional $250.00 for this follow up work. This included a fee of $150.00 for pulling the required permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order finding Respondent guilty of the offenses alleged, placing his license on probation for six months, and imposing an administrative fine of $250.00. DONE and ENTERED this 12th day of April, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 12th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5933 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. None submitted. Respondent's Proposed Findings of Fact. Respondent's counsel did not number the facts urged in that portion of his submittal described as "Respondent's version Of The Facts." Therefore, the four paragraphs in that section will be addressed individually. Accepted. Accepted, but the contractor must not begin work without a permit being issued. Not a proper Finding of Fact but a comment on the state of the evidence. Accepted. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643-5116 Louis Bakkalapulo, Esquire The Wilder Center Suite 404 3000 Gulf to Bay Boulevard Clearwater, Florida 34619
Findings Of Fact Mary G. Realty owns Lots 57-63 and the north 10.25 feet of Lot 64, Clearwater Beach Park, which occupy the southwest corner of Mandalay Avenue and Baymont Street on Clearwater Beach. For many years this property was operated as a gasoline service station until the death of the owner-operator and its purchase by Mary G. Realty in December, 1983. The property is zoned CG and has been so zoned for many years without change to the present. The gasoline station building is still located on the property and the proposed development will include use of that structure, which is approximately 40 feet by 60 feet. Applicant proposes to construct and operate a two-story office/retail store building with three large apartments on the second floor. The proposed addition would add 16 feet to the south side of the existing building extending 80 feet eastward from the west line of this building, with the eastern 40 feet of this extension 25 feet wide. It is also proposed to add an additional 70.7 feet to the north side of the existing building. As proposed, the first floor would occupy 6,680 square feet and the second floor would contain 5,878 square feet. Variances approved by the zoning board include a 3.5 foot setback on the rear property line to allow the property additions to follow the line of the existing structure; a 6-foot setback on the south property line; a 15-foot setback on 25 feet of the proposed addition from Mandalay Avenue; no buffer zone between parking and street right-of-way on both Mandalay Avenue and Baymont Street; and a variance of 32 parking spaces. Applicant's proposal approved by the board is to provide 25 parking spaces, a variance of 32 in the parking space requirement for the structure proposed. Petitioner's property abuts the property owned by Mary G. Realty and the structure on that property, which was built before the present zoning laws became effective, is nonconforming with the zoning regulations. In its application for the variances here under review Mary G. Realty requested a zero setback from the north property line, which was withdrawn; a 3.5-foot setback at the rear of the property in lieu of the 10-foot requirement for commercial general, and the board approved 3.5 feet; a one-foot setback on south property line in lieu of the 10 feet required, and the board approved a 6- foot setback; a 15-foot front setback in lieu of 20 feet required by the code, and the board approved 15 feet; a variance of 48 parking spaces, which was reduced by applicant's withdrawal of zero setback for north property line, resulting in a smaller size structure requiring less parking spaces and the addition of parking spaces from this same reduction, and the board approved a variance of 32 parking spaces; and a zero buffering requirement abutting Mandalay Avenue and Baymont Street, which the board granted. This property is unique only in that it is located in an area in which a large percentage of the buildings are nonconforming. The property is a trapezoidal shaped parcel having the following dimensions: south property line 100.47 feet, west property line 167.52 feet, north property line 100.77 feet, and east property line 178.55 feet. One of the principal factors at issue here is the requested variance in parking spaces required. Applicant purchased the property due to the pending expiration of its existing business lease and intends to move its business to the new location and provide additional office and shop space with apartments on the second floor, thus having a combined commercial and residential structure. There are no shopping facilities on Mandalay Avenue north of State Road 60; the area is mostly built up with motels, hotels, apartments, and restaurants; and the shopping customers are generally the same people who walk along Mandalay. Accordingly, there is less need for parking to accommodate a shop in this area than would be required in another part of Clearwater, although the magnitude of this difference has not as yet been determined. Witnesses testified to the need for additional shopping facilities north of State Road 60; to the fact that few people in automobiles shop on North Clearwater Beach; and, while functioning as a service station, no parking spaces were provided on this property. This property was purchased by Mary G. Realty for $295,000 and evidence was presented that less building space than proposed would not make the purchase economically feasible. However, insufficient evidence was presented to support this conclusion. This factor is given little weight because the purchaser knew, or should have known, of the zoning restrictions before the property was purchased. Most of the property in the vicinity was developed long before the current zoning regulations were adopted and the structures thereon are generally nonconforming both with respect to setbacks and parking, even though they offer rooms to transients who arrive in automobiles. These nonconforming structures result in some of the buildings in the vicinity being built right to the property line.
The Issue The issue in this case is whether the Tallahassee-Leon County Planning Commission should approve, with conditions specified by the Development Review Committee (DRC), a type B site plan submitted by Wright/AT&T for construction of a cell tower at the corner of Buck Lake Road and Pedrick Road.
Findings Of Fact The applicant, Wright/AT&T, seeks approval of a type B site plan for construction of a 150-foot high telecommunications antenna support structure (cell tower) on 4,200 square feet of the commercially-zoned (C-1) Parcel 8 of the Benjamin’s Run planned unit development (PUD) at the southwest corner of Buck Lake Road and Pedrick Road, along with a 230 square-foot building to house electrical equipment, a gated fence surrounding the tower and building, and an access driveway from Pedrick Road. Buck Lake Elementary School is across Pedrick Road from Parcel 8. There are numerous residential land uses in the immediate vicinity, including the rest of Benjamin’s Run, Easton, the Enclave, and Tung Hill. Wright/AT&T demonstrated that there is a need for a cell tower to provide cell phone voice and data services to a coverage hole in the vicinity of Parcel 8 of Benjamin’s Run and that there are no suitable alternative sites. Petitioners did not rebut Wright/AT&T’s demonstration of need and suitability. They questioned whether the search area was broad enough, but the evidence proved that the applicant’s search area was appropriate. They questioned whether there were any co-location opportunities that would be suitable, but the evidence proved that there are none. The Benjamin’s Run PUD is central to determining whether Wright/AT&T’s type B site plan should be approved. The City approved the PUD in August 1998. The approved PUD does not mention telecommunications support structures or cell towers explicitly. Under Section 3.1.2 of the Land Use Concept Plan in the PUD’s Conceptual Development Narrative, it states that the proposed development’s concept plan “[p]rovides outlet for goods and services at a restricted neighborhood scale, serving the immediate surroundings.” Section 3.2.1 states that “Benjamin’s Run is primarily a residential community with the intended conceptual objectives [to] [m]aintain compatibility with the existing neighborhoods[; p]rovide limited commercial and employment opportunities to the proposed development and surrounding neighborhood, at a restricted neighborhood scale[; and d]evelop to the infrastructure capabilities currently available ” It also states: “The neighborhood commercial will generally be located at the intersection of Pedrick Road and Buck Lake Road, depicted as Parcel 8. . . . Office use is intended to serve as a bridge between the commercial and the residential component of parcel 7.” Under section 3.2.2 of the PUD’s Land Use Concept Plan, the residential densities are those allowable for the City’s R-2 and R-3 Zoning Districts. Under section 3.2.3, office use is permitted as minor or major office parks, limited to those permitted in the City’s C-1 Zoning District, and limited to a maximum of 25,000 square feet. Under section 3.2.4, minor to neighborhood commercial uses are permitted, limited to those permitted in the City’s C-1 Zoning District, and limited to neighborhood commercial with a maximum of 25,000 square feet. Section 3.3 of the PUD’s conceptual development narrative provides that uses are limited to those permitted within the R-2, R-3, and C-1 zoning districts of the City Code, as amended November 1997. It also states that permitted uses “will be listed by Standard Industrial Code [SIC] number, where applicable, or specify a definition of other permitted uses not listed by SIC numbers.” Section 7.2 of the PUD lists 64 SICs permitted in C-1, and none cover telecommunications support structures.1/ There also is no SIC for billboards. Section 4.6.2 of the PUD’s general development standards, under signs, specifically prohibits them. There is no similar prohibition of cell towers. Section 4.5.5 of the PUD’s general development standards, under non-residential building and site design, states: “All electrical and telecommunication utilities shall be located underground, except for antennas which may be located on rooftops so long as the roof design screens any rooftop equipment from view from public rights of way.” Section 10-425(c)(1) of the City’s Land Development Code, known as the Telecommunications Siting Ordinance, which governs the siting of cell towers, was adopted in November 1996. The ordinance was amended in 1999; but, from its inception, it allowed cell towers in any zoning district so long as the tower met the requirements of section 10-425.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Planning Commission approve Wright/AT&T’s type B site plan, with the DRC’s conditions. DONE AND ENTERED this 20th day of April, 2011, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2011.
The Issue The issue in this matter is whether Petitioner's application for a Type-A site plan should be approved.
Findings Of Fact Petitioner, Dan Gilbertson, has owned and operated Potbelly's restaurant, a student-oriented eating/drinking establishment, located at 459 West College Avenue, since 1994. Petitioner also operates a similar establishment known as The Painted Lady located directly adjacent and to the east of Potbelly's. Potbelly's and The Painted Lady are within the Institutional, Cultural, and University Transitional (DI) Zoning District. Surrounding uses to Petitioner's property include a Florida State University parking lot across Macomb Street to the west of the site, a privately owned parking lot across College Avenue to the north, a fraternity house to the east, and an apartment complex to the south. The existing Potbelly's and Painted Lady structures were constructed prior to the adoption of a 25-foot minimum building setback from Macomb Street codified in Section 10.3.O.2.d.3, Tallahassee Code. The Potbelly's building is partially within the 25-foot setback and is considered a pre- existing, nonconforming structure. Potbelly's is licensed to operate a full service kitchen while The Painted Lady is authorized to serve previously prepared food. Both parties agree that Potbelly's and The Painted Lady are licensed to serve alcohol within the premises identified in Respondent's supplemental exhibit. Respondent, The Tallahassee-Leon Planning Commission, is the legal entity responsible for reviewing and approving or denying applications for site plans. In September 2002, Petitioner submitted a site-plan application seeking to add a deck, handicap ramp, and bathrooms in the southwest area of the Potbelly's property and a deck behind The Painted Lady. The site plan application for the additional deck, restrooms, and handicap ramp behind Potbelly's seeks a deviation from the 25-foot setback requirement. In its application, Petitioner included architectural drawings of the premises but did not attach engineering drawings. Petitioner also enclosed a copy of a previously issued order dated June 14, 2001, from the Tallahassee-Leon County Board of Adjustment and Appeals granting a variance to the setback requirement for an existing deck on the west side of Potbelly's. Pursuant to Section 23.1, Tallahassee Code, Respondent may grant the deviation request to development standards only if it is consistent with the comprehensive plan and creates no adverse impact on the general health, safety, and welfare of the public. Petitioner's site plan application addresses less than 60,000 square feet and is subject to Type-A site plan review. Accordingly, Petitioner's application was reviewed by City staff including members from the Growth Management Department, Planning Department, Fire Department, Police Department, Utilities Department, and Public Works Department including Solid Waste and Traffic Engineering. Upon review, in October 2002, the Department advised Petitioner that his application had been denied. Petitioner timely appealed the decision. Code Deviation Criteria Pursuant to Section 23.3, Tallahassee Code, a request for deviation from the existing development standards is generally not favored and may only be granted upon a showing by the applicant that seven specific criteria have been met by a preponderance of the evidence. First, the applicant must demonstrate that the deviation will not be detrimental to the public good or to the surrounding properties. The evidence in this case demonstrated that, although the Tallahassee Police Department (TPD) reported that it received approximately 17 complaints over a two-year period for noise, physical disturbances, underage alcohol consumption, and other offenses, approximately 1 every 50 days, the frequency and severity of complaints has significantly declined. Further, Petitioner employs significant private security to curtail adverse incidents and has routinely attempted to hire off-duty TPD officers, but to no avail. There has been inadequate showing that a reasonable increase in the size and occupancy of Petitioner's premises will be detrimental to the public good or to the surrounding properties. Second, Petitioner must demonstrate that the requested deviation is consistent with the intent and purpose of the Zoning Code and the Comprehensive Plan. Respondent admits that "the intent of the DI zoning district is to provide a transition between downtown and the two universities, and to encourage pedestrian friendly or pedestrian oriented activities and development." Respondent further acknowledges that the intent of the 25-foot setback from Macomb Street and the 35-foot setback from College Avenue is to provide a transition for pedestrian activities along the roadways, a reduced scale of buildings along the pedestrian accesses and room for landscaping for enhancement of pedestrian activities. The evidence demonstrated that Petitioner's adjacent restaurant/bars primarily target and attract college students in the area and are pedestrian friendly. While the structures preceded the setback requirements, Petitioner has comported with the intent of the Tallahassee Code and Comprehensive Plan by enhancing vehicular and pedestrian access to the premises and improving their visual aesthetics. Third, Petitioner must demonstrate that the requested deviation is the minimum deviation that will make possible the reasonable use of the land, building, or structure. While the restaurant/bars maintain consistent business, additional patrons and/or a diversified, multi-use eating/drinking establishment, given the area, is a reasonable use of the land. Petitioner's deviation request is the minimum deviation necessary to garner the additional and diversified business. Fourth, Petitioner must demonstrate that strict application of the zoning requirements would constitute a substantial hardship that is not self-created or imposed. Strict application and unreasonable adherence to the 25-foot setback requirement, given the minimal external expansion requested and the fact that the existing structures currently extend into the setback, create a substantial and unnecessary hardship upon Petitioner's expanding business. Fifth, Petitioner must demonstrate whether there are any exceptional topographic, soil, or other environmental conditions unique to the property. The parties stipulate that there are no such environmental features on the site and the criterion is not relevant to Petitioner's application. Sixth, Petitioner must demonstrate that the requested deviation would provide a creative or innovative design alternative to substantive standards and criteria. Petitioner has shown that he intends to moderately expand the student- oriented, pedestrian friendly, eating/drinking establishment in the college campus area utilizing a consistent, creative, and attractive design alternative to the setback requirement. Finally, Petitioner must demonstrate that the impacts associated with the deviation will be adequately mitigated through alternative measures. Any impacts associated with the deviation are de minimus, however, Petitioner has agreed to adequately mitigate such impacts. First, Petitioner has constructed noise insulators on the south fence of the property to filter out excess sound to the apartment dwellers. Petitioner has also agreed to provide additional security when necessary and plans to significantly improve the visual aesthetics on the southwest side of the building. Respondent argues that Section 14.6 of the Zoning Code requires one loading berth for any site up to 8,000 square feet receiving goods and merchandise via motorized vehicle. The evidence demonstrates that Petitioner's property contains two parking spaces, identified as a loading berth, located directly in front of Potbelly's. Respondent, however, persuasively argues that the existing dumpster on the Potbelly's site does not comply with the City's Solid Waste requirements. Solid Waste and the Tallahassee Code require each site to provide sufficient space for a dump truck to enter the site, collect the refuse, and exit the site without backing into traffic. Although Waste Management empties the refuse at approximately 3:00 a.m., the current location of the dumpster presents a significant safety hazard which Petitioner must eliminate. Respondent argues that it cannot determine whether Petitioner's proposal meets the Floor Area Ratio requirements for the DI zoning district. The evidence presented during the hearing demonstrates that Petitioner's proposal satisfies the requirements. While the Tallahassee-Leon County Board of Adjustments and Appeals of Petitioner's previous approval of the existing deck variance is interesting, it is not relevant to this case. The formal proceeding before the Administrative Law Judge was properly noticed in the Tallahassee Democrat on November 24, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Tallahassee-Leon County Planning Commission enter a final order approving Petitioner's Type-A site plan and requested deviation contingent upon Petitioner's safe and acceptable relocation of the dumpster. DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 May, 2003. COPIES FURNISHED: Sylvia Morell Alderman, Esquire Katz, Kutter, Haigler, Alderman, Bryant & Yon, P.A. Post Office Box 1877 Tallahassee, Florida 32302 Dan Gilbertson 459 West College Avenue Tallahassee, Florida 32301 Linda R. Hurst, Esquire City Attorney's Office 300 South Adams Street City Hall, Box A-5 Tallahassee, Florida 32301-1731 Jean Gregory, Clerk Tallahassee-Leon County Planning Commission City Hall 300 South Adams Street Tallahassee, Florida 32301-1731
The Issue Whether, in accordance with Section 4.1(l)(f), State Requirements for Education Facilities (SREF), Respondent has grounds to ratify the Superintendent's determination that Petitioner is delinquent, so as to be disqualified for a period of one year from bidding on any construction contracts with Respondent that require certification.
Findings Of Fact Introduction This case involves the construction of lighted aluminum walkway covers at several dozen of Respondent's existing schools. Walkway covers are the canopies that are erected over sidewalks to protect pedestrians from rain and sun. The construction of lighted walkway covers is not complicated. The job requires electrical, aluminum, drainage, and concrete work. The contractor lays a new sidewalk or widens an existing sidewalk; erects columns to support the cover or canopy, accommodate the conduit to drain stormwater from the covers to the ground, and support light fixtures; fabricates and installs the canopy; installs in-ground drainage features; excavates trenches for electrical service and drainage; and restores the construction site. Prior to the period in question, Respondent contracted with Walker Design & Construction Co. (Walker) for the construction of lighted walkway covers at Respondent's schools. In the summer of 2009, contemplating the construction of a large number of walkway covers over a short period of time, Respondent decided to broaden its pool of contractors. For schools with urgent needs, which constituted about one-quarter of the construction budget, Respondent assigned the work to Walker through its competitively bid annual contract that had been in place since 2007. Walker's work on these urgent-needs schools is not addressed in this recommended order. For the remaining schools, Respondent decided to issue a request for proposals to obtain as many as four contractors from which it could later solicit bids for groups of projects. Respondent sought design/build contracts, in which the contractors would assume the responsibility of designing lighted walkway covers that met the stated requirements of Respondent. Contract Documents RFP and Selection of Four Design Builders By Request for Proposal for the Design/Build of Aluminum Walkway Covers (RFP) published in August 2009, Respondent requested proposals by September 21, 2009, for the design, permitting, fabrication, and installation of lighted aluminum walkway covers over existing and new sidewalks at about 50 sites at an estimated budget, per site, of $50,000-$500,000 and at a total approved budget of $8 million. The RFP Instructions to Proposers is identified as Section 00100.2/ Paragraph 00100.7.2 states that Respondent will award up to four contracts "to establish a pool of qualified Design Builders to [construct] . . . walkway covers at locations requested by the District on an as needed basis" for the ensuing two years. Paragraph 00100.7.2 explains that Respondent will request the selected Design Builders to participate in an invitation to bid for each project that Respondent chooses to undertake. Paragraph 00100.9 provides that Respondent will issue a Notice to Proceed after the selected Design Builder3/ has submitted to Respondent the necessary documents. Paragraph 00100.9.2 requires the Design Builder, within 14 days after being awarded a specific project, to submit a performance bond, a labor and materials payment bond, proof of insurance, a list of subcontractors, a "preliminary progress schedule," and a "Schedule of Values," which is detailed in Paragraph 00700.9.2. This paragraph is in the General Conditions of the Contract for Design/Build, which is discussed below. In November 2009, Respondent selected four proposals submitted in response to the RFP. The winning contractors were Petitioner, Walker, Pirtle Construction Co. (Pirtle), and Hardy Industries. Hardy Industries later decided not to bid on any of the projects, so only three Design Builders competed for the projects. With each Design Builder, Respondent entered into a master contract, a copy of which had been attached to the RFP as a Sample Owner-Design/Builder Agreement. As Respondent identified specific projects, each Design Builder conceptualized the work sufficiently to prepare an estimated cost, so as to permit the Design Builder to submit a bid for the project. Respondent then selected the lowest bid for each project. Ultimately, Petitioner won contracts for 17 schools, Pirtle won contracts for six schools, and Walker won contracts for the remaining schools, which probably numbered at least 27. Owner-Design/Builder Agreement, General Conditions, Special Conditions, Supplementary Conditions, and Design-Build Criteria Owner-Design/Builder Agreement Petitioner and Respondent executed an Owner- Design/Builder Agreement on November 6, 2009. This document is identified as Section 000510 and contains Articles, not Paragraphs. References to Article 1, for instance, will thus be to Article 000510.1. Article 000510.1 provides that the Contract Documents are the RFP, the Owner-Design/Builder Agreement, the performance and payment bonds, the Design Builder's proposal, documentation submitted by the Design Builder before and after the awarding of the contract, General Conditions, Special Conditions, Supplemental Conditions, Educational Specifications, District Master Design Specifications and Criteria, each project's Design/Build Criteria Package, Preliminary and Final Drawings, the Project Manual, and all addenda and modification issued-- respectively--before and after the submittal of the Proposal. Article 000510.3 states that the Contract Time begins with the issuance of the Notice to Proceed, and the Work must be Substantially Completed by the date specified in the Notice to Proceed. Article 000510.3 adds that a failure to complete the Project in the specified time "shall result in substantial injury to the Owner," and a failure to meet the Substantial Completion deadline shall result in the payment of Liquidated Damages. 2. General Conditions As already mentioned, the General Conditions of the Contract for Design/Build is identified as Section 00700. Paragraph 00700.1.1.1. defines the Contract Documents as the Owner-Design/Builder Agreement, the General, Supplementary and other Conditions of the Contract, the Drawings, the project manual, and all addenda and modifications. Paragraph 00700.1.1.1 adds that Contract Documents "also include [the RFP], sample forms, the Proposal or portions of Addenda related to any of these, or any other documents, unless specifically enumerated in the Owner-Design Build Agreement, unless [sic] specifically enumerated in the Owner-Design/Builder Agreement." Count I cites Paragraphs 00700.4.12 and 00700.4.14, which are in the General Conditions. Article 00700.4.12 addresses the use of the site. The sole provision in this article is Paragraph 00700.4.12.1, which states: "The Design/Builder . . . shall not unreasonably encumber the Site with any materials or equipment." Article 00700.4.14 addresses cleaning up. The sole provision in this article is Paragraph 00700.4.14.1, which states: The Design/Builder at all times shall keep the Project and surrounding areas free from accumulation of waste materials or rubbish caused by his operations. At the completion of the Work, he shall remove all his waste materials and rubbish from and about the Project as well as all his tools, construction equipment, machinery and surplus materials. The Owner may, at any time deemed necessary, direct the Design/Builder to clean up the site to the Owner's standard. Count II cites Article 00700.8.2 and Paragraphs 00700.8.2.1 and 00700.8.2.2 of the General Conditions. Article 00700.8.2 addresses progress and completion. Paragraph 00700.8.2.1 states that all time limits in the Contract Documents are of the essence. Paragraph 00700.8.2.2 requires the Design Builder to start the work on the date of commencement, as defined in Paragraphs 00700.8.1.1 and 00700.8.1.2, and complete the work within the Contract Time. Paragraph 00700.8.1.1 provides that the Contract Time starts with the issuance of the Notice to Proceed. Paragraph 00700.8.1.1.3 defines Final Completion as the date set forth in the Proposal, unless the Owner agrees to amend this date. Paragraph 00700.8.1.2 defines Substantial Completion as the date certified by the Owner that construction is sufficiently complete in accordance with the Contract Documents that the Owner "can occupy or utilize the Project for its intended purpose." Paragraph 00700.8.1.2 adds that all warranties begin the next day. Count III cites Paragraph 00700.9.5.4 of the General Conditions. This paragraph requires the Design Builder, within ten days of receipt of payment from the Owner, to pay each Subcontractor, out of the amount paid to the Design Builder on account of the Subcontractor's Work, the amount to which the Subcontractor is entitled, less any retainage withheld by the Owner on account of such Subcontractor's Work. Paragraph 00700.1.1.1 defines a Modification as an amendment to the Contract that is signed by both parties, a Change Order, a "written interpretation" issued by the Owner under Paragraph 00700.2.2.8, a "written order for a minor change in the Work" issued by the Owner, and a "Constructive [sic] Change Directive." Paragraph 00700.13.1.1A defines a Change Order as a "written order to the Design/Builder signed by the Owner issued after execution of the Contract, authorizing a change in the Work or an adjustment in the Contract Sum or Contract Time." This provision warns, "The Contract Sum and the Contract Time may be changed only by a Change Order." Under Paragraph 00700.13.1.3, the cost or credit to the Owner may be determined by mutual agreement, unit prices, or costs plus a mutually acceptable fixed or percentage fee. In addition to these options, Paragraph 00700.13.1.4 authorizes the Design Builder to proceed with Work that is described by a written order. The compensation will be based on a determination of the Owner based on its analysis of the Design Builder's "itemized accounting . . . with appropriate supporting data" covering the cost of materials, cost of labor, bond premiums, rental value of equipment and machinery, and the additional cost of supervision and field office personnel directly attributable to the change. Paragraph 00700.13.1.4.1 limits the cost allowance for overhead and profit to no more than 15 percent of the net cost. The meaning of a "written instruction" that may support a Modification is unclear because there is no Paragraph 00700.2.2.8. Other provisions under Paragraph 00700.2.1 discuss the authority of the School Board designee to interpret the Contract Documents, but do not suggest that such interpretations would constitute Modifications. Paragraph 00700.13.2 addresses Construction Change Directives. According to Paragraph 00700.13.2.1, such a directive is a "written order signed by the Owner, directing a change in the Work and stating a proposed basis for adjustments, if any, in the Contract Sum or Contract Time, or both." Paragraphs 00700.13.2.3 and 00700.13.2.5 incorporate similar provisions to those discussed above in connection with Change Orders for determining the appropriate adjustment in the Contract Sum for a Construction Change Directive. Paragraph 00700.13.4.1 provides that, if the Design Builder wishes to claim an increase in the Contract Sum, it shall give the Owner written notice within 20 days after the start of the occurrence of the event giving rise to the claim. Any change in the Contract Sum resulting from such a claim shall be authorized by a Change Order. Untimely claims are waived. Other relevant provisions of the General Conditions deal with the School Board designee, through whom the Owner's instructions are transmitted to the Design Builder, according to Paragraph 00700.2.1.2. This paragraph states that the School Board designee has authority to act on behalf of the Owner only to the extent provided in the Contract Documents, "unless otherwise modified by written instruments in accordance with Subparagraph [00700.]2.2.15." The elusiveness of this provision--initially because the all-inclusive definition of the Contract Documents would likely capture any such written instrument--is reinforced by the nonexistence of Subparagraph 00700.2.2.15. Paragraph 00700.2.1.3 advises that the School Board designee will visit the Site at appropriate intervals to familiarize himself with the progress and quality of Work and determine if the Work is proceeding in accordance with the Contract Documents. Paragraph 00700.2.1.3 requires the Design Builder to inform the Owner of its progress by providing written monthly reports "defined as follows:." Nothing follows. Paragraph 00700.2.1.4 states that the School Board designee "will not be responsible for the Design/Builder's failure to carry out the Work in accordance with Contract Documents," nor will the designee "be responsible for or have control or charge over acts or omissions of the Design/Builder . . . ." Paragraph 00700.2.1.6 states that, "[b]ased on the School Board designee's observation and an evaluation of the Design/Builder's Application for Payment," Respondent will recommend the amounts owing to the Design Builder and issue a Certificate for Payment of such amounts. Paragraph 00700.2.1.7 identifies the School Board designee as the "interpreter of the requirements of the Contract Documents." The School Board designee has the authority to reject Work that fails to conform to the Contract Documents, according to Paragraph 00700.2.1.11, and he has the authority to determine the date of Substantial Completion, according to Paragraph 00700.2.1.13. However, the School Board designee may order only minor changes in Work and is authorized only to prepare Change Order Requests, as provided by Paragraph 00700.2.1.12. Paragraph 00700.2.1.9 states that, if the Project Manager cannot resolve any disputes relating to the execution or progress of Work or interpretation of Contract Documents, the dispute shall be referred to the Director of Program Management.4/ Paragraph 00700.3.3.1 states that if the Design Builder "fails to correct defective work as required in Paragraph 00700.13.2 or persistently fails to carry out the Work in accordance with the Contract Documents, the Owner . . . may order the Design/Builder to stop the Work or any portion thereof until the cause for such order has been eliminated[.]" Paragraph 00700.13.2 does not address defective work or the failure to correct such work. However, Paragraph 00700.14.2.1 provides: "The Design/Builder shall promptly correct all Work rejected by the Owner as defective or as failing to conform to the Contract Documents whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The Design/Builder shall bear all costs of correcting such rejected Work." Paragraph 00700.3.4.1 authorizes the Owner to correct any deficiencies in the Design Builder's Work if the Design Builder fails to carry out the Work in accordance with the Contract Documents and fails to commence corrections within seven days of the receipt of written notice of such failure. Paragraph 00700.3.6.1 provides that a failure of the Design Builder "to make prompt payments to " Unfortunately, the sentence, which appears at the bottom of page 00700-7, is never completed. At the top of the next page is the beginning of Paragraph 00700.3.6.2, which provides, among other things, that the failure of the Subcontractors to comply with the Contract Documents is a ground for the Owner to find the Design Builder in default. Dealing with the Design Builder's failure to comply with the Contract Documents, Paragraph 00700.4.3.4 states: "The Design/Builder shall perform the Work in accordance with the Contract Documents and submittals approved pursuant to Paragraph 00700.4.11. Paragraph 00700.4.11.1 identifies Shop Drawings as drawings prepared by the Design/Builder or a Subcontractor to illustrate some part of the Work. Paragraph 00700.4.10.1 requires the Design/Builder to maintain onsite a copy of all Drawings, Specifications, Addenda, Change Orders, and Modifications "marked currently to record all changes made during construction." Various provisions address the work schedule and progress payments. Paragraph 00700.4.9.1 requires the Design Builder to submit to the Owner a Construction Schedule, which must include at least three weeks for permitting of the Foundation, Shell, and Building. The Design Builder must promptly inform the Owner of any proposed change to the Schedule and revise the Schedule with ten days of Owner approval of such change. Monthly progress payments will not be approved until the Owner receives required updates to the Schedule. Paragraph 00700.4.9.3 requires the Design Builder to submit to the Owner, with each Application for Payment, a copy of the approved progress schedule marked to show the percentage completed for each part of the Work. The monthly submission must state the estimated total number of days that the Work is ahead of or behind the Contract Completion Date. This paragraph concludes: Should the Design/Builder fail to meet the approved schedule, documentation acceptable to the Owner shall be required of the Design/Builder to show just cause for delays or for additional time requests. Failure to comply with this subparagraph shall be sufficient grounds for the Owner to find the Design/Builder in substantial default and certify that sufficient cause exists to terminate the Contract or to withhold Payment to the Design/Builder until an updated progress Schedule acceptable to the Owner is submitted. Such failure shall not be cause for additional time. Paragraph 00700.9.3.1 requires the Design Builder to submit to the Owner an Application for Payment at least 14 days before the date of the sought progress payment. Prior to receipt of all payments after the first payment, the Design Builder must furnish to the Owner a Release of Lien/Verification of Payments proving that all labor and materials furnished through the date of the preceding requisition have been fully paid, less any retainage. Paragraph 00700.9.4.1 states that, within three days of receipt of the Application for Payment, the Owner shall issue a Certificate for Payment or notify the Design Builder why it is withholding a certificate. Paragraph 00700.9.4.2 states that the Certificate for Payment constitutes a representation by the Owner that the Work has progressed to the point indicated on the Application and the quality of the Work is in accordance with the Contract Documents, subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion. Paragraph 00700.9.5.1 requires the Owner to make monthly progress payments of 90% of the amount otherwise due within 11 days after issuance of the Certificate of Payment. Paragraph 00700.9.11.1 requires the Design Builder, prior to receiving the Final Payment, to furnish to the Owner one complete set of drawings "indicating all construction changes." Paragraph 00700.7.7.1 provides that Respondent's Building Department is the designated inspector of the Owner. The Building Department shall inspect the Work for compliance with the Florida Building Code and other legal requirements. The School District's designee shall inspect for compliance with the Contract Documents. Several provisions deal with the Contract Time, in addition to those cited in Count II. Paragraph 00700.8.1.1.1 states that the Contract Time starts with the date of issuance of the Notice to Proceed. Paragraph 00700.8.1.1.3 states that the Final Completion Date of the Project is the date established by the Proposal unless amended by consent of the Owner. Paragraph 00700.8.1.2 states that the Date of Substantial Completion of the Work is the date certified by the Owner when the construction is sufficiently complete in accordance with the Contract Documents, so the Owner can use the Project for its intended purpose. Paragraph 00700.8.3.1 provides that the Owner shall extend the Contract Time, by Change Order, for "such reasonable time as the Owner may determine" for any delays caused by the neglect of the Owner or Owner's subcontractor, Change Orders, or other justifiable cause. The Design Builder must present a claim for extension of time not more than 20 days after the commencement of the delay, or else the claim will be waived. Paragraph 00700.8.4.1 provides for Liquidated Damages for failing to meet the Substantial Completion and Final Completion deadlines. 3. Special Conditions As already mentioned, the Special Conditions is identified as Section 00830. These conditions apply directly to the RFP process and are identified as part of the Contract Documents. Count IV cites Paragraph 00830.1.4 of the Special Conditions. This paragraph incorporates, among other documents, the District Master Specifications. Likewise, Paragraph 00830.8.1 provides that the walkway covers will be constructed in accordance with the District Master Specifications, although it erroneously asserts that "[a] design criteria package is not applicable to this RFP." (Count IV's citation to "Article 2" is unclear, but unnecessary, as Paragraph 00830.1.4, as well as other provisions, incorporate the District Master Specifications into the Contract Documents.) Paragraph 00830.2.3 states that Respondent intends to award a two-year contract, subject to a renewal of two years, to as many as four contractors, whose proposals in response to the RFP are ranked the highest by an evaluation committee. Paragraph 00830.10.1 states that, as a prerequisite for final payment, the Design Builder must furnish the Owner with drawings of all "modifications, additions, deletions, etc. to construction which are at variance with or in addition to the information show on the original drawing," and all "modifications, additions, deletions, etc. to utilities, pipes, conduits, etc. for all site work and construction which are at variance with or in addition to information shown on original drawings." 4. Supplementary Conditions 45. The Supplementary Conditions of the Contract for Design/Build is identified as Section 00850. None of these provisions is relevant to this case. 5. Walkway Cover Design-Build Criteria The Aluminum Walkway Cover Design-Build Criteria Package (Design/Build Criteria) does not bear a section number. This document is attached to the RFP. (Respondent Exhibit 106) Paragraph 1.C of the Design/Build Criteria states that Walkway Covers shall cover the existing or specified width of indicated sidewalks plus at least one foot on either side. Paragraph 1.E requires that designs must comply with SREF, the Florida Building Code, the District Master Specifications, the Design Criteria, and other materials. The District Master Specifications and Design Criteria are discussed below. Paragraph 3 advises that Design Builders must provide enough information in their plans to be able to obtain Individual Building Permits. Paragraph 3.iii. warns, "This is a critical function in order to meet contract timeframes." Paragraph 3.iii.2. identifies the items for which the Design Builder may obtain approval from the Building Department prior to bidding. These items include engineering and drawings for typical concrete foundations and light fixtures. Paragraph 3.iii.4.a.i. requires the drawings to show all drainage discharge points from the walkway canopies. This provision adds: "If permitted, [the drainage discharge points] can discharge to a grassed area where there is an inlet that will route drainage to the storm sewer system. Otherwise the discharge must be collected by storm water leaders that directly discharge to the storm sewer system." Paragraph 3.iii.4.a.i.1 requires that all "storm water leader or collection design shall be clearly shown on the drawings." Paragraph 3.ix. requires the Design Builder to "[f]inish the construction completion punchlists in a prompt and workmanlike manner. Restore work sites equal or better." Paragraph 3.x requires the Design Builder to provide a simple Gantt chart illustrating a schedule of progress. The Design Builder must provide this schedule after the issuance of the Purchase Order and before the issuance of the Notice to Proceed. The schedule must show the design, the acquisition of the Building Permit, the fabrication of components, mobilization, foundation construction, the Covered Walkway installation, electrical/lighting construction, site cleanup and restoration, the Substantial Completion date, and a four-week period for completion of the final punchlists and issuance of the Certificate of Completion. Paragraph 3.xi. requires the Design Builder to provide a Schedule of Values after the issuance of the Purchase Order and before the issuance of the Notice to Proceed. The cost breakout must include Design and Permitting, fabrication, shipping and delivery, foundation construction, drainage construction, installation of covered walkway structures, installation of electrical and lighting features, and site restoration. Paragraph 3.xii. states that a PPE will accompany each progress payment. Paragraph 3.xiii. requires the Design Builder to provide Lien Releases for payments made in the previous progress payment. Paragraph 4 provides details of the scope of Work. Paragraph 4.i.10. requires the Work to include "[s]tormwater downspouts . . . with Concrete precast splash blocks where they are permitted to be used, or they shall be hard-piped to offsite discharge where necessary to avoid erosion and ponding issues on site." This provision adds that the latter option "may include construction of stormwater piping, yard drains and connection to existing drainage structures. . . . Positive drainage may be needed. . . . When drainage features are included, provide inlet and invert elevations and piping details." Paragraph 4.iii. addresses Lighting. Paragraph 4.iii.2. requires a "minimum illumination of 2 footcandles on the sidewalks being covered, to be verified with charted photometrics and computations." Paragraph 4.iii.3 specifies that "Light Fixtures shall be Model number LVP 58-1 PL T42- 12/277-HPF-Prismatic-WHT-WET-AL or equal." This specification is for a fluorescent fixture. The Design Builder is required to install the lights so they are "securely mounted to the canopy columns." This provision concludes: "Provide a submittal for District acceptance before procuring." Paragraph 4.vii. states that "Time is of the essence." This provision warns that Liquidated Damages are tied into the Contract Time, as set forth in the Purchase Order and Notice to Proceed. Attached to the Design/Build Criteria is Attachment 1: "List of Items That Can Be Approved Prior to Bid." This form instructs each Design Builder to submit to the Building Department various items prior to bidding for particular projects--obviously, in an effort to expedite permitting. The listed items are the Demountable Anchorage System, which would permit the nondestructive relocation of columns as portable buildings are removed or relocated; engineering and drawings for columns, beams and decks, as well as all standard installation features and designs, so that a Design Builder would later only have to submit drawings for site-specific improvements; the engineering and drawings for typical concrete foundations; and the proposed light fixtures and timers. District Master Specifications and District Design Criteria District Master Specifications The District Master Specifications provides requirements for several elements of construction. Each element bears its own Section number, but each section also bears parenthetically a number in the format "xx xx xx," which format, as noted above, is used in Count IV. Except for the Section cited in the Count IV, citations to the District Master Specifications shall not include the parenthetical identification number. Count IV cites Section 01540 (01 56 00) of the District Master Specifications. This Section addresses security barriers and enclosures. Section 01540 provides: SECTION INCLUDES Security Program Entry Control Personnel Identification SECURITY PROGRAM Protect work, existing premises, and Owner's operations from theft, vandalism, and unauthorized entry. Initiate program in coordination with Owner's existing security system at project mobilization. Maintain program throughout construction period until Owner acceptance precludes the need for Contractor security. ENTRY CONTROL Restrict entrance of persons and vehicles into Project site and existing facilities. Allow entrance only to authorized persons with proper identification. Maintain log of workers and visitors, make available to Owner on request. Coordinate access of Owner's personnel to site in coordination with Owner's security forces. PERSONNEL IDENTIFICATION Provide identification badge to each person authorized to enter premises. Maintain a list of accredited persons; submit copy to Owner on request. For Earth Moving, Paragraph 02200.3.16.A requires the contractor to "[u]niformly grade areas to a smooth surface, free from irregular surface changes." Paragraph 02200.3.19.A states that the contractor must "[r]emove surplus satisfactory soil and waste material, including unsatisfactory soil, trash, and debris, and legally dispose of it off Owner's property." For Storm Drainage Utilities, Paragraph 02700.1.1.C.1. requires the contractor to "[p]rovide storm water branches to roof leaders (8" dia. 1% min slope)." For Sodding, Paragraph 02938.1.2.B states: "Unless otherwise indicated, the Contractor is responsible for the repair of any existing low areas disturbed during the construction process." For Walkway Coverings, Paragraph 10532.1.4.A. requires the contractor to submit "shop drawings including plans, elevations and details, with dimensions and grades, for approval by Architect." The architect is an employee of the Building Department. For Summary of Work/Contractor Conduct on Campus, Paragraph 01010.1.3.B states: "Do not unreasonably encumber site with materials or equipment." For Procedures for Payment, Paragraph 01027.1.3.C. requires the use of data from the approved Schedule of Values. Paragraph 01027.1.4.D requires the submittal of Release of Lien waivers. For Contract Modification Procedures, Paragraph 01028.1.3.B. requires the contractor requesting a change in cost or time to provide sufficient data to support the request. Paragraph 01028.1.3.C lists data supporting computations as quantities of products, labor and equipment, taxes, insurance and bonds, overhead and profit, justification for any change to Contract Time, and credit for deletions from the Contract. Paragraph 01028.1.3.D lists supporting documentation for additional costs as the origin and date of the claim, dates and times that work was performed and by whom, time records and wage rates paid, and invoices and receipts for products, equipment and subcontracts. For Project Management and Coordination, Paragraph 01039.1.2.E requires the contractor to "[c]oordinate completion and clean up of Work of separate sections in preparation for Substantial Completion and for portions of Work designated for Owner's partial occupancy." For Alteration Project Procedures, Paragraph 01120.3.6.A. requires the contractor to "[p]atch or replace portions of existing surfaces damaged, lifted, discolored, or showing other imperfections." 2. District Design Criteria The District Design Criteria is sometimes referred to as the Design Criteria, but is not to be confused with the Design/Build Criteria. One of the sections, the Architectural Design Criteria, presents a broad set of criteria. Paragraph I.A explains that the District Design Criteria and District Master Specifications are to inform the preparation of design and contract documents for particular projects. Another section, the Electrical Design Criteria, presents a broad set of electrical criteria. Paragraph II.B.3.a. requires at least two footcandles of lighting for walkway covers and canopies. Paragraph II.B.3.e. requires that all exterior light fixtures be high-pressure sodium or metal halide. D. Interpretation of Contract Documents The various Contract Documents do not provide for the means by which to resolve any conflicts among the provisions of these various documents. The most notable such conflict in this case is between the specification of high-pressure sodium or metal halide5/ light fixtures in the District Design Criteria and the specification of fluorescent fixtures in the Design/Build Criteria. Among Respondent's employees, it is common knowledge that the documents that are more specific to a particular project control over more general documents that pertain to all projects. (Tr. 283, 1402, 3974). Thus, the Design/Build Criteria would control over the District Design Criteria. Petitioner's Projects For each of the 17 schools for which Petitioner submitted the lowest bid, Petitioner and Respondent entered into a brief Short Form Agreement, which states the Contract Price and various deadlines. For these 17 schools, the total Contract Prices exceeded $1.75 million. In January 2010, the parties entered into Short Form Agreements for Binks Forest Elementary School (Binks) for $51,280, Grassy Waters for $91,450, and Egret Lake for $145,345.26. In February 2010, the parties entered into Short Form Agreements for Spanish River for $233,439, Atlantic for $81,930, Jupiter Elementary School (Jupiter) for $18,748, Lighthouse for $129,796, Limestone Creek for $147,469, Watkins for $145,097, Independence for $212,272, Jupiter Farms for $69,957, Olympic Heights High School (Olympic Heights) for $97,946, and Poinciana Elementary School (Poinciana) for $86,901. In April 2010, the parties entered into Short Form Agreements for Lake Worth Middle School (Lake Worth) for $135,982, Lantana Elementary School (Lantana) for $24,918, Indian Pines Elementary School (Indian Pines) for $81,628, and Crosspointe Elementary School (Crosspointe) for $40,292. Based on the individual Short Form Agreements, the milestone dates for the submission of plans and drawings, the issuance of the building permit, and the installation of the cover for the 17 projects were as follows (all dates are in 2010): School Drawings Permit Cover Installed Binks February 5 March 15 April 15 Grassy Waters February 5 March 15 May 20 Egret Lake Spanish River Atlantic February March 31 March 31 5 March 15 April 31 April 31 May 31 June 31 June 31 Jupiter April 20 May 20 June 20 Lighthouse April 20 May 20 June 20 Limestone Creek April 20 May 20 June 20 Watkins April 20 May 20 June 20 Independence April 20 May 20 July 20 Jupiter Farms April 20 May 20 July 20 Olympic Heights March 31 April 31 June 31 Poinciana March 31 April 31 June 31 Lake Worth June 15 July 29 September 15 Lantana June 15 July 29 September 15 Indian Pines July 15 August 29 October 15 Crosspointe July 23 August 27 October 5 For the purpose of this procurement, Respondent divided all of the schools in the walkway cover projects into various groups. The 17 above-mentioned schools were in six groups. Group 2 included Binks, Grassy Waters, and Egret Lake. Groups 5 and 6 included Atlantic, Olympic Heights, Poinciana, Spanish River, Watkins, Independence, Jupiter, Jupiter Farms, Lighthouse, and Limestone Creek. Groups 7, 8, and 9 included Lake Worth, Lantana, Indian Pines, and Crosspointe. As can be seen from the construction milestone dates listed in the charts immediately above and below, the three schools in Group 2 were the earliest projects, and the four schools in Groups 7, 8, and 9 were the latest projects. Count I raises issues of Petitioner's site management and cleanup at Limestone Creek. Count II raises the issue of Petitioner's timeliness of construction at the previously identified Six Schools, which are within Groups 5 and 6.6/ Count III raises the issue of Petitioner's payment of a subcontractor and a supplier at an unspecified number of schools. Count IV raises an issue as to Petitioner's return of keys at Grassy Waters, Egret Lake, Atlantic, Lighthouse, Limestone Creek, and an 18th school, Dwyer. As noted in the Contract Documents, Respondent was to issue a Notice to Proceed as soon as Petitioner had submitted the necessary preliminary documentation for each project. As provided in the General Conditions and Owner-Design/Builder Agreement, the Contract Time for determining the Substantial Completion Date started with the issuance of the Notice to Proceed for each project. On their face, the Notices to Proceed provide the following dates for Commencement, Substantial Completion, and Final Completion for the 17 projects (all dates are in 2010): School Commencement Substantial Final Binks March 9 July 6 August 5 Grassy Waters March 9 July 6 August 5 Egret Lake March 9 July 6 August 5 Spanish River March 9 July 30 August 29 Atlantic March 9 June 30 July 30 Jupiter March 9 June 28 July 28 Lighthouse March 9 July 16 August 16 Limestone Creek March 9 July 16 August 16 Watkins March 9 July 15 August 14 Independence March 9 July 28 August 27 Jupiter Farms March 9 July 12 August 12 Olympic Heights March 9 July 13 August 12 Poinciana March 9 June 29 July 29 Lake Worth June 14 September 14 October 14 Lantana Indian Pines Crosspointe June 13 July 14 July 14 September October 5 September 13 29 October 13 November 4 October 29 As shown on this chart, the approximate duration of construction--following the receipt of a building permit--was 90-120 days. The preliminary documentation that resulted in the issuance of a Notice to Proceed did not include the drawings and plans on which a Design Builder would obtain a building permit for a particular project. Each Design Builder submitted these drawings and plans after the Commencement Date, as discussed in more detail below. As noted below, the Building Department was expected to take about 30 days to act on the drawings and plans. If a Design Builder were prepared to submit the drawings and plans at or a few days after the Commencement Date and, assuming that the drawings and plans were adequate to support the issuance of a building permit without the submittal of any revisions, the Design Builder would therefore have a building permit and could begin construction a little more than one month after the Commencement Date. For all but the last four projects, if Petitioner had obtained building permits in four or five weeks after Commencement, it would have had about three months to reach Substantial Completion on all but two of the projects and another month to reach Final Completion on all of the projects.7/ Respondent's Main Personnel and Departments At the time of the hearing, James Kunard was the director of the Facilities Services Department; at the time of the events in question, Mr. Kunard was the general manager of the Facilities Services Department. The director of the department was Martin Mets. Mr. Kunard directly supervised Terrence Bailey, who was the project manager for the walkway cover projects. Mr. Kunard and Mr. Bailey directly supervised the Facilities Management Coordinators, who served as the liaisons between the school principals and the Facilities Services Department. Although herself a Facilities Management Coordinator, Dorothy Banaszewski generally supervised the other coordinators because of her education in civil engineering, her licensing as a professional engineer, and her superior experience in construction. At the time in question, as previously noted, Ms. Swan was the director of the Purchasing Department. Additionally, Thomas Hogarth was the director of the Building Department, and Robert Upson was a professional engineer in the Project Controls Department. Supervising Mr. Kunard, Ms. Swan, Mr. Hogarth, and Mr. Upson was Joseph Sanches, who was the Chief of Support Operations. Mr. Sanches' supervisor was Joe Moore, who was the Chief Operating Officer. After executing Owner-Design/Builder Agreements with each of the Design Builders, the Facilities Services Department prepared the Design/Build Criteria to provide the Design Builders with the basic information necessary for them to price individual jobs in the course of preparing bids. Ms. Banaszewski conducted mandatory prebid site visits so that the Design Builders could acquaint themselves with the sites on which they would be bidding. During these visits, Ms. Banaszewski gave the Design Builders site plans showing the locations of the walkways to be constructed and where they would connect to existing buildings, as well as floor plans indicating the location of electric closets and energy management system devices. Ms. Banaszewski and Mr. Kunard also described the early phases of the walkway cover projects, including such critical matters as that the Building Department would require 30 days to examine applications and issue building permits. After the commencement of construction, the Facilities Services Department assumed a wide range of duties, including monitoring the work, enforcing the Contract Documents, processing Change Orders, preparing punchlists and monitoring their completion, and pursuing liquidated damages. Operating autonomously from Respondent's other departments, the Building Department had three discrete tasks in connection with the walkway cover projects. First, the Building Department issued building permits after assuring that the proposed construction, as evidenced by the drawings and other documentation submitted to the Building Department, conformed to the Florida Building Code, the District Master Specifications, and the District Design Criteria. In issuing building permits, the Building Department might examine plans for compliance with the Design/Build Criteria, but the primary responsibility for this review was with the School Board Designee. Because of the absence of a School Board Designee, ultimate responsibility for ensuring compliance with the Design/Build Criteria was with the Facilities Services Department. Second, the Building Department issued any stop work orders for work that did not conform to the drawings and other documentation on which a permit was based. Third, marking Final Completion, the Building Department issued a certificate of completion (CC) after determining that the construction conformed to the Florida Building Code and other applicable law, as well as the approved plans and drawings. The Building Department's issuance of a CC is not conditioned on the Design Builder's completion of any punchlist, unless a punchlist item raises an issue of compliance with the Florida Building Code or other law or compliance with the approved plans and drawings. In coordination with the principal of the school, the Facilities Services Department prepares a punchlist when the job reaches Substantial Completion. Substantial Completion occurs when Respondent is able to take beneficial possession of the improvements.8/ The job of ensuring the completion of the punchlist falls to the Facilities Services Department, so the incentive for the Design/Builder to complete the punchlist is not the obtaining of a CC, but the payment of the retainage and avoidance of a determination of delinquency or a suspension of its certification to bid on Respondent's projects. The Purchasing Department manages the purchasing of goods and services, including construction work. The Purchasing Department conducts solicitations, but only at the request of schools or other departments. After concluding the procurement process, the Purchasing Department turns over the duties of contract management to the Facilities Services Department, although the Purchasing Department remains available to provide support to the Facilities Services Department, as requested. Early in the walkway cover projects, Mr. Kunard and Ms. Swan discussed in detail how to structure the procurement of the necessary work. These discussions included the allocation of the schools with urgent needs to Walker under its existing design/build contract, and the use of new design/build contracts for work on the remaining schools. As will be seen below, the Purchasing Department must also approve change orders proposed by the Facilities Services Department. Thus, the Purchasing Department retains the ability to prevent the Facilities Services Department from agreeing to the purchase of additional work from a Design Builder, even if the related work is related to the work for which Respondent has already contracted. The Project Controls Department also exercises responsibilities as to change orders. The Project Controls Department is an independent watch-dog department whose financial-accountability responsibilities include assisting the Facilities Services Department in determining fair and reasonable costs for change orders. Mr. Upson provided assistance in these matters to Mr. Kunard. Timeframes of Counts I-IV The timeframe of Count II spans much of the time period covered by this case, which starts in first half of 2009. The timeframe of Count III starts in the summer of 2009, as the alleged claims of the supplier and subcontractor arose during this period. The timeframe of Count I covers most of the time period covered by this case. The timeframe of Count IV extends over the period that starts with the completion of work at the earliest schools to be finished. Count II: Timeliness of Construction at Spanish River, Watkins, Lighthouse, Limestone Creek, Independence, and Jupiter Farms Permitting As noted above, the milestones for drawings and permitting for five of the Six Schools are the same: April 20 and May 20, respectively. For Spanish River, these milestones are March 31 and April "31," respectively. The deadlines for Substantial Completion for the Six Schools ranged from July 12-30, 2010, and the deadlines for Final Completion for the Six Schools ranged from August 12-29, 2010. Slippage occurred immediately, as Petitioner did not timely submit drawings to the Building Department for any of the Six Schools. For Spanish River, Petitioner submitted drawings on April 27, 2010--about four weeks late. For the remaining five schools, Petitioner submitted drawings on May 27, 2010-- about five weeks late. The main reason for the loss of time was probably that Petitioner's aluminum walkway subcontractor unexpectedly discontinued business in the first quarter of 2010. According to the minutes of a meeting that took place on March 4, 2010, Hydn Rousseau, the president of Petitioner, and Ed Vlock, the construction manager of Petitioner's walkway cover projects, discussed this development with Mr. Kunard and Mr. Bailey. Mr. Kunard warned that there would be financial consequences if Petitioner tried to back out of its contractual obligations. According to the minutes, Mr. Rousseau and Mr. Vlock assured Mr. Kunard they intended to perform their obligations under the contracts, but needed the help of the Facilities Services Department to urge the Building Department to expedite the issuance of building permits. This request was premature. As noted above, from the time of this meeting, nearly eight weeks would pass before Petitioner would submit its first set of plans and drawings--for Spanish River--and 12 weeks would pass before Petitioner would submit the plans and drawings for the other five schools. The minutes document an alternative proposed by Respondent's representatives: for each project, Petitioner could request an extension of the Contract Time, free of liquidated damages, as long as the Contract Price did not change and the construction was completed before school started in August. The minutes note: "[Petitioner] will consider this, noting that it is juggling the timing of projects to ensure profitability." This is an early appearance of Respondent's concern with time juxtaposed with Petitioner's concern with costs. However, Petitioner accepted Respondent's offer. By letter dated March 4, 2010, regarding the "Design/Build of Aluminum Walkway Covers," Petitioner asked for an extension of the time stated in "the" Notice to Proceed due to the need to substitute Perfection Architectural Services (Perfection) as the new aluminum walkway subcontractor "for Projects related to RFQ awarded on November 3, 2009." This reference suggests that the request is for all 17 projects. The March 4 letter states that work will start by June 5, 2010, and will be complete prior to the resumption of school on August 17, 2010. The letter states that Petitioner will honor its bid prices, but asks for a waiver of liquidated damages for any delay. By undated memo from Mr. Bailey to Petitioner, Respondent granted the request to substitute Perfection for the former aluminum walkway subcontractor. The memo requests a revised schedule of completion of work and states that all construction must be completed by August 1, 2010. The memo concludes that Respondent will issue a Notice to Proceed on receipt and acceptance of the revised schedule. Although Mr. Bailey uses the singular form, it is likely that he meant to refer to all 17 of Petitioner's projects.9/ But for the problem with the original aluminum walkway subcontractor, confusion caused by Respondent's representatives might have caused some delay in the start of Petitioner's projects. In early April 2010, Shams Moghadam, a professional engineer assigned to Respondent's Building Department, met with Malcolm Cooper, a civil engineer employed by the civil engineering consultant hired by Petitioner. In this meeting, Mr. Moghadam "confirmed" to Mr. Cooper that Petitioner was prohibited from mounting light fixtures on wet columns, which are those columns that support drainage conduits routing stormwater from walkway canopies to in-ground drainage features. By email dated April 12, 2010, to Mr. Moghadam, as well as Mr. Rousseau and Mr. Bailey, Mr. Cooper documented this communication. According to Mr. Moghadam, Mr. Cooper stated that he did not want to locate light fixtures on wet columns. This is Mr. Cooper's recollection, as well. (Pet. Ex. 233, p. 81) But the process by which Mr. Cooper's preference became Respondent's prohibition is unclear. Two things are clear, though. First, wet columns may support light fixtures without posing any increased risk of electrocution; for many years, Respondent has allowed this practice at its schools. Second, by his own admission, Mr. Moghadam never contacted Mr. Cooper to "correct" the prohibition stated in his April 12 email. This failure by Mr. Moghadam led to Respondent's implementation of the prohibition and its label in this recommended order as the Moghadam Prohibition. The Moghadam Prohibition had a significant impact on the lighting design of a project. Generally, every other column was wet, so the prohibition against locating light fixtures on wet columns removed half the columns as locations for light fixtures. A Design Builder suddenly found itself with the challenge of meeting the existing criteria of two footcandles at ground level using a specified fixture of a specified wattage or an approved substitute--all while meeting the new criterion of the Moghadam Prohibition. Mr. Moghadam seems to have been aware of the difficulties in satisfying all these criteria. Mr. Cooper's April 12 email continues: Shams suggested considering the same fixture but with two 26 Watt bulbs, rather than a single 42 Watt bulb.[10/] See attached technical data sheet Lamp No. 2PLC26. You will therefore need to revise the photometric analyses for Groups 2 and 4, as a priority, avoiding the wet columns meeting the 2 foot candle minimum criterion. We can then incorporate these changes on our electrical drawings along with any . . . Building Dept. comments, which we may receive, in the same revision. As is evident from these comments, the timing of the Moghadam Prohibition affected the timing of the plans and drawings for the first three schools, which are in Group 2, rather than any of the Six Schools. Mr. Cooper believed that the lighting changes necessitated by the Moghadam Prohibition, if done promptly, could be incorporated into any revisions required by the Building Department to issue the building permits for the three schools in Group 2 and posed little, if any, impact in terms of timing on the remaining schools, including the Six Schools. Mr. Cooper was right. The Moghadam Prohibition had no significant impact on the timing of the Six Schools. As of April 12, Petitioner still had eight days until the milestone of submitting drawings for five of these schools. For Spanish River, the milestone had passed on March 31--unmet due to reasons, such as the loss of the original aluminum walkway subcontractor, having nothing to do with the as-yet-undeclared Moghadam Prohibition. As indicated below in the discussion of the early phase of the Spanish River project, the time spent in incorporating design changes necessitated by the Moghadam Prohibition likely amounted to no more than ten days. Unsurprisingly, due to Petitioner's late submittals of plans and drawings, the building permits were also late-- through no fault of Respondent. The Building Department issued the building permit for Spanish River on June 8, 2010. The milestone for this permit was April "31"--i.e., May 1. The Spanish River project, which was behind by 27 days when Petitioner submitted the plans and drawings, was now behind by 38 days. The Building Department withheld approval of the initial drawings because, among other things, they failed to depict the connection of proposed drainage pipes to existing pipes and failed to specify all main drainage leader sizes and lengths--deficiencies that were not corrected until June 28--20 days after the Building Department issued the permit. The criticality of these missing items emerges below in the discussion of the stop work order that was later issued at Limestone Creek. The Building Department issued the building permits for Lighthouse, Limestone Creek, Watkins, Independence, and Jupiter Farms--the remaining five schools of the Six Schools--on June 24, 2010. The milestone for these permits was May 20. These five projects, which were behind by 37 days when Petitioner submitted the plans and drawings, were now behind by 35 days. The Facilities Services Department employees urged the Building Department to issue permits, even in the face of missing items. In June, Mr. Kunard and Ms. Banaszewski offered Mr. Hogarth any and all assistance necessary to expedite the issuance of the building permits. By email dated June 23, 2010, to Mr. Hogarth, Ms. Banaszewski stated that Petitioner "is geared up and ready to roll. They have been installing at an incredible rate. They feel they can still meet their completion dates if they have permits this week. We are very anxious for them to proceed because they can move much more quickly during the summer when school is not in session." Later the same day, Victor Chodora, an architect in the Building Department, noted that the plans for Watkins, Independence, Jupiter Farms, and Lighthouse were missing drainage details--again, as noted below, items that turned out to be important regarding the stop work order described below. Trying to expedite the permits, though, Mr. Chodora stated: "I suggest that [Petitioner] at least send email indicating that revised plans addressing the [missing] items will be submitted and approved prior to the first inspection for underground drainage. With the understanding that [for] the next project the items need to be addressed before permit." Yielding to the pressure brought to bear by the Facilities Services Department, later on the same day, Mr. Hogarth emailed Mr. Kunard: "I will issue the permits subject to the following condition: [Petitioner] first must send me a message accepting the plan review comments and agreeing to submit revised drawings and obtain approval prior [to] calling for the first inspection." By email to Mr. Hogarth at 7:35 a.m. the next day, Mr. Vlock accepted the conditions and thanked Mr. Hogarth for his consideration in this matter. It is only for these extraordinary efforts and accommodations of the Building Department that Petitioner obtained the building permits for the Six Schools as soon as it did. Attempting to reinforce an element of uniformity on the aluminum walkway cover projects, on May 25, 2010, Mr. Bailey sent an email to the principals of all four Design Builders, including Mr. Rousseau and Mr. Vlock. In its entirety, the email states: [A]s I inspect the projects in construction I will be taking special note [of] a few of the specific design criteria that we have outlined on each project, i.e., no splash block and all drainage connected with 8" minimum pipes except at parent drop off and bus loops, No High Pressure Sodium Lights, demountable column footings, and no lights on wet columns. If you have a project under this current contract that may have missed my eye while reviewing your drawings for these issues please review and revise the design accordingly as this will not be acceptable at final inspection. In a note to Mr. Moghadam and Patrick Joyce, a civil engineer in the Building Department, Mr. Bailey asked for the assistance of the Building Department to ensure that these criteria were met as projects proceeded through the Building Department's periodic inspections. This seemingly innocuous email is interesting for three reasons. First, Mr. Bailey is acknowledging that he may have missed noncompliances in Design Builders' plans and drawings. As noted above, Petitioner's plans and drawings for Spanish River had been submitted one month earlier, and its plans and drawings for the remaining five schools were submitted two days after the issuance of Mr. Bailey's email. Second, even though the Building Department is not responsible for this task, Mr. Bailey tried to enlist its aid in ensuring that the work conformed to the Design/Build Criteria and such additional requirements, such as the Moghadam Prohibition--even if such assistance were provided as late as the point at which the project is otherwise eligible for a CC. Third, Mr. Bailey provided a clear statement that the lighting was not to be high-pressure sodium and the drainage pipes were to be 8" in diameter.11/ In response to his copy of Mr. Bailey's May 25 email, also by email dated May 25, Mr. Kunard advised the Design Builders, including Mr. Rousseau and Mr. Vlock, that Respondent had required light fixture "Model number LVP 58-1 PL T42- 120/277-HPF/Prismatic-WHT-WET-AL or equal. . . . Provide a submittal for District acceptance before procuring." Mr. Kunard's repetition of the Design/Build Criteria requirement of a 42-watt fluorescent bulbed fixture regrettably fails to respond to Mr. Cooper's statement that Mr. Moghadam had suggested two 26-watt bulbs in place of a single 42-watt fixture. Perhaps Mr. Bailey had failed to copy his supervisor, Mr. Kunard, with Mr. Cooper's email. By email dated July 26, 2010, to the Design Builders, including Mr. Rousseau and Mr. Vlock, as well as Mr. Kunard and Ms. Banaszewski, Mr. Bailey noted that a contractor had proposed a different light fixture from the 42-watt fluorescent lamp specified in the "RFP." The contractor had proposed an 85-watt fluorescent lamp, and Respondent had accepted the change to avoid delaying the projects. The email allows all Design Builders to use this fixture because its use reduces the number of required light fixtures, even though the fixture "does not look as ecstatically as pleasing." Mr. Bailey's etymological innovation aside, this email illustrates two principles of later importance in this case: first, it is an example of Respondent's treating all contractors fairly by notifying all of them of the option of using this cheaper solution to the lighting design; and second, it is an example of Respondent's recognition of the need for expediting construction to outweigh other considerations--here, aesthetics. The force of the first principle, though, is somewhat attenuated by the apparent fact that Respondent had approved the single 85-watt solution two months prior to informing other contractors that this was an option. As is true of much else in their discharge of contract-management responsibilities in this case, Respondent's representatives appear to have failed to have advised other Design Builders of the availability of the 85-watt solution due to mere neglect, not favoritism. Summer 2010: Construction Activity Petitioner's pay applications approximate the progress of Petitioner's work. With each pay application at each job, Petitioner represented the extent to which it had completed the work by type, such as site drainage or concrete. The record does not disclose any disputes concerning these pay applications, so they are suitable guides to Petitioner's progress on each job. During the early phase of construction, Respondent issued PPEs coinciding with the submittal of the pay applications; Respondent later discontinued the issuance of PPEs. Petitioner started actual construction first at Spanish River among the Six Schools. The first pay application that Petitioner submitted for Spanish River is dated April 13, 2010. The payment application seeks full payment for bonds and insurance premiums and structural drawings, but not the civil and electrical drawings being prepared by Mr. Cooper's civil engineering firm. Ten days later, on April 23, Petitioner submitted its second pay application for Spanish River. This application includes the charge for the civil and electrical drawings-- suggesting that Mr. Cooper was able to incorporate the Moghadam Prohibition in the 10-day interval between the first and second pay applications. (Likely, if it could have done so, Petitioner would have included these drawings in the initial pay application because it did so with the remaining five schools when it submitted their initial pay applications in mid-May, as detailed below.) On May 3, 2010, Ms. Banaszewski issued a PPE for Spanish River and assigned Petitioner an average score of 2.8. A "0" is "unacceptable, a "1" is "poor," a "2" is "satisfactory," a "3" is "good," and a "4" is "excellent." Petitioner's lowest score, a 2, was for scheduling and coordination. On May 25, Ms. Banaszewski issued PPEs for the other five schools; the average scores and scheduling and coordination scores for these five schools were the same as for Spanish River. On May 14, 2010, Petitioner submitted its initial pay applications for four of the other five schools. For Watkins, the date of the first pay application is April 13, 2010. Petitioner submitted its third pay application for Spanish River on June 10, 2010. At this point, although work at Spanish River was further along than at the other five schools, Petitioner largely synchronized the submittal of pay applications for the Six Schools for the remainder of the summer. The following chart reflects the pay applications submitted on May 14 (April 13 for Watkins and June 10 for Spanish River), July 31, and September 1 (except for Jupiter Farms, for which Petitioner submitted no pay application between July 31 and October 1).12/ Under each date column, the dollar amount represents the value of the work billed on that date, and the percentage represents the percentage of work remaining. The percentage of work remaining reflects the work already billed plus the value of stored materials. General Conditions $5205-70% $6246-34% $5899--0% Site Drainage $2968-70% $5934-10% $991--0% Concrete $13,500-70% $31,500-0% done Aluminum Walkways $10,212-70% $1506-69% $11,750-7% Electrical $2235-70% $745-60% $0-60% School May 14 July 31 September 1 Spanish River Watkins General Conditions $0-100% $5021--28% $1000--14% Site Drainage $0-100% $5603---0% $0---0% Concrete $0-100% $21,978--0% $0---0% Aluminum Walkways $0-100% $23,656--0% $0---0% Electrical $0-100% $8640--40% $4608---8% Independence General Conditions $0-100% $6640--58% $6165-29% Site Drainage $0-100% $9396---0% done Concrete $0-100% $48,000--7% $0-7% Aluminum Walkways $0-100% $4269--25% $25,002-0% Electrical $0-100% $2462--67% $2462-37% Limestone Creek General Conditions $0-100% $1500--83% $3322-44% Site Drainage $0-100% $0--100% $3648-20% Concrete $0-100% $0--100% $27,145-13% Aluminum Walkways $0-100% $3090--23% $0-23% Electrical $0-100% $0--100% $7208-60% Lighthouse General Conditions $0-100% $3000--68% $1100-57% Site Drainage $0-100% $0-100% $4889--0% Concrete $0-100% $0-100% $11,818-50% Aluminum Walkways $0-100% $2587--26% $0--26% Electrical $0-100% $0-100% $7840-60% Jupiter Farms General Conditions $0-100% $1200--79% no pay app. Site Drainage $0-100% $0-100% no pay app. Concrete $0-100% $0-100% no pay app. Aluminum Walkways $0-100% $1493--26% no pay app. Electrical $0-100% $0-100% no pay app. The June 10 pay application for Spanish River incorporates Change Order #1: to avoid incurring sales tax, Respondent would pay Perfection directly the $119,000, less sales tax, scheduled to be paid this subcontractor for aluminum fabrication and installation. Change Order #1 reduces the Contract Price by this amount, less sales tax. This process is referred in the record to as a Direct Purchase Order (DPO). The July 31 pay application for Spanish River incorporates Change Order #2, which reduces the Contract Price by the sales tax avoided through the use of the DPO. On July 23, 2010, Respondent and Petitioner entered into Change Order #3, which is for additional canopies that were required when Respondent was forced to alter its sidewalks at Spanish River due to requirements of the Americans with Disabilities Act. Change Order #3 added about $14,000 to the Contract Price, but did not extend the Contract Time. The PPEs for Spanish River reflect Respondent's satisfaction with Petitioner's work. A PPE for Spanish River dated June 30, 2010, assigned 3.5's in all categories. Another PPE dated July 27, 2010, assigned 3.2's for the average score and for scheduling and coordination. The July 31 pay applications for the remaining five schools disclosed the use of DPOs to pay Perfection at these schools, as reflected in Change Order #1 and #2 for all schools but Lighthouse. (Lighthouse's change orders were numbered differently due to the presence of two change orders for additional work not relevant to this case.) On July 27, 2010, Respondent issued PPEs for Watkins and Independence with nearly identical scores. At Watkins, Petitioner earned an average score of 2.9 and a score of 3.0 for scheduling and coordination. At Independence, these respective scores were 3.0 and 2.8. Other PPEs at this time are not included in Respondent Exhibit #67. On August 31, Respondent issued PPEs for Independence, Lighthouse, and Limestone Creek. The average score for Independence was 3.7 with 3.5 for scheduling and coordination. The average score for Lighthouse was 3.3 with 3.0 for scheduling and coordination. The average score for Limestone Creek was 3.4 with 3.3 for scheduling and coordination, 3.5 for project management, and 3.0 for customer sensitivity. The latter scores were improvements on the same scores issued for this school--and all the others--on May 25, 2010, when Petitioner earned a 2.5 for project management and a 2.3 for customer sensitivity. Summer 2010: Meetings Between Petitioner and Respondent As spring wore into summer, Petitioner continued to show little regard for the Contract Times applicable to the Six Schools. Despite the early loss of five weeks' time on jobs whose duration was only 90-120 days, nothing in the record discloses any concerns among Petitioner's representatives about the increasingly likely prospect that they would not achieve timely Substantial Completion and Final Completion for the Six Schools. At a meeting on June 10, 2010, with Mr. Kunard, Mr. Bailey, Ms. Banaszewski, and others apparently from the Facilities Services Department, Mr. Rousseau and Mr. Vlock addressed costs, not time. Mr. Vlock and Mr. Rousseau complained that Respondent was not dealing fairly with Petitioner. Specifically, they claimed that Respondent had allowed Walker to design drainage with a structural engineer, rather than a civil engineer, and they wanted to know if a civil engineer was required by the Building Department. Respondent's representatives logically suggested that Mr. Rousseau and Mr. Vlock take this question to the Building Department, but Mr. Rousseau declined, expressing a fear of reprisal from the Building Department. The Facilities Services Department representatives assured Mr. Rousseau and Mr. Vlock that the Building Department representatives were professionals and would not seek retribution against Petitioner for such inquiries. The Facilities Services Department staff added that the design/build method allowed Design Builders some flexibility in approaching design matters. They noted that Walker had been designing walkway covers for decades and Petitioner was new to the industry, implying that Walker might find the process easier to navigate. Petitioner's representatives countered that their civil engineer cost them $4000 for each job, and this expenditure made them uncompetitive. Petitioner's representatives asked to change its design submittals so it could be competitive. The minutes state that Respondent's representatives replied "that submittals only need to meet minimum requirements." This complaint of unfair treatment is groundless for the reasons stated at the time by Respondent's representatives. Additionally, the claim of competitive harm arising from the employment of a civil engineer is unpersuasive. Much more than $4000 separated each of Petitioner's winning bids from each of Walker's bids, at least for the projects as to which such information is available. For the Group 6 schools--Jupiter Farms, Limestone Creek, Jupiter, Lighthouse, Independence, and Watkins--a bid tabulation appears in Respondent Exhibit #62. For Jupiter Farms, Petitioner's bid of $74,818 was more than $10,000 less than the next lowest bid--Walker's bid of $85,421. For Limestone Creek, Petitioner's bid of $157,410 was almost $8000 less than the next lowest bid--Walker's bid of $165,341. For Lighthouse, Petitioner's bid of $148,427 was more than $30,000 less than the next lowest bid--Pirtle's bid of $179,312--and more than $50,000 less than Walker's bid of $198,650. For Independence, Petitioner's bid of $225,398 was more than $20,000 less than the next lowest bid--Walker's bid of $247,003. For Watkins, Petitioner's bid of $160,087 was more than $9000 less than the next lowest bid--Pirtle's bid of $169,183--and almost $22,000 less than Walker's bid of $181,897. For Jupiter, which is the only one of these six projects for which less than $4000 separated Petitioner's bid ($19,852) from the next lowest bid--Walker's bid of $21,784--the contention that the savings associated with using a structural engineer instead of a civil engineer would have saved 25% of the entire, relatively modest contract price cannot be credited. This claim of unfair treatment, though, dramatically underscores Petitioner's concern with costs, not time. Except for an apparently minor matter involving a possible patent infringement, which may have caused a delay of a "few days," nothing discussed at the June 10 meeting addressed the significant delays that already existed at the start of construction at the Six Schools. Petitioner's proposal that it resubmit its drawings and plans--somehow, to avoid the added cost of a civil engineer--would have thrown all Six Schools further behind schedule. At this point, as noted above, Petitioner had just received a building permit for Spanish River, where it was already 38 days behind schedule. Even if Petitioner could have submitted new drawings and plans on June 10, this submittal would have added another 30 days to this deficit, leaving Petitioner two months behind schedule. For the remaining five schools, for which the drawings had been submitted only two weeks earlier and no permits had yet issued, the additional delay would have been about 16 days and would have resulted in a total of about 50 days behind schedule for each of these projects. For their part, the Facilities Services Department employees do not seem to have seriously entertained the prospect of the resubmittal of plans and drawings, but instead recognized the emerging time issues and tried to spare Petitioner the consequence of its tardiness. As already noted, at this time, Facilities Services Department employees contacted the Building Department and urged expedited processing of the pending permit applications. On July 15, 2010, Mr. Kunard sent a certified letter (and email) to Mr. Rousseau advising that it appeared that Petitioner would not be able to complete on schedule the work at nine schools, including, among the Six Schools, Watkins, Jupiter Farms, Lighthouse, and Limestone Creek. The letter reminds Petitioner of the provisions for liquidated damages in the General Conditions and advises that, if Petitioner feels an extension of time were justified, it should submit the information required by Paragraph 00700.8.3. The letter concludes by requesting an explanation or a submission of a recovery schedule for how Petitioner intended to meet the time requirements of the Contract Documents. On July 15, 2010, Mr. Rousseau submitted a letter to Mr. Kunard acknowledging receipt of his letter. Mr. Rousseau's letter states that, at a June 30 meeting involving the Building and Facilities Services departments, as well as Petitioner, "all questionable design issues were resolved, standardized, and documented." Mr. Rousseau's July 15 letter proceeds with the request for an extension of time. In its entirety, the request states: "At this time we are requesting an extension." The letter invites Mr. Kunard to contact Mr. Rousseau or Mr. Vlock if Mr. Kunard has any questions or requires additional information. The letter discloses that Mr. Rousseau had not bothered to read the provision of the Contract Documents to which Mr. Kunard's email had referred him. The next day, by letter dated July 16, 2010, to Ms. Swan, Mr. Rousseau requested that Respondent place Petitioner on an early-payment program. The program would provide Respondent with a .75% discount for payments of payment applications within five days of receipt, which, as noted above, is six days fewer than the 11 days allowed by the Contract Documents. Respondent appears to have paid ensuing pay applications within this timeframe whenever circumstances permitted. Contrary to Petitioner's later contention, this election by Petitioner did not amend the Contract Documents so as to obligate Respondent to pay with five days of receipt of pay applications. By email dated September 8, 2010, to Mr. Rousseau and Mr. Vlock, Mr. Kunard asked if they had submitted a request for an extension of time with justification, as required by the General Conditions. This letter implicitly informs Mr. Rousseau that his July 15 email was not such a request. Mr. Kunard's email identifies five schools that had been late, including Watkins, Jupiter Farms, Lighthouse, and Limestone Creek, and three more schools, including Spanish River, that were now late. Stop Work Order On August 27, 2010, Building Department plumbing inspector Dwayne Betts inspected the Limestone Creek work site and found that Respondent had installed 3" drainage pipes of 40- 50' in length where its approved drawings had specified 8" drainage pipes. Mr. Betts failed the work for its noncompliance with the approved plans. Mr. Betts expected Petitioner to call for a reinspection, but it did not do so. On September 8, 2010, Mr. Betts revisited the Limestone Creek work site for another inspection and found that Petitioner had not corrected the noncompliant work. Mr. Betts described the situation to his supervisor, Terry Summerell, who is the senior construction inspector in the Building Department. Mr. Summerell advised Mr. Betts to issue a stop work order. No one in the Building Department notified Mr. Kunard that Petitioner's Limestone Creek project was about to receive a stop work order, and Mr. Kunard was initially unaware of its issuance. (Tr. 1490) On September 8, 2010, evidently at the request of Mr. Betts, the Building Department issued a stop work order on the Limestone Creek site. The stop work order states at the top in boldface: "STOP WORK." The next line states: "The work now in progress is in violation of the following code: " Following this language are five boxes. The issued order shows a check in the box beside "plumbing." For corrective action, the issued order advises any interested person to contact Mr. Hogarth. The parties dispute whether the issued order prohibited all work at the Limestone Creek work site or prohibited only further plumbing work at the Limestone Creek work site. Petitioner is correct that the issued order prohibited all further work. The top of the notice states unconditionally to stop work. The explanation for the order is that the work underway violates the plumbing code, but this explanation does not limit the scope of the unconditional command at the top of the notice. Two days later, on September 10, Building Department structural inspector, Adrian Morse, inspected the Limestone Creek work site and noticed that the boots of wet columns varied from the approved drawings. He failed this work too. Although this action would provide additional support for the issuance of the stop work order two days earlier, as noted below, the issue concerning the wet column boots was resolved prior to the issue involving the size of the drain pipe, so the pendency of the dispute concerning the boots never held up work. Also on September 10, Mr. Cooper emailed a letter to Mr. Kunard claiming that Petitioner was entitled to an increase in the Contract Price for Respondent's insistence that Petitioner install 8" pipes and for Respondent's requirement of fluorescent lighting that effectively resulted in the need to mount a light on every column. A meeting took place on September 10, 2010, among Mr. Rousseau, Mr. Vlock, Mr. Mets, Mr. Kunard, Ms. Banaszewski, Mr. Hogarth, Mr. Upson, and other officials. According to the "Background" section of the minutes of this meeting, the main concern of Petitioner was costs, and the sole concern of Respondent was timeliness. Petitioner raised concerns about lighting fixtures and the size of drainage pipes. As for the lighting fixtures, Petitioner noted a conflict between the lighting fixture designated in the Design/Build Criteria and the District Master Specifications. This had been resolved by Mr. Bailey's email of May 25, as noted above. Petitioner complained about the Moghadam Prohibition. As explained above, the inception of this unfortunate specification was mid-April and did not have a significant impact on the timeliness of any of the Six Schools. But Petitioner's complaint was justified to the extent that it contended that the Moghadam Prohibition added unnecessary costs to each project. Relying in part on Mr. Cooper's letter dated September 10, Petitioner also objected to changes to the means by which levels of illumination were calculated. The record permits no means to credit or discredit this lighting complaint. Turning to the size of the drainage pipe, Petitioner estimated a $100,000 cost difference in 8" pipe versus 4" pipe. This complaint, if true, is irrelevant because Petitioner's drawings specified 8" pipe, as did the Contract Documents, as noted above. Petitioner complained that the Building Department only "began enforcing" the 8" requirement recently. The complaint is at least partly correct, although it is not clear that enforcement actually started with Petitioner's project. Mr. Kunard testified that, to some extent, Walker and Pirtle had also installed drainage pipes smaller than 8" in diameter. (Tr. 1998) Interestingly, Mr. Betts testified that he has never learned that any Design Builder had installed drainage pipes smaller than specified on its plans. (Tr. 3725) Mr. Betts' point may have been only that plans for some of the earlier walkway cover projects specified small drainage pipes--not that the Building Department allowed any Design Builders to install smaller pipes than specified in its plans. Mr. Cooper testified that Mr. Rousseau showed him Pirtle's walkway cover plans that depicted 4" pipes for at least one of its walkway cover projects. (Pet. Ex. 233, pp. 58-59) But Mr. Cooper also recalled that Petitioner's plans for one of its early projects were based on 4" pipes. (Id. at p. 58) At this point, it is impossible to determine the size of the drainage pipes specified in the drawings of Walker and Pirtle; it is clear only that all three Design Builders installed pipes smaller than 8" in diameter, and Petitioner was the first whose smaller pipes were discovered in a plumbing inspection. The larger point is that Petitioner did not install the pipes specified in its drawings.13/ This appears to have been a matter of mere neglect. Mr. Cooper testified that he was surprised at this fact and determined that the plumbing subcontractor had deviated from the plans and installed 3" and possibly 4" pipe because that is all that he had in his truck. Likewise, neglect describes various elements of Respondent's contract management efforts. Here, the Building Department either failed to note that Walker and Pirtle had submitted drawings with undersized drainage pipes, or it failed to detect the installation of pipes smaller than specified in their drawings. Given the ineptitude of the Building Department inspectors concerning the boot details on the wet columns, as described below, neither of these alternatives seems especially unlikely. Given the absence of any direct evidence of unfairness directed by the Building Department toward Petitioner, either of these alternatives is likelier than a deliberate attempt to favor Walker or Pirtle over Petitioner. Lastly, the minutes of the September 10 meeting record a concern of Petitioner regarding the above-described September 8 email, in which Mr. Kunard had advised Mr. Rousseau and Mr. Vlock that their July 15 email requesting an extension of time was insufficient, and they had not submitted a request for extension of time that provided justification for an extension in the manner prescribed by the General Conditions. Oddly, though, Petitioner's representatives do not acknowledge specifically that, prior to the issuance of the stop work order, it was late on all Six Schools. The absence of such a specific acknowledgement does not mean that Petitioner's representatives were completely unaware of their untimely performance. According to the minutes of the September 10 meeting, Petitioner's representatives claimed that the above-discussed lighting and drainage changes had slowed production rates, but said that they were still analyzing the issue. The justification of this contention concerning lighting matters, if not drainage, likely accounts for the willingness of Respondent's representatives to agree not to press a claim for liquidated damages until the parties had resolved Petitioner's claim for an extension of time. Once Petitioner's representatives learned that another inspector had failed the boot of a wet column at Limestone Creek, they claimed that the Building Department was treating them unfairly because other Design Builders were installing the identical boots on wet columns.14/ Again, they were right as to the installation of identical boots on wet columns by Walker or Pirtle, according to Mr. Kunard. (Tr. 1999) In this case, the Building Department inspectors had failed to inspect the wet column boots of any of the three Design Builders. Even though all boots served as anchors of the columns to which they were attached, the structural inspector had not inspected wet column boots, thinking that these were drainage details under the jurisdiction of the plumbing inspector. Even though the wet column boots contained important drainage fittings and connections, the plumbing inspector had not inspected these boots, thinking that these were structural details under the jurisdiction of the structural inspector. Again, though, Petitioner's drawings depicted a connection quite different from that installed by Petitioner. In the drawings, Petitioner had proposed to construct, at the base of each wet column, a welded connection between the underground drainage pipe and the conduit running down the column. In reality, Petitioner instead had constructed a connection using duct tape, grout, and concrete, using the tape as a temporary measure to prevent the wet concrete from entering the pipe. At first, it appeared that the parties would resolve the drainage pipe issue more quickly than the wet column boot issue. It seems that Mr. Vlock himself was unpersuaded by his employer's claim as to the drainage pipes. By email dated September 17 to Mr. Hogarth and Mr. Summerell with copies to Mr. Rousseau, Mr. Bailey, and Ms. Banaszewski, Mr. Vlock assured Mr. Hogarth that, as he had said during a telephone call earlier that day, Petitioner was "prepared to install drainage on the above project as per the approved drawings." This meant, of course, 8" pipes. In his response by email also dated September 17, Mr. Hogarth addressed the boot issue by asking for "the answer on the wet column to leader connection" and whether it too will match the approved drawings. On the same date, Mr. Rousseau responded to Mr. Hogarth's email by showing a "universal detail signed & sealed [three days earlier] by the Design Engineer for all current projects in Palm Beach County." In a fourth email dated September 17, Mr. Hogarth told Mr. Rousseau, Mr. Vlock, and Mr. Summerell that he was reluctant to accept the duct tape and grout connection without further thought. He noted that aluminum would be in contact with concrete and thus would require coating. It was unclear whether Petitioner intended to tape the pipe to the aluminum before or after it was coated, but, in either case, Petitioner would rely on the grout to hold the pipe in place tight against the column. The coating would prevent the grout from bonding to the aluminum, but the grout would be expected to leak. Given these circumstances, Mr. Hogarth asked how this boot detail would not leak. Both issues seemed on the verge of resolution in an email dated September 28, 2010, from Mr. Hogarth to Mr. Rousseau. In this email, Mr. Hogarth offered to permit the use of the as-built boot detail on the wet columns, but future projects would have to be built in accordance with the approved drawings. In the same email, Mr. Hogarth offered to release the stop work order, but only if Petitioner replaced the existing noncompliant drainage pipes with the pipes shown in the approved drawings. Another meeting took place on October 4, 2010, among Mr. Vlock, Ms. Rousseau, Mr. Kunard, Mr. Mets, Mr. Hogarth, Ms. Banaszewski, Mr. Sanches, and others. Ms. Rousseau is the vice president of Petitioner. The minutes accurately state the background as the issuance of the stop work order for drain pipe size and, a couple of days later, "wet-column fittings." At the meeting, Petitioner claimed that the Building Department was treating Petitioner differently in reviewing plans and inspecting construction than it was treating other Design Builders. Petitioner's complaint about unfairness in reviewing plans was as untimely as it was groundless. Although the record reveals nothing of how the Building Department reviewed the plans of Walker and Pirtle, as noted above, Petitioner submitted flawed plans, and the Building Department expedited the issuance of the building permits for the Six Schools at the repeated urging of the Facilities Services Department. According to the minutes, Petitioner trotted out its recurrent complaint about the Moghadam Prohibition, even though it had nothing to do with the stop work order. Evidently, Respondent had permitted Pirtle to co-locate lighting fixtures and wet columns. Given the eventual issuance of change orders to reimburse Petitioner for these costs and time lost in complying with the Moghadam Prohibition, it is unnecessary to comb through the existing record to determine if one of the Building Department's inspectors, perhaps more versed in Respondent's longstanding approval of this practice, inspected the handful of projects on which Pirtle was working and failed to enforce the Moghadam Prohibition. Once again, though, the circumstances do not readily suggest a coordinated effort of any sort among the Building Department inspectors, but especially not a coordinated effort focusing on Petitioner. More to the point, Petitioner pointed out that it and Pirtle were using the same aluminum subcontractor and, thus, the same wet column boots, but Pirtle had not been cited for deviating from its drawings. This argument, though, missed a couple of facts. First, the record does not disclose if Pirtle's approved drawings depicted welded pipes, as had Petitioner's approved drawings. Second, if offered to prove unfair treatment, Petitioner's argument fails to account for the fact, noted above, that, until one month earlier, Respondent had no idea what any Design Builder was installing in terms of wet column boots due to the remarkable omission of its inspectors to inspect wet column boots. Turning to Walker, Petitioner complained--again--that it was evidently not using a licensed civil engineer for drainage design. As was the case with the complaint about preferential treatment in plan review by the Building Department, this complaint about whether Walker had had to retain a civil engineer was untimely and groundless for the reasons stated above. At this point, given the pressing matters at hand in terms of late construction, a stop work order, and deviations from approved drawings, Petitioner's reprisal of its earlier complaints about the time it took the Building Department to review plans and whether Walker had been required to retain a civil engineer seem to amount to nothing more than an attempt by Petitioner to distract from the real issues: more immediately, whether it must install fixtures that conform to its drawings and, more generally, whether it would be able to avoid liquidated damages for untimely construction at the Six Schools. A Building Department representative responded that the inspectors are told to inspect according to the approved plans. Evidently without providing specifics, but not entirely implausibly, Petitioner asserted that, although it had not built according to its plans, other Design Builders had done the same thing--without earning stop work orders. Mr. Hogarth promised that the Building Department would investigate these issues. Turning to the more pressing topic of the pending stop work order, Mr. Hogarth stated that the Building Department had issued the previous week a list of changes that Petitioner could undertake to lift the stop work order: essentially, Respondent would accept the duct-taped joint at Limestone Creek only, but would insist on the installation of 8" drainage pipes. Petitioner's representative responded that Petitioner had already agreed to replace the installed 3" pipes with 8" pipes, at its cost, but it objected to the withholding of the use of the duct-taped joint on future projects. In response to unrelated complaints about Petitioner's PPEs, Respondent agreed to remove the offending PPEs from the PPE tracking system. After the meeting, Mr. Hogarth relented on the duct- taped joints. By email dated October 7, 2010, from Mr. Vlock to Mr. Hogarth, Mr. Vlock memorialized a discussion that had taken place between the two representatives after the October 4 meeting: Respondent would lift the stop work order and allow Petitioner to use the duct-taped boot detail on wet columns at all previous and pending projects if Petitioner reinstalled the drainage pipes to comply with the approved drawings. By email later the same day to Mr. Vlock, Mr. Hogarth stated that he would remove the stop work order at Limestone Creek, effective that day, based on the reworking of the installed piping and the submission of revised drawings at Limestone Creek and other projects where Petitioner proposed to use the duct-taped joints in the boots of wet columns. Mr. Hogarth performed his end of the deal by lifting the stop work order on October 7. Evidently, Petitioner submitted the required revisions to its drawings of the boots of the wet columns. But, rather than remove the undersized pipes and install 8" pipes, Petitioner challenged the stop work order by seeking a variance from the approved plans calling for 8" pipes. By email dated December 10, 2010, to Mr. Bailey, Mr. Vlock transmitted a December 8 revision to the Limestone Creek drainage plan--obviously, featuring pipes of diameters smaller than 8". The Facilities Services Department allied itself with Petitioner and against the Building Department on this issue. By email the same date to Mr. Chodora, Mr. Bailey, on behalf of Petitioner, requested a variance from the 8" drainage pipes to allow 4" drainage pipes. Mr. Chodora referred the variance request to a variance committee, which comprises eight employees of Respondent and four outside consultants. By email dated December 10, Mr. Chodora informed the committee members that the issue was whether, at Limestone Creek, Petitioner should receive a variance from the requirement in the District Design Criteria to permit it to use 3" and 4" drainage pipes instead of 8" drainage pipes. The assignment to the committee members called for their recommendations by December 21, 2010, which was later changed to December 14. The responses reflect a range of informed comments. Several persons expressed the reasonable concern that the smaller pipes would clog. Manifesting a spirited independence from his immediate supervisor, Mr. Joyce voted to approve the variance to test a smaller diameter pipe for sidewalk canopies, which drain smaller areas than building roofs. Another member of the committee, who was a project coordinator in Respondent's Department of Program Management, also voted to approve the variance. By the time the votes were tallied, though, five members had voted to deny, three members had voted to approve, and four members had not voted. As Mr. Cooper had warned Mr. Rousseau, there was a "low probability" that Respondent would allow 3" pipes in the place of the 8" pipes shown in the drawings. (Pet. Ex. 233, p. 109) Following the vote, Mr. Sanches was required to review the recommendations of the committee members and make a final decision on the variance request. By this time, Petitioner had buried the drainage pipes. However, on December 22, Mr. Sanches concurred with the majority of the committee and denied the request. By email dated January 3, 2011, to Mr. Rousseau, Mr. Vlock, Mr. Cooper, and Mr. Bailey, Mr. Chodora advised that the request for variance was denied. By email dated January 4, 2011, to Mr. Sanches, Mr. Rousseau appealed the denial of the variance request. Notwithstanding Mr. Sanches' role in denying the request, the appeal went to Mr. Sanches. Concerned that the Limestone Creek project was now five months late and still unfinished, Mr. Kunard contacted Mr. Sanches and asked him to grant the variance. After a meeting in his office on January 11, 2011, with Mr. Rousseau and possibly others, Mr. Sanches reversed his earlier decision and granted the variance subject to four conditions set forth in an email dated January 12 to Mr. Rousseau: 1) Petitioner must install approved screening over the canopy inlets leading to the column drains; 2) Petitioner must add a concrete collar for each pipe cleanout and a sidewalk-level cover for each cleanout; 3) Petitioner must extend the already-required warranty of one year to two years for cleanout and pipe breakage; and 4) Petitioner must submit revised plans depicting these changes. Mr. Rousseau cites this resolution as evidence of the unreasonableness of Respondent's initial action in issuing the stop work order. This claim is rejected. Mr. Sanches never believed that Petitioner was justified in installing smaller pipes than had been approved in Petitioner's plans. Mr. Sanches agreed to accept what was already in the ground only to spare the students and staff at Limestone Creek the inconvenience of further delay in a project that Respondent had planned was to have been finished before the start of the 2010-11 school year. Regrettably, the record fails to convey Mr. Hogarth's reaction to the granting of the variance, which effectively enabled Petitioner to escape obligations that it had assumed twice--once in its drawings and once in Mr. Vlock's settlement agreement with Mr. Hogarth. The Superintendent's Letter may constitute the reaction of Mr. Sanches and ultimately even Mr. Kunard to the fact that the granting of the variance did not hasten the completion of construction at Limestone Creek, as discussed below. Construction Activity During Fall and Winter 2010 The general conditions item of pay applications filed through September 1, 2010, indicates the following percentages of construction remaining at each of the Six Schools: Spanish River--0%; Watkins--14%; Independence--29%; Limestone Creek--44%; Lighthouse--57%; and Jupiter Farms (July 31 pay application)--79%. Construction in the fall of 2010 proceeded in accordance with the following pay applications submitted on October 1, November 8 (November 16 for Watkins), and December 1 (except for Spanish River and Independence, for which Petitioner submitted no pay application at that time). School Oct. 1 Nov. 8 Dec. 1 Spanish River General Conditions done done no pay app. Site Drainage done done no pay app. Concrete done done no pay app. Aluminum Walkways $8003--0% done no pay app. Electrical $2608-25% $1862--0% no pay app. Watkins General Conditions $300--10% $0-10% $692-0% Site Drainage done done done Concrete done done done Aluminum Walkways done done done Electrical $0---8% $0-8% $1152--0% Independence General Conditions $1000--13% $1500---3% no pay app. Site Drainage done done no pay app. Concrete $0---7% $3720---0% no pay app. Aluminum Walkways done done no pay app. Electrical $1044--20% $0--20% no pay app. Limestone Creek General Conditions $260--41% $2410--13% $300-10% Site Drainage $0--20% $0-20% $0-20% Concrete $0--13% $0-13% $4000--0% Aluminum Walkways $0--23% $13,200---5% $1893--2% Electrical $3601--40% $2702--25% $0-25% Lighthouse General Conditions Site Drainage $1500--41% done $1700--23% done $100--12% done Concrete $0--50% $9543--10% $2364--0% Aluminum Walkways $6819--15% $0--15% $9406--0% Electrical $2940--45% $1960--35% $0-35% Jupiter Farms General Conditions $0--79% $2160--40% $896--24% Site Drainage $0-100% $0-100% $1500--50% Concrete $0-100% $4785--60% $5982--10% Aluminum Walkways $0--26% $3640--15% $3651---5% Electrical $750--90% $2130--60% $2160--30% This chart reveals that, by early December 2010, Petitioner had completed Spanish River and Watkins and had very little remaining work at Independence. Petitioner was almost 90% done at Limestone Creek and Lighthouse and was about 75% done at Jupiter Farms. On January 7, 2011, Petitioner filed pay applications for three of the four schools at which construction was not yet complete. Limestone Creek was billed $300 of general conditions, $1500 of aluminum walkways, and $3000 of electrical, leaving only 6% of general conditions, 20% of site drainage, and 8% of electrical to be done. Lighthouse was billed $500 of general conditions and $1800 of electrical, as well as additional work, leaving only 7% of general conditions and 26% of electrical to be done. Jupiter Farms was billed $700 of general conditions, $1500 of site drainage, $1196 of concrete, and $1750 of aluminum walkways, leaving only 11% of general conditions and 30% of electrical to be done. Independence was not billed. This left Petitioner at least 90-95% done at the four remaining schools. But Final Completion did not immediately follow, and it is difficult to understand why Petitioner did not prosecute the little work remaining to achieve Final Completion. On January 7, 2011, Wes Christie, the Facilities Management Coordinator for Limestone Creek, issued a PPE with an average score of 2.1 and scores of 1.5 for scheduling and 1.8 for project management. The scheduling score was due to Respondent's failure to give Mr. Christie a schedule of construction. When Mr. Christie asked Mr. Vlock for this schedule, which is required by the Contract Documents, Mr. Vlock replied that any schedule would be a "wild guess." (Tr. 926) This remark is especially startling, given the little work remaining on the job. Disregarding a set of pay applications reflecting change orders discussed in the next section, the next pay application submitted for Limestone Creek was on April 18, 2011. Limestone Creek was billed for $519 of general conditions, $913 of site drainage, and $1502 of electrical, finishing this project. The record is missing the final pay application for Lighthouse, although it was also submitted after the pay application for the change orders discussed in the next section and prior to another pay application on September 2, 2011. The record contains the last pay application for Jupiter Farms, but it is undated. Submitted between February 24 and September 2, 2011, this pay application reflects that Jupiter Farms was billed $644 for general conditions and $2160 for electrical, finishing this project. By this time, it is impossible to presume that Petitioner was even submitting pay applications promptly. But even assuming a close relationship between the work and the pay application, Petitioner did not obtain CCs for a considerable period of time after the pay applications showed the work had been finished. First Round of Change Orders in Fall 2010 and Winter 2010-11 It is possible that Petitioner's failure to prosecute the work after the start of 2011 was linked to its dissatisfaction with Respondent's handling of Petitioner's requests for increases in Contract Prices. In October 2010, Petitioner submitted a number of claims seeking change orders adding to the Contract Prices for extra work not caused by Petitioner. Generally, these claims were insufficient for numerous reasons, including a failure to identify subcontractors or projects and a lack of information as to additional work, such as retrenching. On or about December 15, 2010, Petitioner refiled its claims. These claims bear one or more dates in November and request change orders at 12 schools, including the Six Schools. The 12 schools included all of the Group 2 schools and all of the Groups 5 and 6 schools except Jupiter. The December claims propose a total increase in the Contract Prices of $274,758. The largest component of these claims is $161,000 of electrical. The next two largest components are about $61,000 of general conditions and $47,000 of drainage. Under the Contract Documents, the October and December claims were untimely. Like the October claims, the December claims, although more detailed than the October claims, were also deficient for lack of documentation. However, upon receiving the December claims, Mr. Kunard tried to work with them as best that he could. For example, Mr. Kunard directed the Facilities Management Coordinators for each school to measure the length of each trench that Petitioner had been obligated to dig following the issuance of the Moghadam Prohibition, so as to move light fixtures from wet columns to dry columns on the opposite side of the sidewalk. Even though Petitioner was already months past the deadlines for Substantial and Final Completion for the Six Schools, the Facilities Services Department was favorably predisposed to much of the electrical claim because of the time and money expended by Petitioner in complying with the Moghadam Prohibition. As previously noted, though, the Moghadam Prohibition had not resulted in significant delays in submitting plans, but may have resulted in delays in obtaining suitable light fixtures. The resulting electrical claims applied to all of the 12 schools except Lighthouse, Limestone Creek, and Jupiter Farms, where work evidently was not far enough along for Mr. Kunard to have satisfied himself that the Contract Times for these schools had been unaffected by the Moghadam Prohibition. On January 28, 2011, Mr. Kunard, Mr. Bailey, Ms. Banaszewski, Mr. Rousseau, and Ms. Rousseau met to discuss Petitioner's December claims on the 12 projects. Mr. Rousseau acknowledged that the December claims did not comply with the Contract Documents, but he outlined the elements of their requests for additional compensation. Mr. Rousseau identified five items. First, the Moghadam Prohibition was not an item in dispute as to additional Contract Prices or Contract Time. The Facilities Services Department representatives readily conceded liability on this item, but Petitioner was unprepared to itemize the costs attached to it. Second, Mr. Rousseau complained about faulty lighting calculations that Petitioner had received from a consultant that it had hired. Obviously, this was a matter between Petitioner and its consultant, and the record does not support Petitioner's contention that Respondent in some fashion encouraged or required Petitioner to retain this consultant. At some point, Mr. Rousseau made a related claim that Pirtle had installed lights based on faulty lighting calculations. Respondent later required Pirtle to recalculate its photometrics and determined that Mr. Rousseau's assertion was incorrect. Mr. Rousseau's claim of unfair treatment on this point was thus unfounded. Although Respondent allowed minor deviations from the lighting standards from time to time, it did so for all the Design Builders, and the deviations were insignificant, typically involving small areas of covered sidewalks. Third, Mr. Rousseau complained that Petitioner had been required to install many more lighting fixtures than it had bid on. As noted above, Petitioner's winning bids on the Six Schools were not so much lower than the next lowest bidder as to suggest a major mistake in Petitioner's calculations. If Petitioner had to install many more lighting fixtures than it had bid--a fact not established by the record--this may have been due to any number of reasons, including Petitioner's incompetence, the faulty lighting calculations performed by Petitioner's consultant, and the Moghadam Prohibition. In a related complaint, Mr. Rousseau raised a fourth item, noting that other Design Builders had installed alternate lighting fixtures without obtaining permission from Respondent. In at least one case, this had been true, as noted above, and Respondent had belatedly advised the other Design Builders of the availability of the alternative that it had allowed one Design Builder to install. It is impossible, though, on this record, to determine the extent to which Respondent's handling of alternative lighting fixtures may have cost Petitioner money or time. Fifth, Mr. Rousseau complained that the Building Department was treating Petitioner differently from other Design Builders. From the minutes, this appears to have been a generic complaint without particulars. This recommended order has addressed specific claims of unfair treatment as they emerged. As noted elsewhere, most complaints of differential treatment are unsupported by the record, and the few instances of differential treatment were more likely the product of haphazard contract management practices of some of Respondent's employees, rather than a coordinated--or individual--effort to discriminate against Petitioner. The January 28 meeting closed with Mr. Kunard's offering to recommend to the Projects Control Department additional compensation of about $45,000--provided all issues were resolved. Petitioner countered that it could not accept this small amount and remain in business, but possibly could accept $230,000. Mr. Rousseau contended that his claim was not really about the money, but was about ensuring that other minority businesses were treated better by Respondent. The meeting closed with Mr. Kunard's request for additional information, so that Respondent could prepare a formal offer to Petitioner. As it had tried to help Petitioner to expedite permitting, the Facilities Services Department tried to help Petitioner in presenting these claims. First, the Facilities Services Department overlooked the fact that these claims were not timely submitted. Second, Mr. Kunard worked with Mr. Rousseau to assemble the required supporting paperwork because the claims were initially submitted without the required documentation and itemization. Third, Mr. Kunard himself suggested two additional claim categories involving reproduction; even those these totaled only about $3100, Petitioner had omitted them. Fourth, Mr. Kunard advocated Petitioner's case within Respondent. Fifth, for the first time in the memory of Respondent's principals, Mr. Moore agreed to sever a claim into two parts, so the Facilities Services Department could, in effect, grant part of a claim. Mr. Kunard had already determined, by the end of 2010, that Respondent should pay most of the electrical portion of Petitioner's claims together with association portions of the accompanying costs, such as in recalculating photometrics. Most, if not all, of these sums arose due to the Moghadam Prohibition. Notwithstanding some language to the contrary among the documents, neither Mr. Kunard nor Respondent ever determined that Petitioner was entitled to any--or at least substantial--more money for the size of the drainage pipes, which was a problem that Petitioner had caused by deviating from its approved drawings. Mr. Kunard estimated that no more than $10,000 of the additional cost to which Respondent agreed could be attributed to the stop work order. (Tr 1643) Mr. Kunard also agreed to pay 30 days of staff time for the approval of the boot detail on the wet columns, even though this too was the result of Petitioner's deviation from its approved plans. In determining how much to offer Petitioner in additional Contract Price, Mr. Kunard enlisted the help of Mr. Upson. By email dated February 16, 2011, to Mr. Upson, Mr. Kunard outlined the means by which he had arrived at an offer for Petitioner. The email notes that Mr. Kunard had obtained Mr. Sanches's authorization for the amount of the offer with the "understanding that we would still look at [Petitioner's] data if we could get it." This statement anticipates the approval of a portion of Petitioner's claim and reconsideration of the remainder of the claim upon presentation of supporting data. Mr. Kunard's February 16 email states that he was working "under pressure." He noted that Petitioner's "subs are in arms [and] [Petitioner] is lobbying heavily above me, so I am moving forward with the 12 [change orders] for which I have enough data to act upon." The demands of Petitioner's subcontractors and Mr. Kunard's awareness that Petitioner was pressing its case with higher officials within Respondent created a very unfavorable atmosphere for unfair treatment of Petitioner. In a reply email later that day, Mr. Upson stated that he "believed you have come to a fair settlement based upon the restrictions, timelines and issues you must juggle at this point." The portion of Petitioner's claim to which Respondent rapidly assented totaled $126,124. By Change Orders executed March 1 and 2 (in one case, March 3), the parties agreed to amendments to the Six Schools' Short Form Agreements. All of the dates are confirmed in an email dated April 4, 2011, to Mr. Rousseau from Mr. Kunard.15/ In the following chart, the "Old F.C." is the Final Completion Date stated in the Short Form Agreement. The "New F.C." is the new Final Completion Date as a result of these change orders. This first round of change orders effected the following changes to the Contract Price and Final Completion Date: School Additional Price Old F.C. New F.C. Jupiter Farms $1625 8/12/10 3/28/11 Watkins $14,570 8/14/10 3/25/11 Limestone Creek $1625 8/16/10 3/28/11 Lighthouse $1625 8/16/10 3/28/11 Independence $14,579 8/27/10 4/6/11 Spanish River $20,528 8/29/10 3/18/11 To obtain the additional compensation authorized by these change orders, Petitioner submitted another round of pay applications.16/ The pay application for each school is for the amount set forth above. The pay application for Jupiter Farms is dated February 24, 2011. Although the pay applications for the other five schools are undated, given the dates on which the change orders were executed, the pay applications for the other five schools were probably submitted at the same time as the Jupiter Farms pay application. Respondent paid Petitioner these amounts in late February and early March 2011. Proposed Second Round of Change Orders: Spring 2011 If Mr. Kunard believed that the first round of change orders, like the variance for the drainage pipe, would hasten the completion of construction at the Six Schools, produce progress on the work at the Six Schools, he was again mistaken. With the new deadlines for Final Completion only days away, Mr. and Ms. Rousseau met with Mr. Kunard, Mr. Bailey, and Ms. Banaszewski on March 24, 2011, to discuss documentation to support a second round of change orders. The minutes reflect that Respondent had not received additional documentation from Petitioner before implementing the first round of change orders, which had been based on Respondent's--probably Mr. Kunard's-- "unilateral judgment on what was owed." At this meeting, the principals discussed the grounds for additional change orders, but the minutes disclose little progress. Negotiations over the remainder of Petitioner's claim were never successful. Petitioner asserted entitlement to compensation for items that Respondent did not agree justified compensation. By the end of March, when all of the schools except Independence were to have achieved Final Completion under the first round of change orders, Respondent began to interpose its own claims for liquidated damages. Undeterred, Mr. Kunard continued to seek a settlement that would extend the completion dates and spare Petitioner costly liquidated damages. Toward this end, Mr. Kunard asked Mr. Rousseau to select realistic deadlines for new completion dates. Using the new dates selected by Mr. Rousseau, Mr. Kunard confirmed, by email dated April 4, 2011, to Mr. Rousseau, that a second round of change orders would incorporate the following new Final Completion Dates: April 15, 2011, for Spanish River; April 30, 2011, for Independence; and April 20, 2011, for the remaining four schools of the Six Schools. Although the purpose of the April 4 email was to establish new Final Completion Dates for a second round of change orders that never went into effect, the email notifies Petitioner that it is already untimely on five of the Six Schools. The normal font indicates Mr. Kunard's email; the italicized font indicates Mr. Rousseau's response.17/ In relevant part, these emails state: The following projects are now late or will soon be late again: HL Watkins. Final Date was 3/25/11. Work is complete with the except [sic] of Perfection punch list item and sprinkler head installation. New Final date for HL Watkins is 4/20/2011. Independence MS. Final Date is 4/6/11. 3 lights on back order and grass will be installed on 4/7/2011. New Final date for Independence MS is 4/30/2011. Jupiter Farms ES. Final Date was 3/28/11. New Final date for Jupiter Farms ES is 4/20/2011. Lighthouse ES. Final Date was 3/28/11. New Final date for Lighthouse ES is 4/20/2011. Limestone Creek ES. The Final Date was 3/28/11. New Final date for Limestone Creek ES is 4/20/2011. Spanish River HS. The Final Date was 3/18/11. New Final date for Spanish River HS is 4/16/2011. Mr. Kunard advocated a second round of change orders to the Project Controls Department. Normally, the Project Controls Department requires the contractor to file such a request on its letterhead. In the interest of time, Mr. Kunard forwarded Mr. Rousseau's emails and documentation and, as he had done with the Building Department when issuing the permits, pressed for a favorable decision. Mr. Upson helped Mr. Kunard determine a reasonable amount of additional compensation to include in a second round of change orders. By email dated March 31, 2011, to Mr. Kunard, Mr. Upson advised that he had considered the documentation supporting a proposal of $81,676--evidently, the proposal of Mr. Kunard--but the fair and reasonable costs totaled only $27,638. By email on the following day to Mr. Upson, Mr. Kunard provided additional analysis of retrenching in an obvious attempt to raise Mr. Upson's determination. In reply, Mr. Upson emphasized that he was using the excavation production that Petitioner had proposed. He noted a certain tension in scrutinizing closely one category of expenses--to secure greater compensation for Petitioner--without subjecting all categories to this level of scrutiny. Mr. Upson added: "Keep in mind, we are taking their word on a lot of these changes and have no verification on our side." Rejecting Petitioner's attempt to base its costs on the charges of other contractors, Mr. Upson noted that an excessive excavation rate might be offset by a relatively tight compensation rate for electrical work; he advised that it all evened out. Nevertheless, Mr. Upson advised Mr. Kunard that he had the ability to settle above Mr. Upson's suggestion, if he could state reasons for doing so. In a final email, also dated April 1, Mr. Kunard told Mr. Upson that he would "absorb your input and recommend a settlement amount." Evidently, it did not take Mr. Kunard long to absorb Mr. Upson's input. On April 1, Mr. Kunard prepared a spreadsheet for the 12 schools that were the subject of the change orders, including the Six Schools. In rounded numbers, the spreadsheet itemizes a total offer of $69,331 for the proposed second round of change orders consisting of $52,246 of electrical, $14,565 of general conditions, and $2520 of photometric. All 12 schools were included in each of the these three work categories except that Lighthouse, Limestone Creek, and Jupiter Farms did not bear any electrical costs. In particular, only three of the Six Schools were included for additional electrical costs arising from the Moghadam Prohibition: Spanish River, Watkins, and Independence. In presenting the proposed second round of change orders to Mr. Rousseau, Mr. Kunard stressed that Respondent's offers of $69,331 of additional compensation and additional time for Final Completion of the Six Schools was conditioned on a full settlement of all of Petitioner's claims for additional compensation. Absent Petitioner's release of all future such claims, Respondent would not agree to pay the additional compensation of $69,331 or extend the Final Completion Dates again. If Mr. Rousseau sensed that he was posed with a dilemma, nothing in the record so indicates. By April 6, all of the Final Completion Dates set forth in the first round of change orders for the six schools had arrived, and Petitioner had reached Final Completion on none of them. As was his practice, rather than focus on Contract Time, Mr. Rousseau focused on Contract Price--demanding the additional compensation of $274,758 stated in its December claim--and refusing to forego any additional claims. Final Completion: Summer 2011 As noted above, at the start of 2011, Petitioner had largely completed Spanish River and Watkins and was 90-95% done with Independence, Lighthouse, Limestone Creek, and Jupiter Farms. The following chart lists the Final Completion Dates, as set forth in the first round of change orders, and the dates on which Respondent issued CCs. School F.C. Date Date of CC Days Late Spanish River 3/18/11 5/11/11 54 Watkins 3/25/11 5/13/11 49 Lighthouse 3/28/11 8/9/11 134 Limestone Creek 3/28/11 8/26/11 151 Jupiter Farms 3/28/11 8/26/11 151 Independence 4/6/11 8/12/11 128 By email dated July 13, 2011, to Mr. Rousseau, Mr. Kunard stated that he had learned that Petitioner could obtain the CCs for Spanish River and Watkins "now," if Petitioner would merely file a request for them. This statement appears to be incorrect because the CCs for these schools bear dates of May 11 and 13, 2011,18/ as indicated in the chart immediately above. Preceding the Superintendent's Letter by a day, the July 13, 2011, email adds: Your projects cannot be determined to have achieved Final Completion until you have your CCs. Please do what ever it takes to complete your projects. They are very late. I. Conclusion Substantial deviations from the Contract Times had occurred by the time of the first round of change orders. For the portion of those delays for which no justifiable cause existed, such delays were substantial and remained so after the written notice by letter and email dated July 15, 2010, from Mr. Kunard. The time extensions contained in the first round of change orders corresponded to the portion of these delays attributable to Respondent and much more. The question is whether, without justifiable cause, Petitioner substantially deviated from the Final Completion Dates set forth in the first round of change orders. It did. By the time of the first round of change orders, Petitioner had not been prosecuting the work since the start of 2011. Work rates well within those established during the summer or even fall of 2010 would have achieved timely Final Completion at all Six Schools, if Petitioner had chosen to rededicate itself to these jobs after the first round of change orders. But it did not. Instead, at four schools, Petitioner missed its extended deadlines by periods in excess of the expected durations of the jobs.19/ At the other two schools, Petitioner missed its extended deadlines by periods of nearly two months, or one-half to two-thirds of the expected durations of the jobs. These deviations from the extended time schedules are substantial. Notwithstanding the mass of paper that Respondent has introduced into evidence, only two pieces might serve as Respondent's written notice to Petitioner of its substantial noncompliance with the extended time deadlines contained in the first round of change orders. One piece of paper can be dismissed readily. The July 13, 2011, email from Mr. Kunard to Mr. Rousseau, which is cited at the end of the preceding section of this recommended order, is not notice of anything, coming one day prior to the declaration of default by the Superintendent's Letter. This notice also fails as to Spanish River and Watkins because Petitioner had already obtained CCs for these schools. The other piece of paper is the April 4, 2011, email from Mr. Kunard to Mr. Rousseau. This email applies only to five of the Six Schools because it preceded the extended Final Completion Date for Independence by two days. As to the remaining five schools, this email constitutes the bare minimum required of notice. Although the purpose of the email was to elicit from Mr. Rousseau yet another set of Final Completion Dates for use in a second round of change orders that never was finalized, the email identifies a Final Completion Date for each school and communicates the simple fact that Petitioner has already missed this date for each of the Six Schools except Independence. A determination of the adequacy of Respondent's notice is facilitated by the basic nature of its subject: untimeliness. Reduce to their essentials, the many Contract Documents provide what Petitioner is to build and how much Respondent is to pay--and when each party must perform its respective duties. Petitioner's principals knew this much, if, for no other reason, than the repeated attempts by Respondent's representatives to encourage timely performance of work. And the notice that Petitioner was substantially20/ behind again at five of the Six Schools could not have been news to Mr. Rousseau. By this point, it is not surprising that the sole means by which Respondent satisfies the notice requirement is an email that Mr. Kunard wrote primarily for a different purpose. The serendipity of this email--happily, from Respondent's perspective--fits neatly in the above-described portrait of Respondent's haphazard approach to contract management. Contemplation of this thin reed by which Count II hangs is a suitable preparation for the ultimate findings as to Petitioner's charges of unfair treatment. Many specific instances of neglect, inattention, ignorance, confusion, inexperience, and lack of coordination in Respondent's efforts at contract management have been identified above. Although the Facilities Services Department was far from flawless in its work, Petitioner's complaints of unfair treatment cannot fairly be focused on the efforts of Mr. Kunard and his employees. Repeatedly, Mr. Kunard went to remarkable lengths to rescue Petitioner from its neglect of its contractual undertakings and spare Petitioner the prospect of liquidated damages. As noted in the next section, relatively late in the process, Ms. Swan, vetoed an ill-advised attempt by Mr. Kunard to award Petitioner additional work at Limestone Creek through another change order. But, otherwise, the Purchasing Department has not had any significant role in this case, at least until the very end, as described below. It is thus unlikely that Petitioner's charges of unfair treatment can be directed at Ms. Swan and her employees. The same is true for the Project Controls Department. Mr. Upton's work was relatively limited, and Mr. Rousseau was probably unaware of his involvement. The main, if not sole, target of Petitioner's unfairness complaints is probably the Building Department. However, its issuance of the building permits was above reproach. Petitioner's plans and drawings were flawed as to matters that proved quite material to this case. At the urging of the Facilities Services Department, the Building Department issued building permits on the promise of post-permit filing of necessary revisions to the plans and drawings. The Building Department's issuance of the stop work order was also above reproach. The wet column boot is irrelevant to this issue because resolution of this issue did not extend by one day the stop work order. In any event, Petitioner installed wet column boots and 3" and 4" drainage pipes that did not conform to the drawings that Petitioner had submitted in order to obtain building permits. Petitioner bore the risk that these noncompliant installations would hold up work while Building Department employees considered whether to allow them to remain in place. And there is no showing of delay by the Building Department in this process. Where Petitioner perceives unfair treatment by the Building Department, the record reveals, at worst, an unevenness in the department's discharge of its responsibilities. The ill- fated Moghadam Prohibition emanated from a Building Department employee. The failure of Building Department inspectors to examine the boots of wet columns was unfortunate. The prospect that the plumbing inspector may have missed some undersized drainage pipes on the projects of other Design Builders cannot, regrettably, be attributed to anything but carelessness. These misadventures of the Building Department in this case do not establish bad faith in dealing with Petitioner. There is absolutely no evidence of any intent to disfavor Petitioner, relative to the other Design Builders. The Moghadam Prohibition was announced to Petitioner's civil engineer, but applied to all of the Design Builders. The two inspectors failed to inspect any Design Builder's wet column boots; they discovered their omission only after work had been stopped for the installation of undersized pipes. Only the discovery of the undersized pipes was focused on Petitioner, but, if the inspectors were ever to realize that undersized pipes were being installed on these jobs, the odds were about one in three21/ that the discovery would be made at one of Petitioner's work sites-- and maybe even greater, if the other Design Builders were not behind schedule, as Petitioner was. Significantly, nothing in the record suggests any delays attributable to the Building Department in Petitioner's obtaining CCs for the Six Schools. For reasons not very clear, at the start of 2011,22/ Petitioner stopped prosecuting the little remaining work at the Six Schools. On balance, the Building Department treated Petitioner in a professional manner. Whatever shortcomings existed in the Building Department's discharge of its responsibilities, they were not reflective of bad faith of any sort. Moreover, when the innocent missteps of the Building Department are weighed against the many accommodations provided by the Facilities Services Department, the net result is unearned benefit, not burden, conferred upon Petitioner by Respondent. Ultimately, questions of notice and unfairness are overshadowed by the fact that, for Petitioner, time was never of the essence on the projects for the Six Schools, and, to such a crucial part of the bargain, attention must be paid. For these reasons, Respondent has proved by clear and convincing evidence that, without justifiable cause, Petitioner is guilty of substantial deviations from project time schedules after written notice of such noncompliance with respect to the Six Schools, except Independence. Count III: Nonpayment of Subcontractor and Supplier From July 14 to September 21, 2010, Cemex supplied concrete materials to Respondent on walkway cover job sites. During March, June, July, and September 2010, Perfection performed aluminum subcontracting work on walkway cover job sites. A Cemex representative called Mr. Kunard in December 2010 and stated that Petitioner had not paid Cemex for supplies that it had provided to Petitioner's walkway cover projects. Mr. Kunard immediately called Mr. Rousseau, who promised to take care of this matter. (Tr. 416) At the hearing, counsel for Petitioner stipulated that Petitioner concedes that it did not pay Cemex an unspecified amount that it owed the supplier. (Tr. 453) In late January or early February of 2011, Cemex sought a writ of garnishment against Respondent to secure sums that it claimed that Petitioner owed Cemex. By Final Judgment entered April 4, 2011, the Fifteenth Judicial Circuit Court in Palm Beach County approved a settlement agreement between Cemex and Petitioner that provided for a judgment of $64,044.85, which amount the court ordered Respondent to pay directly to Cemex. As Mr. Kunard testified, Respondent paid Cemex. (Tr 417-18) Later in April, a Perfection representative called Mr. Kunard and stated that Petitioner had not paid Perfection for work on Petitioner's walkway cover projects. In a hearing involving a legal action brought by Perfection against Petitioner and Respondent, Mr. Rousseau testified, on August 31, 2011, that Petitioner owed Perfection about $48,000. (Resp. Ex. 57) In a deposition of a general manager of Perfection taken in connection with this administrative case, counsel for Petitioner stipulated that "there is no question that [Petitioner] owes Perfection money." (Resp. Ex. 227, p. 34) By Final Judgment of Garnishment entered October 20, 2011, the Fifteenth Judicial Circuit Court in Palm Beach County determined that Perfection shall recover $5406.66 from Respondent. By Satisfaction filed December 14, 2011, Perfection advised that Respondent had satisfied this judgment. It is unclear whether Mr. Rousseau blames Respondent for Petitioner's failure to pay Cemex and Perfection. There is no suggestion in the record that Respondent ever failed to pay Petitioner timely on any pay application. Mr. Rousseau complained that Respondent discontinued the DPOs with Perfection. It appears that Respondent did so with one or more schools in the last group of four schools on which Petitioner worked. The timing of the emergence of Perfection's claim and the discontinuation of DPOs suggests that Petitioner had failed to pay Perfection at an earlier point in time. In any event, Petitioner had no contractual right to the use of DPOs. Also, a change order reduced the Contract Prices by the amount of the DPO plus saved sales tax for every school at which DPOs were used. Therefore, the presence or absence of DPOs would have not had a material impact on Petitioner's cash flow and its ability to pay this supplier and subcontractor. The evidence establishes a nonpayment of over $60,000 to Cemex and a nonpayment of nearly $50,000 to Perfection. These constitute substantial nonpayments. Although the record does not reveal how many times Petitioner failed to pay each obligee, even if there were only one nonpayment of each obligee, such nonpayments are repeated. For these reasons, Respondent has proved by clear and convincing evidence that, without justifiable cause, Petitioner is guilty of a substantial or repeated failure to pay a subcontractor after Respondent has paid Petitioner for the work performed by this subcontractor and in accordance with approved requisitions for payment. Count I: Maintenance and Cleanup of Limestone Creek Limestone Creek employees were greatly inconvenienced by the construction at their school. Janitors were required to carry cleaning supplies extensive distances, students and teachers were unable to use a portion of the school grounds, the principal daily had to resecure the job site to ensure that students did not wander into areas that had not been restored, and the entire school community was unable to use the part of the campus where an annual fundraising celebration was held each October. Much of this inconvenience was the result of the excessive duration of construction at Limestone Creek, as discussed in connection with Count II. But the long duration of construction must be distinguished from maintenance and cleanup for the purpose of determining the facts relevant to Count I. Any anecdotal evidence to the contrary notwithstanding, satisfactory PPEs for Limestone Creek preclude findings adverse to Petitioner as to Count I from the start of construction through October 2010. As noted above, Respondent issued Petitioner PPEs for Limestone Creek on May 25, 2010, and August 31, 2010. Their respective scores for project management, customer sensitivity, and safety--which are the only categories on the PPE that might have a bearing on site maintenance and clean up--are 2.5, 2.3, and 3.0 and 3.5, 3.0, and 3.0. As noted above, a "2" is satisfactory, and a "3" is good. These scores indicate that Petitioner's site maintenance was satisfactory through about September 1, 2010. The stop work order prohibited all activity on the Limestone Creek site for almost the entire month of September. On its face, the stop work order is unconditional, so Petitioner's responsibility for site maintenance was interrupted until October 7 when Respondent lifted the stop work order. As noted above, on January 7, 2011, Respondent issued a PPE for Limestone Creek that contained a 1.8 for project management. For customer sensitivity and safety, however, Respondent assigned Petitioner scores of 2.0 and 2.5, respectively. Although more helpful to Respondent's Count I claims than the relevant scores in the two previous PPEs, these scores do not support a finding by clear and convincing evidence that Petitioner's site maintenance and clean up practices were deficient. Turning to site conditions in 2011, by this time, about 96% of the work at Limestone Creek had been done, so site disruption from active construction should have been limited. According to Mr. Kunard, as of January 7, 2011, the Limestone Creek construction site was deficient as to 11 items: lack of grading, lack of sodding, missing light fixtures, missing aluminum conduit covers, cracked concrete sidewalks, colored construction marking on sidewalks, loose rock in graded areas, excessively elevated drain pipe cleanouts, lack of touch up painting, damaged sprinklers, and an unresolved waiver request. However, the overall effect of this items was not so great as to produce a failing PPE on the same date. The evidence most supportive of Count I is an email dated April 13, 2011, to Mr. Rousseau from Mr. Christie. Mr. Rousseau had asked for final payment, less the retainage, for Limestone Creek. Mr. Christie visited the site and found a substantial amount of sod that had not yet been placed, a missing light fixture, spattered concrete on several new columns, colored markings on sidewalks, and cracked sidewalks where construction vehicles accessed part of the site. He declined to authorize final payment. By email dated May 12, 2011, to Mr. Christie with a copy to Mr. Sanches, Principal Gibbs asked when the project would be completed. She noted among the items that were still unfinished as the leveling of the ground, the replacement of all of the sod, and the cleaning up of the sidewalks, which still had construction marking on them. In this email, Principal Gibbs mentioned that Limestone Creek was scheduled for another walkway cover job, and she hoped that Respondent would not use "this incompetent vendor" again. By email dated later in the day, Mr. Christie informed Principal Gibbs that he rechecked the work area earlier that morning and found things about as he had found them a couple of weeks earlier. Mr. Christie noted cracked sidewalks where construction vehicles crossed the walkways, red lead chalk marks, and incomplete and uneven sod. Nonetheless, Principal Gibbs' concern was well- founded. Despite having noted the above-described deficiencies, Mr. Christie advised the principal that Petitioner "will be awarded this addition to their original contract." Mr. Christie added that he thought that Petitioner had requested additional time to complete the project. Declining to comment further on discussions to which he had not been privy, Mr. Christie assured Principal Gibbs that he would "continue to work cooperatively and proactively" with Petitioner "to bring both the current project and the new . . . project to fruition." He added that he shared Principal Gibbs' frustration. Mr. Christie's ability to provide such a facile assurance establishes only that he was unaware of the depth of the principal's frustration--with Petitioner, no doubt, but perhaps with the Facilities Services Department by this time too. At about this time, Mr. Kunard signed a change order to authorize Petitioner to perform a substantial amount of additional walkway construction work at Limestone Creek. Ms. Swan vetoed Mr. Kunard's decision because she refused to sign the purchase order, without which the change order was a nullity. Mr. Kunard was caught by surprise by this action because he had been previously unaware of the ability of the Purchasing Department to withhold approval of a change order. In the face of satisfactory PPEs and a decision by the Facilities Services Department to award Petitioner additional work at Limestone Creek in May 2011, the recitation of unfinished items does not supply clear and convincing evidence of poor site maintenance and cleanup practices. Although he has had considerable experience in contract management, Mr. Kunard tried to explain that he had incorrectly believed that he was required to award this additional work to Petitioner. He did not identify the source of this so-called requirement. This explanation is rejected as implausible. For these reasons, Respondent has failed to prove by clear and convincing evidence that, without justifiable cause, Petitioner is guilty of a substantial or repeated failure to comply with the Contract Documents failing to maintain and clean up the Limestone Creek site after written notice of such noncompliance. Count IV: Return of Keys To enable Petitioner to perform the work, Ms. Banaszewski gave Petitioner's representatives keys to the 17 schools for which Petitioner had won contracts. The keys were of two types: gate keys and master keys. The gate keys unlocked the gates so as to provide access to the school grounds, but not any school buildings. The master keys unlocked the school buildings so as to provide access to every classroom, office, and other secure areas within these buildings. Ms. Banaszewski provided master keys for those schools to which Petitioner required access to electric closets and other utility rooms in order to perform its work. Ms. Banaszewski gave keys to Mr. Rousseau, Ms. Rousseau, Mr. Vlock, and other employees of Petitioner. The employee receiving the keys signed an Assignment of Facilities Keys form that provides: I accept the responsibility for the security of the above referenced keys and on [sic] the event any such keys are lost or stolen. I agree to immediately report the same to my department head or principal. I further agree that I will at no time reproduce or copy the above-referenced keys or keep any unauthorized keys in my possession. The reference to the "my department head or principal" reveals this form is for use when a school assigns keys to its employees, such as teachers. The only other potentially relevant provision of this form states at the bottom: "All keys Returned to Window/Lock Department." These provisions do not impose upon the person receiving a key and signing this form a contractual duty to return the key. By email dated June 21, 2011, to Mr. Rousseau, Ms. Banaszewski identified the keys assigned to Petitioner and the sites at which Petitioner was not conducting work and asked that Petitioner return these keys "as soon as possible." By return email the same day, Mr. Rousseau stated: "I am aware of the keys that need to be returned. All project that has [sic] a CC and no Perfection punch list, will be returned on Monday." In reply, by email on the same day, Ms. Banaszewski asked, "Please return all keys" and suggested that Petitioner obtain keys from individual schools, if Petitioner's employees needed access. Construing these three emails together, Ms. Banaszewski and Mr. Rousseau agreed that Petitioner would return the keys to the schools for which Petitioner had obtained CCs. At the time of these emails, among the schools that are the subject of Count IV, Petitioner had obtained CCs for only the following schools (CC issue date in parentheses): Spanish River (as noted above, May 11, 2011); Atlantic (February 4, 2011); Egret Lake (January 19, 2011), and Grassy Waters (January 19, 2011). Petitioner did not obtain CCs for Lighthouse and Limestone Creek until August 2011--after the Superintendent's charging letter of the previous month. The record does not reveal when Respondent issued the CC for Dwyer. Thus, Respondent has failed to prove by clear and convincing evidence in the form of these three emails a clear demand for the return of the keys to Lighthouse, Limestone Creek, and Dwyer. Except for testimony that changing the locks is expensive, the record is otherwise undeveloped as to the keys. Two omissions are particularly important. First, no employee of Petitioner admitted that Petitioner failed to return the keys. Ms. Banaszewski testified only that no one returned the keys to her. (Tr. 831, 840) This does not preclude the reasonable possibility that an employee of Petitioner may have returned keys to school administrators, the Facilities Management Coordinator for the school, or another of Respondent's employees. Second, Ms. Banaszewski admitted that she had never imposed a deadline on Petitioner for the return of the keys (Tr. 834). On July 16, 2012, Mr. Kunard sent Mr. Rousseau a comprehensive demand letter that covered the allegedly unreturned keys, but this letter is one year after the Superintendent's letter of July 2011, which is the charging document. Complementing the above-described failure of proof concerning the keys is a failure of the Contract Documents to require Petitioner to return the keys. Count IV relies instead on provisions of the Contract Documents requiring site security, but, especially where there are no indications of any breaches in site security, such provisions cannot be construed to require Petitioner to return the keys. For these reasons, Respondent has failed to prove by clear and convincing evidence that, without justifiable cause, Petitioner is guilty of a substantial or repeated failure to comply with the Contract Documents by failing to return the keys after written notice of such noncompliance. Aftermath The Superintendent's Letter and School Board's ratification have been detailed in the Preliminary Statement. After the School Board's ratification, but before the time had run for Petitioner to request a formal hearing on the still- preliminary delinquency determination, Ms. Swan advised Petitioner's insurers or sureties, or both, of the action of the School Board, as though it were final action. Ms. Swan admits that she has not worked on a delinquency previously. Unfortunately, even though the final determination of delinquency, subject to judicial review, will not take place until the issuance of a final order following this recommended order, Petitioner's sureties canceled Petitioner's bonds, and an individual who had guaranteed repayment to one or more sureties of $5 million withdrew his guaranty. Ms. Swan did not attempt to rescind her letter, although Mr. Kunard, who had sent a similar letter to a surety, rescinded his. Mr. Rousseau testified that the damage had been done and, specifically, that Petitioner was no longer an active corporation and is out of business. (Tr. 2980) In fact, Petitioner was still an active corporation at the time of the hearing, although it may be out of business. More importantly, the record does not reveal whether Mr. Rousseau exerted reasonable efforts to restore his company's bonding and, if necessary, the $5 million guaranty. Obviously, if Petitioner is out of business, the record does not provide a basis for determining the cause or causes for this development.
Recommendation It is RECOMMENDED that the School Board enter a final order ratifying Count II of the Superintendent's Letter for five of the Six Schools (except Independence Middle School), ratifying Count III of the Superintendent's Letter, declining to ratify Counts I and IV of the Superintendent's Letter, and determining that Petitioner is delinquent for one year from the date of final order. DONE AND ENTERED this 16th day of December, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2013.
