Resolution 2020-31370 RESOLUTION NO. 2020-31370
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF
THE ADMINISTRATION TO ENTER INTO A CONSENT ORDER WITH THE
SOUTH FLORIDA WATER MANAGEMENT DISTRICT FOR THE INDIAN
CREEK DRIVE SEAWALL PROJECT; AND FURTHER AUTHORIZING THE
CITY MANAGER TO EXECUTE THE CONSENT ORDER.
WHEREAS, over the past year the Public Works Department has endeavored to solidify
the City's relationship with regulatory entities; and
WHEREAS, working closely with regulators such as Miami-Dade County Department of
Environmental Resources Management(DERM)and South Florida Water Management District
(SFWMD), many permits have been obtained and closed out; and
WHEREAS, some of the most notable accomplishments include obtaining permits for
Palm and Hibiscus and Indian Creek; and
WHEREAS, during our extensive coordination with SFWMD regarding the Indian Creek
Seawall, it was discovered that the wall encroached beyond the allowable 12 inches into the
canal;
WHEREAS, on December 22, 2017, SFWMD issued a Notice of Violation for the Indian
Creek Seawall ("Violation"), and in September 16, 2019, the City paid $7,700 to SFWMD to
settle the violation; and
WHEREAS, in order to correct this issue and satisfy regulatory requirements, the City
applied for a new permit to allow the wall to be built a maximum of 18 inches into the canal; and
WHEREAS, in order to obtain the permit, the City had to perform the appropriate
environmental mitigation, which included the removal of four derelict vessels from Biscayne
Bay; and
WHEREAS, upon the removal of four derelict vessels from Biscayne Bay, SFWMD
approved this permit on April 21, 2020; and
WHEREAS, in order to close the Violation and complete this process, SFWMD has
requested that the City enter into a Consent Order, a copy of the Consent Order is attached to
the Commission Memorandum accompanying this Resolution; and
WHEREAS, the Consent Order broadly covers the history of the project, states that the
fine paid is satisfactory for the violation, and illustrates that by entering into this Consent Order,
the City provides SFWMD with reasonable assurances of good faith that the City will proceed
with the Indian Creek Seawall project as set forth in the Consent Order; and
WHEREAS, as part of the Consent Order, SFWMD agrees not to initiate an enforcement
for the violations; and
WHEREAS, the Administration recommends that Mayor and City Commission enter into
the Consent Order with SFWMD.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, hereby that the Mayor and City Commission
accept the recommendation of the Administration to enter into a Consent Order with the South
Florida Water Management District for the Indian Creek Drive Seawall Project; and further
authorizing the City Manager to execute the Consent Order
/ N
PASSED and ADOPTED this a 9 day of_ Ju I , 2020.
DAN GELBER, MAYOR
ATTEST:
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TO
RAF L . GRANADO, CITY CLERK & RMFOECL
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I1ICORP ORA'fE� TION
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Resolutions-R7 Y
MIAMIBEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: July 29, 2020
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF
THE ADMINISTRATION TO ENTER INTO A CONSENT ORDER WITH THE
SOUTH FLORIDA WATER MANAGEMENT DISTRICT FOR THE INDIAN
CREEK DRIVE SEAWALL PROJECT AND AUTHORIZING THE CITY
MANAGER TO EXECUTE THE CONSENT ORDER.
RECOMMENDATION
The Administration recommends that the Mayor and City Commission accept the
Administration's recommendation to enter into a consent order with the South Florida Water
Management District for the Indian Creek Drive seawall project and authorize the City Manager
to execute the consent order.
BACKGROUND/HISTORY
Over the past year the Public Works Department has endeavored to solidify the City's
relationship with regulatory entities. Working closely with regulators such as Miami-Dade County
Department of Environmental Resources Management (DERM) and South Florida Water
Management District (SFWMD), many permits have been obtained and closed out. Some of
the most notable accomplishments include permits for Palm and Hibiscus and Indian Creek.
During our extensive coordination with SFWMD regarding the Indian Creek Seawall, it was
discovered that the wall encroached beyond the allowable 12 inches into the canal. On
September 16,2019 the City paid $7,700 to settle the violation.
In order to correct this issue and satisfy regulatory requirements, the City applied for a new
permit to allow the wall to be built a maximum of 18 inches into the canal.
In order to obtain the permit, the City had to perform the appropriate environmental mitigation,
which included the removal of four derelict vessels from Biscayne Bay. With these conditions
satisfied, SFWMD approved this permit on Aril 21,2020.
ANALYSIS
In order to close the violation and complete this process, SFWMD has requested that the City
enter into a Consent Order (Attachment). The Consent Order broadly covers the history of the
Page 2149 of 2461
project, states that the fine paid is satisfactory for the violation, and illustrates that by entering
into this Consent Order, the City provides SFWMD with reasonable assurances of good faith
for the project moving forward.
As part of the Consent Order, SFWMD agrees not to initiate an enforcement for the violations.
Results from the 2019 Resident Survey show that 63% of residents rated the City's efforts to
manage stormwater drainage and flooding as excellent/good. In order to continue maintaining
excellent standards, the City intends to enter into a consent order with SFWMD.
CONCLUSION
The Administration recommends that the Mayor and City Commission accept the
Administration's recommendation to enter into a consent order with the South Florida Water
Management District for the I ndian Creek Drive seawall project and authorize the City Manager
to execute the consent order.
Applicable Area
Middle Beach
Is this a"Residents Right Does this item utilize G.O.
to Know" item. pursuant to Bond Funds?
City Code Section 2-14?
Yes No
Legislative Tracking
Public Works
ATTACHMENTS:
Description
o SFWMD Consent Order
Page 2150 of 2461
ff,ct
o �a
s SOUTH FLORIDA WATER MANAGEMENT DISTRICT
OS . 'y�
Cost Code 11204
June 15, 2020
Mr. Jimmy L. Morales
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Subject: Indian Creek Drive Seawall Replacement Fr 26 St to 41 St
Consent Order
Miami-Dade County
PCN: 0232260360001
Dear Mr. Morales:
As discussed with South Florida Water Management District (District) staff and Ms. Elizabeth
Wheaton on June 15, 2020, a Consent Order (Order) settling the outstanding enforcement issues
regarding the above-referenced violation is enclosed. Please read the entire'document and have
your authorized representative sign and print their name on the signature page, have a notary attest
the signature of the representative as indicated, and return the entire document to this office before
July 15, 2020.
Final agency action regarding this matter will then be presented to the Division Director of
Regulation for finalization. A complete, executed copy will be provided for you upon execution of
the Order by the District.
Thank you for your cooperation in this matter. If you have any questions or require additional
information, please contact the undersigned at (561) 682-6053, or via e-mail at
gvazouez@sfwmd.aov, in the West Palm Beach Office.
Sincerely,Mi
uez, Environmental Analyst 4
Environmental Resource Bureau
3111{Gun Club Road.Wet Palm Reach,Florida 33306•(561)686-8800• l-800432-2045•www'.sfwmd.gov
Page 2151 of 2461
Indian Creek Drive Seawall Replacement Fr 26 St to 41 St
Cost Code 11204
Page 2
Enclosure: Consent Order
Location Map
Notice of Rights
c: Mr. Eric Carpenter, City of Miami Beach (via Email)
Ms. Elizabeth Wheaton, City of Miami Beach (via Email)
This document is filed in the ePermitting system under Cost Code 11204 via the Enforcement link under Records
Search
Page 2152 of 2461
BEFORE THE GOVERNING BOARD OF THE
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
SOUTH FLORIDA WATER
MANAGEMENT DISTRICT,
Complainant,
v. SFWMD No. 202_- -CO-ERP
CITY OF MIAMI BEACH,
Respondent.
CONSENT ORDER
This Consent Order is entered into between Complainant, South Florida Water
Management District ("District"), and Respondent, City of Miami Beach, ("Respondent")
by mutual consent, who agree as follows:
FINDINGS OF FACT
1. The District, a government entity created under Chapter 373, Florida
Statutes, is a multipurpose water management district with its principal office located at
3301 Gun Club Road, West Palm Beach, Florida 33406.
2. Respondent is a person within the meaning of Section 373.019(15), Florida
Statutes. Respondent's mailing address is 1700 Convention Center Drive, Miami Beach,
FL 33139.
3. The following exhibits are attached and incorporated into this Consent
Order:
June 15,2020
Page 1 of 8—COST CODE 11204 Short Form Consent Order(04/3/20)
Page 2153 of 2461
Exhibit A- Location Map;
Exhibit B- Notice of Rights
4. Respondent owns or has an easement over property with Parcel
Identification Numbers 02-3226-001-0751, 02-3226-033-0001, 02-3226-001-0781, 02-
3226-046-0001, 02-3226-001-0781, 02-3226-001-0922, 02-3226-001-0912, 02-3226-
039-0005, 02-3226-001-0990, 02-3226-001-0970, 02-3226-001-1182, 02-3226-001-
1172, 02-3226-049-0760, 02-3226-019-0001, 02-3226-001-1292, 02-3226-036-0005,
02-3226-001-1340, 02-3226-001-1350, 02-3226-001-1400, 02-3226-001-1430, 02-3226-
001-1470, 02-3226-011-0001, 02-3226-001-1635, 02-3226-001-1640, 02-3226-001-
1760, 02-3226-044-0001, 02-3226-001-1840, 02-3226-032-0001, 02-3226-001-1952,
02-3226-017-0005, and 02-3226-001-1961. The Respondent also owns or has an
easement over the western terminuses of 26th Street through 40th Street along the east
side of Indian Creek. All of the above described property is located in Sections 23, 26,
and 27, Township 53S, Range 42E; Miami-Dade County, Florida ("Property"). The
Property is shown on the location map attached as Exhibit A.
5. The District has jurisdiction over the Respondent, the Property, any
stormwater management system,wetlands,wetland impacts, all works, and maintenance
activities conducted on the property, as provided in Chapter 373, Florida Statutes.
6. The District issued Environmental Resource Permit No. 13-06263-P
("Permit")to the Respondent on September 28, 2016. The Permit authorized 4,200 linear
feet of new seawall to be installed within 12 inches waterward of the existing seawall and
for riprap to be installed at the toe of the new seawall.
June 15,2020
Page 2 of 8-COST CODE 11204 Short Form Consent Order(04/3/20)
Page 2154 of 2461
7. On December 18, 2017, District staff inspected the Property and discovered
that portions of the new seawall were installed greater than 12 inches waterward from the
existing seawall. District staff also observed evidence of unathorized dredging and filling
of submerged lands that contained seagrasses.
8. On December 22, 2017, District staff issued a Notice of Violation ("NOV")
to the Respondent for violating General Conditions 1 and 3 of the Permit, Special
Condition 8 of the Permit, and for the unauthorized dredging and filling of surface waters.
9. Respondent discontinued the activities described in the NOV and stopped
all work authorized by the Permit.
10. On January 24, 2019, Respondent applied (Application No. 190124-16) for
a modification of the Permit to authorize the new seawall to be installed up to 18 inches
waterward of the existing seawall, to remove and replace previously installed sections of
the new seawall that were installed greater than 18 inches waterward of the existing
seawall, and to mitigate for the unauthorized seagrass impacts.
11. On April 21, 2020, the District approved Application No. 190124-16 and
issued the modified Permit.
12. By entering into this Consent Order, Respondent provides the District with
reasonable assurances of good faith and the District agrees not to initiate an enforcement
action for the violations described. Respondent agrees that all factual and legal claims
providing the basis for this Consent Order, including all terms, provisions, and matters
referred to in the Findings of Fact and Conclusions of Law, shall not be contested in any
June 15, 2020
Page 3 of 8—COST CODE 11204 Short Form Consent Order(04/3/20)
Page 2155 of 2461
subsequent legal proceeding that may be brought to enforce the terms of this Consent
Order.
CONCLUSIONS OF LAW
13. As provided in Rule 62-330.020, Florida Administrative Code, and Sections
373.413 and 373.416, Florida Statutes, the District requires permits to construct, alter,
operate, or maintain stormwater management systems or works, including activities that
impact wetlands. The activity must not harm the District's water resources.
14. The District finds that Respondent violated Chapter 373, Florida Statutes,
and its corresponding rules, by not obtaining a modification to the existing Permit prior to
installing sections of the new seawall greater than 12 inches waterward of the existing
seawall, and dredging and filling submerged land that contained seagrasses.
15. The District may initiate and maintain legal action to enforce its rules,
permits and orders, or to protect and preserve the state's water resources in accordance
with Section 373.129, Florida Statutes. The District may recover a civil penalty for each
offense in an amount not to exceed $10,000.00 per offense. Each additional day in which
a violation occurs will constitute a separate offense. The District may further recover
investigative costs, court costs, and reasonable attorney's fees.
THEREFORE, having reached resolution of this matter, it is ORDERED:
ORDER
16. On September 16, 2019, Respondent paid the District a total of $7,700.00
in civil penalties and costs for settlement of the violations identied in this Consent Order.
This amount included $5,200.00 in civil penalties and $2,500.00 for the District's costs
June 15,2020
Page 4 of 8—COST CODE 11204 Short Form Consent Order(04/3/20)
Page 2156 of 2461
and attorney's fees incurred during the investigation of this matter and for preparing and
tracking this Consent Order. Respondent agrees that these amounts are reasonable and
shall not contest them in any subsequent action regarding this Consent Order.
GENERAL PROVISIONS
17. District representatives may enter the Property to verify compliance with this
Consent Order. Respondent's failure to comply with this Consent Order shall constitute a
violation of Chapter 373, Florida Statutes.
18. Should Respondent fail to meet the requirements set forth in this Consent
Order, the District reserves the right to petition for judicial or administrative enforcement
of its terms. In such event, Respondent shall not contest or deny any fact, legal
conclusion, or any other matter set forth in this Consent Order, including the Findings of
Fact, Conclusions of Law, penalties, fees, and costs. In exchange for the District not
initiating legal proceedings and by signing below, Respondent waives all rights set forth
in the Notice of Rights, attached as Exhibit B.
19. If the District successfully petitions or sues for enforcement of this Consent
Order, Respondent agrees to and must pay the District's attorneys' fees, including, but
not limited to, the fair market value of in-house counsel fees as if performed by outside or
private counsel, court costs, and any other damages.
20. The District expressly reserves the right to initiate appropriate legal action
to prevent or prohibit the future violation of applicable statutes or the corresponding rules,
or to alleviate an immediate serious danger to the public health, safety, or welfare. If
Respondent's non-compliance with this Consent Order leads to the District bringing an
June 15,2020
Page 5 of 8—COST CODE 11204 Short Form Consent Order(04/3/20)
Page 2157 of 2461
enforcement action, Respondent consents to receive service of process by registered
mail with no signature required, delivered to the Respondent's address.
21. This Consent Order shall take effect after the Respondent's and the
District's execution, and shall remain in full force and effect until its terms and conditions
are completed to the District's satisfaction.
22. Entry of this Consent Order does not relieve the Respondent of the need to
comply with all applicable federal, state, and local laws, regulations, or ordinances,
including District permitting requirements. This Consent Order does not give Respondent
the authority to conduct any activities on the Property that are under the District's
jurisdiction without first obtaining District authorization.
23. In the event it is necessary for the District to initiate legal action regarding
this Consent Order, such action may be initiated in the Fifteenth Judicial Circuit in Palm
Beach County, Florida. The District also reserves the right to seek administrative
enforcement by issuing an Administrative Complaint and Order for Corrective Action. If
the District pursues administrative enforcement, any final hearing shall be located at the
closest District facility to the subject Property, unless the District agrees otherwise.
DONE AND SO ORDERED in West Palm Beach, Palm Beach County, Florida, this
day of , 202 .
June 15,2020
Page 6 of 8—COST CODE 11204 Short Form Consent Order(04/3/20)
Page 2158 of 2461
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
Regulation Division
Jill S. Creech, P.E., Director Date
STATE OF FLORIDA )
COUNTY OF )
The foregoing instrument was acknowledged before me by means of E physical
presence or ❑ online notarization, this by
Signature of Notary Public—State of Florida
Print,Type, or Stamp Commissioned Name of Notary Public
Personally Known OR Produced Identification
Type of Identification Produced
General Counsel Concurrence
Paula L. Cobb Date
June 15,2020
Page 7 of 8—COST CODE 11204 Short Form Consent Order(04/3/20)
Page 2159 of 2461 •
RESPONDENT— CITY OF MIAMI BEACH
BY:
Jimmy L. Morales,City Manager
Signature
DATE:
PRINT NAME:
TITLE:
STATE OF FLORIDA )
COUNTY OF )
The foregoing instrument was acknowledged before me by means of ❑ physical
presence or D online notarization, this by
Signature of Notary Public—State of Florida
Print,Type, or Stamp Commissioned Name of Notary Public
Personally Known OR Produced Identification
Type of Identification Produced
June 15,2020
Page 8 of 8—COST CODE 11204 Short Form Consent Order(04/3/20)
Page 2160 of 2461
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Exhibit Created On: �� Property
Exhibit No: A 2017-12-19 MIAMI-DADE COUNTY,FL it
Permit No: 13-06263-P 't_
REGULATION DIVISION Application Number: 160722-5 •.
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Project Name: INDIAN CREEK DRIVE SEAWALL Cost Code: 11204
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REPLACEMENT FR 26 ST TO 41 ST N
f.T0 500 1,000 • South Florida Water Management District
' '"=}"1 -4 111 ::::=6get216 461 tre:rat EXHIBIT A, Page 1 of 1
NOTICE OF RIGHTS
As required by Sections 120.569 and 120.60(3), Fla. Stat., the following is notice of the opportunities which
may be available for administrative hearing or judicial review when the substantial interests of a party are
determined by an agency. Please note that this Notice of Rights is not intended to provide legal advice. Not
all of the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to
consult an attorney regarding your legal rights.
RIGHT TO REQUEST ADMINISTRATIVE HEARING
A person whose substantial interests are or may be affected by the South Florida Water Management District's
(SFWMD or District) action has the right to request an administrative hearing on that action pursuant to
Sections 120.569 and 120.57, Fla. Stat. Persons seeking a hearing on a SFWMD decision which affects or
may affect their substantial interests shall file a petition for hearing with the Office of the District Clerk of the
SFWMD, in accordance with the filing instructions set forth herein, within 21 days of receipt of written notice of
the decision, unless one of the following shorter time periods apply: (1) within 14 days of the notice of
consolidated intent to grant or deny concurrently reviewed applications for environmental resource permits and
use of sovereign submerged lands pursuant to Section 373.427, Fla. Stat.; or(2)within 14 days of service of
an Administrative Order pursuant to Section 373.119(1), Fla. Stat. "Receipt of written notice of agency
decision" means receipt of written notice through mail, electronic mail, or posting that the SFWMD has or
intends to take final agency action, or publication of notice that the SFWMD has or intends to take final agency
action. Any person who receives written notice of a SFWMD decision and fails to file a written request for
hearing within the timeframe described above waives the right to request a hearing on that decision.
If the District takes final agency action which materially differs from the noticed intended agency decision,
persons who may be substantially affected shall, unless otherwise provided by law, have an additional Rule
28-106.111, Fla.Admin.Code, point of entry.
Any person to whom an emergency order is directed pursuant to Section 373.119(2), Fla. Stat., shall comply
therewith immediately,but on petition to the board shall be afforded a hearing as soon as possible.
A person may file a request for an extension of time for filing a petition. The SFWMD may, for good cause,
grant the request. Requests for extension of time must be filed with the SFWMD prior to the deadline for filing
a petition for hearing. Such requests for extension shall contain a certificate that the moving party has
consulted with all other parties concerning the extension and that the SFWMD and any other parties agree to
or oppose the extension. A timely request for an extension of time shall toll the running of the time period for
filing a petition until the request is acted upon.
FILING INSTRUCTIONS
A petition for administrative hearing must be filed with the Office of the District Clerk of the SFWMD. Filings
with the Office of the District Clerk may be made by mail, hand-delivery, or e-mail. Filings by facsimile will not
be accepted. A petition for administrative hearing or other document is deemed filed upon receipt during
normal business hours by the Office of the District Clerk at SFWMD headquarters in West Palm Beach,
Florida. The District's normal business hours are 8:00 a.m. — 5:00 p.m., excluding weekends and District
holidays. Any document received by the Office of the District Clerk after 5:00 p.m. shall be deemed filed as of
8:00 a.m.on the next regular business day. Additional filing instructions are as follows:
• Filings by mail must be addressed to the Office of the District Clerk, 3301 Gun Club Road,West Palm
Beach, Florida 33406.
Page 2162 of 2461 EXHIBIT B - Page 1 of 2
• Filings by hand-delivery must be delivered to the Office of the District Clerk. Delivery of a petition to
the SFWMD's security desk does not constitute filing. It will be necessary to request that the
SFWMD's security officer contact the Office of the District Clerk. An employee of the SFWMD's
Clerk's office will receive and file the petition.
• Filings by e-mail must be transmitted to the Office of the District Clerk at clerk@sfwmd.gov. The filing
date for a document transmitted by electronic mail shall be the date the Office of the District Clerk
receives the complete document. A party who files a document by e-mail shall (1) represent that the
original physically signed document will be retained by that party for the duration of the proceeding
and of any subsequent appeal or subsequent proceeding in that cause and that the party shall
produce it upon the request of other parties; and (2) be responsible for any delay, disruption, or
interruption of the electronic signals and accepts the full risk that the document may not be properly
filed.
INITIATION OF AN ADMINISTRATIVE HEARING
Pursuant to Sections 120.54(5)(b)4. and 120.569(2)(c), Fla. Stat., and Rules 28-106.201 and 28-106.301, Fla.
Admin. Code, initiation of an administrative hearing shall be made by written petition to the SFWMD in legible
form and on 8112 by 11 inch white paper. All petitions shall contain:
1. Identification of the action being contested, including the permit number,application number, SFWMD
file number or any other SFWMD identification number, if known.
2. The name,address,any email address,any facsimile number, and telephone number of the petitioner
and petitioner's representative, if any.
3. An explanation of how the petitioner's substantial interests will be affected by the agency
determination.
4. A statement of when and how the petitioner received notice of the SFWMD's decision.
5. A statement of all disputed issues of material fact. If there are none,the petition must so indicate.
6. A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends
warrant reversal or modification of the SFWMD's proposed action.
7. A statement of the specific rules or statutes the petitioner contends require reversal or modification of
the SFWMD's proposed action.
8. If disputed issues of material fact exist, the statement must also include an explanation of how the
alleged facts relate to the specific rules or statutes.
9. A statement of the relief sought by the petitioner, stating precisely the action the petitioner wishes the
SFWMD to take with respect to the SFWMD's proposed action.
MEDIATION
The procedures for pursuing mediation are set forth in Section 120.573, Fla. Stat., and Rules 28-106.111 and
28-106.401—.405, Fla. Admin. Code. The SFWMD is not proposing mediation for this agency action under
Section 120.573, Fla.Stat.,at this time.
RIGHT TO SEEK JUDICIAL REVIEW
Pursuant to Section 120.68, Fla. Stat., and in accordance with Florida Rule of Appellate Procedure 9.110, a party
who is adversely affected by final SFWMD action may seek judicial review of the SFWMD's final decision by filing
a notice of appeal with the Office of the District Clerk of the SFWMD in accordance with the filing instructions set
forth herein within 30 days of rendition of the order to be reviewed,and by filing a copy of the notice with the clerk
of the appropriate district court of appeal.
Page 2163 of 2461 EXHIBIT B - Page 2 of 2