Eaton Canyon Park
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1005-DR-CA; Eaton Canyon Park
Cross Reference: Disaster-related Damages, Improved Project, Timing of Appeal
Summary: The October 1993 Altadena Fire damaged eight areas of parkland and support facilities. Damage Survey Reports (DSRs) 73830 and 73836 were approved in April 1994, for landscaping, sprinkler system, and fencing ($55,000) and maintenance building replacement and contents ($40,666), respectively.
DSR 73832 was prepared for demolition, debris removal, and replacement of the Nature Center building and its contents ($992,676). The subgrantee claims it concurred with the scope of work but not the dollar amount. In a re-evaluation, the cost per square foot was less than the DSR team's original cost estimate. The OES reviewer concurred and concluded that the applicant's non-concurrence was unjustified. DSR 73832 was approved in November 1994. In March 1997, the subgrantee sent a letter requesting an improved project to OES. The improved project included use of fire retardant roofing materials and a 1,200 square feet increase in the area of the structure of (for a total estimated project cost of $1,703,182). The subgrantee requested an increase in funding for all three DSRs of 35% for "soft costs" based on past experiences with similar projects and increases in actual costs. FEMA responded to the request as a first appeal and denied the appeal because it was received by FEMA over two years after its prior determination. In February 1998, OES forwarded the subgrantee's second appeal that argues that the request for additional funding should not have been managed as a first appeal and requests funding of soft costs, including management, permitting/design, review, soils and material testing. The subgrantee also states that the requirements of the Americans with Disabilities Act and the City of Pasadena's requirement to be connected to the sewer line were not addressed in the DSRs. OES supports the second appeal.
Issues: Are the additional costs eligible for funding?
Findings: Yes. The scope of work did not include allowable soil and material testing, ADA compliance, and permitting costs. These are eligible. However, funding for other work is limited to the initial estimated project cost, because this is an improved project.
Rationale: 44 CFR 206.203(d)(1).
The October 1993 Altadena Fire damaged eight areas of parkland and support facilities. Damage Survey Reports (DSRs) 73830 and 73836 were approved on April 3, 1994, for landscaping, sprinkler system, and fencing ($55,000) and maintenance building replacement and contents ($40,666), respectively. DSR 73832 was prepared for demolition, debris removal, and replacement of the McCurdy Nature Center building and its contents ($992,676). The subgrantee's representative concurred with the scope of work for DSR 73832, but not the dollar amount. In the performance of a second evaluation of DSR 73832, FEMA upheld the initial cost estimate because the re-estimated cost per square foot was less than the DSR team's original cost estimate. The California Governor's Office of Emergency Services (OES) reviewer concurred with the FEMA review, and concluded that the applicant's non-concurrence was unjustified. DSR 73832 was approved on November 17, 1994.
First Appeal
On March 5, 1997, 3 < years after the fire, and 2 < years after the approval of DSR 73832, the subgrantee sent a letter to OES requesting an improved project. The improved project included use of fire retardant roofing materials, plus an increase in the area of the structure of 1,200 square feet. The revised estimated project cost was $1,703,182. The subgrantee also requested an increase in the eligible funding for the project (all three DSRs) of 35% for "soft costs" based on past experience and increases in actual costs. FEMA responded to the request as though it was a first appeal because the request was an appeal of a prior FEMA determination, in which OES concurred. FEMA denied the appeal because it was received by FEMA over two years after its prior determination as compared to the 60 days allowed for an appeal.
Second Appeal
On February 23, 1998, OES forwarded the subgrantee's February 12, 1998, second appeal. The subgrantee first argues that the request for additional funding should not have been managed as a first appeal. The subgrantee bases its appeal on a request for eligibility of soft costs, including management, permitting/design, review, soils and material testing. The subgrantee also states that the requirements of the Americans with Disabilities Act (ADA) and the City of Pasadena's requirement to be connected to the sewer line were not addressed in the DSRs. OES supports the second appeal.
DISCUSSION
The subgrantee claims that their March 5, 1997, request for supplemental funding should never have been managed by FEMA as a first appeal and that the request should not be denied based on its late date. The subgrantee is requesting reimbursement of actual costs of $2,292,956, or a 148% increase over the approved DSR cost of $992,676.
First Appeal
Three and one-half years after the disaster occurred, and 2 < years after the DSR was approved (following a review of the proposed costs), the applicant submitted a request for an improved project together with a request for additional funding. In accordance with the provisions of 44 CFR 206.204 (d)(1), FEMA funding for improved projects is limited to the Federal share of the approved estimate of eligible costs. In this instance, the eligible costs would be the Federal share of $922,676. Since the applicant previously had non-concurred with the estimated costs, and those costs had been subject to a detailed review, the request for increasing the estimated funding was considered a first appeal.
Eligible Additions to the Scope of Work
The subgrantee has requested funding for soft costs including management, permitting/design, review, soils and material testing, and cost to comply with ADA. These costs may be eligible to the extent that they were required and not itemized in the approved scope of work.
Management, design, and review costs were included in the estimate of the approved scope of work through an 11% fee for architectural/engineering (A/E) services, which is higher than the average compensation for complex projects in the range of $1 million (7.75%). Using a rate of 35% is not considered reasonable, especially for restoring landscaping and sprinkler systems and rebuilding a maintenance facility. FEMA reimburses for only reasonable A/E costs, and the 11% is considered to be very reasonable. The applicant did not provide an explanation as to why the new facility was required to be connected to the sewer line when there was no such requirement for the original facility. Those costs are ineligible. However, soil and material testing was not identified in the approved scope of work and is eligible ($7,000). In addition, the costs to comply with ADA requirements are also eligible. Based on a 5% increase in the pre-disaster square footage of 6,558 square feet (or 328 square feet) and the approved construction cost of $106 per square foot, the eligible cost to comply with ADA is $34,768. Finally, the approved scope of work did not include costs for permitting, estimated by the subgrantee at $61,776. Although that appears to be somewhat high, it also is considered eligible.
The applicant also should ensure that a request for a time extension has been submitted through OES to FEMA. Permanent work must be completed within four years (assuming OES has provided time extensions), unless FEMA approves additional time for completion. The four-year period ended in October 1997. To be approved, the request for extension must show that the delay is because of extenuating circumstances beyond the control of the applicant.
CONCLUSION
FEMA funding for improved projects is limited to the Federal share of the estimated eligible amount. Since the approved scope of work did include reasonable A/E costs; additional costs for management, design, and review are not eligible. The approved scope of work did not include eligible funding for soil and material testing, compliance with ADA requirements, or permitting; therefore; however, such costs should have been included, and are eligible. A Supplemental DSR will be prepared to provide supplemental funding in the amount of $103,544. Therefore, that portion of the appeal for management, design, and review is denied and the appeal for soil and material testing, ADA compliance, and permitting is approved.
Appeal Brief
| Disaster | FEMA-1005-DR |
| Applicant | Los Angeles County |
| Appeal Type | Second |
| PA ID# | 037-00000 |
| PW ID# | 73830/73832/73836 |
| Date Signed | 1998-12-16T05:00:00 |
Citation: FEMA-1005-DR-CA; Eaton Canyon Park
Cross Reference: Disaster-related Damages, Improved Project, Timing of Appeal
Summary: The October 1993 Altadena Fire damaged eight areas of parkland and support facilities. Damage Survey Reports (DSRs) 73830 and 73836 were approved in April 1994, for landscaping, sprinkler system, and fencing ($55,000) and maintenance building replacement and contents ($40,666), respectively.
DSR 73832 was prepared for demolition, debris removal, and replacement of the Nature Center building and its contents ($992,676). The subgrantee claims it concurred with the scope of work but not the dollar amount. In a re-evaluation, the cost per square foot was less than the DSR team's original cost estimate. The OES reviewer concurred and concluded that the applicant's non-concurrence was unjustified. DSR 73832 was approved in November 1994. In March 1997, the subgrantee sent a letter requesting an improved project to OES. The improved project included use of fire retardant roofing materials and a 1,200 square feet increase in the area of the structure of (for a total estimated project cost of $1,703,182). The subgrantee requested an increase in funding for all three DSRs of 35% for "soft costs" based on past experiences with similar projects and increases in actual costs. FEMA responded to the request as a first appeal and denied the appeal because it was received by FEMA over two years after its prior determination. In February 1998, OES forwarded the subgrantee's second appeal that argues that the request for additional funding should not have been managed as a first appeal and requests funding of soft costs, including management, permitting/design, review, soils and material testing. The subgrantee also states that the requirements of the Americans with Disabilities Act and the City of Pasadena's requirement to be connected to the sewer line were not addressed in the DSRs. OES supports the second appeal.
Issues: Are the additional costs eligible for funding?
Findings: Yes. The scope of work did not include allowable soil and material testing, ADA compliance, and permitting costs. These are eligible. However, funding for other work is limited to the initial estimated project cost, because this is an improved project.
Rationale: 44 CFR 206.203(d)(1).
Appeal Letter
December 16, 1998
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
Disaster Field Office, Public Assistance Section
74 Pasadena Avenue, West Annex, Second Floor
Pasadena, California 91103
Dear Mr. Najera:
This letter is in response to your February 23, 1998, submittal of Los Angeles County's second appeal of Damage Survey Reports (DSRs) 73830/73832/73836 under FEMA-1005-DR-CA for Eaton Canyon Park Nature Center. The subgrantee is appealing the FEMA Regional Director's determination that the request for supplemental funding was essentially a first appeal and that the "first appeal" was submitted too late to be considered.
Based on my review of the documentation submitted in support of the appeal, I have found that the applicant requested increased funding while at the same time requesting an improved project. The initial DSR costs had previously been reviewed as the result of non-concurrence by the applicant; therefore, the determination of first appeal is correct. While the time frame for submitting an appeal had been substantially exceeded, I have decided to accept this as a second appeal.
The management, design, and review costs are not eligible for additional funding because reasonable funding for those items were included in the approved scope of work for this improved project. The facility was not connected to the sewer system before the disaster, and there was no evidence submitted to explain why the ordinances would apply to the new facility and not the old. I did find that the scope of work did not include costs for soil and material testing, Americans with Disabilities Act (ADA) compliance, and permitting, all of which are eligible. Therefore, with this letter, I am requesting the Regional Director to prepare a Supplemental DSR in the amount of $103,544 to provide funding for those items. Therefore, the appeal is partially approved. Please see the enclosed analysis for more details.
Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
Disaster Field Office, Public Assistance Section
74 Pasadena Avenue, West Annex, Second Floor
Pasadena, California 91103
Dear Mr. Najera:
This letter is in response to your February 23, 1998, submittal of Los Angeles County's second appeal of Damage Survey Reports (DSRs) 73830/73832/73836 under FEMA-1005-DR-CA for Eaton Canyon Park Nature Center. The subgrantee is appealing the FEMA Regional Director's determination that the request for supplemental funding was essentially a first appeal and that the "first appeal" was submitted too late to be considered.
Based on my review of the documentation submitted in support of the appeal, I have found that the applicant requested increased funding while at the same time requesting an improved project. The initial DSR costs had previously been reviewed as the result of non-concurrence by the applicant; therefore, the determination of first appeal is correct. While the time frame for submitting an appeal had been substantially exceeded, I have decided to accept this as a second appeal.
The management, design, and review costs are not eligible for additional funding because reasonable funding for those items were included in the approved scope of work for this improved project. The facility was not connected to the sewer system before the disaster, and there was no evidence submitted to explain why the ordinances would apply to the new facility and not the old. I did find that the scope of work did not include costs for soil and material testing, Americans with Disabilities Act (ADA) compliance, and permitting, all of which are eligible. Therefore, with this letter, I am requesting the Regional Director to prepare a Supplemental DSR in the amount of $103,544 to provide funding for those items. Therefore, the appeal is partially approved. Please see the enclosed analysis for more details.
Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
Appeal Analysis
BACKGROUNDThe October 1993 Altadena Fire damaged eight areas of parkland and support facilities. Damage Survey Reports (DSRs) 73830 and 73836 were approved on April 3, 1994, for landscaping, sprinkler system, and fencing ($55,000) and maintenance building replacement and contents ($40,666), respectively. DSR 73832 was prepared for demolition, debris removal, and replacement of the McCurdy Nature Center building and its contents ($992,676). The subgrantee's representative concurred with the scope of work for DSR 73832, but not the dollar amount. In the performance of a second evaluation of DSR 73832, FEMA upheld the initial cost estimate because the re-estimated cost per square foot was less than the DSR team's original cost estimate. The California Governor's Office of Emergency Services (OES) reviewer concurred with the FEMA review, and concluded that the applicant's non-concurrence was unjustified. DSR 73832 was approved on November 17, 1994.
First Appeal
On March 5, 1997, 3 < years after the fire, and 2 < years after the approval of DSR 73832, the subgrantee sent a letter to OES requesting an improved project. The improved project included use of fire retardant roofing materials, plus an increase in the area of the structure of 1,200 square feet. The revised estimated project cost was $1,703,182. The subgrantee also requested an increase in the eligible funding for the project (all three DSRs) of 35% for "soft costs" based on past experience and increases in actual costs. FEMA responded to the request as though it was a first appeal because the request was an appeal of a prior FEMA determination, in which OES concurred. FEMA denied the appeal because it was received by FEMA over two years after its prior determination as compared to the 60 days allowed for an appeal.
Second Appeal
On February 23, 1998, OES forwarded the subgrantee's February 12, 1998, second appeal. The subgrantee first argues that the request for additional funding should not have been managed as a first appeal. The subgrantee bases its appeal on a request for eligibility of soft costs, including management, permitting/design, review, soils and material testing. The subgrantee also states that the requirements of the Americans with Disabilities Act (ADA) and the City of Pasadena's requirement to be connected to the sewer line were not addressed in the DSRs. OES supports the second appeal.
DISCUSSION
The subgrantee claims that their March 5, 1997, request for supplemental funding should never have been managed by FEMA as a first appeal and that the request should not be denied based on its late date. The subgrantee is requesting reimbursement of actual costs of $2,292,956, or a 148% increase over the approved DSR cost of $992,676.
First Appeal
Three and one-half years after the disaster occurred, and 2 < years after the DSR was approved (following a review of the proposed costs), the applicant submitted a request for an improved project together with a request for additional funding. In accordance with the provisions of 44 CFR 206.204 (d)(1), FEMA funding for improved projects is limited to the Federal share of the approved estimate of eligible costs. In this instance, the eligible costs would be the Federal share of $922,676. Since the applicant previously had non-concurred with the estimated costs, and those costs had been subject to a detailed review, the request for increasing the estimated funding was considered a first appeal.
Eligible Additions to the Scope of Work
The subgrantee has requested funding for soft costs including management, permitting/design, review, soils and material testing, and cost to comply with ADA. These costs may be eligible to the extent that they were required and not itemized in the approved scope of work.
Management, design, and review costs were included in the estimate of the approved scope of work through an 11% fee for architectural/engineering (A/E) services, which is higher than the average compensation for complex projects in the range of $1 million (7.75%). Using a rate of 35% is not considered reasonable, especially for restoring landscaping and sprinkler systems and rebuilding a maintenance facility. FEMA reimburses for only reasonable A/E costs, and the 11% is considered to be very reasonable. The applicant did not provide an explanation as to why the new facility was required to be connected to the sewer line when there was no such requirement for the original facility. Those costs are ineligible. However, soil and material testing was not identified in the approved scope of work and is eligible ($7,000). In addition, the costs to comply with ADA requirements are also eligible. Based on a 5% increase in the pre-disaster square footage of 6,558 square feet (or 328 square feet) and the approved construction cost of $106 per square foot, the eligible cost to comply with ADA is $34,768. Finally, the approved scope of work did not include costs for permitting, estimated by the subgrantee at $61,776. Although that appears to be somewhat high, it also is considered eligible.
The applicant also should ensure that a request for a time extension has been submitted through OES to FEMA. Permanent work must be completed within four years (assuming OES has provided time extensions), unless FEMA approves additional time for completion. The four-year period ended in October 1997. To be approved, the request for extension must show that the delay is because of extenuating circumstances beyond the control of the applicant.
CONCLUSION
FEMA funding for improved projects is limited to the Federal share of the estimated eligible amount. Since the approved scope of work did include reasonable A/E costs; additional costs for management, design, and review are not eligible. The approved scope of work did not include eligible funding for soil and material testing, compliance with ADA requirements, or permitting; therefore; however, such costs should have been included, and are eligible. A Supplemental DSR will be prepared to provide supplemental funding in the amount of $103,544. Therefore, that portion of the appeal for management, design, and review is denied and the appeal for soil and material testing, ADA compliance, and permitting is approved.
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