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Second Appeal Summary
PA ID# 109-28000; City of Lincoln
DSR ID# 27421; City of Lincoln
Citation: FEMA-0983-DR-NE; City of Lincoln; DSR 27421
Cross Reference: Contract work; Legal responsibility; Disaster -related work
Summary: During March 1993, damages occurred at various locations along the Platte River and Salt Creek due to ice jams and flooding (DR-0983), including the City of Lincoln (subgrantee) Water System's Ashland water treatment facility (facility). Inspectors prepared DSR 27421 for $295,673 to cover reinstallation of 1000 linear feet of 54inch concrete pipe. Because a contractor was already performing improvements (Improvement Contract) to the facility at the time of the disaster, the subgrantee and contractor entered an agreement to perform the repairs under DSR 27421. On September 4, 1996, a court order required the subgrantee to pay to the contractor damages in the amount of $356,174. As such, the subgrantee has concluded that an additional $147,904 for third work crew labor, washed-out backfill, and dewatering measures are eligible for FEMA funding. The first appeal was denied because the subgrantee did not establish their legal responsibility for work and because additional damages must be reported, within 60-days of the initial inspection. In their second appeal, the subgrantee responds, "we just found out by court decision that the City would be responsible for additional costs and not the contractor." In addition, the subgrantee claims that the General Conditions of the Improvement Contract establishes its legal responsibility for the work.
Issues: 1. Was the subgrantee legally responsible for the worksite/improvements at the time of the disaster?2. Are costs associated with the contractor's third work crew eligible for assistance?
Findings: 1. No. The Improvement Contract supports the finding that the subgrantee (owner) did not assume legal responsibility for the worksite/improvements until, at least, substantial Completion had not occurred. At the time of the disaster, Substantial Completion had not occurred and, therefore, the subgrantee was not legally responsible for disaster-related damage/costs (lost backfill stockpile and dewatering).2. No. The costs incurred by the subgrantee's contractor for a third work crew are not related to the performance of eligible disaster work and are not, therefore, eligible for funding.
Rationale: 44 CFR 206.223(a)(3)