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Second Appeal Letter
PA ID# 001-53000-00; City of Oakland
PW ID# Project Worksheet 2550; Riprap Slope Protection
March 17, 2008
Governors Authorized Representative
Governors Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second AppealCity of Oakland, PA ID 001-53000-00, Riprap Slope Protection, FEMA-1628-DR-CA, Project Worksheet (PW) 2550
Dear Mr. Jacks:
This letter is in response to the referenced second appeal forwarded by your office on June 27, 2007. The City of Oakland (City) is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) partial denial of its first appeal dated November 13, 2006. The City is requesting funding for the repair of a washed-out slope damaged by Winter Storms in 2005/2006 and described in PW 2550. The City did not specify a dollar amount, but Region IX provided information to indicate actual costs of $68,031 for the project (costs do not include replacement of a fence on private property).
FEMA prepared PW 2550 on April 13, 2006, with a scope of work that included repairing a washed out side slope and replacing a fence in the back of a private residence. The PW was obligated for $0 because the damage was on private property. The City submitted its first appeal on November 13, 2006, stating that the damage occurred in an easement area, the City had obtained a right-of-entry agreement, and the eminent collapse of the hillside necessitated an urgent response by the City. FEMA partially granted the appeal on April 19, 2007, stating that the City had provided evidence to show that it was legally responsible for the repair of the slope. However, FEMA determined that the work exceeded a level necessary to restore the slope to predisaster condition, specifically with the placement of riprap, and that the City was not responsible for replacing a damaged fence on private property. FEMA prepared PW 2550-1 for $14,278.
The City submitted its second appeal on May 1, 2007, stating that California torte law required the City to repair damages on private property caused by public improvement failures, defending claimed costs, and providing photos to document its claim that the work performed restored the facility to predisaster condition (which included riprap). Follow-up correspondence between FEMA Region IX and the Citys engineer (email exchanges dated September 11, 2007) provide
color photos to indicate the existence of riprap prior to the event and actual costs totaling $68,531 for geotechnical consultation, engineering, and construction. In an email dated June 6, 2007, from the City engineer to the California Office of Emergency Services, the City retracted its request for funding of the fence replacement (an estimated cost of $500).
Based on the information provided by the City and obtained by FEMA Region IX, the City has shown that it was legally responsible for the slope repair and that the repair work restored the facility to predisaster condition, per 44 CFR §206.226. Therefore, the appeal is granted.
Please inform the Applicant of my decision. By copy of this letter, I am asking the Regional Administrator to prepare a PW for $68,031 (actual costs minus $500 for fence replacement). My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Carlos J. Castillo
Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX