alert - warning

This page has not been translated into Greek. Visit the Greek page for resources in that language.

Reliant Park Repair

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1791-DR
ApplicantHarris County
Appeal TypeSecond
PA ID#020-99201-00
PW ID#2372, 3052, and 6943
Date Signed2012-07-17T04:00:00

Citation:     FEMA-1791-DR-TX, Harris County, Eligible Work, Project Worksheets (PWs) 2372, 3052, and 6943

Cross-
Reference: Eligible Work, Documentation

Summary:  During Hurricane Ike, high winds and flying debris damaged buildings in the Reliant Park complex.  The Harris County Sports & Convention Corporation operates the Reliant Park complex under a lease agreement with Harris County (Applicant).  FEMA prepared PW 2372 in the amount of $105,235 for replacement of 1,014 square yards of Reliant Center carpeting, PW 3052 for $3,579,283 for replacement of five of Reliant Stadium’s ten fabric roof panels, and PW 6943 for $411,720 for interior and exterior damage to Reliant Stadium.  The Applicant appealed these PWs, requesting increases to each of the scopes of work.

The first appeals are as follows:

  • The Applicant appealed FEMA’s determination regarding PW 2372 on April 27, 2009, arguing that all carpeting in the Reliant Center was irreparably damaged.  To support the appeal, the Applicant submitted letters from contractors expressing the consensus opinion that the carpeting had, and would continue to deteriorate beyond the areas that had been identified by FEMA through visual inspection as damaged.  As a result, the Applicant requested FEMA approve replacement of 3,400 square yards of carpet for an additional $845,848.  FEMA denied the Applicant’s appeal on January 27, 2010.  FEMA determined that the function and capacity of the Reliant Center could be restored without replacing carpeting that was not damaged, and the support provided by the Applicant did not prove that the additional work was required as a direct result of the event.
  • The Applicant appealed FEMA’s determination regarding PW 3052 on May 15, 2009, arguing that the remaining 5 fabric roof panels needed to be replaced.  To support the appeal, the Applicant submitted documentation from contractors, which stated that the remaining fabric panels may have been compromised by the event.  As a result, the Applicant requested an additional $1,912,045 to replace these panels.  FEMA denied the Applicant’s appeal on December 10, 2010.  FEMA concluded that the Applicant did not submit documentation to substantiate the claim that the condition of the fabric was compromised as a direct result of Hurricane Ike.
  • The Applicant appealed FEMA’s determination regarding PW 6943 on June 25, 2009, asserting that the scope of work identified by FEMA did not include the full damage to the Stadium and requested an additional $3,327,947 in funding.  The Applicant’s request included repairs for both interior and exterior systems.  FEMA partially granted the Applicant’s appeal on September 20, 2010.  The Regional Administrator granted costs of $48,003 for safety and security, temporary services and utilities that were inadvertently omitted from the Cost Estimating Format (CEF) estimate.  However, upon final review of the PW amendment, FEMA determined that these additional costs were covered by insurance.  Otherwise, FEMA determined that the Applicant did not provide documentation demonstrating that the increase in scope was a direct result of the disaster.

     In the second appeals, the Applicant reiterated its position that the scopes of work were not sufficient to address all of the damage caused by Hurricane Ike.  The Applicant provided additional documentation to support the second appeals; however, the Applicant did not provide evidence that demonstrates that the additional work was required as a direct result of the event.

Issue:        Did the Applicant submit sufficient justification to support its request for a change to the approved scopes of work?

Finding:     No.

Rationale:  Title 44 of the Code of Federal Regulations (44 CFR) §206.223(a)(1), General work eligibility, General

Appeal Letter

July 17, 2012

W. Nim Kidd, CEM
Assistant Director for Emergency Management
Texas Department of Public Safety
P.O. Box 4087
Austin, Texas 78773-0220

Re:  Second Appeals–Harris County, PA ID 020-99201-00, Reliant Park Repair, FEMA-1791-DR-TX, Project Worksheet (PWs) 2372, 3052, and 6943

Dear Chief Kidd,

This letter is in response to letters from your office dated June 16, 2010, December 14, 2010, and April 4, 2011, which transmitted the referenced second appeals on behalf of Harris County (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $6,085,840 for repairs to facilities in the Reliant Park complex after Hurricane Ike.

As explained in the enclosed analysis, the Applicant did not provide sufficient evidence to prove that the requested increases in scopes of work for the permanent repair of the Reliant Center and Reliant Stadium were a direct result of the declared disaster.  I have determined that the Regional Administrator’s decisions in the first appeals are consistent with Public Assistance regulations and policy.  Accordingly, I am denying the second appeals.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to Title 44 of the Code of Federal Regulations (44 CFR) §206.206 Appeals.

Sincerely,
/s/
Elizabeth Zimmerman
Deputy Associate Administrator
Office of Response and Recovery
Enclosure
cc:   Tony Robinson
       Acting Regional Administrator
       FEMA Region VI

Appeal Analysis

Background

On September 13, 2008, high winds and flying debris from Hurricane Ike damaged structures in the Reliant Park complex.  The complex is operated by Harris County Sports & Convention Corporation (HCSCC) through a lease agreement with Harris County (Applicant).  Under this lease agreement, the Applicant is responsible for the costs of repair and emergency protective measures performed by HCSCC.  Following the hurricane, HCSCC contracted with the Manhattan Construction Company (MCC), which subcontracted with various firms and vendors to complete the necessary repairs to the Reliant Center and Reliant Stadium.  FEMA worked with Texas Division of Emergency Management (Grantee) and Applicant’s representatives to document damage caused by the event and develop scopes of work for emergency protective measures and permanent repairs to Reliant Park.

First, FEMA prepared PW 2372 on January 12, 2009, to document water damage to carpeting in the Reliant Center.  Winds and debris from Hurricane Ike damaged the roof of the convention center, allowing rain to enter the building and saturate the carpeting.  The carpet manufacturer conducted an assessment of the damage and concluded that the quality of the carpeting had been compromised.  The manufacturer provided a report to HCSCC that recommended replacement of all existing carpeting for the reason that if the carpet was left in place it would continue to deteriorate.  Upon inspection, FEMA found that the sections of the carpet fell into one of three categories: did not get wet as a result of the event; did get wet but was dried and showed no visible signs of damage; and got wet and damage was evident.  At the time, the Applicant did not provide sufficient evidence to demonstrate that future damage would occur to those areas that did not get wet, or that did get wet but were dried and showed no signs of damage.  Therefore, with PW 2372 FEMA approved replacement of 1,014 square yards of carpet where damage to the carpet was evident, and approved an estimated cost of $105,235, which included not only the eligible scope of work but direct administrative costs and a reduction of anticipated insurance proceeds.

Next, FEMA prepared PW 3052 to document damage to the fabric roof of the Reliant Stadium.  The roof had ten main fabric panels laced with steel cables that, when tight, provided roof valleys for water drainage.  Wind, rain and debris caused damage to five of these panels, which resulted in destruction of a portion of the roof.  The final scope of work included replacement of the five damaged panels and associated fasteners, turnbuckles and valley hold downs, in addition to demolition and removal of the damaged panels.  FEMA approved PW 3052 for $3,579,283, which included direct administrative costs and a reduction of anticipated insurance proceeds.

Finally, FEMA prepared PW 6943 to document other damage to the Reliant Stadium.  The scope of work included repair of damage to insulation, drywall, acoustical ceilings, baseboard, glass and glazing; escalators and elevators; exterior lightning protection poles; roofing insulation (excluding the fabric and barrel roofing); exterior building skin; and window wall systems.  The PW was approved for $411,720, including direct administrative costs and a reduction of anticipated insurance proceeds.

First Appeals

The Applicant filed first appeals for each of the PWs separately.  During the first appeal processes, each of the appeals was addressed by FEMA individually.  The approved amounts and the additional amounts requested under appeal for each PW are detailed in the table below.

Project Worksheet

Project

Approved Amount

Appeal Amount

Total Requested

PA-06-TX-1791-PW-02372

Reliant Center Carpet

$105,235

$845,848

$951,083

PA-06-TX-1791-PW-03052

Reliant Stadium Fabric Roof

$3,579,283

$1,912,045

$5,491,328

PA-06-TX-1791-PW-06943

Reliant Stadium Permanent Repair

$411,720

$3,327,947

$3,739,667

Total

$4,096,238

$6,085,840

$ 10,182,078

With regard to PW 2372, the Applicant appealed FEMA’s determination on April 27, 2009.  In the appeal, the Applicant claimed that carpeting in the Reliant Center was saturated for 7 days, causing irreparable damage to the water based adhesive and resulting in staining that cannot be removed.  The Applicant also asserted that the underlying flooring in the Reliant Center retained moisture, which resulted in further degradation of the carpet adhesive and backing.  To support this appeal, the Applicant submitted letters from contractors expressing the consensus opinion that the carpeting had, and would continue to, deteriorate beyond the areas that had been identified by FEMA as damaged.  As a result, the Applicant requested that FEMA approve replacement of an additional 3,400 square yards of carpet for a total of $845,848.

FEMA denied the Applicant’s appeal on January 27, 2010.  The Regional Administrator noted that the supplemental information provided by the Applicant did not demonstrate that additional damage had been caused by the event.  The supporting documentation did not demonstrate that Hurricane Ike had damaged the requested 3,400 square yards of carpet. Thus, FEMA determined that the function and the capacity of the Reliant Center could be restored without replacing carpeting that was not damaged.

With regard to PW 3052, the Applicant appealed FEMA’s determination on May 15, 2009, requesting that FEMA approve a change in scope and additional funding in the amount of $1,912,045 for repair of roof fabric that was compromised by the disaster.  To support the appeal, the Applicant included a letter from MCC that asserted the approved scope of work did not include all of the damage caused by Hurricane Ike.  The additional scope of work outlined by MCC included security services to maintain a safe work area while repairs took place; temporary electrical work to remove fabric and conduct permanent repairs; general contractor labor, materials and equipment; and replacement of the remaining five original panels as these panels may have been compromised by saturation from the event.  At the time the appeal was filed, the Applicant had not submitted any evidence that the remaining fabric panels were over stressed or compromised in any way.

FEMA denied the Applicant’s appeal on December 10, 2010.  In order to assess the condition of the fabric roof, FEMA requested copies of inspection reports conducted for the roof prior to the event, as well as analysis of the current condition of the fabric.  FEMA also met face to face with the Applicant three times in February 2010 to discuss the information necessary to complete the appeal.  At that time, the Applicant provided copies of roofing inspections conducted in 2007 and 2008, but a current assessment of the condition of the fabric was not provided.  On May 4, 2010, FEMA notified the Grantee of the status of the request for information regarding the current condition of the fabric roof, and on June 7, 2010, received copies of the 2007 and 2008 inspection reports, but not an analysis of the current condition of the fabric.  FEMA determined that the Applicant’s request for security services, temporary electrical support, supervision, and general contractor support were already included in the original PW by use of Cost Estimating Format (CEF) factors.  FEMA concluded that the Applicant had not submitted documentation necessary to substantiate the claim that the condition of the fabric was compromised as a direct result of Hurricane Ike.

With regard to PW 6943, the Applicant appealed FEMA’s determination on June 25, 2009, stating that the scope of work identified by FEMA did not include repair of the full damage to Reliant Stadium and requested an additional $3,327,947 in funding.  The Applicant explained that scope of work should be expanded to include additional repairs to the exterior skin, window wall system, an additional lightning protection pole, security services, temporary electrical work, general contractor support services, and the mechanized retractable roof assembly.  On January 8, 2010, FEMA requested that the Applicant provide copies of reports referenced in the first appeal, specifically a roofing survey report, exterior cladding component report, and the current assessment of the retractable roof mechanism describing storm related damage.  The Applicant submitted the requested reports to FEMA on June 7, 2010.

In a letter dated September 20, 2010, responding to the appeal, the Regional Administrator partially approved the Applicant’s appeal for $48,003 to add costs for safety and security and temporary services and utilities that were inadvertently omitted from the original CEF estimate; however, upon final review FEMA found the costs to be covered by anticipated insurance proceeds.  Otherwise, FEMA determined that the Applicant did not provide documentation to support the remaining items in the request for an increased scope of eligible work.  Specifically, FEMA found that the fourth lightning pole was not damaged and was not, therefore, eligible for replacement.  Further, FEMA found that general contractor labor, materials, equipment, supervision and general conditions were included in the original CEF for PW 6943.  Finally, FEMA found that reports submitted by the Applicant did not substantiate the claim that the event had damaged the mechanized roof assembly.

Second Appeals

As with the first appeals, the Applicant filed second appeals for each PW separately.

The Applicant filed a second appeal of PW 2372 on May 27, 2010.  To support this appeal, the Applicant provided a letter from HCSCC, including photographs documenting the deteriorating condition of the carpet.  HCSCC asserts that since Hurricane Ike, the carpeting has showed accelerated ripping, reoccurring stains, and fabric voids caused by shrinkage.  The letter also notes that the carpet is discontinued, and that back-stock of the carpeting has run out so that existing carpeting can no longer be repaired.

The Applicant filed a second appeal of PW 3052 on March 8, 2011.  In the appeal, the Applicant reiterates its position from the first appeal and did not submit any additional documentation.

The Applicant filed a second appeal of PW 6943 on January 13, 2011.  In the appeal, the Applicant reiterates its claims from the first appeal.  In support of the Applicant’s claim, the Grantee’s transmission letter to FEMA asserts that pre-storm maintenance logs show that only routine maintenance was required on Reliant Stadium.  The Grantee argues that these records establish a baseline that demonstrates additional repairs to the stadium were required by the event.  Further, the Grantee notes that the fourth lightning pole was replaced pursuant to local regulations and Title 44 of the Code of Federal Regulations (44 CFR) §206.226(d), Standards.  The Grantee did not provide any evidence, such as current regulations, to support the claim that local regulations required replacement of the fourth lightning pole.  The Grantee also transmitted a March 2009 report from the contractor who installed the original roof as support for the appeal.

Discussion

In accordance with 44 CFR §206.223(a)(1), General work eligibility, work must be a direct result of a declared event to be eligible for funding under FEMA’s Public Assistance Program.  Furthermore, applicants must provide documentation that demonstrates that damage is a direct result of the declared disaster or emergency.  With respect to PWs 2372, 3052, and 6943, the documentation provided by the Applicant did not prove that the requested modifications to the approved scopes of work are required as a direct result of Hurricane Ike.  Regarding PW 2372, the Applicant provided photographs of damaged carpeting, but did not provide the locations of the damage nor sufficient support to prove that the damage to the carpeting was a direct result of Hurricane Ike.  Regarding PW 3052, the Applicant did not provide the documentation necessary to support the claim that the 5 remaining fabric roof panels were compromised and required replacement.  Regarding PW 6943, the Applicant did not provide documentation to support an increase in the scope of work beyond the increase in funding for security, temporary services, and utilities already provided from the first appeal.  The documentation provided by the Applicant, including a March 6, 2009, inspection report by Uni-Systems, LLC that states “[t]he components of the bearing, axle, end cap and wheel do not show any unusual signs of damage due to static loading or wind damage due to Hurricane Ike,” do not demonstrate that the damage to the roofing system resulted from the declared event.

Conclusion

The documentation submitted by the Applicant did not demonstrate that the additional damage and associated work in excess of the approved eligible scopes documented on PWs 2372, 3052, and 6943 was a direct result of Hurricane Ike.  Therefore, the additional costs are not eligible for reimbursement under the Public Assistance Program.