San Francisco International Airport

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1203-DR
ApplicantCity and County of San Francisco
Appeal TypeSecond
PA ID#075-00000
PW ID#03127
Date Signed2001-05-31T04:00:00
Citation: FEMA-1203-DR-CA; San Francisco International Airport; DSR 03127, Emergency Work
Cross-reference: Emergency Work, Legal Responsibility, Work Under Construction
Summary: Prior to the El Nino disaster, the Applicant was engaged in an airport expansion project (Project). The Project involved the complete reworking of all inbound, outbound, and circulation roadways. Additionally, the Project encompassed the construction of a new International Terminal complex and numerous other facilities. During the El Nino disaster (1997-1998 winter months), the Project was vulnerable to adverse weather. On July 23, 1998, representatives of Federal Emergency Management Agency (FEMA), the Governor's Office of Emergency Services (OES) and the Applicant conducted a field inspection and prepared Damage Survey Report (DSR) 03127 for $0 because the Project was under construction on the date of the major disaster and was not the legal responsibility of the applicant. The Applicant submitted a first appeal asserting that it had legal responsibility for the emergency measures requested. The first appeal was denied because the Regional Director determined that the Applicant did not have the legal responsibility for the facilities under construction. The Applicant submitted a second appeal again asserting that it had legal responsibility for the facilities under construction and that the emergency measures taken were beyond what the contractor was required to perform.
Issues: 1. Did the Applicant have legal responsibility to fund the additional work performed on the Project? 2. Is the additional work eligible under the Stafford Act?
Findings: 1. Yes. The Applicant, may have responsibility to fund the additional work depending upon the agreement with the contractor.2. 3. No. The additional work was undertaken to maintain the construction schedule, not to alleviate an immediate threat.
Rationale: 44 CFR 206.223 & 44 CFR 206.225

Appeal Letter

May 31, 2001

Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, CA 95741-9023

RE: Second Appeal- City and County of San Francisco, PAID # 075-00000, San Francisco International Airport, FEMA-1203-DR-CA, Damage Survey Report (DSR) 03127

Dear Mr. Christian:

This letter is in response your June 1, 2000, transmittal of the second appeal submitted by the City and County of San Francisco (Applicant), contesting the Federal Emergency Management Agency's (FEMA's) decision to deny funds for the emergency work performed at the San Francisco International Airport. The Applicant asserts that it was legally responsible to repair the damages claimed under DSR 03127 and requests reimbursement of $10,739,755.

Prior to the El Nino disaster, the applicant was engaged in a $2.4 billion Near-Term Master Plan Expansion Project (Project). The Project involved the complete reworking of all inbound, outbound, and circulation roadways. Additionally, the Project encompassed the construction of a new International Terminal complex, and numerous other new facilities. During the El Nino disaster (1997-1998 winter months), the Project was at an early stage involving earthwork and foundation construction, which made it vulnerable to adverse weather.

On July 23, 1998, representatives of FEMA, the Governor's Office of Emergency Services (OES) and the Applicant conducted a field inspection to document disaster-related damages. FEMA and OES determined that because the project was under construction on the date of the major disaster and not the legal responsibility of the applicant, there were no eligible damaged facilities. Therefore, FEMA prepared DSR 03127 for $0. The Regional Director sustained this determination on first appeal.

The Applicant submitted a second appeal by letter dated April 3, 2000. The Applicant has asserted that all of the claimed work on the Project required extraordinary measures, far beyond those reasonably expected of a contractor. Therefore, the Applicant claimed that it was legally responsible for the additional work. The Applicant requested reimbursement for removing mud from the construction site, protecting the existing construction work, and repairing damage to facilities that were under construction. Additionally, the Applicant asserted that had it failed to take proactive measures to prevent delays in the opening of the project due to the El Nino storms, the Bay Area community could have suffered up to $24.5 billion in direct impacts to business revenue. Therefore, the requested costs should be eligible under 44 CFR 206.223. The Applicant submitted a spreadsheet listing the scope of work and cost of each contract amendment it signed for the Project.

The Applicant has established that pursuant to Contract Document 00700 "General Conditions," (contract) paragraph 1l(c)(1), the contractor is responsible for taking steps to protect the work, persons, and property from injuries and damage arising from the performance of the contract. The contract provides a permissible delay in completion schedule due to adverse weather conditions. Consequently, in the event that rain prevented work, the contractor could have abandoned the site until the site became workable.

The Applicant directed the contractor to continue with construction during the disaster period and amended the contract accordingly. It appears that many of the contract amendments addressed work that was beyond what the contractor was responsible for in the original contract. Therefore, the issue in this appeal is not whether the Applicant was legally responsible for the additional work. Rather, the issue is whether any of the additional work is eligible under the Stafford Act.

Eligible emergency protective measures are actions taken by applicants before, during, and after a disaster to eliminate or lessen an immediate threat to lives, public health and safety or the threat of damage to improved private or public property. The work performed to protect or repair existing construction was not based on an immediate threat, but was an economic decision to avoid the potential loss of revenue that would have resulted from delaying the completion of the expansion project. Potential loss of revenue is not considered an immediate threat under the Stafford Act. Also, the contract stipulates that the contractor is responsible for the repair of any completed portions of the Project prior to acceptance by the Applicant. Therefore, the additional work performed on the Project is not eligible for funding.

The Applicant also stated that the removal of mud from the Project site should be considered debris removal and should be eligible for reimbursement. Debris removal from public property is generally eligible for assistance if an applicant is legally responsible for removing the debris. In this case, the contractor was responsible for protecting the worksite from damage during the performance of the contract. The Applicant has established that the mud removal from the site was required to provide safe working conditions for both workers and equipment to allow construction activities to continue. The decision to remove the mud to allow construction to continue was based on economics and the desire to avoid potential loss of revenue by delaying the completion of the Project. Therefore, the removal of mud from the Project site is not eligible.

The Applicant asserted that unlike its other Master Plan Contracts, the contract for the Inbound/Outbound Ramps (Contract 5905.A) incorporates portions of California Department of Transportation (Caltrans) Standard Specifications, July 1995 Edition. It references Section 7﷓1.165, Damage by Storm, Flood, Tsunami, or Earthquake to establish that the Applicant would be responsible for the repair of disaster damage to portions of construction work that had been completed. Pursuant to Document 00810 (Modifications to General Conditions), paragraph 16(d), any references to Caltrans Standard Specifications Sections 1, 2, 3, and 7 are superseded by the Applicant's Project Manual references. In other words, the contract takes precedence. Therefore, the repair of damage to Inbound/Outbound Ramps is the contractor's responsibility and is not eligible.

After reviewing all material submitted with the appeal, I do not dispute the fact that the Applicant had the legal responsible to contract for the additional work at the Project site. I commend the Applicant for taking steps to keep this important project on schedule. However, we can find no eligibility for the additional work under the Stafford Act. Regrettably, I must deny the appeal.

Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR 206.206.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

cc: Karen E. Armes
Acting Regional Director
Region IX
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