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Fairmont Recreation Area Maintenance Road

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster1203-DR-CA
ApplicantCity of Pacifica
Appeal TypeSecond
PA ID#081-54806
PW ID#22238, 95836, 95934
Date Signed2002-10-01T04:00:00
Citation: FEMA-1203-DR-CA; City of Pacifica, Fairmont Recreation Area Maintenance Road, DSRs 22238, 95836, 95934

Cross-reference: Emergency Protective Measures, Actual Costs, Landslide

Summary: As a result of the 1998 El Nino storms, the City of Pacifica suffered landslide damage to its sewer line maintenance road behind Fairmont Recreation Park. FEMA prepared DSR 22238 in the amount of $13,173 to cover the repairs to the maintenance road. The City claimed that the damage was more extensive than first estimated and subsequently requested a supplemental DSR in the amount of $109,502. FEMA denied the request in a letter dated April 27, 2000, because the road repairs included stabilization of a hillside, which did not qualify for funding. The City’s first appeal claimed that the landslide was caused exclusively by the 1998 El Nino storms and that the repair work was done to restore the integral ground under the road damaged by the storms. The Acting Regional Director approved the appeal, stating that the original DSR was incorrect and should have included emergency protective measures required to protect the City’s sewer line and access road from the immediate threat of a landslide. FEMA de-obligated DSR 22238 and prepared DSR 95934 in the amount of $84,191, $71,018 more than originally approved. In its second appeal, the City claims that the category of work should not have been changed and the total contractor costs were not used in preparing DSR 95934. The amount in question is $38,484.

Issues: 1.) Was the repair work necessary to eliminate the immediate threat to the road?
2.) Are the additional claimed costs eligible for funding?

Findings: 1.) Yes. The work was required to protect the City’s sewer line and access road from the immediate threat of additional damage.

2.) No. There is no documentation to justify the additional claimed costs.

Rationale: 44 CFR §206.225, 44 CFR §206.205(b)

Appeal Letter

October 1, 2002

Mr. D.A. Christian
Governor’s Authorized Representative
Governor’s Office of Emergency Services
Post Office Box 419023
Rancho Cordova, California 95741-9023

Re: Second Appeal – City of Pacifica, PA ID 081-54806, Fairmont Recreation Area Maintenance Road, FEMA-1203-DR-CA, Damage Survey Reports (DSRs) 22238, 95836, 95934, OES Log 84580

Dear Mr. Christian:

This is in response to your January 10, 2002, letter forwarding the referenced second appeal on behalf of the City of Pacifica. The City has requested additional FEMA funding in the amount of $38,484 for repairs to the sewer line maintenance road behind Fairmont Recreation Park.

As described in the enclosed appeal analysis, I have determined that the City has not provided documentation to support its claim for additional costs. Therefore, the appeal is denied.

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

Sincerely,
/S/
John R. D’Araujo, Jr.
Assistant Director
Response and Recovery Directorate

Enclosure

cc: Karen Armes
Acting Regional Director
FEMA Region IX

Appeal Analysis

BACKGROUND
As a result of the 1998 El Nino storms, the City of Pacifica (City) suffered damage to its sewer line maintenance road behind Fairmont Recreation Park from a landslide. The City prepared the original Damage Survey Report (DSR) in the amount of $31,572, but FEMA later reduced the amount to $13,173 with DSR 22238. FEMA based the reduction on a site visit by a combined FEMA/Governor’s Office of Emergency Services (OES) team of geotechnical specialists who concurred that the stabilization of the site was the responsibility of the City. The approved scope of work included excavating and hauling 375 cubic yards of debris and backfilling the eroded section in front of the sewer manhole with 560 cubic yards of crushed rock fill.

Subsequent to the start of work, the City submitted a request for a supplemental DSR in the amount of $109,502 on October 7, 1999. The City claimed that the damage was more extensive than first estimated. OES transmitted the City’s supplement request to FEMA in letter dated January 6, 2000, after requesting and receiving additional information to document its supplemental request. A team of FEMA/OES inspectors revisited the site in February 2000 to determine the eligibility of the actual work completed. The inspectors again concurred that the work was hillside stabilization and, therefore, ineligible for FEMA funding. FEMA informed the City that it had denied its supplemental request in a letter dated April 27, 2000, because the road repairs included stabilization of a hillside, which did not qualify for funding.

First Appeal
The City submitted its first appeal in a June 30, 2000, letter to OES claiming that additional repairs to the site were necessary to return the maintenance road to its pre-disaster condition and to comply with sound engineering practices and local requirements. OES forwarded this appeal along with support documentation it requested from the City to FEMA Region IX on September 5, 2000. The additional information requested by OES was a signed copy of the contract for repairs to the maintenance road, a copy of the City’s procurement procedures including bids for the repairs to the maintenance road, and a geotechnical report or documentation to substantiate the City’s contention that the instability of the site was caused exclusively by the El Nino 1998 Storms, FEMA-1203-DR-CA.

OES did not support the City’s appeal because the City failed to supply all of the requested documentation to the State. After reviewing all of the documentation and meeting with the City’s staff, the Acting Regional Director determined the scope of work and category for the original DSR were incorrect. The scope of work should have been emergency protective measures required to protect the City’s sewer line and access road from the immediate threat of a landslide. Accordingly, the Regional Director approved additional funding for the project. DSR 22238 was de-obligated and replaced with DSR 95934 in the amount of $84,191. OES transmitted the Acting Regional Director’s determination to the City in a letter dated August 20, 2001.

Second Appeal
OES’s January 10, 2002, letter transmitted the City’s November 9, 2001, second appeal to FEMA. The City requested an additional $38,484 in funding. The City contended that the maintenance road was damaged by the 1203-DR disaster and that the repairs to the road should be classified as a Category C – road repair and not Category B – emergency protective measures. Also, the City disagreed with the approved amount of funding for the following reasons:

· The total contractor’s costs were not used.
·
· FEMA used the estimated costs for construction inspection when the City submitted actual costs for this item.
·
· Force Account labor costs should be included because the DSR should be Category C, not Category B.
·
· Hydro seeding should be eligible for funding because the City submitted a copy of the paid invoice to OES.
·
In the January 10, 2002, letter, OES did not support the City’s second appeal and did not recommend any further funding because the documentation submitted with the second appeal did not contain sufficient information or detail.

DISCUSSION
The primary issue in this appeal is whether the eligible scope of work is to repair a road that was damaged by a landslide, or to undertake measures to protect an eligible facility from further damage. A FEMA/OES team of geo-technical experts inspected the site on several occasions and determined the damage to the maintenance road resulted from a pre-existing landslide. Therefore, the eligible work included repair to the surface of the road and the integral ground that was part of the road. The City was first required to stabilize the slide area in accordance with Response and Recovery policy No. 4511.300A. Because the landslide exposed a sewer line and manhole to potential damage, the Acting Regional Director determined on first appeal that emergency protective measures to protect the sewer line and manhole were eligible. Accordingly, the Acting Regional Director approved additional funding for the project.

Another issue in this appeal relates to procedures the city followed in contracting for the work. Federal regulations require all contracts to be competitively bid. The City modified an existing contract to include work on the maintenance road. OES requested the City to provide information about its emergency contracting procedures to determine if proper procedures were followed in contracting for the work. However, the City has not provided such information to OES. When applicants do not follow appropriate contracting procedures, FEMA may fund otherwise eligible work based on its estimate of the cost to perform the eligible work.

We conducted a conference call on May 30, 2002, with representatives of FEMA Region IX, OES and the City to discuss the appeal. The City reiterated that the total cost of the project should be eligible because the work was required to restore the road to pre-disaster condition and protect the sewer line and manhole. The OES stated that it had concerns about the contracting method the City used for the work. The FEMA Region IX representative explained that the completed project went beyond what was required to protect the facilities from the threat of additional damage. The staff subsequently estimated the cost of the project that would have been required to protect the facilities and approved $84,191 for that effort.

CONCLUSION
The applicant has not provided any additional information to support its request for additional funding. The Acting Regional Director’s decision on the first appeal is consistent with program statute and regulations. Therefore, the appeal is denied.
Last updated February 4, 2020