Legal Responsibility
Appeal Brief
Appeal Letter
Citation: FEMA-1498-DR-CA; San Bernardino County, Project Worksheet (PW) 1047
Summary: During the incident period for major disaster declaration FEMA-1498-DR-CA, a rain storm caused significant flooding and debris flows in San Bernardino County (Subgrantee) in December 2003. At the time of the storm, the Inland Empire Utility Agency (IEUA) was constructing an inlet structure for the San Sevaine Channel. The flooding caused heaving of the concrete invert slab and longitudinal cracking in the sidewalls. The Federal Emergency Management Agency (FEMA) prepared PW 1047 for the permanent repairs of the channel, estimated at $702,180, but determined the work ineligible because the site was under construction at the time of the incident by SEMA Construction, Inc., and was not the legal responsibility of the Subgrantee. The Subgrantee submitted its first appeal on July 9, 2004, claiming it had the legal responsibility of the construction site. It stated that SEMA Construction, Inc. was working near the damage site and that the damage site was outside of SEMA Constructions project limits. The FEMA Region IX Acting Regional Director denied the appeal on June 6, 2005, because the agreement between the Subgrantee and IEUA did not stipulate that the Subgrantee had the legal responsibility for damage repairs. The Subgrantee submitted its second appeal on August 22, 2005, citing contract law that states if a contract does not include transferring the legal responsibility of repairing disaster-related damage to the contractor, the responsibility shall stay with the owner of the facility. Also, it claimed its agreement with IEUA states that IEUA is only responsible for damages caused as a result of its negligent acts or omission. The Governors Office of Emergency Services supports the Subgrantees appeal for $702,180.
Issues: Did the Subgrantee have the legal responsibility for the damages?
Findings: No. The agreement the Subgrantee had with IEUA stipulated that IEUA was responsible for the operation and maintenance of the diversion structure.
Rationale: 44 CFR §206.223
Appeal Brief
| Disaster | FEMA-1498-DR |
| Applicant | San Bernadino County |
| Appeal Type | Second |
| PA ID# | 071-99071-00 |
| PW ID# | 1047 |
| Date Signed | 2007-01-16T05:00:00 |
Appeal Letter
01/16/2007
Mr. Paul Jacks
Governors Authorized Representative
Governors Office of Emergency Services
Disaster Assistance Division
3650 Schriever Avenue
Mather, California 95741-95655
Re: Second Appeal San Bernardino County, PA ID 071-99071-00, Legal Responsibility, FEMA-1498-DR-CA, Project Worksheet (PW) 1047
Dear Mr. Jacks:
This is in response to your letter dated October 6, 2005, which transmitted the referenced second appeal on behalf of San Bernardino County (Subgrantee). The Subgrantee is appealing the Federal Emergency Management Agencys (FEMAs) denial of funding for project costs identified in PW 1047.
During the incident period for major disaster declaration FEMA-1498-DR-CA, a rain storm caused significant flooding and debris flows in San Bernardino County (Subgrantee) in December 2003. At the time of the storm, the Inland Empire Utility Agency (IEUA) was constructing an inlet structure for the San Sevaine Channel pursuant to its agreement with the Subgrantee. The flooding caused heaving of the concrete invert slab and longitudinal cracking in the sidewalls. FEMA prepared PW 1047 for the permanent repairs of the channel, estimated at $702,180, but determined the work ineligible because the site was under construction at the time of the incident by SEMA Construction, Inc., and was not the legal responsibility of the Subgrantee.
The Subgrantee submitted its first appeal on July 9, 2004, claiming it had the legal responsibility for the construction site. It stated that SEMA Construction, Inc. (SEMA) was working near the damage site and that the damage site was outside of SEMAs project limits. The FEMA Region IX Acting Regional Director denied the appeal on June 6, 2005, because the agreement between the Subgrantee and IEUA did not stipulate that the Subgrantee had the legal responsibility for damage repairs.
The Subgrantee submitted its second appeal on August 22, 2005, citing contract law that states if a contract does not include transferring the legal responsibility of repairing disaster-related damage to the contractor, the responsibility shall stay with the owner of the facility. Also, it claimed its agreement with IEUA states that IEUA is only responsible for damages caused as a result of its negligent acts or omission.
The contract between the Subgrantee and IEUA states that IEUA was responsible for the construction, operation, and maintenance of a drop-inlet diversion structure for the San Sevaine Channel. Furthermore, IEUA sub-contracted for the construction of the drop-inlet structure with Banshee Construction Co. Section 3.11B - Protection of Work- of this sub-contract states The Contractor shall be responsible for the protection of the work until the completion and final acceptance. The Contractors shall, at its own expense, replace damaged or lost material or equipment, or repair damaged parts of the work, and the Contractor and its Sureties shall be liable therefore. Section 2.2G Loss of Damage of the sub-contract states All loss or damage arising from obstructions or difficulties which may be encountered in the prosecution of the work, from the action of the elements shall be borne by the Contractor. Section 8.10 - Acts of God - of the sub-contract states the Contractor shall not be responsible for the cost of repairing or restoring damaged portions of the work caused by an act of God For purposes of this section, the term Acts of God shall include only the following occurrences or conditions and effects: earthquakes and tidal waves, when such occurrences or conditions and effects have been proclaimed a disaster or state of emergency by the Governor of California or by the President of the United States . Based on review of these contracts, we have concluded that the contractor/sub-contractor, not the Subgrantee, was responsible for the disaster damage to the channel caused by the flooding.
The Subgrantee cited the State of California Department of Transportation Standard Specification which allows a public agency to take control of a project relieving the contractor from responsibility for injury or damage. Eligibility for assistance under the Public Assistance Program is based on who has legal responsibility for the repair of the facility at the time of the disaster. While the above specifications allow the Subgrantee to assume legal responsibility for repairs subsequent to an event, this is inconsistent with the requirement of 44 CFR § 206.223, General Work Eligibility.
Based on review of all information submitted with the second appeal, I support the Regional Directors decision on the first appeal. The second appeal is denied.
Please inform the Subgrantee of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Sincerely,
/s/
John R. DAraujo, Jr.
Director of Recovery
cc: Nancy Ward
Regional Director
FEMA, Region IX
Concurrence:
_________ S. Miller _________Yandle _________ Walke _________ OLA
_________ OCC _________ Garratt
Mr. Paul Jacks
Governors Authorized Representative
Governors Office of Emergency Services
Disaster Assistance Division
3650 Schriever Avenue
Mather, California 95741-95655
Re: Second Appeal San Bernardino County, PA ID 071-99071-00, Legal Responsibility, FEMA-1498-DR-CA, Project Worksheet (PW) 1047
Dear Mr. Jacks:
This is in response to your letter dated October 6, 2005, which transmitted the referenced second appeal on behalf of San Bernardino County (Subgrantee). The Subgrantee is appealing the Federal Emergency Management Agencys (FEMAs) denial of funding for project costs identified in PW 1047.
During the incident period for major disaster declaration FEMA-1498-DR-CA, a rain storm caused significant flooding and debris flows in San Bernardino County (Subgrantee) in December 2003. At the time of the storm, the Inland Empire Utility Agency (IEUA) was constructing an inlet structure for the San Sevaine Channel pursuant to its agreement with the Subgrantee. The flooding caused heaving of the concrete invert slab and longitudinal cracking in the sidewalls. FEMA prepared PW 1047 for the permanent repairs of the channel, estimated at $702,180, but determined the work ineligible because the site was under construction at the time of the incident by SEMA Construction, Inc., and was not the legal responsibility of the Subgrantee.
The Subgrantee submitted its first appeal on July 9, 2004, claiming it had the legal responsibility for the construction site. It stated that SEMA Construction, Inc. (SEMA) was working near the damage site and that the damage site was outside of SEMAs project limits. The FEMA Region IX Acting Regional Director denied the appeal on June 6, 2005, because the agreement between the Subgrantee and IEUA did not stipulate that the Subgrantee had the legal responsibility for damage repairs.
The Subgrantee submitted its second appeal on August 22, 2005, citing contract law that states if a contract does not include transferring the legal responsibility of repairing disaster-related damage to the contractor, the responsibility shall stay with the owner of the facility. Also, it claimed its agreement with IEUA states that IEUA is only responsible for damages caused as a result of its negligent acts or omission.
The contract between the Subgrantee and IEUA states that IEUA was responsible for the construction, operation, and maintenance of a drop-inlet diversion structure for the San Sevaine Channel. Furthermore, IEUA sub-contracted for the construction of the drop-inlet structure with Banshee Construction Co. Section 3.11B - Protection of Work- of this sub-contract states The Contractor shall be responsible for the protection of the work until the completion and final acceptance. The Contractors shall, at its own expense, replace damaged or lost material or equipment, or repair damaged parts of the work, and the Contractor and its Sureties shall be liable therefore. Section 2.2G Loss of Damage of the sub-contract states All loss or damage arising from obstructions or difficulties which may be encountered in the prosecution of the work, from the action of the elements shall be borne by the Contractor. Section 8.10 - Acts of God - of the sub-contract states the Contractor shall not be responsible for the cost of repairing or restoring damaged portions of the work caused by an act of God For purposes of this section, the term Acts of God shall include only the following occurrences or conditions and effects: earthquakes and tidal waves, when such occurrences or conditions and effects have been proclaimed a disaster or state of emergency by the Governor of California or by the President of the United States . Based on review of these contracts, we have concluded that the contractor/sub-contractor, not the Subgrantee, was responsible for the disaster damage to the channel caused by the flooding.
The Subgrantee cited the State of California Department of Transportation Standard Specification which allows a public agency to take control of a project relieving the contractor from responsibility for injury or damage. Eligibility for assistance under the Public Assistance Program is based on who has legal responsibility for the repair of the facility at the time of the disaster. While the above specifications allow the Subgrantee to assume legal responsibility for repairs subsequent to an event, this is inconsistent with the requirement of 44 CFR § 206.223, General Work Eligibility.
Based on review of all information submitted with the second appeal, I support the Regional Directors decision on the first appeal. The second appeal is denied.
Please inform the Subgrantee of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Sincerely,
/s/
John R. DAraujo, Jr.
Director of Recovery
cc: Nancy Ward
Regional Director
FEMA, Region IX
Concurrence:
_________ S. Miller _________Yandle _________ Walke _________ OLA
_________ OCC _________ Garratt
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