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Los Angeles Department of Recreation and Parks

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DesastreFEMA-1008-DR
ApplicantLos Angeles Department of Recreation and Parks
Appeal TypeSecond
PA ID#037-91081
PW ID#87851 and 87569
Date Signed1998-03-05T05:00:00

Citation: FEMA-1008-DR-CA; Los Angeles Department of Recreation and Parks; DSRs 87851 and 87569

Cross Reference: Codes and Standards; Structural Upgrades; Historic Preservation; Repair versus Replacement

Summary: As a result of the Northridge Earthquake, the Los Angeles Swim Stadium and adjacent Judges/Lifeguard/Storage (Judges) Building and pool (collectively, facilities) suffered architectural and structural damages. Subsequently, FEMA prepared DSRs 04918 and 04920 for architectural and engineering (A&E) studies to determine the work necessary to restore the facilities to pre-disaster condition. Based on site inspections and the findings of these studies, FEMA prepared DSR 87851 for $792,941 to cover restoration of the Stadium and pool and DSR 87569 for $52,510 to cover restoration of the Judges Building. The scopes of work included structural, plumbing and electrical repairs, demolition, and an allowance for design costs. In addition, DSR 87851 provided funding for mechanical repairs. The work included upgrades/repairs for ADA compliance and historic preservation requirements. In its first appeal, the subgrantee stated that the approved repairs would not restore pre-disaster conditions and that the work did not comply with prevailing building codes. They requested complete replacement of the facilities. Upon review, FEMA approved several adjustments to the scope of work for DSR 87851, including additional plumbing repairs and a 15% allowance for general conditions, overhead, and profit. Accordingly, FEMA prepared supplemental DSR 15210 for $66,575. In its second appeal, the subgrantee argues that further upgrades are required by prevailing codes and that the approved repairs do not conform to historic preservation requirements. In addition, they claim that FEMA should fund complete replacement of the facilities in accordance with the "50 Percent Rule."

Issues: 1. Do prevailing building codes require additional upgrades or replacement?2. Do historic preservation requirements mandate further repairs/upgrades?3. Should FEMA fund complete replacement for any of these facilities?

Findings: 1. No. The prevailing codes specifically provide that repairs may be made to an existing building without requiring that the entire building comply with code requirements, so long as the repair work itself conforms to applicable standards.2. No. Historic preservation requirements do not provide specific upgrading standards, but rather they "govern" the application of the prevailing code.3. No. Based on a calculation of the "50 percent rule," none of these facilities is eligible for complete replacement.

Rationale: FEMA will fund the restoration of a facility to perform its pre﷓disaster function with the same capability and designed capacity as before the disaster. Such repairs will be performed in accordance with all applicable codes and standards that meet the criteria identified in 44 CFR 206.226(b).

Appeal Letter

March 5, 1998

Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, Second Floor
Pasadena, California 91103
Dear Mr. Najera:
This letter is in response to your August 15, 1997, submittal of the Los Angeles Department of Recreation and Parks' second appeal of damage survey reports (DSRs) 87851 and 87569 under FEMA﷓1008﷓DR﷓CA. The appeal concerns the application of codes and standards to the restoration of the Los Angeles Swim Stadium and related faclities. The subgrantee claims that the prevailing codes require that entire systems (e.g., mechanical, electrical, structural) must be upgraded to meet standards for new construction. Based on this argument, the subgrantee is requesting additional funding for complete replacement of the facilities.

I have reviewed the appeal and, as explained in the enclosed appeal analysis, I have determined that the prevailing codes do not require further upgrades. Further, the eligible repair costs for each facility do not exceed fifty percent of their respective replacement costs. Therefore, the facilities are not eligible for complete replacement. The appeal is denied. However, a request for costs of compliance with handicap accessibility requirements will be reviewed and reasonable costs approved. By copy of this letter, I am requesting that the Federal Coordinating Officer perform such a review.

Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal should be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Leland R. Wilson
Federal Coordinating Officer
Northridge Long-Term Recovery Area Office

Appeal Analysis

BACKGROUND
As a result of the January 17, 1994, Northridge Earthquake, the Los Angeles Swim Stadium and adjacent Judges/Lifeguard/Storage (Judges) Building and pool (collectively, facilities) suffered light to moderate architectural and structural damages. The City of Los Angeles Department of Recreation and Parks (subgrantee) requested Public Assistance funding under the Stafford Act to repair the facilities. Subsequently, the Federal Emergency Management Agency (FEMA) and California Governor's Office of Emergency Services (OES) prepared damage survey reports (DSRs) 04918 and 04920 to cover architectural and engineering (A&E) studies and determine the work required to restore the facilities. The facilities, which were erected for the 1932 Olympics, are listed on the National Register as historical buildings.

The A&E reports were prepared by Architects Pacifica Limited (APL), in Irvine, California. Based on site inspections and the findings of these reports, FEMA prepared DSR 87851 for $792,941 to cover restoration of the Stadium and pool and DSR 87569 for $52,510 to cover restoration of the Judges Building. The scopes of work described in these DSRs were to restore the structures to pre﷓disaster condition based on applicable codes and standards and in conformance with the requirements of the State Historic Building Code (SHBC), the Secretary of the Interior's Standards for Rehabilitation of Historic Buildings, and the American's with Disabilities Act (ADA). The scopes of work for both DSRs included demolition of damaged materials, structural and architectural repairs, plumbing and electrical repairs, and an allowance for design costs. In addition, DSR 87851 provided funding for repairs to the heating, ventilation, and air conditioning (HVAC) system. Pursuant to Title 36 of the Code of Federal Regulations (CFR), section 800, an historic preservation review was conducted.
First Appeal
On April 9, 1996, OES forwarded the subgrantee's first appeal to the Federal Public Assistance Officer (PAO). The subgrantee claimed that the approved scopes of work for DSRs 87851 and 87569 were not adequate to restore the facilities to pre-disaster condition and that repairs approved by FEMA were not in accordance with applicable codes and standards. Based on the A&E report, the subgrantee estimated the total repair cost to be $4.8 million and the replacement cost to be $8.15 million. In addition, they raised the following points of contention:

1. Los Angeles Building Code (LABC), section 8101(h), requires structural strengthening when repair costs exceed 10% of replacement costs.
2. In order to repair the exterior Stadium walls, a high-pressure water cleansing should precede the patch operations.
3. Repairs to the plumbing, electrical, and HVAC systems ignore the recommendations described in the A&E report.
4. DSR 87569 excludes necessary repairs to the roof diaphragm.
In response to the appeal, the PAO explained that FEMA is not obligated to pay for historic restoration of an entire building or its exterior, without regard to disaster-related damage. However, FEMA identified several adjustments to the scope of work that were required to restore the Stadium and pool to pre-disaster condition. These adjustments included the addition of plumbing repairs and an allowance for general conditions, overhead, and profit. In addition, handicap accessibility upgrades were removed. The Regional Director stated that the subgrantee should request a supplemental DSR for handicap accessibility upgrades upon completion of final designs. Accordingly, FEMA prepared DSR 15210 for $66,575 as a supplement to DSR 87851. No changes were made to DSR 87569. In response to the specific contentions noted above, FEMA replied in the following manner:

1. FEMA acknowledged that cost of the approved repairs exceeded 10% of the cost of replacement. However, FEMA determined that the approved repairs met all applicable codes and standards.
2. The methods and costs for crack and spall repair and epoxy injection were based on repairs to cracks and spalls of the same type, cause, and material at the nearby Los Angeles Coliseum. The repairs at the Coliseum were also performed in accordance with the Secretary of the Interior's Standards for Rehabilitation of Historic Buildings. With regards to the quantity of spalls and cracks that are eligible for repair, FEMA stated that the majority of them are due to expansion of rusting reinforcing steel just below the surface of the concrete and are, therefore, not disaster-related.
3. The subgrantee has not provided an explanation of the disaster-related damage to the HVAC and electrical systems. The subgrantee's request is based on a unit price multiplied by the gross floor area, instead of quantification of actual damage repair.
4. Initially, DSR 87569 did not include repairs to the roof diaphragm; however, that work was added to the DSR during review.
Second Appeal
The subgrantee submitted a second appeal to OES on June 16, 1997. The subgrantee argues that FEMA has ignored the requirements of the prevailing codes and that the eligible repairs do not conform to historic preservation requirements. In addition, the subgrantee argues that FEMA failed to accept the determinations of the A&E reports, which identify the extent of damage caused by the earthquake. Further, the subgrantee claims that FEMA should fund complete replacement of the facilities, because its estimate of repair costs exceeds 50% of the estimated replacement cost.
DISCUSSION
The major focus of FEMA's response to the appeal is:

u A codes and standards review of the cited codes and standards, to determine their applicability and whether any or all specifically require upgrades.

u A technical review of the basis for the FEMA estimate for restoration of the facilities, including required changes to the DSRs under appeal, if any.
CODES AND STANDARDS REVIEW
In its second appeal, the subgrantee states, "FEMA failed to comply with and follow the procedural requirements set forth in the Stafford Act." They add, "FEMA's failure to accept the requirements of the Building Code for the City of Los Angeles which mandates the extent of repairs required when the value of repairs exceeds the 10% threshold." They continue that, "FEMA's disavowal of the historic significance of the Swim Stadium and the Judges Building and the requirements of the SHPO [State Historic Preservation Officer] for rehabilitation."
The Applicability of Codes and Standards for Funding under the Stafford Act
The cost of code-driven upgrades necessary to restore building components or systems damaged as a direct result of a disaster event are considered eligible for Federal reimbursement. However, costs associated with code upgrades for altogether new components or systems not damaged by the disaster are generally not eligible for Federal reimbursement. Moreover, to be applicable to eligible work, a code or standard must satisfy the criteria set forth in 44 CFR 206.226(b).

The subgrantee claims that the eligible scope of work should include that which is necessary to bring the facilities, which were code-deficient prior to the disaster, into full compliance with codes and standards for new buildings, regardless of the relationship of that work to disaster﷓related damages. However, in carrying out its authority to fund repairs of disaster﷓related damages, FEMA requires that the repair itself must be performed in a code﷓compliant manner. This does not mean the entire facility must be upgraded to conform to all codes and standards. Moreover, the Stafford Act does not allow Federal funding to upgrade undamaged elements and systems of a facility to achieve improvements unrelamaade pre﷓disaster code-deficiencies, substandard conditions, and obsolescent building elements and systems to current code.
Applicability of Codes and Standards Cited by the Subgrantee
Title 24 of the California Code of Regulations is known as the California Building Standards Code (CBSC). The CBSC essentially incorporates all of the "Model Codes" referenced by the subgrantee and their architect. For example, part 2 of Title 24 incorporates the Uniform Building Code (with modifications) and is known as the California Building Code (CBC); and part 8 of Title 24 contains alternative building standards for the renovation of historic buildings or structures, and is known as the State Historic Building Code (SHBC). In addition, the LABC contains modifications to the CBC and prevails for construction within the City of Los Angeles. With very few exceptions (e.g., ADA accessibility requirements), FEMA has determined that the prevailing building codes (i.e., the LABC and SHBC) do not contain repair or damage thresholds that require these facilities or any of their elements or systems (i.e., structural, plumbing, electrical, HVAC, etc.) be fully upgraded or replaced. The following section of the LABC details the extent of repair and upgrading work (if any) required as a result of earthquake damage (this section applies equally to the codes contained in applicable parts of the CBSC):

Sec. 8101(h) Fire District Requirements: Alterations, repairs or rehabilitation in excess of 10 percent of the replacement cost of the building or structure may be made provided all of the work conforms to this code for a new building of like area, height, and occupancy in the same location and that no hazardous conditions or substandard residential buildings are continued or created in the remainder of the building as a result of such work.

Section 8101(h) of the LABC clarifies that code-compliant repair work need only include that which is necessary to bring the damaged element itself into conformance with new building standards. It is FEMA's position that the LABC, therefore, requires that damaged structural elements be repaired using LABC-approved materials and "present day" construction methods that restore the pre-disaster capacity and stiffness of the damaged elements to the greatest extent practicable. Because the LABC does not require additional upgrade work, the eligible scope of work may appropriately be determined by FEMA to include only that necessary to restore the facilities to pre-disaster condition in a code-compliant manner.
Historic Preservation Requirements
FEMA's historic preservation responsibilities, with respect to the facilities, are governed by section 106 of the National Historic Preservation Act (NHPA) and applicable regulations (36 CFR, section 800), and the SHBC. The subgrantee also cites chapters 81, 88, and 89 of the LABC; however, these chapters simply allow use of the SHBC.

Section 106 of the NHPA requires Federal agencies to take into account the effect of their undertakings on historic properties, and, prior to the approval of an undertaking, to afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking. Section 106 of the NHPA does not mandate particular actions or results, but simply prescribes the necessary process for Federal agencies to accommodate historic preservation concerns. Furthermore, the NHPA does not in any way revise or broaden the scope of FEMA's Public Assistance Program or the eligibility for funding of work thereunder.

The SHBC was developed primarily to provide more liberal ways of accomplishing life﷓safety risk reduction goals than the generally more restrictive prevailing building codes (i.e., the LABC and CBC). The subgrantee correctly indicates that the SHBC should be used whenever strict compliance with the prevailing codes would have an adverse effect on the historic features of the facilities. However, the subgrantee incorrectly concludes that the SHBC requires upgrades to its facilities.

On several occasions, FEMA has reviewed the SHBC for the purposes of determining whether its provisions require that structural or seismic upgrades be performed in conjunction with earthquake-related repair work. The following provisions of the SHBC are applicable:

Sec. 8-109: Any qualified building that does not comply with the minimum conditions of this code may be considered substandard and must be corrected as a condition of the use of this code.
The purpose of the SHBC is:
Sec. 8-102: .facilitate by means of alternative solutions the restoration or change of occupancy so as to preserve their original or restored architectural elements and features, to encourage.a cost-effective approach to preservation, and to provide for the safety of building occupants. These regulations control and allow alternatives to any and all prevailing codes when dealing with qualified historical buildings or sites.

Thus, the SHBC controls and modifies the requirements of the prevailing codes, but it is the prevailing codes that determine the technical requirements (e.g., upgrading, strength and force level requirements) of repair or rehabilitation work. Moreover, because the SHBC "governs" the application of the prevailing codes and does not provide upgrading standards, only the prevailing codes control whether upgrade work must be performed for disaster-related repairs. It is for that reason that code upgrade work, which the subgrantee claims is mandated by the SHBC (or LABC) and is not required by other prevailing code or formally adopted local ordinance, fails to meet the eligibility criteria for FEMA funding.
Handicap Accessibility Code Requirements
The accessibility standards contained in the LABC and CBC are specifically applicable to alterations, additions, and structural repair work. Compliance with these requirements requires that the area within which work will be performed be made accessible, that a path of travel to this area be provided, and that bathrooms, telephones, and drinking water fountains serving or within those areas be made accessible. In keeping with the intent of the ADA and Rehabilitation Act of 1973 to ensure that facilities are readily accessible to and usable by individuals with disabilities, State and local accessibility requirements are generally accepted by FEMA as eligible costs.

FEMA acknowledges that eligible disaster-related repairs will be performed throughout the facilities and, therefore, that some elements must be upgraded to meet ADA requirements. However, as explained previously, code-mandated upgrade work is applicable only to eligible repairs. Accordingly, the scope of eligible accessibility work is limited to that necessary to upgrade the portions of the facilities being repaired (and pathways serving those areas) to a level of service commensurate with the occupancy requirements immediately prior to the disaster. As stated by the Regional Director, the subgrantee should request a supplement to DSR 87851 for provision of handicap accessibility upgrades once final designs are complete. The extent of accessibility upgrades should conform to the guidelines described above.
Analysis of Subgrantee's Request for Upgrade Work
In its appeal, the subgrantee states that FEMA's determinations of the eligible scopes of work indicate FEMA's lack of understanding of historic preservation requirements and City building Code requirements. They expressed this position in its second appeal: "DSRs 87851 and 87869, as written only fund repair work and require only that repair work to be performed in accordance with the Building Code. This approach leaves the remainder of the structural, mechanical, and electrical systems untouched and requires that new and old systems stem substandard, and hazardous." They also state that it would be illegal to perform the approved repairs, because "the work will not comply with the City Building Code requirements." In support of this assertion they state, "The Building Code has been consistently construed by the enforcement agency, the Department of Building and Safety, to mean when the 10% trigger is reached, the entire system being repaired in the building must be brought up to code."

As stated previously, it is not the intention of the Stafford Act to upgrade facilities, such that they comply with current codes for new construction. Further, the fact that the structural, mechanical, and electrical systems are "old, substandard, and hazardous" is not a result of the disaster, but rather it is due to aging and poor maintenance. As such, repairs to elements of these systems not damaged during the disaster are not eligible for Public Assistance funding.

The eligible scope of work for the Stadium is now defined by both DSR 87851 and supplemental DSR 15270. Although these DSRs do not upgrade undamaged elements, the approved repairs conform to all applicable codes and standards. As explained above, FEMA may fund specific repairs in accordance with codes and standards for new construction without upgrading undamaged elements or systems to meet building codes for new construction. Moreover, FEMA is not always obligated to fund a project to the point of building permit qualification.

FEMA acknowledges that the eligible repair cost for these facilities is greater than the 10 percent code upgrade trigger as defined by the LABC. However, because prevailing codes do not require additional repairs and the approved repairs are in full compliance with the LABC, additional upgrade work is not required.
Summary of Codes and Standards review
Based on a review of the codes and standards referenced by the subgrantee, FEMA has determined that none of these codes or standards requires complete replacement of the facilities, nor do they require that undamaged portions of the facilities be upgraded. To the contrary, the LABC specifically provides that repairs may be made to an existing building without requiring that the entire building comply with code requirements, so long as the repair work itself conforms to applicable standards. Therefore, the extent of eligible repairs is limited to that which is necessary to restore the pre-disaster condition of the facilities in a code-compliant manner. For these facilities, compliance with ADA requirements is the only exception to this limitation.
TECHNICAL REVIEW
As a result of the subgrantee's first appeal, FEMA reviewed the eligible scopes of work for DSRs 87851 and 87569. As stated previously, several modifications were made to DSR 87851, including changes to both the unit prices and quantities, the addition of minor repairs to the plumbing system, and inclusion of an allowance for general conditions, overhead, and profit. These changes were based on the A&E reports and information obtained during a re﷓inspection of the facilities. No changes were made to DSR 87569 (Judges Building).

In its second appeal, the subgrantee expresses its non-concurrence with FEMA's determination of the eligible scopes of work based on, "FEMA's failure to accept the determination of the survey by Architects Pacifica, Ltd. identifying the extent of damage caused by the 1984 Northridge earthquake." They further state that if FEMA were to fund restoration of the facilities according to the recommendations of the A&E reports and requirements of the Stafford Act, that the facilities would be eligible for funding of complete replacement.

In order to clarify FEMA's position regarding the eligible scopes of work for DSRs 87851 and 87569, the following analysis is provided regarding the eligibility of each item of work, as well as any additional work requested by the subgrantee. Additionally, an explanation of FEMA's calculation of the "50 Percent Rule" is provided.
Eligible Scopes of Work
As stated in the "Codes and Standards Review" section, the Stafford Act does not require FEMA to fund restoration of these facilities to the point of building permit qualification, it only provides the funds necessary for repair of disaster-related damages. It specifies that, to be eligible, the repairs must be done to code. It does not state that bringing the entire building into conformance with codes is eligible, nor does it state that all items needed for legal occupancy are eligible. This is an important distinction and applies to the following discussion of the extent of eligible work for each work item contested by the subgrantee. The discussion includes FEMA's analysis, appended in bullets to each point raised by the subgrantee.

"DSR #87851 for the Swim Stadium, a 42,725 SF, two-story structure, allocates engineering and design fees at 7.9%. DSR #87569 for the Judges Building, a 2,160 SF, one-story structure, allocates 10% for engineering and design fees. FEMA cannot justify an approach where a larger and more complex structure requires less in design and engineering fees based upon a percentage of construction costs than does the less complex and smaller structure."

u In general, engineering and design services fee percentages are calculated based on industry averages and then locally adjusted. The base fee is extracted from FEMA's cost curves "A" and "B." Fees vary based upon the cost of construction and complexity of design. The fee includes normal basic services of schematic, preliminary, and final design, plus limited construction inspection. For larger, more complex projects, FEMA's cost curves indicate that the percentage of engineering and design costs decreases relative to increased total project cost. As stated above, this relationship is based on industry averages of historical construction cost data.

u In this instance, eight percent of the estimated cost of repairs for the Stadium resulted in an estimated engineering and design fee of $62,629. For the Judges Building, 10 percent of the estimated repairs resulted in an estimated engineering and design fee of $4,774. Although the percentage is greater, the estimated fee for the smaller Judges Building is substantially less than for the Stadium.

"FEMA refuses to accept the recommendations of its agents, APL, of the extent of damage to the Swim Stadium and Judges Building caused by the 1994 Northridge earthquake." (emphasis added)

u The spirit, if not the literal and legal definition, of the word "agent" is misapplied to APL as it pertains to FEMA. Although FEMA funded the work, the subgrantee retained, directed, and reimbursed APL. The quantities and methods of repairs recommended by APL are based on its interpretation of FEMA's program. These recommended repairs substantially exceed the requirements of the Stafford Act and 44 CFR 206.226, as well as the recommendations of the FEMA and OES inspectors that were identified in the DSRs.

"The DSR #04918 recognized the moderate to severe damage and failure of the hollow clay tiles which form part of the interior structure of the facility. Additionally, the DSR #04918 recognized cracking on the main structural girders, which form the structural frame of the building. Indeed the cracking of girders was found to be severe in one location. The Judges Building, DSR #04929 identified shear cracks to the outside of the building."

u Although this damage does exist, the FEMA, OES, and APL team that visited the site during review of the first appeal did not find this damage to be as pervasive or extreme as described in the A&E report funded by DSR 04918. The repairs of this damage (i.e., hollow clay tile walls and cracked girders) are adequately covered by DSR integ the structural elements is contrary to the Building Code as well."

u Patching the damaged structural elements will result in increased (not decreased) structural integrity. Furthermore, the approved repairs are exactly as requested by the subgrantee's structural consultant.

"FEMA refuses to fund the replacement cost of the Swim Stadium and the Judges Building having reached the 50% trigger of the L.A.M.C S91.8101(h)."

u In determining the eligibility for replacement of a facility under 44 CFR 206.226(d)(1), FEMA will consider only costs for the repair of damage, and not the costs of any triggered or mandatory upgrading of the facility beyond the repair of the damaged elements (even though these upgrade costs may be eligible for FEMA funding). It should be noted that such upgrades are not required or eligible in this instance. Additionally, FEMA will not consider technical services, site work, demolition, or any other "soft costs" when calculating the "50 Percent Rule." Thus, the determination of eligibility of a facility for replacement will be calculated by the following fraction: The cost of repair of the disaster damage, divided by the estimated cost of replacement of the entire facility.
u Although the A&E report estimates the cost of repairs to the facilities to be $4,823,191, this estimate includes repairs that are not eligible for FEMA funding. The cost of eligible repairs for both DSR 87851 is $792, 941 and for DSR 87569 the cost is $52,510.
u The A&E report estimates that construction costs to replace the facilities in accordance with applicable codes and standards is $8.15 million. Therefore, calculation of the "50 Percent Rule" yields a fraction that is well below 50 percent, even when including repair upgrades. Similar results are obtained when the fraction is calculated for each facility independently. Accordingly, the damaged facilities are not eligible for complete replacement.
CONCLUSION
Based on a review of the documentation submitted with the second appeal, FEMA has determined that the extent of eligible repairs for these facilities is limited to that which is necessary to restore the pre-disaster condition of the facilities in a code﷓compliant manner. The scopes of work defined by DSRs 15270 and 87569 restore the facilities in such a manner that meets or exceeds the requirements of the prevailing codes, including upgrades for ADA compliance, as well as preservation requirements for historic buildings. Further, calculation of the "50 Percent Rule" establishes that the facilities are not eligible for complete replacement. Therefore, the appeal is denied. Once the final designs are complete, the subgrantee may submit a request for supplement to DSR 87851 for provisions of handicap accessibility upgrades.