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El Ni?o storms and floods: Sewer & storm drains

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1203-DR
ApplicantCity of San Diego
Appeal TypeSecond
PA ID#073-66000
PW ID#52061
Date Signed2000-11-27T05:00:00

Citation: FEMA-1203-DR-CA; City of San Diego; PA ID 073-66000; DSR 52061

Cross Reference: El Ni?o storms and floods; Sewer system damage; eligible facility repairs.

Summary: The City of San Diego requested federal assistance following the 1998 storms caused by El Ni?o for damages its storm drain system in the Princess del Sol subdivision sustained. FEMA approved DSR 52061 for $0 because the City had previously determined that the system was in a deteriorated condition and was in the process of scheduling work to reconstruct the system. The City submitted costs of $1,664,383 and requested an independent FEMA/OES review of the project when FEMA denied reimbursement. The review team found that although the system was in need of replacement, FEMA should nevertheless pay the difference between the bid and actual costs of the project--$356,669. Neither the State nor federal Public Assistance Officer concurred with the determination and suggested that the applicant appeal to FEMA. In response to the first appeal, which did not clearly define the damages that were directly caused by the disaster, the Regional Director denied the appeal stating that by failing to replace the storm drains as had been scheduled, the City failed to prevent the predictable loss of backfill leading to the emergency conditions. In this second appeal, the applicant is requesting FEMA to reimburse the City for emergency measures it undertook during the floods when the sinkholes appeared on the public right-of-ways. It awarded the rebuilding contract to the second lowest bidder because the lowest bidder was unable to mobilize due to other commitments. The work was accomplished for $1,891,055 or $968,303 over the original bid. The applicant is submitting eight emergency items that cost $315,841 for FEMA to reimburse.

Issue: Should FEMA fund items of emergency work that became necessary because of the disaster?

Findings: FEMA concurs with the State's recommendation to fund $315,841 for emergency repairs to the damaged facility. Although the permanent repairs of the storm drain system was ineligible, the emergency measures were eligible for federal assistance.

Rationale: 44 CFR 206.223 (a) (1).

Appeal Letter

November 27, 2000

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

Re: Second Appeal: City of San Diego, P.A. ID 073-66000, Storm Drains, FEMA-1203-DR-CA, DSR 52061. Log # DET/73504

Dear Mr. Christian:

This is in response to your April 20, 2000, letter forwarding the February 25, 2000, second appeal from the City of San Diego. The applicant is appealing the Federal Emergency Management Agency's (FEMA's) determination that Damage Survey Report (DSR) 52061 was ineligible for disaster funding because the damage did not result from the disaster incident.

In the aftermath of the early 1998 storms and flooding caused by El Ni?o, the City applied for disaster assistance to repair the storm drain system at Peterlynn Drive. FEMA inspected the damage on July 28, 1998, and generated DSR 52061 for $0 because there was no eligible damage. The City had previously determined that the drainpipes were in a deteriorated condition and had scheduled the system for replacement in 1997. Documentation shows that the City received bids ranging from $0.8M to $1.6M to reconstruct the system but deferred the replacement for budgetary reasons. It nevertheless submitted a claim to FEMA of $1,504,969 for repairs and emergency measures following the incident. The City requested that the project be referred to an independent FEMA/OES review. The City's claim included the following items:

1. Repair costs by City forces

60,000

2. Emergency construction and protective measures

919,000

3. Loss of service life

yyyy525,969

Total claimed

$1,504,969



On April 1, 1999, the Governor's Office of Emergency Services (OES) wrote the City with the result of the review. The independent review team found that while the system was in need of replacement and the work was being scheduled, the storms impacted the system accelerating the need for the replacement project and also escalated costs. Consequently, it recommended that FEMA prepare a DSR for $356,669, the difference between an original bid and the final cost of the project. The Federal and State Public Assistance Officers did not concur with the findings of the review team and denied the request. They recommended that the City appeal FEMA's determination "stating what exactly was damaged as a direct result of the disaster."

On May 24, 1999, the City submitted its first appeal. It stated that the storms damaged sections of the drainpipes causing as many as five major sinkholes up to fifty feet in diameter and twenty feet deep within the public right-of-way. The City asserted that above and beyond the original scope of the project, it hired an emergency contractor to barricade and shore the sinkholes to stabilize the area. Temporary construction measures and temporary repairs to the storm drains were undertaken to prepare for continuing storms. It included material it submitted for the DSR but revised its claim to $1,664,383 as shown:

1. Repair costs by City forces

55,679

2. Emergency construction and protective measures

968,302

3. Additional administration and engineering

114,433

4. Loss of service life

yyyyyy525,969

Total claimed:

$1,664,383



OES forwarded the appeal on July 15, 1999, with the comment that the City still did not clearly define the damages that were directly caused by the disaster. The Regional Director denied the appeal in a November 24, 1999, letter stating that by failing to replace the storm drains as had been scheduled, the City failed to prevent the predictable loss of backfill leading to the emergency conditions.

In this second appeal, the applicant is requesting that FEMA reimburse the city for emergency measures it undertook during the floods when the pipes collapsed and sinkholes appeared on public right-of-ways. During the incident period, the City awarded the rebuilding contract to the second lowest bidder because the lowest bidder was unable to mobilize due to commitments elsewhere. It claimed that the contract cost escalated from $922,752 to $1,891,055 implying that because the work was done under emergency conditions, the increase was an emergency cost. However, it listed only eight items totaling $315,841.46 that it identified as costs clearly attributable to emergency measures for a prompt and prudent response to the disaster and is requesting reimbursement of this amount. These items are:

1. Sewer manhole bypass to work around shoring

7,600

2. Additional 848 sq. ft. of cross gutter

5,324

3. Additional 98.1 tons of backfill imported

797

4. Additional 1636 linear feet of concrete curb and gutter

2,988

5. Increase from 90 to 5652 sq. ft. concrete sidewalk

16,297

6. Increased shoring to protect labor force in trenches

210,970

7. Increase from 200 to 5871 tons of rock bedding

70,041

8. 48 linear feet of 18-inch RCP for extended pipe collapse

yyyyyyyyyy1,824

Total Emergency Measures

$315,841



Arrieta Construction, Inc., in its submission of final costs for the Peterlynn project dated December 10, 1998, verified the cost of the items included above. The applicant asserted in its first appeal and again in this appeal that these increases were of the nature of emergency measures directly attributable to damages caused by the disaster. The contractor d ae Regional Director's response to the first appeal. I have determined that, whereas the permanent repair of the storm drain system was not eligible for funding, the emergency measures taken to protect life and improved property during the storm were eligible expenses. Therefore, I am approving the City's appeal for reimbursement of $315,841 as emergency protective measures. By copy of this letter I am requesting the Regional Director to implement my determination to fund the Category B emergency measures.

Please inform the subgrantee of my determination. In accordance with the appeal procedure set forth in 44 CFR 206.206, my decision constitutes the final decision on this matter.

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

cc. Martha Whetstone
Regional Director
FEMA Region IX