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Agenda 12/11/2012 Item #10AA12/11/2012 Item 10.AA. EXECUTIVE SUMMARY Recommendation that the County Attorney be directed to handle all aspects of the FEMA beach re- nourishment reimbursement denial and de- obligation appeals on behalf of Collier County; to direct that staff provide the County Attorney with all requested information, and to assist his office in any manner he deems necessary; further, that the County Attorney assess what civil and /or criminal liability the county may face if the final determination on appeal is that the county materially misrepresented to the federal government (by way of overstatement) what the storm related beach re- nourishment expenses were, and report back to the Board of County Commissioners. OBJECTIVE: That the County Attorney be directed to handle all aspects of the FEMA beach re- nourishment reimbursement denial and de- obligation appeals on behalf of Collier county; to direct that staff provide the County Attorney with all requested information, and to assist his office in any manner he deems necessary; further, that the County Attorney assess what civil and /or criminal liability the county may face if the final determination on appeal is that the county materially misrepresented to the federal government (by way of overstatement) what the storm related beach re- nourishment expenses were, and report back to the Board of County Commissioners. CONSIDERATIONS: Without Board of County Commissioners knowledge or direction, staff has appealed FEMA reimbursement denials of storm related re- nourishment expenditure reimbursement requests. Importantly, the County Attorney was never apprised of the denials, nor of the ensuing appeals. Staff has independently handled two separate appeals, and has lost on both counts. FEMA's denial amounts to approximately $9 million. Generally, FEMA claims that the county's consulting engineers materially misstated the qualifiable reimbursable amounts by improperly combining general beach re- nourishment expenses with storm related beach re- nourishment expenses, thereby overstating what is actually owed the county by FEMA. The county is now commencing it's third appeal of this same dispute. FEMA has, in addition to the denials, de- obligated the county for approximately $11 million, again claiming that the storm related beach re- nourishment expenditures were overstated by the wrongful inclusion of general beach re- nourishment expenditures. Again, the County Attorney was not timely apprised, nor involved in this matter when it came to light; neither was the Board of County Commissioners until recently. The county is facing a potential total loss of about $19 million in federal reimbursements it had hoped to receive. The matter has escalated to a legal challenge and as such jurisdiction properly rests with the County Attorney's office, rather than with the County Manager's office. Further, if the county is found to have in fact materially misrepresented it's request for federal reimbursement, the county may or may not face civil and /or criminal liability. The county should understand what contingent liabilities, if any, it may face. Packet Page -980- 12/11/2012 Item 10.AA. It is clearly the hope that the county's consultants /staff representations are accurate, and, that the county can prevail in its' third denial appeal, and, first de- obligation appeal against FEMA. Note: The dollar amounts provided herein are approximate. It is expected that the County Attorney will inform the Board of County Commissioners of the actual amounts in dispute with accuracy at a future BCC meeting. FISCAL IMPACT: To be assessed by the County Attorney and brought back to the Board of County Commissioners upon determination, for approval. RECOMMENDATION: That the County Attorney be directed to handle all aspects of the FEMA beach re- nourishment reimbursement denial and de- obligation appeals on behalf of Collier county; to direct that staff provide the County Attorney with all requested information, and, to assist his office in any manner he deems necessary; further, that the County Attorney assess what civil and/or criminal liability the county may face if the final determination on appeal is that the county materially misrepresented to the federal government (by way of overstatement) what the storm related beach re- nourishment expenses were, and report back to the Board of County Commissioners. PREPARED BY: Commissioner Georgia Hiller Reference - Minutes of BCC meetings where the YORK/FEMA denial appeal documents were introduced, and, where the FEMA de- obligation was brought to the BCC's attention by staff. Packet Page -981- 12/11/2012 Item 10.AA. COLLIER COUNTY Board of County Commissioners Item Number: 10.AA. Item Summary: Recommendation that the County Attorney be directed to handle all aspects of the FEMA beach, re- nourishment reimbursement denial and de- obligation appeals on behalf of Collier county; to direct that staff provide the County Attorney with all requested information, and to assist his office in any manner he deems necessary; further, that the County Attorney assess what civil and /or criminal liability the county may face if the final determination on appeal is that the county materially misrepresented to the federal government (by way of overstatement) what the storm related beach re- nourishment expenses were, and report back to the Board of County Commissioners. (Commissioner Hiller) Meeting Date: 12/11/2012 Prepared By Name: BrockMaryJo Title: Executive Secretary to County Manager, CMO 12/5/2012 12:17:39 PM Submitted by Title: Executive Secretary to County Manager, CMO Name: BrockMaryJo 12/5/2012 12:17:41 PM Approved By Name: KlatzkowJeff Title: County Attorney Date: 12/5/2012 2:52:19 PM Name: OchsLeo Title: County Manager Date: 12/5/2012 3:39:18 PM Packet Page -982- 12/11/2012 Item 10.AA. September 11 -12, 2012 County, et al, Second District Court of Appeals, Case No. 2D 11 -1224; Shawn Hussey, et al versus Collier County, et al, Second District Court of Appeal, Case No. 2D 11 -1223 . CHAIRMAN COYLE: Okay. We have two minutes, right? MR. OCHS: Yes, sir. COIVIlVIISSIONER FIALA: Turn your pages to I LH and smile. CHAIRMAN COYLE: What is this? MR. OCHS: Take a two- minute stretch break? CHAIRMAN COYLE: Yeah, we can take a two- minute break. MR. OCHS: Thank you. (Recess.) Item #1 I H RECOMMENDATION TO DIRECT THE COUNTY MANAGER TO PURSUE THE RECOVERY OF DE- OBLIGATED FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) PAYMENTS FROM HURRICANES KATRINA & WILMA AND AUTHORIZE EXPENDITURES UP TO $100,000 FOR TECHNICAL, LEGAL AND PROFESSIONAL RESOURCES TO SUPPORT THE RECOVERY EFFORT— MOTION TO APPROVE STAFF'S RECOMMENDATIONS — APPROVED MR. OCHS: Thank you, Commissioners, I appreciate your indulgence. That takes us to your 11:30 a.m. time certain hearing. It's Item I LH on your agenda. Recommendation to direct the County Manager to pursue recovery of de- obligated Federal Emergency Management Agency payments from Hurricanes Katrina and Wilma and authorize expenditures up to $100,000 for technical, legal and professional resources to support the recovery effort. Mr. Casalanguida will present. Page 78 Packet Page -983- 12/11/2012 Item 10.AA. September 11 -12, 2012 MR. CASALANGUIDA: Thank you, County Manager. For the record, Nick Casalanguida. Commissioners, over the summer County Manager implemented the reorganization plan and coastal zone moved into natural resources to get a dedicated budget team, prepare team and a support staff. Over that summer we started to receive information from the Federal Depart -- Florida Department of Emergency Management, as well as FEMA, regarding the disallowed cost initiative that started in November of last year. That initiative was referencing $800 million nationwide in terms of money they'd like to get back into their coffers. The state was notified in June. State passed the invoices to us at the end of July, and direction from the County Manager was to run this down and research the item prepare a brief and an action plan before he brought this item to the Board. We are not alone in the State of Florida. As Mr. Bob Seibert from the state will tell you, there's anywhere from 80 to $110 million of disallowance through other agencies. In speaking to one of the board members from the water management district, they're facing a $24 million de- obligation. The methodology is based on Florida Department of Emergency Management consultation, FEMA guidance, it was done through state coordination with consultants, your staff, and FEMA. Many, many times they approved it at the state level, they approved it at the Atlanta level and at the Washington D.C. level. The irony here, as we discussed earlier, is Mr. Fugate was the Florida Department of Emergency Management Director, now he's the FEMA director. I've read some of the past memos and appeal responses, and I believe that the qualifying statements are mostly subjective. They're not objective. I look at some of the comments "may," I look at some of the comments, prefer estimates over engineered drawings, and it makes me a little worried when I start going through these documents Page 79 Packet Page -984- 12/11/2012 Item 10.AA. September 11-12,2012 and I don't see them specifically referencing one document. So I'm going to go recap a couple of the key points and I'll let Mr. Seibert speak. All the work and expenditures that was done were Board approved. And you would have had to do them anyway. This is a reimbursement that we're arguing about. So the expenditures for beach renourishment were budgeted projeets that you were going to do. The storm came through. We're fighting to get money through the code and federal regulations we're supposed to get. But it's money you would have had to spend anyway. We requested $31 million; we received 20. And with this pending de- obligation, we still have $9 million that we'd receive from FEMA. Our action plan, and as discussed this morning under the item under public comment I think is prudent to go through the federal lobbying avenue. We need to get state support from the Governor, because the Governor's agencies are also facing this de- obligation. And I fully intend to prepare a technical response to FEMA. In talking about it with our staff, I said this is pretty straightforward. We're going to go back to 2000, we're going to prepare some maps. Every time we had accretion and erosion we're going to update those maps with a table. Every event, every time we did renourishment that was part of maintenance or any project that we have. In talking to our staff, I think that's going to be pretty foolproof to be able to put that forward. Now, in managing expectations, what I've seen in researching this in other municipalities and other agencies is FEMA tends to settle. Because a lot of their criteria can be subjective. So I don't know if we'll get any of the 11 million back, I don't know if we'll get all of the 11 million back. I know that we have to go forward and put together a technical response, I know that we need to bring some of the Page 80 Packet Page -985- 12/11/2012 Item 10.AA. September 11 -12, 2012 consultants forward, and I know that we have to get the lobbyists involved as well. So with that, I'd like to bring up Mr. Seibert from the state and echo some of the comments he's given us on the quality of our submittal and if we have done everything proper in terms of being able to get money back. Mr. Seibert? MR. SEIBERT: Good morning, Commissioners. CHAIRMAN COYLE: Good morning. MR. SEIBERT: What you've heard is -- MR. OCHS: Would you identify yourself for the record. MR. SEIBERT: I'm Bob Seibert, I'm the Deputy Public Assistance Officer of the Lead for the state, and we handle all of the infrastructure issues. So I thought I'd let you know what the format was and the process was of how the funding went so that you know how it could come back. The -- when there's a disaster it's declared, PW, project officers go out, come out to Collier, inspect everything, all the damages, estimate the damages and the cost and submit a project. Project equals a grant, federal grant. And that comes in to the state. We review and approve or disapprove or add and then give it back to FEMA, it goes into their system, it goes through a series of approvals. The money is obligated. And that money comes into the state's SmartLink account. And at that point in time we make payment out to the grantees, so -- actually it's sub - grantees at that time. So that's the way it works. And then when they take it back, when they de- obligate the money, they, FEMA, for whatever reason, whether its considered ineligible or something else, they de- obligate, process the paperwork in the system and then automatically take the money out of SmartLink. So they're not taking your $11 million out, they're taking Page 81 Packet Page -986- 12/11/2012 Item 10.AK September 11 -12, 2012 $11 million out of the SmartLink account that was due other sub - grantees and maybe even the state's shares. So that's where the money flow is. Let's get back to why we're here and why we're working with Gary and his crew. We've been working together for quite some time. We come over here to write the projects with my counterpart who was the Director of Public Assistance for the FEMA. And we met and decided that this was -- all the beach renourishment were valid eligible projects. We outlined the process where that was going to occur. And for the -- PW2700 is the number. There were 463 pages of documentation in that one grant. And that came from -- all but 23 pages came from Gary and his crew. And what it did, all of the money was exact down to the penny. We had everything cured according to and copied over according to the various contracts. And there were quite a few. It all balanced. And the money was obligated, paid in 2010, August of 2010. It was paid to us at the state, we paid it back to Collier, and everything was fine. Then FEMA got hit with a -- their DRF, Disaster Relief Fund, was almost defunct for -- on two different occurrences from 2010 on. They were only processing very few projects and grants because they didn't have the money there. Part of that was because of Katrina and California and other flooding in other states in addition to Florida. So that happened. Then FEMA took a look at what was going on and they decided to do a disallowed cost initiative. And that's coming from HRS. HRS is the cabinet seat, FEMA is the sub - department to DHS federally. The CFO of DHS decided FEMA was going to have to take some money back because there was some money sitting out there for maybe a couple of years in various states, and if the applicants were not going to do the work in a timely manner, they wanted their money Page 82 Packet Page -987- , 12/11/2012 Item 10.AA. September 11 -12, 2012 back. As a result, that started a de- obligation of many, many grants throughout the country. Now, for Florida, there were 1,334 de- obligations on projects. $275 million went out of the State of Florida back to the fed. During that same period obligations which are plus money coming back to the state was only 182 million. How that money flowed was -- that was in 2011, 2012. In 2012 there was $131 million of de- obligations and 33 million of obligations. So you can see where the emphasis has been. And that's one of the reasons you all got caught up in that. It got to the point where when we did the appeal for DR1393, which was Gabriel, FEMA decided to open up all the beach projects. And someone had an opinion that 2700 was ineligible, ineligible work. To somewhat belay that this project was obligated and approved, went all the way up from here in Florida to Atlanta, to headquarters through the million dollar queue, before the money was paid out. So it went through all those queues and all those approvals at one time, I find it very difficult to understand why they would change their mind two years after the fact. Because the de- obligation occurred in June of this year. So that's just the history of things. The complexity of the project was significant. There was a lot of environmental issues with FEMA, as well as state. We had turtle monitoring. And this all started with Gabriel in 2001 where that project was written and it was sand renourishment and replacement, and it was denied totally. Just flat out denied by FEMA. And it was appealed. The first appeal was denied by FEMA. And then a second appeal. Now, when a second appeal goes -- first appeal goes to Atlanta, second appeal goes to headquarters in DC. And it was upheld. So you got the money for the Gabriel renourishment. So just give you that history to let you know that there always seems to be with FEMA issues with sand renourishment. And since this was quite a large obligation, it was seen by many, many eyes. Page 83 Packet Page -988- 12/11/2012 Item 10.AA. September 11 -12, 2012 The state fully supports Collier, and we will walk shoulder -to- shoulder all the way up through to DC with the appeals, first and second. Because what we're doing, FEMA kind of pulled a little end around on us where they de- obligated the 2700, which is Wilma, as part of the Gabriel appeal. So we're going back and saying, you know, you really can't do that. We're going to appeal the de- obligation of 2700 separate from Gabriel. And that's why we're in the process of developing all the legal and programmatic issues of that right now. I think our key is we're in this together. CHAIRMAN COYLE: Mr. Seibert, I'd like to express my appreciation for your support and for your being here today. Can you tell us very briefly, under what authority has FEMA taken this action, and are they in conformance with that authority? MR. SEIBERT: We have had legal minds look at it. I've got three issues where we're ready to contest from a legal standpoint. You have 44 CFR, which is part of the Stafford Act, and we're going to tear that apart, as well as all of the working documentation that we have to back it up here from Collier. CHAIRMAN COYLE: Okay. All right, thank you. Commissioner Hiller? COMMISSIONER HILLER: Thank you. Thank you very much for being here, Mr. Seibert, I appreciate it. MR. SEIBERT: You're welcome. COMMISSIONER HILLER: I've read the emails you sent to the county, and I saw where you made reference to how PW2700 is being deemed ineligible. And I'll read exactly what you say in your email. What is being used to make PW2700 ineligible is opinion regarding storms that were not named as disaster events. Now, if you take out the storm events which were not named as disasters and separate it from the Wilma, what is the amount that you believe should be de- obligated? Page 84 Packet Page -989- 12/11/2012 Item 10.AA. September 11 -12, 2012 MR. SEIBERT: I think the amount as written stays pat. The unnamed storms are covered in your annual renourishment of 50,000 cubic yards. It stems from your DEP from 19 I think 95 where you redo the 50,000 cubic yards every year to account for annual erosion, et cetera. Those would be covered in that. And that's our position. The renourishment of 50,000 cubic yards every year was totally ignored and passed over in FEMA's de- obligation and denial of the appeal. That's one of the things that we're going to hang one of our hats on. COMMISSIONER HILLER: So are you saying the entire 11 million -- and just also to clarify one point, you said that the feds would pull the money from the state coffers, not the county coffers. But then in turn what would happen is prospectively the state would de- obligate us for whatever amount the state is remitting back to FEMA, if any is remitted; isn't that correct? MR. SEIBERT: That's correct. COMMISSIONER HILLER: So in the end it still comes out of our coffers. MR. SEIBERT: It does. COMMISSIONER HILLER: Going back to clarify, are you suggesting the entire 11 million is challengeable? MR. SEIBERT: Yes. We were -- excuse me for just a second. We were very positive in the total and that it was complete, accurate and eligible when submitted. FEMA backed that up because they approved it and gave us the money two years before it was de- obligated. So there was a separate or a change of venue that had a different set of -- pair of eyes looking at it. COMMISSIONER HILLER: Following up, the other statement you made is that FEMA was de- obligating because there were counties that had not made the expenditures and the money was still sitting there and so they said well, you know, if you didn't need to make these expenditures and it's been so long, you don't really need Page 85 Packet Page -990- 12/11/2012 Item 10.AA. September 11 -12, 2012 this money so we're taking it back. Has all the money actually been expended by the county, and was everything given to the county on a reimbursement basis? MR. SEIBERT: Yes, it was. COMMISSIONER HILLER: How does that affect the other non, well, let's call them named disaster events like Fay. What is the expectancy that we will receive monies for Tropical Storm Fay? And how does this affect Tropical Storm Isaac? I heard -- and I haven't been briefed by staff, but I heard it on the news that the county is expecting to make a claim for some $5 million related to Tropical Storm Isaac. How does that all play into this de- obligation claim being made by FEMA? And is that something we can expect with respect to Fay possibly, and does that mean that Isaac is not a realistic request? MR. SEIBERT: Those separate storms are supposed to keep their own identity money -wise and obligation -wise. So there should be no effect from Wilma on Isaac, Debbie and -- COMMISSIONER HILLER: Well, I'm not concerned about Wilma's effect. I'm concerned about FEMA's position with respect to now going back and de- obligating what hasn't been spent. To give you an example, we haven't spent the funds on Tropical Storm Fay for the damage caused by Fay, and it's been years. I believe that was in 2008. Isaac now has just occurred and that's a claim we're making for what just happened, so that's a little bit different. But I want to know what we're looking at here in terms of a potential trend. MR. SEIBERT: FEMA has been paid the 11 million. So the state doesn't owe them anything. The money default right now or deficiency right now is between the state and Collier. COMMISSIONER HILLER: Oh, I see. So the state has already given the feds the $11 million? MR. SEIBERT: Well, we didn't give it, they took it. Page 86 Packet Page -991- , 12/11/2012 Item 10.AA. September 11 -12, 2012 COMMISSIONER HILLER: So they already took it. MR. SEIBERT: Yes. COMMISSIONER HILLER: I see. MR. SEIBERT: It's an automatic. As soon as it's de- obligated they subtract the money -- COMMISSIONER HILLER: They just take it off from future funds. MR. SEIBERT: They take it off of existing funds that are in there for projects that are due other sub - grantees in the state. COMMISSIONER HILLER: What about Collier's money coming from the state, has it been -- has that been reduced now by that I 1 million and until this is settled that money is not coming down to Collier? MR. SEIBERT: We will hold money until that 11 million is paid, just like any business would. . COMMISSIONER HILLER: So Gary, how much were we expecting to get from the state towards this upcoming beach renourishment that you had proposed? MR. McALPIN: We -- for this upcoming beach renourishment, we were not planning -- when we look at our funding, we were not planning on receiving any money from the government on that for Tropical Storm Fay, Isaac or Debbie. So that's still an open book. We will apply for funds if that's the direction the Board gives us. But when we bring the renourishment program back to the Board on the 25th, we'll have some discussion about how much funds we have. And we've always said we're going to scope manage that project. So at this point in time we're not planning on using any FEMA funds for that project. COMMISSIONER HILLER: State funds. MR. McALPIN: State funds. Now, state funds is Florida Department of Environmental Protection. Part of this would be a cost Page 87 Packet Page -992- , 12/11/2012 Item 10.AA. September 11 -12, 2012 share program that we would apply for. As far as I know, Commissioner, that is completely separate and distinct from that. Again, that goes into the how we organize this project, how much money that we have accrued in the county for beach renourishment. We've been accruing funds for beach renourishment. So that's part of this whole funding mechanism that we need to look at in total. But I believe DEP's money is distinct and separate. I can't -- I am not the one to talk about that at this point in time. We will have that information for you when we bring our beach renourishment program, as far as what we're going to do, the next major beach renourishment to you in a couple of weeks. COMMISSIONER HILLER: I thought we were going to get money, for example, from Marco for Tropical Storm Fay. We had a discussion about that. We said the bulk of the damage there was attributable to that and that we were going to get monies from the state for Tropical Storm Fay to pay for that Marco project. And that's just a small example, you know, pulling the information from memory. MR. McALPIN: There's -- you know, for Tropical Storm Fay for Marco, we have said at one point in time there could be $1 million coming for that. But that would be from federal funding for Marco. We would make that in terms of timing and sequencing for Marco with that, Commissioner. But what we would prefer to do in terms of this moving forward is look at -- we have totally funded the Marco program from existing funds that we have with TDC. So we could bring all that information back to you at the next Board meeting when we're talking about funding for the beach renourishment programs. COMMISSIONER HILLER: Mr. Seibert, are those funds going to come out of the DEP beach renourishment cost share? MR. SEIBERT: My understanding is that we would not be crossing over grants from different accounts, if you will, and sources. Packet Page -993- 12/11/2012 Item 10.AK September 11 -12, 2012 We are just now starting to cross over FEMA grants. If we have something that somebody owes in Wilma and we have money in Fay or whatever and we can offset the Wilma deficiency with the Fay money, we're going to start doing that. And that will all be done with a lot of documentation back and forth with the various sub- grantees in the state. COMMISSIONER HILLER: So basically any money that we expected to get from FEMA for beach renourishment that we have not gotten, we can now expect not to get until this matter is resolved. MR. SEIBERT: That would be correct. COMMISSIONER HILLER: Thank you. CHAIRMAN COYLE: Okay, we have public speakers, Ian? MR. MITCHELL: Sir, we have one speaker. Bob Krasowski. MR. KRASOWSKI: Hello again, Commissioners. Bob Krasowski, for the record. This is pretty -mind boggling when I read this on the agenda that -- you know, I empathize with your searching to try to better understand this. It might take a little time. I appreciate the man from the state being here who helped. I wish there was somebody here from FEMA. And I still don't understand. Somewhere I thought I heard we had maybe in account 195 $25 million, and I got the impression that 11 million would be taken out of that, reducing the amount of money we'd have for beach renourishment. Which entirely isn't necessarily a bad thing. But, you know, I just -- I guess I'm just frustrated with not being able to understand more. And I saw in the backup packet that there were letters written in July indicating that this was going to happen. And I wish that -- you know, I understand your staff has to adjust to things and understand it before they come screaming fire to the commission. But, you know, I wish some indication of this would have been .._- . Packet Page -994- 12/11/2012 Item 10.AA. September 11 -12, 2012 brought forward then. Because there have been Coastal Advisory Council meetings, Tourist Development Council and they're all talking about beach renourishment and funds they have. And this certainly throws -- it seems to throw a kink in it, I don't know. But the 11 million can't just disappear, be there and then not be there and not have some kind of impact, you know, at least in a way -- maybe there's the magic of the ruling class that knows how that works. I haven't figured that out. CHAIRMAN COYLE: We just print more money. MR. KRASOWSKI: Oh, that's very democratic of you, yes. Glad to see you're getting on board. CHAIRMAN COYLE: Well, it's your own fault, Bob. MR. KRASOWSKI: I know, it's all my fault. I'll agree, I'll take lt. So I have that question. You know, is there a 25 million aside that we're going to lose 11 million of? And let's see, maybe one other thing. Yeah, last question. You know, I wonder if on these applications that went forward, was there a provision that said okay, in the eventuality that FEMA wants to reconsider, like hold off on spending this money until we go through the entire process, was that in there? Was it like okay, you might have this money but later on we might be able to take it back if things don't work? Was that in there? And that would be a question 'I'd have for whoever, you know. COMMISSIONER HILLER: Can I comment on that last question? I think that is a very significant question. Was there any provision that said that this was subject to audit, you know, subsequently by the state and that we were always at risk of de- obligation? MR. KRASOWSKI: Or the feds. COMMISSIONER HILLER: I'm sorry, not -- I didn't mean by the state, I mean by, you know, the Auditor General or the Inspector Page 90 Packet Page -995- , 12/11/2012 Item 10.AA. September 11 -12, 2012 General, as the case may be. MR. SEIBERT: There are statements in there. And there are also -- in the contract that you have with the state there's statements that they're subject to audit. And we've had some of them where the audit occurred five, six, seven years after the fact. And that's where a lot of the de- obligation is coming from, from the auditors. And understand that the OIG audits are as much an audit of FEMA itself than it is the sub - grantees and the grantee, being the state. The state's responsible to make sure that all of the programmatic issues are processed in the correct way, according to the law and regulations, so — COMMISSIONER HILLER: Thank you. I'd like to make a motion that we allocate the $100,000 by way of budget amendment to a separate line item and that staff come back to us, you know, as needed to keep us apprised of what's going on with this and, you know, how these $100,000 are being expended in order to protect our position. CHAIRMAN COYLE: Well, the staff is recommending five other actions for approval too. How about those? COMMISSIONER HILLER: Can you pull those out? Sorry. CHAIRMAN COYLE: I can read them. COMMISSIONER HILLER: I was just focusing on the -- CHAIRMAN COYLE: Okay, number one is to retain the services of a nationally recognized law firm that specializes in FEMA- related issues to consult and lobby on the Board's behalf. Number two, continue to retain the services of Mr. Bruce French of York Corporation to provide technical consulting on the FEMA and DEP rules, policies and regulations. Develop and implement a federal representative lobbying plan through the Ferguson Group supporting our efforts. Draft a letter to the Governor for their Chairman's signature asking for his support and FDEM's assistance in our recovery efforts. Page 91 Packet Page -996- 12/11/2012 Item 10.AA. September 11 -12, 2012 And work with the County Attorney's Office to review legal remedies. And then of course the $100,000 in professional support services that you did mention for approval. COMMISSIONER HILLER: Right. And those professional support services are to pay for the aforementioned listed professionals. MR. OCHS: That's correct. COMMISSIONER HILLER: So I incorporate what Commissioner Coyle has just listed as the details supporting the $100,000 allocation for this issue. COMIVIISSIONER HENNING: Second the motion. CHAIRMAN COYLE: And second by Commissioner Henning. Any further discussion? (No response.) CHAIRMAN COYLE: All in favor of the motion, please signify by saying aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COYLE: Aye. COMMISSIONER HILLER: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN COYLE: Any opposed, by like sign. (No response.) CHAIRMAN COYLE: It passes unanimously. And we are now COMMISSIONER FIALA: On our way to the United Way lunch. CHAIRMAN COYLE: Oh, that's right, I'm going down to get a hot dog. Okay. Good. We'll be back at 1:01. (Luncheon recess.) CHAIRMAN COYLE: Turn the mic on. MR. OCHS: Mr. Chair you have a live mic. Page 92 Packet Page -997- 12/11/2012 Item 10.AA. September 11 -12, 2012 CHAIRMAN COYLE: This item that will be coming up before us requires four votes. One of the commissioners will not be here for several more minutes because of traffic so I'm going to ask your indulgence. We will continue taking our lunch hour recess until Commissioner Henning arrives and then we will call the meeting to order. Okay. So we will continue our recess. (Recess.) CHAIRMAN COYLE: County Manager, do I have a live mic? MR. OCHS: Yes, sir, you have a live mic. CHAIRMAN COYLE: County Manager, can you find me something that we can do in a very short period of time? MR. OCHS: You want to sing a song or something? CHAIRMAN COYLE: Something productive. COMMISSIONER COLETTA: Here's Commissioner Henning. MR. OCHS: Is Mr. Curry still here? Chris, are you ready? MR. CURRY: Sure. MR. OCHS: Why don't we try that item, sir. That was an item for your airport authority portion of the agenda that was moved from the consent to the regular agenda. Item # 14A 1 RECOMMENDATION TO APPROVE AN AFTER -THE -FACT ACCEPTANCE OF A FEDERAL AVIATION ADMINISTRATION (FAA) GRANT OFFER OF $713,565 FOR DESIGN, PERMITTING & BIDDING OF RUNWAY #9 -27 PAVEMENT RESTORATION AT IMMOKALEE REGIONAL AIRPORT AND ASSOCIATED BUDGET AMENDMENTS — APPROVED CHAIRMAN COYLE: All right. MR. OCHS: It was previously Item 16.G.1, now 14.A.1. It's a Page 93 Packet Page -998- nose. aye. 12/11/2012 Item 10.AA. November 13, 2012 COMMISSIONER COLETTA: Our voices are a lot alike. COMMISSIONER HILLER: As long as we don't look alike. COMMISSIONER COLETTA: ON I don't know. Two eyes, a Go ahead. I'm sorry. CHAIRMAN COYLE: All in favor, please signify by saying COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COYLE: Aye. COMMISSIONER HILLER: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN COYLE: Any opposed (No response.) CHAIRMAN COYLE: Okay, etlas Item #11K "ele O unanimously. RECOMMENDATION IEW & APPROVE DOCUMENTS THAT OUTLINE TA-1 ,TIMING, PRIOR GUIDANCE AND APPROVAL REC FOR: THE BEACH RENOURISHMENT PROGRAM; L0 GOVERNMENT FUNDING REQUEST (LGFR) GRA P LICATIONS; AND THE FEDERAL EMERGE AGEMENT AGENCY (FEMA) APPEAL PROCE OTION TO ACCEPT PRESENTATION AND DOCU TS — APPROVED MR. OCHS: It brings us to Item 1 LK on your agenda this afternoon, Commissioners. It's a recommendation to review and approve the documents that outline the history, timing, prior guidance and approvals received for the beach renourishment program, the local government funding request grant application to the state and the Page 165 Packet Page -999- 12/11/2012 Item 10.AA. November 13, 2012 Federal Emergency Management Agency appeal process. Mr. McAlpin will present. COMMISSIONER HILLER: Leo, before you present, can I just make one comment? I think approve is the wrong word. We have to just accept the documents. We can review and accept them, but there's no really approval. It's not an action for approval. MR. OCHS: Thank you, ma'am. MR. McALPIN: For the record, Gary McAlpin, y it i* ager of Coastal Zone Management. Commissioners, the item that you have befor has three parts. The first is to discuss the timing of then or beach renourishment and the planning that went in The second is a response to Bob Krasowski's email, the Fl epartment of Environmental Protection on the local g ent funding request. And the third is to discuss the appea o ss, the FEMA appeals process for Tropical Storm Gabri 'canes Wilma and Katrina. There's a detailed respons ur information packet. The comments I make will be s t ing. Relative to the beac ishment planning and timing, the BCC shared concern s ember 25th that the renourishment was behind schedule. S c lly it was discussed that in the '05, '06 renourishment t was for a six -year design. And if it was for a six -year desig the renourishment -- the next renourishment should hav c ed in 2012. So ing that comment, I want to talk about the -- where we are relate o this item. A tremendous amount of planning, direction, review and discussion has gone into the beach renourishment program. Funds in general funds were budgeted in 2009 to do our planning studies. Planning occurred in 2010. Direction was changed in 2011 and 2012. In 2009, $150,000 was budgeted for conceptual design. And the objective of that budget was to develop a more robust fill section for Page 166 Packet Page -1000- 12/11/2012 Item 10.AA. November 13, 2012 the beaches. Planning occurred in 2010, and it resulted in the conceptual design proposal that we brought to the advisory committees, and ultimately that developed into a conceptual design plan. In 2011, in a joint City of Naples /Collier County workshop, the direction was changed. And in that, both Boards asked us to develop a more long -term -- a better long -term solution and to maxi ize the time between beach renourishment programs. We have had at least 10 planning updates, revie e had a workshop, we've had approvals -- approval had g ach one of the Boards, both the CAC, TDC and Board of Commissioners.. And in that time period we've talked about eptual design, we've talked about the options that we wo sue relative to this beach renourishment. We've talked abo quantities that we were going to use, whether it was going t a ix -year design, whether it was going to be a 10 -year design d extensive discussions on contractor selection and the pe plication. So you can see that w etted this very well with our advisory Boards, the CA DC and also the Board of County Commissioners. Also with thisfd a six -year design project, that's true, but we were accruin ruffs on a iv-year oasis. we were accruing iol million a year at $2 million a year, even at a -- at the end of a six -year de ' s -year period, that would only give us $12 million. And tha is not enough money at this point to conduct a six -year gn beach renourishment. Any discussion about timing, we would have to include Tropical Storm Fay and the impact Tropical Storm Fay had. We did -- Tropical Storm Fay hit the coast less than three years after we completed the '05/'06 renourishment. It occurred in 2008. And Tropical Storm Fay damaged the beaches, and we received $175,000 worth of additional sand, if you would, from FEMA to renourish the beaches. Page 167 Packet Page -1001- 12/11/2012 Item 10.AA. November 13, 2012 But at that point in time the beaches were healthy and they were not in need of immediate renourishment. The quantities that we would have put on the beaches, if we had moved forward in 2008, would have spreading 175,000 cubic yards over eight- and -a -half miles, and it would have not been effective. And we made a decision with the advisory Boards to take a more technically and financially effective solution that coupled ropical Storm Fay with more of a planned renourishment so thaw uld share the fixed costs. So in summary, relative to this item we start lanning in plenty of time to move forward with the next ach renourishment in 2009. We did a lot of pl 010. We had direction that was changed in ' 11 and ' 12, aQ now we're moving forward with a six -year design that will pleted in -- starting at '13 and completing in' 14. Secondly, with -- the secon at I wanted to talk about was local government funding re qu -- and we were asked to comment on an email that sowski sent to the state. We have been cond ocal government funding requests with DEP for the last 10 years without incident. This is a pretty normal part o business, something that we do all the time, asking for fundi Staff, we xtensively with DEP over the past year, and we did that be s is is our money year, if you would. We really needed ve the competitiveness of our proposal and we really wanted t ake the trees, if you would, and get everything we possibly could and identified in this request and make it as competitive as possible. DEP throughout this whole process, they shortened the cycle in terms of submittals, but at the same time they stressed timing and competitiveness. They weren't going to accept any additional information and they wanted to make sure our applications were Page 168 Packet Page -1002- 12/11/2012 Item 10.AA. November 13, 2012 complete as possible. We submitted a 420,000 cubic yard design that was the results of the 2012 survey. We worked real hard to get the 2012 survey done and got the basis for that for that design, and we put it in as 420,000 cubic yards. The BCC will have -- and we talked about this at the time we made our submittal, that the BCC has the opportunity to a prove any grant contract if we qualify. We have -- what we submilLe terms of the local government funding request is consisten i e resolution that you provided, and also is consistenNOMkfie direction that you approved on the September 25th meet' And September 25th meeting was after mittal deadline on the 18th, and so we anticipated what you wmg and the -- in your September 25th meeting you authorized ,000 cubic yard beach renourishment. Submittal is consistqtki that. You recommended we do an upland sand source, an mittal -- as a bidding option. Our submittal is consistent wi It's not part of the scope. We talked to DEP at t ' t in time, and DEP told us that it would not materially aff it didn't increase the cost, and there's no reason to do it if it increase the cost, it would not materially affect the funding r u There was o of of concern at that point in time with whether we were goin o ourish during turtle nesting season or not. Turtle nesting se lowed by the state and the federal government to occur y d. The Board direction for us is to bid this project both ways an look at a project that renourishes during turtle nesting season and a project that does not. So our submittal is consistent with direction from the Board. We also had -- there was a lot of discussion about maps at that point in time that Mr. Krasowski brought up. We are consistent with that. The maps, we did not try to persuade one way or another. We have maps in the proposal that show gaps in there. Those are part of Page 169 Packet Page -1003- 12/11/2012 Item 10.AA. November 13, 2012 attachment one. And maps on Page 3 show beach segments. So we are consistent and maps that were questioned are included in the package. The $5 million in federal funding that was discussed, well is that for de- obligation and why are you showing funds in there that are being de- obligated? Well, it's not for de- obligation. Those are for Tropical Storm Fay. Tropical Storm Fay was authorized a2d we included that in there because that funding could be ava' us. The agency, DEP, gives additional points for fe a icipation and projects. So we included that in there becaus have authorizing PW's for Tropical Storm Fay. Z1% Lastly, there was a lot of discussion tha ed relative to why are you looking at combining with a muni And this was the first time that the Board of County Corn ners has -- it's been discussed and it hasn't been fully dis a with the Board. But we mentioned this and we had discu i th the Board on 4/10, 5/22 and 6/26. We had those disc hey were part of those Board agenda items when we we o and had our presentations to the Board. The DEP gives s' t points for regionalization. Regionalization ha ficant impact. Regionalization we believe has a significant ial to save money. The Board of County Commissione i ing to make the decision on regionalization if it makes sen lastly, if we move forward with regionalization, the only wa ould do it is if it did not delay our renourishment at all. The as a lot of question about the 420,000 cubic yards of sand that would be placed on the beaches. There was discussion, is the volume right. We had a joint workshop with the Coastal Advisory Committee and the Tourist Development Council when we specifically went through how we were going to build the beach. We discussed this item back and forth. The design approach that we used is exactly the Page 170 Packet Page -1004- 12/11/2012 Item 10.AA. November 13, 2012 same as the '05/'06 renourishment. The actually beach performance has validated the -- that we're seeing right now -- has validated the design assumptions that we've made. And lastly, later on today we're going to ask you for money to spend do a peer review so that we can finally put to bed this issue about whether the quantities are correct or not. In the package that we submitted to the state, 515,000 cubic yards of -- was mentioned. Well, the 515,000 cubic yar my the area that we could fit under the template, the beach f It did not have anything to do with the quantities th ere proposing. We were very clear that we were oAjcp1posing 420,000 cubic yards. Our estimate was for 420,000 c ds. And anything above 420,000 cubic yards would have to � roved by the Board of County Commissioners. Lastly, there was some discuss' b t the timing and direction of the fill placement. We're goin g that back to the Board when those decisions are ready to be hey're not ready to be made at this point in time. We do n a all the information, and we'll bring that back to the Board w right to do so. The last item tha to talk about is the FEMA appeal for Tropical Storm Ga ie d how it relates to Hurricanes Wilma and Katrina. Tropical to Gabrielle, the disaster occurred in September of 2001. An li it of background on how things with FEMA work is the es ' that are -- estimates are used to determine initial federal o ' ation. So we go through and we estimate through our surveys the damage that we expect on the beaches. And at that point in time we sit down with the agencies and they authorize that. However, the final costs are determined at close -out and they're determined by a reconciliation process with the close -out specialists, both by FEMA and Florida Department of Emergency Management. We audit, we reconcile, we review and they analyze those and they Page 171 Packet Page -1005- 12/11/2012 Item 10.AA. November 13, 2012 finally make a determination. On this particular project, the U.S. Army Corps of Engineers stipulated that this project would extend three years after the completion of renourishment, and that we also could do no recovery work until we had the permits in place. The permits were not issued until December of 2005. And if we tried to do work prior to that point in time we would be in iolation of the Stafford Act. The recovery work that we looked at was from d to project close -out. So that went all the way to the end of 2 early 2009. In August of 2009 we closed the project o did that with the Florida Department of Emergency Mana specialists and FEMA specialists. It took us two months a this project out. And in the FEMA close -out report as generated in January, 2010, FEMA validated $29 million h f total project costs. They also directed how the close -out a g would be done at that point in time. FEMA, Lake Mary -- are the agency that had jurisdictional control ove canes Wilma and Katrina, process and paid an additional $9. n worth of funding for that event. FEMA Atlanta, whp, h isdictional control for Tropical Storm Gabrielle, refuse y the additional $9.2 million from Tropical Storm Gabriel . We e rst appeal to the nonpayment on 4 -- on April of 2010 th artially successful. MR. HS: For which event? . MR. McALPIN: This is for Tropical Storm Gabrielle, Leo. For Tropical Storm Gabrielle, the first appeal was for -- in April of 2010 it was partially successful. They agreed to pay us the environmental monitoring costs. But they did not agree to pay us the additional sand. The second appeal we made in January of 2011 and the sand was Page 172 Packet Page -1006- 12/11/2012 Item 10.AA. November 13, 2012 denied on that appeal. The FEMA -- it's very important that you understand this: The FEMA denial of Gabrielle appeals had no impact on our budgeting. It had no impact on our budgeting for beach renourishment because we never received any of those monies. We never received the $9.2 million. And at this point in time we're talking about appealing their nonpayment. But what that second appeal for Tropical Storm G did is they recommended that they reexamine the costs for c es Wilma and Katrina. They did that. FEMA de- obligated $11.2 i for Wilma and Katrina, and we have filed our first appeal f cane Wilma and Katrina. We did that in July of 2012. An o ' a Department of Emergency Management has filed their on our behalf to FEMA. Ir So we have been consistent ay through in terms of how we've handled this appeal proc And I'll answer any q 'o that you have at this point on any of the three items. CHAIRMAN C ow many public speakers? MR. MILLS , sir. CHAI 7the E: Two? Let's hear the public speakers. MR. our first public speaker, Mr. Chairman, is Bob Krasowski followed by Marcia Cravens. SKI: Good afternoon, Commissioners. Bob Krasows ' cord. The re's really too much here for me to cover in three minutes, so I'll touch on some of the main points. And maybe if we need to we can have discussions later. I'm going to talk about two of the documents, not the third, not the FEMA. And briefly on the first document, the analysis of the BCC Page 173 Packet Page -1007- 12/11/2012 Item 10.AA. November 13, 2012 comments, what I remember about that meeting where these comments were made was my question, which I thought was kind of mixed in with the discussion at the time, was that the -- how was it that the county staff, when they proposed the umbrella 10 -year plan to us many time over and over explaining that that umbrella 10 -year plan included the six -year plan just doing the Fay renourishment and there was another option in there, that they were keeping them 1 alive until you would make the ultimate decision as to how to go. Now, the 10 -year plan which initially seemed t e ense failed. It fell off the cliff there. You know, chees f its cracker. Due to a large part because we were denied ce ding opportunities. But that didn't happen. So what the or the concern was is that the staff did not do what I as an an citizen have always enjoyed knowing, they did not have ti ency plans if the 10 -year plan didn't go forward. The six- y was just flat on its face without the permits to pull it o . So by pursuing the 10- and forgetting to maintain the permits on our six -year were left where we are right now. When as if we had the s and we're moving on that as well, might have cost ex ey though. If we would have maintained that project as w would have been able to move forward and we would have b n ourishing the beaches now. If I m r. Chair, take a few minutes to address the other docume . C N COYLE: Let's make it brief. MR. KRASOWSKI: Okay, okay. This was supposed to be brief. So this letter I wrote to the DEP, I'm looking for a response from the DEP. I appreciate Commissioner Hiller's bringing this to the staff and asking them to address the questions I raised, along with a few of hers which she'll probably cover later. Let's see. Okay, an important point. As Gary pointed out, Page 174 Packet Page -1008- 12/11/2012 Item 10.AA. November 13, 2012 they've been working on these projects for eight to 10 years with no problem. Okay, I think that should be changed. You should give greater scrutiny and not rely on the CAC and the Tourist Development Council to work through a lot of these issues before they actually come to you, especially in years when we have these big renourishment projects. He claimed that they only gave him two months to p t together this LGFR. But the LGFR isn't such a complicated docW at it requires a whole lot of time. The main thing that has pdated on that are the listings of the properties that are taxed a hoteliers that contribute to the funding of the county's p e funding. I have here a Coastal Planning and En . is scope of work and their contract, and they were supposed4Q p with that. So if they're helping the county with managin issue, then we should have had it done weeks before. An4(Vr1k that should have come to you before the -- before it was su They mentioned again th application was completed and brought to you on 1015. I h a P document that shows it was insufficient. Local gove ding request deficiency checklist. They didn't provide t operation in their application, so that had to fall away. They i e able to address that next year. This also is ' scope of work of CP &E, Coastal Planning and Engineering, t h the staff accomplish. And if we lose money because th ent wasn't provided in a timely fashion and done correctl urately to what is required -- and we're hearing from staff no a haven't heard yet from the FDEP on this -- then we know exactly, who to look towards to why that document wasn't finished with the joint operation with Long Boat Key. I did that. The questions about the financing, the funding, the monies available, 350,000 and five million. That's not about the de- obligation. I just made the point that we were sensitive to federal Page 175 Packet Page -1009- 12/11/2012 Item 10.AA. November 13, 2012 monies because of that de- obligation, and it would have been nice to have it discussed in front of you and vetted that before it went up to the state. Because it's a big mystery to us, at least, okay? And then -- and then I'll end with this, and I appreciate your consideration. There are other things I could say but I'll leave it at this. The sand volume is confusing to me. And that's why I look to the state to see how they describe this. With our six -year jZroject, we lost 77 percent of the -- no, excuse me, we maintained 7 nt of the sand on the beach. So when you look at how mu it would actually take to replace what was lost since 2005, ' something like, I believe, 170,000 cubic yards or less. 0 So they're looking for 420,000 cubic y d much of that is explained by the nourishment -- I can't re r the term, the pre - nourishment, it's called, or somethin that, okay. So I was curious to know where this addition came into play in actually coming back to cover what was years ago. So that's a question that's clear in my mind that I have. And I expect to hear from t t about it. But once again, 170,000 cubic yards, or whatever ber is, it's a pretty small number, to replenish the beach to 6 template. Gary mentioned 500,000 cubic yards to go undde template. So I'm just confused about that and would like t at explained. There ar questions here, but Commissioner Hiller is -- I think she'll o a y talk to that. So thank you very much. I have a lot of stuff ' ead too still, but this will do, and I appreciate the opportun to address you. And oh, I wanted to dedicate my presentation to those who we acknowledged and showed respect to yesterday and the day before. Because usually I'm uncomfortable thanking you for the opportunity to speak because it's not so much you that provided, although you regulate the time, but it's all through the years, all of the veterans that have paid for this opportunity for you to sit there, for me to speak to Page 176 Packet Page -1010- 12/11/2012 Item 10.AA. November 13, 2012 you and for this process, this open process that we sometimes enjoy and sometimes we don't. So I thank you very much again. MR. MILLER: Mr. Chairman, your final registered speaker on this item is Marcia Cravens. MS. CRAVENS: Good afternoon. One of my favorite subjects is to talk about our beaches and our coastal projects. And on this local government funding request, althou 'kh this agenda item is several different items combined within inutes, I can't really cover all of that, so I'm just going to foc o e LFGR. But also point out that statements and assertions EP in the document submitted there are discrepant from nts that were submitted at a Coastal Advisory Committee And, I mean, there seem to be a lot o ent versions going around of how much volume of sand is g ' o be used and what the cost is particularly. And there are -- c cerned about the gap areas. I don't think that that com comprehensive county -wide beach renourishment plan. An ems that there are some areas that seem to be favored and so a that are not favored. And there doesn't seem to be a cle and procedure for how to rank the areas. And as Is oke i , you know, you could take a page from DEP on how they r S. On a Septe 12 Coastal Advisory Committee meeting on these issues a u ach renourishment, it kind of divided it into two items. On a ck haul sand. That indicated it would be placed for a total a f about 25,000 cubic yards of sand. An second item was that there would be approximately 420,000 cubic yards of sand from the borrow site. It goes on to say that this does not address renourishment at Clam Pass Beach Park. And it indicates some gap areas. This also has some additional what it calls -- there's a table with columns in it on a couple of pages, and it has -- the title of that column is Additional Features. And repeatedly it shows Clam Pass Park, and Page 177 Packet Page -1011- 12/11/2012 Item 10.AA. November 13, 2012 under additional features it shows 30,000. While it doesn't say what that 30,000 is, I think the understanding is it apparently is 30,000 cubic yards of sand that would come from Clam Pass to renourish Clam Pass Park in the north area of Park Shore. That is problematic because the permits for dredging Clam Pass are not for using Clam Pass as a sand source, and actually require avoidance and minimization and only dredge Clam Pass to the minimum necessary to keep that pass open. y I would just -- can I show you something on the a ad? Because I always say pictures explain things a lot than words. CHAIRMAN COYLE: Be brief. MS. CRAVENS: Okay. This first item here is the Vanderbilt segment. I don't know how well -- CHAIRMAN COYLE: You n to et on the mic. MS. CRAVENS: Sorry. The first area here is the ilt Beach segment. And you can see there's a yellow bo d there's a red boundary. The yellow boundary is the o roject site. The red line is the area that's critically eroded You can see o t Vanderbilt Beach area all of the project site pretty much -- a at has critically eroded beach. And, you know, of course that's ething that needs to be a priority. This t n is the Naples segment of the beach. And again, it's got a ye e that is the boundary of the project area and a red line which is ' ically eroded beach. You can see again all of the project area is critically eroded beach. But that's not the case with the Park Shore segment. The Park Shore segment has a yellow area for the project site, which kind of ends a little bit south of Clam Pass. But the critically eroded area only comes to about here. So the project area does encompass areas that are not critically eroded, but it has a big gap of Clam Pass Park. Page 178 Packet Page -1012- 12/11/2012 Item 10.AA. November 13, 2012 And one of the things that's not included in the local share from being requested for DEP is that there is a commercial establishment that this has recreational benefit and commercial benefit. Because the Waldorf Astoria is right here. CHAIRMAN COYLE: Marcia, wrap it up. MS. CRAVENS: Okay. Simply stated, I would request that Clam Pass Park and the north section of Park Shore of our each segments, that all of that area be included in our coun ach renourishment planning and not be omitted, because ' r s a conflict of use and it creates a conflict for how Cl s is dredged and purpose and volumes and things like that. Tt..a d be able to be renourished from the off -shore borrow site o aul sand. Thank you. CHAIRMAN COYLE: MR. MILLER: Yes, sir. CHAIRMAN COYLE: COMMISSIONER HILL questions? ,` The 420,000 cubic required as a consequ correct? N- Is that our eaker? hI 4 Hiller? , can I ask you a couple of ;sn't contemplate any of the sand of the inlet management plans, MR. Mc hat is correct. COMMI 1 5w".- R HILLER: Okay. I just wanted to confirm that. r**r M ' `,;Pi'e inlet management plans like the Clam Pass managed plan is going to be handled separately. The sand that's needed for that will be separately accounted for. It's not a discussion, I just want to clarify that. I want to thank you very much for going to the trouble for preparing this summary. And as Bob pointed out, there's too much here to respond in this discussion this afternoon. So at a future time I will respond to each of the segments that you have presented with my Page 179 Packet Page -1013- 12/11/2012 Item 10.AA. November 13, 2012 own comments. I just want to make a few observations -- CHAIRMAN COYLE: Thank you. COMMISSIONER HILLER: -- based on some of the stuff you presented today. I think -- and in all fairness, I think everybody is responsible here. It's really simple. We had a -- in 2006 we had a six-fear permit, okay? Which means that the renourishment which was O&en for that design template was intended to last six years. that prior to the expiration of that six years the county shoul undertaken preparations to be ready with a permit in hand ding in hand to renourish the beaches at the end of that six-y ign. That six -year design as only intended to last six ears. � Y Y And that didn't happen. And that is significant. And notwithstanding all the discussion h qtko there were plans to, you know, develop a, you know, Ion ' g beach, that is irrelevant to the obligation that the county o the public that in six years that beach would be renouris t hatever extend it had eroded, because that was the des' late that was approved under the -- is it 2006, Gary? Am I that? 2006 permit? MR. McALP : /2006 was the last renourishment. COIM MII S HILLER: And it's my understanding that that six -year desi it was actually renewed in 2010, and that that permit is i c . And we can renourish under that permit for another s. And I don't mean the duration of the time that the renouris nt should last but that that permit has been renewed through 2015, if I understand correctly. MR. McALPIN: The permit is valid till -- it's a 10 -year permit. It's valid to 2015. COMMISSIONER HILLER: Right. So it goes to 2015. So we actually had the ability to submit the information under the existing permit and have the dredge in place at this time because we're Page 180 Packet Page -1014- 12/11/2012 Item 10.AA. November 13, 2012 now at the expiration of the six years. And beaches that are critically eroded would be renourished right now. But instead we have a delay as a consequence of what was undertaken at Leo's direction. Because it certainly wasn't Board direction to cause this delay. In fact, I went back to the minutes of the meeting of the county and the city, and nowhere does it state that there should have been a 10 -year design. In fact, the only thing that was discussed as, you know, we should consider hard structures like reefs and r h ught to also be considered is better means of securing state a� ral funding and so forth. So I really don't see that as the direction.y action taken by a group at a workshop, regardless of who' ing that workshop, is non - binding on the Board a Board actually votes at a properly noticed Board meeting that is the direction of the Board. That wasn't the case. So I think the information y u esented is very interesting and very informative and I do ' o respond, which is generally again to summarize, we sho h e had a permit -- we should have already applied under th g permit to renourish the 120,000 cubic yards that have And we still need that reconciliation of the difference betw n e 120,000 cubic yards, which is all that has eroded from 200 e present with respect to the 6 -year design template and 0,000 cubic yards, which is being proposed by Coastal Plarmi d Engineering. C N COYLE: Okay. CO SSIONER HILLER: And then I'll just reserve comment on the rest, and I'll have a few additional comments with respect to this at a later time. And I will address these other, you know, summaries that you have presented at a later time. And I really want to thank you, Gary. I really do appreciate it. CHAIRMAN COYLE: Is there a motion to accept the document in the presentation? Page 181 Packet Page -1015- 12/11/2012 Item 10.AA. November 13, 2012 COMMISSIONER HILLER: I'll make a motion to accept the presentation. COMMISSIONER FIALA: Second. CHAIRMAN COYLE: Motion to accept the presentation by Commissioner Hiller, second by Commissioner Fiala. All in favor, signify by saying aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COYLE: Aye. t '� COMMISSIONER HILLER. Aye. COMMISSIONER COLETTA: Aye. Q CHAIRMAN COYLE: Any opposed, sign. (No response.) CHAIRMAN COYLE: Motion pas animously. You want to go to M now, Co ager, or you want to go somewhere else? Item #11 J RECOMMENDATI0 PROVE AND EXECUTE AN IMPROVEMENT O PARKING AREA AGREEMENT WITH NAPLES C., RELATED TO COST SHARING FOR THE ENT D PARKING IMPROVEMENTS AT NAPLES TH COLLIER COUNTY SHARING 50% OF FINAL IED CONSTRUCTION COSTS, CURRENTLY ESTI D AT $2,600,000 — APPROVED MR. OCHS: You have a 3:30 time certain item, sir. That is Item 1 I .J on your agenda this afternoon. It's a recommendation to approve and execute an improvement to a parking area agreement with Naples Zoo, Incorporated, related to cost sharing of the entrance and parking improvements at Naples Zoo, with county share to be 50 percent of Page 182 Packet Page -1016- YORK. DRAFT -1 August 22, 2012 J. Gary McAlpin, P.E., Director Coastal Zone Management Collier County Government W. Harmon Turner Bldg., Suite 103 3301 East Tamiami Trail Naples, Florida 34112 Re: Discussion of Routine Beach Maintenance FDEP Operating Permits & Relation to 10- Category G Large Projects for Beach Recovery Specific to FEMA-FL-DRs- 13 93, 1602 & 1609 Dear Director McAlpin; 12/11/2012 Item 10.AA. 1310 Cross Creek Circle Suite B Tallahassee, FL 32301 -3728 Tel: 850 -671 -6367 Fax: 850- 877 -7698 www.yorkrsg.com On August 16, 2012 York received instructions from you to address comments regarding "routine annual beach sand maintenance" in FEMA's Final Decision Letter for the 2nd Appeal on DR 1393 PWs 566 & 673 dated May 14, 2012. These comments referenced the FDEM (Grantee) memorandum dated July 10, 2008 that accompanied the Final Inspection Report (FIR) for closeout of DR -1393 PWs (566, 568, 575 & 673). Because FDEM- Tallahassee had management authority only for DR -1393, the FIR presented a general rationale for allocation of eligible costs across the three disasters (DRs 1.3,93, 1602 & 1609) as a logical means to close -out the DR 1393 PWs. The FEMA -PDEM FRO in Lake Mary had authority to manage DRs 1602 & 1609 PWs; these 6 -PWs were closed before those for DR 1393, which were found later to have missed eligible recovery costs. In August 2009, the County had not received reimbursements for the DR -1393 closed PWs and requested the FRO -Lake Mary office to re- inspect all three DRs to prepare revised closeout PWs that reflected an accurate accounting of eligible costs. As part of that invoice /cost validation process, a revised spreadsheet of the ineligible County cost for routine annual beach maintenance was prepared. The four -year estimated maintenance cost (9 -2001 to 9 -2004) of $1.9 million was then subtracted from the total of all eligible invoices validated by the FEMA -FDEM specialists for the three disasters. Packet Page -1017- 12/11/2012 Item 10.AA. 0 YORK. In conclusion, FEMA's comments addressing annual sand maintenance are not entirely correct. The new versions of the PWs prepared for closeout provided an accurate accounting of eligible recovery costs as authorized in 44 CFR Subpart H §206.223(a)(1) and §206.226(d) and 0); and, as required for environmental compliance in 44 CFR Part 10. A more detailed explanation for estimating the four -year ineligible cost of routine beach sand maintenance is attached to this letter with supporting exhibits. As you know, all recovery work to repair damages to the four engineered beaches was performed under two Joint Coastal Construction Permits (Mainland and Marco Island beaches) issued in 2005 -2006. The County filed these two permit applications immediately following DR 1393 as authorized in the four PWs for NEPA compliance. No additional permitting was required for DRs 1602 and 1609 because the scope of work was included in the permits approved for DR 1393, saving time, effort and expense to recover from these two major disasters. Beach recovery work was completed in 2006 and all 10 -PWs were completed in 2010 following 3 -years of post- construction biological monitoring. The Coastal Zone Management Office's management of the 3- disasters FEMA recovery process complied with all federal and state environmental laws and performed the many complicated tasks efficiently. Beach nourishment projects can experience costs of $1 million per mile, which would be about $20.6 million for the four County engineered beaches. Under different circumstances, the total recovery costs for the 3 major disasters quite possibly could have exceeded $60 million. By comparison, the final total eligible validated cost (after deducting maintenance) for the 3 disasters was $31.7 million. We appreciate the opportunity to be of assistance to the County in this matter. Regards, Bruce French Sr. Project Manager, York RSG, Inc. Attachments: Report 6- Exhibits Packet Page -1018- 12/11/2012 Item 10.AA. i YORK. Description of Routine Beach Maintenance FDEP Operating Permits & Relation to 10- Category G Large Projects for Beach Recovery Specific to FEMA- FL -DRs- 1393,1602 & 1609 Prepared for Collier County, FL — Coastal Zone Management Federal Disaster Declarations: DR -1393, DR -1602, 1609 Date: August 23, 2012 1. Basis of Ineligible Routine Beach Sand Maintenance The rationale for determining routine beach sand maintenance costs as ineligible is embodied in the description of "Force Account" presented in the: Public Assistance Guide FEMA 322/October 1999 & /June 2007; and, FEMA Policy 9525.7 Labor Costs - Emergency Work (7/20/2000). Specific to Collier County's Category G large beach recovery projects, annual replacement of up to 50,000 cubic yards of sand is authorized in the FDEP Operating Permits issued in 1999 to control "normal" erosion of the four public, engineered beaches: Mainland Beaches- Vanderbilt, Park Shore & Naples; and, Marco Island Beach. The total annual amount could be installed at one beach or as needed at each of the four beaches. Therefore, all costs associated with routine maintenance are ineligible, non - disaster activities that are the financial responsibility of the County. 2. Codes and Standards Defined 2.1. Public Assistance Guide, FEMA 322 /October 1999 & /June 2007 and Applicant Handbook, FEMA 323 /September 1999: Permanent Restoration of Facilities A. GENERAL ELIGIBILITY - Facilities will be restored on the basis of design, capacity and function of such facilities as they existed immediately prior to the disaster and in conformity with applicable standards. - Codes and Standards must be in writing, apply to the type of work, and be in place and enforced prior to the disaster declaration. They must apply uniformly to all similar types of facilities. Packet Page -1019- 3 12/11/2012 Item 10.AA. '000, �-. YORK. 44 CFR 206.226 Restoration of damaged facilities. Revised as of October 1, 2000 (codified) 2.2. Work to restore eligible facilities on the basis of the design of such facilities as they existed immediately prior to the disaster and in conformity with the following is eligible: (b) Standards. For the costs of Federal, State, and local repair or replacement standards which change the predisaster construction of facility to be eligible, the standards must: (l) Apply to the type of repair or restoration required; (Standards may be different for new construction and repair work) (2) Be appropriate to the predisaster use of the facility; (3)(i) Be found reasonable, in writing, and formally adopted and implemented by the State or local government on or before the disaster declaration date or be a legal Federal requirement applicable to the type of restoration. (ii) This paragraph (b) applies to local governments on January 1, 1999 and to States on January 1, 2000. Until the respective applicability dates, the standards must be in writing and formally adopted by the applicant prior to project approval or be a legal Federal or State requirement applicable to the type of restoration. (4) Apply uniformly to all similar types of facilities within the jurisdiction of owner of the facility; and (5) For any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect. (h) Beaches. (1) Replacement of sand on an unimproved natural beach is not eligible. (2) Improved beaches. Work on an improved beach may be eligible under the following conditions: (i) The beach was constructed by the placement of sand (of proper grain size) to a designed elevation, width, and slope; and (ii) A maintenance program involving periodic renourishment of sand must have been established and adhered to by the applicant. -------------------- 2.3. Codes and Standards of Engineered Beaches Codes and standards for beaches can be defined as the construction specifications authorized in the initial government permit issued for establishing an engineered beach. A beach is that area of the coastal zone lying between the upland dune line and the offshore depth -of- closure. In general the slope and elevation of the beach at state - established range monuments are determined during the design phase. Grain size and color may be included in the specifications. The design specifications are intended to provide a beach that is stable under normal weather conditions and to afford the greatest storm protection of adjacent improved Packet Page -1020- 4 12/11/2012 Item 10.AA. Aw YORK. property. After construction, a state - approved operating permit is issued to the local government for installing a limited volume of sand annually to maintain the design elevation profile of the engineered beach. An engineered beach is not resilient to major disasters, such as tropical storms or hurricanes, which may cause sand erosion (lost from the system) that exceeds the permitted annual maintenance volume and the ability of the design tolerance to recover the elevation profile. 3. Category G Large Recovery Project Period (Sept. 13, 2001 to Jan. 2010) 3.3. Start Date for Adjusting Ineligible Routine Beach Sand Maintenance T.S. Gabrielle made landfall on September 13, 2001 and became a federal declared disaster on September 28, 2001. The four engineered beaches incurred damages and were declared eligible for federal assistance under FEMA- FL- DR1393. 3.4. Scope of Eligible Work Post- disaster elevation profile surveys were performed to provide a general, static estimate of sand volume lost by coastal erosion. 'These estimates were provided as "samples" for documenting damage in each of the 4 -PWs 566, 568, 575 & 673. Disaster- initiated erosion continued until completion of coastal construction in 2006. The generic text for the Scope of Eligible Work included the following statements: • To restore the beach to predisaster cross section... The actual cost of this project will be determined by bid process and availability of the source material (offshore or inland borrow area). 3.5. Environmental Compliance FEMA is authorized by the Stafford Act to enforce the requirement for environmental compliance as directed in 44 CFR Part 10, which is integral to defining the eligible scope of work. The FEMA Regional Environmental Officer assured consistency with this requirement by including in the Category G PWs the following text: JUNE 24, 2004 FEMA'S ENVIRONMENTAL LIAISON OFFICE HAS REVIEWED THE FOLLOWING EMERGENCY BERM PROJECT: THE FOLLOWING GRANT CONDITIONS All-PLY: 1. ANY CHANGE IN THE ORIGINAL SCOPE OF WORK REQUIRES THAT THE APPLICANT NOTIFY FL EMERGENCY MANAGEMENT (WHO WILL NOTIFY FEMA), AS WELL AS ANY AGENCY FROM WHICH THE APPLICANT RECEIVED A PERMIT. Packet Page -1021- 12/11/2012 Item 10.AA. i YORK. 2. THE APPLICANT IS RESPONSIBLE TO OBTAIN ALL RELEVANT LOCAL, STATE AND FEDERAL PERMITS. NO CONSTRUCTION ACTIVITIES SHALL COMMENCE PRIOR TO RECEIVING SAID PERMITS. AT A MINIMUM THE APPLICANT SHOULD CONTACT: I. US ARMY CORPS OF ENGINEERS (404,401 (STATE PERMIT), 402 (NPDES), OR NATIONWIDE) 2. US FISH AND WILDLIFE (THREATENED AND ENDANGERED SPECIES) 3. STATE FISH AND WILDLIFE AGENCY 4. STATE NATURAL HERITAGE AGENCY (THREATENED AND ENDANGERED SPECIES) 5. STATE COASTAL ZONE MANAGEMENT OFFICE (FOR CONSISTENCY DETERMINATION) 3. ALL ACTIVITIES ASSOCIATED WITH THE PROJECT MUST COMPLY WITH ALL CONDITIONS SET FORTH IN ANY REQUIRED LOCAL, STATE, OR FEDERAL PERMITS. AS A REMINDER, APPLICANTS FOR FEMA FUNDING MUST COMPLY WITH ALL APPLICABLE LOCAL, STATE, TRIBAL, AND FEDERAL ENVIRONMENTAL AND HISTORIC PRESERVATION LAWS, REGULATIONS, PERMITS, AND CONDITIONS IN ORDER TO RECEIVE FEMA FUNDS FOR THEIR PROJECTS. FAILURE TO COMPLY WITH THESE REQUIREMENTS MAY JEOPARDIZE FEDERAL FUNDING. FOR ADDITIONAL INFORMATION CONTACT BRETT BOWEN, DEPUTY ENVIRONMENTAL LIAISON OFFICER DR -1393 AT (770) 220 -5387. NEPA Level of Review- NEPA review is complete •• GBOWEN• The project is Categorically Excluded under 44 CFR 10.8(4): 15. Repair, replace, restore, retrofit, upgrade to current codes and standards, or replace a facility (xv) Documentation Complete 06/24/2004 Standard Conditions 1. Any change to the approved scope of work will require re- evaluation for compliance with NEPA and other Laws and Executive Orders. 2. This review does not address all federal, state and local requirements. Acceptance of federal funding requires recipient to comply with all federal, state Packet Page -1022- 6 12/11/2012 Item 10.AK ,-OA� YORK. and local laws. Failure to obtain all appropriate federal, state and local environmental permits and clearances may jeopardize federal funding. 3. If ground disturbing activities occur during construction, applicant will monitor ground disturbance and if any potential archeological resources are discovered, will immediately cease construction in that area and notify the State and FEMA. 3.6 End Date for Adjusting Ineligible Beach Sand Maintenance The1irrme..period bt:adjusting= the,ineligible beact sand maintenance period of4 years is ��r_ -� L -. .L- 1._JC_it �.a _.__C.71T. =1 -A Aft" %;Y'('^'"' "'!�_` 1+►.�- .1nAti `^ t ,.. <- r ^Y"" ... declaration date =of hurricane Katrina (DR 1602) on August -28, 2005. Public Assistance administrative and NEPA- limited work activities during this period included: • Erosion estimates from post- disaster elevation profile surveys for DR 1393 • Ineligible annual beach sand maintenance authorized by FDEP operating permits • County appeal and FEMA approval of PW eligibility • County's Environmental Permit Application to USACE & FDEP Jan. 24, 2004 • USACE permit application review requirement for an Environmental Assessment • FEMA environmental compliance review through June 24, 2004 • FDEP approved permits for inlet sand dredging -beach nourishment Jan-Feb. 2005 • Post - disaster elevation profile surveys for DR 1602 in Sept. 2005 • USACE approved coastal construction permit Sept. 20, 2005 (offshore sand) • County bid process for offshore dredge contracts Oct. -Dec. 2005 • DR 1609 Hur. Wilma federal declaration Oct. 24, 2005 • Approved permits (modified to include DR 1393, 1602 & 1609 damages) sent on Jan. 1, 2006 to FEMA Region 4- Atlanta for environmental compliance review and approval of change in scope of work. • FDEP approval of USACE coastal construction permits (modified) Jan. 2006 Supporting documentation for these activities are contained in the applicant's file maintained by FEMA and FDEM. No routine beach sand maintenance was included in the estimation of ineligible work after the sequential impacts from DRs 1602 and 1609. This was due to the countybeing engaged in numerous activities to recover from DR 1393 and the immediate need for modifying the USACE -FDEP coastal construction permits to include damages from DRs 1602 and 1609. Offshore sand dredging contract work commenced in 2006 to complete recovery of the four engineered beaches to the design elevation profiles (codes and standards) authorized in the 10 -PWs for the three disasters. Packet Page -1023- ^� -_ 12/11/2012 Item 10.AA. YORK. 3.7 End Dates of 10- Category G PWs Included in the approved Joint Coastal Construction Permits for the 3- mailand beaches and for the Marco Island Beach were numerous conditions from the USACE, USFWS, USMMS, and FDEP. The condition submitted by the USFWS for 3 -years post construction biological monitoring extended the eligible PW work completion to January 2010 for Mainland beaches and to May 2010 for Marco Island beach. 4. Procedure Used to Estimate Ineligible Routine Beach Sand Maintenance Costs Frionto Iandfali, of T tS Gabrielle on September 13�;w200:1, the ,County maintained the foul engineered beaches in compliance with the FDEI' a�ipia�red opetating"permits issued in `1999. These permits allowed up to 50,000 cubic yards of inland- sourced, truck- hauled sand to be installed on any of the four beaches as needed to maintain the design elevation`` profile. The County hired professional engineers to oversee the beach sand maintenance work of contracted companies including Jahana Industries, AgqoliirBarber & Brundage, and STD Enterprises of Naples. The County issued the last pre- disaster Purchase Order #105968 to Agnoli for the period June 2001 to January 2002, which teas completed prior to September 13, 2001; it was °not included in the County "s request for FEMA reimbursement. See partial list of Purchase Orders in Exhibit 6. Although truck- hauling of inland sand for routine beach maintenance commenced again on October 10, 2001 (Exhibit 6) related purchase orders issued to many vendors contained both eligible and ineligible work. Therefore, it was decided to estimate a reasonable 4 -year maintenance cost and subtract the ineligible amount from the final list of validated eligible costs at PW closeout. Maintenance- related invoices for work performed in 2001 were used to establish the costs for disaster - ineligible maintenance work performed by the County in 2002: Truck- hauled sand, cubic yard $ 4.34 Grading & Tilling, avg, annual cost $ 60,000.00 Surveyor (elevation profiles), annual fee $ 50,000.00 Engineering /Management, annual fee $ 75,000.00 The County's annual Force Account labor cost for planning, contracting, inspection, invoice payment and reporting was estimated at $ 40,000.00 An assumed annual inflation rate of 6% was used to estimate the cost of the above items for 2003, 2004 and 2005. For the FDEP maximum permitted volume for 4 -year beach sand maintenance of 200,000 c lbic yards (inland- sourced) the construction cost was estimated at $949,291.67; the County's Force Account costs plus related contract services were estimated at $1,043,345.92. Packet Page -1024- 12/11/2012 Item 10.AK YORK. T e'resulting total 4 -year estimated annual routine beach maintenance cost of $1.992,637.59 was tprorated for each of the four beaches based on their respective 11 11 1 coastline aniles to total beach miles. The spreadsheet prepared as an attachment to the FDEM- Tallahassee Final Inspection Report for DR 1393 PWs of July 10, 2008 is attached as an Exhibit. In August 2009 following validation of eligible invoices for the completed 10 -PWs, FEMA -FDEM FRO specialists and FEMA Technical Advisor re- allocated these ineligible maintenance costs by the percent disaster - erosion as estimated in the CP &E Report, January 2010. 5. List of Exhibits 1. Public Assistance Guide FEMA 322 /October 1999 & /June 2007; and, 2. FEMA Policy 9525.7 Labor Costs - Emergency Work (7/20/2000) 3. Applicant Handbook, FEMA 323 /September 1999 4. 44 C.F.R. Revised as of October 1, 2000 (codified) 5. Partial List of Vendor Purchase Orders for Pre- and Post - disaster routine beach sand maintenance work 6. Spreadsheet Prepared for FDEM -FIR dated July 10, 2008 and used to determine ineligible beach sand maintenance costs for 3 major disasters during the joint PW closeout, August 2009. Packet Page -1025- 9 YORK. DRAFT -3 August 15, 2012 J. Gary McAlpin, P.E., Director Coastal Zone Management Collier County Government W. Harmon Turner Bldg., Suite 103 3301 East Tamiami Trail Naples, Florida 34112 12/11/2012 Item 10.AA. 1310 Cross Creek Circle Suite B Tallahassee, FL 32301 -3728 Tel: 850- 671 -6367 Fax: 850- 877 -7698 www.yorkrsg.com Re: Compilation of Federal Documents Governing Disaster Recovery 10- Category G Large Projects for Beach Recovery Specific to FEMA- FL -DRs- 1393, 1602 & 1609 Dear Director McAlpin; Cln -1til�F 31, 2012 York received instructions from you to identify and compile relevant federal laws, regulations and policies that frame the body of actions for FEMA's administration of federal assistance provided to Collier County for FEMA -DR -1609 PW 2700 Naples Beach, PW 2704 Park Shore Beach and PW 6733 Marco Island Beach. This request is related to the County's receipt of FDEM Invoice W -122 dated July 23, 2012 for reimbursement of overpayments on the three PWs. We have completed the assigned task with the compilation of documents presented in 15 Exhibits that pertain to the FEMA Public Assistance program and more specifically to Category G beach recovery projects. As a consequence of this task, we believe that the federal laws and rules in effect on the declaration date of DR -1393 comprise the body of federal authorizations governing administration of the 10 -PWs for beach recovery work (3 mainland beaches and the Marco Island beach) through the completion of construction, post -3 -year biological monitoring and final joint closcout by FDEM and FEMA. This position is directly associated with the fact that damages caused by the three federal disasters received USACE final approval (2005 -06) for the scope of work in two joint coastal construction permits, which was a result of the County's permit application immediately following the declaration of DR -1393. Information provided in the attached Exhibits supports the fact that the County performed all beach recovery work in compliance with these federal laws, regulations and policies. To this end, York advises the County to seek an independent legal opinion in addition to expert testimony from a professional engineer specializing in Florida beach renourishment and management. We appreciate the opportunity to be of assistance to the County in this matter. Regards, Bruce French Sr. Project Manager, York RSG, Inc. Packet Page -1026- 12/11/2012 Item 10.AA. YORK. Compilation of Federal Documents Governing Disaster Recovery 10- Category G Large Projects for Beach Recovery Specific to FEMA- FL -DRs- 1393,1602 & 1609 Compiled for Collier County, FL — Coastal Zone Management Federal Disaster Declarations: DR -1393, DR -1602, 1609 Date: August 9, 2012 1.0 Government Program Administration All federal, state and local governments are required to administer programs authorized in Laws, Rules, Regulations and Guidance Documents. Specific procedures on how to conduct the business of government are dependent on the effective dates of these legal authorizations; subsequent changes and revisions to these legal procedures are not retroactive, but specifically apply to government activities performed after the new effective date(s). 1.1. Tropical Storm (T.S.) Gabrielle became a federally- declared disaster on September 28, 2001. In Collier County, four engineered public beaches (Vanderbilt, Park Shore, Naples and Marco Island) incurred erosion damage and were determined by FEMA to be eligible for federal funding under the Public Assistance Program. Recovery work is eligible for reimbursement from the "official" date of landfall, which is stated by FEMA as September 13, 2001, through the date of work completion. For these four Category G beach recovery projects the completion date is specified by the USACE Permit (issued September 20, 2005) Specific Conditions (listed by the USFWS) as being 3 years after the construction completion date, which allows for mandatory biological monitoring of the work area (generally ending in 2010 - 2011). 1.2. During the USACE permit review process for NEPA compliance required by the Stafford Act, the estimated scope of work for six Category G PWs under DRs- 1602 & 1609 were included within the final approved scope of work authorized in the two USACE joint coastal construction permits (3- mainland beaches & 1- Marco Island beach) issued 2005 -06. 1.3. Laws, Rules, Regulations and Guidance Documents in effect on the federal declaration date for T.S. Gabrielle, DR -1393 govern all FEMA - eligible work to be performed by Collier County as the PA applicant. These authorizations are to be adhered to throughout the implementation of each individual Project Worksheet (PW) issued to Collier County and govern the procedures for the joint FEMA -State PW closeout for determination of final eligible scope of work and cost reimbursement. Subsequent changes or revisions to these legal documents after the declaration date of September 28, 2001 do not apply to Collier County's performance of the ten Category G PWs for beach recovery work (DRs -1393, 1602 & 1609). Packet Page -1027- 2 I 12/11/2012 Item 10.AA. i YORK. 1.4 A 1al of 10 Category G PWs were issued for the four Collier County public beaches as listed in the following table: Packet Page -1028- 3 PWs Beach: DR -1393 DR -1602 DR -1609 Vanderbilt 568 1110 2698 Park Shore 575 2704 Naples 566 1109 2700 Marco Island 673 6733 Packet Page -1028- 3 12/11/2012 Item 10.AA. YORK. 1.5 A key element of implementing the FEMA - approved Scope of Work for the 10 PWs is th_e'timeline of events directly related to the three disaster. declaration` dates, USACE offshore sand permitting and construction and post- monitoring: DR -1393 September 28, 2401 Truck:Hauled Sand- Mult- Vendors 03ciober 10, 2001 end May 23, 2047 " FEMA -REO Review June 24, 2004 Snyder -Inlet Sand Wiggins Pass January 13, 2005 City of Naples - inlet Sand Doctors Pass February 22, 2005 DR -1602 August 28, 2005 UWE Permit September 20;'2005 DR -1609 October 24, 2005 GLDD= .,Offshore Sand 3- Mainland Beaches necember 2', 2005 end August i 7 2006 Notification of FEMA for Permitted Scope of Work January 1, 2006 SubAqu- Offshore Sand Marco Beach September 5, 2006 end May 4, 2007 Inlet Sand - Wiggins Pass December 6, 2006 3 -yr Bio- Monitoring Mainland January 2007 through December 2010 Marco June 2007 through May 2010 FEMA -State Scope & Invoice Validation August 3, 2009 for accurate accounting of costs for 3- DRs -10 PWs FEMA Payments 2011, 2012 & Appeals on -going Notes: 1. Truck' - hauled sand was installed at 50,000 cubic yards annually as authorized in the two FDEP operating permits issued for the mainland and Marco Island beaches prior to DR -1393. The total 4 -year cost estimated at $1.9 million was paid 100 percent by the County and was not included in the Final Closeout versions of the 10 -PWs.: Packet Page -1029- 4 12/11/2012 Item 10.AA. i YORK. [ Notes Continued] 2. Inlet sand dredging and deposit on "down -drift" mainland beaches was performed by the County under FDEP authorized permits issued after the declaration date of DR -1393. Dredging was required to recover the permitted designed depth specified for safe navigation following excessive sand deposition resulting from DRs -1393, 1602 and 1609. 3. Completion of contractor work for offshore dredging performed under the two joint USACE coastal construction permits did not represent the end date of the 10 -PWs. PW- eligible, post - dredging work included grading to engineered beach design - elevation profiles and disking for sand density suitable for turtle nesting. The USACE permit conditions for 3 -years post - construction biological monitoring began after these construction tasks were completed. 4. All 10 -PWs included in the scope of work the authorization to restore the specific beach to the engineered design specification for the elevation profiles existing prior to disaster damage. The total volume of sand was "provided from three sources: 'infand truck- hauled sand, storm- deposited inlet- dredge sand and offshore sand deposits. As authorized in the 10 -PWs, ail. works performed restored the beaches to DR- 139..1 "pre.- disaster cross sections ", which are the "current codes and standards" as required by FEMA for compliance. Additionally, as stated by the REO in each of the 10 -PWs: "the actual cost of this project will be determined by bid process and availability of the source material (offshore or inland borrow area) ". FEMA and FDEM validated all costs and determined the eligible scope of work at the joint Final Closeout on August 3, 2009. 5. The Final Closeout versions of the 10 -PWs were prepared in advance of completing the NEPA- required, 3 -years biological monitoring.:ln lieu of.actual invoiced costs for monitoring, FEMA specialists estimated the cost for this contractual work. Packet Page -1030- 5 12/11/2012 item 10.AK YORK. 1.6 Summary of Validated Invoices for completing the eligible scope of work required by the 10 -PWs performed August 3, 2009 during Final Closeout: $ 30,496,999.96 Vendor Costs $ 28,612.00 Permits $ 844,800.00 Monitoring $ 466,093.89 PM $ 1,917,455.21 Inlet Sand Dredging $ 33,753,961.06 Total Cost of 3 -DRs $ (1,992,637.59) Less Truck - hauled Sand $ 31,761,323.47 Collier's Gross Cost of 3 -DRs Validated Costs FEMA 75% / 100% State 12.5% Collier 12.5% Final Est 51.66% Total Est 1393 = $ 16,408,538.18 $ 12,306,403.64 $ 2,051,067.27 $ 2,051,067.27 Closeouts 48.34% Total 1602 +1609 = $ 15,352,785.29 $ 15,352,785.29 $ - $ - 100.00% 10 PWs = $ 31,761,323.47 $ 27,659,188.93 $ 2,051,067.27 $ 2,051,067.27 Less Colliers Share= $' 2,051,067.27 Gross to Collier = $' 29,710,256.20' Less FDEP Reimb.= $ 6,643,979.22' = F.S.161 Trust Funds Rev. 8 -27 -2009 FEMA /FDEM = Net to Collier= $ 23,066,276.98 =10 -PWs Note: Subtraction of FDEP fiuids that were provided from the state's trust fund authorized by F.S. 161 represents a duplication of benefits. The amount provided by FDEP to the County for FEMA- eligible PW recovery work significantly exceeded the federal -state cost share established in the disaster agreements for DRs -1393 (75 % -25 %) and for 1602 & 1609 (100 % -O %). Following the Final Closeout and reimbursement of eligible costs ($29.7 million) to the County, the County is to reimburse the state for the duplicated amount. This legal compliance procedure is authorized in the Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 93 -288 Sec. 312(a); 44 CFR 13.24 and 206.226(a); and, as explained in FEMA Policy 9525.3, effective October 30, 2000. Packet Page -1031- 6 12/11/2012 Item 10.AA. '0.010 �-' YORK. 2.0 index of Exhibits 1 Disaster Relief Act of 1974, Public Law 93 -288, 93rd Congress, S. 3062, May 22, 1974 2 U.S. Code 2001 Title 42- The Public Health and Welfare 3 44 C.F.R. Revised as of October 1, 2000 (codified) 4 FEMA's NEPA Desk Reference, Version ill — May 14, 1996 5 Possible Consequences of Not Following National Environmental Policy Act Process 6 FEMA Environmental Policy Package 7 FEMA 322 /Modified 2001 Public Assistance Guide 8 FEMA 323/1999 Applicant Handbook 9 FEMA 321/2001 Public Assistance Polity Digest 10 Archived List of FEMA 9500 Series of Policies forthe Public Assistance Program, 9 -22 -2004 11 Archived List of FEMA 9500 Series of Policies forthe Public Assistance Program, 9 -23 -2011 12 Disaster Assistance Fact Sheet DAP9580.8 Eligible Sand Replacement on Public Beaches Effective October 1, 2009 13 DHS Management Directives System MD Number: 5100.1 Issue Date: 4/19/2006 14 42 USC CHAPTER 68 - DISASTER RELIEF U.S. House of Representatives Analysis January 03, 2012 (112 -90) 15 CEF for Large Projects, Instructional Guide V2.1, September 2009 Packet Page -1032- 7 12/11/2012 Item 10.AK EXHIBIT 15 CEF for Large Projects, Instructional Guide V2.1, September 2009 Comment: Although the CEF became available after DR 1393, Collier County's performance of the Category G 10 -PWs was consistent with the Instructional Guide. Relevant Sections: 1.1 FEDERAL ASSISTANCE FOR DISASTER DAMAGE Para.4 - For large projects, this estimate is used to determine the initial Federal obligation of funds for the work, but it is not necessarily the final cost that will be approved for the project. Rather, the final cost is based upon the reasonable, actual costs incurred by the applicant in completing the eligible scope of work. Actual costs are determined through a reconciliation process initiated by the State when the work is complete. Discrepancies between the initial estimate and the final cost are addressed through the obligation (or de- obligation) of Federal funds. 2.6 STEP 6 — RECONCILE COSTS WHEN PROJECT IS COMPLETED (Page 2 -7) Upon completion of a large project, the grantee must submit supporting documentation and an accounting of all eligible costs incurred for the project to FEMA for a final determination of eligible project costs. The grantee must certify that the reported costs were incurred in the performance of eligible work and that the project was completed in accordance with FEMA approval. The grantee may perform inspections and audits as it deems necessary to make this certification. FEMA will review the reported costs to determine if the costs are eligible, and may conduct inspections or audits as necessary to verify eligible costs. Upon completing this review, FEMA will reconcile final costs for eligible work against the original estimate and prepare a supplemental PW to adjust the approved amount upward or downward as necessary. If additional funds are approved by FEMA, the grantee may then make an additional drawdown of any funds remaining for that project. Within 90 days following completion of the last large project, the grantee must submit a final progress report that includes the final amount paid for each large project. If FEMA determines that the grantee has drawn Federal funds for ineligible costs, then the grantee must return those funds to FEMA. Refer to Appendix E (Standard Operating Procedure — CEF for Large Projects) for additional information relating to the cost reconciliation process. Appendix E (excerpts pages 3 & 4) �► When applicants complete large projects and submit project documentation to the State and FEMA, FEMA will reconcile actual eligible costs against estimated costs, except for alternate and improved projects. If the Project Specialist requires assistance with any part of the CEF, the PAC Crew Leader will request a Technical Specialist (a cost estimator, engineer, environmental specialist, historic preservation specialist, insurance specialist, etc.) from the Ordering Specialist. Refer to the CEF for Large Projects Instructional Guide for more detail. Packet Page -1033- 12/11/2012 Item 10.AK EXHIBIT 15 CEF for Large Projects, Instructional Guide V2.1, September 2009 Comment: Although the CEF became available after DR 1393, Collier County's performance of the Category G 10 -PWs was consistent with the Instructional Guide. Relevant Sections: 1.1 FEDERAL ASSISTANCE FOR DISASTER DAMAGE Para.4 - For large projects, this estimate is used to determine the initial Federal obligation of funds for the work, but it is not necessarily the final cost that will be approved for the project. Rather, the final cost is based upon the reasonable, actual costs incurred by the applicant in completing the eligible scope of work. Actual costs are determined through a reconciliation process initiated by the State when the work is complete. Discrepancies between the initial estimate and the final cost are addressed through the obligation (or de- obligation) of Federal funds. 2.6 STEP 6 — RECONCILE COSTS WHEN PROJECT IS COMPLETED (Page 2 -7) Upon completion of a large project, the grantee must submit supporting documentation and an accounting of all eligible costs incurred for the project to FEMA for a final determination of eligible project costs. The grantee must certify that the reported costs were incurred in the performance of eligible work and that the project was completed in accordance with FEMA approval. The grantee may perform inspections and audits as it deems necessary to make this certification. FEMA will review the reported costs to determine if the costs are eligible, and may conduct inspections or audits as necessary to verify eligible costs. Upon completing this review, FEMA will reconcile final costs for eligible work against the original estimate and prepare a supplemental PW to adjust the approved amount upward or downward as necessary. If additional funds are approved by FEMA, the grantee may then make an additional drawdown of any funds remaining for that project. Within 90 days following completion of the last large project, the grantee must submit a final progress report that includes the final amount paid for each large project. If FEMA - determines that the granteehas drawn Federal funds for ineligible costs, then the g antee must return those Binds to FEMA. Refer to Appendix E (Standard Operating Procedure — CEF for Large Projects) for additional information relating to the cost reconciliation process. Appendix E (excerpts pages 3 & 4) • When applicants complete large projects and submit project documentation to the State and FEMA, FEMA will reconcile actual eligible costs against estimated costs, except for alternate and improved projects. If the Project Specialist requires assistance with any part of the CEF, the PAC Crew Leader will request a Technical Specialist (a cost estimator, engineer, environmental specialist, historic preservation specialist, insurance specialist, etc.) from the Ordering Specialist. Refer to the CEF for Large Projects Instructional Guide for more detail. Packet Page -1034- 12/11/2012 Item 10.AA. Co ter C0141Kty Public Services Division Coastal Zone Management July 26, 2012 Mr. Bryan W. Koon, Director Florida Division of Emergency Management 2555 Shurnard Oak Boulevard Tallahassee, FL 32399 -2100 Mr. Leo Lachat Florida Department of Emergency Management Bureau Chief - Recovery 2555 Shumard Oak Boulevard Tallahassee, FL 32399 -2100 Mr. Robert M. (Bob) Seibert Lead Deputy Public Assistance Officer Florida Division of Emergency Management 5900 Lake Eleanor Drive Orlando, Florida 32809 RE: Request forReconsideration of the Second Appeal Denial of TS Gabrielle - DR -1393; PW's 0566 and -0673. Dear Mr. Koon, Lachat and Seibert: On May 14,2012, Collier County received notification of Denial -from Ms. Deborah Ingram, Assistant Administrator of FEMA's Recovery Directorate. Collier County believes that this denial was made in error and that the FEMA analysis did not take into account the following facts: 1. The Denial letter from FEMA voiced opinions to refute our scientific and expert reports. Our reports were based on expert analysis from Professional Engineers with significant coastal experience. FEMA provided no technical evidence from experienced or Professional Engineers experienced in coastal engineering matters to refute our information. FEMA "Beach Expert" review and approved our position when the PW's were modified. 2. Original PW's authorized by FEMA was comprised of generic text. The initial language and scope was an estimate that was to be reconciled at contract approval and close out. 3. The estimated initial sand volumes could only be achieved if recovery work commenced immediately. Federal and state permitting were not in place at this time and if the project proceeded without permits, it would be a federal violation of NEPA Compliance and the Stafford Act. na Cogger County coastal Zone Management- W. Harmon Turner Building, suds Packet Page - 1035 - � Naples, Florida 34112.239 -252 -2966 - FAX 239.252 -2950 u- w rri iomm, not1m2at217nnomnnanmmnnt 12/11/2012 Item 10.AA. Request for Reconsideration of 2 "d Denial July 26, 2012 Page 2 of 2 4. Between the date of the Federal Declaration and the date of the permits, the county operated in an Emergency Protective Mode. Placementof sand by emergency truck haul and had sand bypassing are:disasterrelatedactivities and not normal beach maintenance. S. The 50,000 cy /yr maintenance program that was setup, documented and approved prior to Tropical Storm Gabrielle was ignored and dismissed in FEMA's denial letter. Again, an opinion without due consideration. Sand bypassing is a source of repairs that is a FEMA encouraged policy as documented by FEMA Policy 9580.8. 6. The denial letter stated "much uncertainty of erosion ". Technical reports and yearly monitoring activity verify in detail our position. There was no review or discussion of this information. 7. No analysis of our invoices /documentation provided. These were approved by FDEM and FEMA staff and served as the basis for the PW's written by FDEM. These were rejected out of hand with no review or discussion. 8. At closeout FEMA -FRO and FDEM -FRO validate all invoices and changes in scope. Additionally, all PW's were closed out and approved by FEMA Atlanta and Tallahassee FDEM. Collier County Is requesting that the State Director of Florida Department of Emergency Management (FDEM) support this Request for Reconsideration by moving forward with a new FEMA appeal request on this project. Very Respectfully, Gary McAlpin CC: Leo Ochs` Nick Casalanguida Bill Lorenz Mark Isackson Steve Carnell Dan Summers Ed Finn Sherry Pryor Mayor John So rey Michael Cox Packet Page -1036- 12/11/2012 Item 10.AA. Clo ieY County Public Services Division Coastal Zone Management July 26, :2012 > Mr. Bryan W. Koon, Director Florida Division of Emergency Management 2555 Shumard Oak Boulevard Tallahassee, FL 32399 -2100 Mr. Leo Lachat Florida Department of Emergency Management Bureau Chief - Recovery 2555 Shumard Oak Boulevard Tallahassee, FL 3 2399-2 100 Mr. Robert M. (Bob) Seibert Lead Deputy Public Assistance Officer Florida Divislon of Emergency Management 5900 Lake Eleanor Drive Orlando, Florida 32809 RE: First Appeal Request:'De- obligatton of Funds for Hurricane Wilma -.011,1609; PW 2700- Dear Mr. Koon, Lachat and Seibert: On June 21, 2012 FEMA cle - obligated $11,095,283.52 from PW 2700; Hurricane Wilma DR -1609. Collier County and Florida 'Department of Emergency Management we not consulted prior to this action taking place. Collier County is requesting an appeal of this activity based on the following: 1. Collier County worked closely with FDEM to determine eligibility, scope documentation, authorization and approval for Hurricane Wilma and the balance of the 2004/05 storms. In fact, Collier took all direction /guidance from the State. Collier presented the information; The State wrote the PW's; approved the additional scope /work; and received authorization from FEMA. 2. Expenditure and payment were reviewed, approved and authorized by FEMA -Lake Mary, FEMA - Atlanta and FEMA- Washington. 3. All approaches are backed up with hard costs, hard documentation, proper authorizations, proper closeouts and correct closeout documentation. 4. Scope increases were approved in each one of the revised PW's by FEMA. 5. Payments were made 22 months ago for Collier County expended costs. This was for cost reimbursement with no conditions on the reimbursement. --n* - - -- - Packet Page -1037 - rnB'aar rrainh, rnaetai 7nnA MannnAmont . W Hamm Tomar jiminn somir im • aam rase iamimmi until - Naoles Florida 34112 - 239 -252 -2966 • FAX 239. 252.2950 12/11/2012 Item 10.AA. First Appeal Request -De- obligation Hurricane Wilma July 26, 2012 Page 2 of 2 6. Details will be developed that address the lack of technical basis for the de- obligation along with the disregard for established FEMA policies and procedures. Collier County is requesting that the State Director of Florida Department of Emergency Management (FDEM) support this Appeal Request. Very Respectfully, J/gt4;1 14, Gary McAlpin CC: = Leo Ochs` Nick Casalanguida Bill Lorenz Mark Isackson Steve Carnell Dan Summers Ed Finn Sherry Pryor MayorfohnSorey Michael Cox Packet Page -1038- �F�r :f;.�.,•.� � cr r..7� '� .Lk is"it'�'. +tyl�r',.•'�'' :;�, 'L. _.3-- � .it,'`` a�,: -iitq h1, °e6�. -}•� � � t�+,: =? _ , r c f _ F ; : • r .. t j., 7 • •' D zoo M C7 to > m �. 1 r r Ow ,{ j�C • � .� .ZO7 D F. 1jU ti l' , , r i r •. - t •••.; � .Y' slit � ii • M1= t ` t r� y i o O Z o � a Om to�O; rlmr^m Z, —� O { Co to = r -< ono Ao - M O O O 70 Packet Page -1039- • . • DIVISION RICK SCOTT Governor 12/11/2012 Item 10.AA. STATE OF FLORIDA OF EMERGENCY MANAGEMENT BRYAN W. KOOK Director July 25,'2012 Ms. Cheryl Pryor Collier County 3301 Tamiarbi Trail, Admin. Bldg. Naples, FL 34112 Re: Overpayment Dear Ms. Pryor: 1 The ''attached- invoice is In refereoce_to an overpayment for-,Hurricane Wilma: FeMA -DR- 1609 -FL. (see attachment) Pease remit to the State of,-Florlda; $11,172,272.62 at: Division of Emergency Management 5900 Lake Ellenor Drive Orlando, FL 32809 -4634 Attention: Renee Singh, Deputy State Public Assistance Officer of Finance Please contact Renee Singh via e-mail, Renee. Sinah6a)em.myflorida.com or by phone 407 - 858 -2761 should you have any questions or need any additional information. Respectfully, - �dj, Charles Shinkle Deputy Bureau Chief Division of Emergency Management Attachment: CS /Ica FLORIDA RECOVERY OFFICE • DIVISION HEADQUARTERS • STATE LOGISTICS RESPONSE CENTER 5900 lake Ellanor Drive 2555 Shumard Oak Boulevard 2702 Directors Row Orlando, FL 32809 -4634 Tall- ahassee. FL 32399.2100 Orlando. FL 32606.5635 407. 858 -2761 Tel: 850.413.9969•Fax. 650.468 -1016 www.Florida Olsasler.orn Packet Page -1040- 12/11/2012 Item 10.AA. INVOICE STATE OF FLORIDA •4 gas .� Division of Emergency Management Date: Jul 23, 2012 Invoice *: 122 To: Collier County (FIPS: 021 - 99021 -00) 3301 Tamlami Trall, Admin Bldg Naples, FL 34112 Master PW # Federal Share Admin Slate Share Line Item Total 1809 2700 $11,095,283.52 $55,478.421 $0.001 $11,150,759.94 1609 2704 ($16,816.80) ($84.08) $0.00 ($16,900.88) 1609 6733 $38,222.45 $ib1.11 $0.00 $38,413.56 SubTolal $11,172,272,62 Make checks payable to State of Florida for total amount of: " $11,172,272.62 State of Florida Public Assistance, 5900 Lake Ellenor Drive, Orlando, FL 32809 -4634 Phone (407) 8S8 -2761 Fax (407) 858 -4429 reneesingh @em.myFlorida.com Packet Page -1041- 12/11/2012 Item 10.AA. Payment #122 Project 2700 FEMA- 1609 -DR -FL 021 - 99021 -00 Payment #122: Project 2700 (L - Cat G) Collier County Previous Payments Payment #54 Eligible Federal Admin State Obligated & Approved Payment #77 $954,225.99 Version 0 (Large) - Initial Obligation $3,381,940.54 $2,536,455.41 $16,909.70 n/a System Administrator -Apr 11, 2006 Payment #79 $191,912.36 $1,279.42 $31,985.39 Version 1 (Large) - Federal Share Change $0.00 $507,291.08 $0.00 n/a System Administrator -Jan 16, 2007 $0.00 ($171,706.04) Orlando Rodriguez - Mar 12, 2007 Version 2 (Large) - Federal Share Change $0.00 $338,194.05 $0.00 Ala SysiemAdmtrtlatra /or -Jun 19, 2007 Yen Cal -Jul 27, 2007 Version 3 (Large) - Eligible Amount Change $9,486,535.40 $9,486,535.40 $47,432.68 n/a Renee Singh - AU930, 2010 r ­ment #119 $9,775,103.49 Version 4 (Large)- Version Modificatiod $0.00 $0.00 $0.00 n/a Renee Singh - Oct 19, 2010 Payment #117 $0.00 ($0.01) $0.00 Version 5 (Large) -Version Modification $0.00 $0,00 $0.00 n/a Renee Singh - Jan 6 2011 Packet Page -1042- Verslon 6 (Lange) - Eligible Amount Change ($11,095,283.52) ($11,095,283.52) ($55,476.42) Na Renee Slnph - Jul 16, 2012 $1,773,192.42 $1,773,192.42 $8,865.96 $0.00 Justified by RFRs (100,0 %) 2FR #1 - Expense Approval $761,256.08 rhn Schmidt - May 16, 2008 RFR #1 - Expense Approval $1,272,301.32 Nick Behnnan -Jul 28, 2006 RFR #1 - Expense Approval $255,883.14 Melissa Vaee)o -Aug 2, 2006 RFR 91 - Expense Approval $803,931.91 Darryl Cox -Jun 27, 2007 RFR #2 - Expense Approval $9,775,103.49 Kethenne (Lanie) Hulett- Sep 3, 2010 Reversal of Overrun - $11,095,283.52 $1,773,192.42 $1,773,192.42 $8,866.96 $0.00 Previous Payments Payment #54 $570,942.06 $3,806.28 $95,157.01 Orlando Rodriguez - May f6,- 2006 Payment #77 $954,225.99 $6,361.51 $159,037.67 Nick Behnnan - Jul 28, 2006 Payment #79 $191,912.36 $1,279.42 $31,985.39 Orlando Rodriguez - Aug 2, 2006 Payment #91 $343,416.08 $0.00 ($171,706.04) Orlando Rodriguez - Mar 12, 2007 Payment #107 $723,538.72 $4,019.66 $o.00 Yen Cal -Jul 27, 2007 Payment #108 $309,337.24 $0.00 ($114,472.03) Yen Cal- Oct 31, 2001 r ­ment #119 $9,775,103.49 $48,875.52 $0.00 Booth - Jan 8, 2009 Payment #117 $0.00 ($0.01) $0.00 Jamie Booth - Jan 8, 2009 Packet Page -1042- Adjustments This Payment rd &P&Ymw le&vss & bawl" of So.oa Paymanicobdofions as &l Jul 19, 2012 Penl&d Lan fbrfd &PA oly on Jul 2o. 2012 &112.3( PM. Packet Page -1043- 12/11/2012 Item 10.AA. - $12,866,475.94 - $64,342.38 - $0.00 + $0.00 + $0.00 + $0.00 -wk. ($11,095,283.52) ($55,476.42) $0.00 10 12/11/2012 Item 10.AA. Payment #122 Project 6733 FEMA- 1609 -DR -FL 021- 99021 -OD Payment #122: Project 6733 (L - Cat G) Collier County Eligible Federal Admin State Obligated & Approved Version 0 (Large) - Initial Obligation $625,964.16 $469,473.12 $3,129.62 n1a System Administrator- May 22, 2006 Version 1 (Large) - Federal Share Change $0.00 $93,894.62 $0.00 n1a System Administrator -Jan 18, 2007 Version 2 (Large) - Federal Share Change $0,00 $62,596,42 $0.00 n1a System Administrator- Jun 2a 2007 Version 3 (Large) - Eligible Amount Change ($107,135.18) ($1D7,135.18) ($535.67) n/a System Administrator -Jan 30, 2006 Version 4 (Large) - Eligible Amount Change $31,993.47 $31,993.47 $159.96 n1a Renee Singh - Aug 17, 2010 Version 5 (Large) - Eligible Amount Change ($38,222.45) ($38,222.45) ($191.11) n1a . Renee Singh - Jul 16, 20f2 $512,600.00 $512,600.00 $2,563.00 $0.00 Justified by RFRs (100.0 %) RFR #1 - Expense Approval $625,964.16 Aaron Holden - Jun f f, 2007 Reversal of Overrun - $113,364.16 $512,600.00 $512,600.00 $2,563.00 $0.00 Previous Payments Payment #106 $563,367.74 $3,129.62• 1 $0.00 Yen Cat -Jun 12, 2007 Payment #110 $62,596.42 $0.00 $0.00 Yen Cat - Ocl 31, 2007 Payment #119 ($75,141.71) ($375.71) $0.00 Jamie Booth - Jan 6, 2006 — $55D,822.45 — $2,754.11 $0.00 Adjustments + $0.00 + $0.00 + $0.00 ($191.11) $0.00 This Payment — `($38,222.46) Thlspoymeal leaves a balance of S0.00. °ayment calculations as at Jul f9, 2012. 'dated rmm FibddaPA org on Jul20, 2012 of 12.55 PM Packet Page -1044- 12/11/2012 Item 1O.AA. U.S. Department of Homeland Security 500 C Street, SW Washington, DC 20472 ,�tiyt o;f FEMA Y 142012 Bryan Koon Director Florida Division of Emergency Management 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 -2100 Re: Second Appeal- Cohief County Public Services Division, PAID 021- 08835 -01, Sand Replacement FEMA- 1393- DR -FL, Project Worksheets (PWs) 566 and 673 Dear Mr. Koon: This letter is to response to a January 24, 2011, letter from your off ice, `which transmitted the referenced Second appeal on behalf of the Collier County Public Services Division (Applicant). The Applicant is appealing the Department of Homeland Security's Federal Emergency Management Agency's (FEMA) denial of $9,188,497 fbr renourishment of mainland and Marco Island beaches. I have determined that there is no adequate basis to increase the amount of eligible sand replaced on the beaches. I have reviewed the information submitted with the appeal and have determined that the Regional Administrator's decision in the first appeal is consistent with Public Assistance regulations and policy. However, in my review of the documentation, I have found errors in the apportionment of eligible costs that were incurred as a part of the mainland and Marco Island renourishment projects. By copy of this letter, I am requesting the Regional Administrator prepare versions of PWs 566 and 673 to award the eligible costs associated with the renourishtnent projects as detailed in the enclosed analysis. Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR § 206.206, Appeals. Enclosure cc: Major P. May Regional Administrator FEMA Region IV Sincerely, `-ol 41 Deborah Ingram Assistant Administrator Recovery Directorate x��f �v.fema.gov Packet Page -1045- 12/11/2012 Item 10.AA. SECOND APPEAL ANALYSIS FEMA- 1393 -D R -FL Collier County Public Services Division, PA ID 021- 08835 -01 Sand Replacement, Project Worksheets 566 and 673 Background FEMA determined that four engineered beaches in Collier County are eligible for Public Assistance (PA) permanent work funding as improved and maintained beaches. These beaches suffered sand erosion from ?Topical Storm Gabr elle.(FEMA- 1393 -DR FL }, Hurr cane`Katrina 11 (FEIvIA- 1602- DR =FL), and "Hurricane Wilma (FEMA- 1609- DR- FL.)., FEMA;prepared several Project Worksheets (PWs) to replace the sand eroded by each storm. `The Collier County Public Services Division (Applicant) performed nourishment work in two Separate projects that had different design firms and contractors. The first renourishment project, the mainland project, to restore the Naples, Vanderbilt, and Park Shore beaches substantially to their 1996 design, was completed in 2006. The other renourishment project, to restore the Marco Island beach to its design, was completed in 2007. While the Applicant's appeal only addresses PWs under FEMA- 1393- DR -FL, in order to properly assess the eligible work and costs, both renourishment projects must be examined in conjunction with all three disasters. Table t provides information on the ten PWs (including versions) for eligible work that was accomplished as part of the renourishment projects. TABLE 1- COLLIER COUNTY>CATEGORY G BEACH PWs 11c r-11sluiC wiume ur sana in rw iiuu is allocated based on the Applicant's engineering study which attributes an estimate Df'55% of the 2006 renourishment to`FEMA- 1609- DR -FL. The PW's original scope of work approved 58,641 CY of sand for Naples Beach at a cost of $3,381,940.54. Second Appeal Analysis, Collier County Public Services Division, PA ID 021- 08835 -01 Page I of 8 Sand Replacement, Project Worksheets 566 and 673 Packet Page -1046- . 12/11/2012 Item 10.AA. From September 13 to September 21, 2001, Tropical Storm Gabrielle eroded Collier County's public beaches. FEMA prepared PWs 566 and 673 for the restoration of,?-.0,.650 CY' of sand to the Naples beach and 49,441 CY to the Marco Island beach, respectively. The disaster related damages documented in the PWs' eligible scopes of work were derived from pre - and post -storm surveys. The Applicant was unable to complete the required repairs until the Florida Department of Environmental Protection (FDEP) issued an environmental permit for the renourishment, under Florida Statutes, Chapters 161 and 370, as the Applicant's 1999 permit for county -wide beach maintenance allowed for only 50,000 CY of spot nourishments annually. On April 3, 2009, FEMA received from the Florida Division of Emergency Management (Grantee) Final Inspection Reports (FIR), dated June 30, 2008, for each PW. The FIR indicated that work on the beach projects had completed on May 1, 2006. FEMA prepared final reconciliation reports on March 31, 2010, and initiated close -out of the PWs. First,4ppeal T_16; 6rantee strbrnitted a first app�a on behalf of the Appl icant on Apil 9; 2010:' In the appeal, the Grantee claimed that PWs 566 and 673 were closed in error as costs for three years of beach environmental and turtle monitoring, required by federal regulations and FDEP, were absent from the approved costs. Additionally, the Grantee requested that FEMA increase the eligible amount of the PWs based on an apportionment of the actual sand replacement costs. Included with the appeal were draft closeout versions of PW 566 and 673. With the draft Version 3 of PW 566,, the Grantee requested that >FEM1 consolidate the three mainland beach PWs, by combining scope of work and cost adjustments for PWs 568 and 575 for Vanderbilt and Park Shore beaches, respectively, with Naples Beach under a single closeout version of PW 566. The PW included line item costs of $10,200.00 for Environmental Monitoring, $278,556.95 for Force Account Labor, and a lump_sum of $9,945,,945.77 for Contracts. The TV's, revised scope of work explained that the proposed Contracts cost represented 34% of the 2006 Mainland Collier County $each, Renourishment Project. This apportionment came from a Iarivary`'2010 report titled, "Tropical Storm Gabrielle, hurricanes Katrina and Wilma Storm "impact Re- assessment Rcport!,.1995 -1996 Collier County Beach Nourishment` Project,"- 'tliat was prepared b Collier "Cauitty's consultant for the mainland ' "beach nourishrnent project, Coastal Planning and Engineering; nc. (CPE). The report partitioned the sand loss between Naples, Vanderbilt, and Park -Shore and used estimates to divide the total into complementary portions by attributing 53% of the sand replacement to Hurricane Wilma (FEMA 1609- D- R--I-L), I I % to hurricane Katrina (I E4A- 1602- 1NR -FL), and the ren, mining 34% to Tropical Storm Gabrielle (FEMAA393- DR -FL). The Grantee also submitted a;proposcd draft Version 2 ofPW 673 for the Marco Island beach that included line items of $13,766.00 for Environmental Monitoring, $73,645.54 for Force Account Labor, and a lump sum Contracts cost oi*$1,159,812.50. The scope of work detailed that the Contract cost represented '08:83% of the cost of the sand renourishment contract. This factor was derived by subtracting the 55,000 CY of sand estimated on PW 6733 attributed to Hurricane Wilma under FEMA- 1609- DR -FL, from the total volume of sand replaced, 176,457 CY, for the Marco Island renourishment. 12/11/2012 Item 1 O.AA. costs. The Regional Adiiiihistraf -further, determined that no adequate basis was provided for attributing m6 proposed portions- of the 2006 and 2007 renourishment projects to PWs 566 and 71,.:13-he Regional: Administrator noted ,that,4he_,Grantee.!,srequest to amend the scopes of work was submittedf ive years after, FEMA approvedthe scqpes of work on July 1 Pursuant to Title 44 Code of Federal Regulations (CFR) 4206.206(c)(1), Time Limits, applicants must file appeals within 60 days after receipt of a notice of the determination that is being appealed. Second Appeal With a letter dated January 24, 20 11, the Grantee supported and forwarded the Applicant's November:*, 2114, second appeal to FEMA—Ta thq appeal, -the Applicant asserted that FEINAA .based the approved scopes of work an estimated volumes of sand loss from the beaches, rather than the actual quantity of sand required to restore the beaches. To address this difference, the Applicant requested that FEMA increase the approved scopes of work and associated costs to reflect the amount of sand replaced during the 2006 and 2007 renourishment projects. The kpplicant also requested that FEMA combine the three mauland beach PWs under a new version of PW 566 as shown in Table 2. The Applicant submitted copies ofthe proposed draft closeout versions of PWs 566 and 673 that the Grantee had previously submitted with the first appeal— , TABLE 2 — FEMA-1393-DR-FL — Amounts Obligated and Requested To support 4ts revised scopes of work and associated costs, the Applicant included a copy of CPE's January 2010 report. The Applicant contends that the report presented hidden damages that.required additional work to property complete the project, and as such, the PWs should remain appealable after the 60-day post obligation period had expired. FUrthcrmor6, the CPE report states that based on surveys taken in 2000 and 2006, the cumulative sand loss from the mainland beaches was 553,000-CY. In calculating the revised costs on the closeout version of PW 566, the Applicant nit'diiplied the 2006 mainland renourishment project costs by a 34% factor from the amount of erosion the CPE repoit attributed to Tropical Storm Gabrielle. As justification for the eligibility of apportionrrient of, the total renourishment costs based on the CPE distribution, the draft closeout PW noted that FEMA prepared Version 3 of PW 2700 under FEMA-1609-DR-FL. PW 2700 Version 3 consolidated the damages for the three mainland beaches from Hurricane Wilda (represented by PWs 2698, 2700, and 2704) and increased the approved costs to include 550,0 of die total billing amount ofS19,833,883.57 for (lie 200(5-- renourishnient project. iE_N1`A, obligated PW 2700 Version 3 on August 27, 2011. Similarly, the Applicant's proposed closeout version of 673 attributed 68.83% of the work and costs of the 2007 renourishment project on Marco Island to Tropical Storm Gabrielle. FEMA Second Appeal Analysis, Collier County Public Services Division, PA ID 021-08835-01 Page 3 of 8 Sand Replacement, Project Worksheets 566 and 673 Packet Page -1048- Naples 566 70,650 $1,700,13.7.45 426,971 $8,5341565.27 Vanderbilt 568 '61 80,464 $2,085,076.70 (34% of 667,562 CY) Park Shore 575 36,382 $634,657.86 Marco Island r673 3 -49,441 $593,292.00 121,457 $653;,932.04 (68.83%. of 176,457 CY) Total ?46,937 [$�,013 J711,11 ot 71674. 348,429' 9 t �7$9,188 7.3 To support 4ts revised scopes of work and associated costs, the Applicant included a copy of CPE's January 2010 report. The Applicant contends that the report presented hidden damages that.required additional work to property complete the project, and as such, the PWs should remain appealable after the 60-day post obligation period had expired. FUrthcrmor6, the CPE report states that based on surveys taken in 2000 and 2006, the cumulative sand loss from the mainland beaches was 553,000-CY. In calculating the revised costs on the closeout version of PW 566, the Applicant nit'diiplied the 2006 mainland renourishment project costs by a 34% factor from the amount of erosion the CPE repoit attributed to Tropical Storm Gabrielle. As justification for the eligibility of apportionrrient of, the total renourishment costs based on the CPE distribution, the draft closeout PW noted that FEMA prepared Version 3 of PW 2700 under FEMA-1609-DR-FL. PW 2700 Version 3 consolidated the damages for the three mainland beaches from Hurricane Wilda (represented by PWs 2698, 2700, and 2704) and increased the approved costs to include 550,0 of die total billing amount ofS19,833,883.57 for (lie 200(5-- renourishnient project. iE_N1`A, obligated PW 2700 Version 3 on August 27, 2011. Similarly, the Applicant's proposed closeout version of 673 attributed 68.83% of the work and costs of the 2007 renourishment project on Marco Island to Tropical Storm Gabrielle. FEMA Second Appeal Analysis, Collier County Public Services Division, PA ID 021-08835-01 Page 3 of 8 Sand Replacement, Project Worksheets 566 and 673 Packet Page -1048- 12/11/2012 Item 10.AA. obligated the complementary portion, or 31.71% of the renourishment contract costs, with Version 4 of PW 6733 under FEMA- 1609- DR-FL, and with this appeal, the Applicant is requesting reimbursement for the remainder under PW 673. "No naw- upportuLg.-cnst„ documentation`orother information for the renourishment project contracts was provided. Based on the cost data contained in the two draft closeout versions, the Applicant is requesting an additional $4,114,693.26 for the mainland beaches under PW 566 and an additional $60,640.04 for Marco Island beach under PW 673. Discussion In order to properly evaluate the appropriateness, accuracy, and eligibility of the Applicant's proposal of using proration of the costs of the two beach restoration projects as foundations for estimating reimbursable costs under PWs 566 and 673, we must:consider,tbese PWs irL the context of the total damages - documented by thet*e-and the other eight PWs identified in Table 1. This approach is necessary: because 44yCFR § 246 223(a)(1) require'sthii'th6 f6tiI amount of sand renounsliinent, for which the Applicant has'requested re mbursement under FEMA -1393- DR -FL must be directly attributable to Tropical' Storm Gabrielle. PW -56b Afdinland Beaches In 2006, the Applicant completed the mainland sand renourishment project to restore the Naples, Vanderbilt, and Park Shore beaches substantially to their 1996 design. The January 2010 CPE report lists the as built volume of sand for the mainland project as 668,000 CY. Prior to the 2006 renourishment, the Applicant replaced 140,102 CY of truck- hauled sand between 2000 and 2003 and 44,352 CY of dredged sand in 2005. Surveys taken in June 2000 before Tropical Storm Gabrielle and in the first quarter of 2006 before the mainland `renourishment found the total volumetric loss over the nearly six years to be 369,001 CY; . CPE calculated '6 total sand loss of 553,455 CY by adding the maintenance nourishments to the measured loss. The Applicant maintains that CPE's value is a more accurate assessment of the volume of sand loss as a result of storms than are the quantities calculated from pre- and post -storm surveys that FEMA used to estimate storm loss volumes. Furthermore, in the "Storm Contribution" section of the report, CPE states that given the relative magnitude of Hurricane Wilma, the distribution (Table 3) of sand loss attributed to each storm based on the surveys before and after each event is unrealistic. TABLE 3 — Mainland Beaches — Storm erosion distribution by declaration R19 initial ApproJed Storm Totals Percent of ,• . CPE °`Report Disaster PW Mainland Sand Scope Estimates (CY) (CY) Total Percent of Loss (CY) Total` 566 70,650_ 1393 f 568 80,464 187,496 5896 187,496 .34%, 575 36,382 1109 45,762 '` ^ 1602 61,361 19%, 61,361 11% 1110 15,599 2700 *58,641 1609 2698 11,803 74,734, 2390 2704 4,290 : r Total 323,591 100x6 „ 553,455 * Volume from original approved scope of work for PW 2700. (see Table I note) Second Appeal Analysis, Collier County Public Services Division, PA ID 021- 08835 -01 Page 4 of 8 Sand Replacement, Project Worksheets 566 and 6 "" Packet Page -1049- R19 12/11/2012 Item 10.AA. Instead, CPE recommended using'553,455 CY as the total loss resulting from the storms and proposed a distribution of 34 %, 11 %, and 55% for Tropical Storm Gabrielle, Hurricane Katrina, and Hurricane Wilma, respectively. As shown in Table 3, CPE seems to have derived this modified distribution by adding the volumes of the maintenance nourishments between 2000 and 2005 to the volume that the original scopes of work of PWs 2698, 2700, and 2704 under FEMA 1609 -DR -FL attributed to Hurricane Wilma. Using this distribution of relative volumes as a basis for allocating costs under FEMA- 13 93 -DR-FL, the Applicant is requesting reimbursement.. from -FEMA of 34% of the total contract cost of x$19,833,883:57 for depositing 667,562 CY of sand for renourishment of the mainland beaches. As noted in the Grantee's July 10, 2008, memorandum accompanying the FIR., the I "Total (e]ligible costs'are to`be determined by subtzacting the county's routine permitted annual beach maintenance work related to 50;000 cubic`yards for the FEMA recovery period.. and not the - sand volume corriplefied'by tl e.contractors." This is supported by the Applicant's 1999 permit from the Florida Department of Environmental Protection allowing the annual deposition of 50,000 CY of sand in spot nourishments. The doemnents ft er indicated'' that the 140,1`02 CY of truck`hauled sand from 2000 to 2001 represents tbree years'; worth of maintenance nourishment, while the 44,352 CY may be just for 2005 after no .maintenance in2004. f , fix.( WhipS3m4e5 2 CY is the correct amount of total sand loss from the three mainland beaches be 000 and the first quarter of 2006, it is not representative of the amount of sand eroded by the three declared storms in that period for the following reasons: • The 140,102 CY of truck-hauled sand includes at least one (April 2001), if not two, maintenance nourishments before Tropical Storm Gabrielle; and • The sand placed on the beaches between Tropical Storm Gabrielle and 2006 needs to be considered as maini6nance;z ourishrnents and not eligible storm losses. Even if maintenance i ourishments are excluded, the difference' between the June 2000 and first quarter 2006 profiles is not necessarily limited to disaster damage from the declared storms: There is too much uncertainty about typical erosion before, between, and after the events for reliable use of this information to determine disaster damage. The sand volumes calculated for the eligible scopes of work are based on survey data that was available when the PWs were prepared and represent the most reliable pre- and post -storm profile data. The Applicant has not demonstrated that a survey of losses over a nearly six year period is more accurate than the estimates prepared for the PWs. Furthermore, as the documentation submitted fails to demonstrate that 34% of the sand replaced through the mainland renourishment project was attributable to sand loss as a direct result of Tropical Storm Gabrielle, the additional reimbursement the Applicant seeks for the mainland beaches under FEMA.- 1393 -DR -FL does not meet the 44 CFR § 206.223(a)(1) eligibility requirements. PNT 673 — Marco Island Beach The renourislunent of Marco Island was completed in 2007 and consisted of an as built volume of 176,457 CY of sand at a contract cost of $1,551,312.92. In calculating the volume of sand loss as a result of Tropical Storm Gabrielle, the Applicant subtracted the Hurricane Wilma contribution of 55,000 CY funded with PW 6733 under FEMA- 1609 -DR -FL from the total volume renourished. This calculation results in 121,457 CY of sand, or 68.83% of the renourishment project. The Applicant used this volumetric ratio in assigning 68.83% of the costs Second Appeal Analysis, Collier County Public Services Division, PA ID 021- 08835 -01 Page 5 of 8 Sand Replacement, Project Worksheets 566 and 673 Packet Page -1050- r 12/11/2012 Item 10.AA. of the 2007 renourishment project to Tropical Storm Gabrielle. The Applicant did not present new documentation`in its second appeal documenting the amount of sahilloss or justifying the eligib'tlity`ofthe entire scope'of the renourishment project. As with the inainland renourishment project, the quantity of sand replaced in the Marco island project` included eligle ad lsdue o he b declared storms, as well as nonnal erosion of the beach.-before, between, and after the declared incident.periods., This additional sand is not 11 eligible for FEMA funding; since, as stated above, only the costs of replacing the volume of sand loss as a direct result of Tropical Storm Gabrielle are,reimbursable_under FEMA- 1393- DR -FL. Therefore, the eligible scope of work is limited to the 49,441 CY included in the approved scope of work on PW 673 as it was directly measured from pre- and post -storm profile data and represents the best available data.' Eligible Costs A determination that there is no change warranted in the scope of work for a PW would usually leave a determination of final costs to project closeout. In this appeal, draft closeout PW versions were submitted as part of the supporting documentation. Review of those documents has found significant errors such that a discussion of eligible costs is prudent. The proposed draft-closeout versions for PWs 566 and 673 that provided the cost estimates for the appeal, as well as the July 2009 Final Inspection Report for closeout of all 10 PWs, made errors in assuming that all costs associated with the 2006 renourishment of the mainland beaches and the fl07 ienourishment of the Nlarco Island °beach were eligible. These projects renourished the beaches to their design for thc.first time since orit;inoi nourislunci t in 1'99G. "%ulethey did replace the eligible sand losses from the three disasters, they also r placed sded from the beaches >before, Between, and after the declared events, as well as sand placed on areas outside of the eligible projects.7 Only the costs to replace the eligible sand volumes identified in the ten PWs are eligible for reimbursement. " The mainland project replaced a total` of 667,562 of sand,,• only 187,496'CY of that sand (28,1%), is eligible for funding under FP-MA- 1393- DR -FL. The Maroo. simid project replaced 176,457 CY of sands only 49,441 CY (28.0 %) is eligible for funding under FEMA-1393-DR-FL. These percentages must be used in computing eligible costs, either by direct application to the costs or in the determination of a unit cost (per CY). The unit cost method is suggested since the costs have to be distributed over several PWs. The project costs as presented in the draft closeout versions for PWs 566 and 673 are divided into three elements_ Force account labor costs; Contract costs; and Environmental Monitoring costs. The force account labor is for project management, inspection, and administration, based on the summary sheet submitted with the FIR. These costs total $466,094. The costs are divided by disaster, but given the amount of full -time project management (12 months) and beach inspection (17 months); these charges have to be considered applicable to the complete renourishnment projects and need to be weighted accordingly. The costs are also divided by renourish.ment Second Appeal Analysis, Collier County Public Services Division, PA 1D 021- 08835 -01 Page 6 of 8 Sand Replacement, Project Worksheets 566 and 673 Packet Page -1051- 12/11/2012 Item 10.AA. project (mainland and Marco Island),. but this is based on total length of project area. To determine a unit cost for force account project management, it is best to combine the two projects since accurate records were not mfun'e*d The two renourishment projects placed a total of 884,019 CY of sand on Collier County beaches. That reduces to a unit cost of $0.5272 per CY for force account project management. The contract -costs havelbeen identified as $19,833,883.51 for the mainland project and $1,551,312.92 for the Marco Island project. Dividing these costs by 667,562 CY and 176,457 CY of placed. sand for the mainland and Marco Island projects, respectively, results in unit costs of $29.7109 per CY for the mainland project and $8.7915 per CY for the Marco Island project. Addiiag the force account project management unit cost yields total unit costs of $3.0.2381 per CY for the mainland project and ,$9.3187 per CY for the Marco Island project. As a result of the permit requirements of the Florida statutes associated with the beach renourishment projects, the Applicant incurred three years of environmental monitoring costs. The first appeal approved these post - construction monitoring costs in the amounts of $10,200 for PW 566 and $13,766 for PW 673. The eligible costs were based on proration of the total estimated costs of $30,000 for the mainland beaches and $20,000 for the Marco Island beach. Because Stafford Act §406(e)(1) authorizes FEMA to reimburse the costs of repair of an improved beach "in conformity with codes ... applicable at the time at which the disaster occurred," these costs would be required and eligible regardless of the amount of sand re- nourished; thus, 100% of these costs should be eligible. Furthermore, as the costs were initially necessitated by the repairs of damages by Tropical Stoim. Gabrielle, the full costs should be, reimbursed under FEMA- 1393- DR -FL. Due to the imprecision of appropriately distributing mainland beach monitoring costs between PWs 566, 568, and 575, the Region should make closeout adjustments for the three mainland beaches on PW 566. Iii order to reimburse only eligible costs, the FEMA Region N staff should prepare a closeout version of PW 566 to include aline ,item of 44,419,872,01 for deobligation of Ole total previously funded costs on PWs 566, 568, and 575. The version should include a line item for reimbursement of the eligible portion of actual costs. Using the unit costs for the eligible replaced sand based on the contract costs supplied with the project closeout documentation and lump sum monitoring. costs, as described above, this results in total eligible costs of $5,6913,535:53 for the mainland beaches, (187,496 CY x $30.238l/CY + $30,000). Similarly, the Region should prepare a closeout version of PW 673, to deobiigate'the previously funded $593,292.00 and obligate $480,726 for fiieMaroo Island beach (49,441 CY x $9.3187/CY + $20,000). Second Appeal Analysis, Collier County Public Services Division, PA ID 021- 08S35 -01 Page 7 of 8 Sand Replacement, Project Worksheets 566 and 6 ?1 Packet Page -1052- t' 12/11/2012 Item 10.AA. TABLE 5 — Funding of Beach Restoration under FEMA- 1393=DR -F! ...t .'•..(1 ��.'j — ::}•.i tY.i °: r.•:..f:`. TF,;t_.:y: .:5.- _.f.�. •fd'+.i•r.. ^. ff ' —': •P.. .'mfr v..�:. •:.'t.:;•!.': %T' Naples 566 $1,700,137.45 • $8,534,565.27 $5,699,535.53 --------------- - - -- --------------- - - -- Vanderbilt 568 $2,085,076.70 Park Shore 575 $634,657.86 Marco Island 673 $593,292.00 $653,937.04 $480,726.00 Total $5,013,1,",0,1° $9,188,497.31 $6,180,261.53 disaster incident periods, and also placed sand on non-eligible beaches. Finn} costs roust be based.on the.eligible volumes of eroded sand that are directly attributable to the declared event. Conclusion The Apllicant <did not present new documentation in its second appeal that demonstrates Tropical'Stoi-riiGabrielle eroded a- greater volume of sand from the mainland and Marco Island beaches than the sand loss volumes -FEMA calculated from pre- and post -storm surveys and documented in the approved scopes of work for PWs 566, 568, 575, and 673. These surveys represent the most reliable pre - and post -storm beach profile measurements. iCPTs'study was <� based on a 200 curve r conducted nearly five years after the event. The A�t has not - demons ted that this survey is more accurate ant a es mates FEMA prepared in the original PWs:.. The Applicant submitted proposed draft closeout versions of PWs 566 and 673 that suggest the total volume of sand replaced by the 2006 and 2007 nourishment projects is eligible and should be apportioned to each of the three federally declared disasters. Howcvcr, the quantity of sand replaced through the two renourishment projects includes sand loss as a result ofthe declared storms, as well as erosion before,` between, and after the declared storms. Given that the mainland and Marcos Island renourisiunent projects included both eligible and ineligible work, and the fact that this response only affects the PWs under FEMA- 1393- DR -FL; Regional PA staff should reexamine the costs funded by PWs under FEMA- 1607 -DR -FL and FEMA -1609- DR-FL to deobligate duplicative environmental and turtle monitoring costs and to ensure that FEMA reimburses only eligible sand replacement costs. Second Appeal Analysis, Collizr County Public Services Division, PA ID 021- 08835 -01 Sand Replacement, Project Worksheets 566 and 673 Packet Page -1053- Page 8 of 8 DIVISION OF r STATE OF •- , EMERGENCY 12/11/2012 Item 10.AA. MANAGEMENT RICK SCOTT DAVID HALSTEAD Governor Director January 24, 2011 Ms. Elizabeth A. Zimmerman, Assistant Administrator — Disaster Assistance Directorate DHS- Federal Emergency Management Agency 500 C Street, SW, Washington, DC 20472 Through: Major P. May, FEMA Region IV Administrator Federal Emergency Management Agency 3003 Chamblee- Tucker Road Atlanta, Georgia 30341 Re: Collier County Second Appeal "of DR- `1393; PW's -566 &673 Dear Ms. Zimmerman: The Florida Division of Emergency Management (Division) is in possession of a letter indicating Collier County's ( subgrantee's) desire to submit.a second appeal of FEMA's denial of a sand replacement costs as reported on the above - referenced Project Worksheets (PW's) arising from the Tropical Storm Gabrielle event (DR- 1393). This letter has been received in a timely manner from the subgrantee, and the Grantee recommends that FEMA approve this appeal based on the arguments presented therein. Issue for Second Appeal Tropical Storm Gabrielle (DR -1393) caused damaging beach erosion to public beaches within the subgrantee's jurisdiction. In the wake of Gabrielle, joint teams from FEMA, the Grantee and the subgrantee, wrote PW's to reimburse the subgrantee for the costs of repairing this damage. Specifically, PW's 566 and 673 were written to reimburse for costs associated with repairing the subgrantee's public beaches on mainland Collier County (Naples, FL), and on Marco Island, respectively. These same public beaches would also suffer damage during 2005's Hurricane Katrina (DR -1602) and Hurricane Wilma (DR -1609) events. fn ' 009, the subject PW's were closed ocIL with a large disparity existing between the Subgrantee's claimed beach reconsttuction costs, and the obligated amounts attributed to the PW's. Additionally, the closeout versions'of the PW's did not account for future environmental and turtle monitoring costs that were foreseeable under Federal and/or Florida law. On first FLORIDA RECOVERY OFFICE • DIVISION HEADQUARTERS • STATE LOGISTICS RESPONSE CENTER 36 Skyline Drive 2555 Sh 2702 Directors Row Lake Mary, FL 32746.6201 Tahaha Packet Page -1054- Orlando. FL 32809.5631 T-t - acn.d /'t.Oona . �n wcn.a RW.iniA 12/11/2012 Item 10.AA. Ms. Elizabeth A. Zimmerman January 24, 2011 Page 2 appeal, the Regional Administrator approved a total of $23,966 to cover future environmental and turtle monitoring costs, but denied a total of $9,188,479.31 in additional beach reconstruction costs which the subgrantee attributes to the Gabrielle event. This second appeal follows. In the analysis attached to the Regional Administrator's first appeal determination letter, two reasons are provided as to why the subgrantee's additional beach reconstruction costs have continued to be deemed ineligible by FEMA: 1. FEMA claims that there is no basis for' attributinggthe additional underlying damage to Tropical Storm Gabrielle, and 2. FEMA` claims that the subgrantee is "locked in" to the estimated sand replacement values listed on version 0 of the subgrantee's PW's (both of which were obligated on July 8, 2004), due to FEMA's 60 day objection period. These issues will be addressed below in reverse order from that shown above. FEMA -s 60 -day objection period is not a limiting factor The analysis attached to the first appeal determination cites that as approved scopes of work were obligated on July 8, 2004, the obligation established a 60 «day window in which the subgrantee was required to either appeal the approved scopes` of work, or forever lose the right to change that scope of work as real world conditions evolved. To this, the Grantee points out that such an interpretation would have been incorrect under FEMA policy that was in effect at the time of the Gabrielle event, and would also be incorrect in the present established practice as well. The FEMA Public Assistance Guide clearly notes that "[d]uring the performance of work on a project, the applicant may discover hidden damage, additional work that is necessary to properly complete the project, or that certain costs are higher than those used to make the original estimate for the PW' (see: FEMA 322/October 1999, page 115). This statement indicates that FEMA policy envisions that the original obligation of a PW is not intended to be a "lock- down" event, and that it is quite likely that project costs will change over the lifecycle of the project. Continuing in the same subsection of FEMA 322, the Grantee can find no mention that the establishment of a scope of work through PW obligation begins a 60 -day appeals countdown, after which the subgrantee would be barred from making eligible changes to the approved scope of work. To read in such an interpretation would be contra to the established current practice in that scopes of work are modified often as projects develop, and the modification seen in this PW is not extraordinary in comparison with modifications made to the scopes of countless number of other projects currently still open in Florida. In such a case, the general rule could simply be stated that the scope of work may be changed (given a set of changed circumstances or changed data inputs), so long as the project has not been closed out. As the successful first appeal on this Packet Page -1055- 12/11/2012 Item 10.AA. Ms. Elizabeth A. Zimmerman January 24, 2011 Page 3 PW indicated that there will be environmental monitoring casts accruing in the future,' the project could not be closed out, which is defined as occurring when "... all required work of the grant has been completed" (see: 44 CFR § 13.50(a)). As line items on a PW cannot be individually closed out (i.e. — the entire PW must be closed out, or the PW remains open), and as the Regional Administrator's first appeal determination indicates that there was still -work remaining to be completed on the PW (environmental monitoring), the entire PW remained open, and thus the scope of work for beach reconstruction could legitimately be changed as new studies dictated. As the applicant's appeal should be unaffected by the passage of the 2004 60 -day objection period, the next section of the appeal deals with the scientific study underlying the apportionment of additional damage to Tropical Stone Gabrielle. The basis for attributing additional damage to Tropical Storm Gabrielle In regard to the subgrantee's assertion that additional damage should be attributed to Tropical Storm Gabrielle, the Regional Administrator answered this claim in the first appeal determination by stating that "[t]he subgrantee provides no basis for attributing a portion of its overall beach restoration project to damage inflicted by Tropical Storm Gabrielle beyond that already identified in the PW's." Included in the subgrantee's second appeal package, the reviewer will find a copy of a study prepared by Coastal Planning & Engineering, Inc., which explains the inadequacies of earlier studies, and which lays out a new apportionment of overall storm damage caused by the 3 Presidentially declared disasters to have major affects on the area between 2001 and 2005 2 (see Attachment C of the subgrantee's second appeal package). The Grantee has read this study and does not dispute the findings contained therein. While the Grantee can only take a guess at why the Regional Administrator did not accept the findings of this study, the Grantee has reason to believe that it is due to a mistaken belief that the study attributes all damage during that timeframe to the 3 Presidentially declared disasters of interest, and does not consider any other possible sources of damage. On page 2 of the first appeal analysis, the analysis notes that the area would have been affected by at least 3 additional hurricanes, and "numerous other weather events which did not meet the threshold for a Federally- declared disaster." The reviewer Seems to have been of the opinion that each of these weather incidents caused its own beach erosion (which the subgrantee does not dispute), which was not accounted for in the study attributing "all damage" to the three named storms of interest (which the subgrantee does dispute). The subgrantee strongly disputes this last assumption by the reviewer, and asserts that beach erosion from these other events was considered in the study, and thus the study is not flawed as has been assumed by the reviewer. " 1'he study accounted for the effects of this beach erosion by accounting for "supplemental sand fill" that was added yearly between the years 2000 ' The Regional Administrator granted $23,966 in future monitoring costs in partially granting the subgrantee's first appeal. 2 These 3 storms being Gabrielle (DR- 1393), Katrina (DR -1602) and Wilma (DR -1609) Packet Page -1056- 12/11/2012 Item 10.AA. Ms. Elizabeth A. Zimmerman January 24, 2011 Page 4 and 2006 (see page 4 of Attachment C to the subgrantee's second appeal request). The Grantee can see no reason why treating sand losses for each of the `other events" would be necessary individually, so long as the yearly loss is accounted for in the net calculations. Additionally, the subgrantee has asserted that no Stafford Act reimbursement has been requested for this "supplemental sand fill" in any of the 3 named storms that are the subject of the study. As a result, the study does represent the pure damage that can be associated with the 3 storms of interest (i.e. — free from the confounding effects of other weather events), and represents a valid apportionment of damage across the 3 events. As the subgrantee has provided a valid scientific study which more accurately apportions damage due to the 3 named events of interest than had earlier studies, and as that study does take account of other weather related erosion that would have occurred during the timeframe in question, the Grantee recommends that FEMA approve this second appeal and award the relief requested by the subgrantee. Relief Requested In regard to relief requested, the subgrantee requests the granting additional costs consistent with new version PW's that the subgrantee has filed with FEMA. Attached to the subgrantee's second appeal package as Attachments D and E, respectively, these PW's request additional funding to correct previous version overruns in the following amounts: - DR -1393; PW -566 — an additional $8,534,565.27 is requested, and - DR -1393; PW -673 —an additional $653,932.04 is requested. Summarizing these requests, the subgrantee requests an additional $9,188,497.31 from what has already been obligated for these otherwise eligible beach projects. As this request is backed with a scientific study, is not barred by a timeliness issue, and is for otherwise - eligible work to constructed/maintained beaches, the Grantee recommends approval of this second appeal. Conclusion The Florida Division of Emergency Management believes that the argument provided above will provide an adequate basis upon which FEMA can provide the relief requested to the subgrantee. If you have any further requests for technical information regarding this second appeal, please contact Evan Rosenberg, Special -Projects Coordinator, at (850) 487 -2293 or by e- mail at: evan .rosenberg @em.myilorida.com. Packet Page -1057- 12/11/2012 Item 10.AA. Ms. Elizabeth A. Zimmerman January 24, 2011 Page 5 Sincerely, j d'��.�--�j David Halstead, GAR Division of Emergency Management DH/DW/TEBO/KA/er Attachments: Subgrantee's Second Appeal Letter (Including Attachments A - E) Copy of First Appeal Denial letter Packet Page -1058-