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Backup Documents 10/09/2012 Item # 7i 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 -1393, 1602 & 1609 Dear Director McAlpin; 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 1.393, 1602 & 1609) as a logical means to close -out the DR 1393 PWs. The FEMA -FDEM 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. 7a v 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 Off'ice'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 2 '7A '7A 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. s YORK. I 7 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: (1) 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 4 7A i 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 APPLY: 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. '7A 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: 1. 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 FE MA 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 t 7 A im" 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 Th,- Pimp nerind fnr .Min- ,finsr:t'he inelinihle beach sand maintenance;ocr3od of years is LL%,L.U&%.%► u.7 44 ±Y',�a {IY_ #tali vuav "WL" X% ­1 vu v ld —&-4 a..., •.vv. w.— .•�.. - •. - - - -- 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 includcd in the estimation of ineligible work after the sequential impacts from DRs 1602 and 1609._ This was due to the county being 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. 7 7 A +" i 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 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, gn lip- Barber & 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 was completed prior to September 13, 2001; it was not included in the ounty "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 cubic 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. YORK. The, resulting total 4-year estimated annual routine beach maintenance cost of 51;992,637.59 was prorated for each of the four beaches based on their respective coastline miles 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. 0 v YORK. DRAFT -3 August 15, 2412 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 '7A 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- 13 93, 1602 & 1609 Dear Director McAlpin; 'On July 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 #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. 0 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). 2 s YORK. 1.4 A total of 10 Category G -P'Ws were issi beaches as listed in the following table: Pws Beach: DR -1393 Vanderbilt 568 Park Shore 575 Naples 566 Marco Island 673 ' 7A m" ied for the four Collier County public DR -1602 DR -1609 1110 2698 2704 1109 2700 6733 3 � 7A YORK. 1.5 A key element of implementing the FEMA- approved Scope of Work for the 10 PWs is tl.m timeline of events directly related to the three disaster declaration' dates, USACE offshore sand permitting and construction and post - monitoring: DR -1393 September 28, 2001 Truck Hauled Sand- . Multi- Vendors Qctdber 10, 2001 end May 23, 2007 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 USACE Permit September 20, 2005 DR -1609 October 24, 2005 GLDD7,Offshore Sand 3- Mainland Beaches December 2, 2005 end August 17, 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 authorived 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.' 4 7A 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: inland truck- hauled sand, storm- deposited inlet- dredge sand and offshore sand deposits. As authorized in the 10- PWs, ail :work performed restored the beaches to DR -1393 "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 I0 -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. In lieu of actual` invoiced costs for ronitoring, FEMA specialists estimated the cost for this contractual work. 5 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 $ 1,917,466.21 Inlet Sand Dredging $ 33,753,961.06 Total Cost of 3 -DRs $ 1,992,637.59) Less Truck- hauled Sand $ 31,761,323.47 Colliers Gross Cost of 3 -DRs FE Less FDEP Reimb.= I 7A 44W State 12.5% Collier 12.5% $ 2,051,067.27 $ 2,051,067.27 $ 2,051,067.27 $ 2,051,067.27 = F.S.161 Trust Funds Rev. 8 -27 -2009 10 -PWs Note: Subtraction of FDEP funds 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-1 393 (75 % -25 %) and for 1602 & 1609 (100 % -0 %). 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. 0 Validated Costs FEMA 75%1100% Final Est 51.66% Total Est 1393 = $ 16,408,538.18 $ 12,306,403.64 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 Less Colliers Share= $= 2,051,067.27 Gross to Collier = $ 29,710,256.20 FE Less FDEP Reimb.= I 7A 44W State 12.5% Collier 12.5% $ 2,051,067.27 $ 2,051,067.27 $ 2,051,067.27 $ 2,051,067.27 = F.S.161 Trust Funds Rev. 8 -27 -2009 10 -PWs Note: Subtraction of FDEP funds 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-1 393 (75 % -25 %) and for 1602 & 1609 (100 % -0 %). 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. 0 11P '7A 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 III — 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 Policy Digest 10 Archived List of FEMA 9500 Series of Policies for the Public Assistance Program, 9 -22 -2004 11 Archived List of FEMA 9500 Series of Policies for the 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 7 7A 4- 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 F6-MA. 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. '7A 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. i"he 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. I F'ENIA'determines that the grantee has drawn Federal funds for ineligible costs, then the grantee must return those flints 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 pail 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. '7A Go lei 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 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 for Reconsideration of the Second Appeal Denial of TS Gabrielle'- DR -2393; 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. 1 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. —41nnb Colter County Coastal Zone Management - W. Harmon Turner Building, Suite 103.3301 East Tamlarri Trail • Naples, Florida 34112.239- 252 -2966 - FAX 239.2522950 v&u rnliarnmr nallmsQ1*17n amananamanl '7A 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 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'Sorey Michael Cox 7A Co 1eY 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 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: FirstAppeal Request: De- obligation of Funds for 'Hur6cane Wilma - OR 1609, PW 2700' Dear Mr. Koon, Lachat and Seibert: On June 21, 2012 FEMA de-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. S. Payments were made 22 months ago for Collier County expended costs. This was for cost reimbursement with no conditions on the reimbursement. rcH;or rnnnly rnaelal 7nno MananPmont • W Harmnn TI ImPf Ai4klinn SiKir. 1r19 . Mn1 Fast Tamiami Trail - Nades. Florida 34112 -239-252-2966- FAX 239-252-2950 '7A 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/9t4-/ 114 6-6�2— Gary McAlpin CC: Leo Ochs Nick Casalanguida Bill Lorenz Mark Isackson Steve Carnell Dan Summers Ed Finn Sherry Pryor Mayorkhn Sorey Michael Cox IOWA, Tell 04TAGO SRI FO Fn SQVf is Nov" 35 3. -lot 0 ? WAD- 0 Lai STATE OF FLORIDA DIVISION OF EMERGENCY MANAGEMENT RICK SCOTT BRYAN W. KODN Governor Dlraclor July 25, 2012 Ms. Cheryl Pryor Collier County 3301 Tamiami Trail, Admin. Bldg. Naples, FL 34112 Re: Overpayment Dear Ms. Pryor: The attached invoice is In reference to an overpayment for Hurricane Wilma: FEMA- DR- 1609 -17C: (see' attachment) Please remit to the State of Florida: $ 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.Singh(a7em.myflartda.com or by phone 407 - 858 -2761 should you have any questions or need any additional information. Respectfully, - Charles Shinkle Deputy Bureau Chief Division of Emergency Management Attachment: CS/Ica FLORIDA RECOVERY OFFICE - DIVISION HEADQUARTERS - STATE LOGISTICS RESPONSE CENTER 5900 Lake Ellenor Drive 2555 Shumird Oak Boulevard 2702 Dlreclors Row Orlando. FL 32809-4534 Tallahassee. FL 32399 -2100 Orlando, FL 32609.5631 407.858 -2761 Tel: 850.419. 9969 -Fax: 850. 488.1018 www. Florida Ols aslev ore '7A w INVOICE STATE OF FLORIDA Division of Emergency Management Date: Jul 23, 2012 Invoice #; 122 To: Collier County (FIPS: 021- 99021 -00) 3301 Tamlaml Trall, Admin Bldg Naples, FL 34112 Master PW tt Federal Share Admin Slate Share Line Item Total 1609 2700 $11,095,283.62 $55,476.42 $O.OD I $11,150,759.94 1809 2704 ($16,816.80) ($64.08) $O.DO ($16,900.88) 1609 6733 $38,222.45 $ib1.11 $0.00 $38,413.66 SubTotal Make checks payable'to State of Florid a for total amount of* $11,172,272.62 $11,172,272.$2' State of Florida Public Assistance, 5900 Lake Ellenor Drive, Orlando, FL 32809 -4634 Phone (407) 858 -2761 Fax (407) 858 -4429 renee.singh @em.myfiodda.com Payment 022 Project 2700 FEMA- 1609 -DR -FL Payment #122: Project 2700 (L - Cat G) 7A 021 - 99021 -00 Collier County $761,256.08 John Sdxnldl - May 16, 2006 Eligible Federal Admin State Obligated & Approved $1,272,301.32 Version 0 (Large) - Initial Obligation $3,381,940.54 $2,536,455.41 $16,909.70 nla SysremAdmMiaMalor- Apr 11, 2006 $255,883.14 Version 1 (Large) - Federal Share Change $0.00 $507,291.08 $0.00 n/a System Adminlstralor -Jan 16, 2007 $803,931.91 Version 2 (Large) - Federal Share Change $0.00 $338,194.05 $0.00 n/a SyslemAdminrabaror -Jun 19, 2007 $9,775,103.49 Version 3 (Large) - Eligible Amount Change $9,486,535.40 $9,486,535,40 $47,432.68 n/a Renee Singh -Aug 30, 2010 - $11,095,283,52 Version 4 (Large) - Version Modificationi $0,00 $0.00 $0.00 n/a Rena* Singh - Oct 10, 2010 Version 5 (Large) -Version Modification $0.00 $0.00 $0.00 n/a Rene* Singh - Jan 4 2011 Version 6 (Large) - Eligible Amount Change ($11,095,283.52) ($11,095,283.52) ($55,476.42) n/a Ranee Singh - Jul 16, 2012 Payment #79 $1,773,192.42 $1,773,192.42 $8,865.96 $0.00 Justified by RFRs (100.0% RFR #1 - Expense Approval $761,256.08 John Sdxnldl - May 16, 2006 RFR #1 - Expense Approval $1,272,301.32 Nkk Behnnan - Jul 28, 2006 RFR #1 - Expense Approval $255,883.14 Mo6asa Va&ja - Aug 2, 2008 RFR #1- Expense Approval $803,931.91 Darryl Cox -Jun 21, 2007 RFR #2 - Expense Approval $9,775,103.49 lrelheMe (Lents) Huk+ll - 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 BeAmwn - Jul 28, 2006 Payment #79 $191,912.36 $1,279.42 $31,985.39 Orlando Roddguaz - Aug 2, 2008 Payment #91 $343,416.08 $0.00 ($171,708.04) Orlando Rodriguez - Mar f2, 2007 Payment #107 $723,538.72 $4,019,66 $0.00 Yen Cal - Jul 27, 2007 Payment #108 $309,337.24 $0.00 ($114,472.03) Van Cal - Oct 31, 2007 Payment #119 $9,775,103.49 $48,875.52 $0.00 Jamie Booth - Jan 8, 2009 Payment #117 $0.00 ($0.01) $0.00 Jamie Booth - Jan 8, 2009 Adjustments — $12,868,475.94 — $64,342.38 — $0.00 + $0.00 + $0.00 + $0.00 This Payment ($11,096,283.52) ($65,476.42) n,rspa,,n.nrl..vs.6.1.r�ce ors0.oa PaymaM ukulations as al JW 19, ?Oi2. ' Plinhd from AwIdaPAxM on Jul 20, 2012 al 12.5! PM. $0.00 Payment #122 Project 6733 FEMA- 1609 -DR-FL Payment #122: Project 6733 (L - Cat G) Collier County Obligated & Approved Version 0 (Large) - Initial Obligation Syafem Adminfshalor- May 2$ 2006 Version 1 (Large) - Federal Share Change System Adminlstalor -Jan 18, 2007 Version 2 (Large) - Federal Share Change System Ad*Mialor- Jun 20, 2007 Version 3 (Large) - Eligible Amount Change System AdmWslfafor- Jan 30, 2008 Version 4 (Large) - Eligible Amount Change Renee Singh - Aup 17, 2010 Version 5 (Large) - Eligible Amount Change Renee Singh - Jul 18, 2012 Justifled by RFRs (1Q0.0 %) RFR #1 - Expense Approval Aaron Harden - Jun 11, 2007 Reversal of Overrun Previous Payments Payment #106 Yen Car -Jun 12, 2007 Payment #110 Yan Cot - OC131, 2007 Payment #119 Jamie Booth - Jan A. 2009 Adjustments This Payment rMspaymanlloaves a below of 50.00. °aymsnl eakvlalions a at J0l ra, 7012. °dnlsd from FibridsMorp on Jul 20, 2012 of 1235 PM. Eligible Federal Admin $625,964.16 $469,473.12 $3.129.82 $0.00 $93,894.62 $0.00 $0.00 $62,596.42 $0.00 (3107,135.18) ($107,135.18) ($535.67) $31,993.47 $31,993,47 $159.96 ($38,222.45) ($38,222.45) ($191.11) $512,600.00 $512,600.00 $2,663.00 $625,964.16 - $113,364.16 $512,600.00 $512,600.00 $2,563.00 $563,367.74 $3,129.82• $62,596.42 $0.00 ($75,141.71) ($375.71) — $550,822.45 — $2,754.11 — + $0.00 + $0.00 + ($38,212.46) ($191.11) 021 - 99021 -0D State n/a n/a n/a n/a n/a n/a $0,00 $0.00 $0.00 $0.00 $0.00 40.00 $0.00 $0.00 7a '7A U.S. Department of Homeland Security 500 C sweet, SW Washington. DC 20472 T,TAtTk FEMA MY 14 2012 Bryan Koon Director Florida Division of Emergency Management 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 -2100 Re: Second Appeal - Collier 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 in response;.to a January 24, 2011, letter from your office, 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 for 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 renourishlnent 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, 106-V 4� Deborah Ingram Assistant Administrator Recovery Directorate wwwfeme.gov A 7A SECOND APPEAL ANALYSIS FEMA- 1393 -DR -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 Tropical Storm Gabrielle (FEMA- 1393 -DR FL), Hurricane Katrina (FEMA-16O2-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 1 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` - PW,! FEMA4393 -DR -IF PW A`moynt' - < Sand Volume (CY) Beach 566 $1,700,137.45 70,650 Naples 568 $2,085,076.70 80,464 Vanderbilt 575 $634,657.86 36,382 Park Shore 673 $593,292.00 49,441 Marco Island Total $5,013,164.01 236,937, ' 4,290 P --W, ` ` FEMA �6QZ -QR-FL PW Amount Sand Vnhimo trvti" . 1109 $1,192,557.72 45,762 Naples 1110 $375,779.91 15,599 Vanderbilt Total $1,568,337.63 61;36;1 �. .. I •'. Fa0,3.)U . I * The eligible volume of sand in PW 2700 is allocated based on the Applicant's engineering study which attributes an estimate of 55% of the 2006 renourishment to FEMA - 1609- DR -FL. The PW's original scope of work approved 5 .8,641 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 Paget of 8 Sand Replacement, Project Worksheets 566 and 673 ' FE0A- 1609 -DR -FL 'PW • PW Amount- Sand Volume`i;CY Beach 1�: 2700* $12,868,475.94 367,159 Naples, Vanderbilt, Park Shore 2698 $284,334.27 11,803 Vanderbilt 2704 $100,815.00 4,290 Park Shore 6733 $550,822.45 55,000 Marco Island Total $13.804.447.66 438.252 �. .. I •'. Fa0,3.)U . I * The eligible volume of sand in PW 2700 is allocated based on the Applicant's engineering study which attributes an estimate of 55% of the 2006 renourishment to FEMA - 1609- DR -FL. The PW's original scope of work approved 5 .8,641 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 Paget of 8 Sand Replacement, Project Worksheets 566 and 673 7A 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 70,65,0 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 Appeal The Grantee submitted a first appeal on behalf of the Applicant on April 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 FEMA consolidate the three mainlandl 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 PW`s revised scope of work explained that the proposed Contracts cost represented 34 %'' of-the 2006 Mainland Collier County Beach Renourishmcnt Project. This apportionment came from a January 2010 report titled, "Tropical Storm Gabrielle, hurricanes Katrina and Wilma Storm Impact Re- assessment Report: 1995 -1996 Collier County Beach Nourishment Project," that was Iticcpared by Collier County ?s conwiitant for the mainland beach nourishment project, Coastal Planning and Engineering, Inc. (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 55% of the sand replacement to Hurricane' Wilma,' (FEMA- I60,9 -DR- L), I l %a to (Jurricane Katrina (FEMA- 1602- 1)R-FL), and the remaining 34 % to Tropical Storm Gabrielle (FFMA= 1,393- DR -FL) The 6,rantee also submitted a proposed draft_Version 2 of, PW 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 ol'$1,159,812.50. The scope of work detailed that the Contract cost represented 68.83 % 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. In a September 30, 2010, letter partially granting the Grantee's appeal, the Regional Administrator determined that the incurred environmental and turtle monitoring costs are eligi :: for reimbursement and directed that versions of PWs 566 and 673 be prepared to reflect those Second Appeal Analysis, Collier County Public Services Division, PA ID 021- 08835 -01 Page 2 of Sand Replacement, Project Worksheets 566 and 673 7A costs. The Regional Administrator further determined that no adequate basis was provided- for attributing the proposed portions of the 2006 and 2007 renourishment projects to PWs 566 and 673¢, The Regional Administrator noted that the Grantee's request to amend the scopes of work was submitted ,five years after FEMA approved the scopes of work on July 8, 2004. `'Pursuant to Title 44 Code of Federal Regulations (CFR) §206.206(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, 2011, the Grantee supported and forwarded the Applicant's November 24, 2010, second,appeal to FEMA. In the appeal, the Applicant'asserted that FEMA based the approved scopes of work on 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 .Applicant also requested that FEMA combine the three mainland beach PWs under a new version of PW 566 as shown in Table 2. The Applicant submitted copies of-the proposed draft closeout versions of PWs 566 and 673 that the Grantee had previously submitted with the.first . TABLE 2 — FEMA- 1393 -DR -FL — Amounts Obligated and Requested �` t , t \. t je � lM �f�•4l�iAgR.�y�1� I 1 r f r Naples 566 70,650 $1,700,13.7.45 $2,085,076.70 226'971 $8,534,565.27 Vanderbilt 568 80,464 X34% of 667,562 CY) Park Shore 575 36,382 $634,657.86 Marco Island 673 49,441 $593,292.00 121,457 $653,932.04 (68.83 %.of 176,457 CY) Total 236,937 , $5,1313,164.{)1' 348,428' ` $9,188,497.31 To, support its revised scopes of work and associated costs, the Applicant included a copy of remain appealable after the 60 -day post obligation period had expired. Furtherrn6iiF, [lie CPE report states that based on surveys taken in 2000 and 2006, the cumulative sand loss from the mainland beaches was 553,000CY. In calculating the revised costs on the closeout version of PW 566, the Applicant multiplied the 2006 mainland renourishment project costs by a 34% factor from the amount of erosion the CPF., report attributed to Tropical Storm Gabrielle. As justification for the eligibility of apportionment of the total renourishnient 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-Wifih4 (represented by PWs 2698, 2700, and 2704) and increased the approved costs to include 555%, of the °total billing amount of $ 19,833,883:57 for U� 2e 0 - 6*--"- renourishment project. FEMA 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 ofthe 2007 renourisluneni 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 7A 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 now supporting cost documentation or other information for the renourishment project contracts was provided. Based on the cost data contained in the two draft closeout versions, theApplicant 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 these,PWs in the context of the total damages documented by these'and the other eight PWs identified in Table 1. sand renourishment,'for which the Applicant -has requested reimbursement under FEMA-1393- DR- FL,!must be directly attributable to Tropical Storm Gabrielle. PW566,— Mainland 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 g Gabrielle and in the first quarter of 2006 before the mainland renourishment found the total volumetric toss over the nearly six years to be 369,001 CY.-CPE calculated a;total,sandloss 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 Initial ApproVed Storm Totals Percent of CPE deport; Disaster PW Mainland Sand Percent i f Scope Estimates (CY) (CY) Total Loss CY Totat:._ 1393 566 70,650 187,496 58% 187,496 349 568 80,464 575 36,382 1602 1109 45,762 61,361 19% 61,361 11$6 ,, • .. 1110 , -- _ 15,599 1609 2700 •58,641 74,734 23%. 3134;5.98 r,A 55°16 ors r. 2698 11,803 2704 4,290 Total 323,591. 200'x6„ 553,455 10961 , * Volume from orieinal 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 673 AA 7A 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- 1393 -DR FL, the Applicant is requesting reimbursement' from FEMA of 34% of the total contract cost -of $19,833,883.57 for depositing 667,562 CY of sand for renourishment of the mainland hrarhne As noted in the Grantee's July 10, 2008, memorandum accompanying the FIR, the "Total (e]ligible costs are to be determined by subtracting 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 completed'by the 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. Th documents er::indicated that fhe 141),102 CY of truclhauled sand from 200Q to 2003 represents three years' worth.of maintenance �J" 16 553,455 CY is the correct amount of total sand loss.m .fro the three-mainiand beaches bether -Ame 2000 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 heck- hauled.sand includes at least one (April 2001), if not two, maintenance nourishments before Tropical Storm Gabrielle; and w • The sand placed on the beaches between Tropical Storm Gabrielle and 2006 needs to be considered as maintenance aoushmeuts and not eligible storm losses. Even if maintenance nourishments 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 -stone 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. PW 673 — Marco Island Beach The renourisluneut 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 Work-sheets 566 and 673 1q of the 2007 renourishment project to Tropical Storm Gabrielle. new documentation in its second anDeal documenting the arrant pe of the renourshment project. the As with ",the mainland renourishment project, the quantity of sand replaced in the Marco island project included eligible sand loss due to the declared storms, as well as normal erosion of the beach before, between, and after the declared incident periods. This additional; sand is not 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 2008 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 2007 renourishment of the Marco Island beach were eligible. These projects renoudshed the beaches to their design for the first time since _orizinalnourishment in 1996; " While "thev did as well as sand placed on areas outside of The mainland project replaced a total of 667,562 CY of sand; only 187,496 CY of that sand (28,1 %u) is eligible for funding under FEMA- 1393-DR -FL. The Marco Island project replaced 176,457 CY of sand; 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 renourishment projects and need to be weighted accordingly. The costs are also divided by renourishment Second Appeal Analysis, Collier County Public Services Division, PA ID 021 -08835 -01 Page 6 of 8 Sand Replacement, Project Worksheets 566 and 673 7A ..; 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 maintained. 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 have been identified as 319,83 3,883.57 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 piaced.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. Adding the force account project management unit cost yields total unit costs of $30,2381 per CY for the mainland project and $9.3'187 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 theaamounts 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 Storm Gabrielle, the full costs should be reimbursed under FEMA- 13 93-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 oa PW 566. In order to reimburse only eligible costs, the FEMA Region W staff should prepare a closeout version of PW 566 to include a line item of - $4,419,$72.01 for deobligation of the 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$5,699,535.53 for the mainland beaches (187,496 CY x $30.23811CY + $30,000). Similarly, the Region should prepare a closeout version of PW 673, to deobligate the previously funded $593,292.00 and obligate $480,726 for the Marco Island beach (49,441 CY x $9.3187/CY + $20,000). Second Appeal Analysis, Collier County Public Services Division, PA ID 021 - 08835 -01 Page 7 of 8 Sand Replacement, Project Worksheets 566 and 673 �a l f 7A TABLE 5 —Funding of Beach Restoration under FF-MA- 1393 -DR -FL I f �lslRs MI MW 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 $653,932.04 $480,726.00 Total $5,013,1"o $9,188,497.31 $6,180,261.53 difester incident periods, and also placed sand on non-eligible beaches. )~final costs must be based on the eligible volumes of eroded sand that are directly attributable; to the declared event. Conclusion The Applicant did not present new documentation in its second appeal that demonstrates Tropicaf Storm Gabrielle eroded a greater volume of sand front 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, 563, 575, and 673. These surveys represent the most reliable pre - and post -storm beach profile measurements. CPU's, stud was `x 'ns . 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 nourislunent projects is eligible and should be apportioned to each of the three federally declared disasters. Nowever, the quantity of sand replaced through the two renomishment project includes sand loss as a result of the declared storms, as well as erosion before, between, and after the declared storms. Given that the mainland and Marcos Island renoutishment 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, Collier County Public Services Division, PA ID 021- 08835 -01 rage K or d Sand Replacement, Project Worksheets 566 and 673 7A 9 4 STATE OF FLORIDA DIVISION OF EMERGENCY MANAGEMENT RICK SCOTT DAVID HALSTEAD Govemor 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 HurTicane Katrina (DR -1602) and Hurricane Wilma (DR -1609) events. In 2009, the subject PW's were closed out with a large disparity existing between the subgrantee's claimed beach reconstruction 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 HEADOUARTERS • STATE LOGISTICS RESPONSE CENTER 36 Skyline Drive 2555 Shumard Oak Boulevard 2702 Direclors Row Lake Mary, FL 32746-6201 Tallahassee, FL 32399.2100 Orlando, FL 32809.5631 T.i. aen.Ara.00so. s7 . atn.saa.tnra 7A 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 attributing the additional underlying damage to Tropical Storna Gabrielle, and 2. FEMA 'clairns 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'tc 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 7A Ms. Elizabeth A. Zimmerman January 24, 2011 Page 3 PW indicated that there will be environmental monitoring costs 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 § I3.50(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 fast 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 Storm 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 dislaates this bast 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. The 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) 7A 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 @cm.myflorida.com. 7A Ms. Elizabeth A. Zimmerman January 24, 2011 Page 5 Sincerely, C N�� V t 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 (PLEASE PRINT CLEARLY) Agenda Item # MEETING DATE (Circle Meeting Type) Regular Special Workshop Budget AGEND ITEM TITLE NAME ADDRESS pa"eselti ��Ir — Other: COLLIER COUNTY ORD E 2003 -53, AS AMENDED BY ORDINANCE 2004 -05 AND 2007 -24, REQUIRES THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING I Y LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT. YOU ARE LIMITED TO THREE (3) MINUTES FOR YOU COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR PLACE COMPLETED FORM ON THE TABLE LEFT OF THE DIAS IN THE BOARD ROOM PRIOR TO THE SUBJECT BEING HEARD (PLEASE PRINT CLEARLY) Agenda Item # ,47 MEETING DATE +- I "" (Circle Meeting Type) Regular Special Workshop Budget AGENDA ITEM TITLE, NAME i/ l i �) "•:J �,F' ADDRESS Representing/ Petitioner: >t _ Other: ........ _...- _.,.... COLLIER COUNTY ORDINANCE NO. 2003 -53, AS AMENDED BY ORDINANCE 2004 -05 AND 2007 -24, REQUIRES THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT. YOU ARE LIMITED TO THREE (3) MINUTES FOR YOU COMMENTS AND ARE TO ADDRESS ONLY THE CHAIR PLACE COMPLETED FORM ON THE TABLE LEFT OF THE DIAS IN THE BOARD ROOM PRIOR TO THE SUBJECT BEING HEARD