PA ID# 000-00000; Guam Economic Development Authority
DSR ID# N/A; BRAC Shipyard Facility Repairs
Citation: Second Appeal; Guam Ecomonic Development Authority; FEMA-1193-DR-GU
Cross Reference: No DSR; Legal Responsibility; BRAC; Other Federal Agency
Summary: In 1997, Supertyphoon Paka resulted in an estimated $4,000,000 of damages to the Ship Repair Facility (SRF) at the US Naval Air Station (NAS) located in Tiyan, Guam. Prior to the disaster, the former NAS was under the Base Realignment and Closure program. As part of base closure activities, the Navy and the Government of Guam (GovGuam), through the Guam Economic Development Authority (GEDA), entered into an interim lease agreement for the SRF. Provisions of the lease specified that GEDA was legally responsible for repairs and maintenance of the SRF exclusive of acts of God. The interim lease also allowed GEDA to sublease the facility to XenoTechnix. Following the disaster, FEMA determined that GEDA was not legally responsible for the disaster-related repairs at the SRF and no DSRs were approved for these repairs. On February 23, 1998, in response to a GovGuam inquiry regarding eligibility of the SRF repairs, FEMA stated that the interim SRF lease established that GEDA was responsible for debris removal and utility repairs and not responsible for repairs necessary from an act of God. In response to another GovGuam inquiry regarding the eligibility of the SRF repairs (considered a first appeal), FEMA determined that the appeal contained a new issue, the sublease between GEDA and XenoTechnic and legal responsibility for the repairs. FEMA reiterated that provisions of the interim lease established that GovGuam was not responsible for repairs of damages resulting from an act of God. Regarding the sublease, FEMA determined that, although the sublease contained a provision requiring GEDA to repair damages following fire or other casualty, the sublease did not supercede the primary lease and did not create any legal responsibility for the damages. In this appeal, the applicant contends that the interim lease establishes that it is responsible for the disaster-related repairs and that FEMA misapplied Section 13.1 of the lease to infer that catastrophic repairs (rather than routine maintenance) were excluded. The applicant contends that the sublease also establishes that GEDA is legally responsible for the damages.
Pursuant to the interim lease, is GEDA legally responsible for the disaster-related repairs of the SRF facilities?
Pursuant to the sublease lease, is GEDA legally responsible for the disaster-related repairs of the SRF facilities?
Do any of the provisions of the sublease supercede the primary lease?
No. The interim lease establishes that GEDA is not legally responsible for the disaster-related repairs.
No. The sublease establishes that GEDA could terminate the lease at its sole discretion and is not legally mandated to perform the disaster-related repairs.
No. The primary lease establishes that, "Should a conflict arise between the provisions of this lease (primary) and provisions of a sublease, the provisions of this lease shall take precedence." (Section 6.3)