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Second Appeal Brief
PA ID# 000-UAA9T-00; University of Texas Health Science Center at Houston
PW ID# 551; Speech and Hearing Institute Building
Citation: FEMA-1379-DR-TX; UTHSCH; Project Worksheet #551
Cross-reference: Improved project, general eligibility, tenant with repair responsibility
Summary: Tropical Storm Allison produced severe flooding during the period of
June 8-9, 2001, causing damages to non-structural elements and essential mechanical, electrical and plumbing (MEP) systems, and to equipment in the Speech and Hearing Institute (SHI) Building at the University of Texas Health Science Center at Houston (UTHSCH). FEMA informally relayed to UTHSCH and the state on September 26, 2002, that $4,063 in emergency work was determined eligible and $158,930 in permanent repairs (less insurance of $27,925) was determined ineligible because UTHSCH did not intend to make repairs. Further, UTHSCH did not have legal responsibility to make repairs.
In the first appeal, dated January 6, 2003, FEMA determined that UTHSCH was a Tenant assigned repair responsibility by the lease agreement, and eligible for FEMA funding to repair the damaged facility. However, UTHSCH was not eligible to use that funding for a different purpose at another location by electing the improved or alternate project option.
Issues: 1) Is UTHSCH eligible for funding of permanent work?
2) Is UTHSCH eligible for funding for an improved project at another location?
Findings: 1) No. At the time of the disaster, UTHSCH occupied the SHI as a Tenant pursuant to an Amended and Restated Agreement of Merged Leases dated April 19, 2001. While UTHSCH had legal responsibility to repair SHI, they did not intend to make repairs. In addition, their legal responsibility to make repairs ended on December 31, 2002, when their lease with TIRR expired. Further, TIRR was not holding UTHSCH responsible for repairs to the leased premises and indicated that SHI would be demolished and replaced by an office/parking facility once the lease expired.
2) No. Since UTHSCH is not eligible for funding of permanent work because they no longer had legal responsibility for the damaged facility after
December 31, 2002 (44CFR § 206.223(a)(3)), they are not eligible for an improved project at another location. In addition, while UTHSCH had legal responsibility to repair SHI prior to December 31, 2002, the legal responsibility was only for the leased premises (as stated in the lease agreement) and not for any other facility at a different location.
Rationale: 44 CFR § 206.223; the Amended and Restated Agreement of Merged Leases dated April 19, 2001, as provided by UTHSCH.