Legal Responsibility for Repairs
Appeal Brief
Appeal Letter
Citation: Appeal Brief; Second Appeal; Santa Barbara County; FEMA-1044-DR-CA;PA #083-00000
Cross Reference: No DSR; Debris Removal; Legal Responsibility; Category A
Summary: As a result of the winter storms of 1995, a fence was damaged and three to six feet of debris was deposited at the Santa Barbara County (County) Bowl facility. The facility is leased from the County by the Santa Barbara County Bowl Foundation (Foundation). Originally, the Foundation applied for Federal assistance. However, FEMA determined that the Foundation is not an eligible private-non profit applicant and did not prepare a DSR. Subsequently, the County applied for the same assistance as the applicant. FEMA determined that the County was not legally responsible for the repairs, based on the Management and Lease Agreement between the County and the Foundation, and denied the request. In the first appeal, the County referred to a legal interpretation by its legal counsel which indicated "the ultimate responsibility for the repair of the public-owned facility lies with the County." Additionally, the County indicated it loaned the repair funds to the Foundation, through an amendment to the Lease Agreement, reaffirming their responsibility. The State did not support the appeal. The Regional Director determined that the Foundation had legal responsibility for the repairs and denied the appeal. In the second appeal, the County requests reimbursement of repairs within the Bowl facilities (including repairs to Newton Road). The County reiterates the contention that they have the ultimate responsibility for the Bowl and refers to the correspondence from its legal counsel. The State does not support the second appeal.
Issues:
Appeal Brief
Disaster | FEMA-1044-DR |
Applicant | Santa Barbara County |
Appeal Type | Second |
PA ID# | 083-00000 |
PW ID# | N/A |
Date Signed | 1999-01-25T05:00:00 |
Cross Reference: No DSR; Debris Removal; Legal Responsibility; Category A
Summary: As a result of the winter storms of 1995, a fence was damaged and three to six feet of debris was deposited at the Santa Barbara County (County) Bowl facility. The facility is leased from the County by the Santa Barbara County Bowl Foundation (Foundation). Originally, the Foundation applied for Federal assistance. However, FEMA determined that the Foundation is not an eligible private-non profit applicant and did not prepare a DSR. Subsequently, the County applied for the same assistance as the applicant. FEMA determined that the County was not legally responsible for the repairs, based on the Management and Lease Agreement between the County and the Foundation, and denied the request. In the first appeal, the County referred to a legal interpretation by its legal counsel which indicated "the ultimate responsibility for the repair of the public-owned facility lies with the County." Additionally, the County indicated it loaned the repair funds to the Foundation, through an amendment to the Lease Agreement, reaffirming their responsibility. The State did not support the appeal. The Regional Director determined that the Foundation had legal responsibility for the repairs and denied the appeal. In the second appeal, the County requests reimbursement of repairs within the Bowl facilities (including repairs to Newton Road). The County reiterates the contention that they have the ultimate responsibility for the Bowl and refers to the correspondence from its legal counsel. The State does not support the second appeal.
Issues:
- Are the repairs to the Bowl facility the legal responsibility of the County?
- Are the repairs to Newton Road the legal responsibility of the County?
- No. The Management and Lease Agreement clearly establishes that the Foundation, not the County, is responsible for facility repairs and maintenance. Additionally, the County states that it provided a loan to the Foundation to fund the repairs. This further demonstrates that the Foundation is responsible for the repairs.
- No. The lease Agreement contains no exclusions for road repairs. No documentation was provided to indicate that the repairs to Newton Road were outside of the Bowl facility and the County's responsibility.
Appeal Letter
January 25, 1999
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, CA 95741
Dear Mr. Christian:
This is in response to your letter dated July 10, 1998, to the Federal Emergency Management Agency (FEMA) forwarding a second appeal of a request for FEMA funding under FEMA-1044-DR-CA on behalf of Santa Barbara County (County), California. The applicant is requesting funding $39,849 for repairs and debris removal at the Santa Barbara County Bowl.
As a result of the winter storms of 1995, a fence was damaged and three to six feet of debris was deposited within the Bowl facilities. The Bowl is leased from the County by the Santa Barbara County Bowl Foundation (Foundation). Originally, the Foundation applied for Federal assistance. However, FEMA determined that the Foundation is not an eligible private-non profit applicant and a DSR was not prepared. Subsequently, the County applied for the same assistance as the applicant. FEMA determined that the County was not legally responsible for the repairs, based on the Management and Lease Agreement between the County and the Foundation, and denied the request. In the first appeal, the County referred to a legal interpretation by its legal counsel, which indicated "the ultimate responsibility for the repair of the public-owned facility lies with the County." Additionally, the County indicated it loaned the repair funds to the Foundation (through an amendment to the Lease Agreement), reaffirming their responsibility. The State did not support the appeal. The Regional Director determined that the Foundation had legal responsibility for the repairs and denied the appeal.
In the second appeal, the County requests reimbursement of repairs within the Bowl facilities, including repairs to Newton Road. The County reiterates the contention that they have the ultimate responsibility for the Bowl and resubmits the correspondence from its legal counsel in support of the appeal. The State does not support the second appeal. Therefore, the issue of this appeal is whether the County is legally responsible for the disaster-related repairs to the Bowl facilities and Newton Road.
The documentation indicates that the County is the legal owner of the County Bowl. However, the County and the Foundation entered into the Management and Lease Agreement, executed on February 22, 1994, to establish the legal responsibility for repairs and maintenance of the Bowl. Several provisions of this Agreement clearly establish that the Foundation is legally responsible for repairs to the Bowl. Specifically,Item 7, Section C, Maintenance and Repairs: "Foundation shall provide maintenance and repairs to the Premises.", Item 8, Rent: ".the Foundation shall be responsible for maintaining, repairing, improving and operating said Premises, at its own expense.", Item 33, County Interest: ".Foundation's operation hereunder shall not be considered as an operation of the County", and Item 34, Destruction of Premises: This section gives the Foundation the option to either rebuild or replace the damaged facilities or terminate the Agreement.
The language of the Agreement clearly indicates that the repairs were the legal responsibility of the Foundation at the time of the disaster. No documentation was provided to indicate that the Foundation (as lessee) terminated the Agreement (per Item 34) and that responsibility of the repairs defaulted to the County as the landowner. Further, the County indicates it provided a loan to the Foundation for the repairs. The amendment to the Agreement which provided the loan acknowledged the obligation of the Foundation to make the repairs.
Regarding the repairs to Newton Road, the lease Agreement contains no exclusions for road repairs. The documentation provided does not indicate that the repairs to Newton Road were outside of the Bowl property and were the responsibility of the County. Pursuant to Title 44 of the Code of Federal Regulations (CFR), section 206.223 (a)(3), repairs must be the legal responsibility of an eligible applicant to be eligible for financial assistance. After a thorough review of the documents provided, we have concluded that the Regional Director correctly determined that the repairs were not the legal responsibility of the County. Therefore, I am denying the second appeal.
Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, CA 95741
Dear Mr. Christian:
This is in response to your letter dated July 10, 1998, to the Federal Emergency Management Agency (FEMA) forwarding a second appeal of a request for FEMA funding under FEMA-1044-DR-CA on behalf of Santa Barbara County (County), California. The applicant is requesting funding $39,849 for repairs and debris removal at the Santa Barbara County Bowl.
As a result of the winter storms of 1995, a fence was damaged and three to six feet of debris was deposited within the Bowl facilities. The Bowl is leased from the County by the Santa Barbara County Bowl Foundation (Foundation). Originally, the Foundation applied for Federal assistance. However, FEMA determined that the Foundation is not an eligible private-non profit applicant and a DSR was not prepared. Subsequently, the County applied for the same assistance as the applicant. FEMA determined that the County was not legally responsible for the repairs, based on the Management and Lease Agreement between the County and the Foundation, and denied the request. In the first appeal, the County referred to a legal interpretation by its legal counsel, which indicated "the ultimate responsibility for the repair of the public-owned facility lies with the County." Additionally, the County indicated it loaned the repair funds to the Foundation (through an amendment to the Lease Agreement), reaffirming their responsibility. The State did not support the appeal. The Regional Director determined that the Foundation had legal responsibility for the repairs and denied the appeal.
In the second appeal, the County requests reimbursement of repairs within the Bowl facilities, including repairs to Newton Road. The County reiterates the contention that they have the ultimate responsibility for the Bowl and resubmits the correspondence from its legal counsel in support of the appeal. The State does not support the second appeal. Therefore, the issue of this appeal is whether the County is legally responsible for the disaster-related repairs to the Bowl facilities and Newton Road.
The documentation indicates that the County is the legal owner of the County Bowl. However, the County and the Foundation entered into the Management and Lease Agreement, executed on February 22, 1994, to establish the legal responsibility for repairs and maintenance of the Bowl. Several provisions of this Agreement clearly establish that the Foundation is legally responsible for repairs to the Bowl. Specifically,
The language of the Agreement clearly indicates that the repairs were the legal responsibility of the Foundation at the time of the disaster. No documentation was provided to indicate that the Foundation (as lessee) terminated the Agreement (per Item 34) and that responsibility of the repairs defaulted to the County as the landowner. Further, the County indicates it provided a loan to the Foundation for the repairs. The amendment to the Agreement which provided the loan acknowledged the obligation of the Foundation to make the repairs.
Regarding the repairs to Newton Road, the lease Agreement contains no exclusions for road repairs. The documentation provided does not indicate that the repairs to Newton Road were outside of the Bowl property and were the responsibility of the County. Pursuant to Title 44 of the Code of Federal Regulations (CFR), section 206.223 (a)(3), repairs must be the legal responsibility of an eligible applicant to be eligible for financial assistance. After a thorough review of the documents provided, we have concluded that the Regional Director correctly determined that the repairs were not the legal responsibility of the County. Therefore, I am denying the second appeal.
Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
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