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Second Appeal Letter
PA ID# 033-UOSW7-00; Washington State Major League Baseball Stadium Public Facilities District
PW ID# 665, 666 and 678; Safeco Field
February 3, 2004
Ms. Donna J. Voss
Deputy State Coordinating Officer
State of Washington Military Department
Emergency Management Division
MS: TA-20 Building 20
Camp Murray, WA 98430-5122
Re: Second Appeal Washington State Major League Baseball Stadium Public Facilities District, WA, PA-ID # 033-UOSW7-00, Safeco Field, FEMA-1361-DR-WA, Project Worksheets 665, 666 and 678
Dear Ms. Voss:
This is in response to your August 11, 2003, letter transmitting the above referenced second appeal submitted by the Washington State Major League Baseball Stadium Public Facilities District (PFD) to the Department of Homeland Securitys Federal Emergency Management Agency (FEMA). The applicant is requesting reimbursement for repair of Safeco Field and the adjacent parking structure, and for safety inspections ($472,766.52). Damage to the facilities occurred during the Nisqually Earthquake on February 28, 2001.
44 CFR § 206.223 states that to be eligible for assistance, an item of work must be the legal responsibility of an eligible applicant. The FEMA Chief of Staff responded to the first appeal in a letter dated February 28, 2003, and determined that the PFD was not legally responsible for repairs. Although the PFD owns the ballpark, it leases the ballpark to the Baseball Club of Seattle (Club). According to terms of the Operations and Lease Agreement and the Project Closeout and Settlement Agreement, the lessee (the Club), not the PFD, is legally responsible for the earthquake repairs. The lease states that the PFD may use funds from the Excess Revenues Fund to reimburse the Club for repair costs, but reimbursement is required only when funds are available.
In the second appeal, the PFD maintains that the lease does not state that the Club is responsible for extraordinary repairs, nor does it absolve the PFD of its legal financial responsibility.
Article 7.1 of the lease agreement states that, the Club is solely and exclusively responsible for all Major Maintenance and Capital Improvements during the Operating Term
. Notwithstanding the foregoing provisions of this Article 7.1, the Parties obligation to repair or rebuild the Ballpark following Catastrophic Damage shall be governed solely by the provisions of Articles 7.6 and 7.7. The damage to Safeco Field and the parking structure does not meet the definition of Catastrophic Damage as defined in Article 7.6.
Article 7.7.3 of the lease agreement states that for non-catastrophic damage to the facilities,
the Club shall use the insurance proceeds, together with any available funds from the Capital Fund, the Excess Revenues Fund and any supplemental funding required by the Club, to fully repair the Leased Premises
. The Excess Revenues Fund is funded by a tax levied on each ticket sold for entrance to the ballpark and is managed by the PFD. The Excess Revenues Fund is used primarily to repay the bonds sold to build the adjacent parking structure. Funds available after the bonds are retired (between 2008 and 2018) may be used for capital improvements to the Safeco Field. Contrary to PFDs assertion, this provision of the lease agreement does not transfer legal responsibility for the repairs back to PFD for purposes of the Public Assistance Program. Article 7.1 clearly states that the Club is responsible for the repairs to the damaged facilities. Based on the above and reasons contained in the first appeal response, I am denying the appeal.
Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Daniel A. Craig
Emergency Preparedness and Response
cc: John PenningtonRegional Director