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Second Appeal Brief
PA ID# 071-99071-00; San Bernadino County
PW ID# 1047; Legal Responsibility
FEMA-1498-DR-CA; San Bernardino County, Project Worksheet (PW) 1047
During the incident period for major disaster declaration FEMA-1498-DR-CA, a rain storm caused significant flooding and debris flows in San Bernardino County (Subgrantee) in December 2003. At the time of the storm, the Inland Empire Utility Agency (IEUA) was constructing an inlet structure for the San Sevaine Channel. The flooding caused heaving of the concrete invert slab and longitudinal cracking in the sidewalls. The Federal Emergency Management Agency (FEMA) prepared PW 1047 for the permanent repairs of the channel, estimated at $702,180, but determined the work ineligible because the site was under construction at the time of the incident by SEMA Construction, Inc., and was not the legal responsibility of the Subgrantee. The Subgrantee submitted its first appeal on July 9, 2004, claiming it had the legal responsibility of the construction site. It stated that SEMA Construction, Inc. was working near the damage site and that the damage site was outside of SEMA Constructions project limits. The FEMA Region IX Acting Regional Director denied the appeal on June 6, 2005, because the agreement between the Subgrantee and IEUA did not stipulate that the Subgrantee had the legal responsibility for damage repairs. The Subgrantee submitted its second appeal on August 22, 2005, citing contract law that states if a contract does not include transferring the legal responsibility of repairing disaster-related damage to the contractor, the responsibility shall stay with the owner of the facility. Also, it claimed its agreement with IEUA states that IEUA is only responsible for damages caused as a result of its negligent acts or omission. The Governors Office of Emergency Services supports the Subgrantees appeal for $702,180.
Did the Subgrantee have the legal responsibility for the damages?
No. The agreement the Subgrantee had with IEUA stipulated that IEUA was responsible for the operation and maintenance of the diversion structure.
44 CFR §206.223