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Third Appeal Brief
PA ID# 103-03027-00; University of Iowa
PW ID# (PW) 10455 ; Temporary Facilities – Increased Operating Expenses
Conclusion: FEMA does not fund operating or maintenance costs associated with temporary facilities. Therefore, the costs associated with CAM fees are ineligible.
From May 25 to August 13, 2008, severe storms caused the Iowa River to flood the campus of the University of Iowa (Applicant). The Applicant leased a unit (Facility) within a nearby mall (Center) while its School of Music was repaired. FEMA wrote PW 10455 to capture costs associated with leasing the Facility. Beyond base rent and operating expenses within the Facility, the Applicant’s lease (Lease) also required payment of a CAM fee. Over the 90-month course of the Lease, CAM fees totaled $81,000.32. On March 27, 2017, the State of Iowa (Grantee) submitted a closeout request for PW 10455, seeking reimbursement of the CAM fees, among other expenses. In a Determination Memorandum (Determination Memo) dated May 5, 2017, FEMA found that the CAM fees were costs associated with operating and maintaining a temporary facility, and ineligible per DAP 9523.3. FEMA sent its Determination Memo via letter and email on June 13, 2017. The Applicant acknowledged receipt of FEMA’s decision on June 14, 2017, and appealed by letter dated July 28, 2017, arguing that the CAM charges were not maintenance costs, but extra rent. The Grantee transmitted the appeal on September 26, 2017, supporting it. FEMA sent a request for information (RFI) on October 10, 2017, for documentation that the CAM fees were not costs the Applicant would have incurred prior to the disaster, and that the CAM fees did not qualify as maintenance or operating costs, or increased expenses associated with relocating to a temporary facility. By letter dated November 10, 2017, the Applicant responded, renewing its arguments, but providing no additional documents. On December 6, 2017, the Regional Administrator (RA) found that the CAM fees were ineligible maintenance and operating expenses, and that the Applicant would have incurred many of the same costs, absent the disaster. By letter dated February 2, 2018, the Applicant submitted a second appeal, which the Grantee transmitted on April 3, 2018.
Authorities and Second Appeals
Stafford Act § 403
2 C.F.R. Part 220, Appx. A (2008)
DAP 9523.3, at 3 – 5 (1998)
PA Guide, at 38 – 39, 48, 54 – 55
PAPPG, at 27 – 29
Middleburgh Cent. Sch. Dist., FEMA-4020-DR-NY, at 4
Univ. of Iowa, PW 5246, FEMA-1763-DR-IA, at 1
Disaster Assistance Policy 9523.3 provides that FEMA will not cover maintenance, utilities, or operational costs associated with the provision of temporary facilities, nor will it provide funding to cover the difference if those costs should increase as a result of the disaster.
The PA Guide states that FEMA generally does not cover cover maintenance, utilities, or operational costs associated with the provision of temporary facilities, outside of certain narrow exceptions.