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Speech and Hearing Institute Building
Appeal Brief
Appeal Letter
Appeal Analysis
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.
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 delivered the draft Project Worksheet (PW) #551 to UTHSCH and the state on September 26, 2002, wherein $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. In addition, UTHSCH was advised that an improved or alternate project would not be eligible absent a legal responsibility to repair the damaged building.
First Appeal
In response to a letter dated November 25, 2002, from UTHSCH, FEMA formally responded to the state on January 6, 2003, stating that UTHSCH was not eligible for funding to make permanent repairs at SHI. FEMAs position was that the Amended and Restated Agreement of Merged Leases dated April 19, 2001, defines the relationship between the Institute for Rehabilitation and Research (TIRR) and UTHSCH relative to SHI at the time of the disaster and presently. The relationship is one of Landlord (TIRR) and Tenant (UTHSCH). Nothing in the lease agreement or any other document produced by UTHSCH supports the position that UTHSCH owned SHI at the time of the disaster and presently. As a Tenant assigned repair responsibility by the lease agreement, UTHSCH is eligible for FEMA funding to repair the damaged facility. It is not eligible to use that funding for a different purpose at another location by electing the improved or alternate project option. Its responsibility is limited to the leased location. FEMA therefore processed PW #551 with no eligible funding for permanent repairs. Further, FEMA states that UTHSCHs request for an improved project should be denied.
Second Appeal
A second appeal was sent from UTHSCH dated April 2, 2003, wherein UTHSCH acknowledged FEMAs finding that UTHSCH was a Tenant with repair responsibility, however, UTHSCH maintained that they had always indicated their intention of reinstating the pre-disaster functions and use conducted at SHI at a different location. UTHSCH is requesting funding for an improved project for $142,600.
DISCUSSION
FEMA determined in the first appeal that UTHSCH was a Tenant with repair responsibility by the lease agreement. FEMA now also acknowledges UTHSCHs intention of reinstating the pre-disaster functions and use conducted at SHI at a different location. However, in the lease agreement provided to FEMA, the lease expires December 31, 2002. On that date UTHSCH would no longer have legal responsibility for the leased premises making UTHSCH ineligible for permanent work funding once the lease expired on that date (44 CFR § 206.223(a)(3)). Further, as documented in PW #551, TIRR indicated that they would demolish the leased premises, build an office/parking facility and would not hold UTHSCH to their legal responsibility of making repairs to SHI.
In addition, while improved projects allow for significant change from the pre-disaster configuration (e.g., a different location) (Public Assistance Guide p.85), UTHSCH only had repair responsibility for the leased premises (as stated in the lease agreement). Therefore, an improved project at a different location is not an option for UTHSCH. Whether the disaster had occurred or not, UTHSCH would still have had to re-establish its functions at a different location. Again, the lease agreement is stipulating responsibility for the leased premises and legal responsibility only applies to those leased premises and not to a different location.
CONCLUSION
UTHSCH is not eligible to received $142,600 for permanent repairs and is not eligible for an improved project as requested in the second appeal. The appeal is denied.
Appeal Brief
| Disaster | FEMA-1379-DR |
| Applicant | University of Texas Health Science Center at Houston |
| Appeal Type | Second |
| PA ID# | 000-UAA9T-00 |
| PW ID# | 551 |
| Date Signed | 2003-10-14T04:00:00 |
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.
2) Is UTHSCH eligible for funding for an improved project at another location?
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.
Appeal Letter
October 14, 2003
Mr. Thomas A. Davis, Jr., Director
Division of Emergency Management
Texas Department of Public Safety
2575 W. Bellfort Street, Suite 300
Houston, Texas 77054-5025
Re: Second Appeal University of Texas Health Science Center at Houston,
PA-ID # 000-UAA9T-00, Speech and Hearing Institute Building, FEMA-1379-DR-TX, Project Worksheet #551
Dear Mr. Davis:
This is in response to your April 2, 2003, letter transmitting the above referenced second appeal submitted by the University of Texas Health Science Center at Houston (UTHSCH) to the Federal Emergency Management Agency (FEMA). UTHSCH is requesting that FEMA prepare a Project Worksheet for $142,600 to obligate funding for an improved project wherein the pre-disaster function performed at the Speech and Hearing Institute could be continued at the Medical School Building.
As explained in the enclosed analysis, I have determined that the requested costs for an improved project are not eligible for reimbursement. Therefore, UTHSCHs second appeal is denied.
Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness and Response Directorate
Department of Homeland Security
Enclosure
cc: Gary JonesActing Regional Director
Region VI
Mr. Thomas A. Davis, Jr., Director
Division of Emergency Management
Texas Department of Public Safety
2575 W. Bellfort Street, Suite 300
Houston, Texas 77054-5025
Re: Second Appeal University of Texas Health Science Center at Houston,
PA-ID # 000-UAA9T-00, Speech and Hearing Institute Building, FEMA-1379-DR-TX, Project Worksheet #551
Dear Mr. Davis:
This is in response to your April 2, 2003, letter transmitting the above referenced second appeal submitted by the University of Texas Health Science Center at Houston (UTHSCH) to the Federal Emergency Management Agency (FEMA). UTHSCH is requesting that FEMA prepare a Project Worksheet for $142,600 to obligate funding for an improved project wherein the pre-disaster function performed at the Speech and Hearing Institute could be continued at the Medical School Building.
As explained in the enclosed analysis, I have determined that the requested costs for an improved project are not eligible for reimbursement. Therefore, UTHSCHs second appeal is denied.
Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness and Response Directorate
Department of Homeland Security
Enclosure
cc: Gary JonesActing Regional Director
Region VI
Appeal Analysis
BACKGROUNDTropical 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 delivered the draft Project Worksheet (PW) #551 to UTHSCH and the state on September 26, 2002, wherein $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. In addition, UTHSCH was advised that an improved or alternate project would not be eligible absent a legal responsibility to repair the damaged building.
First Appeal
In response to a letter dated November 25, 2002, from UTHSCH, FEMA formally responded to the state on January 6, 2003, stating that UTHSCH was not eligible for funding to make permanent repairs at SHI. FEMAs position was that the Amended and Restated Agreement of Merged Leases dated April 19, 2001, defines the relationship between the Institute for Rehabilitation and Research (TIRR) and UTHSCH relative to SHI at the time of the disaster and presently. The relationship is one of Landlord (TIRR) and Tenant (UTHSCH). Nothing in the lease agreement or any other document produced by UTHSCH supports the position that UTHSCH owned SHI at the time of the disaster and presently. As a Tenant assigned repair responsibility by the lease agreement, UTHSCH is eligible for FEMA funding to repair the damaged facility. It is not eligible to use that funding for a different purpose at another location by electing the improved or alternate project option. Its responsibility is limited to the leased location. FEMA therefore processed PW #551 with no eligible funding for permanent repairs. Further, FEMA states that UTHSCHs request for an improved project should be denied.
Second Appeal
A second appeal was sent from UTHSCH dated April 2, 2003, wherein UTHSCH acknowledged FEMAs finding that UTHSCH was a Tenant with repair responsibility, however, UTHSCH maintained that they had always indicated their intention of reinstating the pre-disaster functions and use conducted at SHI at a different location. UTHSCH is requesting funding for an improved project for $142,600.
DISCUSSION
FEMA determined in the first appeal that UTHSCH was a Tenant with repair responsibility by the lease agreement. FEMA now also acknowledges UTHSCHs intention of reinstating the pre-disaster functions and use conducted at SHI at a different location. However, in the lease agreement provided to FEMA, the lease expires December 31, 2002. On that date UTHSCH would no longer have legal responsibility for the leased premises making UTHSCH ineligible for permanent work funding once the lease expired on that date (44 CFR § 206.223(a)(3)). Further, as documented in PW #551, TIRR indicated that they would demolish the leased premises, build an office/parking facility and would not hold UTHSCH to their legal responsibility of making repairs to SHI.
In addition, while improved projects allow for significant change from the pre-disaster configuration (e.g., a different location) (Public Assistance Guide p.85), UTHSCH only had repair responsibility for the leased premises (as stated in the lease agreement). Therefore, an improved project at a different location is not an option for UTHSCH. Whether the disaster had occurred or not, UTHSCH would still have had to re-establish its functions at a different location. Again, the lease agreement is stipulating responsibility for the leased premises and legal responsibility only applies to those leased premises and not to a different location.
CONCLUSION
UTHSCH is not eligible to received $142,600 for permanent repairs and is not eligible for an improved project as requested in the second appeal. The appeal is denied.