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AC No. 1991-11U.S.Depafimeni `Co~mahder (sr J` '` `~ '; Coast Guard island OfTfOnSpOrtOilOn Maintenance & Logistics Alameda, CA 94501-5100 ~~~ $tp}gg Command Pacific Tel: (415) 437-3657 COastGucfd ( FTS ) 536-3657 11011 20 November 1991 Mr. Ray Camardella Director, Engineering/Facilities Kodiak Island Borough 710 Mill Bay Road Kodiak, Alaska 99615-6340 Dear Mr. Camardella: Enclosure (1), a fully executed copy of Coast Guard License No. DTCG-271133-91-RP-039L covering the period 1 September 1991 through 31 August 2016 authorizing the Peterson School, at the Coast Guard Support Center, Kodiak, Alaska, is forwarded for your records. After the transfer of the School is complete, the Agreement with the Department of Education will be terminated. The Borough's reimbursement to the Coast Guard for the water, sewer, garbage, and snow removal, will be handled in an agreement to be established at a later date. Your cooperation is appreciated. Mr. Larry McIver is available for any questions, telephone (415) 437-3657. Simerely G/ W. PATRICK LAYNE LCDR, U.S. Coast Guard Chief, Real Property Branch By direction of the Commander Encl: (1) Copy of License No. DTCG-271133-91-RP-039L Copy: SUPRTCEN Kodiak Mr. Charles E. Hansen, Director Impact Aid Program Elementary and Secondary Education United States Department of Education Washington, D. C. 20202 RECEIttEED '~11 26 X991 auwe t Maintenance and Logistics Command Pacific REVOCABLE LICENSE License No. DTCG-271133-91-RP-039L The UNITED STATES OF AMERICA, acting by and through the UNITED STATES COAST GUARD, Commander (sr), Maintenance and Logistic Command Pacific, Coast Guard Island, Alameda, California, 94501- 5100, (hereafter called "LICENSOR"), grants to the KODIAK ISLAND BOROUGH, whose mailing address is: 710 Mill Bay Road, Kodiak, Alaska 99615-6340 (hereafter called "LICENSEE"), a Revocable License to use a portion of the COAST GUARD SUPPORT CENTER, KODIAK, ALASKA subject to the following terms and conditions. 1. The LICENSOR grants to the LICENSEE the nonexclusive right to use the following described premises or facilities: A tract of land within the U.S. Coast Guard Support Center, Kodiak, Alaska, which was withdrawn from settlement, location, sale, or entry and reserved for naval purposes under Presidential Executive Order No. 8278 on 28 October 1939, and is more particularly described as follows: Beginning at a point, Cor. 1, U. S. Coast Guard Support Center, Kodiak, Alaska, which is located at a point North 340 59' 20" East 2600.19 feet from U. S. Coast and Geodetic Survey Monument, " Chiniak Southwest Base ", thence South 520 58' 11" East for 128.61 feet to Cor. 2, thence North 370 02' 00" East for 222.50 feet to Cor. 3, thence South 530 07' 40" East for 490.61 feet to Cor. 4, thence South 390 22' 22" West for 462.89 feet to Cor. 5, thence North 500 37' 30" West for 47.00 feet to Cor. 6, thence South 500 05' 30" West for 263.79 feet to Cor. 7, thence North 590 27' 30" West for 485.02 feet to Cor. 8, thence North 350 48' 00" East for 548.64 feet to Cor. 1, the point of beginning, which description is based on pre-quake 1964 datum and encloses 9.11 acres more or less, together with the necessary non- exclusive right of ingress and egress over existing roadways and streets at the Support center; all as delineated on Drawing No. KC 18391 dated 24 June 1966, except that the ball diamond shall be available for. Coast Guard use when not required for school sponsored activities. 2. This license shall be in effect for the period 1 September 1991 through 31 August 2016. The LICENSOR or its successor may revoke this license at any time by giving thirty (30) days written notice of termination to the LICENSEE at the above address. The LICENSEE may revoke this license at any time by giving thirty (30) days written notice of termination to the United States Coast Guard at the above address. ~ l ~ ~ ~ n - 'S °7 r 3. The LICENSEE shall use the licensed premises for the purpose of operating and maintaining school buildings and appurtenances for the public education of children residing at the Support center. 4. This License shall be neither assignable nor transferable by the LICENSEE. No permanent interest in the real property subject to this License shall vest in the LICENSEE. 5. This License shall be at no cost to the LICENSEE. 6. The LICENSEE, at its own cost and expense, shall protect, maintain, and keep in good order the premises or facilities licensed hereby. 7. No substantial alteration of existing premises or facilities, or construction of permanent type improvements shall be made without the approval of the LICENSOR. Any structure or device erected or installed without LICENSOR's written consent, or with consent and is later found to interfere with the proper operation of any of LICENSOR's equipment, shall be removed immediately upon written notice from the LICENSOR and at the LICENSEE's own expense. Upon revocation, expiration, or surrender of this License, and to the extent directed by the LICENSOR, the LICENSEE shall remove all alterations, additions, betterments, and improvements made, or installed, and restore the premises or facilities to the same or as good condition as existed on the date of entry under this License, reasonable wear and tear excepted. 8. The use and occupancy of said portion of the Coast Guard premises shall be without expense to the United States and shall be subject to such rules and regulations as LICENSOR, or its duly authorized representative, may from time to time prescribe. 9. Unless specifically allowed elsewhere herein, the LICENSEE shall at no time permit: (a.) Access to any light, fog signal and radiobeacon facilities nor (b.) Any interference with the Coast Guard operations or access rights; nor shall any Government property of any nature whatsoever be removed from the premises. If LICENSEE'S equipment causes interference to any of LICENSOR's equipment or operation, it shall be the sole responsibility of the LICENSEE to correct any interference problems,. or cease their operation and remove all equipment. 10. This license shall not be administered for profit. 11. The LICENSEE shall be liable for any loss of, or damage to, the premises or facilities incurred as a result of its use and shall make such restoration or repair, or monetary compensation as may be directed by the LICENSOR. 12. The LICENSEE hereby agrees to defend, indemnify and hold harmless the United States, its officers, agents, servants and employees, from all liability under the Federal Tort Claims Act (28 USC, Sections 2671,2680) or otherwise, for death or injury to all persons, or loss or damage to the property of all persons resulting from the use of the premises by the LICENSEE. 13. The LICENSEE is a self insured entity. Although the LICENSEE is relieved of the obligation to provide liability coverage, the LICENSEE shall never the less assume the same liabilities arising out of its use of government property as any LICENSEE not so exempted. 14. The LICENSOR shall have access to the licensed property at all reasonable times for inspection, maintenance, or any other purpose. 15. The LICENSEE, for itself, its personal representatives, successors in interest, and assignees as a part of the consideration hereof, and as a term and condition of the License, does hereby covenant and agree that, (1) no person on the grounds of race, color, age, handicap, religion, martial status or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities; (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, color, age, handicap, religion, martial status or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination; (3) that the LICENSEE shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-Assisted programs of the Department of Transportation - Effectuation of Title VI or the Civil Rights Act of 1964, and as said regulations may be amended. 16. The LICENSEE has executed the Standard Department of Transportation Title VI Assurances, an executed copy of which is attached hereto and made a part hereof. The LICENSEE accepts the provisions of the Assurances as part of the terms, conditions, and covenants of this License. 17. In the event of breach of any of the terms, conditions, and covenants of the Standard Department of Transportation Title VI Assurances, the United States shall have the right to terminate the License and reenter and repossess said land and the government facilities thereon, and hold same as if said License had never been made or issued. 18. No member or delegate to Congress or Resident Commissioner shall be admitted to any share or part of this License or any benefit to arise therefrom, but this provision shall not be construed to extend to this License if made with a 'p c - " -~ ~ corporation whose membership, includes a member or delegate to Congress or Resident Commissioner, who indirectly receives a general benefit from this License. 19. The LICENSEE warrants that no person or selling agency has been employed or retained to solicit or secure this License upon an agreement or understanding for a commission, percentage, brokerage or contingent fee. For Breach or violation of this warranty, the Government shall have the right to annul this License without liability or in its discretion recover from the LICENSEE the amount of such commission, percentage, brokerage or contingent fee in addition to the consideration if any, herein set forth. UNITED STATES OF AMERICA UNITED STATES COAST GUARD Noy / G~ DATE W. PATRICK LAYN USCG Chief, Real Propert ranch Maintenance and Logistics Command Pacific By direction of the Commander This Revocable License is also executed by the LICENSEE in acknowledgment and acceptance of the terms and conditions herein set forth. KODIAK ISLAND BOROUGIi DAT Si atureSi /Title~c~ J~MIN, EBELL. BOLGER & GENTRY • PROFESSIONAL CORPORATIOK JOEL H. BOLGEw• ATTORNEYS AT LAW C. WALTER EBELL• 32] GAROLYN STREET D UNCAN S. FIELDS DIANNA R. GENTRY KODIA K. ALASKA 99613 MATTHEW D. JA MIN WALTER W. MASON• TELEPHONE: (90T( A99-902s JANE E. SAVER •LAN L. SCH MITT FACBIM IL E: (90>) 196'8112 MICHAEL G. SCIACCA• REPLY TO KO DIAK OFFICE .AOMI~iCP Ta •w0 wwSti~.IG~Ow Y [R3 APrnii i[P )O •L.9.A e.n ~[p1f(1t1111n1E[f TO The Honorable Jerome Selby, Mayor RODIAR ISLAND BOROU~ FROM Joel H. Bolger !/G~ JAMIN, EBE , R & GENTRY DATE September 28, 1992 RE Peterson Elementary Transfer Our File No. 4702-179 ANCHORAGE OPPIC E: iZ001 STRCCT, SV rtE >O• •NCHORAG[. ALASnA 99301 TELEPHONE ANO FAi X90>) ne'eloo SEATTLE OFFICE: JOO MUTUAL 4PC 9WLOING GOS PIwST A`/ErvUE SEAiiL E, wAS MIN GTON 9SIOa • ELE Pi+ONE: IZOeI 922-TIJe FACSIMILE: (2001 e2]-T321 I contacted Jane Hess who is a program attorney for the Department of Education. I asked Miss Hess if the indemnity clause in the quitclaim deed was intended to cover construction and maintenance work performed by the IInited States in the past. I asked if the language in the clause could be changed. Hess responded that the United States would take the position that by accepting the quitclaim deed, the Rodiak island Borough is accepting all liability for the construction, maintenance and use of Peterson Elementary School, including construction work that has been performed in the past. She said that she had no authority to change the language in the deed. In determining whether to accept the deed, the Assembly and Administration should take into account that in its present form the deed is intended by the United States to transfer all liability for the building to the Rodiak Island Borough. JHB:cat cc: Jack McFarland, Presiding Officer Rodiak Island Borough Assembly 6702\179M.006 9 1~~w1/ ~~ Y ~~ ~Ep 2 9 1992 KUDIAK ISLAND r3URUUur CLERK'S pEFICF JOEL H, pOLGER• C. WALTER EBELL DUNCAN S. FIELDS DIANNA R. GENTRY MATTHEW D. JAMIN WALTER W. MASON• JANE E. SAUER ALAN L. $CHMITT MICHAEL C. $CIACCA~ TTeo To ALA!%A wAINiNGTON NM LL OTNl11! AONITT[U TO ALAa.A uw E • n NjAMIN, EBELL. BOLGER & A PROFC3310 NAL CORPORATION ATTORNEYS AT lAW 323 CAROLYN STREET KODIA K. ALASKA 99616 TELEPHONE: (90~ IBB-6024 FACSIMILE: (90%) C96-6112 REPLY TO %ODIAK OFFICE MEMORANDIIM TO FROM DATE RE The Hon. Jerome Selby, Mayor Joel H. Bolger Jamie, Ebell, Bolger & Gentry September 14, 1992 Peterson Elementary Transfer Our File No. 4702-179 GENTRY ~i l 11~ \'/ (VIA FAX AND MAIL) ANCHORAGE OFFICE: 1200 I DTRCCT. DVITC T04 ANCHORAGE. ALAS%A 89301 TCLEPNOMC AND FA% (DOT12T3~p100 SEATTLE OFFICE: ]OO MUTVAL LICE pV1LOIrvG 603 FIRST AVENUE SCATTLE. WASHINGTON 98106 TELCPNONE: (2061 622-T63< FACSIMILE: (2061 G23-7521 ~~~~~ SFp 1 5 1992 I reviewed the Ietter you received, dated September 4, 1992, from the Department of Edwration with the attached Project Description, draft Quitclaim Deed and Asam~ances. The Assurances is the docimment which is requested by the department prior to the completion of the final quitclaim documents I do not 5nd a~ objection to the language of the ?~ssances. I recommend that it can be signed and returned to the Department of Education You should be aware of certain language of the Quitclaim Deed. On January 28,1991, the Kodiak Island Borough School District passed Resolution No. 901-4, supporting the transfer of title fair Peterson Elementary School to the Kodiak Island Borough. Included in this resolution was a condition that the United States Department of Education hold the Kodiak Island Borough harmless from the payme~ of any claims relating to harerdoua substance release. On February 7, 1991, the Kodiak Island Borough Assembly passed Resolution No. 91-5, supporting the transfer of Peterson Elementary School to the Kodiak Island Borough, with an identical condition that the United States Department of Education hold the Kodiak Island Borough harmless from any claims relatng to a~ hazardous substance release. Paragraph b, Page 8 of the draft Quitclaim Deed enclosed with the letter from the Department of Education, dated September 4, 1992, speciScally rejects this condition requested by the assembly and the school board. In addition, Paragiaph 11, Page 5 of the draft Quitclaim Deed contains the following language: 11. By acceptance of this instrument, the Transferee agrees that this transfer and release is effective on an "as is, where is" basis, and that the UNITED STATES makes no warranty, eapreas or implied, with respect to the property hereby t*ansferred. The Transferee agrees to indemnify, defend, and hold the UNITED STATES OF AMERICA free and harmless from all liabHity, loss, damages, claims, and other expenses, including attorney's fees and rnurt costs, originating from or in rnnnection with the construction, maintemnce, or use of the school facilities or originating from or in connection with the Transferee's removal of the asbestos contamimnta from the school facilities or conveyed herein by the U.S. Department of Educstition to the Transferee. __ , -~ Mayor Selby Memo September 14, 1992 Page 2 This language wffi expose the Kodiak Island Borough to liability for a~ claims relating to the construction, maintenance or use of the school faclitiea If the intent of this. language is to protect the United States from future claims with respect to school fao~7itiea, you may wish to recommend the addition of the word "future" in the second sentence of Paragraph 11 so that sentence would read as follows: The Transferee agrees to indemnify, defend and hold the UNPI'ED STATES OFAMESiCAfree and harmless from all liability, lose, damages, claims, and other expenses, including attorney's fees and court costs, n*~an~*"_ng from or III Connection with the future construction, maintenance, or use of the school faa7ities or originating from or in cennection with the Transferee's removal of the asbestos contaminants from the school facilities conveyed herein by the U.S. Department of Education to the Transferee. You should note, however, that even this change in language will not constitute a promise by the United States to indemnify sad hold the borough harmless from claims relating to peat barerdous substance release as originally requested by the school board and the borough assembly. I also have the following grammatical and typographical changes for the Qnitr]aim Deed. In the introductory paragraph, switch the designations of "Kodiak Island Borough School District° and "Kodiak Island Borough" so that the last clause of that paragraph reads as follows: ...and the Kodiak Island Borough, Transferee, a muniopal government organized and eaiating under the laws of the State of Alaska, on behaff of the Kodiak Island Borough School District, (lorel edurstional agency), Kodiak Island, Alaska. In Paragraph 2 of the Quitclaim Deed, chA ~ the word "Kodiak' to "the Kodiak Island Borough". In Paragraph 8 of the Quitclaim Deed, change the word "Kodiak" to "the Kodiak Island Borough". Revise the acknowledgement on Page 9 of the Quitclaim Deed to read as follows: Before me a notary public in sad for the State of Alaska, on this day personally appeared JEROME M. SEI.BY, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he ezecuted the name vohmtarily and as the act and deed of the Kodiak Island Borough, a political subdivision of the State of Alaska, on behalf of the Kodiak Island Borough School District, and as Mayor of the said municipality, and for the purposes and considerations therein expressed. Feel free to call if you have any questions concerning the foregoing recommendations. JHB:tah cc: Jack McFarland, Preffiding Officer Kodiak Island Borough Assembly a~oa~i~sw.oaa