The City of Warsaw Code of Ordinances is hereby amended by incorporating therein the following 15 conditions which pertain to the use and operation of the Creek Boat Ramp, the land, and related facilities, and which are contained in the quit claim deed from the United States of America to the City of Warsaw pertaining to a certain tract of land containing the Craig's Creek Boat Ramp and related facilities, which deed is recorded at Deed Book 107, page 685 of the Gallatin County Clerk's records:
(A) The property shall be used and maintained for the public purposes for which it was conveyed in perpetuity as set forth in the Program of Utilization and plan contained in the application, submitted by the grantee on March 17, 2009, which program and plan may be amended from time to time at the request of either the grantor or grantee, with the written concurrence of the other party, and such amendments shall be added to and become a part of the original application.
(B) The grantee shall, within six months of the date of this Deed, erect and maintain a permanent sign or marker near the point of principal access to the property which says:
This park land was acquired through the FEDERAL LANDS TO PARKS PROGRAM of the United States Department of the Interior, National Park Service, for the public's recreational use and enjoyment.
(C) The property shall not be sold, leased, assigned, or otherwise disposed of except to another eligible governmental agency that the Secretary of the Interior agrees in writing can assure the continued use and maintenance of the property for public park or public recreational purposes subject to the same terms and conditions in the original instrument of conveyance. Any mortgage, lien, or any other encumbrance not wholly subordinate to the reverter interest of the grantor shall constitute an impermissible disposal. However, this provision shall not preclude the grantee and its successors or assigns from issuing revenue or other bonds related to the use of the property to the extent that such bond shall not in any way restrict, encumber, or constitute a lien on the property. Further, nothing in this provision shall preclude the grantee from providing related recreational facilities and services compatible with the approved application, through concession agreements entered into with third parties, provided prior concurrence to such agreements is obtained in writing from the Secretary of the Interior.
(D) From the date of this deed, the grantee, its successors and assigns, shall submit biennial reports to the Secretary of the Interior, setting forth the use made of the property during the preceding two-year period, and other pertinent data establishing its continuous use for the purposes set forth above, for ten consecutive reports and as further determined by the Secretary of the Interior.
(E) All revenue received by the grantee through concession agreements, use permits, or other fees generated by activities on the property shall be used only for the implementation of an approved program of utilization or the operation of park and recreation facilities and programs on the property. After the program of utilization is completed, and as long as the property is properly and sufficiently operated and maintained, the revenue may be used for other public park and recreational purposes by the grantee. Any revenue received by the grantee which is generated on or by the operation of the property shall not be used for non-recreational purposes. Any revenue received by the grantee which is generated through the operation of the property shall be listed and accounted for in its biennial reports to the National Park Service.
(F) The grantor, and any representative it may so delegate, shall have the right of entry upon said property at any time to conduct inspections of the property for the purpose of evaluating the grantee's compliance with the terms and conditions of this deed.
(G) As part of the consideration for the deed, the grantee covenants and agrees for itself, its successors and assigns, that (1) the program for or in connection with which this deed is made will be conducted in compliance with, and the grantee, its successors and assigns, will comply with all requirements imposed by or pursuant to the regulations of the Department of the Interior in effect on the date of this Deed (43 C.F.R. Part 17) issued under the provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-1); (2) this covenant shall be subject in all respects to the provisions of said regulations; (3) the grantee, its successors and assigns, will promptly take and continue to take such action as may be necessary to effectuate this covenant; (4) the United States shall have the right to seek judicial enforcement of this covenant, and (5) the grantee, its successors and assigns, will (a) obtain from each other person (any legal entity) who, through contractual or other arrangements with the grantee, its successors and assigns, is authorized to provide services or benefits under said program, a written agreement pursuant to which such other person shall, with respect to the services or benefits which he or she is authorized to provide, undertake for himself or herself the same obligations as those imposed upon the grantee, its successors and assigns, by this covenant, and (b) furnish a copy of such agreement to the Secretary of the Interior, or his or her successor; and that this covenant shall run with the land hereby conveyed, and shall in any event, without regard to technical classification or designation, legal or otherwise, be binding to the fullest extent permitted by law and equity for the benefit of, and in favor of the grantor and enforceable by the grantor against the grantee, its successors and assigns.
(H) The grantee, and each of its successors and assigns, agrees to comply with the requirements of Public Law 90-480 (82 Stat. 718), the Architectural Barriers Act of 1968, as amended by Public Law 91-205 of 1970 (84 Stat. 49), and the Americans with Disabilities Act of 1990 (104 Stat. 337) to assure that development of facilities on the property are accessible to the physically handicapped; and, further assure in accordance with Public Law 93-112, the Rehabilitation Act of 1973 (87 Stat. 394), that no otherwise qualified handicapped individual shall solely by reasons of his or her handicap be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity at the property receiving Federal financial assistance.
(I) The grantee shall be on the lookout for archeological artifacts during any construction activities and shall take appropriate action should any artifacts be discovered. grantee shall comply with the provisions of 36 C.F.R. Part 800, regarding protection of historic and cultural properties. grantee's development plans shall avoid sites identified by a cultural resources assessment of the property, and, prior to any alteration or construction on the property, grantee shall consult with the Kentucky State Historic Preservation Office.
(J) The grantee acknowledges that the property lies within the 100-year flood plain and a portion of the property is in the floodway. The grantee covenants and agrees to comply with the National Environmental Policy Act of 1969, as amended, the 1977 Amendments to the Federal Water Pollution Control Act (Clean Water Act of 1977), the Federal Disaster Protection Act of 1973 (87 Stat. 975), Executive Order 11288, relating to the evaluation of flood hazards, Executive Order 11990 (May 24, 1977) for Protection of Wetlands and Executive Order 11988 (May 24, 1977) for Floodplain Management and the Endangered Species Act of 1973, where and to the extent said Amendments and Orders are applicable to the property, and grantee shall be subject to any use restrictions issued under the amendments and orders.
(K) The grantee covenants for itself, its successors and assigns, and every successor in interest to the property herein described, or any part thereof, that any construction or alteration is prohibited unless a determination of no hazard to air navigation is issued by the Federal Aviation Administration in accordance with Title 14, Code of Federal Regulation, Part 77, entitled "Objects Affecting Navigable Airspace", or under authority of the Federal Aviation Act of 1958, as amended.
(L) The grantee, by acceptance of the deed, acknowledges that it has received the following notice of hazardous substance activity and reservation of access by the grantor concerning the property. Each of these statements is given by the grantor in compliance with § 120(h)(3) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (CERCLA), 42 U.S.C. § 9620(h)(3):
(1) CERCLA covenant pursuant to § 120(h)(4)(D)(I) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (CERCLA)(42 U.S.C. § 9620(h)(4)(D)(i), the United States warrants that any response action or corrective action found to be necessary after the date of the deed for hazardous substances existing on the property prior to the date of this deed shall be conducted by the United States. This warranty shall not apply in any case in which the person or entity to whom the property is transferred is a potentially responsible party with respect to the property. For purposes of this warranty, grantee shall not be considered a potentially responsible party solely due to a hazardous substance remaining on the property on the date of this instrument, provided that grantee has not caused or contributed to a release of such hazardous substance or petroleum product or its derivatives.
(2) Right of access.
(a) Pursuant to § 120(h)(4)(D)(ii) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (CERCLA)(42 U.S.C. § 9620(h)(4)(D)(ii), the United States retains and reserves a perpetual and assignable easement and right of access on, over, and through the property, to enter upon the property in any case in which an environmental response action or corrective action is found to be necessary on the part of the United States, without regard to whether such environmental response action or corrective action is on the property or on adjoining or nearby lands. Such easement and right of access includes, without limitation, the right to perform any environmental investigation, survey, monitoring, sampling, testing, drilling, boring, coring, test-pitting, installing monitoring or pumping wells or other treatment facilities, response action, corrective action, or any other action necessary for the United States to meet its responsibilities under applicable laws and as provided for in this instrument. Such easement and right of access shall be binding on the grantee, its successors and assigns, and shall run with the land.
(b) In exercising such easement and right of access, the United States shall provide the grantee or its successors or assigns, as the case may be, with reasonable notice of its intent to enter upon the property and exercise its rights under this covenant, which notice may be severely curtailed or even eliminated in emergency situation. The United States shall use reasonable means, but without significant costs to the United States to avoid and to minimize interference with the grantee's and the grantee's successors' and assigns' quiet enjoyment of the property. Such easement and right of access includes the right to obtain and use utility services, including water, gas, electricity, sewer, and communications services available on the property at a reasonable charge to the United States. Excluding the reasonable charges for such utility services, no fee, charge or compensation will be due the grantee nor its successors and assigns, for the exercise of the easement and right of access hereby retained and reserved by the United States.
(c) In exercising such easement and right of access, neither the grantee nor its successors and assigns, as the case may be, shall have any claim at law or equity against the United States or any officer, employee, agent, contractor of any tier, or servant of the United States based on actions taken by the United States or its officers, employees, agents, contractors of any tier, or servants pursuant to and in accordance with this covenant. In addition, the grantee, its successors and assigns, shall not interfere with any response action or corrective action conducted by the grantor on the property.
(3) "AS IS".
(a) The grantee acknowledges that it has inspected or has had the opportunity to inspect the property and accepts the condition and state of repair of the property. The grantee understands and agrees that the property and any part thereof is offered "as is" without any representation, warranty, or guarantee by the grantor as to quantity, title, character, conditions, size, or kind, or that the same is in condition or fit to be used for the purpose(s) intended by the grantee, and no claim for allowance or deduction upon such grounds will be considered.
(b) No warranties, either express or implied are given with regard to the condition of the property, including, without limitation, whether the property does or does not contain asbestos or lead- based paint. The grantee shall be deemed to have relied solely on its own judgment in assessing the overall condition of all or any portion of the property, including, without limitation, any asbestos, lead-based paint of other conditions on the property. The failure of the grantee to inspect or to exercise due diligence to be fully informed as to the condition of all or any portion of the property offered, will not constitute grounds for any claim or demand against the United States.
(c) Nothing in this "as is" provision will be construed to modify or negate the grantor's obligation under the CERCLA covenant or any other statutory obligations.
(4) Hold harmless.
(a) To the extent authorized by law, the grantee, its successors and assigns, covenant and agree to indemnify and hold harmless the grantor, its officers, agents and employees from (i) any and all claims, damages, judgments, losses, and costs, including fines and penalties, arising out of the violation of the NOTICES, USE RESTRICTIONS, AND RESTRICTIVE COVENANTS in this deed by the grantee, its successors and assigns, and (ii) any and all claims, damages, and judgments arising out of, or in any manner predicated upon, exposure to asbestos, lead-based paint, or other condition on any portion of the property after the date of conveyance.
(b) The grantee, its successors and assigns, covenant and agree that the grantor shall not be responsible for any costs associated with modification or termination of the NOTICES, USE RESTRICTIONS, AND RESTRICTIVE COVENANTS in the deed, including without limitation, any costs associated with additional investigation or remediation of asbestos, leadbased paint, or other condition on any portion of the property.
(c) Nothing in the hold harmless provision will be construed to modify or negate the grantor's obligation under the CERCLA Covenant or any other statutory obligations.
(5) Post-transfer discovery of contamination.
(a) If an actual or threatened release of a hazardous substance or petroleum product is discovered on the property after the date of conveyance, grantee, its successors or assigns, shall be responsible for such release or newly discovered substance unless grantee is able to demonstrate that such release or such newly discovered substance was due to grantor's activities, use or ownership of the property. If the grantee, its successors or assigns believe the discovered hazardous substance is due to grantor's activities, use or ownership of the property, grantee will immediately secure the site and notify the grantor of the existence of the hazardous substances, and grantee will not further disturb such hazardous substances without the written permission of the grantor.
(b) Grantee, its successors and assigns, as consideration for the conveyance of the property, agree to release grantor from any liability or responsibility for any claims arising solely out of the release of any hazardous substance or petroleum product on the property occurring after the date of the delivery and acceptance of the deed, where such substance or product was placed on the property by the grantee, or its successors, assigns, employees, invitees, agents or contractors, after the conveyance. This paragraph shall not affect the grantor's responsibilities to conduct response actions or corrective actions that are required by applicable laws, rules and regulations, or the grantor's indemnification obligations under applicable laws.
(M) The grantee agrees that it shall neither transfer, lease, nor grant any interest, privilege, or license in the property without inclusion of the environmental provision (division (L) of this section) contained in this deed and grantee shall require the inclusion of this environmental provision (division (L) of this section) in all further deeds, transfers, leases, or grant of any interest, privilege or license in the property.
(N) The grantee shall comply with all applicable federal, state, and local laws, regulations and standards that are or may become applicable to the grantee's activities on the property.
(O) In the event there is a breach of any of the conditions and covenants herein contained by the grantee, its successors and assigns, whether caused by the legal or other inability of the grantee, its successors and assigns, to perform said conditions and covenants, or otherwise, all right, title and interest in and to said premises shall revert to and become the property of the grantor at its option, which in addition to all other remedies for such breach shall have the right of entry upon said premises, and the grantee, its successors and assigns, shall forfeit all right, title and interest in the premises and in any and all of the tenements, hereditaments and appurtenances thereunto belonging; provided, however, that the failure of the Secretary of the Department of the Interior to require in any one or more instances complete performance of any of the conditions or covenants shall not be construed as a waiver or relinquishment of such future performance, but the obligation of the grantee, its successors and assigns, with respect to such future performance shall continue in full force and effect. The grantee, by its acceptance of this deed, covenants and agrees for itself, and its successors and assigns, that in the event the grantor exercises its option to revert all right, title, and interest in the property to the grantor, or the grantee voluntarily returns title to the property in lieu of a reverter, then the grantee shall provide protection to and maintenance of the property at all times until such time as the title is actually reverted or returned to and accepted by the grantor, including the period of any notice of intent to revert. Such protection and maintenance shall, at a minimum, conform to the standards prescribed by the General Services Administration in its Federal property Management Regulations, 41 C.F.R. 101 - 47.402, in effect at the time of the reversion.
(Ord. 2009-03, passed 11-9-09)