HomeMy WebLinkAboutRES2023-098 US Coast Guard Lease Exchange PH Sponsored by: Regis
Public Hearing: August 28,2023
CITY OF SEWARD,ALASKA
RESOLUTION 2023-098
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, APPROVING THE TERMS OF THE REAL PROPERTY
EXCHANGE AGREEMENT BETWEEN THE CITY OF SEWARD AND
THE U.S.COAST GUARD FOR THE SALE OF 1.576 ACRES OF LOT 2A-
1 BLOCK 9 FOURTH OF JULY SUBDIVISION, SEWARD MARINE
INDUSTRIAL CENTER, KENAI PENINSULA BOROUGH, COASTAL
LOT REPLAT, SEWARD RECORDING DISTRICT, THIRD JUDICIAL
DISTRICT, STATE OF ALASKA AND A REPLACEMENT LEASE
AGREEMENT BETWEEN THE CITY OF SEWARD AND THE UNITED
STATES COAST GUARD FOR PROPERTY AT 1507 X FLOAT ROAD
AND AUTHORIZING THE CITY MANAGER TO SIGN ALL
DOCUMENTS REQUIRED TO COMPLETE THE AGREEMENT
WHEREAS, the City has been working with the U.S. Coast Guard ("USCG") on a
land acquisition site for their Fast Response Cutter("FRC") located in Seward; and
WHEREAS, the USCG has requested a section of land located at Seward Marine
Industrial Complex ("SMIC") for their Uplands Shore facility for the new FRC; and
WHEREAS, the City had the USCG's desired site re-platted as Lot 2A-1 Block 9
Fourth of July Creek Subdivision, Seward Marine Industrial Center, Kenai Peninsula Borough,
Coastal Lot Replat, Seward Recording District, Third Judicial District, State of Alaska ("SMIC
Lot 2A-1 Block 9"); and
WHEREAS, two appraisals were completed: one by the City. valuing the parcel at
$425,000.00 and one by the USCG. valuing the parcel at $480,000.00; and
WHEREAS, on December 5, 2022 the City received an offer of$480,000 from the
USCG for SMIC Lot 2A-1 Block 9; and
WHEREAS, included in this offer is to exchange the remaining leasehold interest of
the USCG's shore support building located at 1507 X Float Road Seward, Alaska (the
"Building") (Lease L 11-041 and USCG Contract HSCG 89-11-1-0047 (to be replaced and
renumbered as HSCG 89-23-1-0050) ; and
WHEREAS,the City currently owns the land under the Building; and
WHEREAS, the USCG appraised value .of the Building was determined to be
$335,000.00; and
WHEREAS,the USCG is expected to leave the Building with approximately 3 years
CITY OF SEWARD, ALASKA
RESOLUTION 2023-098
left on the leasehold interest; and
WHEREAS, based on the full appraised value of the Building, the remaining
leasehold value is $50,250.00; and
WHEREAS, Seward City Code 7.05.120 states City Council may acquire or dispose of an
interest in real property by negotiation,public auction,or sealed bid; and
WHEREAS,when the acquisition and move is complete,the USCG will pay the City
$480,600.00 for SMIC Lot 2A-1 Block 9 and the current lease agreement between the City
and USCG (Lease L11-041 and USCG Contract HSCG 89-11-1-0047) will be replaced with
a new lease agreement (Lease L11-041 and USCG Contract HSCG89-23-1-0050).
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SEWARD,ALASKA that:
Section 1. The City Council finds it is in the public's interest to enter into a Purchase and
Sale Agreement with the USCG for SMIC Lot 2A-1 Block 9 and a new lease agreement L11-041
for lease of 1507 X Float Road.
Section 2.The City Manager is authorized to sign the Real Property Exchange Agreement and
the Lease Agreement attached hereto,and to make such corrections and execute related documents as
may be necessary to fulfill the intent of this resolution on behalf of the City of Seward.
Section 3. This Resolution will take effect in 30 days.
PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 28th
day of August 2023.
THE CITY OF SEWARD,ALASKA
Sue McClure, Mayor
AYES: Wells, Finch, Barnwell, McClure
NOES: None
ABSENT: DeMoss,Calhoon, Osenga
ABSTAIN: None
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"#4 OF
City Council Agenda Statement .
Meeting Date: August 28, 2023
To: City Council
From: Norm Regis,Acting City Manager
Subject: Resolution 2023-098: Approving the Terms of the Real Property
Exchange Agreement between the City of Seward and the U.S. Coast
Guard for the Sale of 1.576 Acres of Lot 2A-1 Block 9 Fourth of July
Subdivision, Seward Marine Industrial Center, Kenai Peninsula
Borough, Coastal Lot Replat, Seward Recording District, Third
Judicial District, State of Alaska and a Replacement Lease
Agreement Between the City of Seward and the United States Coast
Guard for Property at 1507 X Float Road and authorizing the City
Manager to Sign all Documents Required to Complete the Agreement
Background and justification:
The City has been working with the Coast Guard since 2014 on a feasibility study to homeport a Fast
Response Cutter (FRC) in Seward. Working with many different Coast Guard personnel who regularly
change duty stations has drawn out the process. The City started working with a civilian officer, Mr. David
Brumley, that handles land acquisitions for the Coast Guard. In 2022, the City was visited by the
Commandant ofthe Coast Guard along with Senator Sullivan which helped negotiations progress rapidly.We
have found a suitable location for their facilities,the above referenced subject property,commonly known as
3201 Sorrel Road at SMIC.We had the parcel re-platted for the footprint that the Coast Guard needs for their
Uplands Shore facility. Working with Mr. Brumley, the U. S. Coast Guard made an offer of$480,000 to
purchase Lot 2A-1 Block 9 Fourth of July Subdivision, Seward Marine Industrial Center, Kenai Peninsula
Borough,Coastal Lot Replat, Seward Recording District,Third Judicial District, State of Alaska. This offer
was above what the City expected based on its own appraisal. As part of the offer,the Coast Guard is going
to vacate city property at 1507 X Float Road earlier than the current end date of their lease and give the
building to the City.The 15 07 X Float Road land is owned by the City and leased to the Coast Guard through
lease L11-041, and USCG contract HSCG89-11-1-0047. The appraised value on the building is $335,000.
The current lease expires in 2028 but it is expected the Coast Guard will vacate the property in 2025 once the
new facility is completed.
The City Council adopted Resolution 2023-02 on January 9,2023 after holding a public hearing authorizing
the City Manager to negotiate an agreement"substantially similar"to the terms contained in a draft agreement
attached to the Resolution. The Resolution said the negotiated agreement would be "subject to further
consideration and final approval by the City Council at a later date". Negotiations have been concluded and
the attached agreements signed by the Coast Guard are very similar to the draft agreement attached to
Resolution 2023-02. Substantive changes are:
1. Purchase price-increased to$480,600 to precisely match an appraised value opinion obtained by
USCG.
2. The existing lease has been renumbered by USCG as USCG Contract HSCG89-23-1-0050 with a
shorter term. Rent remains the same. This was done to accommodate Government bookkeeping.
3. A provision was added requiring USCG to give the existing building on the leased property to the
City at Closing.
The City Manager is requesting the Council to approve the negotiated agreements.
235
Comprehensive and Strategic Plan Consistency Information
This legislation is consistent with(citation listed):
Comprehensive Plan:
Strategic Plan:
Other:
Certification of Funds
Total amount of funds listed in this legislation: S
This legislation(✓):
x Creates revenue in the amount of: $ 480,600.00
Creates expenditure in amount of: $
Creates a savings in the amount of: $
Has no fiscal impact
Funds are (✓):
Budgeted Line item(s):
Not budgeted
X Not applicable
Fund Balance Information
Affected Fund(✓):
General SMIC Electric Wastewater
Boat Harbor Parking F1 Water F1 Healthcare
Motor Pool Other Capital Acquisition
X Fund
Note: amounts are unaudited
Available Fund Balance/Net Position: $200,999.44
Finance Director Signature:
Attorney Review
X Yes Attorney Signature:
Not applicable Comments:
236
Administration Recommendation
e✓ Adopt AM
Other:
237
REAL PROPERTY EXCHANGE AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA,ACTING BY AND THROUGH THE UNITED
STATES COAST GUARD,AND THE CITY OF SEWARD,AK
This Exchange Agreement (hereinafter,the "Agreement") is made as of 3 2023 pursuant
to 14 U.S.C. §§ 501 (e), (f) between the United States of America by and through the U.S. Coast
Guard (hereinafter, the "Government"), and the City of Seward (hereinafter, the "City"), AK,
organized as a first-class home-rule municipality under the laws of the State of Alaska (collectively
hereinafter,the "Parties").
Government and City agree as follows:
I. Purchase and Sale:
Subject to the terms and conditions of this Agreement, the City agrees to sell, and Government agrees
to purchase the real property described as follows along with all improvement located thereon
(hereinafter,the"Property"):
Lot 2A-1,Block 9,FOURTH OF JULY CREEK SUBDMSION,SEWARD MARINE
INDUSTRIAL CENTER,COASTAL LOTS REPLAT,according to Plat 2022-1,records of the
Seward Recording District,Third Judicial District,State of Alaska.
Also known as 3201 Sorrel Road, Seward AK 99835 1 Parcel ID: 14534051 subject only to the
"Permitted Exceptions" as defined in Section 5 below.
2. Purchase Price and Payment Terms.
The purchase price for the Property shall be four hundred eighty thousand dollars ($480,600.00).
Government will pay a deposit of ten thousand dollars($10,000.00)(hereinafter,the"Earnest Money"
or"Deposit") to the Escrow Agent described in Section 4 with Government's delivery of this signed
Agreement to the City. After all other terms and conditions of this Agreement have been satisfied,
including completion of all contingencies in Section 8 to Government's sole satisfaction,the balance of
the purchase price shall be due to the City at Closing. Under the municipal charter and code of
ordinances of the City,the City resolution required to approve this Agreement will be effective 30 days
following adoption of such resolution,except as provided in Section 3.
A. Currently the Government has approximately 8 years remaining on a leasehold interest in
the Government's building(hereinafter the `Building") located on the City's property at 1507 X Float
Road,Seward,AK(hereinafter,the "Leased Premises").
B. In partial satisfaction of the purchase price,the Government and the City agree to exchange
the final three years of leasehold interest in the Building. Based on the appraised value and
Government's remaining leasehold interest, the leasehold value is agreed to be $134,000. The City
agrees to accept and apply Government's remaining leasehold value of$134,000 towards the purchase
price of the Property.
C. The Government shall have continued use of the building under the terms and condition of
EXCHANGE AGREEMENT 240 Page 1 of 11 10/P �/`� ji
City Gov
lease# HSCG89-23-1-0050 until August 31, 2028. The Government and the City will enter into a
lease for the Government's use of the building. The lease will be executed at closing.
3. Referendum.
Nothing in this Agreement shall affect or reduce the rights of the voters of the City of Seward to reject
the City Council's approval of this Agreement by referendum. In the event a referendum petition is
timely filed and accepted,the City shall provide written notice of acceptance to the Government at the
time the petition is accepted. In such event,the Government agrees that it shall have no rights under
this Agreement unless and until a resolution is approved by the voters of the City of Seward. Based on
the burden and delay inherent in a referendum, t h c Government shall have the option of
canceling this Agreement by providing written notice to the City no later than thirty(30) days after the
Referendum petition is approved, with the City returning the Government's Earnest Money and prompt
reimbursement by the City of all of Government's reasonable,third-party costs actually incurred by
Government in connection with the subdivision and replat, if a referendum petition is approved.
Government shall not be entitled to any damages or other relief against the City in the event the voters
void the Council's resolution. If the resolution approving this Agreement is voided by such
referendum action,this Agreement shall terminate, the Deposit shall be promptly returned to
Government, and platting costs returned, within ten(10) days of the formal certification of the
referendum vote, and neither party shall have any further obligation hereunder.
4. Environmental.Reports. The Government acknowledges its receipt and approval of a Phase I
and Phase II Environmental Site Assessment with respect to the Property. The City acknowledges its
receipt and approval of a Phase I and Phase II Environmental Site Assessment with respect to the
Leased Premises. The Parties agree that the City will be responsible for removal or other remedial
actions concerning any hazardous substances found on the Property. The Parties agree that the
Government will be responsible for removal or other remedial actions concerning any hazardous
substances found on the Leased Premises, subject to applicable law.
5. Prorations and Adiustments.
A. City Responsibilities. On the basis that the City is the owner of the Property on the Closing date,the
City shall be responsible to the Government on a prorated and adjusted basis for the following:
(1) Any unpaid real estate taxes and water and sewer tap fees and/or use charges which that been
levied upon or have become a lien against the Property as of the Closing date and that are due and payable,
if any, shall be paid by the City. Real estate taxes and current installments of special assessments for the
current period shall be prorated and adjusted as of the Closing on a due date basis.
(2) The City shall pay any and all transfer taxes and fees, sales taxes and revenue stamps in
connection with the consummation of the transactions contemplated by this Agreement,which it owes.
B. Government Responsibilities. The Federal Government is not subject to real estate taxes, transfer
taxes and fees, sales taxes and revenue stamps in connection with the consummation of the transactions
contemplated by this Agreement and will not pay such taxes.
(1) The Government shall pay any water/sewer tap fees an, use charges which that been levied
upon or have become a lien against the Leased Premises as of the Closing date.
EXCHANGE AGREEMENT Page 2 of 11
241 city Ov
C. Government and City Responsibilities.
(1) Each Party shall pay prior to closing the following fees and charges on a prorated and
adjusted basis on the basis that each Party is the owner of the property it will transfer on the Closing date:
electricity,water/sewer,natural gas and sanitation and the transferor shall be reimbursed for any security
or similar credit then existing in favor of the transferor and assignable to the transferee.
(2) The Parties shall have 14 days from the execution of this contract to procure clear title
insurance with all exceptions, defects, and encumbrances discharged on the closing date. If a Party is
unable to correct the defects and encumbrances, the other Party may elect, at its own option, either to
accept title subject to the defects and encumbrances which are not cured or to terminate this Agreement,
whereupon all funds deposited into escrow shall be returned to the buyer. If after 14 days,a Party is unable
to release this contingency then both Parties may mutually agree to extend the contingency period, or the
other Party may terminate the Agreement. If neither Party acts during this 14-day period, then the
contingency will continue until such time as the Party removes the contingency or one of the Parties
terminated this Agreement.If the Party terminates this Agreement under this provision,then all remaining
Parry escrow funds will be returned to the Parties. If during this period the removing of any title insurance
policy exception is beyond the capability of either Party,then either Party may terminate this Agreement.
(3) This action is contingent on the Parties' ability to review the closing documents in advance
of deed recordings. Closing documents include Parties' closing statements and the prepared final deed.
6. Representations and Warranties.
A. Title: The City will deliver to Government,at Government's expense,within fourteen(14)
days of mutual execution of this Agreement a commitment for title insurance (hereinafter, the
"Preliminary Commitment")preliminary to the issuance of the title policy referred to in Section
7 of this Agreement, together with copies of all underlying exceptions described in the
Preliminary Commitment. The Property is to be sold and conveyed subject to: (a)the condition
that title to the Property is vested solely in the City and in the City's name prior to closing, and
(b) reservations, restrictions and easements as disclosed in the Preliminary Commitment and
approved by Government. Government shall be entitled to object to any exceptions stated in
the Preliminary Commitment by delivering written notice to the City and Escrow Agent on or
before fifteen (15) days after the receipt of the Preliminary Commitment, supplemented with
the copies of the underlying exceptions described therein,which notice shall specify the matters
to which Government objects. if Government objects to any such matters, the City shall have
fifteen (15) days after receiving written notice from Government to attempt to eliminate the
matters to which Government has objected or to cause Escrow Agent to insure over said matters.
The City shall notify Government in writing, within the fifteen (15) day period if the City is
unable or unwilling to eliminate said matters or cause Escrow Agent to insure over said matters.
Government may then elect,by written notice to the City and Escrow Agent, either to waive the
objectionable matters and proceed to Closing or to terminate this Agreement and receive a refund
of the Deposit, and the parties shall have no further obligations to each other under this
Agreement.
Permitted Exceptions: Notwithstanding the immediately preceding paragraph, Government may not
object to any of the following title matters: reserved mineral rights; rights reserved to federal and state
patents; ; real property taxes or assessments due after closing; any adverse claim based upon the
EXCHANGE AGREEMENT 242 Page 3 of 11
City GQV
assertion that some portion of said land is tide or submerged land,or has been created by artificial means
or has accreted to such portion so created; any preference rights which may exist under the Alaska Land
Act or terms, provisions and reservations under the Submerged Lands Act and the enabling act(Public
Law 85-508, 72 Stat. 339); any prohibition or limitation on the use, occupancy or improvements of the
land resulting from the right of the public or riparian owners to use any waters which my cover the land
or to use any portion of the land which is now or may formerly have been covered by water. All items
to which Government does not object under the immediately preceding paragraph, plus all items
described in this paragraph, are referred to herein as"Permitted Exceptions."
B. Damage or Destruction. The Parties agree that, in the event that the Property and/or
Leased Premises are destroyed or materially damaged prior to the Closing Date,the Escrow money shall
be returned to the Parties and this Agreement is terminated, unless the Parties agree otherwise in
writing.
C. Use and Operation of the Property. T h e P a r t i e s represent and warrant to that,as of
the Effective Date of this Agreement through the Closing Date,the Properties will be used, operated
and managed by the Parties in a manner consistent with the way the Property is currently being used,
operated and managed. A Party will not execute or modify any existing lease or other agreement
regarding the Property,without first obtaining the written consent of the other Party.
D. Attorney's fees. To the extent not in conflict with federal law, should any dispute arise
between the Parties hereto or their legal representatives, successors and assigns concerning any
provision of this Agreement,the Party prevailing in such dispute shall be entitled, in addition to such
other relief that may be granted,to recover reasonable attorney's fees and legal costs in connection with
such dispute as determined by the judgement or award of any court or tribunal of competent
jurisdiction.
E. Escrow Money Dis osition. If either Party is in default or breach, escrow money
may not be released or paid to a Party unless the Parties sign a Termination of Agreement to
Purchase with Release of Escrow Money Addendum. If a dispute arises,prior to release or
payment of the Escrow money,the title company holding the escrow money shall retain the
money until one of the following occurs:
(1) A written release is executed by the Parties agreeing to disbursement of
the escrow money, OR
(2) Legal action is filed regarding the Agreement and/or release and
distribution of the escrow money, at which time the escrow money shall be deposited
with the Court Clerk where the legal action is filed, OR
(3) Ninety(90) days have passed since the effective date of this Termination
Agreement and the Parties have not exercised options (1) or(2) at which point the escrow
finds will be released back to the Buyer.
F. Covenant against Contingent Fees. The Parties warrant that no person or selling
agency has been employed or retained to solicit or secure this agreement upon an agreement or
EXCHANGE AGREEMENT 243 Page 4 of 11
city OV
understanding for a commission, percentage,brokerage or contingent fee, excepting bona fide
employees or bona fide established commercial or selling agencies maintained by the Parties for
the purpose of securing business. For breach or violation of this warranty,the Parties shall have
the right to annul this agreement without liability or in its discretion to deduct from the purchase
price the full amount of such commission,percentage, brokerage or contingent fee. The Parties
agree that this covenant shall not apply to licensed real estate agents performing their normal
functions.
(1) The terms and conditions aforesaid are to apply to and bind the heirs,
executors, administrator, successors and assigns of the City.
(2) The terms and conditions with respect to this Agreement are expressly
contained herein, both parties agree that no representative or agent for either party has
made any representation or promise with respect to this offer not expressly contained
herein.
G. Gratuities. The Government may,by written notice to the City, terminate the right of
the City proceed under this Agreement if it is found, after notice and hearing by the Secretary of
the Department of Homeland Security, or his or her duly authorized representative, that gratuities
(i.e., in the form of entertainment, gifts, or otherwise) were offered or given by the City, or any
agent or representative of the City, to any officer or employee of the Government with a view
toward securing this Agreement, or favorable treatment with respect to the awarding or amending
of this Agreement, or the making of any determinations with respect to the performing of such
Agreement: provided, that the existence of the facts upon which the Secretary or his duly
authorized representative makes such findings shall be in issue and may be reviewed by any
competent court.
(1) In the event this Agreement is terminated as provided in Paragraph F,the
Government shall be entitled: (i)to pursue the same remedies against the City as it could
pursue in the event of breach of the contract by the City, and(ii) as a penalty, in addition
to any other damages to which it may be entitled by law,to exemplary damages in an
amount(as determined by the Secretary or his duly authorized representative) which shall
be not less than three nor more than ten times the costs incurred by the City in providing
any such gratuities to any such officer or employee.
(2) The rights and remedies of the Government provided in this clause shall not be
exclusive and are in addition to any other rights and remedies provided by law or under
this Agreement.
H. Congressional Involvement. The City represents, and it is a condition of acceptance
of this offer, that no member or delegate to Congress, or resident commissioner, shall be admitted
to or share any part of this agreement,or to any benefits that may arise there from;but this provision
shall not be construed to extend to any agreement if made with a corporation for its general benefit.
I. Brokers. The Parties each represent and covenant to the other that they have not
EXCHANGE AGREEMENT 244 Page 5 of 11 �°�
City av
utilized and will not utilize the services of any broker or finder in connection with this
transaction. The Parties shall each hold the others harmless from all liability for brokerage
commissions, finder's fees or the like arising in connection with the subject exchange other
than any such amounts as may be claimed by any broker alleging to have been retained by such
ply.
7. Terms and Conditions.
A. Inspection.
Government, its agents and contractors, shall be given reasonable access to the Property to conduct
such tests and inspections as Government deems appropriate; provided, however, Government shall
give the City reasonable notice of Government's intention to access the Property. If Government
reasonably determines from the inspections or testing that any condition of the Property does not meet
Government's satisfaction, Government shall have the right within sixty (60) days after the effective
date of this Agreement to object to such matter by delivering written notice to the City specifying the
matters to which Government objects. To the extent that any objection is curable,the City shall have
thirty (30) days after receipt of the written notice to cure the deficiency, at the City 's expense and to
Government's satisfaction or negotiate an acceptable resolution with the Government. Unless
Government has agreed to proceed as a result of the City's cure or other agreed-upon resolution,
Government may elect, by written notice to the City,to waive the objectionable matter and proceed to
Closing,negotiate a different,written resolution with the City, or to terminate this Agreement. If this
Agreement is terminated by Government pursuant to this paragraph, the Deposit shall be returned to
Government and the parties shall have no further obligation to each other under this Agreement.
B. Property Condition.
As Is Where Is Sale Release and Indemnification.
The City sells and Government buys the property hereunder"as is"and"where is." T h e C i t y
shall have no liability or responsibility to Government whatsoever for any violations of any law,
regulation,building code, ordinance or other legal requirement of any kind whatsoever applicable to
the property as may be discovered at any time, including but not limited to material(or non-material)
Hazardous Substances contamination, violations of building or safety codes, latent defects,
deterioration or problems or liabilities of any kind.
Neither the City, nor any of its officers,directors, employees, agents,attorneys,or representatives have
previously nor does under this Agreement make any representations or warranties.
All inspection obligations rest with the Government. Government acknowledges that notwithstanding
any prior or contemporaneous oral or written representations, statements, documents or
understandings, this agreement constitutes the entire understanding of the parties with respect to the
subject matter hereof,and supersedes all such prior or contemporaneous oral or written representations,
statements, documents or written agreement and shall remain unaffected by any representations,
statements or understandings subsequent to the date hereof which shall not be represented by a
mutually executed amendment to this Agreement.
EXCHANGE AGREEMENT 245 Page 6 of 11
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C. Items included in this Sale. All existing fixtures and fittings that are attached to the
property.
D_ Deed.
Title to the Property shall be conveyed to Government by a full warranty deed(hereinafter,the"Deed")
duly executed by the City and recorded at the Closing. The Deed shall be in the form and content
acceptable to the City and Government.
8. Closing,
A. Closing Costs.
All Closing costs of the transaction, unless otherwise provided in this Agreement, shall be divided as
follows:
The City shall pay the following Closing costs:
(1) Any outstanding or pending assessments or liens
(2) City's attorney fees and costs
The Government shall pay the following Closing costs:
(1) All recording fees
(2) All document preparation fees
(3) All Escrow closing fees
(4) Owner's standard coverage title insurance described herein(Required)
(5) Any ALTA title insurance policies desired by Government(Optional)
(6) All Government's attorney fees and costs
(7) Cost of Government's appraisal
Notwithstanding the above, if the Escrow fails to close due to the default of one party, the defaulting
party shall pay any escrow and title policy cancellation fees.
From the date of mutual acceptance of this Agreement until Closing, the City agrees to maintain the
Property in its present condition.
A. City's Conditions Precedent.
The Parties acknowledge that the City's obligation to close on the purchase of the Property shall be
subject to the following:
(1) Receipt of approval by Government of Government's inspection of the Property not
revealing any basis upon which Government timely terminates this Agreement as provided
in Section 10 below.
(2) Approval of this Agreement by the Seward City Council, and, if a timely
referendum petition is filed, approval by voters in a referendum election.
(3) No litigation or other claim which has any probability or reasonable likelihood of succeesssAG ,
EXCHANGE AGREEMENT 246 Page 7 of 11
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challenges or controverts the Government's action to acquire the Property.
(4) Government to pay all amounts required by this Agreement.
4. Miscellaneous.
A. Remedies.
(1)lf Government (a) fails, without legal excuse,to complete the purchase of the Property,
or (b) otherwise defaults under this Agreement, the City shall be entitled to retain the
$10,000.00 deposited by Government with the Escrow Agent pursuant to Section 2(a)
above, and such retention by the City of this $10,000.00 Deposit shall be the sole and
exclusive remedy available to the City for such failure or default by Government; unless
specifically provided otherwise herein.
(2)If the City fails, without legal excuse, to complete the sale of the Property, then the
Deposit shall be returned to Government. The City's return of the $10,000.00 Deposit
to Government, shall be the sole and exclusive remedy available to Government for such
failure or default by the City.
B. Costs and Fees:
If either party institutes suit concerning this Agreement, the prevailing party shall be entitled to its
reasonable attorneys' fees and costs.
B. Waiver:
No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by the City
or Government of a breach of any covenant of this Agreement shall be construed as a waiver of any
preceding or succeeding breach of the same or any other covenant or condition of this Agreement.
C.Assi meat•
This Agreement is binding on the heirs, successors, and assigns of the parties, but shall not be
voluntarily assigned by either party without prior written consent of the other party, which consent
shall not be unreasonably withheld.
D. Commissions:
Each party represents and warrants to the other that it has not engaged the services of any broker,finder
or other person who would be entitled to any commission or fee in respect to the subject matter of this
Agreement and each shall indemnify the other against any loss, cost, liability or expense incurred by
the other as a result of any claim asserted by any such broker, finder or other person on the basis of
any brokerage or similar arrangement or agreement made or alleged to have been made.
E. Notices:
No notice, consent, approval or other communication provided for herein or given in connection with
this Agreement shall be validly given, made, delivered or served unless it is in writing and delivered
personally, sent by overnight courier or sent by registered or certified United States mail, postage
prepaid, with return receipt requested to:
EXCHANGE AGREEMENT Page 8 of 11 �
247 City Gov
Seller: City of Seward
Attn: City Manager
P.O. Box 167
Seward,Alaska 99664
Government: United States Coast Guard
Civil Engineering Unit Oakland
1301 Clay St, Suite#700N
Oakland, CA 94612-5203
or to such other addresses as either parry may from time to time designate in writing and deliver in a
like manner to the other parry. Notices, consent, approvals, and communications given by mail shall
be deemed delivered upon the earlier of three days after deposit in the United States mail in the manner
provided above or immediately upon delivery to the respective addresses set forth above, if delivered
personally or sent by overnight courier.
F. Entire Agrcement:
This document and its attachments contain the entire Agreement between the parties. It may not be
modified except in writing and signed by all parties.
G. Construction of Agreement:
The captions of the paragraphs of this Agreement are for convenience only and shall not govern or
influence the interpretation hereof. This Agreement is the result of negotiations between the parties
and, accordingly, shall not be construed for or against either party regardless of which party drafted
this Agreement or any portion thereof.
H. Surviving Covenants:
The provisions of this Agreement shall survive the delivery of the Deed.
1. Time is of the Essence:
Time is of the essence of this Agreement.
J. Exclusive A eement:
This Agreement shall constitute an exclusive arrangement between the parties. The City shall not
market, sell,negotiate for the sale of, or convey the Property to any other person,provided that
Government has not delivered notice that it will not close due to an unsatisfied condition.
K. Controlling Law and Venue:
This Agreement shall be governed by, construed under and enforced in accordance with and governed
in all respects by applicable federal law, in addition to the laws of the State of Alaska, and venue for
actions between the parties arising out of or related to this Agreement shall be in the Alaska Superior
Court, Third Judicial District, Anchorage,Alaska.
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L. Further Assurances:
Whenever requested to do so by the other party, the City or Government promptly and expeditiously
shall execute, acknowledge and deliver any and all such conveyances, assignments, confirmations,
satisfactions, releases, instruments of further assurance, approvals, consents and any and all further
instruments and documents as may be reasonably necessary, expedient,or proper in order to complete
any and all conveyances,transfers, sales, and assignments herein provided, and to do any and all other
reasonable acts and to execute, acknowledge and deliver any and all documents as so reasonably
requested in order to carry out the intent and purpose of this Agreement, including but not limited to
subdividing and platting the tract containing the Property and the parcel to be the Property.
M. Miscellaneous:
(1) By entering into this Agreement,the Parties represent that they are legally
capable of transferring the property rights at issue from the State of Alaska to the U.S.
Government, and vice versa.
(2) All documents and addendums signed by the Parties that are referred in this
Agreement, attached to this Agreement, or specifically referenced or labeled as part of this
Agreement, shall be incorporated in and be a part of this Agreement.
(3) It is mutually understood and agreed that this contract shall not be assigned in
whole or in part without the consent in writing of the Parties.
N. Possession:
Government shall receive possession of the Property at the closing and recording of the full warranty
deed. The leasehold agreement under Lease HSCG89-23-1-0050 between Government and the City
for the Leased Premises as referenced in Section 2(b) shall terminate August 31, 2028. The execution
of this Agreement constitutes proper notice to both parties to vacate the Leased Premises under the
terms of Lease HSCG89-23-0050 and related lease agreement upon termination on August 31, 2028.
Executed this day of E 2023
EXCHANGE AGREEMENT Page 10 of 11 9249 city Gov
Buyer:
United States Government by and through the United States Coast Guard
David B jV ey,Real Estate Co. ling Officer
State of Alaska
/H rtz Judicial District(or County of }
(or Municipality of
The foregoing instrument was acknowledged before me this 3 i° of *q5,-,2023 by DAVID
BRUMLEY, Real Estate Contracting Officer of the United States Coast Guard, on behalf of the
United States,Government.
(Seal)
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Notary Si afore ..........
My Commission Expires:
25 5
Seller: 6
CITY OF SEWARD Itlliltti
Norm Regis',Acting City Manager
State of Alaska
Third Judicial District
The foregoing instrument was acknowledged before me this this 5m of 2023 by
Norm Regis Acting City Manager Seward, Alaska, on behalf of the City of Seward.
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Notary ignature
My Commission Expires:
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EXCHANGE AGREEMENT
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City OV