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HomeMy WebLinkAboutRES2023-098 US Coast Guard Lease Exchange PHL 1 Sponoredby Regig, Public Hearing: .August 2*.-2023: CTTY OF SEWARD, ALASKA RESOLUTION 2013-008: A RESOLUTION OF THE CITY'C-01A4CIL 'OF TUE arY Of SEWARD, ALASKA, APE'ROVING THE TERMS OF THE REAL TRORERTV EXCHANGE AGREEMENT BETWEEN THE CITY- OfiSEWARD AND THE U.S. COAST GUARD FoR THE SALE OF 1,576 ACRES OF 1-M.7A- RLOCK 0 FOUR,TUL_Y .SUBDIVLS1014, SEWARD 3LLRINE INDUSTRIAL CENTKRi KENAI PENINSUa BOROUGH. COASTAL. LOT REPLAT, 'SWARD RECORDING DISTRICT, TIIIRD JUDICIAL DISTRICT, STATE OF ALASKA AND A. REPLACEMENT LEASE AGREEMENT BET'W_EEN THE ar-V OF SEWARD AND IFIE UNITED. S FATES COAST GUARD FOR PROPERTY AT 1.507 FLOAT ROAD A NT) AUTHORIZING THE CITY -MANAGER TO SIGN DOCUMENTS REQUIRED TO.COAIPLETETUKxoRrEgimENT WHEREAS. the.Olty. Lim IevtkJn will:L.11W 1/.5: Cot Guard (i.JSCQ") land acctuiSition site' Ibr Ateir FaSt Response CILltier ("FRC) located in SgWatd;• anti wiigniAs, the us.ca has, req_ui.,-ted tspciii.3,rt Cif tand II3ct-aea at Seward Nituine IiiduttiaI Con-iplex ("SM IC") IT their DiAnticivRtore faciliiy for the hew FRC:' arid WHEREAS., the City had .the IJS(Vs. 'Llesired 'site re -platted as Lot 2A- l .11-lo* 9 Eburtli of Ilk Creek Suikliy:isicirt, Sward _Marto Industrial .Centra, Kenai Peninsulal3nroutii Coastal Lot Replat. Seward Rticordingijiarict:. Thin Judicial bistrict.State t Alaska [-SMIC Lot ). Black 9'and W ER FAS,. t wo hprtaisals were eornpieed: .on-e hy the City, ATtifuiq the Dated at $411-.0000 and one by the: L1SCG. valuing the parcel at 1430.000.00; and WFIERGAS., 1.1n Decquihet 5. 2122 the 'City rexTivp5.10 alter cif V0.0(0 from the LTSCU forrs-mtc lot 2A-1 RIO& ()-. and WHEREAS, 'included in Otis offer is fo.emItange-lhe remaining leasehold interest of .the ah.5.1re stipp:nt building I ocakd Ed 150 Rbild SeArvar(1.. A limin (the -Building') (Lease L 1 I -1.)4 1 and I ISC-G (-mural JISCO 89-1111 -1-0041 fro be replaced and venuilibcrirci EiSC'G :•:9-2.3=1-t10,59 : und WHLREAS. the City currently owns die land under the Buiiding: and WHEREAS,: 'the US(.70. ,apprai4cff value of i uilding was determingd .ro be $335,00() 00; and WITF:REAS. the IACO, wexpec,ted to,leave The iluildirtg,with appvaxi inafely 3 yel.if CITY° F SEW Alt% ALASKA. krsoLvTior4 2013498 iett on die least-4101d Intel -ea: and. WHEREAS, 17.ase4oil the run aliPrAligtO value or the apilding the Ye:ma:11%1 leaseTioil value- iN$50,250.00; WIILMtAk SesPADA City C-Alde 7,U5, Osintet .Coutteil nlity atquittoi(11.9pote of tui uiteirI ID tr.a.LpimietrkOy U ltkUII pUhU UUCI1UL, Z ?;iIarid WIIERE.AS, vaitn the acquisition and move ecirttplet, tie USCG will pay. the City S4S1600.01,1 for;SMie Ripck 9 and the ourronl lease.agreenmni botween the Co und (LeiseLl 1441 am! LIS(...G.Contract MC() ESL II 140.64 7). wII he ruptaced iti noy lease:ntemont 0,:enitt 11-0.1 and USCG Contrail 14SCtiM-11-1 -0650). NOW. TUE REIMRE, BE IT iftEM) LVED BY THE Crilr' COVNCIL OF TILE CITY OFS EWA110. ALASKA that: Section I. TherCity.roundl finds it in the public's interest: to eiturz Ptnvhase and Salo Amemral Mit. the USCG for SMIC Lai 2A-1 Block t) and now ICIER: agtrernent L I 1-1/4 t tb lease of 151;7 X Floai Road, Segtigil 2, The Oty Ninroger is authorizql 1(1Am the-Ra :Proppit'y EnciiittweAgreammart4 the Lease Agriternefit:fittached hada told h makt :qui] cbtractilms aid tite maierd ilocum6ds.ps 1114 nocemary cc? flail the inzeni of:this teseilotinrk onthlehell'of the CO orSeWatd. Reaoltrl.i no Will tako Ofect,in O dux. PASSEil Aild, APPROVED by the•eity Council ailie City 4SLAkAtiEl; 2&11. day of rA4gUSt 2 0112 AY ES: NcJEs ,A EIS ENE: ABSTAIN: ATTEST: Wells-, F neti I3thiwIL NAtC l ere None, DeMoss,Ci Ihtiin. Osenga Norte. Knerl'Et514 city Clerk ply Set0 TILE an' OF SElbYA RD, ALASKA Sue McClure, Mayor • 1 sa Wif IARTN\A. W.. I SEAL 1 : ; W II . M0 •• NIINE ri"15.. tsV1* 11‘ RIM 1 at WI III City Council Agenda Statement Meeting Date: August 28.2023 To: City Council From: Nona 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 Backgroundand 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 of the 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 BIock 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 1507 X Float Road land is owned by the City and leased to the Coast Guard through lease L11-041, and USCG contract HSCG89-11-I-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 terns 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: . 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 Fonds Total amount of funds listed in this legislation: This legislation (✓): Creates revenue in the amount of: Creates expenditure in amount of: Creates a savings in the amount of: Has no fiscal impact Funds are (✓): Budgeted Line iteni(s); Not budgeted Not applicable X 480 600.00 Fund Balance Information Affected Fund (✓): General Boat Harbor Motor Pool SM[C Electric Wastewater Parking Water Healthcare Other Capital Acquisition Fund Note: amounts are unaudited Available Fund Balance/Net Position: $200,999.44 Finance Director Signature: Attorney Review k Yes Attorney Signature: Not applicable Comments` 236 Administration Recommendation Adopt AM Other: 237 REAL PROPERTY EXCHANGE AGREEMENT BETWEEN THE UNITED STATES OF AMERICA, ACTING BY AND TE ROUG FI l i IL UNITED STATES COAST GUARD, AND TIIK CITY OF SEWARD, AK This Exchange Agreement (hereinafter, the "Agreement") is made as of J A.rw) ; 2023 pursuant to 14 U;S.C. §§ 501 (e). (f) between the United States of America by and through the I.T.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: L. 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 S1JBD ISION,SEWARD MARINE INDUSTRIAL CENTER, COASTAL LOTS REPLAT, according to. Plat 2022-1, records or'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 Pal.ment 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 pureiia.se 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 theGovernment 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 Val u e 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 terries and condition of EXCHANGE AGREEMENT A Page 1 of 11 240 City GOV lease HSCG89-23-1-0O5O until August 3l, 2028. The Goveriunent and the City will enter into a lease for the Govermneflt'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 e Government shall have the option of canceling this Agreement by providing vvritt.en notice to the City no later than thirty (30) days after the Referendum petition is approved; with the City returning the Governmment'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 or 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 Adjustments. A. City Responsibilities. On the basis that the Cityy 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. (I) Any unpaid real estate taxesand 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. (l) The Government shaall pay any water/sewer tap fees and/or 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 GOV 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 ail 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 tarty may terminate the Agreement. If neither Party acts during this I4-day period, then the contingency will continue until such time as the Party removes the contingency or one of the Parties terminated this Agrreement, tithe Party terminates this Agreement under this provision, then all remaining Party escrow fturds will be returned to the Parties. If during th is 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. Tittle; 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 Properly 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 ,been (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 onto terminate this Agreement andreceive 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 fol lowing 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 24 Page 3 of 11 Ail( C tv GOV 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 tlx: 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 iWurs 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 P art i e s 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 wri ting. C. Use and Operation of the Property. 'The P ar tie 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 tribur'l of"competent jurisdiction. E. Escrow Money Disposition. If either Party is in default or breach, escrow moneys 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 funds will be released back to the Buyer. T. Covenant_ against Contingent Fees. The Patties warrant that no person or selling. agency has been employed or retained to solicit or secure this agreement upon en agreement or EXCHANGE AGREEMENT 243 Page 4 of 11 2i7 City 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 plumose 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 (11 The terms and conditions aforesaid are to apply to and bind the heirs, executors, administrator, strator, 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 perfforming, of such Agreement: provided, that the existence of the facts upon which the Secretary or his: duly authorized representative makes such findings shall he in issue and may be reviewed by any competent cow. (1) In the event this Agreement is terminated. ated 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 m 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 einployyee: (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 oiler, that no member or delegate to Congress, or resident commissioner, shall he 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 E�CCHANGE AGREEMENT 244 Page 5 of 11 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 satisfactions 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 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 se l is and Government buys the property hereunder "as is and `where is." T h e C ty shall have no liability or responsibility to Government whatsoever for any violations of any lave, 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, dbrecturs,, 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 6of11 C. Items include d in this Sale. All existing fixtures and fittings that are attached to the property. D. Deed. Title to the Property shallbe 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. Closin -. 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 cos: (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 pails 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 ma ntam the Property in its present condition. A. Citv'sConditions 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 basic 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 success, ,?Jzz EXCHANGE AGREEMENT 246 Page 7 of 11 City Gov challenges or controverts the Government's action to acquire the Property.. (4) Government to pay aLl amounts required by this Agreement. 9. Miscellaneous. A. _Remedies. (1)If 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 S10.000.00 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 Proper-ty, 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 concerting 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 b e construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. C. Assignment: 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 andwarrants 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, 1 iability 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 AGIREEMENT 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 GI card Civil Engineering Unit Oakland 1 301 Clay St, Suite 4700N Oakland. CA 94612-5203 or to such other addresses as either party may from time to time designate in writing and deliver in a like manner to the other party. 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 Agreement: 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 oC which party drafted this Agreement or any portion thereof. H. ,Surviving Covenants: The provisions of this Agreement shall survive the delivery of the Deed. L Time is of the Essence: Time is of the essence of this Agreement. J. Exclusive Agreement: 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. EXCHANGE AGREEMENT Page 9 of 1I 248 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, confinnations, satisfactions, releases, instruments of further assurance, approvals, consents and any and all further instrtunents 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 subdividingand platting the tract containing the Property and the parcel to be the Property. lvl . 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 addendum 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: Goverment 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 tertnination on August 31, 2028. Executed this day of 2023 EXCHANGE AGREEMENT 249 Pace 10 of 11 Beyer: United States Government by and through the United States Coast Guard David Brumtey, Real Estate Conting Officer State of Alaska ri►��,D Judicial District (or County of (or Municipality: of W' A a 0 ) re/VA The foregoing instrument was acknowledged before me this -5144' of !C :S, , 2023 by DAVI[D BRUMLEY, Real Estate Contracting Officer of the United States Coast Guard, on behalf of the United States Government. (Seat) Notary Sig`ture /' My Commission Expires: 67/1,13Z Seller: CITY OF SER/ARD Norm Regis i sting City Manager State of Alaska Third Judicial District The foregoing instrument was acknowledged before me this this OM of :JL'4 t.5 , 2023 by Norm Regis Acting City Manager Seward, Alaska, on behalf of the City of Seward. A01111 fllop 4. F l .. `.s v. ' Notary 5 .gnature P O' , My CamnuSsian Expires:A 1 . y '•Q\ 4iiyllliflllilk\\' Page 11 of 11 EXCHANGE AGREEMENT 250 City OV