AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
TO: Chicago Title Company
725 South Figueroa St. Ste 200
Los Angeles, CA 90017
("Escrow Holder")
Escrow No ________________________
Escrow Officer: ________________
Title Officer: [_______________]
This AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS (“Agreement”) is made and entered into as of this 1st day of December , 2024 (the “Effective Date”), by and between BETTERAVIA PARK, LLC, a California limited liability compan y (“Seller”), and THE CITY OF SANTA MARIA, a California Municipal Corporation and charter city (“Buyer”), with respect to the following:
R E C I T A L S
A. Seller is the owner of that certain real property located within the Betteravia Plaza Tract (i.e., Tract No. 6008), commonly known as Lot 20 of Tract No. 6008, in the City of Santa Maria (“City”), California, consisting of approximately 178,597 square feet of land (“Land”), as more particularly described on Exhibit A attached hereto together with any improvements located thereon as of the Effective Date or as of Closing (defined below) (“ Improvements”). The Land, together with the Improvements, and all of Seller’s interest in all rights, privileges, easements and appurtenances benefiting the Land, including, without limitation, all mineral and water rights and all easements, rights-of-way and other appurtenances used or connected with the beneficial use or enjoyment of the Land shall hereinafter be collectively referred to as the “Real Property.” B. B
uyer currently owns a parcel of land adjacent to the Real Property as more particularly described on Exhibit A as “Existing Lot 2” (the “City’s Parcel”).
C. Buyer desires to acquire a portion of the Real Property and Improvements, now constructed or to be constructed prior to Close of Escrow (defined below), consisting of approximately 34,180 square feet of Land as more particularly described on and depicted on Exhibit B attached hereto (the “Transferred Real Property”) by having Seller agree to a lot line adjustment adjusting the lot lines of the City’s Parcel and the Real Property so as to include the Transferred Real Property into the City’s Parcel (i.e. the “Lot Line Adjustment” or “LLA”) so that after the Lot Line Adjustment the legal description of the City’s Parcel would be as set forth on Exhibit C and the Real Property’s would be as set forth on Exhibit D and as depicted on Exhibit E attached hereto.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree that the terms and conditions of this Agreement and the instructions to Escrow Holder with regard to the escrow (“Escrow”) created pursuant hereto are as follows:
A G R E E M E N T
1. Purchase and Sale. Seller agrees to sell the Transferred Real Property to Buyer, and Buyer agrees to purchase the Transferred Real Property from Seller, upon the terms and conditions herein set forth.
2. Purchase Price. Th e purchase price ( “Purchase Price”) for the Transferred Real Property shall be (i) One Hundred Twenty-five Thousand Dollars ($125,000.00), plus (ii) any amount adjusted based upon any cost overruns for construction and installation of the Seller’s Improvements (defined below) above the Maximum Price (defined below) to be incurred by Seller for such improvements as more specifically set forth in Section
7.1.3, below.
Attachment A
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3. Payment of Purchase Price. The Purchase Price for the Transferred Real Property shall be paid by Buyer as follows:
3.1. I nitial Deposit. Within three (3) business days of the “Opening of Escrow” (as defined in Section 4.1 below), Buyer shall deposit, or cause to be deposited with Escrow Holder, in cash, by certified or bank cashier’s check made payable to Escrow Holder, or by a confirmed wire transfer of funds (hereinafter referred to as “Immediately Available Funds”), the sum of Twenty-five Thousand Dollars ($25,000.00) (“Deposit”). Escrow Holder shall place the Deposit in an interest bearing account. The Deposit shall be refundable to Buyer if Buyer terminates this Agreement in accordance with any of its rights to do so prior to the expiration of the Contingency Period.
3.2. I ndependent Consideration. One Hundred Dollars ($100.00) of the Deposit ( “Independent Consideration”) shall be released to Seller following the Opening of Escrow, which amount Seller and Buyer have bargained for and agreed to as independent and sufficient consideration for Seller’ execution and delivery of this Agreement. The Independent Consideration is non- refundable to Buyer under and all circumstances, but applicable to the Purchase Price, and Seller shall retain the Independent Consideration upon any termination of this Agreement notwithstanding any other provision of this Agreement to the contrary.
3.3. C losing Funds. At least one (1) day prior to the scheduled Close of Escrow, Buyer shall deposit or cause to be deposited with Escrow Holder, in Immediately Available Funds, the balance of the Purchase Price (i.e. the Purchase Price less the Deposit) plus Escrow Holder’s estimate of Buyer’s share of closing costs, prorations and charges payable pursuant to this Agreement.
4. E
scrow .
4.1. Opening of Escrow. For purposes of this Agreement, the Escrow shall be deemed opened on the date Escrow Holder shall have received a fully executed copy or executed counterparts of this Agreement from Seller and Buyer ( “Opening of Escrow ”), and Escrow Holder shall notify Buyer and Seller , in writing, of the date Escrow is opened. Escrow shall be opened within three (3) days after full execution of this Agreement. Buyer and Seller agree to execute, deliver and be bound by any reasonable or customary supplemental escrow instructions of Escrow Holder or other instruments as may reasonably be required by Escrow Holder in order to consummate the transaction contemplated by this Agreement.
Any such supplemental instructions shall not conflict with, amend or supersede any porti ons of this Agreement. To the extent of any inconsistency between the provisions of such supplemental instructions and the provisions of this Agreement, the provisions of this Agreement shall control.
4.2. C
lose of Escrow . For purposes of this Agreement, the “ Close of Escrow” shall be defined as the date that the grant deed ( “Grant Deed”), the form of which is attached hereto as Exhibit F, conveying the Transferred Real Property to Buyer, is recorded in the Official Records of Santa Barbara County, California (“Official Records”). This Escrow shall close on that date ( “Closing Date”) which is the later of ten (10) business days following (i) the expiration of the Contingency Period (defined below), or (ii) completion of the Lot Line Adjustment, but in no event later than June 30, 2025 (“Outside Closing Date”), unless the obtaining of the Lot Line Adjustment is still in process, in which case, the Outside Closing Date shall upon written notice from either Buyer or Seller to the other be extended for up to an additional three (3) months (“Extended Outside Closing Date”). If the Closing Date is extended beyond the Outside Closing Date pursuant to this Section and the Lot Line Adjustment is not obtained by the Extended Outside Closing Date, then either Buyer or Seller may elect to terminate this Agreement by providing written notice to the other party.
5. C ondition of Title. It shall be a condition to the Close of Escrow for Buyer ’s benefit that title to the Transferred Real Property shall be conveyed to Buyer by the Grant Deed subject to the following condition of title (“Condition of Title”):
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5.1. A lien to secure payment of general and special real Property taxes and assessments, not delinquent.
5.2. The lien of supplemental taxes assessed pursuant to Chapter 3.5 commencing with Section 75 of the California Revenue and Taxation Code , but only to the extent that such supplemental taxes are attributable to the transaction contemplated by this Agreement.
5.3. Matters affecting the Condition of Title created by or with the written consent of Buyer.
5.4. All exceptions which are disclosed in the “Report” described in Section 7.1.2 below which are approved or deemed approved by Buyer as provided therein.
5.5. Completion of the Lot Line Adjustment adjusting the legal description of the City’s Parcel to that set forth on Exhibit D, attached hereto,
6. Title Policy. Title shall be evidenced by the willingness of Escrow Holder in its capacity as title insurer (“Title Company”) to issue its ALTA Owner’s Form Policy of Title Insurance (“Title Policy”) in the amount of the Purchase Price showing title to the City’s Parcel with the legal description set forth on Exhibit D vested in Buyer.
7. C onditions to Close of Escrow.
7.1. Conditions to Buyer ’s Obligations. The Close of Escrow and Buyer’ s obligation to consummate the transaction contemplated by this Agreement is subject to the satisfaction of the following conditions for Buyer’s benefit (or Buyer ’s waiver thereof, it being agreed that Buyer may waive any or all of such conditions) on or prior to the dates designated below for the satisfaction of such conditions. In the event Buyer terminates this Agreement and the Escrow due to the nonsatisfaction of any of such conditions, then Buyer shall be entitled to the return of the Deposit and all interest accrued thereon and both Seller and Buyer shall be relieved of all further obligations and liabilities under this Agreement (except for the indemnity and insurance obligations of Buyer set forth in Section 7.1.1 below, which shall survive any such termination).
7.1.1. C ontingency Matters. Buyer shall have until 5 p.m. California time on that date which is _thirty (30) days following the Opening of Escrow (such period of time shall be referred to herein as the “Contingency Period”) to satisfy itself, in Buyer’s sole and absolute discretion, as to the following matters:
7.1.1.1. A pproval of Buyer Parties . Buyer’s acquisition of the Transferred Real Property pursuant to this Agreement is subject to the approval of its City Council. Buyer’s deliver y of the Approval Notice to Seller shall conclusively mean that Buyer has obtained such approval. Failure of Buyer to deliver such approval on or before expiration of the Contingency Period shall be deemed Buyer’s disapproval and this transaction shall be cancelled.
7.1.2. B uyer’ s Review of Title.
7.1.2.1. Seller shall deliver to Buyer on or prior to the Opening of Escrow (a) a standard preliminary report from the Title Company with respect to the Transferred Real Property together with complete and legible copies of the underlying documents relating to the Schedule B exceptions set forth in such report (collectively, “ Report”) and (b) any survey Seller may have it its possession depicting the Transferred Real Property . Buyer shall have until that date which is ten (10) days prior to the expiration of the Contingency Period (“Title Review Period ”) to give Seller and Escrow Hol der written notice (“Title Notice”) of Buyer ’s disapproval or conditional approval of Better Park City PSA -4-
any matters shown in the Report or disclosed by the Survey (collectively, “Title Matters”). The failure of Buyer to give the Title Notice on or before the end of the Title Review Period shall be deemed to constitute Buyer ’s disapproval of the Title Matters. Notwithstanding anything else to the contrary, Seller shall be obligated, regardless of whether Buyer objects to the same, to remove or cause to be removed on or before the Closing, any and all deeds of trust encumbering the Transferred Real Property, mechanic’s liens, judgment liens against Seller, delinquent taxes, and other similar liens (collectively, “Mandatory Cure Items”).
7.1.2.2. Seller shall have until five (5) days after its receipt of the Title Notice to provide to Buyer written notice (“Title Response”) of those disapproved or conditionally approved Title Matters, if any, which Seller agrees to so eliminate or ameliorate by the Closing Date. Except as to the Mandatory Cure Items, Seller shall have no obligation to agree to remove any disapproved or conditionally approved Title Matters.
7.1.2.3. If Seller do not elect to eliminate or ameliorate any disapproved or conditionally approved title matters, or if Buyer disapproves the Title Response, or if Seller fail to timely deliver the Title Response, then Buyer shall have the right, upon delivery to Seller and Escrow Holder (on or before the expiration of the Contingency Period) of a written notice, to either (a) waive its prior disapproval, in which event said disapproved matters shall be deemed approved, or (b) terminate this Agreement and the Escr ow created pursuant hereto. Buyer’s failure to deliver an Approval Notice waiving its prior disapproval of such matters shall be deemed to be Buyer’s election to take the action described in clause (b) above.
7.1.2.4. If Seller is unable, despite its good faith efforts , to eliminate or ameliorate the Title Matters agreed upon in the Title Response (or a Supplemental Title Response (defined below)) on or before the Closing, then Buyer’s exclusive remedy shall be to either (a) waive its prior disapproval, in which event said disapproved matters shall be deemed approved, or (b) terminate this Agreement and the Escrow created pursuant hereto, in which event Buyer shall be entitled to the return of the Deposit, together with all interest accrued thereon while in Escrow less any amounts which might be deducted pursuant to 7.1.1.1, above , and neither party shall have any further liability to the other except as to any items or provisions that are stated to in this Agreement to specifically survive its termination.
7.1.2.5. In the event that any title matter is first raised by the Title Company in a supplement to the Report or in connection with the obtaining of the LLA (“Supplemental Report”) after the expiration of the Title Review Period, then Buyer shall have until that date which is five (5) days after Buyer ’s receipt of such Supplemental Report to give Seller and Escrow Holder written notice ( “Supplemental Title Notice ”) of Buyer ’s disapproval or conditional approval of any matters disclosed by the Supplemental Report (“Supplemental Matters ”). The failure of Buyer to timely deliver the Supplemental Title Notice shall be deemed to constitute Buyer’s disapproval of the Supplemental Matters. If Buyer disapproves or conditionally approves any Supplemental Matters, then Seller shall have up to three (3) days after its receipt of the Supplemental Title Notice ( “Supplemental Response Period”), to elect to eliminate or ameliorate to Buyer ’s satisfaction the Better Park City PSA -5-
disapproved or conditionally approved Supplemental Matters (“Supplemental Title Response”) by the Closing Date but Seller shall have no obligation to agree to remove or ameliorate any Supplemental Matters. If Seller does not elect to eliminate or ameliorate any disapproved or conditionally approved Supplemental Matters , or if Buyer disapproves the Supplemental Title Response, or if Seller fails to timely deliver the Supplemental Title Response, then Buyer shall have the right, upon delivery to Seller and Escrow Holder (within three (3) days following the expiration of the Supplemental Response Period) of a written notice, to either (1) waive its prior disapproval, in which event said disapproved Supplemental Matters shall be deemed approved, or (2) terminate this Agreement and the Escrow created pursuant hereto, in which event the Deposit (and all interest accrued thereon) less any amounts which might be deducted pursuant to 7.1.1.1, above, shall be returned to Buyer and neither party shall have any further liability to the other except as to any items or provisions that are stated to in this Agreement to specifically survive its termination. Failure to take either one of the actions described in clauses (1) and (2) above shall be deemed to be Buyer’s election to terminate this Agreement.
7.1.3. Seller’s Obligations. As of the Close of Escrow, Seller shall have performed all of the obligations required to be performed by Seller under this Agreement, including completion of Seller’s Work (defined hereafter), and each of Seller’s representations and warranties hereunder shall be true and correct when made and as of the Closing.
Prior to and as a condition of Closing, Seller shall improve the Transferred Real Property as specifically set f orth on Exhibit G attached hereto (“Seller’s Work”).
Seller shall be responsible for the cost of Seller’s Work up to the maximum amount of Three Hundred Eighty Thousand Dollars ($380,000.00) (“Maximum Amount”).
Any amounts in excess of the Maximum Amount needed in order to complete the Seller’s Wo rk shall be paid by Buyer by increasing the Purchase Price by such amount payable at Closing.
7.1.4. L
ot Line Adjustment. Seller shall, at Seller’s sole cost and expense, be required prior to Closing to process to a lot line adjustment adjusting the lot line of City’s Parcel and the Real Property so as to adjust the legal descriptions and lot lines of each so that the Transfe rred Real Property is incorporated into and added to the City’s Parcel (i.e. the LLA) to a final, non -appealable and non- challengeable approval. The date on which (i) all administrative and judicial appeals periods within which appeals to such approval of the LLA may be filed shall have expired without any such appeals having been filed, and all periods for the filing of an application for a referendum or other challenge regarding any such approval of the LLA shall have expired without the filing of any such application, or (ii) such appeal(s) and/or challenge(s) are withdrawn or resolved so that the LLA shall take effect and are not subject to further appeal or litigation shall be referred to as the “LLA Approval Date”. Buyer shall cooperate with Seller i n processing the LLA, including signing any necessary documents or deeds to reflect or complete the LLA and Buyer hereby agrees that it shall waive any and all fees that may be usually be required in order to process the LLA.
7.1.5. N
o Material Adverse Change . There shall not have occurred any material adverse change to the physical condition of the Transferred Real Property after the expiration of the Contingency Period.
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7.1.6. Issuance of Title Policy. Title Company shall be irrevocably committed to issue the Title Policy insuring Buyer in the amount of the Purchase Price that title to the Transferred Real Property is vested of record in Buyer on the Closing Date subject only to those exceptions approved in writing by Buyer pursuant to the provisions of Section 7.1.2 hereof.
7.1.7. V acant and No Leases. The Transferred Real Property shall be vacant , free from any personal property, including, but not limited to, vehicles and equipment, and there shall be no leases, licenses, options or other agreements (whether oral or written) granting any party the right to occupy, use or possess the Transferred Real Property or any portion thereof and there shall be no parties that use the Transferred Real Property for any purpose.
7.2. C onditions to Seller’s Obligations. For the benefit of Seller, the Close of Escrow shall be conditioned only upon Buyer ’s delivery of the Deposit and of the balance of the Purchase Price (including any increase as provided for in Section 7.1.3, above) in accordance with Section 3 of this Agreement.
8. D eposits by Seller . At least one (1) business day prior to the Close of Escrow, Seller shall deposit or cause to be deposited with Escrow Holder the following documents and instruments:
8.1. Gr ant Deed . The Grant Deed, in the form attached hereto as Exhibit F, duly executed by Seller and acknowledged.
8.2. S eller ’s Certificate of Non-Foreign Status. A certificate of non-foreign status (“FIRPTA Certificate”), duly executed by each Seller, in the form attached hereto as Exhibit H.
8.3. California Form 593. A duly completed and executed California Form 593 (Real Estate Withholding Certificate) by Seller.
8.4. O ther Instruments . Such other documents and instruments as are contemplat ed under the terms of Section 23.2 below.
9. D eposits by Buyer . Subject to adjustments in the Purchase Price pursuant to Section 7.1.3, Buyer shall deposit or cause to be deposited with Escrow Holder the Deposit which is to be applied towards the payment of the Purchase Price and the balance of the Purchase Price in the amounts and at the times set forth in Section 3 above. In addition, Buyer shall deposit with Escrow Holder prior to the Close of Escrow the following documents and instruments:
9.1. P COR . Any PCOR required as a result of the transfer of the Transferred Real Property to Buyer;
9.2. Other Instruments . Such other documents and instruments as are contemplated under the terms of Section 23.2 below.
10. C osts and Expenses. The cost of the A LTA standard coverage portion of the Title Policy with mechanics lien endorsement shall be paid by Seller and the premium and any additional costs for the ALTA extended coverage additional to the premium for ALTA standard coverage , if requested, the cost of any other endorsements to the Title Policy not requested by Seller , and the cost of any update to the Survey shall be paid by Buyer. The escrow fee of Escrow Holder shall be shared equally by Seller and Buyer. Seller shall pay all City and County documentary transfer taxes. Buyer shall pay the customary recording fees payable in connection with the recordation of the Grant Deed. Buyer and Seller shall pay, respectively, the Escrow Holder’s customary charges to buyers and sellers for document drafting and miscellaneous charges. If, as a result of no fault of Buyer or Seller, Escrow fails to close, Buyer and Seller shall share equally all of Escrow Holder’s fees and charges.
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11. Prorations. Real Property taxes and assessments on the Transferred Real Property shall be prorated on the basis that Seller is responsible for (i) all such taxes for the fiscal year of the applicable taxing authorities occurring prior to the “Current Tax Period” (as hereinafter defined) and (ii) that portion of such taxes for the Current Tax Period determined on the basis of the number of days which have elapsed from the first day of the Current Tax Period to the Close of Escrow, inclusive, whether or not the sam e shall be payable prior to the Close of Escrow and Buyer shall be responsible for that portion of such taxes for the Current Tax Period determined on the basis of the number of days which will elapse from the Close of Escrow to the last day of the Current Tax Period with all such amounts prorated based upon the square footage that the Transferred Real Property bears to the total square footage of the Real Property. The phrase “Current Tax Period” refers to the fiscal year of the applicable taxing authority in which the Close of Escrow occurs. In the event that as of the Close of Escrow the actual tax bills for the year or years in question are not available and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates and assessed valuation of the previous year, with known changes, shall be used, and when the actual amount of taxes and assessments f or the year or years in question shall be determinable, then such taxes and assessments will be re- prorated between the parties to reflect the actual amount of such taxes and assessments.
The prorations shall be computed by Escrow Holder as of the Close of Escrow, and at least one (1) business day prior to the Close of Escrow the parties shall agree upon such prorations. In the event that any prorations, apportionments or computations made under this Section 11 shall require final adjustment, then the parties hereto shall make the appropriate adjustments promptly when accurate information becomes available and either party hereto shall be entitled to an adjustment to correct the same. Any corrected adjustment or proration shall be paid in cash to the party entitled thereto.
12. Disbursements and Other Actions by Escrow Holder. Upon the Close of Escrow, Escrow Holder shall promptly undertake all of the following in the manner indicated:
12.1. P rorations. Prorate all matters referenced in Section 11 based upon the statement delivered into Escrow and signed by the parties.
12.2. R ecording. Cause the Grant Deed, and any other documents which the parties hereto may mutually direct to be recorded to be recorded in the Official Records, in the order directed by the parties.
12.3. F unds. Disburse from funds deposited by Buyer with Escrow Holder towards payment of all items chargeable to the account of Buyer pursuant hereto in payment of such costs, including, without limitation, the payment of the Purchase Price to Seller and disburse the balance of such funds, if any, to Buyer.
12.4. T itle Policy. Direct the Title Company to issue the Title Policy to Buyer.
12.5. Documents to Buyer. Deliver to Buyer originals of the Seller’s FIRPTA Certificate, any other documents which are to be delivered to Buyer hereunder.
13. S eller ’s Representations, Warranties and Covenants. In consideration of Buyer entering into this Agreement and as an inducement to Buyer to purchase the Transferred Real Property from Seller, Seller on its own behalf, hereby makes the following representations and warranties to Buyer as of the date of this Agreement, each of which is material and being relied upon by Buyer (and the continued truth and accuracy of which shall constitute a condition precedent to Buyer’s obligations hereunder):
13.1. A uthority. Seller is a limited liability compan y, duly organized, validly existing and in good standing under California law. Seller has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. All requisite action (corporate, partnership, marital or otherwise) has been taken by Seller in connection with the entering into of this Agreement, the execution and delivery of the instruments referenced herein, and the consummation of the transaction Better Park City PSA -8-
contemplated hereby. The individual(s) executing this Agreement and the instruments referenced herein on behalf of Seller have the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof.
13.2. Good Title. Seller is the sole owner of all of the Transferred Real Property and ha s good and marketable title and the right to sell the Transferred Real Property, and Seller will warrant and defend the title thereto unto Buyer against the claims and demands of all persons.
13.3. A greements. The Transferred Real Property is vacant and there are no leases, licenses, options or other agreements (whether oral or written) granting any party the right to occupy, use, possess , or acquire the Transferred Real Property or any portion thereof and there are no parties that use the Transferred Real Property for any purpose. There are no contracts to which Seller is a party for the sale of the Transferred Real Property other than this Agreement. No person, firm or other entity has any right to acquire the Transferred Real Property or any part thereof. There are no other contracts (including service contracts and maintenance agreements) , agreements, covenants or restrictions affecting or binding upon the Transferred Real Property including without limitation any land use contracts made under the Williamson Act of the State of California (Gov. Code Sec. 51200 et. seq.).
13.4. D ocuments and Materials. The Documents and Materials represent all documents and materials respecting the Transferred Real Property which are in Seller’s possession or control and are true, accurate and complete copies of such documents and materials.
13.5. L itigation. T here is no litigation, arbitration or other legal or administrative suit, action, proceeding or investigation of any kind pending or threatened against Seller relating to the ownership or operation of the Transferred Real Property or any part thereof, including any condemnation, assessment district, moratorium or other government policy or practice relating to the Transferred Real Property or any part thereof.
13.6. N o Violation of Law. S eller has no knowledge of any violation of applicable law, ordinance, rule, regulation or requirement of any governmental agency, body or subdivision affecting or relating to the Transferred Real Property, including, without limitation, any Environmental Law, ordinance, rule, requirement or regulation. Seller shall deliver to Buyer each and every notice or communication Seller receives from any governmental body relating to the Transferred Real Property upon Seller’s receipt of the same.
13.7. B
ankruptcy. S eller has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition or suffered a filing of any involuntary petition by Seller’s creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Seller ’s assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension, or composition to its creditors generally.
13.8. E nvironmental. Seller has not received written notice from any governmental entity alleging that Seller is in violation of any Environmental Law with respect to the Transferred Real Property and Seller has not, and to Seller's actual knowledge, no other person or tenant has used, generated, processed, stored, released, discharged, transported or disposed Hazardous Substances on the Transferred Real Property in violation of any Environmental Law except for use and storage in compliance with all applicable Environmental Laws. There is no environmental claim pending and served, or pending and unserved or threatened with regard to the Transferred Real Property . Seller has provided to Buyer all written assessments, reports, data, results of investigations or audits, or other information that is in Seller’s possession or control relating to the environmental matters at or the environmental condition of the Real Property. As used in this Agreement, the following definitions shall apply: “ Environmental Laws” shall mean all federal, state and local laws, ordinances, rules and regulations now or hereafter in force, Better Park City PSA -9-
whether statutory or common law, as amended from time to time, and all federal and state court decisions, consent decrees and orders interpreting or enforcing any of the foregoing, in any way relating to or regulating human health or safety, or industrial hygiene or environmental conditions, or protection of the environment, or pollution or contamination of the air, soil, surface water or groundwater, and includes, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq., and the Clean Water Act, 33 U.S.C. § 1251, et seq. and all similar laws in California relating to Hazardous Substances and disclosures. “ Hazardous Substances ” shall mean any substance or material that is described as a toxic or hazardous substance, waste or material or a pollutant or contaminant, or words of similar import, in any of the Environmental Laws, and includes asbestos, petroleum (including crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel, or any mixture thereof), petroleum-based products and petroleum additives and derived substances, lead-based paint, mold, fungi or bacterial matter, polychlorinated biphenyls, urea formaldehyde, radon gas, radioactive matter, medical waste, and chemicals which may cause cancer or reproductive toxicity.
13.9. Foreign Person Affidavit. Seller is not a foreign person as defined in Section 1445 of the Internal Revenue Code.
13.10. OF AC. Seller and each person or entity owning an interest in Seller is (i) not currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury ( “OFAC”) and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation (collectively, the “List”), and (ii) not a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States, and (iii) not an “Embargoed Person.” None of the funds or other assets of Seller constitute real property of, or are beneficially owned, directly or indirectly, by any Embargoed Person (as hereinafter defined), and, no Embargoed Person has any interest of any nature whatsoever in Seller (whether directly or indirectly). The term “Embargoed Person” means any person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §1701 et seq., the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder.
13.11. N
o Conflict. Neither the execution and delivery of this Agreement nor the performance or consummation of the transactions contemplated by this Agreement will result in any breach of or constitute a default under or conflict with any agreement, covenant or obligation binding upon Seller, or, any contract, document, understanding, agreement or instrument affecting the Transferred Real Property.
The provisions of this Section 13 shall survive the Close of Escrow.
14. Buyer's Covenants, Representations and Warranties. In consideration of Seller entering into this Agreement and as an inducement to Seller to sell the Real Property to Buyer, Buyer makes the following covenants, representations and warranties, each of which is material and is being relied upon by Seller:
14.1. A uthority. Buyer has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement have been duly authorized and no other action by Buyer is requisite to the valid and binding execution, delivery and performance of this Agreemen t, except as otherwise expressly set forth in this Agreement.
14.2. A
s Is. Buyer acknowledges that, as of the Close of Escrow, Buyer will have independently and personally inspected the Transferred Real Property and that Buyer has entered into this Agreement based upon such personal examination and inspection. Buyer agrees that the Transferred Real Property is to be sold to and accepted by Buyer, at close of Escrow, in its then condition “AS- IS” and “WITH ALL Better Park City PSA -10-
FAULTS”, except as to Seller’s representations and warranties set forth in Section 13 above or in any of the documents delivered by Seller to Buyer at the Close of Escrow. Further, Buyer represents to Seller that Buyer is knowledgeable and experienced with respect to commercial real estate matters; IS PURCHASING THE TRANSFERRED REAL PROPERTY IN ITS "AS IS WHERE IS" CONDITION
WITH ALL FAULTS AND NO WARRANTIES BY SELLER AS TO MERCHANTABILITY,
HABITABILITY OR FITNESS FOR ANY PARTICULAR USE, AND WAIVES AND REL EASES ANY CLAIMS AGAINST SELLER WITH RESPECT THERETO it being understood and agreed that, except as to Seller’s representations and warranties set forth in this Agreement, Buyer is relying solely on its own inspections, engineering studies and reports, feasibility studies and examinations of the Transferred Real Property in Buyer's determination of the condition of the Transferred Real Property and any improvements, fixtures and equipment to be sold to Buyer under this contract.
Except as otherwise expressly set forth in this Agreement, Seller is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Transferred Real Property furnished by Seller or third party.
14.3 Release. Except for Seller’s obligations, representations and warranties as expressly provided in this Agreement, and effective from and after the Closing, Buyer hereby waives, releases, remises, acquits and forever discharges Seller, its directors, officers, shareholders, employees, brokers, and agents, and their respective heirs, successors, personal representatives and assigns, of and from any and all actions, suits, legal or administrative orders or proceedings, demands, actual damages, punitive damages, loss, costs, liabilities and expenses, which concern or in any way relate to (i) any past, present or future presence or existence of Hazardous Substances on, under or about the Transferred Real Property, unless such were placed there by Seller, (ii) any past, present or future violations of any rules, regulations or laws, now or hereafter enacted, regulating or governing the use, handling, storage or disposal of Hazardous Substances, or (iii) the physical condition or characteristics of the Transferred Real Property, of any kind or nature, whether existing prior to, at, or after the Closing. It is the intention of the parties pursuant to this release that any and all responsibilities and obligations of Seller, and any and all rights, claims, rights of action, causes of action, demands or legal rights of any kind of Buyer, its successors, assigns or any affiliated entity of Buyer, arising by virtue of the characteristics or conditions of the Transferred Real Property, of any kind or nature, including but not limited t o the economic, physical and legal condition of the Transferred Real Property, the existence of any hazardous substances thereon, or any release or threatened release of hazardous substances therefrom, whether existing prior to, at or after the Closing, except as specifically set forth herein, are by this release provision declared null and void and of no present or future force and effect as to the parties. With regard to the restrictions regarding Hazardous Substances in this paragraph, Buyer expressly agrees to waive any and all rights which said party may have under Section 1542 of the California Civil Code which provides as follows:
BUYER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 ("SECTION 1542"), WHICH IS SET FORTH BELOW:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
BUYER HEREBY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES.
The waivers by Buyer herein contained shall survive the Close of Escrow and the recordation of the Grant Deed and shall not be deemed merged into the Grant Deed upon their recordation.
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15. Seller Covenants.
15.1. Ordinary Course. During the term of this Agreement, Seller shall ensure that the Transferred Real Property is operated and maintained in a manner consistent with current practices and maintain reasonable and customary levels and coverages of insurance and Seller shall not voluntarily take any action to render any of the representations or warranties of Seller set forth in Section 13 materially incorrect. Seller shall not cause or permit any material changes to the physical condition of the Transferred Real Property.
15.2. No New Agreements. From and after the date of this Agreement, Seller shall not, without the prior written consent of Buyer, which , after expiration of the Contingency Period, consent Buyer may withhold in its sole and absolute discretion, enter into, amend, extend, or otherwise modify the terms of any encumbrance, lien, assessment, lease, rental agreement, maintenance contract, service contract, listing agreement, or any other contract affecting or relating to the Transferred Real Property or any portion thereof other than the LLA which shall bind the Transferred Real Property after Closing. So long as this agreement remains in effect, Seller shall not accept or negotiate any back up offers for the Transferred Real Property . Additionally, Seller shall not grant, create or allow the creation of any encumbrance, lien or assessment affecting the Transferred Real Property or otherwise cause or permit title to the Transferred Real Property to differ from the Approved Condition of Title described in Section 5 other than the LLA.
15.3. C ompliance With Laws. Between the Effective Date and the Clo sing Date, Seller shall operate and maintain the Transferred Real Property in compliance with all applicable laws and regulations, and pursuant to Seller’s customary procedures consistent with the manner in which Seller has operated and maintained the Transferred Real Property during Seller’s ownership. Seller shall not cause or permit any Hazardous Substances to be used, stored, released, discharged, or generated on the Transferred Real Property.
15.4. C hanges. Seller shall promptly notify Buyer of any change in any condition with respect to the Transferred Real Property or of any event or circumstance which makes any representation or warranty of any Seller under this Agreement untrue, inaccurate or misleading, or any covenant of Seller under this Agreement incapable or less likely of being performed, it being understood that Seller’s obligation to provide notice to Buyer shall in no way relieve any Seller of any liability for a breach by Seller of any of its representations, warranties or Seller covenants under this Agreement.
16. L IQUIDATED DAMAGES . IF BUYER COMMITS A DEFAULT UNDER THIS AGREEMENT AND
THE CLOSE OF ESCROW FAILS TO OCCUR SOLELY BY REASON OF SUCH DEFAULT, THEN
ESCROW HOLDER MAY BE INSTRUCTED BY SELLER TO CANCEL THE ESCROW AND SELLER SHALL THEREUPON BE RELEASED FROM ITS OBLIGATIONS HEREUNDER. BUYER AND
SELLER AGREE THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH SELLER’ DAMAGE BY REASON OF BUYER'S DEFAULT. ACCORDINGLY, BUYER AND SELLER AGREE THAT IT WOULD BE REASONABLE AT SUCH TIME TO AWARD SELLER , AS SELLER ’S SOLE AND EXCLUSIVE REMEDY AT LAW, “LIQUIDATED DAMAGE ” EQUAL TO THE AMOUNT REPRESENTED BY THE DEPOSIT (AS DEFINED IN SECTION 3 HEREOF) PLUS ANY AND ALL ACCRUED INTEREST THEREON.
THEREFORE, IF BUYER COMMITS A DEFAULT UNDER THIS AGREEMENT AND THE CLOSE
OF ESCROW FAILS TO OCCUR SOLELY BY REASON OF SUCH DEFAULT, SELLER MAY INSTRUCT
THE ESCROW HOLDER TO CANCEL THE ESCROW WHEREUPON ESCROW HOLDER SHALL
IMMEDIATELY PAY OVER TO SELLER THE DEPOSIT, IF HELD BY ESCROW HOLDER, TOGETHER WITH ALL INTEREST ACCRUED THEREON, AND, PROMPTLY FOLLOWING ESCROW HOLDERS’ RECEIPT OF SUCH INSTRUCTION, ESCROW HOLDER SHALL CANCEL THE ESCROW.
Better Park City PSA -12-
SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION 16 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
IN THE EVENT THAT BUYER REFUSES TO ALLOW THE RELEASE OF THE DEPOSIT TO
SELLER, THEN IN ADDITION TO THE LIQUIDATED DAMAGES SET FORTH ABOVE, BUYER SHALL
BE LIABLE TO SELLER FOR ANY AND ALL COSTS INCURRED BY SELLER TO COLLECT SUCH LIQUIDATED DAMAGES.
Seller’s Initials
Buyer’s Initials
17. Seller’s Default; Buyer’s Remedies. If the Close of Escrow has not occurred due to Seller’s default, Buyer shall have all rights available at law or equity including without limitation specific performance.
18. N otices . All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, or by email and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if mailed, three (3) business days after the date of posting by the United States post office, or (iii) if given by email, when sent. Any communication sent by email to Buyer or Seller for which a response or acknowledgment from the recipient is not received must be confirmed within forty-eight (48) hours by letter mailed or delivered in accordance with the foregoing.
To Buyer: City of Santa Maria
110 East Cook Street
Santa Maria, CA 93454
Attn: David. W. Rowlands
Tel: (805)925-0951 ext. 2392
Email: [email protected]
With copies to: City of Santa Maria
110 East Cook Street
Santa Maria, CA 93454
Attn: Brett Fulgoni
Tel: (805)925-0951 ext. 2269
E- mail: [email protected]
To Seller: c/o ZDI
16509 Saticoy St.
Van Nuys, CA 91406
Attention: Steve Zimmerman
Phone: (818) 787-1939
Email: [email protected]
With a Copy to: Gregg P. Martino, Esq.
P.O. Box 3326
Mammoth Lakes, CA 93546
Tel: (760) 924-8902
Email: [email protected]
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To Escrow Holder: Chicago Title Company
725 South Figueroa St. Ste 200
Los Angeles, CA 90017
Attention: Patricia Schlageck
Phone: (213) 488-4358
Email: [email protected]
Notice of change of address shall be given by written notice in the manner detailed in this Section 18. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent.
19. Brokers. Buyer and Seller warrant and represent that neither has engaged any broker in connection with this transaction and each her eby agrees that if any claims for brokers ’ or finders’ fees for the consummation of this Agreement arise, then each hereby agrees to indemnify, save harmless and defend the other from and against such claims if they shall be based upon any statement or representation or agreement by such party.
20. L egal Fees. In the event of the bringing of any action or suit by a party hereto against another party hereunder , then in that event, the prevailing party in such action or dispute, whether by final judgment, or out of court settlement shall be entitled to have and recover of and from the other party all reasonable costs and expenses of suit, including reasonable attorneys’ fees. Any judgment or order entered in any final judgment shall contain a specific provision providing for the recovery of all costs and expenses of suit, including reasonable attorneys' fees (collectively “Costs”) incurred in enforcing, perfecting and executing such judgment. For the purposes of this Section, Costs shall include, without limitation, reasonable attorneys’ fees, costs and expenses incurred in (a) postjudgment motions, (b) contempt proceeding, (c) garnishment, levy, and debtor and third party examination, (d) discovery, and (e) bankruptcy litigation.
21. A
ssignment . Neither Buyer nor Seller may assign, transfer or convey their rights or obligations under this Agreement without the other’s express consent in its reasonable discretion and, in the event of any such assignment neither party shall be relieved of their liability hereunder.
22. Mi scellaneous .
22.1. Survival of Covenants. The representations and warranties of each Seller and covenants of Seller set forth in this Agreement, the provisions of Section 17, shall survive the recordation of the Grant Deed and the Close of Escrow and shall not be deemed merged into the Grant Deed upon its recordation.
22.2. R equired Actions of Buyer and Seller . Buyer and Seller agree to execute such instruments and documents and to diligently undertake such actions as may be required in order to consummate the purchase and sale herein contemplated and shall use good faith efforts to accomplish the Close of Escrow in accordance with the provisions hereof.
22.3. T ime of Essence. Time is of the essence of each and every term, condition, obligation and provision hereof. All references herein to a particular time or day shall be deemed to refer to Los Angeles, California time.
22.4. C ounterparts. This Agreement may be executed in any number of multiple counterparts, each of which shall be deemed to be an original copy and all of which shall constitute one agreement, binding on all parties hereto. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic means (including in “PDF” format) shall be effective as delivery of a manually executed counterpart of this Agreement. The words “executed”, “execution”, “signed”, “signature”, and words of like import in this Agreement shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including DocuSign and AdobeSign). Seller and Buyer agree Better Park City PSA -14-
that this Agreement may be accepted, executed or agreed to through the use of an electronic signature and the use of electronic signatures and electronic records (including any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper -based record -keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, and any other applicable law, including any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. Any document accepted, executed or agreed to in conformity with such laws will be binding on both Seller and Buyer the same as if it were physically executed.
22.5. Captions. Any captions to, or headings of, the section s or subsection s of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof.
22.6. N
o Obligations to Third Parties . Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the parties hereto, to any person or entity other than the parties hereto.
22.7. E xhibits. The Exhibits attached hereto are hereby incorporated herein by this reference for all purposes.
22.8. A mendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto.
22.9. Wai ver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof.
22.10. A pplicable Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California.
22.11. F ees and Other Expenses. Except as otherwise provided herein, each of the parties shall pay its own fees and expenses in connection with this Agreement.
22.12. E ntire Agreement . This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between Buyer and Seller as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of either party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby.
22.13. P artial Invalidity . If any portion of this Agreement as applied to either party or to any circumstances shall be adjudged by a court to be void or unenforceable, such portion shall be deemed severed from this Agreement and shall in no way effect the validity or enforceabil ity of the remaining portions of this Agreement.
22.14. S
uccessors and Assigns. Subject to the provisions of Section 21 hereof, this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto.
22.15. B usiness Days. In the event any date described in this Agreement relative to the performance of actions hereunder by Buyer, Seller and/or Escrow Holder falls on a Saturday, Sunday or legal holiday, such date shall be deemed postponed until the next business day thereafter.
22.16. C onfidentiality. Both Buyer and Seller shall use all diligent efforts to keep and maintain the contents of this Agreement, including the amount of consideration being paid by Buyer for the Real Property, strictly confidential, and refrain from generating or participating in any publicity or press Better Park City PSA -15-
release or make any public statement or any other contact with or disclosure to media or parties affiliated with the media , either before or after the Closing, regarding this transaction without the prior written consent of the other. The provisions of this Section 2 2.16 shall survive the Closing and recordation of the Grant Deed.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
“Buyer” CITY OF SANTA MARIA,
a California Municipal Corporation and charter city
By:
Name: David W. Rowlands
Title: City Manager
By:
Name: Brett Fulgoni
Title: Public Works Director
“Seller” BETTERAVIA PARK, LLC,
a California limited liability company
By:
Name: Stephen Zimmerman
Title: Manager
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Acceptance by Escrow Holder:
Chicago Title Company hereby acknowledges that it has received executed counterparts or a fully executed copy of the foregoing Agreement of Purchase and Sale and Joint Escrow Instructions and agrees to act as Escrow Holder thereunder and to be bound by and perform the terms thereof as such terms apply to Escrow Holder.
Dated: ______________, 2024 Chicago Title Company
By:
Name:
Title:
EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
EXHIBIT A Cont.
LEGAL DESCRIPTION OF CITY’S PARCEL
EXHIBIT B
LEGAL DESCRIPTION OF TRANSFERRED PROPERTY
EXHIBIT C
LEGAL DESCRIPTION OF CITY’S PARCEL AFTER LLA
EXHIBIT D
LEGAL DESCRIPTION OF REAL PROPERTY AFTER LLA
EXHIBIT E
DEPICTION OF NEW CITY’s PARCEL AND LOT 20 AFTER LLA
EXHIBIT F
GRANT DEED
152883019.4
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL
THIS GRANT DEED AND ALL
TAX STATEMENTS TO:
(Above Space for Recorder's Use Only)
GRANT DEED
The undersigned Grantor declares:
Documentary transfer tax is $______________________
(X) computed on full value of Transferred Real Property conveyed, or ( ) computed on full value, less value of liens and encumbrances remaining at time of sale.
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, BETTERAVIA PARK, LLC, a California limited liability company, hereby GRANTS to THE CITY OF SANTA MARIA, a ________________________, the following described real Property (the "Transferred Real Property") located in the City of Santa Maria, County of Santa Barbara, State of California:
SEE SCHEDULE "1" ATTACHED HERETO AND INCORPORATED
HEREIN BY THIS REFERENCE
[Signature on Next Page]
152883019.4
IN WITNESS WHEREOF, Grantor has caused this Grant Deed to be executed as of the _____ day of ________________, 2024.
BETTERAVIA PARK, LLC, a California limited liability
company
By:
Print Name: Stephen Zimmerman
Print Title: Manager
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
152883019.4
SCHEDULE "1"
LEGAL DESCRIPTION OF TRANSFERRED REAL PROPERTY
(ii)
EXHIBIT G
SELLER’S WORK
(iii)
EXHIBIT H
FIRPTA CERTIFICATE
SELLER'S CERTIFICATE
______________________________ ("Transferee") is acquiring certain real property, located in the County of ____________ , State of California from ____________ , a Delaware limited liability company ("Owner"). Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. For U.S. tax purposes (including Section 1445), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity. Owner is a disregarded entity as defined in Section 1.1445- 2(b)(2)(iii) of the Income Tax Regulations and, therefore, th e undersigned ____________ , a Delaware limited liability company (" Transferor"), which is the sole member of Owner, is deemed to be the transferor for purposes of Section 1445 of the Internal Revenue Code.
To inform Transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by Owner, the undersigned Transferor hereby certifies to Transferee:
1. Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Code and the Income Tax Regulations promulgated thereunder);
2. Transferor is not a disregarded entity as defined in Section 1.1445- 2(b)(2)(iii);
3. Transferor's U.S. tax identification number is ______________________________; and
4. Transferor's office address is ______________________________ .
Transferor understands that this Certification may be disclosed to the Internal Revenue Service by Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
Transferor understands that Transferee is relying on this Certification in determining whether withholding is required upon said transfer.
Under penalty of perjury the undersigned declare that they have examined this Certification and to the best of their knowledge and belief it is true, correct and complete, and they further declare that they have authority to sign this Certification on behalf of Transferor. [SIGNATURE PAGE FOLLOWS]
(iv)
"TRANSFEROR"
By:
Name:
Title:
Dated as of _______________ ___, 202__