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16 to Seller within 30 days after giving Seller notice of such determination, to terminate this Agreement in accordance with Section 9.6.1 if a material part of the Property has been damaged or if such taking has affected or will affect a material part of the Property. If Buyer does not so terminate, (i) in the case of damage to a material part of the Property, Seller shall assign to Buyer at the Closing its right to recover under any insurance policies covering such damage and shall pay Buyer at the Closing the amount of the deductible, if any, and (ii) in the case of a threatened or actual taking of a material part of the Property, Seller shall assign to Buyer at the Closing Seller’s entire right, title and interest in the proceeds thereof. If between the Effective Date and the Closing Date the Property suffers damage which is not material, Seller shall repair such damage at its expense prior to the Closing, and the Closing Date shall be extended for a reasonable period of time not to exceed 30 days to allow for completion of such repairs. The Closing Date shall be extended as necessary to permit Buyer to exercise its rights under this Article 10.
ARTICLE 11. GENERAL.
11.1 Notices. All notices, demands, approvals, and other communications provided for in this Agreement shall be in writing and shall be effective (a) when personally delivered to the recipient at the recipient’s address set forth below; (b) five business days after deposit in a sealed envelope in the United States mail, postage prepaid, by registered or certified mail, return receipt requested, addressed to the recipient as set forth below; (c) one business day after deposit with a recognized overnight courier or delivery service, addressed to the recipient as set forth below, whichever is earlier or (d) the same day when delivered via email, provided the email was delivered during before 5:00 p.m., and, if the email was delivered after 5:00 p.m., one business day after such email was sent. If the date on which any notice to be given hereunder falls on a Saturday, Sunday or legal holiday, then such date shall automatically be extended to the next business day immediately following such Saturday, Sunday or legal holiday.
The addresses for notice are:
SELLER: YKI Investments, LLC.
Attn: Mark Metzger, Jr.
P.O. Box 220
Yolo, CA 95697
Phone: (530) 662-9626
Email: [email protected]
With a copy to: Murphy Austin Adams Schoenfeld LLP
Attn Kent N. Calfee
555 Capital Mall, Suite 850
Sacramento, CA 95814
Phone: (916) 446-2300
Email: [email protected]
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17 BUYER: City of Woodland.
Attn: Ken Hiatt
655 N. Pioneer Ave.
Woodland, CA 95695
Phone: (530) 661-5962
Email: [email protected]
With a copy to: Best Best & Krieger, LLP
Attn: Ethan Walsh
500 Capitol Mall, Suite 2500
Sacramento, CA 95814
Phone: (916) 325-4000
Email: [email protected]
Either party may change its address by written notice to the other given in the manner set forth above.
11.2 Entire Agreement. This Agreement and the Schedules and Exhibits hereto contain the entire agreement and understanding between Buyer and Seller concerning the subject matter of this Agreement and supersede all prior agreements, including any previous letter of intent or terms, understandings, conditions, representations and warranties, whether written or oral, made by Buyer or Seller concerning the Property or the other matters which are the subject of this Agreement. The parties acknowledge that prior to the execution of this Agreement the Buyer has delivered to Seller a letter, a copy of which is attached hereto as Exhibit E.
11.3 Amendments and Waivers. No addition to or modification of this Agreement shall be effective unless set forth in writing and signed by the party against whom the addition or modification is sought to be enforced. The party benefited by any condition or obligation may waive the same, but such waiver shall not be enforceable by another party unless made in writing and signed by the waiving party.
11.4 Invalidity of Provision. If any provision of this Agreement as applied to either party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, the same shall in no way affect (to the maximum extent permissible by law) any other provision of this Agreement, the application of any such provision under circumstances different from those adjudicated by the court, or the validity or enforceability of this Agreement as a whole.
11.5 References. Unless otherwise indicated, (a) all Article, Section, Schedule and Exhibit references are to the articles, sections, schedules and exhibits of this Agreement, and (b) all references to days are to calendar days. All the Schedules and Exhibits attached hereto are incorporated herein by this reference. Whenever under the terms of this Agreement the time for performance of a covenant or condition falls upon a Saturday, Sunday or California state holiday, such time for performance shall be extended to the next business day. The headings used in this Agreement are provided for convenience only and this Agreement shall be interpreted without reference to any headings. The masculine, feminine or neuter gender and the singular or plural number shall be deemed to include the others whenever the context so indicates or requires.
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18 11.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts made and to be performed in California.
11.7 Confidentiality and Publicity. Buyer is a public entity and as such, this Agreement, upon its presentation for approval at Buyer’s City Council at a duly called and agendized public meeting, shall be subject to the Public Records Act and the Freedom of Information Act. No press release or other public disclosure may be made by Seller or any of its agents regarding Buyer’s intent for this Property this transaction without the prior consent of Buyer.
11.8 Time. Time is of the essence in the performance of the parties’ respective obligations under this Agreement.
11.9 Attorneys’ Fees. In the event of any legal or equitable proceeding to enforce any of the terms or conditions of this Agreement, or any alleged disputes, breaches, defaults or misrepresentations in connection with any provision of this Agreement, the prevailing party in such proceeding shall be entitled to recover its reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees and costs of defense paid or incurred in good faith.
11.10 Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. However, Seller shall not have the right to assign all or any portion of its interest in this Agreement without Buyer’s prior written consent.
Buyer shall have the right to assign all or any portion of its interest in this Agreement, or substitute for itself a nominee, upon notice to Seller not later than three days prior to the Closing Date.
11.11 Further Assurances. Seller, at any time before or after Closing, shall, at its own expense, execute, acknowledge and deliver any further deeds, assignments, conveyances and other assurances, documents and instruments of transfer reasonably requested by Buyer and shall take any other action consistent with the terms of this Agreement that may reasonably be requested by Buyer for the purpose of transferring and confirming to Buyer, or reducing to Buyer’s possession, any or all of the Property or otherwise carrying out the terms of this Agreement.
11.12 Cooperation With Exchange. Buyer, at no cost or expense, agrees to reasonably cooperate with Seller if Seller intends to accomplish a tax-deferred exchange pursuant to Section 1031 or 1033 of the Internal Revenue Code of 1986. Buyer and/or Seller may assign this Agreement to an exchange intermediary for the purpose of facilitating such an exchange by the assigning party. Buyer’s duty to cooperate shall be limited to the transfer of money to Seller or Seller’s designee in exchange for the Property, and in no event shall Buyer act as purchaser or acquirer of any exchange property and Seller’s ability to accomplish a tax-deferred exchange shall not be a condition to Closing hereunder. Seller shall indemnify and defend and hold Buyer harmless from any claims, loss, damages or liability arising out of participation in an exchange.
NOTWITHSTANDING THE FOREGOING SELLER ACKNOWLEDGES AND AGREES
THAT NEITHER BUYER NOR ANY EMPLOYEE, REPRESENTATIVE, AGENT, OR
ADVISOR OF BUYER HAS MADE ANY REPRESENTATION OR WARRANTY WITH
RESPECT TO THE TAX CONSEQUENCES OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING, WITHOUT LIMITATION SELLER’S ABILITY TO PARTICIPATE IN A TAX-DEFERRED EXCHANGE PURSUANT TO SECTION 1031 OR 1033 OF THE
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19 INTERNAL REVENUE CODE OF 1986. SELLER FURTHER ACKNOWLEDGES AND
AGREES THAT IT HAS BEEN ADVISED AND HAS BEEN PROVIDED WITH AN
OPPORTUNITY TO CONSULT WITH A TAX PROFESSIONAL WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREIN AND THE TAX TREATMENT THEREOF.
SELLER DOES ALSO HEREBY WAIVE ANY AND ALL CLAIMS, DEMANDS OR
CAUSES OF ACTION THAT MAY EXIST NOW OR IN THE FUTURE AGAINST BUYER
RESULTING FROM ANY DENIAL OR DISALLOWANCE OF BENEFITS TO SELLER THAT MAY EXIST UNDER INTERNAL REVENUE CODE §1031 OR §1033.
SELLER’S INITIALS: ________________
11.13 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the parties to it and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third person to any party hereto or give any third person any right of subrogation or action over against any party to this Agreement.
11.14 Remedies Cumulative. The remedies set forth in this Agreement are cumulative and not exclusive to any other legal or equitable remedy available to a party.
11.15 Commissions, Indemnity, Disclosure. Except with respect Ron Caceres, Caceres Real Estate (California Department of Real Estate Broker’s License No. #00821385. (“Seller’s Broker”) each party represents to the other party that there is no broker representing such party in the current transaction, and that the representing party has incurred no liability for any brokerage commission or finder’s fee arising from or relating to the transactions contemplated by this Agreement. Seller shall be responsible for any broker commission payable to Seller’s Broker associated with this purchase. Each party hereby indemnifies and agrees to protect, defend and hold harmless the other party from and against all liability, cost, damage or expense (including without limitation attorneys’ fees and costs incurred in connection therewith) on account of any brokerage commission or finder’s fee which the indemnifying party has agreed to pay or which is claimed to be due as a result of the actions of the indemnifying party. This Section 11.15 is intended to be solely for the benefit of the parties hereto and is not intended to benefit, nor may it be relied upon by, any person or entity not a party to this Agreement.
11.16 Counterparts/Facsimile/PDF Signatures. This Agreement may be executed in counterparts and when so executed by the parties, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument that shall be binding upon the parties, notwithstanding that the parties may not be signatories to the same counterpart or counterparts. The parties may integrate their respective counterparts by attaching the signature pages of each separate counterpart to a single counterpart. In order to expedite the transaction contemplated herein, facsimile or .pdf signatures may be used in place of original signatures on this Agreement. Seller and Buyer intend to be bound by the signatures on the facsimile or .pdf document, are aware that the other party will rely on the facsimile or .pdf signatures, and hereby waive any defenses to the enforcement of the terms of this Agreement based on the form of signature.
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20 IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
BUYER:
CITY OF WOODLAND, a California municipal
corporation
By:
Name:
Its:
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER LLP
By:
City Attorney
SELLER:
YKI INVESTMENTS, LLC, a California limited
liability company
By:
Name:
Its:
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21 Acceptance by Escrow Holder
Escrow Holder acknowledges receipt of the foregoing Agreement and accepts the instructions contained therein.
Dated: ______________, 20___ PLACER TITLE COMPANY
By:
Bev Bristow-Juarez
Escrow Holder
82093.00001\42517465.8
Exhibit “A”
EXHIBIT A
LAND DESCRIPTION
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Exhibit “B”
EXHIBIT B
TRANSFEROR’S CERTIFICATION OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code of 1986, as amended (the “Code”), provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform the CITY OF WOODLAND, a California municipal corporation (the “Transferee”), that withholding of tax under Section 1445 of the Code will not be required upon the transfer of a U.S. real property interest to the Transferee by YKI INVESTMENTS, LLC, a California limited liability company (the “Transferor”), the undersigned hereby certifies the following on behalf of the Transferor:
1. The 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. The Transferor’s U.S. employer identification number is _______________; and
3. The Transferor’s office address is ______________________________________.
The Transferor understands that this Certificate may be disclosed to the Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this Certification and, to the best of my knowledge and belief, it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of the Transferor.
DATED: ________________, 20___.
YKI INVESTMENTS, LLC, a California limited
liability company
By: ______________________________________
Name:____________________________________
Title:
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Exhibit “C”
EXHIBIT C
GENERAL ASSIGNMENT
This Assignment (the “Assignment”) is dated for reference purposes only as of by YKI INVESTMENTS, LLC, a California limited liability company (“Assignor”).
FOR VALUABLE CONSIDERATION, as set forth in that certain Agreement of Purchase and Sale and Joint Escrow Instructions dated _ , 20 (the “Agreement”), Assignor hereby assigns and transfers to the CITY OF WOODLAND, a California municipal corporation (“Assignee”), following:
A. All permits, licenses, consents, registrations and other similar approvals applicable to the Real Property (collectively, the “Approvals”); B. All right, title, and interest in and to any intangible assets relating to the Property, including, without limitation any goodwill related thereto; C. All warranties of which Assignor is the beneficiary (the “Warranties”) with respect to the Property; and
D. All claims and causes of action arising out of or in connection with the Property.
This Assignment shall not supersede the Agreement and, in the event of conflict between this Assignment and the Agreement, the Agreement shall control.
This Assignment shall be binding upon and inure to the benefit of Assignor and Assignee and their respective heirs, executors, administrators, successors and assigns.
This Assignment shall take effect the last to occur of the following: (i) full execution by all parties and Lessor’s consent, as shown by the last date entered below the parties’ signatures and (ii) upon the consummation of the transaction between Assignee and Assignor.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the date first above written.
ASSIGNOR:
YKI INVESTMENTS, LLC, a California limited
liability company
By:
Its:
Date:_____________________________
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Exhibit “D”
EXHIBIT D
GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
City of Woodland_______________
__________________, CA
ATTN: City Clerk
EXEMPT FROM RECORDING FEES PURSUANT
TO GOVERNMENT CODE SECTION 27383
SPACE ABOVE THIS LINE FOR RECORDER’S USE
APN: 064-170-053-000
Grant Deed
The undersigned Grantor(s) declare(s): City of Woodland is exempt from property taxes Documentary transfer tax is $0.
Computed on full value of property conveyed, or
Computed on full value less value of liens and encumbrances remaining at time of sale.
Unincorporated area City of __________________ and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, YKI INVESTMENTS, LLC, a California limited liability company hereby GRANT(S) to
CITY OF WOODLAND, a municipal corporation
the following described real property in the City of Woodland County of Yolo
State of California:
SEE ATTACHED EXHIBIT A
Dated: _______________, 20___
YKI INVESTMENTS, LLC, a California limited liability company By: __________________
Name: __________________
Its: __________________
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Exhibit “D”
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 , 20___ before me, , 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)
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Exhibit “D”
CERTIFICATE OF ACCEPTANCE
Pursuant to Section 27281 of the
California Government Code
This is to certify that the interest in real property conveyed by the Grant Deed dated __________________, 20___, from YKI INVESTMENTS, LLC, a California limited liability company, to the City of Woodland, a municipal corporation, is hereby accepted by the undersigned officer on behalf of the City of , pursuant to the authority conferred by Resolution No. _______, adopted by the City Council of the City of __________________ on ___________________, and the Grantee consents to recordation thereof by its duly authorized officer.
Dated: _________________, 20___ CITY OF WOODLAND, a municipal corporation
By ____________________________
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Exhibit “E”
EXHIBIT E
COPY OF CITY LETTER
PM 5220 (PARCEL 2)APN 064-017-053Parcel 1(Vista Del Robles) NSWE