Special Terms
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- TERMS AND CONDITIONS
COMMERCIAL REAL ESTATE AUCTION
1.5+ Acres Commercial Land – Midland, TX
May 20, 2010
TERMS AND CONDITIONS OF AUCTION
United Country-Jones Swenson Auction Marketing, Inc.(referred to herein as “Auctioneer”) has a contract with L.S. Investments Midland, LLC (“Seller”) to offer for sale at public auction the 1.5+ acre tract located at the intersection of Briarwood and Midland Avenue immediately behind the new Briarwood Shopping Center and a new Citi Bank. The property will sell subject to a published reserve of $3.50 per square foot.
A. Property
1) Seller will convey the property free and clear of any liens or encumbrances except as may be specified in the Title Commitment and/or the Auction Real Estate Sale Contract.
2) The Property is selling subject to, and any Contract is not contingent upon, any state of facts an accurate survey or personal inspection of the Property may reveal, any existing rights-of-way, easements, or claims to easements, encroachments, rights or claims of parties in possession, restrictive and protective covenants, flood zones, zoning, or subdivision regulations, building codes, health and safety codes, governmental agencies regulations, environmental conditions, hazardous materials, leases or tenancies, any mineral rights, reservations or leases, and subject also to all title exceptions as set forth in the Title Commitment that is available for inspection.
3) Maps and depictions included in the marketing material for the auction are for illustration purposes only and neither Seller, nor Auctioneer warrants or guarantees any of these materials or other information to be accurate or complete.
B. Property Inspection
1) It is the Buyer’s sole responsibility to: a) perform all inspections (legal, environmental, economic or otherwise) of the Property and to be satisfied as to its condition prior to bidding; b) review all property information and due diligence materials; c) independently verify any information they deem important including information available in public records; and d) inquire of public officials as to the applicability of and compliance with land use and environmental laws, zoning, building and health & safety codes and ordinances and any other local, state or federal laws and regulations.
2) All information contained in promotional materials, including, but not limited to, photographs, directions, acreage, square footage, dimensions, zoning, maps used for promotion, environmental conditions, taxes, etc., was provided by or on behalf of the Seller and is believed to be correct; however, neither the Seller nor the Auctioneer makes any promise, representation, guarantee, or warranty as to the accuracy or completeness of such information. There is no obligation on the part of Seller or Auctioneer to update any information. Buyer and Buyer’s broker shall be responsible for verifying all acreage and square footage amounts through public records.
C. Buyer’s Premium
There will be a Ten Percent (10%) Buyer’s Premium for on site buyers, added to the winning bid price to arrive at the total contract price to be paid by the Buyer. There will be an eleven percent (11%) buyer’s premium for online bidders through Proxibid.
D. Bidder Registration and Terms of Sale
1) Bidders must register and provide suitable ID (valid Driver’s License or Passport) and receive a bidder’s number in order to bid on the Property. Bidder must deposit with the Auctioneer, a cashier’s check for $5,000.00 made payable to the bidder, in order to register to bid at the auction. The bidder’s number must be presented when the bidder is declared the winning bidder.
Non-purchasing bidders may return their bid card to the registration team at the conclusion of the
Bidding for the immediate return of their cashier’s check.
Upon being declared the successful confirmed bidder on auction day, the Buyer will be required to pay a Down Payment in the amount equal to ten percent (10%) of the contract price. The ten percent Down Payment will be paid on auction day and will include the cashier’s check(s) and the balance of the ten percent may be paid by a personal or company check payable to the Title Company. Bidder acknowledges that only upon the execution of the Sales Contract by the Seller shall the Seller be bound concerning the sale of the Property. IN THE EVENT BUYER FAILS TO ABIDE BY THE TERMS AND CONDITIONS SET FORTH HEREIN OR IN THE RESPECTIVE AUCTION REAL ESTATE SALES CONTRACT EXECUTED IN CONJUNCTION WITH THIS SALE, BUYER ACKNOWLEDGES HE OR SHE SHALL FORFEIT ALL MONIES DEPOSITED WITH TITLE COMPANY.
2) The Buyer shall immediately pay the required Down Payment to Title Company on Auction Day and execute and deliver a completed Auction Real Estate Sales Contract together will all related Addenda for the Property at the Auction. The fully executed Auction Real Estate Sales Contract shall control all terms and conditions of the sale and constitute the entire agreement between the Buyer and the Seller. In the event of any conflict between these Terms and Conditions of Sale and the Terms and Conditions of such Auction Real Estate Sales Contract; the Terms and Conditions of the Auction Real Estate Sales Contract shall prevail. NO CHANGES TO THE TERMS AND CONDITIONS OF THE SALES CONTRACT WILL BE PERMITTED. BUYER WILL BE REQUIRED TO ENTER INTO THE SALES CONTRACT “AS IS” ON AUCTION DATE.
3) Any person bidding on behalf of another person or entity must have a valid, legally enforceable, unexpired, recordable Power of Attorney approved by Auctioneer prior to the auction. If a Buyer is bidding on behalf of a corporation, the bidder shall be individually bound until the bidder presents a corporate resolution prior to closing.
4) If for any reason the Buyer fails or refuses to deposit the required funds or to execute the Sales Contract immediately after being confirmed the winning bidder, the Seller reserves the right to declare the bidder’s rights forfeited and may re-sell the Property.
5) THIS IS CASH SALE. No purchase is contingent on the Buyer obtaining financing.
E. Survey.
If the Buyer requires a new survey, it will be at Buyer’s option and expense. Should the final survey show a greater or lesser number of square footage than contained in the Seller’s Deed, the auction price will not be adjusted.
F. Closing Cost
Seller’s Costs. At Closing, Seller shall pay the fees for preparation of the Deed, title insurance policy
and costs relating to tax certificates and overnight courier fees on behalf of the Seller.
Buyer’s Costs. At Closing, Buyer shall pay the recording costs of the deed, overnight courier fees on
behalf of the Buyer, Escrow Agent’s closing fees and all additional sale or closing fees.
G. Closing
Closing will be scheduled on or before July 6, 2010 through (Title Company TBA) (Closing Agent). The Down Payment shall be in U.S. Funds and shall be held in a non-interest bearing account by the Title Company pending completion of necessary closing procedures, after which the Buyer shall be granted possession of the Property subject to any matters contained in the Title Commitment and the Auction Real Estate Sales Contract.
H. Auction Procedures
The Seller and Auctioneer reserve the right to offer the Property in any manner they choose.
All decisions of Auctioneer are final as to the methods for conducting the Auction and
bidding, disputes amongst bidders, the increments of the bidding, and all other matters and
issues that may arise before, during, and after the Auction. Auctioneer reserves the right to
submit bids on behalf of the Seller, but only to reach a reserve bid, if one exists.
I. Licensed Buyer Broker Guidelines
Upon the Closing of the transaction contemplated herein, Auctioneer shall be paid a commission pursuant to a separate written agreement between Auctioneer and Seller. If a Buyer’s Broker is properly registered with the Auctioneer according to the Buyer Broker Guidelines, then at Closing, the Buyer’s Broker shall be paid a commission of two percent (2%) of the high bid amount as entered in the sales contract. If the Broker’s client submits a written bid equal to or higher that the published reserve price, the Buyer’s Broker will earn a total of 3% commission on the final bid amount. If for any reason whatsoever (including the default of any party hereto), the Closing hereunder does not occur, then no commission shall be due and payable to Buyer’s Broker. To qualify for a commission, the buyer’s broker must register the prospect, using the Buyer Broker Registration Form provided by the Auctioneer. There will be no exceptions to the guidelines and no oral registrations will be accepted. No broker will be recognized that is participating as a principal, buyer or partner in the purchase. The registration letter must be received at least 72 hours prior to the auction. The broker must attend the auction with the prospect. A complete file on all prospects will be maintained. No broker will be recognized on a prospect who has previously contacted or been contacted by the Seller or Auctioneer.
J. Disclaimer
1) Personal on-site inspection of the property is recommended and bidders are advised to independently verify all information they deem important. This Property is being sold “As-Is, Where-Is” and with “All Faults”. The Seller and Auctioneer have not made, do not make and will not make, and hereby disclaim, any representation or warranty, whether expressed or implied or statutory, whether oral or written, with respect to the Property, including, without limitation, any warranty as to its value, condition, acreage, square footage, suitability, merchantability, marketability, operability, zoning or subdivision regulations, mineral rights, wind rights, environmental condition, fence lines or property lines or fitness for a particular use or purpose. No Guarantees are given as to the availability of utilities or accesses, or the permitted or allowable uses of the Property.
2) Neither the Seller, its attorneys, any broker, nor the Auctioneer, shall be liable for any relief including damages, rescission, reformation, allowance or adjustments based on the failure of the Property, including, but not limited to, amount of acreage, square footage, zoning, and environmental condition to conform to any specific standard or expectation, or any third party documents or information.
K. Auctioneers Agency Disclosure
The Auctioneer is acting exclusively as the agent for Seller in this transaction and is to be paid a fee by Seller pursuant to a separate written agreement between Seller and Auctioneer. The Auctioneer is not acting as agent in this transaction for the buyer. Any third party broker is not a subagent of Auctioneer.
L. Equal Opportunity Clause
All bidding is open to the public. The Property is available to qualified Buyers without regard to a prospective Buyer’s race, color, national origin, religion, sex, familial status, or physical handicap.
M. Miscellaneous
1) This auction is a privately conducted event. Auctioneer reserves the right to deny any person admittance to the Auction or expel anyone from the Auction who attempts to disrupt the Auction.
2) Back-up Bidders may submit a back-up bid form on the Property and will be contacted if the sale of the Property is not closed.
3) The Property is subject to sale prior to auction day. In the event the Property is sold prior to auction day, notice will be posted on the Auctioneer’s webpage www.jonesswenson.com and all parties that have made contact with the Auctioneer will be contacted via email or phone.
4) All announcements made Auction Day supersede any prior oral or printed statements. The respective Seller reserves the right to announce additional Terms and Conditions of the sale prior to or during the course of the Auction.
5) Auctioneer is licensed by the Texas Department of Licensing and Regulation (512)463-3129.
AUCTIONEER IS A SELLING AGENT ONLY AND MAKES NO REPRESENTATIONS CONCERNING THE PROPERTY WHATSOEVER.
