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HomeMy WebLinkAbout12774 RESOLUTION NO. 12774 A RESOLUTION APPROVING A MASTER REAL ESTATE AUCTION LISTING AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND AMERIBID, LLC AN OKLAHOMA LIMITED LIABILITY COMPANY AND 345 REALTY, INC., A COLORADO CORPORATION RELATING TO THE SALE OF EXCESS PROPERTY OF THE CITY AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAID AGREEMENT BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Master Real Estate Auction Listing Agreement dated September 9, 2013 between Pueblo, a Municipal Corporation and AmeriBid, LLC, an Oklahoma limited liability company and 345 Realty, Inc., a Colorado corporation, a copy of which is attached hereto ("Agreement"), having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute and deliver the Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 2. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Resolution and attached Agreement which are necessary to effectuate the transactions described therein. SECTION 3. This Resolution shall become effective upon passage and approval. INTRODUCED: September 9, 2013 BY: Chris Kaufman Background Paper for Proposed RESOLUTION DATE: SEPTEMBER 9, 2013 AGENDA ITEM # M-4 DEPARTMENT: Law Department Daniel C. Kogovsek, City Attorney TITLE A RESOLUTION APPROVING A MASTER REAL ESTATE AUCTION LISTING AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND AMERIBID, LLC AN OKLAHOMA LIMITED LIABILITY COMPANY AND 345 REALTY, INC., A COLORADO CORPORATION RELATING TO THE SALE OF EXCESS PROPERTY OF THE CITY AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAID AGREEMENT ISSUE Should the City enter into a Master Real Estate Auction Listing Agreement with AmeriBid, LLC, an Oklahoma limited liability company, and 345 Realty, Inc., a Colorado corporation (“Auctioneers”) relating to the sale of former Fire Station No. 9, located at 2600 Aster Street, Pueblo, CO 81005? RECOMMENDATION City staff recommends approval of this Resolution. BACKGROUND The City owns a parcel of land located at the southwest corner of the intersection of Aster Street and Prairie Avenue, which was formerly used as Fire Station No. 9. On May 22, 2013, the City’s Purchasing Department issued a Request for Proposals (“RFP”) Project No. 13-057, which solicited bids for the sale of the property. Unfortunately, the City received no bids in response to the RFP. The proposed Agreement would authorize the Auctioneers to sell the property at a public auction. The City will provide the Auctioneers with a minimum bid which will be kept confidential. FINANCIAL IMPACT None. The Auctioneers’ 10% commission will be paid by the successful bidder at the auction. . Master Real Estate Auction Listing Agreement This Master Real Estate Auction Listing Agreement (the "Agreement ") is made as of the 9th day of September , 2013 (the "Effective Date "), by and between the City of Pueblo, Colorado, a Colorado Municipal Corporation (the "Seller ") and AmeriBid LLC ( "the Auction Company ") and 345 Realty, Inc. a Colorado brokerage whose office is in Pueblo, CO (the "Broker ") as the auction company and broker with the exclusive and irrevocable right to market, offer, and sell the Auction Property at auction or through private negotiations, and at any time during the Term of this Agreement, as agent for the Seller and provide the services listed in Exhibit A. RECITALS WHEREAS, Seller is the owner of the Properties and wishes to grant the Auction Company the right to market, offer and sell Properties at auction or negotiated sales during the Term of this Agreement; and WHEREAS, the Auction Company and Broker, provides real estate auction marketing and brokerage services for real estate located in Colorado and has agreed to provide such services to Seller as further set forth herein; and WHEREAS, the parties desire to provide the terms and conditions for identification of Properties that will be subject to this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the Parties hereto agree as follows: AGREEMENT Section 1. Terms and Definitions. The terms listed below shall have the meaning given them as set forth adjacent to each term. (a) Agreement: This Master Real Estate Auction Listing Agreement and all Amendments thereto, as may be amended from time to time by mutual agreement of the parties. (b) Auction Date: The proposed date listed on Property Amendments for the sale of the Auction Property. (c) Auction Property: Property identified and agreed to by parties from time to time by Amendment (the "Property Amendment" or "Amendment" or "Amendments ") to this Agreement, sometimes collectively referred to herein as the "Auction Properties." The form of Property Amendment is provided for as Exhibit B to this Agreement. (d) Auction Property Diligence: Copies of title insurance policies, surveys and environmental reports in Seller's possession. Seller's possession shall be deemed to be only the actual possession of the Special Assets Group. \l 0897497.2 (e) Auction Property Listing Term: The seventy -five (75) day period immediately following Seller's approval of the Marketing Plan during which Auction Company will offer the Auction Property for sale at Auction. (f) Auction Type: The Auction Type to be held on Auction Property will be specified on each Property Amendment. Each Property Amendment will specify Absolute Auction or Reserve Auction (each individually an "Auction ") which shall be defined as follows: (i) Absolute Auction: Is defined as the Auction of Auction Property with no minimum bid and no reserve selling price. Seller acknowledges and agrees that state law prohibits the Seller or anyone acting in the Seller's behalf from bidding on the Auction Property. This restriction does not, however, prohibit a lien holder or an individual party to a divorce, partnership or corporate dissolution from bidding on such party's own behalf. The Auction Company states, and Seller hereby acknowledges, that no selling price guarantee has been made to Seller. (ii) Reserve Auction: Is defined as the Auction of Auction Property with a reserve selling price (the "Reserve Selling Price ") as provided for in Property Amendments. When the selling price reaches the Reserve Selling Price or more, the Auction Company shall have the authority to declare that the Auction Property will be sold to the high bidder. If the Reserve Selling Price is not achieved then Seller shall have the right to accept a lesser price. If Seller declines a high bid which is below the Reserve Selling Price, then, the Auction Property Listing Term will continue pursuant to the same terms and conditions set forth in this Agreement for an additional forty -five (45) days beyond the Auction Property Listing Term. The Reserve Selling Price will not be disclosed by the Auction Company. (g) Buyer: The high bidder for any Auction Property at Auction. (h) Buyer Broker: Any properly registered broker acting on behalf of the Buyer at Auction and Closing. (i) Buyer Broker Fee: A fee payable by Auction Company and being 1.5% of the high bid price as more particularly set forth in Section 4(c) herein. (j) Buyers Premium: A premium of 10% of the high bid at Auction will be added to the final bid of any Buyer to determine the final sale price of Auction Property. (k) Cancellation Fee: A fee payable by Seller upon the cancellation of an Auction and being $7,500.00 /Auction Property Auction canceled as more particularly set forth in Section 4(d) herein. (1) Closing: The consummation of the Property sales transaction between Seller and Buyer upon payment of the purchase price and all contractual costs of sale and the transfer of title after recordation of the deed. (i) Closing Date: If Auction Property is sold during the Auction Property Listing Term, a date that is on or before thirty (30) days following the date of the Auction as agreed by the Buyer and Seller. (j) Commission: The amount payable by Seller to the Auction Company at Closing based on the Commission Schedule as said Schedule is more particularly set forth in Section 4(a) herein. \ 10897497.2 (k) Commission List: The list prepared by the Auction Company and delivered to Seller setting forth the persons or entities with whom Auction Company has negotiated regarding the purchase of the Auction Property as further set forth in Section 6(c) herein. (1) Deed: Special Warranty Deed by which Seller conveys the Auction Property to Buyer, a form of which, marked as Exhibit D, is attached hereto and is incorporated herein by reference. (m) Deposit: The amount of money collected by Auction Company from the high bidder /Buyer at Auction and being ten percent (10 %) of the Contract Price for the Auction Property at Auction. (n) Term: The Term of this Agreement shall be for a period of six (6) months commencing on the Effective Date. (o) Marketing Plan: The written marketing plan and advertising budget setting forth Auction Company's proposed efforts to market and advertise the Auction Property for a specific Auction stated in the Auction Property Amendment in Exhibit B along with its proposed budget itemizing the anticipated costs for such efforts. (p) Purchase and Sale Contract; Agreement by which Seller agrees to convey the Auction Property to Buyer, a form of which, marked as Exhibit C, is attached hereto and is incorporated herein by reference. Section 2. Auction Company Obligations to Seller. During the Term of this Agreement, Auction Company agrees to the following: (a) Auction Company's Marketing Plan. Within ten (10) days of the execution of an Auction Property Amendment between the parties and the receipt by Auction Company of the necessary Auction Property Diligence, Auction Company shall provide Seller with a Marketing Plan. Seller shall review and approve or disapprove the Marketing Plan as set forth in Section 3 below. (b) Advertising and Promotional Activities. , Auction Company shall contract for and pay for such advertising and promotional materials, and any other approved sale- related expenses for the marketing and auction of the Auction Property as set forth in any approved Marketing Plan. Auction Company shall advise Seller when, in Auction Company's opinion, changes in marketing, advertising or promotion of the Auction Property are advisable. The Seller understands and acknowledges that the Auction Company has its own in -house marketing agency that will be designing and placing all of the advertising for this auction. (c) Information Regarding Potential Buyers. Auction Company should relay information to Seller regarding offers received by Auction Company in response to Auction Company's efforts pursuant to the Marketing Plan. Auction Company shall provide to Seller two written reports prior to each auction. The reports shall provide copies of all marketing prepared and provide a list of individuals that inquired about each Property. (d) Auction. Unless extended by mutual agreement of the parties, Auction Company shall hold the Auction of the Auction Property on the date that within (45) days from Seller's approval of the Marketing Plan, or the next business day if the forty -fifth (45 day is a Saturday, Sunday, or federal or banking holiday. Bids by proxy shall be permitted at Auction, provided all other Auction terms are satisfied. Within one (1) business day of the Auction, Auction Company shall provide Seller with written \ 10897497.2 confirmation of the name, contact information, and final bid of the high bidders for each respective Auction Property at Auction or Reserve Auction. (e) Escrow of Deposit. At the Auction, Auction Company shall collect from the high bidder for each respective Auction Property a deposit of ten percent of the Contract Price (the "Deposit "). The Deposit shall be held by a national title insurance company approved by the Auction Company and the Seller. The Deposit shall be applied toward the purchase price at the Closing of the Buyer's purchase of the respective Auction Property. Should the Buyer default on its purchase obligations under its purchase and sale agreement with Seller, then the Deposit shall be distributed fifty percent (50 %) to the Seller and fifty percent (50 %) to the Auction Company. The Deposit will be removed from escrow (1) only in accordance with this Section, or (2) upon written agreement of all parties, or (3) upon a Court Order. (f) Property Maintenance. The Seller will maintain the condition of the Property to the best of its abilities, including but not limited to rekeying, grass cutting, debris removal, utility service (on and off), and minor repairs as suggested by the Auction Company.. While the Auction Company is working with the Seller to maintain the Property during the term of the listing, the Auction Company is not responsible for insuring the Property or responsible for any damage to the Property that is beyond its control. Section 3. Seller Obligations to Auction Company. During the Term of this Agreement, Seller agrees to the following: (a) Auction Property Diligence. As soon as reasonably possible after the execution of a Property Amendment to this Agreement, Seller shall provide Auction Company with the Auction Property Diligence necessary for Auction Company to prepare a Marketing Plan for each respective Auction Property to be sold at Auction. (b) Approval or Disapproval of Marketing Plan. Within five (5) business days of receipt of a Marketing Plan from Auction Company, Seller shall provide written notice to Auction Company of its approval or disapproval of the Marketing Plan. In the event that Seller does not approve the Marketing Plan, Seller shall, within the five (5) business days time, provide Auction Company with a written statement of requested revisions to the Marketing Plan and the Marketing Plan shall be revised by Auction Company accordingly. The final Marketing Plan must be approved by both the Seller and the Auction Company. (c) Marketing Plan Expenses. The Auction Company shall pay all Seller- approved marketing expenses. (d) Commissions. Seller shall pay a Commission to Auction Company as more particularly set forth in Section 4 of this Agreement. (e) Survey. No survey will be completed by Seller prior to the Auction or Closing. Section 4. Commissions and Payments to Third Parties at Closing. (a) If the Property is Sold at Auction. The Auction Company and Broker shall earn the 10% Buyers Premium as its commission at Closing. No additional compensation shall be paid to the Auction Company or Broker pursuant to this Agreement. The 10% Buyers Premium is added to the high bid and becomes inclusive of the total purchase price. Payment of the commission shall be paid from the Seller \10897497.2 ti from the first proceeds thereon for the full amount of the commission and payment of the commission shall be a condition of Closing. (b) If the Property is Sold Prior to the Auction or After the Auction but during the Term of this Agreement. The Auction Company and Broker shall earn from the Seller a 10% commission based on the Contract Price at Closing. Payment of the commission shall be paid from the first proceeds thereon for the full amount of the commission and payment of the commission shall be a condition of Closing. (c) Buyer Broker Fees. The Auction Company and Broker shall offer a 1.5% Participating Broker Commission to licensed real estate brokers based on the High Bid Price if the Property is sold at Auction or based on the Contract Price if the property is sold prior to the Auction or after the Auction but during the term of this Agreement. The Participating Broker Commission shall be paid from the Auction Company and Broker commission at Closing. To qualify for the Participating Broker Commission, the Participating Broker must comply with the Auction Company's broker registration guidelines. (d) Cancellation of Auction. If the Seller cancels any Auction, after Exhibit B Auction Property Amendment is executed, for any reason other than for a sale of the Auction Property as provided for herein, the Seller shall pay to the Auction Company a $7,500 cancellation fee per Auction Property (the "Cancellation Fee ") plus any expenses due and payable to the Auction Company within thirty (30) days of the Auction or the cancellation date, whichever is earlier. Section 5. Terms of Seller's Post - Auction Closing with Buyers. Auction Company and Seller hereby agree and Auction Company acknowledges as follows: (a) Purchase Agreement with Buyer — Absolute Auction Only. Seller shall furnish a fully executed Purchase and Sale Contract to Broker by overnight traceable delivery two weeks prior to Auction Day. Immediately following the Auction, the Auction Company and Broker will fill in the blanks on the Purchase and Sale Contract with the High Bid amount and the Total Contract amount. The Buyer shall then initial the High Bid amount as well as the Total Contract amount and fully execute the Purchase and Sale Contract for the Property sold at Auction. (b) Purchase Agreement with Buyer — Reserve Auction Only. The Seller shall approve at least 10 days in advance of the auction the Purchase and Sale Contract form so the Auction Company can provide it to prospective buyers prior to the auction. After the auction, the Auction Company shall complete two (2) original contracts signed by the high bidder and submit them to the Seller for approval. The Seller shall have seven (7) business days to accept or reject the contracts subject to a Reserve auction. (b) Down Payment /Escrow. At the Auction a 10% down payment, based on the Total Contract Price, shall be obtained from the Buyer and placed in the designated title company's escrow account. (c) Terms of Sale. Unless contrary terms are set forth below and initiated by the Seller and an authorized representative of the Auction Company: (a) no portion of the Property shall be sold or withdrawn prior to auction; (b) bids by proxy shall be permitted, provided all auction terms are satisfied; (c) the Property shall be sold AS IS, WITHOUT WARRANTY; (d) cash, certified check or wire transfer for Special Warranty Deed (free and clear of all financial liens, security interests and financial encumbrances) at Closing; and (e) marketable title, insurable by a nationally recognized title insurance company, and full possession of the Property to be delivered by Seller with Special Warranty Deed and Seller covenants to deliver a signed an acknowledged Special Warranty Deed to the Buyer or Buyer's designee on the Closing Date. \10897497.2 (d) Liens. Seller hereby represents, warrants, and confirms that the only financial liens, security interests, or financial encumbrances outstanding against the Property on the Effective Date are set forth in Exhibit B, and Seller covenants and agrees to not grant or allow other claims to become financial liens against the Property between the Effective Date and the Closing Date. Section 6. Termination or Modification of this Agreement. (a) Termination by Seller For Cause. In the event that Seller reasonably concludes that Auction Company has failed to use its best efforts to perform its obligations under this Agreement, and such failure continues for a period of thirty (30) days after notice thereof from Seller to Auction Company, then Seller may terminate this Agreement. Upon such termination for cause, and notwithstanding anything contained herein to the contrary, Auction Company shall not be entitled to any Cancellation Fee or to any Commission with respect to any sales of the Auction Property after the termination unless (i) Seller closes on the sale of Auction Property with a person or entity appearing on the Commission List and (ii) the other conditions set forth in Section 6(d) are met, at which time Auction Company shall be entitled to a Commission pursuant to this Agreement. (b) Termination by Auction Company For Cause. In the event that Auction Company reasonably concludes that Seller has failed to use its best efforts to perform its obligations under this Agreement, and such failure continues for a period of thirty (30) days after notice thereof from Auction Company to Seller, then Auction Company may terminate this Agreement. Upon such termination for cause, Auction Company shall not be entitled to any Cancellation Fee or to any Commission with respect to any sales of the Auction Property after the termination unless (i) Seller closes on the sale of Auction Property with a person or entity appearing on the Commission List and (ii) the other conditions set forth in Section 6(d) are met, at which time Auction Company shall be entitled to a Commission pursuant to this Agreement. Cancellation of this Agreement by Auction Company, after giving the required thirty (30) day notice does not relieve the Seller of its obligation to reimburse the Auction Company for all Seller - approved marketing expenses. The Seller will be required to reimburse the Auction Company for all Seller- approved marketing expenses within 30 days of invoice. (c) List of Prospective Buyers. Within ten (10) days after termination of this Agreement as set forth in subsections (a), (b), or (c) of this Section 6, Auction Company shall deliver to Seller a list of persons or entities (i) which have visited the Auction Property, (ii) with whom Auction Company has negotiated or otherwise dealt during the Auction Listing Agreement Term concerning the purchase of Auction Property, and (iii) which Auction Company considers to personally be active prospective purchasers of Auction Property (the "Commission List "). If any person or entity named on the Commission List becomes the Buyer of Auction Property pursuant to a fully executed Purchase and Sale Agreement with Seller within ninety (90) days after termination of this Agreement, and if such sale closes within one hundred eighty (180) days after termination of this Agreement, Broker shall have earned and Owner shall pay to Broker the Commission thereon. Should Broker fail to deliver a list of active prospective purchasers within ten (10) days, no Commission shall be due on any such sale. (d) Amendment. This Agreement can only be amended in a writing signed by Seller and Auction Company. Section 7. Additional Terms. (a) Notice. Unless otherwise provided herein, all notices and other communications which may be or are required to be given or made by any party to the other in connection with this Agreement \ 10897497.2 shall be in writing and shall be deemed to have been properly given and received on the date delivered in person or sent by overnight delivery service (such as FedEx or UPS) which provides proof of delivery, to the addresses set forth below, or at such other addresses as specified by written notice delivered in accordance herewith: (i) Seller's Notice Address shall be as follows: City of Pueblo 230 S. Mechanic Street Pueblo, CO 81003 Attn: Naomi Hedden, Director of Purchasing nchedden@pueblo.us 719 -553 -2350 Phone 719 -553 -2351 Fax (ii) Auction Company's Notice Address shall be as follows: AmeriBid LLC 4(it $ C4 ' r hA/ 5 c1,: 1 /J 774 /s.4, 0/C" 7C .3( Attn: Larry Latham, CAI, Chief Executive Officer larrylatham @ameribid.com 702 - 885 -7232 Phone 918- 895 -7076 Fax (b) Auction Company Representations. Seller acknowledges and agrees that neither the Auction Company or Broker, nor its auctioneers, brokers, agents, employees, contractors or representatives has made, and Seller is not relying on, any promises or guaranties or representations or estimations, either written or oral, of the final bid price of the Auction Property. For licensing purposes, the Auction Company reserves the right to partner with another auction company, auctioneer, and /or broker without incurring any additional cost to the Seller. (c) Representation and Indemnity. Seller represents, warrants and covenants to and for the benefit of the Auction Company that (i) Seller is the owner of the Property, or the legal agent for the owner and is authorized and empowered to sign and perform under this Contract, and to contract for the sale of the Property at auction or otherwise; (ii) Seller will keep the Property fully insured until Closing against casualty loss or liability, including, without limitation, from personal injury or property damage arising out of any and all auction and auction related activities, and Seller shall bear all risk of loss to the Property; (iii) Seller has read, understands and agrees to all of the terms of this Contract; (iv) Seller shall, on the Closing Date, deliver the signed Deed and all other title documents necessary to transfer marketable title to and full possession of the Property to the Buyer; (v) unless specifically inserted and initialed in Section 12 below, Seller is not aware of any hazardous conditions or any latent defects in or concerning the Property.; and (vi) Seller shall indemnify, defend, and hold harmless the Auction Company and its auctioneers, employees, agents, contractors and representative against any claim or loss arising from Seller's breach, misconduct or negligence, or Seller's failure to disclose in writing to the Auction Company latent or hazardous defects or condition in the Property, including, without limitation, environmental conditions. \ 1 0897497.2 (d) Rules of Construction - Time of the Essence. TIME IS OF THE ESSENCE FOR PURPOSES OF THIS AGREEMENT. (e) Binding Effect. The Agreement shall extend to and be binding upon and inure to the benefit of the parties hereto, their administrators, executors, representatives, heirs, and permitted assigns. (f) Severability. In the event any provision of the Agreement is held by any court having jurisdiction over any dispute arising hereunder to invalid or unenforceable, then such court shall reinterpret such provision so as to carry out the intent of the parties hereto in a valid and enforceable manner, and the invalidity or unenforceability or such provision, and the remainder of this Agreement, including any reinterpretation of such provision, shall remain in full force and effect. (g) Governing Law. The terms and provisions of this Agreement shall be interpreted in accordance with and governed by the laws of the Colorado without regard to the principles of conflicts of law. (h) Entire Agreement. This Agreement includes the entire agreement between the parties hereto. Seller hereby acknowledges and agrees that neither the Auction Company nor anyone acting on the Auction Company's behalf has made any statement, promise, or agreement or has taken upon itself any engagement whatsoever, whether orally or in writing, in conflict with the terms of this Agreement. (i) Authority. Each signatory to this Agreement represents and warrants that he or she has full authority to sign this Agreement and such instruments as may be necessary to effectuate any transaction contemplated by this Agreement on behalf of the party for whom he or she signs and that his or her signature binds such party. (j) Facsimile and Other Electronic Means. The parties agree that countersigned copies of this Agreement may be communicated by use of a fax or other secure electronic means, including but not limited to electronic mail and the internet, and the signatures, initials and handwritten or typewritten modifications to any of the foregoing shall be deemed to be valid and binding upon the parties as if the original signatures, initials and handwritten or typewritten modifications were present on the documents in the handwriting of each party. [Signatures continued onto next page] \ 10897497.2 IN WITNESS WHEREOF, Seller and the Auction Company have signed and delivered this Master Real Estate Auction Listing Agreement as of the Effective Date. Seller: [S E A L] -- 1 Attest: r!. Pueblo, a ■ s s pal : ',! .ration City;., erk B —� - President of the City Council [SEAL] Auction Company: AmeriBid LLC an Oklahoma limited liability company _ 1. • PrinteI a e: �.-r G`i��1.0 �-- SiA Title: Broker: 345 Realty, a Colorado corporation r : / f� Printed Name: AE /C Title: l f,`iL ASo. \ 10897497.2 Exhibit A — Description of Services During the approximately 75 -day auction - marketing period, there are literally hundreds of action items that need to be implemented by AmeriBid, LLC. From a macro -level perspective, they include the following: (1) design and implementation of the marketing campaign, (2) initial and auction preview inspections and reporting, (3) telemarketing and prospective buyer management, (4) pre and post- auction day reporting, (5) the staffing and management of the auction and (6) closing management. (1) DESIGN AND IMPLEMENTATION OF THE MARKETING CAMPAIGN Our proven marketing strategy is a mix of print media, direct mail, digital media, public relations and preparation and distribution of detailed property information packages. Our marketing campaigns are a mix of media sources. They range from the traditional print media to the more widely used digital media sources. Print Media - The print media outlined in the marketing budget is a mix of local and regional advertising. All advertising will be professionally designed and placed by our in -house marketing agency. Direct Mail - We will design, print and mail a professional direct mail flyer to our target market buyers and brokers. The marketing budget details our marketing list. While many buyers may find out about the property through our extensive digital media resources, we believe that a well - prepared direct mail piece furthers the credibility of the auction. With the direct mail flyer, buyers and brokers recognize that the Seller has made a significant investment in the success of the auction and that the Seller wants the property to sell. This credibility of sale is also important to get out -of -town buyers to bid at auction. By having a multi- faceted auction campaign, those out of town buyers are more willing to invest in the costs of travel and due diligence to prepare for and participate in the auction. At many of our auctions, we have out of town buyers participating. We are able to do this because of our excellent relationships we build with the buyers during the marketing process and the credibility of sale we establish because of our marketing techniques. Digital Media - Our digital media resources are significant with high profile exposure on the major CRE websites and search engine results. The marketing budget details all of the digital media resources we will market in. Public Relations - The digital media is supplemented with the professionally prepared and distributed press release. Through our distribution resources, as well as the newswire services, we are able to reach prospective buyers by making the auction a newsworthy event. Our experience is also that there are buyers that have Google or Yahoo news services where they get mailed stories that have certain keywords. When we distribute a press release, we get buyer calls. We believe that for a property like this, the buyers will find out about the auction through our marketing campaign and then will call and register for information and coordinate due diligence, pricing and commitment of equity. Property Information Packages - We will prepare a comprehensive Property Information Package (PIP). Prior to a prospective buyer receiving the PIP, we will require them to sign the pre- approved Confidentiality and Non - Reliance Agreement (CNRA). The CNRA will not require your signature since it is a unilateral agreement from the prospective buyer to you representing that the information provided by us to them in the PIP and other marketing materials is deemed reliable but not guaranteed. The PIP will include, based on availability of certain third party documents: \ 1 0897497.2 • Introduction /Welcome • Auction Terms and Conditions • Established Deposit and Bidding Instructions • Photos — exterior and interior • Survey, if available • Appraisal excerpts - no valuation data provided, if available • Environmental Reports (Phase 1), if available Property Condition Report (PCR), if available • Title Report (Title Commitment, if possible) • Site Plans • Tax Plat • Zoning Regulations • Tax Records • Positive articles regarding the business /area Maps • Area Demographics • Cooperating Broker Form • Summary page on AmeriBid LLC Once a prospective buyer signs and returns the CNRA, we email to them the Property Information Package. If the PIP file is too large for email, we will send it via our FTP service for buyer and investor download or they can access it through our digital data room. While the property is being sold in "as -is, where -is" condition, it is important to provide and disclose all available documentation about the property to buyers to assist them in their due diligence. A comprehensive Property Information Package will increase credibility of sale, the likelihood of buyer inspections and most importantly, will result higher auction participation and ultimately a higher bid and final sale price. (2) INITIAL AND AUCTION PREVIEW INSPECTIONS AND REPORTING We will have the property open for two pre- scheduled inspections as well as "by appointment" inspections. Each property inspection will be led by an AmeriBid Team member. (3) TELEMARKETING AND PROSPECTIVE BUYER MANAGEMENT During the marketing period we will keep in communication with buyers who have expressed interest in the property both via telephone, email, text message and personal visits. In addition to answering their questions and addressing their concerns, we are inquiring of them their perception of the market value of the assets. This information is then compiled into our weekly marketing reports through our telemarketing (TM) reports. We will also proactively contact previous buyers and brokers of comparable properties in our database to make sure they are given the opportunity to bid. We will also proactively call owners of comparable properties in the region to make sure they are aware of the auction. We will also let brokers know that we are offering a cooperating brokerage commission and to encourage them to register their buyers pursuant to the Auction Company guidelines. (4) PRE AND POST - AUCTION DAY REPORTING \10897497.2 An essential part of our marketing process is to have the seller involved in making timely decisions about critical parts of the marketing, such as approving marketing copy, contracts and working through any issues. We recommend having status conference calls so that we can review all agenda items and make sure we are keeping the auction on schedule. These calls will start after our engagement until the property is closed, or as needed. Three days prior to the auction we will deliver our "Proof of Performance Report". This color, graphic reports clearly detail all of the marketing activities we have engaged in along with all of the buyer call statistics, including: • Number of calls per property • Source of the buyer calls, such as WSJ ad, email notice, etc... • Number of calls per week • Number of buyers at each scheduled inspection • Number of "hits" and "views" on all of our digital media marketing • "Click" and "Click -Thru" rates on our Google Ad Words • Number of pre- auction offers • Number of pre- registered buyers represented by a broker (5) THE STAFFING AND MANAGEMENT OF THE AUCTION Our auction day staff is the best in the business. We will have a professional, licensed auctioneer conduct the auction with at least two bid assistants. Most of our auctioneers are state or international champions and know how to get the most money for our clients. We will have additional staff assist with registration and the contract. (6) CLOSING MANAGEMENT We will work closely with the designated title company, the buyer, the seller and the seller's attorney to facilitate an on time closing. \ 10897497.2 Exhibit B "Auction Property Amendment" Property Name: City of Pueblo Fire Station #4 Property Street Address: 1201 E. Evans Avenue, Pueblo, CO 81004 Property Legal Description: Lots 48 -53, Block 50, City Hall Place, County of Pueblo, State of Colorado Lienholder: None Amount: $ N/A Auction Date: Tuesday, October 29, 2013 Auction Time:1:00PM MDT Marketing Budget: $:6,789.96 (Combined w /FS #9) Cancellation Fee: $7,500.00 Auction Type: X Absolute (Sold to the highest bidder regardless of price) Reserve (Sold to the highest bidder subject to Seller reserve, which includes 10% Buyer's Premium) $: Unpublished Reserve Price Auction Style: X Live Open -Outcry Simulcast Live Open- Outcry/Internet Online Internet Online Only Sealed Bid Other Approved: , City of Pueblo: AmeriBid 345 Realty: \10897497.2 Exhibit B "Auction Property Amendment" Property Name: City of Pueblo Fire Station #9 Property Street Address: 2600 Aster Street, Pueblo, CO 81005 Property Legal Description: Block 1C, Beulah Heights, First Filing, County of Pueblo, State of Colorado Lienholder: None Amount: $ N/A Auction Date: Tuesday, October 29, 2013 Auction Time:10:00AM MDT Marketing Budget: $:6789.96 (Combined w/ FS #4) Cancellation Fee: $7,500.00 Auction Type: Absolute (Sold to the highest bidder regardless of price) X Reserve (Sold to the highest bidder subject to Seller reserve, which includes 10% Buyer's Premium) $:100,000.00 Unpublished Reserve Price Auction Style: _ __.__.,.__ -_ X Live Open -Outcry Simulcast Live Open- Outcry/Internet Online Internet Online Only Sealed Bid Other Approved: City of Pueblo: _ AmeriBid L • 345 R : %'' \10897497.2 Exhibit C AUCTION PURCHASE AND SALE AGREEMENT THIS AUCTION PURCHASE AND SALE AGREEMENT (the "Agreement ") is made and entered into as of [_] day of [ ], [ ], by and between the City of Pueblo, a Municipal Corporation, 200 S. Main Street, Pueblo, CO 81003 (hereinafter called the "Seller ") and (hereinafter called the "Purchaser(s) "), and recites and provides as follows: INDIVIDUAL: PURCHASER: (Print Name) PURCHASER'S ADDRESS: PURCHASER'S Office: Fax: PHONE: Home E -mail: PURCHASER'S ATTORNEY: ADDRESS: PHONE: Fax: RECITALS WHEREAS, the Seller owns the Property as more particularly described on Exhibit 1 and by this reference made a part hereof (collectively, the "Property"); WHEREAS, Purchaser desires to purchase the Property and has submitted an offer for purchase as part of a live auction (the "Offer "); WHEREAS, the Offer is subject to the Terms & Conditions of Auction Sale, as more particularly outlined on Exhibit 3 and by this reference made a part hereof; and WHEREAS, Seller agrees to sell the Property subject to the terms and provisions of this entire Agreement. AGREEMENT NOW, THEREFORE, for and in good consideration of the mutual promises, covenants and conditions set forth herein, the receipt and sufficiency of which is acknowledged, the parties hereto agree as follows: Section 1. Sale and Purchase. Subject to the terms and conditions hereof, Seller shall sell, and Purchaser shall purchase the Property. The last date upon which this Agreement is executed shall be hereinafter referred to as the "Commencement Date." The Seller agrees to sell and convey and the Purchaser agrees to purchase, all that certain plat, piece, or parcel of land, with the buildings, fixtures, personal property and improvements thereon having the legal description set forth in Exhibit 1 which is attached hereto and is incorporated by reference ( "Property "). The Property shall be conveyed by Special Warranty Deed ( "Deed ") a form of which, marked as Exhibit D, is attached hereto and incorporated by reference. The Property shall be conveyed subject to the exceptions to the Extended Coverage Policy of title insurance listed in the Title Commitment ( "Permitted Exceptions "). Section 2. Offer This Agreement, when executed by Purchaser and submitted to Seller, shall be irrevocable for [ 1 business days from the date of submission, and shall not be withdrawn for any reason by Purchaser. If not accepted by Seller within that time by delivery of a signed copy of this Agreement to the Purchaser, this Agreement and the Purchaser's offer shall become null and void and the Deposit held by the Auction Company shall be promptly returned to the Purchaser. Section 3. Purchase Price. The purchase price for the Property shall be DOLLARS ($ ) (the "Purchase Price "). The Purchase Price includes the 10% Buyers Premium based on the following: A. High Bid Price: $ B. Buyer's Premium (equal to 10% of the High Bid Price) $ C. Total Purchase Price (equals A + B) $ D. Earnest Money Deposit (10% of C) $ The Purchase Price shall be payable as follows: A. Earnest Money Deposit. An Earnest Money Deposit of 10% of the Purchase Price, or the Minimum Required Deposit as provided for in Exhibit 2, equal to $ shall be held in a non - interest bearing Real Estate Trust Account for the benefit of Seller and Purchaser by Land Title Guarantee Company (the "Title Company ") and is non - refundable upon mutual execution of this Agreement between Purchaser and Seller, unless otherwise specified herein. The Title Company shall hold and disburse the Earnest Money in accordance with the provisions of this Agreement. The Deposit is due at the time of the Purchaser signing this Contract. B. Remaining Balance. The balance of the Purchase Price, less the Deposit, is to be paid at Closing, as hereinafter defined, in cash, certified funds, or by wire transfer or immediately available wire transferred funds. Section 4. Title Commitment, Exceptions, and Auction Terms A. Commitment for Title Insurance. As part of the Property Documents, Seller delivered the most recent title commitment or policy, if any, in its possession to the Purchaser (the "Existing Title "). Purchaser has waived any objections to the Existing Title. Seller shall obtain from the Title Company, at Seller's Expense, a title insurance commitment (the "Title Commitment ") covering the Property, showing all matters affecting title to the Property and binding the Title Company to issue at Closing an Extended Coverage 1992 ALTA Owner's Form of Policy of Title Insurance, with standard exceptions deleted, in the full amount of the Purchase Price. B. Permitted Exceptions. Purchaser shall accept title to the property, subject to the following exceptions (the "Permitted Exceptions "): 1. Those matters affecting or relating to the title to, or the survey of, the Property which are of record on the Effective Date or as shown on the Existing Survey (or even if not shown on the Existing Survey, matters which would have been shown on a current updated or new survey). 2. The lien of non - delinquent taxes, assessments and other usual and customary charges assessed against the owners of real property in the state in which the Land is located. 3. All building and zoning laws, codes and regulations affecting the Property, including all proffers, special exceptions, conditions, site plan approvals, and other similar matters, if any, relating to the zoning of the Property. 4. All Permitted Exceptions provided for in Exhibit 2 are herein incorporated by reference. C. Auction Terms & Conditions. The auction Terms and Conditions attached hereto as Exhibit 2 are hereby incorporated into this Agreement as fully as if copied herein verbatim. To the extent that any term or condition of the Terms and Conditions may be in conflict with this Agreement, it is the intention of the Purchaser and Seller that this Agreement shall control. Section 5. Closing. A. Closing shall take place at the offices of the Title Company at a date which shall be no later than 30 days from the Commencement Date, which is the date of mutual execution of the Purchase and Sale Agreement by the Seller and Buyer. (The "Closing "). B. The Escrow Agent shall be Land Title Guarantee Company ( "Escrow Agent "). C. At the Closing, Seller shall convey to Purchaser, by Special Warranty Deed, insurable fee simple title to the Property free and clear of liens, claims, interests and encumbrances, subject only to standard permitted exceptions and existing easements and other conditions outlined within this Contract. Seller shall deliver possession of the Property to the Purchaser as of the date of Closing. The Purchaser accepts all previously disclosed matters of title provided by the Auction Firm prior to auction. D. At the Closing, Escrow Agent shall deliver to Seller a settlement statement in form and substance reasonably satisfactory to Purchaser and Seller and such other documents, certificates and instruments as may reasonably be required to convey the Property to Purchaser. Section 6. Closing Costs. Notwithstanding anything to the contrary contained herein, the costs of Closing shall be paid as follows: By Purchaser: (a) Fees of any counsel representing Purchaser in connection with this transaction; (b) Fees for recording the Deed conveying Property to Purchaser; (c) Any transfer tax, documentary stamp tax or similar tax which becomes payable by reason of the transfer of the Property; (d) One -half (1/2) of any fees which may be charged by the Escrow Agent for Closing; (e) All premiums, fees and costs associated with the issuance of any lender's title policy, if any. (f) A per diem of $ if the Purchaser does not close on or before the Closing Date and the delay in the Closing is the fault of the Purchaser. By Seller: (a) Fees of any counsel representing Seller in connection with this transaction; (b) Expenses of placing title in proper condition and the premium for the Title Policy (defined in Section 4) to be issued to the Purchaser by the Title Company at Closing; (c) One -half (12) of any fees which may be charged by the Escrow Agent for Closing; (d) Preparation of Special Warranty Deed and other Seller's documents required hereunder; and (e) Escrow Agent's document preparation fee; Section 7. Brokerage /Auctioneer Fees. Seller shall pay to AmeriBid, LLC, a real estate commissions /auctioneer's fee pursuant to a separate written agreement. Other than as broker for the Purchaser, the Purchaser represents and warrants to the Seller that it has not taken any action and is not aware of any facts that may give rise to a commission or brokerage fee being due as a result of the transfer of the Property. The Purchaser shall indemnify and hold the Seller harmless from and against any claims made for a commission due. Section 8. Taxes and Assessments. All past due and accrued real property taxes shall be pro -rated at Closing. The water rates and sewer charges, if any, shall be prorated and adjusted to the date of Closing. Section 9. Seller's Representations. A. The Seller represents to Purchaser the following: 1. The Seller has authority to sell the Property and is authorized to deliver a Special Warranty Deed, and such other documents that are customary and necessary to convey the Property to the Purchaser. Section 10. Property Condition. A. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON; THE COMPLIANCE OF THE PROPETY OR IT'S OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; THE PRESENSE OF ANY ENDANGERED OR THREATENED SPECIES ON THE PROPERTY, AS WELL AS THE SUITABILITY OF THE PROPERTY AS HABITAT FOR ANY OF THOSE SPECIES; THE ACCURACY OR COMPLETENESS OF ANY MATERIALS PROVIDED TO PURCHASER UNDER THE PROVISIONS OF THIS AGREEMENT OR OTHERWISE; OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY, WITHOUT LIMITING THE FOREGOING, SELLER DOES NOT MAKE AND HAS NOT MADE ANY REPRESENTATION OR WARRANTY REGARDING THE PRESENCE OR ABSENCE OF ANY HAZARDOUS SUBSTANCE ON, UNDER OR ABOUT THE PROPERTY OR THE COMPLIANCE OR NON- COMPLIANCE OF THE PROPERTY WITH ANY AND ALL FEDERAL, STATE OR LOCAL ENVIRONMENTAL LAWS, ORDINANCES, REGULATIONS, ORDERS, DECREES, OR RULES REGULATING, RELATING TO OR IMPOSING LIABILITY OR STANDARDES OF CONDUCT CONCERNING ANY HAZARDOUS SUBSTANCES.. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO PUCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS -IS, WHERE -IS, WITH ALL FAULTS." PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES, STATEMENTS, REPRESENTATIONS OR INFORMAITON PERTAINING TO THE PROPERTY OR RELATING THERETO MADE OR FURNISHED BY SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, VERBALLY OR IN WRIITNG, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT. PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NON - EXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS THAT MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUSHED AND RELEASED SELLER FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTIONS IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEY'S FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER AT ANY TIME BY REASON OF OR ARISING OUT OF ANY CONSTRUCTION DEFECTS, PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS (INCLUDING ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY. PURCHASER AGREES THAT SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS ON THE PORPERTY BE REQUIRED BY ANY GOVERNMENTAL ENTITY AFTER THE DATE OF CLOSING, SUCH CLEANUP, REMOVAL OR REMEDIATIONS SHALL, AS BETWEEN THE SELLER AND PURCHASER, BE THE RESPONSIBILITY OF AND SHALL BE PERFORMED AT THE SOLE COST AND EXPENSE OF THE PURCHASER. B. Acknowledgment of Inspection. PURCHASER ACKNOWLEDGES AND AGREES THAT (A) PURCHASER HAS HAD THE OPPORTUNITY TO INSPECT THE PROPERTY, (B) IF THIS TRANSACTION IS CONSUMMATED, PURCHASER WILL BE PURCHASING THE PROPERTY PURSUANT TO PURCHASER'S INDEPENDENT EXAMINATION, STUDY, INSPECTION AND KNOWLEDGE OF THE PROPERTY, AND (C) PURCHASER IS RELYING UPON ITS OWN DETERMINATION OF THE VALUE AND CONDITION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. PURCHASER IS RELYING SOLELY UPON ITS OWN INSPECTIONS, INVESTIGATIONS, RESEARCH AND ANALYSES IN ENTERING INTO THIS AGREEMENT AND IS NOT RELYING IN ANY WAY UPON ANY REPRESENTATIONS OR WARRANTIES (EXCEPT THOSE EXPRESSLY PROVIDED IN THIS AGREEMENT), STATEMENTS, PLANS, SPECIFICATIONS, COST ESTIMATES, STUDIES, REPORTS, DESCRIPTIONS, GUIDELINES OR OTHER INFORMATION OR MATERIAL FURNISHED BY SELLER OR ITS REPRESENTATIVES TO PURCHASER OR ITS REPRESENTATIVES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER REGARDING ANY SUCH MATTERS. PURCHASER FURTHER ACKNOWLEDGES THAT ANY REFERENCES BY SELLER, ITS BROKER(S), ADVISORS, ATTORNEYS, CONSULTANTS AND AMERIBID, LLC REGARDING SQUARE FOOTAGE, DIMENSIONS OR AREA MEASUREMENTS FOR LAND OR IMPROVEMENTS THEREON ARE APPROXIMATE AND WERE PROVIDED BY SELLER WITHOUT REPRESENTATION TO THEIR ACCURACY. PURCHASER ACKNOWLEDGES AND AGREES THAT VERIFICATION OR DETERMINATION OF THE ACCURACY OF SUCH INFORMATION IS THE RESPONSIBILITY OF PURCHASER. WITH RESPECT TO ANY PERSONAL PROPERTY BEING CONVEYED HEREUNDER, PURCHASER SHALL NOT RELY ON ANY LIST OF SUCH PROPERTY COMPILED BY SELLER, BUT RATHER, PURCHASER SHALL COMPILE ITS OWN LIST FOR REVIEW BY SELLER, WHICH LIST, IF APPROVED BY SELLER, SHALL BE COUNTERSIGNED BY SELLER AS EVIDENCE OF THE LIST'S ACCURACY, AND SUCH LIST SHALL CONSTITUTE THE PERSONAL PROPERTY TO BE CONVEYED TO PURCHASER AT CLOSING. C. AS IS. THE OCCURRENCE OF THE CLOSING WILL CONSTITUTE AN ACKNOWLEDGMENT BY PURCHASER THAT THE PROPERTY WAS ACCEPTED WITHOUT REPRESENTATION OR WARRANTY, STATUTORY, EXPRESS OR IMPLIED, AND OTHERWISE IN AN "AS IS, WHERE IS, AND WITH ALL FAULTS" CONDITION BASED SOLELY ON PURCHASER'S OWN INSPECTION THEREOF AND IN ACCORDANCE WITH ANY REVIEW OF THE PROPERTY CONDUCTED BY PURCHASER. THE SALE OF THIS PROPERTY IS NOT CONTINGENT UPON THE PURCHASER OBTAINING A CERTIFICATE OF OCCUPANCY. D. RELEASE. PURCHASER HEREBY RELEASES SELLER AND ANY SERVICER, AGENT, REPRESENTATIVE, MANAGER, AUCTIONEER, AFFILIATE, OFFICER, PARTNER, SHAREHOLDER OR EMPLOYEE OF SELLER (A "SELLER RELATED PARTY ") FROM ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES WHICH PURCHASER OR ANY PARTY RELATED TO OR AFFILIATED WITH PURCHASER (A "PURCHASER RELATED PARTY ") HAS OR MAY HAVE ARISING FROM OR RELATED TO ANY MATTER OR THING RELATED TO THE PHYSICAL CONDITION OF THE PROPERTY, ANY CONSTRUCTION DEFECTS, ANY ERRORS OR OMISSIONS IN THE DESIGN OR CONSTRUCTION OF THE PROPERTY AND ANY ENVIRONMENTAL CONDITIONS AT, IN, ON OR UNDER THE PROPERTY, AND PURCHASER WILL NOT LOOK TO SELLER OR ANY SELLER RELATED PARTY IN CONNECTION WITH THE FOREGOING FOR ANY REDRESS OR RELIEF. E. SURVIVAL. THE ACKNOWLEDGMENTS AND AGREEMENTS OF PURCHASER SET FORTH IN THIS SECTION 10 WILL SURVIVE THE CLOSING. F. PERSONAL PROPERTY INTANGIBLE PROPERTY. SELLER MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AS TO SELLER'S TITLE TO THE PERSONAL PROPERTY OR THE INTANGIBLE PROPERTY. Section 11. Condemnation. If, prior to or during the Closing, all or any material part of the Property shall be condemned by governmental or other lawful authority, Purchaser shall have the option of: (a) completing the purchase, in which event all condemnation proceeds or claims thereof shall be assigned to Purchaser, or (b) terminating this Agreement, in which event this Agreement shall be terminated, and this Agreement shall then be deemed null and void, none of the parties hereto shall then have any further obligation to any other party hereto or to any third party, and the Seller shall return the Deposit in full to the Purchaser. Section 12. Risk of Loss. All risk of loss or damage to the Property by fire, windstorm, casualty or other cause is assumed by Purchaser on the Closing Date. Section 13. Purchaser Default. If Purchaser shall default in the performance of any terms and conditions of this Agreement, or if the Closing shall not occur on or before the Closing Date because of the fault of Purchaser, then Seller, at its option, shall have the right to retain the Deposit paid as property of the Seller for damages the determination of which is different or incapable of determination. By retaining the Deposit, Seller does not waive any rights or remedies it may have because of Purchaser's default. It is intended hereby that all of the rights and remedies of Seller available either pursuant to the terms of this Agreement, or under the law or otherwise, are cumulative and not exclusive of any other such right or remedy. Section 14. Seller Default. If Seller fails or refuses to deliver the Special Warranty Deed on or before the Closing Date upon receipt of the purchaser price from the Purchaser, then Purchaser shall have the right to terminate this Agreement, in which event this Agreement shall then be deemed null and void, and the Seller shall return the Deposit in full to the Purchaser. Section 15. Assignment. This Agreement, or any part thereof, may be assigned to any third party by the Purchaser at its own discretion with prior consent of the Seller, provided, however any assignment by Purchaser shall not relieve the Purchaser of any liability hereunder. Section 16. Costs. Except as otherwise specified in this Agreement, each Party hereto shall pay all of its own costs and expenses incurred in connection with the transactions contemplated hereunder, including, without limitation, any fees and disbursements of its accountants and counsel. Section 17. Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given when mailed, by registered or certified mail, return receipt requested, or by overnight courier, or if faxed, in any case when received by the other party or parties. Any such demand, notice or communication hereunder shall be deemed to have been received on the date delivered to or received at the premises of the addressee (as evidenced, in the case of registered or certified mail, by the date noted on the return receipt). Notice for any party may be given by its respective counsel. Notices shall be directed to the following addresses (or such other addresses as may hereafter be furnished to the other party by like notice): To Seller: City Manager 200 S. Main Street Pueblo, CO 81003 With a copy to: City Attorney 1 City Hall Place Pueblo, CO 81003 To Auctioneer: AmeriBid, LLC 6846 S. Canton/Avenue, Suite 150 Tulsa, OK 74136 Phone: (918) 895 -7077 Fax: (918) 895 -7076 To Escrow Agent: Section 18. Entire Agreement. This Agreement contains the entire agreement between Seller and Purchaser, and there are no other terms, conditions, promises, undertakings, statements or representations, expressed or implied, concerning the sale contemplated by this Agreement. All understandings and agreements heretofore between the parties hereto are merged into this Agreement, which alone fully and completely expresses their agreement, and this Agreement is entered into after full investigation, neither party relying upon any statement or representation, not embodied in this Agreement, made by the other. Section 19. Modification. The terms of this Agreement may not be amended, waived or terminated orally, but only by an instrument in writing signed by the Seller and Purchaser. Section 20. Counterparts. This Agreement may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. Section 21. Non - Recordation. Purchaser shall not record this Agreement or any short form memorandum of this Agreement Section 22. Severability of Provisions. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or unenforceable or is held to be void or unenforceable in any particular jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof. Section 23. Captions. The captions and paragraph headings contained herein are for convenience only and shall not be used in construing or enforcing any of the provisions of this Agreement. Section 24. Acceptance. This Agreement when executed on behalf of Purchaser shall be deemed an offer and shall remain in effect, unless withdrawn by the Seller, until [ 1 days from the date of submission. If not accepted by Seller within that time by Seller by delivery of a signed copy of this Agreement to the Purchaser, this Agreement and the Purchaser's offer shall become null and void. Section 25. Exhibits. The following schedules or exhibits attached hereto shall be deemed to be an integral part of the Agreement: a) Exhibit D — Form of Special Warranty Deed b) Exhibit 1 — Legal Description c) Exhibit 2 — Permitted Exceptions d) Exhibit 3 — Auction Terms and Conditions Section 26. Successors. This Agreement shall inure to the benefit of and bind the parties hereto and their respective heirs, executors, administrators successors and assigns of the respective parties. This Agreement cannot be assigned by the Purchaser to any party without the prior written consent of the Seller. Section 27. Governing Law and Court of Exclusive Jurisdiction. THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO. SELLER AND PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE JURISTICTION OF THE DISTRICT COURT, PUEBLO COUNTY, STATE OF COLORADO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN THE DISTRICT COURT OF PUBELO COUNTY, STATE OF COLORADO. PURCHASER AND SELLER AGREE THAT THE PROVISIONS OF THIS PARAGRAPH 27 SHALL SURVIVE THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE RECORDING OF THE DEED HEREUNDER. TO THE EXENT PERMITTED BY LAW, PURCHASER AND SELLER WAIVE THEIR RIGHTS TO A TRIAL BY JURY. Section 28. Time of Essence. TIME IS OF THE ESSENCE with respect to each and every provision of this Agreement. Whenever any action must be taken (including the giving of notice or the delivery of documents) under this Agreement during a certain period of time (or by a particular date) that ends (or occurs) on a weekend or federal holiday, then such period (or date) shall be extended until the next succeeding business day. Section 29. Patriot Act. Purchaser is not, and will not be, a person or entity with whom Seller is restricted from doing business under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107 56 (commonly known as the "USA Patriot Act ") and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto (collectively, the "Anti Terrorism Laws "), including, without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List. Section 30. Non - Foreign Seller. Seller represents that at the time of acceptance of this Agreement and at the time of Closing, Seller is not a "foreign person" as such term is defined in the Foreign Investments in Real Property Tax act of 1980 (26 USC Section 1445(0 et. Sec) ( "FIRPTA "). If either the sales price of the property exceeds $300,000.00 or the buyer does not intend to use the property as a primary residence then, at the Closing, and as a condition thereto, Seller shall furnish to Buyer an affidavit, in a form and substance acceptable to Buyer, signed under penalty of perjury containing Seller's United States Social Security and /or taxpayer identification numbers and a declaration to the effect that Seller is not a foreign person within the meaning of Section "FIRPTA." IN WITNESS HEREOF, Purchaser and Seller agree that the Date of this Agreement shall be the date the Seller executes this Agreement at Pueblo, Colorado. PURCHASER: (Signature) (Print Name) Date of Purchaser's Offer COUNTY OF PUEBLO ) STATE OF COLORADO ) The foregoing instrument was acknowledged before me this day of 2013 by Witness my hand and official seal. My Commission Expires: (SEAL) Notary Public SELLER: CITY OF PUEBLO, COLORADO A MUNICIPAL CORPORATION By: City Council President ATTESTED BY: CITY CLERK EXHIBIT 1 Property Address Legal Description Description of the Property EXHIBIT 2 PERMITTED EXCEPTIONS ^3' G i +. iJir • Exhibit 3 AmeriBid, LLC 6846 S. Cantor Avenue, Suite 150 Arri • Tulsa, OK 74136 •Phone: (918) 895- 7077•Fax: (918) 895 -7076 Local Knowledge Global Auctions PROPERTY ADDRESS Thank you for attending today's auction! All bidders must register acknowledging that they have read and agree to the "Terms and Conditions" of the sale as outlined prior to bidding. Announcements: All announcements made the day of auction take precedence over any and all previously written advertisements or any prior written or verbal terms of sale. Auctioneer /Seller reserves the right to withdraw property from auction at any time. Agency: AmeriBid LLC, auctioneers, firm, broker and all parties employed by or associated with, will be acting solely as a representative of the Seller. Auctioneer Rights: All decisions of the Auctioneer are final. The Auctioneer reserves the right to reject any bid or bidder and has the right to accept back -up contracts the day of sale. In case of a tie or disputed bid, the Auctioneer reserves the right to re -open the bidding to determine the highest bid and settle the disputed bid. This is at the sole discretion of the Auctioneer. Earnest Money Deposit: A deposit equal to 10% of the Total Purchase Price, or the Minimum Required Deposit, whichever is greater, is required immediately after the auction. No credit cards will be accepted. The remaining balance of the Total Purchase Price is due within 30 days from the date of the offer's commencement date. Deposit funds are non- refundable. If paying with a certified or cashier check, the check(s) should be made payable to yourself, and in the event you are the Winning Bidder you will endorse it to: LAND TITLE GUARANTY COMPANY. Purchase Price: A 10% Buyer's Premium will be added to the high bid at the auction and become the Total Purchase Price. The 10% Buyer's Premium must be paid at the settlement by the high bidder in addition to all other applicable fees and charges described herein and in the Auction Purchase and Sale Agreement. Buyer Registration: This Auction will be held on -site at the property. All bidders must register (at the designated area) by providing appropriate government ID and receive a bidder number. By registering and accepting a number, all bidders agree to abide by all of the Terms of Sale. Broker Registration: Brokers /Agents must register their client by 12:OOpm the business day before the f�, auction via the Broker Registration Form. A one and one -half percent (1.5 %) commission of the high bid price will be paid to any properly registered broker whose client purchases real estate at the auction and closes in full. It is the responsibility of any agent representing a client to have completed and returned the Broker Registration Form by the published deadline. No registration forms will be accepted at auction. Bidding Process: The property may be offered in one or more lots. No bid may be withdrawn by a bidder once made to the Auctioneer. All bids are an irrevocable offer to buy and shall remain valid and enforceable to until the Auctioneer declares the property "Sold" and the auction has concluded. The Auctioneer reserves the right, but has no obligation, to bid on behalf of the Seller up to the undisclosed reserve price, unless the property is declared "Absolute" or the "Reserve has been met ". The bidder's number is nontransferable. All Sales are Final: By registering and bidding, the buyer acknowledges they understand and agree to the Terms of Sale. The Buyer acknowledges that they have read the Auction Purchase and Sale Agreement and the Terms and Conditions of the Auction Sale provided by Auctioneer and accept the Auction Purchase and Sale Agreement without any changes to the pre - printed text. The buyer must sign all contract documents immediately after the auction. Representation: Although information has been obtained from sources deemed reliable, the Auctioneers, AmeriBid, LLC, its representatives, employees, firm, broker, their attorney's nor the Seller make any guarantee or warranty of any kind expressed or implied as to the accuracy of the information herein contained. Real Property: The real property, offered for sale at the Auction are being sold "AS IS ", "WHERE IS ", WITH ALL FAULTS AND DEFECTS ", without warranty or guarantee of any kind, except as expressly provided for in the Auction Purchase and Sale Agreement and Terms and Conditions of the Auction Sale. Each potential Buyer is encouraged to perform his/her own independent inspections, inquiries and due diligence concerning the described property. The information is being furnished to bidders for the bidder's convenience and it is the responsibility of the bidder to determine that information contained herein is accurate and complete. Any reliance on the contents shall be solely at the recipient's risk. It is the Buyer's responsibility to inspect the property prior to bidding to make their determination as to the condition or seek professional inspection (at the Buyer's expense) of the property. Buyer(s) agrees to accept property with its current zoning, easements, and any and all right -of -ways that carry with it. All information is taken from sources deemed to be accurate and reliable, all measurements are approximate and not to scale. The Seller and the Auctioneers, AmeriBid, LLC, contractors, employees, firm, or brokers assume no liability in this matter. Any and all announcements made the day of auction take precedence over any and all previously written advertisements or any prior written or verbal terms of sale but shall in no event form the basis of any representation or warranty by Seller or Auctioneers. By bidding on the property, you are accepting all terms and conditions stated herein. Financing: The purchase is not contingent on obtaining financing or qualification. Buyer Default: In the event a high bid is accepted and the Buyer fails to close or comply with the terms of the Auction Purchase and Sale Agreement, then the earnest money will be forfeited as liquidated damages, but such forfeiture shall not affect any other remedies available to Seller for such failure. Indemnity: The Buyer assumes full responsibility and liability for any claim or actions based on or arising out of injuries, death, damage, loss of property, sustained or alleged to have been sustained by Buyer, its agent, principals, associates, friends, family and /or employees, in connection with or to have arisen out of or incidental to the auction including but not limited to the performance of this contract. Regardless of whether such claims or actions are founded whole or in part upon alleged negligence or negligent • misrepresentation of Seller, Auctioneer, or the employees, agents, invitees, or licensees thereof, Buyer agrees to indemnify and hold harmless Seller, Auctioneer, and their representatives, and the employees, agents, invitees and licensees thereof in respect of any such matters and agrees to defend any claim or suit or action brought against Seller, Auctioneer, and their representatives, and the employees, agents, invitees and licensees thereof. Environmental Disclaimer: The Seller and AmeriBid, LLC, agents, contractors and employees do not warrant or covenant with Buyer(s) with respect to the existence or nonexistence of any pollutants, contaminants, mold, or hazardous waste prohibited by federal, state or local law or claims based thereon arising out of the actual or threatened discharge, release, disposal, seepage, migration or escape of such substances at, from or into the demised premises. Buyer is to rely upon their own environmental audit or examination of the premises. Acreage and Square Feet: All acreages and square feet descriptions are approximate. If there is a discrepancy between AmeriBid, LLC or its representative and the actual acreage and /or square feet as determined by a surveyor or appraiser, the price will not be adjusted. The statements, while not guaranteed, are from reliable sources. Any costs incurred in establishing boundaries shall be the responsibility of the buyer(s). Each sale is subject to easements, right -of -way, reservation and/or restrictions of record. Closing: TIME IS OF THE ESSENCE. The balance of the purchase price will be due in 30 days from the Commencement Date, which is the date of mutual execution of the Contract of Purchase and Sale by the Seller and Buyer. The Seller at closing will convey the real estate with a Special Warranty Deed. Buyer is responsible for all customary closing costs associated with closing to include but not limited to all transfer and recordation closing fees, financing expenses, title fees, title insurance, survey, easement and appraisal. Taxes will be prorated from date of closing. • Please sign below to buyer representations: • I have read and agree to the Terms and Conditions of Auction Sale as set forth herein. • 1 have read, understand and agree to all of the terms and conditions in the Auction Purchase & Sale Agreement and will sign the Auction Purchase & Sale Agreement without making any changes to the pre - printed text. • I understand that I do not have an agency relationship with AmeriBid, LLC, auctioneers, firm, broker and all parties employed by or associated with. • I accept full responsibility for due diligence on the real estate I am bidding on. • I understand that all real estate will be sold "As -Is, Where -Is ". • I understand if I am the successful bidder the sale of this property is not contingent upon obtaining a Certificate of Occupancy. • I understand that, in the event I am the successful bidder of real estate, that a 10% Buyers Premium will be added to the high bid and payable at closing as the Total Purchase Price. • I understand that, in the event I am the successful bidder of real estate, and if I fail to close per the Auction Purchase & Sale Agreement, my earnest money deposit(s) will be forfeited. • I understand this agreement will become part of the Auction Purchase and Sale Agreement if I am the winning bidder. • In the case of a conflict between the Auction Purchase and Sales Agreement and Terms and Conditions of Auction Sale for Real Estate, the Auction Purchase and Sale Agreement shall control. BY SIGNING BELOW AND BIDDING, YOU HAVE ACCEPTED THESE TERMS AND CONDITIONS OF AUCTION SALE. Signature: Printed Name: Title (If Business): Company: Street Address: City /State /Zip: Phone: Fax: Email: EXHIBIT D SPECIAL WARRANTY DEED THIS DEED, made this day of , 2013 between the City of Pueblo, Colorado, a Colorado municipal corporation (hereinafter referred to as "Grantor "), and whose legal address is (hereinafter referred to as "Grantee "): WITNESSESTH, that the Grantor, for and in consideration of the sum of DOLLARS ($ .00), and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey, and confirm, unto the Grantee, its heirs, successors and assigns forever, all the real property, together with improvements, if any, situate, lying and being in Pueblo County, State of Colorado, described on Exhibit 1 attached hereto and made a part hereof, for all purposes, together with all and singular the rights, benefits, privileges, easements, tenements, hereditaments and appurtenances thereto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the Grantor, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances; This conveyance is made subject and subordinate to those encumbrances and exceptions (the "Permitted Exceptions ") set forth on Exhibit 2 attached hereto and made a part hereof for all purposes. TO HAVE AND TO HOLD the said premises, subject to the Permitted Exceptions, above bargained and described, with the appurtenances, unto the Grantee, its heirs, successors and assigns forever. The Grantor, for itself, its successors and assigns does covenant and agree that it shall and will WARRANT AND FOREVER DEFEND the above - bargained premises in the quiet and peaceable possession of the Grantee, its heirs, successors and assigns, against all and every person or persons claiming the whole or any part thereof, by, through or under the Grantor. IN WITNESS WHEREOF, this Special Warranty Deed is executed by Grantor to be effective the day and year first above written. GRANTOR: CITY OF PUEBLO, COLORADO A COLORADO MUNICIPAL CORPORATION By: Stephen G. Nawrocki City Council President STATE OF COLORADO ) ) ss. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me on this day of 2013, by Pueblo, a Municipal Corporation, by Stephen G. Nawrocki, as President of the City Council of Pueblo, a municipal corporation. Witness my official hand and seal. My Commission Expires: Notary Public