|Terms: ||GENERAL TERMS AND CONDITIONS OF SALE|
Online Real Estate Auction
“Casa De Los Suenos”
114 Las Residencias, Punta Ballena, Cabo San Lucas, Mexico
Start Date: Wednesday, July 22, 2015 @ 10:00 A.M. E.T.
Bidding End Date has been extended: Friday, July 24, 2015 @ 4:00 P.M. E.T.
Please review this document carefully. In order to register to receive a Bidder’s Number and online bid access, a Bidder must sign these General Terms and Conditions of Sale, which may be incorporated into the Offer to Purchase.
1. START / END DATES AND TIMES:
The Online Auction (“Auction”) shall begin on Wednesday July 22, 2015 @ 10:00 A.M. E.T. and will end on Friday, July 24, 2015 @ 4:00 P.M. E.T.
2. MANDATORY ONLINE BIDDER REGISTRATION:
Registration is required to become a pre-qualified and eligible online bidder (“Bidder”). To register, a prospective Bidder must:
(a) Complete the Online Bidder Registration Form providing Bidder’s full name, company name, residence/business addresses with telephone numbers, cellular telephone number, facsimile number, email address, a copy of a State/Country valid driver’s license number or a valid passport, and the name(s) and / or entity in which the Bidder will take title to the Property if they are the successful purchaser.
(b) Bidders must wire transfer the required Initial Escrow Deposit of $25,000.00 in U.S. Funds to Stewart Title Latin America, Inc., (Escrow Agent / Closing Coordinator) no later than 5:00 P.M. E.T., Thursday, July 23, 2015 (for wiring instructions contact Fisher Auction Company at 800.331.6620 or 954.942.0917 for international).
(c) Sign an acknowledgment that the Bidder has read and agrees to be bound by these specific General Terms and Conditions of Sale.
(d) Execute the Online Bidder Contract and Return of Initial Escrow Deposit Form.
(e) Return the required four (4) executed documents mentioned above to Fisher Auction Company (“Auction Consultant”), 2112 East Atlantic Boulevard, Pompano Beach, Florida 33062; Facsimile: 954.782.8143; Email: firstname.lastname@example.org no later than 5:00 P.M. E.T., Thursday, July 23, 2015.
3. SUCCESSFUL BID, TOTAL PURCHASE PRICE (BUYER’S PREMIUM), ESCROW DEPOSITS, OFFER TO PURCHASE:
(a) If the Seller, by and through the Auction Consultant, accepts a bid (“Successful Bid”) for the Property, then the successful Bidder will be required to execute, as Buyer (“Buyer”), the Offer to Purchase (“Contract”), which has been previously furnished to Bidder, immediately following the conclusion of this Online Auction, with no changes or exceptions, and tender the Additional Escrow Deposit so required as mentioned below. The Successful Bidder’s Initial Escrow Deposit stated in item 2 above has been delivered to Stewart Title Latin America, Inc., as Escrow Agent / Closing Coordinator, (“Initial Escrow Deposit”) and deposited into their Escrow Account and held in escrow as a required Initial Escrow Deposit pursuant to the terms of the Contract.
(b) An Additional Escrow Deposit equal to the difference between 10% of the Total Purchase Price and the Initial Escrow Deposit shall be initiated and due by Buyer via wire transfer on Monday, July 27, 2015 by 5:00 P.M. E.T. in U.S. Funds to Stewart Title Latin America, Inc. (Escrow Agent / Closing Coordinator) and held in escrow as a required Additional Escrow Deposit pursuant to the terms of the Contract.
(c) The amount of (i) the Successful Bid AND (ii) 10% of the Successful Bid (“Buyer’s Premium”), added together, will be the Total Purchase Price (“Total Purchase Price”) for the Property to be purchased by the Buyer under the Contract together with closing costs and fees as further provided in the Contract.
4. CLOSING AND PAYMENT OF TOTAL PURCHASE PRICE:
(a) The Closing (“Closing”) will be on or before seventy (70) calendar days from the Contract execution between Buyer and Seller. Seller shall have the right, if necessary, to extend the Closing for an additional thirty (30) calendar days by providing written notice to the Buyer. The Closing shall be coordinated and administered through the offices of the Escrow Agent / Closing Coordinator; Stewart Title Latin America, Inc., Paseo de la Marina 4107 Local 1-C ubicado en la Planta Baja, Cabo San Lucas, Baja California Sur, México, Telephone: (624) 1307122, (624) 1307891, US 713.429.4837; Facsimile: (624) 1307116 (NO EXCEPTIONS).
(b) The Total Purchase Price will be due and payable by Buyer at Closing by Wire Transfer of immediately available U.S. funds, pursuant to written instructions from the Escrow Agent / Closing Coordinator. Buyer shall receive credit for the Initial Escrow Deposit and the Additional Escrow Deposit, which shall be released from escrow and applied by the Escrow Agent / Closing Coordinator towards the Total Purchase Price at Closing.
(c) Time shall be of the essence as to Buyer's obligations in these General Terms and Conditions and as described in the Contract.
5. TITLE / CONVEYANCE:
(a) Stewart Title Insurance Company will provide their service of Non Insurance Title Statement.
(b) Except as provided for herein, it is understood and agreed that fee simple title to the Property being sold to the Buyer without representation or warranty and subject to the Permitted Exceptions.
(c) The seller will convey title through a Public deed of trust or assignation of trust rights depending on the current status and includes a clause in which the seller guarantees the title only against defects arising during the period of his or her tenure regarding the beneficiary rights of the trust or ownership of the property
(d) Buyer agrees that the Property is subject to all laws, ordinances, codes, rules and regulations of applicable governmental authorities pertaining to the ownership, concominium regimes, home owner association, use and occupancy of the Property including, but not limited to, zoning, land use, building codes, environmental issues and agrees to take title subject to such matters, and the following permitted exceptions: (i) all covenants, restrictions, easements and agreements of record now on the Property; (ii) all liens for unpaid municipal charges not yet due and payable and all taxes and assessments for the year of Closing and all subsequent years not yet due and payable, (iii) the state of facts which would be shown by a current survey or inspection of the Property; (iv) any matter created by or through Buyer; (v) any title matters which Buyer has accepted or is deemed to have accepted as set forth in the Contract; and (vi) such other matters that will not make the Property unusable or unmarketable.
(e) Seller is not providing to Buyer any survey of the Property. In the event Buyer desires to obtain a survey of the Property, Buyer will be solely responsible to obtain, and pay for, such survey without reducing the proceeds of the Total Purchase Price payable to Seller at the Closing. Buyer shall not have the right to terminate the Contract based upon the results of the survey.
6. BUYER’S ACKNOWLEDGEMENTS:
(a) The sale of the Property is an “All Cash” transaction and shall not be subject to any financing, other contingencies, or post due diligence.
(b) The Seller, Los Cabos Sotheby’s International Realty and Fisher Auction Company and their representatives, attorneys, agents, and sub-agents, assume no liability for errors or omissions in this or any other property listing or advertising or promotional/publicity statements and materials. The Seller, Los Cabos Sotheby’s International Realty, Fisher Auction Company and their representatives, attorneys, agents and sub-agents, make no representation or guarantee as to the accuracy of the information herein contained or in any other property listing or advertising or promotional/publicity statements and materials. Neither Los Cabos Sotheby’s International Realty, Fisher Auction Company nor the Seller has any obligation to update this information. Neither Los Cabos Sotheby’s International Realty, Fisher Auction Company nor the Seller, their Agents and Sub-Agents, attorneys, Escrow Agent / Closing Coordinator, representatives, members, managers or affiliates has any liability whatsoever for any oral or written representations, warranties, or agreements relating to the Property except as is expressly set forth in the Contract.
(c) The Property is sold in “AS IS AND WHERE IS” condition and with all faults and defects, with no representations or warranties, express or implied. All Bidders are encouraged to inspect the Property prior to placing any bid via this Online Auction and the Successful Bidder, as Buyer, acknowledges that it has had a reasonable opportunity to inspect and examine all aspects of the Property and make inquiries of applicable governmental authorities pertaining to such matters in connection with the Property as Buyer has deemed necessary or desirable prior to this Online Auction. Bidders should review all applicable zoning, land use, code compliance, environmental matters, physical condition, and any and all other governmental statutes, ordinances, rules, laws and regulations and do such other due diligence in advance of execution of this document and all of the accompanying documents in connection with the purchase of the Property (“Governing Documents”). Please review all Governing Documents carefully, and seek the advice from legal authorities.
(d) Competitive bidding is an essential element of an Online Auction sale, and such a sale should be conducted fairly and openly with full and free opportunity for competition among bidders. Any conduct, artifice, agreement, or combination the purpose and effect of which is to stifle fair competition and chill the bidding, is against public policy and will cause the sale to be set aside. Collusion / Bid Rigging are a U. S. Federal Felony punishable by imprisonment and fine. Fisher Auction Company will report all illegal conduct to the F.B.I. and cooperate with any prosecution.
(e) The Property may be withdrawn from this Online Auction at any time without notice and is subject to prior sale.
(f) Seller, in its absolute sole discretion, reserves the right to amend, negotiate, modify, or add any terms and conditions to these General Terms and Conditions of Sale, the Contract and to announce such amendments, modifications, or additional terms and conditions at any time, including during this Online Auction.
(g) The highest bid shall be the Successful Bid only if same is acceptable to and accepted by Seller, by and through the Auction Consultant via this Online Auction, and as evidenced by Seller and the Successful Bidder, as Buyer, each executing the Contract.
(h) Back-up bids will be recorded and received by Seller in Seller’s absolute discretion. Should the Property not close with the Buyer or should the Buyer not comply with any term or condition of any document executed by Buyer in connection with the Property, the Seller will have the option, but not the obligation, to pursue all back-up bids.
(i) If you are unsure about anything regarding the Property or the Governing Documents, do not place a bid or participate in this Online Auction. Review of the Governing Documents and all of the terms and conditions as well as a review of the Property before making any bids is strongly recommended and you will be deemed to have done so on execution of these General Terms and Conditions of Sale.
(j) At the close of this Online Auction, upon the acceptance of the Purchaser’s bid is an acknowledgment that such bid is the highest bid, at which time it became a binding agreement to purchase the Property. Whether such bid is accepted is subject to this Agreement, including any announcements/notices made by the Auction Consultant. Thereafter, you may not withdraw your bid and you are obligated to execute the Contract.
(k) The Buyer’s Executed General Terms and Conditions of Sale may be attached and made a part of the Contract. In the event a conflict exists between the Contract and the General Terms and Conditions of Sale, then, (i) prior to Buyer’s execution and delivery of the Contract, the terms of the General Terms and Conditions of Sale shall govern and control and (ii) following Buyer’s execution and delivery of the Contract, the terms of the Contract shall govern and control over the General Terms and Conditions of Sale.
(l) The Auction Consultant is performing auction marketing services as part of this transaction, and is not performing any real estate services.
All announcements/notices provided to the bidders shall supersede and take precedence over all previously written or printed material and any other oral statements made; provided however that the Auction Consultant shall not be authorized to make any representation or warranty (express or implied) with respect to the Property. The Auction Consultant has the sole and absolute discretion to make any announcements via this Online Auction, including but not limited any announcements that may amend or alter these Online Auction terms, conditions, or procedures that were previously set forth in written materials. In the event of a dispute over the bidding process, the Auction Consultant shall make the sole and final decision and will have the right either to accept or reject the final bid or re-open the bidding.
If the Buyer fails to comply with any of these General Terms and Conditions of Sale, the Seller shall retain the required Initial and Additional Escrow Deposit, which shall be considered fully earned and non-refundable, under this Agreement and / or the Contract as liquidated damages and not as a penalty and the Escrow Agent / Closing Coordinator must immediately release the Initial and Additional Escrow Deposit upon request of the Seller. Buyer acknowledges and understands that this provision is enforceable and shall not be deemed a penalty because the damages are not readily ascertainable and generally impossible to calculate under the circumstances. Upon Default and notice of same by Seller to Escrow Agent / Closing Coordinator, Buyer understands and agrees to the immediate release of the Escrow Deposit funds to the Seller by the Escrow Agent / Closing Coordinator without the requirement of further documentation or consent from Buyer.
All information was derived from sources believed to be correct, but is not guaranteed. Bidders shall rely entirely on their own information, judgment, and inspection of the Property and records. Neither the Seller, Los Cabos Sotheby’s International Realty nor Fisher Auction Company, it’s Agents and Sub-Agents makes any representation or warranties as to the accuracy or completeness of any information provided. All sizes, dimensions, drawings are approximations only.
10. FINAL BID PRICE:
The final bid price for the Property shall be determined by competitive bidding via the Online Auction. The Property is being sold to the Highest and Successful Bidder at or above a bid price of $1,000,000.00 plus the ten percent (10%) Buyer’s Premium, subject to the terms and conditions of the Governing Documents.
11. BUYER’S BROKER PARTICIPATION:
Four Percent (4%) of the Final Bid Price will be paid to a qualified Licensed Real Estate Broker (“Broker”) whose registered Buyer’s offer is accepted by the Seller and closes on the Property, provided the Broker is not prohibited by law from being paid such commission. To qualify for a commission, the Broker must first register their prospect on the MANDATORY REAL ESTATE BUYER BROKER PARTICIPATION REGISTRATION form. The form must be received by the office of Fisher Auction Company no later than 5:00 P.M. E.T., Wednesday, July 23, 2015. The registration MUST be sent to Fisher Auction Company, 2112 East Atlantic Boulevard, Pompano Beach, FL 33062. Brokers may fax their broker registration(s) to 954-782-8143 or email to email@example.com. NO LATE REGISTRATIONS WILL BE ACCEPTED. Commissions will be paid only after Closing and after Los Cabos Sotheby’s International Realty and Fisher Auction Company have been paid in full. Brokers are not required to attend the Closing. If a Broker has not met all of these requirements, no commission will be paid to the Broker, even if the Broker’s prospect purchases the Property. No oral registrations will be accepted. Under no circumstances whatsoever will any commission be paid to the Broker if the sale does not close for any reason.
12. ACKNOWLEDGMENT AND ACCEPTANCE:
The Undersigned Bidder acknowledges receipt of a copy of these General Terms and Conditions of Sale, and having read and understood the provisions set forth therein, accepts same and agrees to be bound thereby. Facsimile or electronic signatures will be treated and considered as original.
Buyer shall defend, indemnify, and hold harmless Auction Consultant, its officers, directors, employees, and agents, from and against any and all claims, demands, causes of action, costs, liabilities, losses, damages, and expenses (including reasonable attorneys and expert witness fees and expenses) (collectively, “Claims”), and by whomever brought, to the extent arising out of or in any way related to (i) the sale of the Property, (ii) the performance of the parties’ obligations under this Agreement; (iii) the physical condition and quality (and express or implied representations regarding such condition and quality) of the Property or any portion thereof, (iv) any breach of these General Terms and Conditions, Governing Documents, or the Contract; (v) any claim arising from the sale of the property; (vi) any claim arising from Buyer’s participation in this Online Auction; or (vii) any other act, omission or representation by Buyer.
14. GOVERNING LAW/JURISDICTION/VENUE:
This Agreement shall be construed, enforced and governed by the laws of the State of Florida, without regard to choice of law and similar doctrines. The parties consent to jurisdiction in the State of Florida and venue, for any litigation arising out of this Agreement, shall lie exclusively in the courts of Broward County, Florida.
15. WAIVER OF JURY TRIAL:
EACH PARTY TO THIS AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THIS AGREEMENT OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER AGREEMENT CONTEMPLATED AND EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF DEALING, COURSE OF CONDUCT, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
16. ATTORNEY’S FEES:
If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret any provision or provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees and costs, whether at the trial court and appellate level, in addition to all other costs associated with the action whether or not the action advances to judgment, in addition to any other relief to which that party may be entitled.
17. ENTIRE AGREEMENT:
This Agreement embodies the entire agreement between the parties relative to the subject matter, and there are no oral or written agreements between the parties, or any representations made by either party relative to the subject matter, which are not expressly set forth herein. To the extent that any of the terms or provisions contained herein differs or conflicts with those contained within the Contract, the Contract shall control.
THE BIDDER ACKNOWLEDGES AND AGREES THAT THE BIDDER HAS READ ALL OF THE TERMS AND CONDITIONS AND EACH OF THE TERMS AND CONDITIONS CONTAINED IN THE GOVERNING DOCUMENTS AND AGREES TO BE BOUND TO SAME BY PLACING THE FIRST BID ONLINE.