TERMS AND CONDITIONS
These Bidder Terms and Conditions apply to auctions conducted by COLORADO LAND INVESTMENTS I, LLC, and constitute a legal, valid, binding, and enforceable contract between Auctioneer and each Participant, Bidder, and Buyer. These bidder terms and conditions also form the basis for the contract of sale between the Seller and the Buyer.
1. Overview. The “Ellis W. Hitzing Auction” is offering 1607.20 +/- acres of Colorado land for sale at auction. The “Ellis W. Hitzing Auction” property includes 1227.63 +/- acres of pasture and 379.52 +/- acres of dryland. 1227.63 +/- acres is fenced pasture with a new submersible livestock well with a solar pump, 20’ tank and 379.52 +/- cropland acres of wheat stubble. Legal descriptions are subject to existing fence/field boundaries.
2. Auction Conducted Under and In Accordance with These Bidder Terms and Conditions, Additional Terms and Conditions Posted by Auctioneer, and Announcements Made at the Time of the Auction, and Applicable Law. The Auction is conducted under and in accordance with these Bidder Terms and Conditions, any and all other Terms and Conditions posted by Auctioneer (whether at the Auction Site or online), any announcements or corrections made by Auctioneer at the time of the Auction, and applicable law. By participating in the Auction, whether at the auction site, online, telephonically, or through any other means each Participant agrees to be bound by, and to abide by, all such Bidder Terms and Conditions.
3. Announcement. The information contained herein has either been given to us by the owner of the property or obtained from sources that we deem reliable. We have no reason to doubt its accuracy, but we do not guarantee it. Colorado Land Investments and the Seller assumes no responsibility for the omissions, corrections or withdrawals. The location maps are not intended as a survey and are for general location purposes only. Colorado Land Investments and all other agents of Broker are or will be acting as a Seller’s Agent. Colorado Land Investments does not offer broker participation for the “Ellis W. Hitzing Auction”. Colorado Land Investments reserves the right to require bank references upon request and reserves the right to refuse bids from any bidder. Bidding increments are at the discretion of the Broker.
3. Definitions. The following definitions apply to these Bidder Terms and Conditions for each auction conducted by Auctioneer:
“Bidder” means any person or entity that makes a bid at the Auction.
“Fall of the Hammer” means the point at which Auctioneer declares the Property “sold” to the Bidder acknowledged by Auctioneer as having made the Winning Bid. During an auction that is exclusively online, the Fall of the Hammer will occur electronically at the end of timed (or extended) bidding. In an auction that is Subject to Seller’s Confirmation, the Fall of the Hammer will occur on Seller’s Confirmation of the High Bid Subject to Confirmation.
“Hammer Price” means the high bid amount recognized by Auctioneer with the Fall of the Hammer.
“High Bid” means the high bid amount recognized by Auctioneer at the conclusion of bidding.
“High Bid Subject to Confirmation” means the High Bid amount recognized by Auctioneer at the conclusion of bidding on Property put up at Auction Subject to Seller’s Confirmation. If the High Bid Subject to Confirmation is confirmed by Seller, it will be the Hammer Price.
"Knocked Down" or "Knock Down" means, with respect to any Property put up at the Auction, that Auctioneer has acknowledged the Winning Bid with the Fall of the Hammer, or by announcing "sold", or by giving a similar such indication. Property may be Knocked Down electronically at the conclusion of a timed online auction event. (Also, "Struck Off" or "Strikes Off").
“No Sale” occurs if Property is put up at the Auction but is not Struck Off or sold, and Auctioneer passes on such Property or declares a No Sale.
“Online Auction Platform” means the hardware and software utilized to conduct the Auction online and to facilitate online bidding, including any associated, adjunct, and/or complementary websites, services, premiums and promotions.
“Online Auction Platform Provider” means the provider of the Online Auction Platform and related services.
"Online Bidding Period" means, with respect to an Auction conducted in whole or in part online, any established period during which online bids may be tendered.
“Participant” means any person who attends, or otherwise participates in, the Auction (in person or remotely). The term Participant includes, but is not limited to, Registered Bidders, Bidders, and Buyers.
“Purchase Price” means an amount equal to the Hammer Price or High Bid Subject to Confirmation, as the case may be.
“Subject to Seller's Confirmation” means, with respect to any Property expressly identified in this Agreement as being sold Subject to Seller’s Confirmation, that after the High Bid Subject to Seller’s Confirmation has been received and acknowledged by Auctioneer, Seller may determine, in Seller's sole and absolute discretion, to (i) accept such bid or (ii) reject such bid.
“Winning Bid” means the highest bid received and accepted (and if Subject to Seller’s Confirmation, confirmed by Seller).
"Winning Bidder" means the Bidder who is recognized by Auctioneer as having made the Winning Bid.
“Withdrawn”, “Withdrawal”, or “Withdraw” refers to the circumstance in which the Property is removed or withdrawn from the Auction, or in which it is determined that such Property will not be offered or sold at the Auction.
4. Land Location. Located in Cheyenne County, Colorado, this property is located 14.5 miles northwest of Firstview, CO and 29 miles South of Stratton, CO.
5. Crops. No growing crops. Grassland has not been grazed in 2018, will make excellent pastureland. The 2018 wheat crop averaged 45 bushels per acre.
6. Closing. Date of closing will be on or before September 27, 2018.
7. Possession. At closing.
8. Real Estate Taxes. Seller will pay for 2017 taxes and prior years. Taxes for 2018 will be prorated to the date of closing based on the 2017 taxes.
9. Water/Mineral Rights. Seller to convey all water rights appurtenant to the property and all OWNED mineral rights to the Buyer(s). Approximately 963.8 mineral acres will convey to Buyer(s).
10. Evidence of Title. Seller will provide Title Insurance to the Buyer(s) in the amount of the purchase price with premium and closing fee to be split 50/50 between Seller and Buyer(s). Seller to pass title by General Warranty Deed free and clear of all liens.
11. FSA Information. 1227.63 acres of grassland and 379.52 acres of cropland.
Note: Any future FSA payments will follow the crops and will be paid pursuant to FSA regulations. Corn is enrolled in ARC-County and Wheat in PLC.
12. Bidder Registration; Bidder Qualification. Potential bidders must register to bid at this auction through our Colorado Land app. This app is available on our website www.cololand.com. You may also download this app from Google Play or the Apple App Store on your mobile devices. Your registration must be approved by Colorado Land Investments before you can bid. You must review and agree to the detailed terms and conditions during the registration process and provide Colorado Land Investments verification of available funds to purchase the property and/or bank loan approval letter with no contingencies. Proxy bidding is available, please contact the office to get that set up.
13. Sale Terms/Procedures. The “Ellis W. Hitzing Auction” is an online only auction that will be sold SUBJECT TO SELLER’S CONFIRMATION. The “Ellis W. Hitzing Auction” will be offered in one tract only. Competitive bids will determine the outcome of the auction. Seller reserves the right to accept or reject any and all bids. Bids will be taken for total purchase price not price per acre. Bidding will begin @ 8:00 am MT on August 21, 2018. The auction will “soft close” @ 11:00 am MT on August 30, 2018. Bidding will continue in 5 minute increments until 5 minutes have passed with no new bids. Immediately following the closing of the auction, the highest bidder(s) will sign Broker Disclosure and will enter into and sign a Colorado Contract to Buy & Sell Real Estate (Land) for the amount of the bid. Required earnest money deposit to be in the form of a personal, business, or corporate check for 10% of the purchase price which is due upon signing of the contract and to be deposited with Cheyenne County Abstract Co. Purchase contract will not be contingent upon financing. Terms and conditions of the “Detail Brochure” and announcements shall be incorporated and made a part of the Contract to Buy & Sell Real Estate (Land).
14. Acreages. All stated acreages in the initial brochure, “Detail Brochure”, are approximate and are obtained from aerial photos from the FSA office. The county tax records may indicate different acreages and no warranty is expressed or implied as to exact acreages of property. All bids are for the total parcel without regard to exact acreage. There will be no adjustment in purchase price if acreage is different than what is stated in this brochure and/or stated at the auction.
15. Auction Conducted in the State of Colorado. The Auction is conducted in the State of Colorado. The Property is located in the State of Colorado, and is exposed for sale in the State of Colorado. Notwithstanding the physical location of any Bidder or other Participant, these Bidder Terms and Conditions are entered into in the State of Colorado, all bids are received in the State of Colorado, and all contracts between Seller and Buyer (including the Realty Purchase and Sale Agreement), are formed and entered into in the State of Colorado. 5.16
16. Access to Property and/or Online Auction Platform. Participants assume all risks associated with their access to the Property and/or their access to any Online Auction Platform(s) utilized by Auctioneer. Any person may be denied access to the Auction, the Property, and any Online Auction Platform(s) utilized by Auctioneer, and may be removed at Auctioneer’s discretion.
17. Nature of the Auction. The Property will be sold Subject to Seller's Confirmation. This means that after the High Bid Subject to Confirmation has been received and acknowledged by Auctioneer, Seller may determine, in Seller's sole and absolute discretion, to (i) accept such bid or (ii) reject such bid.
18. Bidding. Bidders may only bid at the Auction by agreeing to be bound by these Bidder Terms and Conditions. By bidding, each Bidder acknowledges and agrees that such Bidder is subject to, and bound by, these Bidder Terms and Conditions.
19. No Bid Retraction. No Bidder may retract a bid that has been acknowledged by Auctioneer or that has been submitted online. Each Bidder acknowledges and agrees that Auctioneer is acting in reliance on tendered bids in the conduct of the Auction, and that bid retraction is disruptive and interferes with the Auction, and that, as an inducement for Auctioneer to accept such Bidder’s Bidder Registration and for such Bidder to bid at the Auction, each Bidder agrees not to withdraw or to attempt to withdraw any tendered bid.
20. Posted Times. All times are based on the Mountain time zone unless stated otherwise. Posted closing times and time displays are approximate. Auctioneer reserves the right to close early or extend the Auction at Auctioneer’s sole and absolute discretion.
21. Auctioneer’s Records. Absent clerical errors, Auctioneer’s records will be final and conclusive.
22. Technology Disruptions. Auctioneer will not be responsible for technology disruptions, errors, or failures (including disruptions to bidding or the failure to execute, recognize, or record online bids), whether caused by (i) loss of connectivity, breakdown, disruption, or failure of the Online Auction Platform, (ii) breakdown, disruption, or failure of a Bidder's internet connection, computer, or system, or (iii) otherwise. Auctioneer may, but will not be required to, continue, suspend, delay, extend, reschedule, or close the Auction because of disruptions caused by technology failures, even after bidding has commenced.
23. Failures by Online Auction Platform Provider and its Affiliates or Contractors. Auctioneer may use an Online Auction Platform Provider to facilitate the Auction. Under no circumstances will Auctioneer be liable for any failure of the Online Auction Platform Provider to perform all or any of its obligations, or for the failure of any affiliates, employees, agents, representatives, or contractors of the Online Auction Platform Provider to perform their obligations.
24. Auto Extend Feature. Any Online Bidding Period may include an auto extend feature. This means that, if an online bid is entered within a set time period approaching the end of the established Online Bidding Period, the Online Bidding Period will automatically be extended for an additional amount of time in increments established by Auctioneer, and will continue to be so extended until there is a set period of time that lapses during which no online bids are received, after which bidding will close.
25. Disclaimer. Auctioneer makes no representations or warranties, and disclaims all representations and warranties, (i) that the Online Auction Platform(s) or any related technology will be uninterrupted, error free or virus free, (ii) as to the results that may be obtained by using the Online Auction Platform(s) or any related technology, or (iii) as to the accuracy, completeness, reliability, security, or current nature of the Online Auction Platform(s) or any related technology.
26. Responsibility for Online Bids. Each Registered Bidder is responsible for all bids transmitted from such Registered Bidder’s computer or from such Registered Bidder’s account established by the Auctioneer of the Online Auction Platform. If a Winning Bid is sent from the computer or device of a Registered Bidder, or from a Registered Bidder’s account for the Online Auction Platform, such Registered Bidder will be the Buyer.
27. Winning Bidders Subject to Certification by Auctioneer. The final determination of the Winning Bidder is subject to certification by Auctioneer; and any email or electronic message (whether generated manually or automatically) is subject to such certification.
28. Winning Bid; Buyer. Pursuant to these Bidder Terms and Conditions, per Detail Brochure, the Bidder making the Winning Bid.
29. Property Condition.
29.1 The prospective Buyer(s) should verify all information contained herein. All prospective bidders are urged to fully inspect the property, its condition, and to rely on their own conclusions and the property is being sold AS IS-WHERE IS, without warranty, representation or recourse to Seller.
29.2 Property Sold "AS IS", "WHERE IS", and "WITH ALL FAULTS". THE PROPERTY IS BEING OFFERED AND SOLD IN ITS AS IS/WHERE IS CONDITION AT THE TIME OF THE AUCTION, WITH ALL FAULTS, INCLUDING ANY HIDDEN DEFECTS OF ANY NATURE. NEITHER AUCTIONEER NOR SELLER MAKES ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE NATURE, VALUE, AND/OR ANY OTHER ASPECT OR CHARACTERISTICS OF THE PROPERTY. NO STATEMENT ANYWHERE, WHETHER EXPRESS OR IMPLIED, INCLUDING VERBAL STATEMENTS MADE BY AUCTIONEER, WILL BE DEEMED A WARRANTY OR REPRESENTATION BY AUCTIONEER OR SELLER. EACH BIDDER ACKNOWLEDGES AND AGREES THAT SUCH BIDDER CANNOT RELY, AND HAS NOT RELIED, ON ANY REPRESENTATION, WARRANTY, OR GUARANTY MADE BY AUCTIONEER, SELLER, OR ANYONE ACTING AS AGENT OF THE SELLER, ORALLY OR IN WRITING, ABOUT THE PROPERTY. BY BIDDING, EACH BIDDER ACKNOWLEDGES AND AGREES THAT SUCH BIDDER HAS HAD A FULL AND FAIR OPPORTUNITY TO INSPECT THE PROPERTY, AND IS RELYING SOLELY ON, OR HAS WAIVED, SUCH BIDDER’S INSPECTION AND INVESTIGATION (i) IN DETERMINING WHETHER TO BID, (ii) IN DETERMINING THE AMOUNT OF A BID, AND (iii) IN BIDDING.
30. Breaks and Recesses. Auctioneer may take breaks or recesses during the bidding on the Property, and such breaks or recesses will not terminate the bidding unless expressly stated. Auctioneer may suspend bidding on the Property without declaring a No Sale of the Property. A No Sale of the Property will only occur if Auctioneer declares a No Sale in those terms, or if the Auction concludes in its entirety without a Winning Bid or a High Bid Subject to Confirmation. If announced by Auctioneer, the Auction may continue for a stated period of time, during which period Auctioneer may receive bids in person, telephonically, electronically, online, or by other means.
31. Broker Participation. No broker participation.
32. Recording Fees. Buyer will pay the fees for recording the deed for the Property.
33. Settlement Fees and Expenses. Seller will pay 50% of settlement/closing costs and title insurance. Buyer will pay all additional fees and expenses, including, without being limited to, lender title insurance (if required) or other additional expenses.
34. Zoning; Land Use. NEITHER AUCTIONEER NOR SELLER MAKES ANY REPRESENTATIONS OR WARRANTIES AS TO THE ZONING OF THE PROPERTY OR ANY OTHER LAND USE RESTRICTIONS AFFECTING THE PROPERTY. IT IS THE RESPONSIBILITY OF EACH BIDDER TO MAKE SUCH INQUIRIES AND INVESTIGATIONS AS MAY BE NECESSARY TO CONFIRM THE APPLICABLE ZONING AND LAND USE RESTRICTIONS AFFECTING THE PROPERTY. THE PURCHASE OF THE PROPERTY WILL NOT BE CONTINGENT IN ANY WAY ON ZONING OR LAND USE RESTRICTIONS, OR ON WHETHER A BIDDER OR BUYER MAY PUT THE PROPERTY TO ANY DESIRED USE. EACH BIDDER ACKNOWLEDGES AND AGREES THAT SUCH BIDDER IS NOT RELYING ON ANY REPRESENTATIONS BY SELLER OR AUCTIONEER CONCERNING ZONING OR OTHER LAND USE RESTRICTIONS AFFECTING THE PROPERTY.
35. Risk of Loss. The risk of loss or damage to the Property is assumed by the Seller until Settlement, except for in the event of loss or damage to the Property exceeding ten percent (10%) of the Purchase Price, then Seller may elect to either repair the damages, provide credit at Settlement, or terminate the Purchase and Sale Agreement.
36. Time is Of the Essence. Time is of the Essence with respect to the purchase and sale of the Property.
37. Conduct of the Auction. Auctioneer will regulate all matters relating to the conduct of the Auction and Auctioneer’s decisions will be final and binding. Auctioneer will have control over bidding (including setting and modifying bid increments), and Auctioneer will resolve any and all disputes. Auctioneer may, in Auctioneer’s sole and absolute discretion, reopen the bidding (but will not be required to) if there is a bidding dispute of discrepancy, or is a bid that was tendered prior to the Fall of the Hammer has not been registered, or has otherwise gone unnoticed. Any contract formed with the Fall of the Hammer will be subject to the conditions set forth in this Section. If bidding is reopened pursuant to this Section, the bid recognized by Auctioneer prior to the reopening of the bidding will be held, and may not be retracted, and, if no further bids are received, such bid will be the Winning Bid.
38. Limitations on Buyer’s Remedies; Bidders/Buyers Not Entitled to Incidental or Consequential Damages. To the extent that any Bidder or Buyer may be entitled to damages or remedies, the sole and exclusive remedy available to Bidders and Buyers is a return of the Purchase Price actually paid. Under no circumstances will Auctioneer or the Seller be liable for incidental or consequential damages, including, without being limited to lost profits or reduced productivity.
39. Indemnification. Each Bidder agrees to indemnify and hold Auctioneer and Seller harmless from any current or future claim regarding the Auction or the Property, including, without being limited to, fitness, use, damage, safety, or injuries to persons or property.
40. Waiver. Certain provisions of these Bidder Terms and Conditions are for the exclusive benefit of Auctioneer and/or Seller(s). Such provisions, including, without being limited to, Bidder registration and qualification requirements, deposit and payment terms (including the method, form, and timing of payment), removal and delivery terms, and Property inspection terms), do not create, and will not be deemed to create, any benefits or rights in favor of any other persons, including competing Bidders, and may not be enforced by any other persons. Either globally or on a case by case basis Auctioneer and/or Seller may (but will not be required to) waive any provisions of these Bidder Terms and Conditions that are intended for the benefit of Auctioneer and/or Seller.
41. Governing Law; Jurisdiction; Venue; Waiver of Jury Trial. These Bidder Terms and Conditions will be governed by and construed in accordance with the laws of the State of Colorado, including its statutes of limitations, but without regard to its rules governing conflict of laws. All claims, disputes, and other matters between the parties will be brought in the state or federal courts sitting in and for the Kit Carson County, Colorado, which courts will have exclusive jurisdiction, and will be the exclusive venue, for any and all such claims, disputes, and other matters. By submitting a Bidder Registration and accepting a Bidder Number each Registered Bidder irrevocably and unconditionally (i) agrees that any claim, suit or cause of action relating to these Bidder Terms and Conditions, or the transactions contemplated hereby, will be brought in the state or federal courts sitting in and for the Kit Carson County, Colorado; (ii) consents to the jurisdiction of such courts for any such claim, suit or cause of action; (iii) waives any objection that such party may have to the laying of venue of any such claim, suit or cause of action in such courts; and (iv) waives any objection to the bringing of such claim, suit or cause of action in such courts on the grounds of forum non conveniens. Each Bidder, Buyer, and other Participant waives the right to a jury trial.
42. Attorneys’ Fees. If any Participant breaches such Participant’s obligations under these Bidder Terms and Conditions, Auctioneer and/or Seller will be entitled to recover all costs and expenses, including attorneys’ fees incurred in enforcing their respective rights hereunder.
43. Buyer’s Premium. No buyer’s premium.