HomeMy WebLinkAboutJPX SOLUTIONS - CONTRACT - RFP - 7584 REAL ESTATE BUYERS AGENTEXCLUSIVE RIGHT-TO-BUY CONTRACT (BUYER AGENCY)
The City of Fort Collins, Colorado, a municipal corporation ("City") appoints JPx Solutions, LLC,
a Colorado limited liability company ("Broker") as the City's exclusive agent for the purpose of
representing the City to acquire interests in real property for the City's Poudre River Downtown
Project (the "Project") under the terms specified herein. This contract shall be effective on the
date signed by the City.
1. Scope of Services. The City is seeking to acquire one or more properties appropriate for
the Project ("Property" or "Properties"). To assist the City in achieving this goal, Broker
shall perform the tasks identified as being Broker's responsibility in the Scope of Services
attached hereto as Exhibit "A" and incorporated herein by reference. The City shall be
responsible for the tasks identified in Exhibit A as the City's responsibility.
2. Effect of Exclusive Buyer Agency Contract. Broker is the limited agent of the City and will
represent only the City in transactions involving Properties for the Program. Any
compensation to Broker which is conditioned upon the acquisition by the City of interests
in real property will be earned by Broker whenever such interests are acquired by the City
directly or indirectly, without any discount or allowance for any efforts made by the City or
any other person in connection with the acquisition of such interests by the City except as
described in ?(c) below. The City shall hire no other Brokers to acquire Property for the
Program during the period of this contract. However, the City reserves the right to allow
City staff to seek out and negotiate for Properties for the Program in addition to those
Properties identified by Broker as part of Broker's work hereunder. The City reserves the
right not to purchase any Properties presented by Broker.
3. Purchase. "Purchase of the Property" or "Purchase" means the voluntary acquisition of
any interest in the Property.
4. Property. The Property or Properties to be acquired shall meet the criteria listed on Exhibit
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"B" attached hereto and incorporated herein by this reference.
5. Duration of Agency. Broker's authority as the City's exclusive agent shall begin March 3,
2014 and shall continue until February 28, 2016 with the option at the City's sole discretion
for up to two (2) additional one (1) year extensions.
6. Broker's Services.
a) Broker will exercise reasonable skill and care for the City, and make reasonable efforts
to acquire properties identified by the City for the Project from willing sellers. The
Broker will negotiate the terms of the sale and if necessary find and evaluate potential
replacement properties (of similar zoning/use, i.e. residential , commercial or light
industrial), for City review.
b) Broker will promote the interests of the City with the utmost good faith, loyalty, and
fidelity, including but not limited to:
1) seeking a price and terms which are acceptable to the City,
2) procuring acceptance of any offer to purchase property and assisting in the
completion of the transaction;
3) presenting all offers to and from the City in a timely manner, regardless of
whether the City is already a party to a contract to purchase Property;
4) disclosing to the City adverse material facts actually known to Broker, counseling
the City as to any material benefits or risks of the transaction which are actually
known to Broker,
5) advising the City to obtain expert advice as to material matters about which
Broker knows but the specifics of which are beyond the expertise of Broker, and
6) accounting in a timely manner for all money and property received.
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c) Broker shall not disclose to the seller or any other third party, without the informed
consent of the City:
1) that the City is willing to pay more than the purchase price for Property;
2) what the City's motivating factor(s) are;
3) that the City will agree to financing terms other than those offered;
4) any material information about the City unless disclosure is required by law or
failure to disclose such information would constitute fraud or dishonest dealing;
5) any facts or suspicions regarding circumstances which would psychologically
impact or stigmatize Property; and
6) any City confidential or privileged information.
d) Broker shall disclose to any prospective seller all adverse material facts actually known
by Broker, including but not limited to adverse material facts concerning the City's
financial ability to perform the terms of the transaction.
7. Compensation to Broker.
a) In consideration of the services to be performed by Broker, the City shall pay Broker a
fee equal to a percentage of the purchase price of a Property and/or a Replacement
Property. This fee is conditioned upon the City's Purchase of the Property or the
acquisition by the City of a property not in compliance with the requirements specified
in Section 4 but acquired by the City through Broker's work under this contract. This
fee is payable upon closing of the transaction(s) , subject to the provisions of Section 9.
b) The fee shall apply to Property contracted for during the original term of this contract or
any extension(s) and shall also apply to Property contracted for within sixty (60) days
after this contract expires or is terminated (Holdover Period) if the Property was shown
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or specifically presented in writing to the City by Broker during the original term or any
extension(s) of the term of this contract; provided, however; that the City shall owe no
commission to Broker under this subsection if a commission is earned by another
licensed real estate broker acting pursuant to an exclusive right-to-buy contract or an
exclusive agency Listing contract entered into during the Holdover Period.
c) The percentage fee paid shall be as follows:
1) When the Broker completes all negotiations with a seller and the property can be
brought under contract by Broker using the City's standard form purchase and
sale agreement with no material changes or additional contingencies, Broker's
fee will be 5%. For clarification, the following activities will not be considered
material changes except in the event the cumulative effort required by City staff
to review and incorporate such change or changes exceeds one (1) hour total
staff time; a) filling in blanks, b) crossing out or omitting agreed upon section of
the contract, c) minor changes in wording or, d) the insertion of straightforward
and common practice real estate contract terms that are acceptable to the City.
2) When the Broker negotiates with a seller and brings the terms of a transaction to
the City but City staff must complete the document preparation and review
because the property cannot be brought under contract without material
changes to the City's standard form purchase and sale agreement, additional
agreements such as easements or a lease back to seller, action by the City
Council, replacement property, additional contingencies or other similar issues,
Brokers fee will be 4%. For clarification, a material change to the City's purchase
and sale agreement shall be defined as a change or changes to the terms which
require City staff to expend more than one (1) hour in total to review, assess,
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comment on, edit, take to the City Council, and/or take other action to complete
such change or changes.
d) Whether the City shall purchase a Property and whether the City will complete the
document preparation to bring a Property under contract or shall instruct Broker to do
so is in the City's sole discretion.
e) Buyer is obligated to pay Brokers fee. However, Broker is authorized and instructed to
request payment of Broker's fee by listing broker or by seller from the transaction.
8. Forms of Agreement. Any agreements, contracts or other legal documents used in
acquiring property for the City under this contract must be in a form acceptable to and
approved by the City. The City's standard agreement for purchase and sale of real
property is attached hereto as Exhibit "C".
9. Failure to Close. If a seller defaults under the terms of an agreement for purchase and
sale of Property, or if the City terminates an agreement for purchase and sale for cause,
Broker shall not be entitled to a fee. If the City defaults under the terms of an agreement
for purchase and sale of Property, Broker's fee will be due and payable immediately.
Broker shall not be obligated to advance funds for the City.
10. Disclosure of Broker's Role. At the earliest reasonable opportunity, Broker shall inform any
prospective sellers or their brokers with whom Broker negotiates pursuant to this contract
that Broker is acting on behalf of the City.
11 . Disclosure of City's Identity. Broker does have the City's permission to disclose the City's
identity to third parties without prior written consent of the City.
12. Assignment by Citv. No assignment of the City's rights or obligations under this contract
and no assignment of rights or obligations in property obtained for the City under this
contract shall operate to defeat any of Broker's rights.
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13. Nondiscrimination. The parties agree not to discriminate unlawfully against any
prospective seller because of the race, creed, color, sex, marital status, national origin,
familial status, physical or mental handicap, religion or ancestry of such person.
14. Alternative Dispute Resolution: Mediation. If a dispute arises relating to this contract and is
not resolved, the parties shall first proceed in good faith to submit the matter to mediation.
The parties will jointly appoint an acceptable mediator and will share equally in the cost of
such mediation. In the event the entire dispute is not resolved within thirty (30) calendar
days from the date written notice requesting mediation is sent by one party to the other,
the mediation, unless otherwise agreed, shall terminate. This section shall not alter any
date in this contract, unless otherwise agreed.
15. Attorney Fees. In case of arbitration or litigation arising out of this contract, the parties
agree that the non-prevailing party shall be responsible for the prevailing party's
reasonable costs and legal fees, including attorney fees.
16. Early Termination by City/Notice. Notwithstanding the time periods contained herein, the
City may terminate this Agreement at any time without cause by providing written notice of
termination to the Broker. Such notice shall be delivered at least fifteen (15) days prior to
the termination date contained in said notice unless otherwise agreed in writing by the
parties. All notices provided under this Agreement shall be effective when mailed, postage
prepaid and sent to the following addresses:
Professional City Coov To:
JPx Solutions City of Fort Collins City of Fort Collins
Attn: Troy Peterson Attn: Tawnya Ernst Attn: Purchasing Dept.
226 Remington Street, Unit #3 PO Box 580 PO Box 580
Fort Collins, CO 80524 Fort Collins, CO 80522 Fort Collins, CO 80522
17. Prohibition on Employing Illegal Aliens. In compliance with C.R.S. § 8-17.5-101 , Broker
represents and agrees that:
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(a) As of the date of this contract, Broker does not knowingly employ or contract with an
illegal alien who will perform work under this contract; and Broker will participate in the
electronic employment verification program created in Public Law 104-208, as
amended, and expanded in Public Law 108-156, as amended, and jointly administered
by the United States Department of Homeland Security and the Social Security
Administration, or its successor program (the "E-verify Program") in order to confirm
the employment eligibility of all employees who are newly hired for employment to
perform work under this contract.
(b) Broker shall not knowingly employ or contract with an illegal alien to perform work
under this contract or enter into a contract with a subcontractor that fails to certify to
Broker that the subcontractor shall not knowingly employ or contract with an illegal
alien to perform work under this contract.
(c) Broker has confirmed the employment eligibility of all employees who are newly hired
for employment to perform work under this contract through either the E-verify
Program or the employment verification program established by the State of Colorado,
pursuant to Section 8-17.5-102(5)(c), C.R.S. (the "Department Program").
(d) Broker is prohibited from using the E-verify Program or the Department Program
procedures to undertake pre-employment screening of job applicants while this
contract is being performed.
(e) If Broker obtains actual knowledge that a subcontractor performing work under this
contract knowingly employs or contracts with an illegal alien, Broker shall:
(i) Notify such subcontractor and the City within three days that Broker has actual
knowledge that the subcontractor is employing or contracting with an illegal alien;
and
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(ii) Terminate the subcontract with the subcontractor if within three days of receiving
the notice required pursuant to this section the subcontractor does not cease
employing or contracting with the illegal alien; except that Broker shall not
terminate the contract with the subcontractor if during such three days the
subcontractor provides information to establish that the subcontractor has not
knowingly employed or contracted with an illegal alien.
(f) Broker shall comply with any reasonable request by the Colorado Department of Labor
and Employment (the "Department") made in the course of an investigation that the
Department undertakes or is undertaking pursuant to the authority established in
Subsection 8-17.5-102 (5), C.R.S.
(g) If Broker violates any provision of this contract pertaining to the duties imposed by
Subsection 8-17.5-102, C.R.S. the City may terminate this contract. If this contract is
so terminated, Broker shall be liable for actual and consequential damages to the City
arising out of contractor's violation of Subsection 8-17.5-102, C.R.S.
(h) The City will notify the Office of the Secretary of State if Broker violates this provision of
this contract and the City terminates the contract for such breach.
18. Modification of this Contract. No subsequent modification of any of the terms of this
contract shall be valid, binding on the parties, or enforceable unless in writing and signed
by the parties.
19. Entire Agreement. This contract including Exhibits A, B, C and D constitutes the entire
agreement between the parties and any prior agreements, whether oral or written , have
been merged and integrated into this contract.
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ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
ST A TE OF COLORADO )
) SS.
COUNTY OF LARIMER )
CITY OF FORT COLLINS, COLORADO
a municipal corporation
By: ___________ _
Gerry Paul
Director of Purchasing and Risk Management
Date: ___________ _
JPX SOLUTIONS, LLC
a Colorado limited liability company
By Z::7 ~ -
.,--~t:> '{ f ~=(~ (Z. ~ e> t-4
PRINT NAME
Member/Manager
Date: __ ?_/i_t :__r ,_/_ t_4-___ _
cknowle ~ec;! pefore me this l ':2-- day of v'\l'a..A._~ , 2014, by
~......__.-..-a---~---'~=---Vl.---=. -__ as (\'\?LM,.a ZSh for JPx Solutions, LLC.
Witness my hand and official !?eal.
My Commission Expires: l l- 1 { . It
OONNAMANCI
NOTARY PUBLIC
STATE OF COLORADO
TIIYIDM~ MY COMMISSION NOTARY 10 EXPIRES 19894016570 11/1712017
Notary
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3/17/2014
EXHIBIT A
SCOPE OF WORK
The Broker shall be responsible for assisting the City in placing under contract to purchase
appropriate properties ("Property" or "Properties") for the City's Poudre River Downtown Project
("Project"). The City's goal is to have such Properties under contract within 365 days of the
execution of this contract.
A The steps to be completed, the party responsible for each step, and the required time
frame, if any, for completion of each step, are as follows:
1) Broker shall determine whether the owners of the Properties are willing to sell and if
so under what parameters, i.e. standard sale or via a land exchange.
2) If the landowner desires to exchange their property for a comparable replacement
property ("Replacement Property"), Broker shall research and identify properties of
like zoning and use for the exchange.
3) Broker shall present to the City for review all information Broker has obtained about
the Properties and Replacement Properties. Broker shall discuss any replacement
property with the City and receive the City's approval prior to presenting it to the
owners as a property for exchange.
4) Within five business days of the Broker's presentation, the City shall decide whether
to proceed to acquire any of the Properties and/or Replacement Properties
presented by Broker, and notify Broker of its decision.
B. Should the City decide to proceed towards acquisition of one or more Properties, the
Broker shall begin negotiations with the seller(s) on terms and conditions of a purchase,
working from the City's standard form Purchase and Sale Agreement (attached to this
contract as Exhibit C).
C. If the City wants an appraisal , survey, environmental review, title commitment, or other due
diligence on a Property or Replacement Property, the City shall order and pay for such
services, and shall share the results of such services with Broker.
D. Broker shall keep the City advised of the status of negotiations. Once Broker has
negotiated what Broker believes to be the best possible terms and conditions for purchase
of a Property or Replacement Property by the City, Broker shall present the proposed
transaction to the City.
E. The City shall review the proposed terms and conditions and shall decide whether it is in
the best interests of the City to enter into the proposed transaction. The City shall notify
Broker of its decision within five business days of Broker's presentation of the proposed
transaction.
F. Should the City decide to proceed with the proposed transaction, the City shall either:
1) Direct Broker to conclude negotiations and complete the necessary paperwork to
bring the Property under contract: or ,
2) Complete the negotiations and document preparation itself and bring the property
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under contract.
Option 1 is the City's preferred approach in order to save staff time, however, it shall only
be appropriate if the proposed transaction is straightforward and will not involve material
changes to the City's standard Purchase and Sale Agreement. Should the proposed
transaction involve additional contingencies, material changes to the City's standard
Purchase and Sale Agreement, leases or easements back to the seller, City Council action
or other similar issues, the City may choose option 2 as members City staff are in the best
position to process those issues on the City's behalf, including drafting of documents,
requesting action by City Council, and legal review.
G. After a Property is under contract, the City shall update and review the title commitment
and order any necessary environmental assessments or other assessments prior to
closing .
H. The Broker shall assist the City in resolving any issues that arise prior to closing.
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1 . 622 N College
2. 101 E Vine Drive
3. 103 E Vine Drive
4. 105 E Vine Drive
5. 203 E Vine Drive
6. 207 E Vine Drive
7. 209 E Vine Drive
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EXHIBIT B
PROPERTIES
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EXHIBIT C
AGREEMENT OF PURCHASE AND SALE OF REAL PROPERTY
[City Purchase of _______________]
THIS AGREEMENT is made and entered into this [_____] day of [______], 200[_] (the
“Effective Date”), by and between [__________________] (“Seller”), and THE CITY OF
FORT COLLINS, COLORADO, a municipal corporation, (“Purchaser”).
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Seller and Purchaser agree to be legally bound whereby Seller agrees to
convey to Purchaser, and Purchaser agrees to acquire from Seller, the Property as defined
below on the terms and conditions set forth in this Agreement.
1. Description of Property. The real property which is the subject matter of this
Agreement is that certain parcel of real property located in Larimer County, Colorado, which is
legally described on Exhibit A, consisting of [____] pages, attached hereto and incorporated
herein by reference (the “Property”). The Property includes all improvements located thereon
and all of Seller’s rights, title and interest in and to all appurtenances thereto, including but not
limited to the following:
A. Appurtenances Generally. The Property shall include any fences,
buildings, landscaping, and other improvements now located thereon,
including all fixtures of a permanent nature. In addition, the Property shall
include all of the Seller’s right, title and interest in and to easements,
rights-of-way, future interests and rights to the same belonging and
inuring to the benefit of the Property, and in and to all strips and gores of
land lying between the Property and adjoining property or streets, roads
or highways, open or proposed.
B. Water Rights. All water, water rights, corporate stock relating to the use
of water, springs, spring rights, wells, well rights, ditches, ditch rights,
reservoir rights, tributary, non-tributary, and not non-tributary water,
appurtenant to, customarily used with or upon, or relating to the use of
water on the Property, and any other water or water rights, located on or
appurtenant to the Property, whether or not the same have been
adjudicated[*OPTIONAL: , excluding the following specified water rights,
to be reserved to Seller and Seller’s successors and assigns: ________].
[*ALSO OPTIONAL: The water rights to be conveyed hereunder include,
but are not limited to, those water rights listed in Exhibit B, attached
hereto and incorporated herein by this reference (the “Water Interests”).]
C. Taps. All water taps, gas taps, and sewer taps belonging or in any way
appertaining to the Property.
D. Mineral Rights. Any and all interests in all minerals, ores, and metals of
any kind and character, and all coal, asphaltum, oil, gas, or other like
substances including sand and gravel, and all geothermal resources in,
on, or under the Property and all other mineral rights as are owned by
Seller at the time of this Agreement. [*OPTIONAL: All mineral leases, to
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the extent they burden the Property or mineral rights appurtenant to the
Property, must be assigned at closing.*]
2. Method of Conveyance. Seller will convey the Property to Purchaser at the time
of closing by general [*OPTION: special*] warranty deed in the form attached as Exhibit
B[*OPTION: this is C if there is a water rights exhibit*]. The personal property portion of the
Property, if any, shall be transferred to Purchaser by Seller at the time of closing by bill of sale
or other appropriate transfer document, free and clear of all liens and encumbrances.
[*OPTION: Seller shall assign to Purchaser at closing the Water Interests, including but not
limited to any irrigation company shares, using the transfer or assignment documents required
or provided by the mutual irrigation company or other appropriate entity, or using such other
documents of assignment as are reasonably acceptable to Purchaser. All assessments and
other amounts currently due in connection with any such shares or rights shall be paid in full by
Seller prior to such transfer, along with all costs of such transfer or assignment.*]
3. Purchase Price. The total purchase price of the Property will be ___________
Dollars ($_________) [plus the additional consideration described below (add as C. below, if
applicable)], and will be payable by Purchaser to Seller as follows:
[*CHOOSE one pair of A. and B. below and delete the other*]
*******************************
A. No earnest money deposit is required in connection with this transaction,
the mutuality of the promises of the parties hereto being deemed
adequate consideration.
B. The entire amount of the purchase price, in the amount of [__ spell out in
words (and then number in parentheses)], subject to closing costs and
customary prorations, will be payable by Purchaser to Seller in
immediately available funds at the time of closing, as hereinafter set forth.
****************************
A. The sum of [__ spell out in words (and then number in parentheses)] ,
representing an earnest money deposit, will be paid by Purchaser upon
the Effective Date by check or immediately available funds to the Title
Company as part payment to Seller.
B. The balance of the purchase price in the amount of [__ spell out in words
(and then number in parentheses)] subject to closing costs and
customary prorations is payable by Purchaser in immediately available
funds to the Title Company at the time of closing.
**********************************
[C. *OPTIONAL – use with lease back to Seller: As part of Purchaser’s
consideration to Seller hereunder, Purchaser has agreed to lease to
Seller [the Property OR a portion of the Property], as described in and
using that form of Lease Agreement attached hereto as Exhibit C and
incorporated herein by this reference (the “Lease Agreement”)[, subject to
the Contingency set forth in paragraph [*fill in correct number for
contingency paragraph*]. [Provided that said Contingency has been met,]
Purchaser and Seller will execute the Lease Agreement at closing. *]
4. Title Insurance/Evidence of Title.
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A. Within [___] calendar days following the Effective Date, Seller will provide
to Purchaser [(*OR*) Purchaser has already obtained] a Title Insurance
Commitment, together with copies of all documents of record related to
exceptions identified in the Title Commitment (together referred to as the
“Title Commitment”) from [_________] (“Title Company”). The Title
Commitment must show title to the Property in Seller, subject only to
those exceptions shown on Schedule B-2 to the Title Commitment that
are acceptable to Purchaser. Seller [Purchaser] is responsible for the
cost of the Title Commitment and Title Insurance.
B. If the Title Commitment discloses title defects unsatisfactory to Purchaser
and subject to which Purchaser need not take title, Purchaser may give
Seller written notice of such defects by the date ten (10) calendar days
after the Effective Date or the date ten (10) calendar days after
Purchaser’s receipt of the Title Commitment, whichever is later, and no
later than ten (10) calendar days after notice of any title change. Seller
must attempt in good faith to cure such defects prior to the date of
closing, at its expense, without in any other manner affecting the terms of
this Agreement.
C. If any instrument or deposit is necessary in order to correct a defect in or
objection to title, the following apply:
(1) Any instrument will be in a form and contain terms and conditions
Title Company may reasonably require so as to be sufficiently
satisfied and omit such defects or objection.
(2) Any deposit will be made with Title Company.
(3) Seller agrees to execute, acknowledge and deliver any required
instrument and to make any required deposit.
D. If Title Company refuses to omit any title defect or objection prior to
closing, then Purchaser, at its election, has the right to:
(1) accept such title as Seller is able to convey, without any reduction
of the purchase price; or
(2) rescind this Agreement and, upon such rescission pursuant to this
paragraph, Purchaser will be entitled to the return of the amount of
money theretofore paid to Seller or its agent. Upon such
payment, this Agreement will be null and void and of no further
effect, and all parties to this Agreement will be released from all
obligations hereunder.
E. If Seller is unable to convey title as provided in this paragraph 4 to
Purchaser due to an act or omission of Seller, Seller is in default and
continues to be liable under this Agreement.
F. Notwithstanding the foregoing,
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(1) any title condition consisting of monetary liens, deeds of trust or
other financial encumbrances against the Property must be
removed by Seller at or prior to closing, and Seller’s failure to
cause the removal of the same will constitute a default by Seller
under this Agreement; and
(2) in the event Seller fails to cause the removal of a financial
encumbrance against the Property prior to closing, Purchaser has
the right to pay amounts required to do so at closing, and to
receive a credit for such payment against the Purchase Price.
[*Subparagraph G optional. Use if specific water rights conveyed.*]
G. Within [___] calendar days following the Effective Date, Seller will also
provide to Purchaser a correct copy of each decree, permit, stock
certificate or other documentation of the Water Interests (the “Water
Documents”). If the Water Documents disclose defects in or do not
evidence Seller’s right, title and interest in the Water Interests to
Purchaser’s satisfaction, Purchaser may give Seller written notice of such
defects by the date ten (10) calendar days after the Effective Date or the
date ten (10) calendar days after Purchaser’s receipt of the Water
Documents, whichever is later. Seller must attempt in good faith to cure
such defects prior to the date of closing, at its expense, without in any
other manner affecting the terms of this Agreement. If Seller is unable to
cure such defects, and such defects are due to an act or omission of
Seller, Seller is in default, and continues to be liable under this
Agreement. If such defects are not due to an act or omission of Seller,
then Purchaser, at its election, has the right to:
(1) accept such right, title and interest in the Water Interests as Seller
is able to convey, without any reduction of the purchase price; or
(2) rescind this Agreement and, upon such rescission pursuant to this
paragraph, Purchaser will be entitled to the return of the amount of
money theretofore paid to Seller or its agent. Upon such
payment, this Agreement will be null and void and of no further
effect, and all parties to this Agreement will be released from all
obligations hereunder.
********[FOR PARAGRAPH 5, SELECT ONE 5. FROM BELOW]*******
5. Survey/Legal Description.
A. Within thirty (30) [(*OR* ______ (__) ] calendar days after the Effective
Date, [Seller or Purchaser], at its own expense, will provide to the other
party an updated, signed, and sealed ALTA/ACSM boundary survey
(“Survey”). [*OR* [Seller or Purchaser] will provide to the other party an
updated, signed, and sealed ALTA/ACSM boundary survey (“Survey”).
Purchaser and Seller shall share equally the cost of the Survey, with
Seller’s 50% share of said cost due at closing, payable by a credit to
Purchaser and debit from Seller’s proceeds from the sale.*]The Survey
must include staked property corners and a plat describing courses and
distances between the corners, and total acreage of the Property.
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B. If Purchaser is not satisfied with the matters disclosed by the Survey,
Purchaser may give written notice of the specific survey-related defects to
Seller within fourteen (14) calendar days following the date of receipt of
the Survey. Seller may, by written notice within fourteen (14) calendar
days of receipt of the defect notice, elect to cure the survey defects or not
to cure them.
C. Unless Seller elects to cure the survey defects, Purchaser may, by written
notice at or before the closing:
(1) expressly waive the survey defects and proceed to closing;
(2) terminate this Agreement; or
(3) in its sole discretion, elect to cure the survey defects and apply a
portion of the Purchase Price as is necessary to cause the
removal of the survey defects, and the proceeds from this
transaction to be otherwise distributed to Seller upon closing is
reduced by that applied amount.
D. If Seller elects to cure the survey defects, Seller may postpone the
closing for a reasonable period of time not to exceed sixty (60) calendar
days. Seller shall promptly provide written notice to Purchaser of any
such required postponement of closing at the time of Seller’s election to
cure pursuant to paragraph 5.B. If, after making that election, the Seller
is unable to cure within the time allowed, Purchaser will be entitled to
proceed in accordance with the options stated in subparagraphs C(1)
through C(3) above.
E. Seller and Purchaser agree to update the legal description of the Property
or any portion thereof to be conveyed hereunder as required to correct
errors in the legal description identified by the Survey.
[*OR: Alternative 5.*] 5. Survey/Legal Description. The parties each acknowledge
that a legal description of the Property is attached to and incorporated by reference into this
Agreement, and each acknowledges having received a copy of any such description. The
parties agree that it is their intent that the referenced legal description describes the Property
except as otherwise expressly provided, and agree to work in good faith and cooperatively to
correct technical errors that any such legal description is determined to contain.
********************************
6. Special Taxing Districts. Special taxing districts may be subject to general
obligation indebtedness that is paid by revenues produced from annual tax levies on the taxable
property within such districts. Property owners in such districts may be placed at risk for
increased mill levies and excessive tax burdens to support the servicing of such debt where
circumstances arise resulting in the inability of such a district to discharge such indebtedness
without such an increase in mill levies. Purchaser should investigate the debt financing
requirements of the authorized general obligation indebtedness of such districts, existing mill
levies of such district servicing such indebtedness, and the potential for an increase in such mill
levies.
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7. Maintenance of the Property/Title. Seller must keep, or cause to be kept, the
Property in its condition as of the Effective Date until the closing of this transaction, subject to
normal wear-and-tear and seasonal changes, and agrees not to commit or permit waste
thereon. Seller must not cause or permit new liens, easements or other encumbrances on the
title to the Property, except as expressly agreed by Purchaser in writing.
8. Representations of Seller. Seller represents and warrants as of the Effective
Date and as of the closing, as follows:
A. There is no litigation proceeding, including but not limited to any eminent
domain proceeding, pending (or to Seller’s knowledge threatened)
against or relating to any part of the Property, nor does Seller know of or
have reasonable grounds to know of any basis for any such action
[*except for_____________*].
B. Seller has not received notice of, and to the best of Seller’s knowledge,
there are no violations of any laws, orders, regulations or requirements of
any governmental authority affecting the Property or any part thereof.
C. Seller has the unconditional right and power to execute and deliver this
Agreement and to consummate the transaction(s) contemplated by this
Agreement.
D. Seller has not received notice of default or breach by Seller of any of the
covenants, conditions, restrictions, rights-of-way or easements affecting
the Property or any portion thereof; no default or breach now exists or will
exist on the date of closing; and no event or condition has occurred and is
continuing that, with or without notice and/or the passage of time, will
constitute such a default or breach.
E. Seller represents that it has provided to Purchaser all environmental
reports and any other documentation in Seller’s possession related to the
Property.
9. Seller’s Environmental Representations. Seller represents and warrants as of
the Effective Date and as of the closing, that, to the best of Seller’s knowledge:
A. the Property has never been used as a landfill, waste dump or mine;
B. there has been no installation in, or production, release, disposal or
storage on the Property of any hazardous material, hazardous waste or
other toxic or regulated substances by Seller, Seller’s agents, employees,
or assigns, any tenant or previous owner or previous tenant;
C. there has not been any other activity that is known to or reasonably could
have resulted in an environmental condition requiring investigation or
remediation on the Property;
D. there is no anticipated, threatened or pending proceeding or inquiry by
any governmental authority or agency with respect thereto;
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E. no property in the vicinity of the Property has ever been used as a landfill
or waste dump;
F. there has been no installation in, or production, release, disposal or
storage in the vicinity of the Property of any hazardous material,
hazardous waste or other toxic or regulated substances by any owner,
tenant or previous owner or previous tenant or any other activity which
could have resulted in an environmental condition requiring investigation
or remediation on the Property; and
G. there is no anticipated, threatened, or pending proceeding or inquiry by
any governmental authority or agency with respect to property in the
vicinity of the Property that may relate to the condition of or need to take
investigative or remedial action on the Property.
10. Inspection. Purchaser or any designee of Purchaser has the right to make
inspections of the physical condition of the Property and the improvements located thereon at
Purchaser's expense. These inspections may include, but are not limited to, environmental
assessments and inspections regarding compliance with any building or fire code,
environmental protection, pollution or land use or zoning laws, rules or regulations, including,
but not limited to any laws relating to the disposal or existence of any hazardous substance or
other regulated substance in or on the Property. If Purchaser does not provide to Seller written
notice of any unsatisfactory condition, as determined at Purchaser's sole discretion, signed by
an authorized representative of Purchaser, on or before [________], 200[_], Purchaser waives
any objection to the physical condition of the Property and the improvements located thereon as
of that date. If Purchaser provides written notice of any unsatisfactory condition, signed by an
authorized representative of Purchaser, to Seller on or before [_____________], 200[_], and
Seller does not cure such conditions prior to closing, this Agreement may be terminated at the
option of Purchaser. Upon such termination, all payments and things of value received
hereunder by Seller must be returned to Purchaser. Purchaser is responsible and will pay for
any damage that occurs to the Property and the improvements located thereon as a result of
these inspections.
11. Closing. The parties agree to close this transaction on [________], 200[_], at
[(time) ] at [___________________], [_(city)_], Colorado, or at such other reasonable time, date
or location as the parties may mutually agree.
12. Possession. Seller will deliver possession of the Property to Purchaser at
closing[*, subject to the Lease Agreement by and between Purchaser as Lessor and Seller as
Lessee, as described in paragraph 3.C*].
13. Proration. Real property taxes and assessments and similar expenses, in
accordance with local practice, will be prorated as of the date of closing.
14. Remedies on Default. If any note or check received as earnest money
hereunder or any other payment due hereunder is not paid, honored or tendered when due, or if
any other obligation hereunder is not performed as herein provided, the remedies are:
A. If Purchaser is in default, then the earnest money deposit, if any, is
forfeited by Purchaser and may be retained by Seller, and both parties
will be released from all obligations under this Agreement. It is agreed
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that the earnest money deposit is liquidated damages and is Seller’s sole
and only remedy for Purchaser’s failure to perform the obligations of this
Agreement. Seller may recover direct damages as may be proper and
Seller expressly waives the remedies of specific performance and
additional damages.
B. If Seller is in default, Purchaser may elect to treat this Agreement as
terminated, in which case all payments and things of value received
hereunder will be returned to Purchaser, and Purchaser may recover
such damages as may be proper, or Purchaser may elect to treat this
Agreement as being in full force and effect, and Purchaser will have the
right to an action for specific performance or damages, or both.
15. Notices. Any notice or other communication given by either party to the other
relating to this Agreement must be hand delivered; sent by a commercial carrier; or sent by mail,
addressed to the party at its respective address as set forth below. The notice or other
communication will be effective on the date it is delivered or on the third business day after
being sent, whichever comes first.
If to Seller:
[___________]
___________
[_________], CO [zip]
With a copy to:
__________
_________
[__________], CO [zip]
If to Purchaser:
Real Estate Services Manager
City of Fort Collins
Mailing Address:
P.O. Box 580
Fort Collins, CO 80522-0580
Hand Delivery:
117 North Mason St.
Fort Collins, CO 80524
With a copy to:
City Attorney’s Office
City of Fort Collins
Mailing Address:
P.O. Box 580
Fort Collins, CO 80522-0580
Hand Delivery:
300 LaPorte Avenue
Fort Collins, CO 80521
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16. Assignment. This Agreement must not be assigned by either of the parties
hereto without the prior written consent of the other party[, except in accordance with paragraph
27 (*Use only if Para. 27 on 1031 exchange is retained*)].
17. Risk of Loss. Seller shall bear all risk of loss with respect to the Property up to
the date title is transferred in accordance with this Agreement. In the event of damage to any
portion of the Property by fire or other casualty prior to the closing which damage either affects
5% of the usable facilities on the Property or reduces the value of the Property by 5%, then this
Agreement may be terminated at the option of Purchaser. This option shall be exercised, if at
all, by Purchaser’s written notice thereof to Seller within thirty (30) calendar days after receipt of
written notice of such fire or other casualty. Upon the exercise of such option to terminate, this
Agreement shall become null and void, and neither party shall have any further liability or
obligations hereunder, except as otherwise provided in this Agreement. Closing may be
delayed for up to thirty (30) calendar days for Purchaser to decide whether to exercise this
option. If Purchaser does not elect to terminate, Seller shall assign and transfer to Purchaser at
the closing all of Seller’s right, title and interest in and to all insurance proceeds or other
compensation paid or payable to Seller on account of such fire or casualty together with the
amount of the deductible relating thereto.
18. Lead-Based Paint. Unless exempt, if the improvements, if any, on the Property
include one or more residential dwellings for which a building permit was issued prior to January
1, 1978, this Agreement shall be void unless a completed Lead-Based Paint Disclosure (Sales)
form is signed by Seller and the required real estate professionals, if any, which shall have
occured prior to the parties signing this Agreement. [*OR*: This paragraph intentionally omitted.]
19. Recommendation of Legal and Tax Counsel. By signing this document, Seller
acknowledges that Seller has been advised that this Agreement has important legal
consequences and has received the recommendation to consider the examination of title and
consultation with legal and tax or other counsel before signing this Agreement.
20. Entire Agreement, Modification. This Agreement constitutes the entire contract
between the parties relating to the conveyance of the Property, and any prior agreements
pertaining thereto, whether oral or written, have been merged and integrated into this
Agreement. No subsequent modification of any of the terms of this Agreement will be valid,
binding upon the parties, or enforceable unless made in writing and signed by the parties.
21. Headings. Paragraph headings are used for convenience of reference and in no
way define, limit or prescribe the scope or intent of any provision under this Agreement.
22. Construction. Words of the masculine gender include the feminine and neuter
gender and when the sentence so indicates, words of the neuter gender refer to any gender.
Words in the singular include the plural and vice versa. Definitions of defined terms are
intended to apply throughout this Agreement. This Agreement is to be construed according to
its fair meaning, and as if prepared by all parties, and is deemed to be and contain the entire
understanding and agreement between the parties.
23. Time is of the Essence. It is agreed that time is of the essence of this Agreement
and each and every provision.
24. Binding Effect / Joint and Several Liability. This Agreement is binding upon and
inures to the benefit of the parties their respective heirs, administrators, successors and
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assigns. If Seller consists of more than one individual or entity, each such individual or entity is
jointly and severally liable for any and all obligations of Seller hereunder.
25. Litigation Expenses. In the event any party defaults in any of its covenants or
obligations and a party not in default commences and prevails in any legal or equitable action
against the defaulting party, the defaulting party expressly agrees to pay all reasonable
expenses of the litigation, including a reasonable sum for attorneys' fees or similar costs of legal
representation.
26. Brokers. [*EITHER;Seller and Purchaser each represent and warrant to the
other that such party has not employed, retained or consulted any broker, agent or other real
estate professional with respect to the Property. OR:The Seller has retained a real estate
broker and shall be and hereby is solely responsible for paying any and all commission due as a
result of this sale transaction to said broker, [fill in name]. Purchaser hereby warrants that it has
neither employed nor retained or consulted any broker, agent, or other finder with respect to the
Property, nor is any such broker, agent, or other finder the procuring cause for Purchaser
entering into this Agreement.*] Seller and, to the extent permitted by law, Purchaser, each
indemnify and hold the other harmless from and against all claims, demands, causes of action,
debts, liabilities, judgments and damages, including, without limitation, any related litigation
expenses, that may be asserted or recovered against the other on account of any breach of this
representation and warranty.
27. 1031 Exchange. At the request of Seller, Purchaser agrees to make reasonable
efforts to cooperate with Seller in the achievement of a tax-deferred real estate exchange
pursuant to Section 1031 of the Internal Revenue Code and the Treasury Regulations
implementing that Section. In particular, Purchaser may be asked, and Purchaser hereby
agrees, to cooperate in and consent to the assignment of Seller’s rights in this Agreement for
the purpose of such an exchange. Purchaser shall not be required to incur any additional
liability or expense in connection with Seller’s tax-deferred exchange transaction. [*OR*: This
paragraph intentionally omitted.]
28. Authority. Each person executing this Agreement represents and warrants that
he or she is duly authorized to execute this Agreement in his or her individual or representative
capacity as indicated.
29. Counterpart and Facsimile Signatures. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement. Signatures may be delivered by facsimile copy.
Facsimile signatures are binding on the parties as if they were originals
30. Recording. Purchaser may record this Agreement in the real property records of
the Larimer County Clerk and Recorder.
31. Governing Law/Venue. The parties intend and agree that this Agreement is to be
construed and enforced according to the laws of Colorado, and that venue in any proceeding
related to the subject matter of this Agreement will be in Larimer County, Colorado.
[*OPTIONAL – do not use where no condemnation is appropriate*]:
32. Condemnation Rights. Seller expressly acknowledges that it is aware that under
Colorado law, Purchaser is empowered with the right of eminent domain and that, in the event
Purchaser fails to acquire the Property from Seller under this Agreement, Purchaser may have
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the authority to acquire the Property by exercising its power of eminent domain. Seller further
acknowledges that in the event Purchaser seeks to acquire the Property using its eminent
domain authority, Seller would have the right, absent this Agreement, to require Purchaser to
acquire the Property by complying with the laws of the State of Colorado regarding eminent
domain. In particular, Seller acknowledges that Seller would have the right to receive from
Purchaser a Notice of Intent pursuant to Section 38-1-121, C.R.S., advising Seller of
Purchaser’s intent to acquire the Property by an eminent domain action and of Seller’s right to
obtain an appraisal of the Property, the reasonable costs of which Purchaser must pay, if the
Property has an estimated value of Five Thousand Dollars ($5,000.00) or more. Seller
understands and agrees that by entering into this Agreement, Seller waives these rights.
[*OPTIONAL – use as appropriate where City will sign first*]:
3[X]. Notice of Acceptance. After the Purchaser has signed this Agreement, below, the
Agreement shall expire unless properly signed by Seller and provided to the Purchaser on or
before [DATE].
[*OPTIONAL – where agreement is contingent upon lease back to Seller:*]
******************************
OPTION A (lease 2 yrs or under): 3[X] Contingency. This Agreement is hereby made
expressly contingent upon the City Council of the City of Fort Collins (herein after "the Council")
approving the Lease Agreement in substantially the same form as that attached hereto as
Exhibit [X] by its adoption of a related Resolution, in its discretion, on or before [fill in date]. If
Council does not pass such Resolution on or before [same date] then this Agreement shall be
automatically terminated and all parties shall be released from all obligations hereunder and any
monies theretofore paid to Seller by Purchaser shall be refunded in full to Purchaser.
OPTION B: (longer than 2 years): 3[X]. Contingency. This Agreement is hereby made
expressly contingent upon the City Council of the City of Fort Collins (herein after "the Council")
approving the Lease Agreement in substantially the same form as that attached hereto as
Exhibit [X] by its final adoption of a related ordinance, in its discretion, on or before [fill in date].
If Council does not pass such an ordinance on second reading on or before [same date] then
this Agreement shall be automatically terminated and all parties shall be released from all
obligations hereunder and any monies theretofore paid to Seller by Purchaser shall be refunded
in full to Purchaser. If, however, Council does pass such an ordinance on or before [same
date], but within ten (10) days of the passage of the ordinance a notice of protest against the
ordinance has been filed with the City Clerk of the City of Fort Collins Pursuant to Section 2(b)
of Article X of the Charter of the City of Fort Collins, then this Agreement shall remain in full
force and effect until either the Council repeals the ordinance or the electors vote to repeal the
ordinance in accordance with Section 2(c) of Article X of the Charter of the City of Fort Collins.
In the event the ordinance is repealed by Council or by the electors, then this Agreement shall
be automatically terminated and all parties shall be released from all obligations hereunder and
any monies theretofore paid to Seller by Purchaser shall be refunded in full to Purchaser.
If the Council does not repeal the ordinance and if the electors approve the ordinance,
then the closing of this transaction shall be held in accordance with paragraph 11 herein, no
less than ten (10) days after the date of the electors' approval of the ordinance.
********************************
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date and year first above written.
SELLER:
________________________,
a ______________________
Date: By:
___________________
STATE OF COLORADO )
) ss
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this day of , ______, by
_______________________, [as _________________ for ____________________].
Witness my hand and official seal.
My Commission expires:
__________________
Notary Public
PURCHASER:
THE CITY OF FORT COLLINS, COLORADO
Date: By:
Darin A. Atteberry, City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
STATE OF COLORADO )
) ss
COUNTY OF LARIMER )
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The foregoing instrument was acknowledged before me this day of ________ ,
________, by Darin A. Atteberry as City Manager and ____________________as City Clerk of
the City of Fort Collins.
Witness my hand and official seal.
My Commission expires:
Notary Public
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EXHIBIT D
CONFIDENTIALITY
IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the "City") pursuant to
this Agreement (the "Agreement"), the Service Provider hereby acknowledges that it has been
informed that the City has established policies and procedures with regard to the handling of
confidential information and other sensitive materials.
In consideration of access to certain information, data and material (hereinafter individually and
collectively, regardless of nature, referred to as "information") that are the property of and/or
relate to the City or its employees, customers or suppliers, which access is related to the
performance of services that the Service Provider has agreed to perform, the Service Provider
hereby acknowledges and agrees as follows:
That information that has or will come into its possession or knowledge in connection with the
performance of services for the City may be confidential and/or proprietary. The Service
Provider agrees to treat as confidential (a) all information that is owned by the City, or that
relates to the business of the City, or that is used by the City in carrying on business, and (b) all
information that is proprietary to a third party (including but not limited to customers and
suppliers of the City). The Service Provider shall not disclose any such information to any
person not having a legitimate need-to-know for purposes authorized by the City. Further, the
Service Provider shall not use such information to obtain any economic or other benefit for itself,
or any third party, except as specifically authorized by the City.
The foregoing to the contrary notwithstanding, the Service Provider understands that it shall
have no obligation under this Agreement with respect to information and material that (a)
becomes generally known to the public by publication or some means other than a breach of
duty of this Agreement, or (b) is required by law, regulation or court order to be disclosed,
provided that the request for such disclosure is proper and the disclosure does not exceed that
which is required. In the event of any disclosure under (b) above, the Service Provider shall
furnish a copy of this Agreement to anyone to whom it is required to make such disclosure and
shall promptly advise the City in writing of each such disclosure.
In the event that the Service Provider ceases to perform services for the City, or the City so
requests for any reason, the Service Provider shall promptly return to the City any and all
information described hereinabove, including all copies, notes and/or summaries (handwritten or
mechanically produced) thereof, in its possession or control or as to which it otherwise has
access.
The Service Provider understands and agrees that the City's remedies at law for a breach of the
Service Provider's obligations under this Confidentiality Agreement may be inadequate and that
the City shall, in the event of any such breach, be entitled to seek equitable relief (including
without limitation preliminary and permanent injunctive relief and specific performance) in
addition to all other remedies provided hereunder or available at law.
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