Compensation charged by real estate brokers is not set by law. Such charges are
established by each real estate broker.
DIFFERENT BROKERAGE RELATIONSHIPS ARE AVAILABLE WHICH INCLUDE BUYER AGENCY,
SELLER AGENCY, SUBAGENCY OR TRANSACTION-BROKER.
EXCLUSIVE RIGHT-TO-SELL LISTING CONTRACT
(FARM AND RANCH/VACANT LAND)
(SELLER AGENCY)
Denver, Colorado 9/17/97
SOMATOGEN, INC. ("Seller") hereby irrevocably appoint(s) CB Commercial Real
Estate Group, Inc., 0000 - 00xx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000
("Broker") as Seller's exclusive agent for the purposes and under the terms
specified herein, and the parties agree:
1. PURPOSE OF AGENCY. The purpose of this agency contract ("Listing
Contract") is to engage the efforts of Xxxxxx to accomplish the sale of real
property legally described as:
Lot 8 Flatiron Industrial Park 5
also known as 0000 - 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, together with the
following water rights: None the following water stock: None all well rights,
reservoir or storage rights, if any; all pumping or well equipment, if any, the
following growing crops: None and all items of personal property to be conveyed
pursuant to Section 8 (collectively, the "Property").
2. BROKER'S SERVICES. Broker is a limited agent of the Seller and will
represent only Seller.
(a) Broker shall promote the interests of the Seller with the utmost
good faith, loyalty and fidelity, including, but not limited to:
(1) Seeking a price and terms which are acceptable to the Seller,
except that Broker shall not be obligated to seek additional
offers to purchase the Property while the Property is subject to a
contract for sale;
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(2) Presenting all offers to and from the Seller in a timely
manner regardless of whether the Property is subject to a contract
for sale;
(3) Disclosing to the Seller adverse material facts actually known
by the Broker;
(4) Counseling the Seller as to any material benefits or risks of
a transaction actually known by the Broker;
(5) Advising the Seller to obtain expert advice as to material
matters about which the Broker knows but the specifics of which
are beyond the expertise of the Broker;
(6) Accounting in a timely manner for all money and property
received; and
(7) Informing the Seller that such Seller may be vicariously
liable for the acts of such Seller's agent or any subagent
when the Broker is acting within the scope of the agency
relationship;
(b) Broker shall not disclose the following information without the
informed consent of the Seller:
(1) That the Seller is willing to accept less than the asking
price for the Property;
(2) What the motivating factors are for the Seller to sell the
Property;
(3) That the Seller will agree to financing terms other than
those offered;
(4) Any material information about the Seller unless the
disclosure is required by law or failure to disclose such
information would constitute fraud or dishonest dealing; or
(5) Any facts or suspicions regarding circumstances which may
psychologically impact or stigmatize any real property
pursuant to Colorado law.
(c) Broker shall disclose to any prospective buyer all adverse
material facts actually known by Broker including but not limited
to adverse material facts pertaining to the title to the Property
and the physical condition of the Property, any material defects
in the Property, and any environmental hazards affecting the
Property which are required by law to be disclosed.
3. SALE. "Sale of the Property" or "Sale" means the voluntary transfer or
exchange of any interest in the Property or the voluntary creation of the right
to acquire any interest in the Property.
4. EFFECT OF THIS LISTING CONTRACT. By this appointment, Xxxxxx agrees to
conduct all negotiations for the Sale of the Property only through Broker, and
to refer to Broker all inquiries received in any form from real estate brokers,
salespersons, perspective buyers, tenants or any other source during the time
this Listing Contract is in effect. Seller authorizes Broker to disclose any
facts about the Property. In addition, Xxxxxx agrees that any Broker
compensation which is conditioned upon the Sale of the Property shall be earned
by Xxxxxx as set forth herein without any discount or allowance for any efforts
made by Seller or by any representative of Seller in connection with the Sale of
the Property.
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5. THE LISTING PERIOD. Broker's authority shall begin September 17, 1997
and shall continue through September 17, 1998 ("Listing Period").
6. PRICE AND TERMS. Price: U.S. $3,500,000.00 Terms: Cash. Minimum
amount of xxxxxxx money deposit - Acceptable to owner.
7. DEPOSITS. Broker is authorized to accept xxxxxxx money deposits pursuant
to a proposed Sale contract. Broker is authorized to deliver the xxxxxxx money
deposit to the closing agent, if any, at or before the closing of the Sale
contract.
8. Intentionally omitted from contract.
9. TITLE AND ENCUMBRANCES. Seller represents to Broker that title to the
Property is solely in Seller's name. Seller shall deliver to Broker true copies
of all relevant title materials, lease(s) and survey(s) in Seller's possession
and shall disclose to Broker all easements, liens and encumbrances, if any, on
the Property of which Seller has knowledge. Seller authorizes the holder of any
obligation secured by an encumbrance on the Property to disclose to Broker the
amount owing on said encumbrance and the terms thereof.
In case of Sale, Xxxxxx agrees to convey, by a special Warranty deed,
only that title Seller has in the Property. All monetary encumbrances (such as
mortgages, deeds of trust, liens, financing statements) shall be paid by Xxxxxx
and released except as Seller and buyer may otherwise agree. Existing monetary
encumbrances are as follows: none. The Property is subject to the following
leases and tenancies: none.
10. EVIDENCE OF TITLE. Seller agrees to furnish buyer, at Seller's expense,
a commitment for, and a policy of, title insurance to the Property certified to
a current date in the amount specified by any Sale contract.
11. PRORATIONS. General taxes for the year of closing, based on the taxes
for the calendar year immediately preceding closing, rents, water and sewer
charges, owner's association dues and interest on continuing loans(s), if any,
shall be prorated to date of closing.
12. POSSESSION. Possession of the Property shall be delivered to buyer as
follows: upon delivery of deed, subject to leases and tenancies as described in
Section 9.
13. MATERIAL DEFECTS -- BROKER DISCLOSURES -- INSPECTION. Seller agrees
that any defects of a material nature (including, but not limited to, structural
defects; soil conditions; violations of health, zoning or building laws;
nonconforming uses and zoning variances) actually known by Broker must be
disclosed by Broker to any prospective buyer. Seller agrees that any buyer may
have the Property and inclusions inspected.
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14. COMMISSION TO BROKER.
(a) Commission. In consideration of the services to be performed by
Xxxxxx, Xxxxxx agrees to pay Broker as follows:
(1) Sale Commission: 6% of the gross sales price in U.S. dollars.
(b) When Earned. Such commission shall be earned upon the happening of
any of the following:
(1) Any Sale of the Property within the Listing Period by
Seller, by Broker or by any other person;
(2) Intentionally omitted from contract.
(3) Any Sale of the Property within 90 calendar days subsequent to
the expiration of the Listing Period ("Holdover Period") to
anyone with whom Xxxxxx negotiated and whose name was
submitted, in writing, to Seller by Xxxxxx during the Listing
Period (including any extensions thereof).
(c) When Applicable and Payable. The commission obligation shall
apply to a Sale made during the Listing Period or made during
any extension of such original or extended term. The commission
described in subsection (a)(1) shall be payable at the time of the
closing of the Sale as contemplated by subsection (b)(1) or
(b)(3).
15. LIMITATION ON BROKER'S COMPENSATION. Broker shall not accept
compensation from the buyer, the buyer's agent, or any entity participating in
or providing services for the Sale without the written consent of Seller.
16. OTHER BROKERS, ASSISTANCE -- MULTIPLE LISTING SERVICE.
(a) Broker shall seek assistance from and offer compensation to the
following brokers outside of the listing company:
(1) Intentionally omitted from contract.
(2) Brokers representing the buyer ("Buyer Agents"), (Buyer Agents
representing the buyer owe duties of utmost good faith,
loyalty and fidelity to buyer only. Seller is not vicariously
liable for the acts of Buyer Agents). Broker will offer
compensation to Buyer Agents as follows: 50% of total
commission.
(3) Brokers assisting the buyer in the transactions but not acting
as agents ("Transaction-Brokers"). (Transaction-Brokers must
exercise reasonable skill and care for the parties. Xxxxxx is
not vicariously liable for the acts of Transaction-Broker).
Broker will offer compensation to Transaction-Broker as
follows: 50% of total commission.
(b) Broker will not submit the Property to a multiple listing
service.
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17. IN-COMPANY DUAL AGENCY AND TRANSACTION-BROKER. If a written Dual Agency
Addendum or Transaction-Broker Addendum is signed by Seller, Broker may show
Property to buyers represented or assisted by Broker.
18. FORFEITURE OF PAYMENTS. In the event of a forfeiture of payments made
by a buyer, the sums received shall be divided between Broker and Seller,
one-half thereof to Broker, but not to exceed the commission agreed upon herein,
and the balance to Seller.
19. COST OF SERVICES; REIMBURSEMENT. Unless otherwise specified in Section
28, Broker shall bear all expenses incurred by Broker, if any, to market
Property and to compensate cooperating brokers, if any. Broker will not obtain
or order any other products or services unless Xxxxxx agrees in writing to pay
for them promptly when due. Unless otherwise agreed, Xxxxxx shall not be
obligated to advance funds for the benefit of Seller in order to complete a
closing (Examples: surveys, radon tests, soil tests, title reports, engineering
studies). Seller shall reimburse Broker for payments made by Broker for such
other products or services authorized by Seller.
20. MAINTENANCE OF THE PROPERTY. Seller agrees that Broker shall not be
responsible for maintenance of the Property nor shall Broker be liable for
damage of any kind occurring to the Property, unless such damage shall be caused
by the negligence of Broker.
21. OTHER SELLERS. Seller acknowledges that Broker may have agreements with
other sellers to market and sell their properties.
22. NONDISCRIMINATION. The parties agree not to discriminate unlawfully
against any prospective buyer because of the race, creed, color, sex, marital
status, national origin, familial status, physical or mental handicap, religion
or ancestry of such person.
23. RECOMMENDATION OF LEGAL COUNSEL. By signing this document, Xxxxxx
acknowledges that Xxxxxx has advised that this document has important legal
consequences and has recommended consultation with legal and tax or other
counsel, before signing this contract.
24. ALTERNATIVE DISPUTE RESOLUTION: MEDIATION. If a dispute arises relating
to this contract, and is not resolved, the parties involved in such dispute
(Disputants) shall first proceed in good faith to submit the matter to
mediation. The Disputants 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 Disputant to the other(s), the mediation,
unless otherwise agreed, shall terminate. This section shall not alter any date
in this contract, unless otherwise agreed.
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25. ATTORNEY FEES. In case of arbitration or litigation between Seller and
Broker in their respective capacities, the parties agree that costs and
reasonable attorney fees shall be awarded to the prevailing party.
26. MODIFICATION OF THIS LISTING CONTRACT. No subsequent modification of
any of the terms of this Listing Contract shall be valid, binding upon the
parties, or enforceable unless made in writing and signed by the parties.
27. ENTIRE AGREEMENT. This listing Contract constitutes the entire
agreement between the parties relating to the subject hereof, and any prior
agreements pertaining thereto, whether oral or written, have been merged and
integrated into this Listing Contract.
28. ADDITIONAL PROVISIONS: (The language of these additional provisions,
Sections 29 and 30, has not been approved by the Colorado Real Estate
Commission.)
29. If any of the following parties enters into a purchase contract for the
subject property within the first 45 days of this Exclusive Right to Sell
Agreement, then "No broker fee will be due." Broker shall be due one quarter
(1/4) of the fee stated herein should one of the following parties enter into a
purchase contract during the second 45 days and 100% after 90 days of listing.
These parties are:
1) Flatiron Park Company or any of its Agents - Xxxxx Xxxx
2) XX Xxxxxxxx Company
3) Boulder County
30. If the Property is sold as part of a contract to the sale of 5600
Flatiron Parkway ("CMF-1") by Xxxxxxxxxx, a Broker retained by the Seller for
the purpose of selling CMF-1, then Binswanger shall be entitled to 50% of the
total commission.
31. COPIES OF AGREEMENT. This Listing Contract is executed in multiple
copies and Seller acknowledges receipt of one copy of this Listing Contract
signed by Xxxxxx.
32. COUNTERPARTS. If more than one person is named as a Seller herein, this
Listing Contract may be executed by each Seller individually and when each
Seller has executed a copy of this Listing Contract such copies taken together
shall be deemed to be a full and complete contract between the parties.
Accepted: CB Commercial Real Estate Group, Inc. Somatogen, Inc.
-------------------------------------- ---------------
Broker Seller
By: Xxxx X. O'Dell Xxxxxxx X. Xxxxxxxx
Address: 0000 - 00xx Xxxxxx, Xxxxx 000 0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Suite FD1
Phone: (000) 000-0000 Boulder, Colorado 80301
(000) 000-0000
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DUAL AGENCY ADDENDUM
(For In-Company Transactions)
1. AMENDMENT TO AGENCY CONTRACT: This Dual Agency Addendum is part of a Listing
Contract dated September 17, 1997 between the broker named below and its sales
agents ("Broker") and the undersigned Buyer or Seller. If this addendum is used
with a lease or rental transaction, the word "Seller" shall mean "Landlord" and
the word "Buyer" shall mean "Tenant". This Addendum will control in the event of
any conflict with the contract to which it is attached.
2. LIMITATION ON BROKER'S AGENCY OBLIGATIONS. When acting as the agent for one
party (either Buyer or Seller), Xxxxxx has duties and obligations which include
utmost good faith, loyalty and fidelity to that one principal. If the principal
consents, however, Xxxxxx may act as a Dual Agent when both the Seller and Xxxxx
have an agency relationship with the same real estate company ("In-Company
Transaction"). A Dual Agent is a broker engaged as a limited agent for both
Xxxxxx and Xxxxx. Dual agency creates a conflict of interest because Xxxxxx's
duties and obligations of confidentiality, full disclosure and loyalty to one
party conflict with those same duties to the other. Xxxxxx and Xxxxx may be
vicariously liable for acts of a Dual Agent.
a. If this addendum is signed by Seller, Xxxxxx will act only as the
exclusive agent for Seller when the Property is shown to a prospective buyer who
has a working relationship with another licensed real estate company, but will
act only as a Dual Agent in an In-Company Transaction.
b. If this addendum is signed by Xxxxx, Xxxxxx will act only as the
exclusive agent for Buyer when showing properties that are not listed with
Broker, but will act only as a Dual Agent in an In- Company Transaction.
The remaining provisions of this addendum describe significant changes to the
obligations of Broker when acting as a Dual Agent in an In-Company Transaction.
3. MATTERS THAT CAN BE DISCLOSED BY A DUAL AGENT. Except as set forth in Section
4, Broker, when acting as a Dual Agent, may disclose any information to one
party that Xxxxxx gains from the other party if the information is relevant to
the transaction or party.
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4. MATTERS THAT CANNOT BE DISCLOSED BY A DUAL AGENT. Xxxxxx, when acting as a
Dual Agent, shall not disclose the following information without the prior
consent of Xxxxxx and Buyer.
a. That Buyer is willing to pay more than the purchase price offered for
the property;
b. That Seller is willing to accept less than the asking price for the
property;
c. What the motivating factors are for any party buying or selling the
property;
d. That Seller or Buyer will agree to financing terms other than those
offered;
e. Any material information about the other party unless either:
(1) the disclosure is required by law,
(2) the disclosure pertains to adverse material facts about Buyer's
financial ability to perform the terms of the transaction,
(3) the disclosure pertains to Xxxxx's intent to occupy the property as
a principal residence, or (4) failure to disclose such information
would constitute fraud or dishonest dealing.
5. ADDITIONAL PROVISIONS. Notwithstanding any provision contained in the
Agreement, Somatogen will not be obligated to pay to CB Commercial any
commission, fee or any other compensation including, but not limited to the
Commission Fee, pursuant to the Listing Contract or otherwise, if Somatogen
sells, leases, conveys, or in any other way transfers the Property to any party
that was introduced to Somatogen through an entity or individual (such entity or
individual, an "Investment Bank") that has a written agreement with Somatogen
which obligates Somatogen to pay a fee to such Investment Bank in connection
with a transaction involving Somatogen.
Accepted: Somatogen, Inc..
Seller: Xxxxxxx X. Xxxxxxxx Date: 9/17/97
Broker: CB Commercial Real Estate Group, Inc.
By: Xxxx X. X'Xxxx Date: 9/18/97
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ADDENDUM A
TO
EXCLUSIVE RIGHT-TO-SELL LISTING CONTRACT
DATED
SEPTEMBER 17, 1997
between
SOMATOGEN, INC. ("SELLER")
and
CB COMMERCIAL REAL ESTATE GROUP, INC. ("BROKER")
(the "Listing Contract")
THIS ADDENDUM A (this "Addendum") is attached to and made part of the
above-referenced Listing Contract. In the event of the existence of any conflict
between the terms set forth in the Listing Contract and the terms set forth in
this Addendum, the terms set forth in this Addendum shall control. As used in
this Addendum, the term "Listing Contract" shall mean the Listing Contract as
amended and supplemented by this Addendum.
1. Price and Terms. The price for the Property set forth in Section 6 of
this Listing Contract, and the other terms for the sale of the Property set
forth in Sections 6 through 12 of this Listing Contract, are provided only as
guidelines to be used by Broker in presenting the Property to prospective
purchasers. Seller reserves the right to change such price and any of such terms
at any time and from time to time. Seller shall have no obligation to sell the
Property, or to enter into any contract for the sale of the Property, at such
price or upon any of such terms.
2. Commission Earned Upon Closing. No commission shall be earned by Xxxxxx,
and no commission shall be payable by Seller, except upon the consummation of
the closing of the sale by Seller of the Property in accordance with the terms
set forth in this Listing Contract. No commission shall be payable under this
Listing Contract unless and until the closing of the sale of the Property
occurs, without regard to the reason why a closing failed to occur. Without
limiting the generality of the foregoing, no commission shall be payable in the
event that: (i) Seller fails to acquire the Property, (ii) Seller refuses or
fails to enter into a contract for sale with any purchaser, regardless of the
terms provided in such contract, (iii) Seller fails or refuses to close the sale
of the Property which Seller has contracted to sell, regardless of whether such
failure constitutes a breach by Seller under such contract, or (iv) the closing
of a sale of the Property fails to occur for any other reason, including both
reasons which are in the control of Seller and reasons which are not in the
control of Seller.
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3. Determination of Co-ops: Indemnity. Broker shall be responsible for
determining whether any other broker, salesman, or agent is entitled to a co-op
commission or other compensation on any sale of the Property for which a
commission is payable to Broker under the terms of this Listing Contract. Broker
shall indemnify, defend and hold harmless Seller from and against any and all
claims for co-op commissions or other compensation payable to any other broker,
salesman or agent as a result of the Property hereunder; provided that Xxxxxx
does not hereby indemnify Seller against any claims for commissions, fees, or
other compensation payable to any other broker, salesman, or agent arising from
the sale of the Property to the extent such claims are based upon any specific
agreement or undertaking made by Seller outside of this Listing Agreement.
4. As Is Sale. Broker shall market the Property "As Is," without
representation or warranty of any kind from Seller as to any matter whatsoever.
5. Termination. Seller may terminate this Listing Contract at any time, for
any reason or no reason, upon 15 days written notice to Broker, subject to
Section 14(b)(3) of this Listing Contract.
6. No Assignment. Neither party hereto shall be permitted to assign this
Listing Contract without the prior written consent of the other party hereto.
7. Governing Law. The validity and effect of this Listing Contract shall be
determined in accordance with the laws of the State of Colorado.
8. Facsimile. Facsimile signatures are acceptable to and binding upon all
parties to this Listing Contract.
