|
232' . DEFAULT AND DISPUTE RESOLUTION
<br /> 233 13. DEFAULT: (a) Seller Default: If for any reason other than failure of Seller to make Seller's title marketable after diligent effort,
<br /> 234 Seller fails, refuses or neglects to perform this Contract, Buyer may choose to receive a return of Buyer's deposit without waiving
<br /> 235 ' the right to seek damages or to seek specific performance as per Paragraph 14. Seller will also be liable to Broker for the full amount
<br /> 236 of the brokerage fee. (b) Buyer Default: If Buyer fails to perform this Contract within the time specified, including timely payment of
<br /> 237 all deposits , Seller may choose . to retain and collect all deposits paid and agreed to be paid as liquidated damages or to seek
<br /> 238 specific performance as per Paragraph 14; and Broker will , upon demand , receive 50% of all deposits paid and agreed to be paid (to
<br /> 239 be split equally among cooperating brokers except when closing does not occur due to Buyer not being able to secure Financing
<br /> 240 after providing a Commitment, in which case Broker's portion of the deposits will go solely to the listing broker) up to the full amount
<br /> 241 of the brokerage fee.
<br /> 242 14. DISPUTE RESOLUTION : This Contract will be construed under Florida law. All controversies , claims, and other matters in
<br /> 243 question arising out of or relating to this transaction or this Contract or its breach will be settled as follows:
<br /> 244 (a) Disputes concerning entitlement to deposits made and agreed to be made: Buyer and Seller will have 30 days from the
<br /> 245 date conflicting demands are made to attempt to resolve the dispute through mediation. If that fails, Escrow Agent will submit the
<br /> 246 dispute , if so required by Florida law , to Escrow Agent's choice of arbitration , a Florida court or the Florida Real Estate
<br /> 247 Commission . Buyer and Seller will be bound by any resulting award, judgement, or order.
<br /> 248 (b) All other disputes : Buyer and Seller will have 30 days from the date a dispute arises between them to attempt to resolve
<br /> 249 the matter through mediation , failing which the parties will resolve the dispute through neutral binding arbitration in the county
<br /> 250 where the Property is located . The arbitrator may not alter the Contract terms or award any remedy not provided for in this
<br /> 251 Contract . The award will be based on the greater weight of the evidence and will state findings of fact and the contractual
<br /> 252 authority on which it is based . If the parties agree to use discovery, it will be in accordance with the Florida Rules of Civil
<br /> 253 Procedure and the arbitrator will resolve all discovery- related disputes . Any disputes with a real estate licensee named in
<br /> 254 Paragraph 17 will be submitted to arbitration only if the licensee's broker consents in writing to become a party to the proceeding .
<br /> 255 This clause will survive closing .
<br /> 256 (c) Mediation and Arbitration; Expenses : "Mediation" is a process in which parties attempt to resolve a dispute by submitting it
<br /> 257 to an impartial mediator who facilitates the resolution of the dispute but who is not empowered to impose a settlement on the
<br /> 258 parties. Mediation will be in accordance with the rules of the American Arbitration Association ("AAA") or other mediator agreed
<br /> 259 on by the parties. The parties will equally divide the mediation fee, if any . "Arbitration" is a process in which the parties resolve a
<br /> 260 dispute by a hearing before a neutral person who decides the matter and whose decision is binding on the parties. Arbitration will
<br /> 261 be in accordance with the rules of the AAA or other arbitrator agreed on by the parties. Each party to any arbitration will pay its
<br /> 262 own fees , costs and expenses, including attorneys' fees , and will equally split the arbitrators' fees and administrative fees of
<br /> 263 arbitration . In a civil action to enforce an arbitration award , the prevailing party to the arbitration shall be entitled to recover from
<br /> 264 the nonprevailing party reasonable attorneys' fees, costs and expenses.
<br /> 265 ESCROW AGENT AND BROKER
<br /> 266 15. ESCROW AGENT: Buyer and Seller authorize Escrow Agent to receive, deposit and hold funds and other items in escrow and ,
<br /> 267 subject to clearance, disburse them upon proper authorization and in accordance with Florida law and the terms of this Contract,
<br /> 268 including disbursing brokerage fees. The parties agree that Escrow Agent will not be liable to any person for misdelivery of escrowed
<br /> 269 items to Buyer or Seller, unless the misdelivery is due to Escrow Agent's willful breach of this Contract or gross negligence . If
<br /> 270 Escrow Agent interpleads the subject matter of the escrow, Escrow Agent will pay the filing fees and costs from the deposit and will
<br /> 271 recover reasonable attorneys' fees and costs to be paid from the escrowed funds or equivalent and charged and awarded as court
<br /> 272 costs in favor of the prevailing party . All claims against Escrow Agent will be arbitrated , so long as Escrow Agent consents to
<br /> 273 arbitrate.
<br /> 274 16. PROFESSIONAL ADVICE; BROKER LIABILITY: Broker advises Buyer and Seller to verify all facts and representations that �I
<br /> 275 are important to them and to consult an appropriate professional for legal advice (for example, interpreting contracts, determining the
<br /> 276 effect of laws on the Property and transaction , status of title, foreign investor reporting requirements , etc. ) and for tax , property
<br /> 277 condition , environmental and other specialized advice. Buyer acknowledges that Broker does not reside in the Property and that all
<br /> 278 representations (oral , written or otherwise) by Broker are based on Seller representations or public records . Buyer agrees to rely
<br /> 279 solely on Seller, professional inspectors and governmental agencies for verification of the Property condition and facts that
<br /> 280 materially affect Property value. Buyer and Seller respectively will pay all costs and expenses, including reasonable attorneys'
<br /> 281 fees at all levels , incurred by Broker and Broker's officers , directors , agents and employees in connection with or arising from
<br /> 282 Buyer's or Seller's misstatement or failure to perform contractual obligations . Buyer and Seller hold harmless and release Broker
<br /> 283 and Broker' s officers , directors , agents and employees from all liability for loss or damage based on ( 1 ) Buyer's or Seller's
<br /> 284 misstatement or failure to perform contractual obligations; (2) Brokers performance, at Buyer's and/or Seller's request, of any task
<br /> 285 beyond the scope of services regulated by Chapter 475 , F. S . , as amended , including Broker's referral , recommendation or retention
<br /> 286 of any vendor; (3) products or services provided by any vendor; and (4) expenses incurred by any vendor. Buyer and Seller each
<br /> 287 assume full responsibility for selecting and compensating their respective vendors. This paragraph will not relieve Broker of statutory
<br /> 288 obligations. For purposes of this paragraph , Broker will be treated as a party to this Contract. This paragraph will survive closing .
<br /> 289 17. BROKERS : The licensee(s) and brokerage(s) named below are collectively referred to as " Broker." Instruction to Closing
<br /> 290 Agent: Seller and Buyer direct closing agent to disburse at closing the full amount of the brokerage fees as specified in
<br /> 291 ' Buyer (� (_� and Seller ( t:Yn (_, acknowledge receipt of a copy of this page, which is Page 5 of 7 Pages.
<br /> VAC-8 Rev. 10/04 © 2004 Florida Association of REALTORS® All Rights Reserved
<br /> This form produced by: lip drerFOn" / atili 800-336-1027
<br />
|