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HomeMy WebLinkAbout2005-239rAGREEMENT TO PURCHASE AND SELL REAL ESTATE THIS AGREEMENT TO PURCHASE AND SELL REAL ESTATE ("Agreemei entered into as of the 12thday of Jul y , 2005, br and between COUNTY, a political subdivision of the State of Florida, 1840 25 Street, Vero E ("County"), and KEN McKELLAR, 125 Ocean Way, Vero Beach, FL 32963 ("S( as follows: 1. Agreement to Purchase and Sell. The Seller hereby agrees to sell to the County hereby agrees to purchase from Seller, upon the terms and conditions Agreement that certain parcel of real property described as parts of Property Y # 32392200000100000007.0 located in Vero Beach, Indian River County, Stato more specifically legally described on Exhibit "A" attached hereto and incor reference containing approximately * acres (*acreage will be filled in upor survey calculation of the size of the property to be purchased), and any improv( together with all easements, rights and uses now or hereafter belonging thereto "Property"). 2. Purchase Price, Effective Date. The purchase price (the "Purchas( Property shall be $45,000 per acre based on exact calculation of acreage for tl purchased. The Purchase Price shall be paid and title to the described p conveyed on the Closing Date. The Effective Date of this Agreement shall b which the Indian River County Board of County Commissioners approved the Agreement at its formal meeting.*$45,000 per acre will be paid based on the ea acreage for the parcel to be purchased as determined by a licensed surveyor. 3. Title. Seller shall convey marketable title to the Property by warranty del liens, easements and encumbrances of record or known to Seller; but subject for the year of Closing and covenants, restrictions and public utility easements c (a) there exists at Closing no violation of any of the foregoing; and (b) none prevents County's intended use and development of the Property ("Permitted 3.1 County may order an Ownership and Encumbrance Report or Commitment with respect to the Property. County shall within fifteen (15) da Effective Date of this Agreement deliver written notice to Seller of title defect! deemed acceptable to County if (a) County fails to deliver notice of defects specified, or (b) County delivers notice and Seller cures the defects within thirt, receipt of notice from County of title defects ("Curative Period"). Seller shall uc cure the defects within the Curative Period and if the title defects are not c Curative Period, County shall have thirty (30) days from the end of the Curative by written notice to Seller, to: (i) to terminate this Agreement, whereupon shall force and effect, or (ii) extend the Curative Period for up to an additional 90 dal title subject to existing defects and proceed to closing. 1 t") is made and INDIAN RIVER each, FL 32960 Iler"), who agree County, and the set forth in this appraiser's Tax of Florida, and porated by this receipt of exact �ments thereon, (collectively, the Price") for the property to be iperty shall be the date upon cecution of this ct calculation of 1 free of claims, ► property taxes record provided if the foregoing xceptions"). Fitle Insurance Is following the Title shall be within the time (30) days from best efforts to ured within the Period to elect, be of no further s; or (iii) accept 4. Representations of the Seller. 4.1 Seller is indefeasibly seized of marketable, fee simple title to the Prop owner of and has good right, title, and authority to convey and transfer the P1 subject matter of this Agreement, free and clear of all liens and encumbran 4.2 From and after the Effective Date of this Agreement, Seller shall take would impair or otherwise affect title to any portion of the Property, and documents in the Public Records which would affect title to the Property, withou consent of the County. 4.3 There are no existing or pending special assessments affecting the PropE may be assessed by any governmental authority, water or sewer authority, drainage district or any other special taxing district. 5. Contingency. The Seller acknowledges and agrees that this Agreeml contingent upon the County obtaining an Agreement to Purchase and Sell RE other parcels shown on Exhibit "B" attached hereto and incorporated by referen County fails to obtain an Agreement to Purchase and Sell Real Estate upon an, parcels shown on Exhibit "B" by December 31, 2005, then this Agreement shall I void and the County and the Seller shall be released from all obligations under 6. Default. 6.1 In the event the County shall fail to perform any of its obligations herE shall, at its sole option, be entitled to: (i) terminate this Agreement by written n the County at or prior to the Closing Date and thereupon neither the Seller nor or party shall have any claim for specific performance, damages, or other County; or (ii) waive the County's default and proceed to Closing. 6.2 In the event the Seller shall fail to perform any of its obligations hereu shall, at its sole option, be entitled to: (i) terminate this Agreement by written n the Seller at or prior to the Closing Date and thereupon neither the County nor or party shall have any claim for specific performance, damages or otherwise or (ii) obtain specific performance of the terms and conditions hereof; or (iii) v default and proceed to Closing: 7, Closing. 7.1 The closing of the transaction contemplated herein ("Closing" and "C take place within 60 days following the Effective Date of this Agreement. The the Closing shall be as follows: and is the sole .arty which is the io action which ;hall record no the prior written rty, which are or school district, ,.int is expressly al Estate for all me herein. If the ( of the required )ecome null and :his Agreement. der, the Seller me delivered to y other person �e against the ier, the County ice delivered to iy other person ainst the Seller; ive the Seller's ing Date") shall irties agree that (a) The Seller shall execute and deliver to the County a warranty deed conve ing marketable title to the Property, free and clear of all liens and encumbrances and in the cond tion required by paragraph 3. (b) The Seller shall have removed all of its personal property and equipment from the 2 Property and Seller shall deliver possession of the Property to County vacant better condition that existed at the Effective Date hereof. in the same or (c) If Seller is obligated to discharge any encumbrances at or prior to Closing and fails to do so, County may use a portion of Purchase Price funds to satisfy the encumbrances. (d) If the Seller is a non-resident alien or foreign entity, Seller shall deliver to the County an affidavit, in a form acceptable to the County, certifying that the Seller and any interest holders are not subject to tax under the Foreign Investment and Real Property Tax Ac of 1980. (e) The Seller and the County shall each deliver to the other such oth instruments as may reasonably be required to close this transaction. 7.2 Prorations. All taxes and special assessments which are a lien upon th prior to the Closing Date (except current taxes which are not yet due and payab by the Seller. If the Closing Date occurs during the time interval commencing and ending on December 31, Seller shall pay all current real estate tax assessments levied against the Property, prorated based on the "due date established by the taxing authority having jurisdiction over the Property. If tF occurs between January 1 and November 1, the Seller shall, in accordance with section 196.295, pay an amount equal to the current real estate taxes an( prorated to the Closing Date. 8, Closing Costs; Expenses. County shall be responsible for preparatio documents. 8.1 County shall pay the following expenses at Closing: 8, 1,1 The cost of recording the warranty deed and any release or satisfa Seller pursuant to this Agreement. 8.1.2 Documentary Stamps required to be affixed to the warranty deed 8.1.3 All costs and premiums for the owner's marketability title insurance policy, if any. 8.2 Seller shall pay the following expenses at or prior to Closing: 8.2.1 All costs necessary to cure title defect(s) or encumbrances, other Permitted Exceptions, and to satisfy or release of record all existing mortgage: encumbrances upon the Property. 8.3 The Seller and County shall each pay their own attorneys' fees. 9. Miscellaneous. Seller has the option to utilize the provisions of Section Code regarding tax free exchange, at no expense to the County, 3 documents or property on or e) shall be paid )n November 2 ;s and special of such taxes e Closing Date =lorida Statutes assessments, of all Closing n obtained by mitment and :han the liens or 031 of the IRS 9.1 Controlling Law. This Agreement shall be construed and enforced in acc laws of the State of Florida. Venue shall be in Indian River County for all stal and in the Southern District of Florida for all federal court matters. 9.2 Condemnation. In the event that all or any part of the Property shall condemned for any public or quasi -public use or purpose, or if any acquisition o proceedings shall be threatened or begun prior to the Closing of this transacti( have the option to either terminate this Agreement, and the obligations of all pE shall cease, or to proceed, subject to all other terms, covenants, conditions, repr warranties of this Agreement, to the Closing of the transaction contemplated hei title to the Property; receiving, however, any and all damages, awards or othe arising from or attributable to such acquisition or condemnation proceedings. C the right to participate in any such proceedings. 9.3 Entire Agreement. This Agreement constitutes the entire agreement bE with respect to this transaction and supersedes all prior agreements, written or Seller and the County relating to the subject matter hereof. Any modification this Agreement shall be effective only if in writing and executed by each of th 9.4 Assignment and Binding Effect, Neither County nor Seller may ass obligations under this Agreement without the prior written consent of the other hereof shall be binding upon and shall inure to the benefit of the parties successors and assigns. 9.5 Notices. Any notice shall be deemed duly served if personally se certified mail, return receipt requested, or if sent via "overnight" courier transmission, as follows: If to Seller: Ken McKellar 125 Ocean Way Vero Beach, FL 32963 Facsimile # If to County: Indian River County Attn: Steven Doyle, P.E. Assistant Utilities Director 184025 th Street, Vero Beach, Facsimile # (772) 770-5095 FL 32960 Either party may change the information above by giving written notice of provided in this paragraph. 9.6 Survival and Benefit. Except as otherwise expressly provided herein, e representation or warranty made in this Agreement by or on behalf of either instruments delivered pursuant hereto or in connection herewith, shall survive t and the consummation of the transaction provided for herein. The covenants, undertakings of each of the parties hereto are made solely for the benefit of, ar on only by the other party hereto, its successors and assigns, and are not mad of, nor may they be relied upon, by any other person whatsoever. 4 dance with the court matters, be acquired or condemnation n, County shall rties hereunder :sentations and eby and receive compensation )unty shall have Feen the parties al, between the amendment to parties. its rights and rty. The terms reto and their or if mailed by me or facsimile ch change as ich agreement, )arty, or in any ie Closing Date greements and 1 may be relied for the benefit 9.7 Attorney's Fees and Costs. In any claim or controversy arising out of c Agreement, each party shall bear its own attorney's fees, costs, and expense: 9.8. Counterparts. This Agreement maybe executed in two or more cou which shall constitute an original. 9.9. County Approval Required: This Agreement is subject to approval by Ind! as set forth in paragraph 2. Approval is to be sought at the earliest time possib thirty (30) days from the date of Seller's execution of this Agreement. If possible take place within fifteen (15) days of the Effective Date of this Agreement, but later than sixty (60) days after the Effective Date. 9.10 Beneficial Interest Disclosure: In the event Seller is a partnership, limi corporation, trust, or any form of representative capacity whatsoever for oth provide a fully completed, executed, and sworn beneficial interest disclosure form attached to this Agreement as an exhibit that complies with all of the pro% Statutes Section 286.23 prior to approval of this Agreement by the County. Ho to Florida Statutes Section 286.23 (3)(a), the beneficial interest in any entity re, Federal Securities and Exchange Commission, or registered pursuant to Chal Statutes, whose interest is for sale to the general public, is exempt from disclo the Seller is a non-public entity, that Seller is not required to disclose persons o less than five (5%) percent of the beneficial interest in Seller. IN WITNESS WHEREOF, the undersigned have executed this Agreem first set forth above. SELLER: McKellar Date Signed: S451 16;1"S 5 INDIAN RIVER COU By: '::JLt- sal Thomas S. Lowt BCG approved r relating to this rts, each one of in River County a. not to exceed Closing shall to losing shall not ed partnership, ;rs, Seller shall tatement in the sions of Florida vever, pursuant istered with the ter 517, Florida ure; and where entities holding t as of the date , FLORIDA Chairan 142, Obl Attest: J. K. Barton, Clea By0040 ..i .• DeputyIf `> •ttqq,,3•°�' �• i ,��,P1i p�u 4i •� �� Approved: Im to INDIAN RIVER COUNTY PROPERTY APPRAISER SUMMARY SCREEN --------------------------------------------------------------- PARCEL # 32392200000100000007.0 NAME MCKELLAR,KEN LEGAL ADDR1 125 OCEAN WAY S 294.3 FT OF NEI/4 OF NEI/4 LESS PARCEL ADDR2 DEEDED TO PARENT IN R BK 194 PP 569 & ADDR3 LESS S 5 A OF NE1/4 OF NE1/4 & S 294.3 CITY VERO BEACH -------------------------------------------------------------- TAXES 935.33 TIC 7 DR IRF EXENO -------------------------------------------------------------- SALES 1===> SALE CD 01 BOOK 01404 PAGE 00687 DATE 05 2001 2===> SALE CD 00 BOOK 01404 PAGE 00689 DATE 05 2001 ------------------------------------------------------------- VALUES LAND 46890 BLDG MISC JUST 2/17/05 ---------------- S T . FL ZIP 32963 ---------------- PRICT; 11667 PRICE 11667 VALUE 46890 46890 ------------------------------------------------------------- ---------------- LAND ACRES 4.69 FRNTAGE 000000.00 DEPTH o00 TYPE A IMP PUSE 4000 STYLE BASE AW YRBLT ---------------------------------------------------------------------------- PHY ADDR 31ST AV P=Prev Parc N=Next Pc xt Action---> rc E=Exit OWNER'S POLICY OF TITLE INSURANCE Issued by Commonwealth Land Title Insurance Company POLICY NUMBERu LandAmerica Commonwealth Land Title Insurance Company is a member of the A 0 2 — 11 � 8 4 T 9 Commonwealth LandAmerica family of title insurance underwriters. SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, COMMONWEALTH LAND TITLE INSURANCE COMPANY, a Pennsylvania corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title; 4. Lack of a right of access to and from the land. The Company also will pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. IN WITNESS WHEREOF, COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its corporate name and seal to be hereunto affixed by its duly authorized officers, the Policy to become valid when countersigned by an authorized officer or agent of the Company. COMMONWEALTH LAND TITLE INSURANCE COMPANY �Po'�oua _j47'G I �Z. 9 Attest:J .' President Secretary v o EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. 4. Any claim, which arises out of the transaction vesting in the insured the estate or interest insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws that is based on: (a) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer; or (b) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except where the preferential transfer results from the failure: (i) to timely record the instrument of transfer; or (ii) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. ALTA Owner's Policy (10/17/92) with Florida Modifications Valid only if Schedules A and B are attached Form 1190-21 B ORIGINAL I ne IUIIUWlrly renes ween useu ul uus Nuncy nlCall. (a) "insured": the insured named in Schedule A, and, subject to any rights or defenses the Company would have had against the named insured, those who succeed to the interest of the named insured by operation of law as distinguished from purchase including, but not limited to, heirs, distributees, devisees, survivors, personal representatives, next of kin, or corporate or fiduciary successors. (b) "insured claimant": an insured claiming loss or damage. (c) "knowledge" or "known": actual knowledge, not constructive knowledge or notice which may be imputed to an insured by reason of the public records as defined in this policy or any other records which impart constructive notice of matters affecting the land. (d) "land": the land described or referred to in Schedule A, and improvements affixed thereto which by law constitute real property. The term "land" does not include any property beyond the lines of the area described or referred to in Schedule A, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy. (e) "mortgage": mortgage, deed of trust, trust deed, or other security instrument. (f) "public records": records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge. With respect to Section 1(a)(iv) of the Exclusions From Coverage, "public records" shall also include environmental protection liens filed in the records of the clerk of the United States district court for the district in which the land is located. (g) "unmarketability of the title": an alleged or apparent matter affecting the title to the land, not excluded or excepted from coverage, which would entitle a purchaser of the estate or interest described in Schedule A to be released from the obligation to purchase by virtue of a contractual condition requiring the delivery of marketable title. 2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE. The coverage of this policy shall continue in force as of Date of Policy in favor of an insured only so long as the insured retains an estate or interest in the land, or holds an indebtedness secured by a purchase money mortgage given by a purchaser from the insured, or only so long as the insured shall have liability by reason of covenants of warranty made by the insured in any transfer or conveyance of the estate or interest. This policy shall not continue in force in favor of any purchaser from the insured of either (i) an estate or interest in the land, or (ii) an indebtedness secured by a purchase money mortgage given to the insured. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT. The insured shall notify the Company promptly in writing (i) in case of any litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come to an insured hereunder of any claim of title or interest which is adverse to the title to the estate or interest, as insured, and which might cause loss or damage for which the Company may be liable by virtue of this policy, or (iii) if title to the estate or interest, as insured, is rejected as unmarketable. If prompt notice shall not be given to the Company, then as to the insured all liability of the Company shall terminate with regard to the matter or matters for which prompt notice is required; provided, however, that failure to notify the Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. 4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE. (a) Upon written request by the insured and subject to the options contained in Section 6 of these Conditions and Stipulations, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title or interest as insured, but only as to those stated causes of action alleging a defect, lien or encumbrance or other matter insured against by this policy. The Company shall have the right to select counsel of its choice (subject to the right of the insured to object for reasonable cause) to represent the insured as to those stated causes of action and shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs or expenses incurred by the insured in the defense of those causes of action which allege matters not insured against by this policy. (b) The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest, as insured, or to prevent or reduce loss or damage to the insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this policy. If the Company shall exercise its rights under this paragraph, it shall do so diligently. (c) Whenever the Company shall have brought an action or interposed a defense as required or permitted by the provisions of this policy, the Company may pursue any litigation to final determination by a court of competent ally auvCI bC )uUyl I lul n UI ul uvl. (d) In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding, the insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding, and all appeals therein, and permit the Company to use, at its option, the name of the insured for this purpose. Whenever requested by the Company, the insured, at the Company's expense, shall give the Company all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as insured. If the Company is prejudiced by the failure of the insured to furnish the required cooperation, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such cooperation. 5. PROOF OF LOSS OR DAMAGE. In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided the Company, a proof of loss or damage signed and sworn to by the insured claimant shall be furnished to the Company within 90 days after the insured claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the defect in, or lien or encumbrance on the title, or other matter insured against by this policy which constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the insured claimant to provide the required proof of loss or damage, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such proof of loss or damage. In addition, the insured claimant may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reasonable times and places as may be designated by any authorized representative of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Policy, which reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the insured claimant shall grant its permission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All information designated as confidential by the insured claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the insured claimant to submit for examination under oath, produce other reasonably requested information or grant permission to secure reasonably necessary information from third parties as required in this paragraph shall terminate any liability of the Company under this policy as to that claim. 6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY. In case of a claim under this policy, the Company shall have the following additional options: (a) To Pay or Tender Payment of the Amount of Insurance. To pay or tender payment of the amount of insurance under this policy together with any costs, attorneys' fees and expenses incurred by the insured claimant, which were authorized by the Company, up to the time of payment or tender of payment and which the Company is obligated to pay. Upon the exercise by the Company of this option, all liability and obligations to the insured under this policy, other than to make the payment required, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, and the policy shall be surrendered to the Company for cancellation. (b) To Pay or Otherwise Settle With Parties Other than the Insured or With the Insured Claimant. (i) to pay or otherwise settle with other parties for or in the name of an insured claimant any claim insured against under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay; or (ii) to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in paragraphs (b)(i) or (ii), the Company's obligations to the insured under this policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prosecute or continue any litigation. CONDITIONS AND STIPULATIONS - continued 7. DETERMINATION AND EXTENT OF LIABILITY. This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described. (a) The liability of the Company under this policy shall not exceed the least of: (i) the Amount of Insurance stated in Schedule A; or, (ii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy. (b) The Company will pay only those costs, attorneys' fees and expenses incurred in accordance with Section 4 of these Conditions and Stipulations. 8. APPORTIONMENT. If the land described in Schedule A consists of two or more parcels which are not used as a single site, and a loss is established affecting one or more of the parcels but not all, the loss shall be computed and settled on a pro rata basis as if the amount of insurance under this policy was divided pro rata as to the value on Date of Policy of each separate parcel to the whole, exclusive of any improvements made subsequent to Date of Policy, unless a liability or value has otherwise been agreed upon as to each parcel by the Company and the insured at the time of the issuance of this policy and shown by an express statement or by an endorsement attached to this policy. 9. LIMITATION OF LIABILITY. (a) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right of access to or from the land, or cures the claim of unmarketability of title, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby. (b) In the event of any litigation, including litigation by the Company or with the Company's consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title as insured. (c) The Company shall not be liable for loss or damage to any insured for liability voluntarily assumed by the insured in settling any claim or suit without the prior written consent of the Company. 10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY. All payments under this policy, except payments made for costs, attorneys' fees and expenses, shall reduce the amount of the insurance pro tanto. 11. LIABILITY NONCUMULATIVE. It is expressly understood that the amount of insurance under this policy shall be reduced by any amount the Company may pay under any policy insuring a mortgage to which exception is taken in Schedule B or to which the insured has agreed, assumed, or taken subject, or which is hereafter executed by an insured and which is a charge or lien on the estate or interest described or referred to in Schedule A, and the amount so paid shall be deemed a payment under this policy to the insured owner. 12. PAYMENT OF LOSS. (a) No payment shall be made without producing this policy for endorsement of the payment unless the policy has been lost or destroyed, in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable within 30 days thereafter. 13. SUBROGATION UPON PAYMENT OR SETTLEMENT. (a) The Company's Right of Subrogation. Whenever the Company shall have settled and paid a claim under this policy, all right of subrogation shall vest in the Company unaffected by any act of the insured claimant. The Company shall be subrogated to and be entitled to all rights and remedies which the insured claimant would have had against any person or property in respect to the claim had this policy not been issued. If requested by the Company, the insured claimant shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect this right of subrogation. The insured claimant shall permit the Company to sue, compromise or settle in the name of the insured claimant and to use the name of the insured claimant in any transaction or litigation involving these rights or remedies. If a payment on account of a claim does not fully cover the loss of the insured claimant, the Company shall be subrogated to these rights and remedies in the proportion which the Company's payment bears to the whole amount of the loss. If loss should result from any act of the insured claimant, as stated above, that act shall not void this policy, but the Company, in that event, shall be required to pay only that part of any losses insured against by this policy which shall exceed the amount, if any, lost to the Company by reason of the impairment by the insured claimant of the Company's right of subrogation. (b) The Company's Rights Against Non-insured Obligors. The Company's right of subrogation against non-insured obligors shall exist and shall include, without limitation, the rights of the insured to indemnities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those instruments which provide for subrogation rights by reason of this policy. 14. ARBITRATION. Unless prohibited by applicable law, arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association may be demanded if agreed to by both the Company and the insured. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the insured arising out of or relating to this policy, any service of the Company in connection with its issuance or the breach of a policy provision or other obligation. Arbitration pursuant to this policy and under the Rules in effect on the date the demand for arbitration is made or, at the option of the insured, the Rules in effect at Date of Policy shall be binding upon the parties. The award may include attorneys' fees only if the laws of the state in which the land is located permit a court to award attorneys' fees to a prevailing party. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request. 15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT. (a) This policy together with all endorsements, if any, attached hereto by the Company is the entire policy and contract between the insured and the Company. In interpreting any provision of this policy, this policy shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, and which arises out of the status of the title to the estate or interest covered hereby or by any action asserting such claim, shall be restricted to this policy. (c) No amendment of or endorsement to this policy can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company. 16. SEVERABILITY. In the event any provision of the policy is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision and all other provisions shall remain in full force and effect. 17. NOTICES WHERE SENT. All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this policy and shall be addressed to: Consumer Affairs Department, P.O. Box 27567, Richmond, Virginia 23261-7567. Form B 1190-21 B OWNER'S POLICY OF TITLE INSURANCE American Land Title Association (10/17/92) (WITH FLORIDA MODIFICATIONS) Issued by Commonwealth Land Title Insurance Company Commonwealth Land Title Insurance Company is a member of the LandAmerica family of title insurance underwriters. \ LandAmerica Commonwealth LandAmerica Financial Group, Inc. 101 Gateway Centre Parkway Richmond, Virginia 23235-5153 www.landam.com THANK YOU. Title insurance provides for the protection of your real estate investment. We suggest you keep this policy in a safe place where it can be readily available for future reference. If you have questions about title insurance or the coverage provided by this policy, contact the office that issued this policy, or you may call or write: Commonwealth Land Title Insurance Company Consumer Affairs P.O. Box 27567 Richmond, Virginia 23261-7567 telephone, toll free: 800 446-7086 web: www,landam.com We thank you for choosing to do business with Commonwealth Land Title Insurance Company, and look forward to meeting your future title insurance needs. Commonwealth Land Title Insurance Company is a member of the LandAmerica family of title insurance underwriters. \ LandAmerica Commonwealth Policy of Title Insurance Commonwealth Land Title Insurance Company Schedule A Order Number: 24364340CA Amount of Insurance: $100,665.00 Policy Number: A02-1178449 Reference Number: McKellar/IRC (708100001) Date of Policy: The date shown below or the date of recording of the instruments referred to in Item 3, whichever is the later. DECEMBER 13, 2005 AT 8:24 AM 1. Name of Insured INDIAN RIVER COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA 2. The estate or interest in the land described herein and which is covered by this policy is: Fee Simple 3. Title to the estate or interest in the land is vested in: INDIAN RIVER COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, By Virtue of Warranty Deed recorded in Official Records Book 1970, Page 1661, Public Records of Indian River County, Florida. 4. The Land referred to in this policy is described as follows: (See attached Exhibit A for legal description) Samuel A. Block, Esquire 3339 Cardinal Drive, Suite 200 Vero Beach, FL 32963 This policy is invalid unless a cover sheet and Schedule B are attached. Exhibit A Policy Number: A02-1178449 South 294.3 feet of the Northeast 1/4 of the Northeast 1/4, less the parcel deeded to Parent in Official Records Book 194, page 569, of the Public Records of Indian River County, Florida, and less the South 5 acres of the Northeast 1/4 of the Northeast 1/4; AND the South 294.3 feet of the Northwest 1/4 of the Northeast 1/4, lying East of Lateral H Canal; AND the Southwest 1/4 of the Northeast 1/4, lying East of Lateral H Canal, less Lot described in Official Records Book 165, page 158, and less Lot described in Official Records Book 178, page 361 and less Lot conveyed in Official Records Book 610, page 2121, all of the Public Records of Indian River County, Florida. Said land lying and being in Section 22, Township 32 South, Range 39 East, Indian River County, Florida. Schedule B Policy Number: A02-1178449 This policy does not insure against loss or damage (and the Company will not pay costs, attomeys' fees or expenses) which arise by reason of: 1. Taxes and assessments for the year 2006 and subsequent years. 2. Easements or claims of easements not shown by the Public Records, boundary line disputes, overlaps, encroachments, and any matters not of record which would be disclosed by an accurate survey and inspection of the premises. 3. Easements or claims of easements not shown by the public records. 4. Notwithstanding the insuring provisions, this policy does not insure any right of access to and from the land. 5. Reservations of road rights of way in favor of the State of Florida, as set forth in the deed from the Trustees of the Internal Improvement Fund, recorded in Deed Book 82, Page 386. 6. Phosphate, Minerals, Metals and Petroleum Reservations and rights in favor of the State of Florida, as set forth in the deed from the Trustees of the Internal Improvement Fund, recorded in Deed Book 82, Page 386. As to said reservation, the right of entry has been released pursuant to Florida Statute 270.11. NOTE: All recording references in this commitment/policy shall refer to the Public Records of Indian River County, Florida, unless otherwise noted. NOTE: In accordance with Florida Statutes section 627.4131, please be advised that the insured hereunder may present inquiries, obtain information about coverage, or receive assistance in resolving complaints, by contacting the Commonwealth Land Title Insurance Company Regional Office, 201 South Orange Avenue, Suite 1350, Orlando, FL 32801 Telephone 407-481-8181. OWNER'S POLICY OF TITLE INSURANCE Issued by Commonwealth Land Title Insurance Company POLICY NUMBER u NLandAmerica Commonwealth Land Title Insurance Company is a member of the A02-1118 4 4 9 Commonwealth LandAmerica family of title insurance underwriters. SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, COMMONWEALTH LAND TITLE INSURANCE COMPANY, a Pennsylvania corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title; 4. Lack of a right of access to and from the land. The Company also will pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. IN WITNESS WHEREOF, COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its corporate name and seal to be hereunto affixed by its duly authorized officers, the Policy to become valid when countersigned by an authorized officer or agent of the Company. COMMONWEALTH LAND TITLE INSURANCE COMPANY �? 9 Attest:f s C2 / rZ, President EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. 4. Any claim, which arises out of the transaction vesting in the insured the estate or interest insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws that is based on: (a) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer; or (b) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except where the preferential transfer results from the failure: (i) to timely record the instrument of transfer; or (ii) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. ALTA Owner's Policy (10/17/92) with rionaa MoaiTicauons vaiia oniy it acneauies r, anu o clic auau, Form 1190-21 B ORIGINAL The following terms when used in this policy mean: (a) "insured": the insured named in Schedule A, and, subject to any rights or defenses the Company would have had against the named insured, those who succeed to the interest of the named insured by operation of law as distinguished from purchase including, but not limited to, heirs, distributees, devisees, survivors, personal representatives, next of kin, or corporate or fiduciary successors. (b) "insured claimant": an insured claiming loss or damage. (c) "knowledge" or "known": actual knowledge, not constructive knowledge or notice which may be imputed to an insured by reason of the public records as defined in this policy or any other records which impart constructive notice of matters affecting the land. (d) "land": the land described or referred to in Schedule A, and improvements affixed thereto which by law constitute real property. The term "land" does not include any property beyond the lines of the area described or referred to in Schedule A, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy. (e) "mortgage": mortgage, deed of trust, trust deed, or other security instrument. (f) "public records": records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge. With respect to Section 1(a)(iv) of the Exclusions From Coverage, "public records" shall also include environmental protection liens filed in the records of the clerk of the United States district court for the district in which the land is located. (g) "unmarketability of the title": an alleged or apparent matter affecting the title to the land, not excluded or excepted from coverage, which would entitle a purchaser of the estate or interest described in Schedule A to be released from the obligation to purchase by virtue of a contractual condition requiring the delivery of marketable title. 2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE. The coverage of this policy shall continue in force as of Date of Policy in favor of an insured only so long as the insured retains an estate or interest in the land, or holds an indebtedness secured by a purchase money mortgage given by a purchaser from the insured, or only so long as the insured shall have liability by reason of covenants of warranty made by the insured in any transfer or conveyance of the estate or interest. This policy shall not continue in force in favor of any purchaser from the insured of either (i) an estate or interest in the land, or (ii) an indebtedness secured by a purchase money mortgage given to the insured. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT. The insured shall notify the Company promptly in writing (i) in case of any litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come to an insured hereunder of any claim of title or interest which is adverse to the title to the estate or interest, as insured, and which might cause loss or damage for which the Company may be liable by virtue of this policy, or (iii) if title to the estate or interest, as insured, is rejected as unmarketable. If prompt notice shall not be given to the Company, then as to the insured all liability of the Company shall terminate with regard to the matter or matters for which prompt notice is required; provided, however, that failure to notify the Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. 4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE. (a) Upon written request by the insured and subject to the options contained in Section 6 of these Conditions and Stipulations, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title or interest as insured, but only as to those stated causes of action alleging a defect, lien or encumbrance or other matter insured against by this policy. The Company shall have the right to select counsel of its choice (subject to the right of the insured to object for reasonable cause) to represent the insured as to those stated causes of action and shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs or expenses incurred by the insured in the defense of those causes of action which allege matters not insured against by this policy. (b) The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest, as insured, or to prevent or reduce loss or damage to the insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this policy. If the Company shall exercise its rights under this paragraph, it shall do so diligently. (c) Whenever the Company shall have brought an action or interposed a defense as required or permitted by the provisions of this policy, the Company may pursue any litigation to final determination by a court of competent any adverse judgment or order. (d) In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding, the insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding, and all appeals therein, and permit the Company to use, at its option, the name of the insured for this purpose. Whenever requested by the Company, the insured, at the Company's expense, shall give the Company all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as insured. If the Company is prejudiced by the failure of the insured to furnish the required cooperation, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such cooperation. 5. PROOF OF LOSS OR DAMAGE. In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided the Company, a proof of loss or damage signed and sworn to by the insured claimant shall be furnished to the Company within 90 days after the insured claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the defect in, or lien or encumbrance on the title, or other matter insured against by this policy which constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the insured claimant to provide the required proof of loss or damage, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such proof of loss or damage. In addition, the insured claimant may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reasonable times and places as may be designated by any authorized representative of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Policy, which reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the insured claimant shall grant its permission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All information designated as confidential by the insured claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the insured claimant to submit for examination under oath, produce other reasonably requested information or grant permission to secure reasonably necessary information from third parties as required in this paragraph shall terminate any liability of the Company under this policy as to that claim. 6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY. In case of a claim under this policy, the Company shall have the following additional options: (a) To Pay or Tender Payment of the Amount of Insurance. To pay or tender payment of the amount of insurance under this policy together with any costs, attorneys' fees and expenses incurred by the insured claimant, which were authorized by the Company, up to the time of payment or tender of payment and which the Company is obligated to pay. Upon the exercise by the Company of this option, all liability and obligations to the insured under this policy, other than to make the payment required, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, and the policy shall be surrendered to the Company for cancellation. (b) To Pay or Otherwise Settle With Parties Other than the Insured or With the Insured Claimant. (i) to pay or otherwise settle with other parties for or in the name of an insured claimant any claim insured against under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay; or (ii) to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in paragraphs (b)(i) or (ii), the Company's obligations to the insured under this policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prosecute or continue any litigation. , CONDITIONS AND STIPULATIONS - continued 7. DETERMINATION AND EXTENT OF LIABILITY. This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described. (a) The liability of the Company under this policy shall not exceed the least of: (i) the Amount of Insurance stated in Schedule A; or, (ii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy. (b) The Company will pay only those costs, attorneys' fees and expenses incurred in accordance with Section 4 of these Conditions and Stipulations. 8. APPORTIONMENT. If the land described in Schedule A consists of two or more parcels which are not used as a single site, and a loss is established affecting one or more of the parcels but not all, the loss shall be computed and settled on a pro rata basis as if the amount of insurance under this policy was divided pro rata as to the value on Date of Policy of each separate parcel to the whole, exclusive of any improvements made subsequent to Date of Policy, unless a liability or value has otherwise been agreed upon as to each parcel by the Company and the insured at the time of the issuance of this policy and shown by an express statement or by an endorsement attached to this policy. 9. LIMITATION OF LIABILITY. (a) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right of access to or from the land, or cures the claim of unmarketability of title, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby. (b) In the event of any litigation, including litigation by the Company or with the Company's consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title as insured. (c) The Company shall not be liable for loss or damage to any insured for liability voluntarily assumed by the insured in settling any claim or suit without the prior written consent of the Company. 10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY. All payments under this policy, except payments made for costs, attorneys' fees and expenses, shall reduce the amount of the insurance pro tanto. 11. LIABILITY NONCUMULATIVE. It is expressly understood that the amount of insurance under this policy shall be reduced by any amount the Company may pay under any policy insuring a mortgage to which exception is taken in Schedule B or to which the insured has agreed, assumed, or taken subject, or which is hereafter executed by an insured and which is a charge or lien on the estate or interest described or referred to in Schedule A, and the amount so paid shall be deemed a payment under this policy to the insured owner. 12. PAYMENT OF LOSS. (a) No payment shall be made without producing this policy for endorsement of the payment unless the policy has been lost or destroyed, in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable within 30 days thereafter. 13. SUBROGATION UPON PAYMENT OR SETTLEMENT. (a) The Company's Right of Subrogation. Whenever the Company shall have settled and paid a claim under this policy, all right of subrogation shall vest in the Company unaffected by any act of the insured claimant. The Company shall be subrogated to and be entitled to all rights and remedies which the insured claimant would have had against any person or property in respect to the claim had this policy not been issued. If requested by the Company, the insured claimant shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect this right of subrogation. The insured claimant shall permit the Company to sue, compromise or settle in the name of the insured claimant and to use the name of the insured claimant in any transaction or litigation involving these rights or remedies. If a payment on account of a claim does not fully cover the loss of the insured claimant, the Company shall be subrogated to these rights and remedies in the proportion which the Company's payment bears to the whole amount of the loss. If loss should result from any act of the insured claimant, as stated above, that act shall not void this policy, but the Company, in that event, shall be required to pay only that part of any losses insured against by this policy which shall exceed the amount, if any, lost to the Company by reason of the impairment by the insured claimant of the Company's right of subrogation. (b) The Company's Rights Against Non-insured Obligors. The Company's right of subrogation against non-insured obligors shall exist and shall include, without limitation, the rights of the insured to indemnities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those instruments which provide for subrogation rights by reason of this policy. 14. ARBITRATION. Unless prohibited by applicable law, arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association may be demanded if agreed to by both the Company and the insured. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the insured arising out of or relating to this policy, any service of the Company in connection with its issuance or the breach of a policy provision or other obligation. Arbitration pursuant to this policy and under the Rules in effect on the date the demand for arbitration is made or, at the option of the insured, the Rules in effect at Date of Policy shall be binding upon the parties. The award may include attorneys' fees only if the laws of the state in which the land is located permit a court to award attorneys' fees to a prevailing party. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request. 15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT. (a) This policy together with all endorsements, if any, attached hereto by the Company is the entire policy and contract between the insured and the Company. In interpreting any provision of this policy, this policy shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, and which arises out of the status of the title to the estate or interest covered hereby or by any action asserting such claim, shall be restricted to this policy. (c) No amendment of or endorsement to this policy can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company. 16. SEVERABILITY. In the event any provision of the policy is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision and all other provisions shall remain in full force and effect. 17. NOTICES WHERE SENT. All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this policy and shall be addressed to: Consumer Affairs Department, P.O. 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Name of Insured INDIAN RIVER COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA 2. The estate or interest in the land described herein and which is covered by this policy is: Fee Simple 3. Title to the estate or interest in the land is vested in: INDIAN RIVER COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, By Virtue of Warranty Deed recorded in Official Records Book 1970, Page 1661, Public Records of Indian River County, Florida. 4. The Land referred to in this policy is described as follows: (See attached Exhibit A for legal description) Samuel A. Block, Esquire 3339 Cardinal Drive, Suite 200 Vero Beach, FL 32963 This policy is invalid unless a cover sheet and Schedule B are attached. Exhibit A Policy Number: A02-1178449 South 294.3 feet of the Northeast 1/4 of the Northeast 1/4, less the parcel deeded to Parent in Official Records Book 194, page 569, of the Public Records of Indian River County, Florida, and less the South 5 acres of the Northeast 1/4 of the Northeast 1/4; AND the South 294.3 feet of the Northwest 1/4 of the Northeast 1/4, lying East of Lateral H Canal; AND the Southwest 1/4 of the Northeast 1/4, lying East of Lateral H Canal, less Lot described in Official Records Book 165, page 158, and less Lot described in Official Records Book 178, page 361 and less Lot conveyed in Official Records Book 610, page 2121, all of the Public Records of Indian River County, Florida. Said land lying and being in Section 22, Township 32 South, Range 39 East, Indian River County, Florida. Schedule B Policy Number: A02-1178449 This policy does not insure against loss or damage (and the Company will not pay costs, attomeys' fees or expenses) which arise by reason of: 1. Taxes and assessments for the year 2006 and subsequent years. 2. Easements or claims of easements not shown by the Public Records, boundary line disputes, overlaps, encroachments, and any matters not of record which would be disclosed by an accurate survey and inspection of the premises. 3. Easements or claims of easements not shown by the public records. 4. Notwithstanding the insuring provisions, this policy does not insure any right of access to and from the land. Reservations of road rights of way in favor of the State of Florida, as set forth in the deed from the Trustees of the Internal Improvement Fund, recorded in Deed Book 82, Page 386. 6. Phosphate, Minerals, Metals and Petroleum Reservations and rights in favor of the State of Florida, as set forth in the deed from the Trustees of the Internal Improvement Fund, recorded in Deed Book 82, Page 386. As to said reservation, the right of entry has been released pursuant to Florida Statute 270.11. NOTE: All recording references in this commitment/policy shall refer to the Public Records of Indian River County, Florida, unless otherwise noted. NOTE: In accordance with Florida Statutes section 627.4131, please be advised that the insured hereunder may present inquiries, obtain information about coverage, or receive assistance in resolving complaints, by contacting the Commonwealth Land Title Insurance Company Regional Office, 201 South Orange Avenue, Suite 1350, Orlando, FL 32801 Telephone 407-481-8181.