HomeMy WebLinkAbout2015-042Original
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AGREEMENT TO PURCHASE, SELL, AND LEASE REAL ESTATE ya,
BETWEEN INDIAN RIVER COUNTY
AND
STEPHEN SAVAGE AND VICKY F. SAVAGE
THIS AGREEMENT TO PURCHASE AND SELL REAL ESTATE ("Agreement")
is made and entered into as of the day of March, 2015, by and between Indian
River County, a political subdivision of the State of Florida ("the County"), and Stephen
and Vicky F. Savage, husband and wife, who agree as follows:
WHEREAS, Stephen and Vicky F. Savage owns property located at 2606 52nd
Avenue, Vero Beach, Florida. A legal description of the property is attached to this
agreement as Exhibit "A" and incorporated by reference herein; and
WHEREAS, the County is purchasing right-of-way for the future expansion of 26th
Street; and
WHEREAS, in order to proceed with the road expansion plans, the County needs to
purchase property to be used as right-of-way from landowners adjacent to 26th Street; and
WHEREAS, the County has contacted Stephen and Vicky F. Savage and has
offered to purchase the parcel as described on Exhibit "A" (the Property), and
WHEREAS, the County is currently purchasing property/right-of-way from willing
sellers; and
WHEREAS, Stephen and Vicky F. Savage and the County, by entering into this
agreement for sale and purchase of the Property;
NOW, THEREFORE, in consideration of the mutual terms, conditions, promises,
covenants and premises hereinafter, the COUNTY and SELLER agree as follows:
1. Recitals. The above recitals are affirmed as being true and correct and are
incorporated herein
2. Agreement to Purchase and Sell. The Seller hereby agrees to sell to the County,
and the County hereby agrees to purchase from Seller, upon the terms and conditions set
forth in this Agreement that certain parcel of real property located at 2606 52nd Avenue,
Vero Beach, Florida and more specifically described in the legal description attached as
Exhibit "A", fee simple, all improvements thereon, together with all easements, rights and
uses now or hereafter belonging thereto (collectively, the "Property").
2.1 Purchase Price, Effective Date. The purchase price ("Purchase Price") for the
property shall be $195,000 (One Hundred Ninety — Five Thousand Dollars). The Purchase
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Price shall be paid on the Closing Date. The Effective Date of this Agreement shall be the
date upon which the County shall have approved the execution of this Agreement, either by
approval by the Indian River County Board of County Commissioners at a formal meeting
of such Board or by the County Administrator pursuant to his delegated authority.
3. Title. Seller shall convey marketable title to the Property by warranty deed free of
claims, liens, easements and encumbrances of record or known to Seller; but subject to
property taxes for the year of Closing and covenants, restrictions and public utility
easements of record provided (a) there exists at Closing no violation of any of the
foregoing; and (b) none of the foregoing prevents County's intended use and development
of the Property ("Permitted Exceptions").
3.1 County may order an Ownership and Encumbrance Report or Title Insurance
Commitment with respect to the Property. County shall within fifteen (15) days following
the Effective Date of this Agreement deliver written notice to Seller of title defects. Title
shall be deemed acceptable to County if (a) County fails to deliver notice of defects within
the time specified, or (b) County delivers notice and Seller cures the defects within thirty
(30) days from receipt of notice from County of title defects ("Curative Period"). Seller shall
use best efforts to cure the defects within the Curative Period and if the title defects are not
cured within the Curative Period, County shall have thirty (30) days from the end of the
Curative Period to elect, by written notice to Seller, to: (i) to terminate this Agreement,
whereupon shall be of no further force and effect, or (ii) extend the Curative Period for up
to an additional 90 days; or (iii) accept title subject to existing defects and proceed to
closing.
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4. Representations of the Seller.
4.1 Seller is indefeasibly seized of marketable, fee simple title to the Property, and is the
sole owner of and has good right, title, and authority to convey and transfer the Property
which is the subject matter of this Agreement, free and clear of all liens and
encumbrances.
4.2 From and after the Effective Date of this Agreement, Seller shall take no action
which would impair or otherwise affect title to any portion of the Property, and shall record
no documents in the Public Records which would affect title to the Property, without the
prior written consent of the County.
4.3.1 There are no existing or pending special assessments affecting the Property, which
are or may be assessed by any governmental authority, water or sewer authority, school
district, drainage district or any other special taxing district.
5. Default.
5.1 In the event the County shall fail to perform any of its obligations hereunder, the
Seller shall, at its sole option, be entitled to: (i) terminate this Agreement by written notice
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delivered to the County at or prior to the Closing Date and thereupon neither the Seller nor
any other person or party shall have any claim for specific performance, damages, or
otherwise against the County; or (ii) waive the County's default and proceed to Closing.
5.2 In the event the Seller shall fail to perform any of its obligations hereunder, the
County shall, at its sole option, be entitled to: (i) terminate this Agreement by written notice
delivered to the Seller at or prior to the Closing Date and thereupon neither the County nor
any other person or party shall have any claim for specific performance, damages or
otherwise against the Seller; or (ii) obtain specific performance of the terms and conditions
hereof; or (iii) waive the Seller's default and proceed to Closing:
6. Closing.
6.1 The closing of the transaction contemplated herein ("Closing" and "Closing Date")
shall take place within 45 days following the execution of the contract by the Chairman of
the Board of County Commissioners. The parties agree that the Closing shall be as
follows:
(a) The Seller shall execute and deliver to the County a warranty deed conveying
marketable title to the Property, free and clear of all liens and encumbrances and in the
condition required by paragraph 3.
(b) The Seller shall have removed all of its personal property and equipment from the
Property and Seller shall deliver possession of the Property to County vacant and in the
same or better condition that existed at the Effective Date hereof.
(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 Act of
1980.
(e) The Seller and the County shall each deliver to the other such other documents or
instruments as may reasonably be required to close this transaction.
6 Taxes. All taxes and special assessments which are a lien upon the property on or
prior to the Closing Date (except current taxes which are not yet due and payable) shall be
paid by the Seller.
7. Closing Costs; Expenses. County shall be responsible for preparation of all Closing
documents.
7.1 County shall pay the following expenses at Closing:
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7.1.1 The cost of recording the warranty deed and any release or satisfaction obtained by
Seller pursuant to this Agreement.
7.1.2 Documentary Stamps required to be affixed to the warranty deed.
7.1.3 All costs and premiums for the owner's marketability title insurance commitment and
policy, if any.
7.2 Seller shall pay the following expenses at or prior to Closing:
7.2.1 All costs necessary to cure title defect(s) or encumbrances, other than the
Permitted Exceptions, and to satisfy or release of record all existing mortgages, liens or
encumbrances upon the Property.
8. Miscellaneous. Purchase to include refrigerator, range -oven, built-in microwave and
dishwasher, as shown in appraisal dated February 12, 2015. The County will not be
responsible in any claim or controversy arising out of or relating to any realtor fees from
previous listing agreements.
8.1 Controlling Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Florida. Venue shall be in Indian River County for all state
court matters, and in the Southern District of Florida for all federal court matters.
8.2 Condemnation. In the event that all or any part of the Property shall be acquired or
condemned for any public or quasi -public use or purpose, or if any acquisition or
condemnation proceedings shall be threatened or begun prior to the Closing of this
transaction, County shall have the option to either terminate this Agreement, and the
obligations of all parties hereunder shall cease, or to proceed, subject to all other terms,
covenants, conditions, representations and warranties of this Agreement, to the Closing of
the transaction contemplated hereby and receive title to the Property; receiving, however,
any and all damages, awards or other compensation arising from or attributable to such
acquisition or condemnation proceedings. County shall have the right to participate in any
such proceedings.
8.3 Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to this transaction and supersedes all prior agreements, written or
oral, between the Seller and the County relating to the subject matter hereof. Any
modification or amendment to this Agreement shall be effective only if in writing and
executed by each of the parties.
8.4 Assignment and Binding Effect. Neither County nor Seller may assign its rights and
obligations under this Agreement without the prior written consent of the other party. The
terms hereof shall be binding upon and shall inure to the benefit of the parties hereto and
their successors and assigns.
8.5 Notices. Any notice shall be deemed duly served if personally served or if mailed
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by certified mail, return receipt requested, or if sent via "overnight" courier service or
facsimile transmission, as follows:
If to Seller:
If to County:
Stephen and Vicky F. Savage
2606 52nd Avenue
Vero Beach, FL 32966
Indian River County
1801 27th Street
Vero Beach, FL. 32960
Attn: Land Acquisition/Louise Gates
Either party may change the information above by giving written notice of such change as
provided in this paragraph.
8.6 Survival and Benefit. Except as otherwise expressly provided herein, each
agreement, representation or warranty made in this Agreement by or on behalf of either
party, or in any instruments delivered pursuant hereto or in connection herewith, shall
survive the Closing Date and the consummation of the transaction provided for herein.
The covenants, agreements and undertakings of each of the parties hereto are made
solely for the benefit of, and may be relied on only by the other party hereto, its successors
and assigns, and are not made for the benefit of, nor may they be relied upon, by any other
person whatsoever.
8.7 Attorney's Fees and Costs. In any claim or controversy arising out of or relating to
this Agreement, each party shall bear its own attorney's fees, costs, and expenses.
8.8. Counterparts. This Agreement may be executed in two or more counterparts, each
one of which shall constitute an original.
8.9. County Approval Required: This Agreement is subject to approval by the Indian
River County as set forth in paragraph 2.
8.10 Beneficial Interest Disclosure: In the event Seller is a partnership, limited
partnership, corporation, trust, or any form of representative capacity whatsoever for
others, Seller shall provide a fully completed, executed, and sworn beneficial interest
disclosure statement in the form attached to this Agreement as an exhibit that complies
with all of the provisions of Florida Statutes Section 286.23 prior to approval of this
Agreement by the County. However, pursuant to Florida Statutes Section 286.23 (3) (a),
the beneficial interest in any entity registered with the Federal Securities and Exchange
Commission, or registered pursuant to Chapter 517, Florida Statutes, whose interest is for
sale to the general public, is exempt from disclosure; and where the Seller is a non-public
entity, that Seller is not required to disclose persons or entities holding less than five (5%)
percent of the beneficial interest in Seller.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first set forth above.
INDIAN RIVER COUNTY, FLORIDA
BOARD OF COUNTY COMMISSIONERS
Wesley S. Davis, Chairman
(3ois)
Approved by BCC 2015
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ATTEST:
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Jeffrey R. Smit +'t and "(mptroller
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Steph n Savage
Date
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Vicky'F. Savage
By:
Approved:
eputy Cler
oseph :. Baird, County Administrator
4?; County Attorney
I Sufficiency:
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EXHIBIT "A"
Lot 1, Block B, DODGERTOWN SUBDIVISION, according to the Plat thereof,
recorded in Plat Book 3, Page(s) 49, of the Public Records of Indian River County,
Florida.
Parcel ID Number: 32-39-33-00003-0002-00001.0
Commonly known as: 2606 52nd Avenue
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This instrument was prepared incident to
the issuance of a title insurance contract,
and is to be returned to
Jason A. Beal
Atlantic Coastal Land Title Company, LLC
855 21st St., Suite C
Vero Beach, Florida 32960
File Number: 45081465
Parcel ID Number: 32-39-33-00003-0002-00001.0
3120150018416
RECORDED IN THE PUBLIC RECORDS OF
JEFFREY R SMITH, CLERK OF COURT
INDIAN RIVER COUNTY FL
BK. 2833 PG. 1921 Page 1 of 2 3/26/2015 1 54 PM
D DOCTAX PD $0 70
GENERAL WARRANTY DEED
This deed, made as of this 25th day of March , 2015, by Stephen Savage and Vicky F. Savage,
husband and wife (as Grantor); and Indian River County, a political subdivision of the State of
Florida, whose post office address is: 1801 27th St, Vero Beach, FL 32960 (as Grantee);
(Wherever used herein, the terms 'grantor" and "grantee" shall include singular and plural, heirs, legal representatives, and
assigns of individuals, and the successors and assigns of corporations, partnerships or other entities; wherever the context
so admits or requires.)
WITNESSETH:
That the grantor, for and in consideration of the sum of $10.00 in hand paid by grantee, the receipt whereof is hereby
acknowledged, does hereby grant, bargain, sell, alien, remise, release, convey and confirm unto the grantee forever, all
the right, title, interest, claim and demand which the said grantor has in and to the following described parcel of land,
to wit:
Lot 1, Block B, DODGERTOWN SUBDIVISION, according to the Plat thereof,
as recorded in Plat Book 3, at Page 49, of the Public Records of Indian River
County, Florida.
TOGETHER with all the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining.
TO HAVE AND TO HOLD the same in fee simple forever.
AND grantor hereby covenants with grantee that grantor is lawfully seized of said land in fee simple; that grantor has
good right and lawful authority to sell and convey said land; that grantor hereby fully warrants the title to said land and
will defend the same against the lawful claims of all persons whomsoever; and that said land is free of all encumbrances,
except taxes for the year in which this deed is given; and restrictions, reservations, limitations, covenants, conditions and
easements of record, if any; insofar as same are valid and enforceable (however, this clause shall not be construed to
reimpose same).
Pursuant to Rule 12B-4.013(4), F.A.C., this deed is being given to a governmental entity under threat
of condemnation or as a part of an out-of-court settlement of condemnation proceedings and is not
subject to tax.
ATLANTIC COASTAL LAND TITLE COMPANY, LLC
A Full Service, Florida Title Insurance Agency
e.
IN WITNESS WHEREOF, the said grantor has signed and sealed these presents the day and year first above written.
Signed, sealed and delivered in the presence of
I'et(. s %eG,t
State of FLORIDA
County of INDIAN RIVER
Stephen Savage
2606 52nd Ave
Vero Beach, FL 32966
Vicky F: Savage
2606 52nd Ave
Vero Beach, FL 32966
The foregoing instrument was acknowledged before me the date hereinafter given, by Stephen
Savage and Vicky F. Savage; who was/were either personally known to me; or produced
identification of sufficient character so as to identify said individual(s) with reasonable certainty; and
who did/did not take an oath.
Witness my hand and official seal in the County and State last aforesaid, this 25th day of March
, 2015.
Tyof identification provided (Check One):
Driver's License
[ ] Passport
[ ] Government (State or Federal) ID Card
[ ] Resident Alien ID Card
[ ] Other
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JASON A. BEAL
• _ Notary Public - State of Florida
�� CCo mm Expires Oct 11
Commission # E , 2016
Bonded Through National Notary Assn.
Notary Public
ATLANTIC COASTAL LAND TITLE COMPANY, LLC
A Full Service, Florida Title Insurance Agency
wner's Title Insurance-Polic
Note: This policy consists of insert pages labeled "Schedule A" and "Schedule B" and is of no force or effect unless all
schedules are included, along with any Rider pages incorporated by reference in the insert pages.
SCHEDULE A
Agent's File No: 45081465
Policy No: OXFL-08344742
Effective Date: March 26, 2015 at 1:54 PM
Amount of
Insurance:
$ 195,000.00
Address: 2606 52nd Ave., Vero Beach, FL 32966
1. The Insured hereunder, in whom title to the fee simple estate is vested at the date hereof, is:
Indian River County, a political subdivision of the State of
Florida
2. In addition to those referred to in Schedule B hereof, the land herein described is encumbered
by the following mortgage(s), and assignments thereof (if any):
None!
3. The land referred to in this policy is situated in the County of Indian River, State of Florida,
and is described as follows:
Lot 1, Block B, DODGERTOWN SUBDIVISION, according to the Plat thereof,
as recorded in Plat Book 3, at Page 49, of the Public Records of Indian River
County, Florida.
Poll - Policy Insert Page 1
1'A�TIONAL ',TITLE .INSURA.
Owner;'s;Title Insurance.Polic
Countersigned:
ATLANTIC COASTAL LAND TITLE COMPANY, LLC
855 21" St., Suite C, Vero Beach, Florida 32960
Telephone: 772-569-4364
Po11 - Policy Insert Page 2
l
Agent's File No: 45081465
Policy No• OXFL-08344742
SCHEDULE B
This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses)
which arise by reason of
GENERAL EXCEPTIONS:
1. (a) Any encroachment, encumbrance, violation, variation, or adverse circumstances affecting the Title that
would be disclosed by an accurate and complete land survey of the Land. The term "encroachment" includes
encroachments of existing improvements located on the Land onto adjoining land, and encroachments on the Land
of the existing improvements located on adjoining land.
(b) Easements, or claims of easements, not shown by the public records.
(c) If the land described herein abuts a river, lake, stream or other waterway --- the nature and extent of riparian
and/or littoral rights, title to any portion of the land which is submerged, title to any portion below the mean high water
mark of a tidal waterway, and title to any portion which consists of "filled-in lands"; and/or any claim that any portion
of said lands are sovereign lands of the State of Florida.
(d) Taxes or special assessments which are not shown as existing liens by the public records.
SPECIAL EXCEPTIONS:
2. The mortgage referred to in item 2 of Schedule A hereof, if any.
3. General and special real property taxes and assessments for tax year 2015 and subsequent years.
4. Restrictions, reservations and limitations, according to that certain instrument recorded
in 0. R. Book 141, at Page 229.
5. Easement(s) for utility and drainage purposes over a strip of land 5 feet wide along the rear
lot line(s) of the land to be insured hereby, as shown or reserved on Plat of Subdivision
recorded in Plat Book 3, at Page 49.
In accordance with Title 42 United States Code, Section 3604, any covenants, conditions or restrictions referred to
herein, which indicate any preference, limitation or discrimination based on race, color, religion, sex, handicap, familial
status or national origin, are hereby deleted.
Poll - Policy Insert Page 3
Note 1: This policy does not insure against loss or damage arising as the result of unpaid charges for public utilities
furnished by any county, municipality, or public service corporation, which may be or may become a lien upon the land
insured hereby under any provision of the Florida Statutes including Section 159.17; and/or any county, municipal, or
special taxing district assessment, including those levied under the provisions of Chapter 190, Florida Statutes.
Note 2: All references herein to recorded instruments, refer to recordations contained within the Public Records of the
county in which the land is located. Reference to instruments among the Public Records refer to the first recorded page
of the instrument, but include by reference all pages recorded under the Clerk's File Number assigned to the instrument
referred to.
Poll - Policy Insert Page 4
OWNER'S POLICY OF TITLE INSURANCE
(with Florida Modifications) ,
Policy Number OXFL-08344742 File Number: 45081465
Issued by Old Republic National Title Insurance Company
Any notice of claim and any other notice or statement in writing required to be given to the
Company under this Policy must be given to the Company at the address shown in Section 18
of the Conditions.
COVERED RISKS
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN
SCHEDULE B, AND THE CONDITIONS, OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, a Florida corporation (the "Company") insures, as of
Date of Policy, against loss or damage, not exceeding the Amount of Insurance, sustained or incurred by the Insured by reason of.
1 Title being vested other than as stated in Schedule A.
2. Any defect in or lien or encumbrance on the Title. This Covered Risk includes but is not limited to insurance against loss from
(a) A defect in the Title caused by
(1) forgery, fraud, undue influence, duress, incompetency, incapacity, or impersonation,
(ii) failure of any person or Entity to have authorized a transfer or conveyance;
(iii) a document affecting Title not properly created, executed, witnessed, sealed, acknowledged, notarized, or delivered;
(iv) failure to perform those acts necessary to create a document by electronic means authorized by law;
(v) a document executed under a falsified, expired, or otherwise invalid power of attorney;
(vi) a document not properly filed, recorded, or indexed in the Public Records including failure to perform those acts by electronic
means authorized by law; or
(vii) a defective judicial or administrative proceeding.
(b) The lien of real estate taxes or assessments imposed on the Title by a governmental authority due or payable, but unpaid.
(c) Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate
and complete land survey of the Land. The term "encroachment" includes encroachments of existing improvements located on the Land
onto adjoining land, and encroachments onto the Land of existing improvements located on adjoining land.
3. Unmarketable Title
4 No right of access to and from the Land.
5. The violation or enforcement of any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting,
regulating, prohibiting, or relating to
(a) the occupancy, use, or enjoyment of the Land;
(b) the character, dimensions, or location of any improvement erected on the Land;
(c) the subdivision of land; or
(d) environmental protection
if a notice, describing any part of the Land, is recorded in the Public Records setting forth the violation or intention to enforce, but only to
the extent of the violation or enforcement referred to in that notice.
In Witness Whereof, OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, has caused this policy to be signed and sealed as of Date of Policy
shown in Schedule A, the policy to become valid when countersigned by an authorized signatory of the Company
Policy Issuer:
Countersigned: ATLANTIC COASTAL LAND TITLE COMPANY, LLC
855 21ST STREET, STE C
CENTERSTATE BANK BLDG, 2ND FLR
VERO BEACH, FL 32960
PHONE: 772-569-4364
Authorized Officer or Licensed Agent
ORT Form 4309 FL
ALTA Owners Policy of Title Insurance 6-17-061with Florida Modifications)
OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY
A Stock Company
400 Second Avenue South, Minneapolis, Minnesota 55401
(612) 371-1111
President
Secretary
6. An enforcement action based on the exercise of a governmental police power not covered by Covered Risk 5 if a notice of the enforcement
action, describing any part of the Land, is recorded in the Public Records, but only to the extent of the enforcement referred to in that notice.
7 The exercise of the rights of eminent domain if a notice of the exercise, describing any part of the Land, is recorded in the Public Records.
8. Any taking by a governmental body that has occurred and is binding on the rights of a purchaser for value without Knowledge.
9. Title being vested other than as stated in Schedule A or being defective
(a) as a result of the avoidance in whole or in part, or from a court order providing an alternative remedy, of a transfer of all or any part of
the title to or any interest in the Land occurring prior to the transaction vesting Title as shown in Schedule A because that prior transfer
constituted a fraudulent or preferential transfer under federal bankruptcy, state insolvency, or similar creditors' rights laws; or
(b) because the instrument of transfer vesting Title as shown in Schedule A constitutes a preferential transfer under federal bankruptcy,
state insolvency, or similar creditors' rights laws by reason of the failure of its recording in the Public Records
(i) to be timely, or
(ii) to impart notice of its existence to a purchaser for value or to a judgment or lien creditor
10. Any defect in or lien or encumbrance on the Title or other matter included in Covered Risks 1 through 9 that has been created or attached or has
been filed or recorded in the Public Records subsequent to Date of Policy and prior to the recording of the deed or other instrument of transfer in the
Public Records that vests Title as shown in Schedule A.
The Company will also pay the costs, attorneys' fees, and expenses incurred in defense of any matter insured against by this Policy, but only to the
extent provided in the Conditions.
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 that arise by reason of
1. (a) Any law, ordinance, permit, or governmental regulation
(including those relating to building and zoning) restricting,
regulating, prohibiting, or relating to
(i) the occupancy, use, or enjoyment of the Land;
(ii) the character, dimensions, or location of any
improvement erected on the Land;
(iii) the subdivision of land; or
(iv) environmental protection;
or the effect of any violation of these laws,
ordinances, or governmental regulations. This
Exclusion 1(a) does not modify or limit the
coverage provided under Covered Risk 5.
(b) Any governmental police power This Exclusion 1(b) does
not modify or limit the coverage provided under Covered Risk 6.
2. Rights of eminent domain. This Exclusion does not modify or limit
the coverage provided under Covered Risk 7 or 8.
3. Defects, liens, encumbrances, adverse claims, or other matters
(a) created, suffered, assumed, or agreed to by the Insured
Claimant;
ORT Form 4309 FL
ALTA Owners Policy of Title Insurance 6-17-06 (with Florida Modifications(
(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 that would not have been
sustained if the Insured Claimant had paid value for the Title.
4. Any claim, by reason of the operation of federal bankruptcy, state
insolvency, or similar creditors' rights laws, that the transaction
vesting the Title as shown in Schedule A, is
(a) a fraudulent conveyance or fraudulent transfer; or
(b) a preferential transfer for any reason not stated in Covered
Risk 9 of this policy
5. Any lien on the Title for real estate taxes or assessments imposed
by governmental authority and created or attaching between Date
of Policy and the date of recording of the deed or other instrument
of transfer in the Public Records that vests Title as shown in
Schedule A.
Page 2
CONDITIONS
1 DEFINITION OF TERMS
The following terms when used in this policy mean.
(a) "Amount of Insurance" The amount stated in Schedule A, as may
be increased or decreased by endorsement to this policy, Increased
by Section 8(b), or decreased by Sections 10 and 11 of these Conditions.
(b) "Date of Policy" The date designated as "Date of Policy" in
Schedule A.
(c) "Entity" A corporation, partnership, trust, limited liability
company, or other similar legal entity
(d) "Insured° The Insured named in Schedule A.
(i) The term "Insured° also includes
(A) successors to the Title of the Insured by operation of law as
distinguished from purchase, including heirs, devisees, survivors,
personal representatives, or next of kin,
(B) successors to an Insured by dissolution, merger, consolidation,
distribution, or reorganization,
(C) successors to an Insured by its conversion to another kind of
Entity;
(D) a grantee of an Insured under a deed delivered without
payment of actual valuable consideration conveying the Title
(1) if the stock, shares, memberships, or other equity
interests of the grantee are wholly-owned by the
named Insured,
(2) if the grantee wholly owns the named Insured,
(3) if the grantee is wholly-owned by an affiliated
Entity of the named Insured, provided the affiliated
Entity and the named Insured are both wholly-owned
by the same person or Entity, or
(4) if the grantee is a trustee or beneficiary of a trust
created by a written instrument established by the
Insured named in Schedule A for estate planning
purposes.
(ii) With regard to (A), (B), (C), and (D) reserving, however, all rights
and defenses as to any successor that the Company would have had
against any predecessor Insured.
(e) Insured Claimant': An Insured claiming loss or damage
(f) "Knowledge" or "Known° Actual knowledge, not constructive
knowledge or notice that may be imputed to an Insured by reason of
the Public Records or any other records that impart constructive
notice of matters affecting the Title.
(g) °Land" The land described in Schedule A, and affixed improvements
that by law constitute real property The term °Land" does not
include any property beyond the lines of the area described in
Schedule A, nor any right, title, interest, estate, or easement in
abutting streets, roads, avenues, alleys, lanes, ways, or waterways,
but this does not modify or limit the extent that a right of access to
and from the Land is insured by this policy
(h) °Mortgage° Mortgage, deed of trust, trust deed, or other security
instrument, including one evidenced by electronic means authorized
by law
(i) "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 Covered Risk 5(d), "Public Records"
shall also include environmental protection liens filed in the records
of the clerk of the United States District Court for the district where
the Land is located.
(j) "Title" The estate or interest described in Schedule A.
(k) °Unmarketable Title" Title affected by an alleged or apparent
matter that would permit a prospective purchaser or lessee of the
Title or lender on the Title to be released from the obligation to
ORT Form 4309 FL
ALTA Owners Policy of Title Insurance 6-17-06 (with Florida Modifications)
purchase, lease, or lend if there is a contractual condition requiring
the delivery of marketable title.
2. CONTINUATION OF INSURANCE
The coverage of this policy shall continue in force as of Date of
Policy in favor of an Insured, but only so long as the Insured retains
an estate or interest in the Land, or holds an obligation 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
warranties in any transfer or conveyance of the Title. 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
obligation 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 5(a) of these Conditions, (ii)
in case Knowledge shall come to an Insured hereunder of any claim
of title or interest that is adverse to the Title, as insured, and that
might cause loss or damage for which the Company may be liable
by virtue of this policy, or (iii) if the Title, as insured, is rejected as
Unmarketable Title. If the Company is prejudiced by the failure of
the Insured Claimant to provide prompt notice, the Company's
liability to the Insured Claimant under the policy shall be reduced
to the extent of the prejudice
4 PROOF OF LOSS
In the event the Company is unable to determine the amount of
loss or damage, the Company may, at its option, require as a condition
of payment that the Insured Claimant furnish a signed proof of loss.
The proof of loss must describe the defect, lien, encumbrance, or
other matter insured against by this policy that 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.
5 DEFENSE AND PROSECUTION OF ACTIONS
(a) Upon written request by the Insured, and subject to the options
contained in Section 7 of these Conditions, 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 covered by this policy adverse to the Insured. This obligation
is limited to only those stated causes of action alleging matters
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. It 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 that allege matters not insured against by this policy
(b) The Company shall have the right, in addition to the options
contained in Section 7 of these Conditions, at its own cost, to
institute and prosecute any action or proceeding or to do any
other act that in its opinion may be necessary or desirable to
establish the Title, 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 to the Insured. The exercise of these rights shall not be an
admission of liability or waiver of any provision of this policy
If the Company exercises its rights under this subsection, it must
do so diligently.
(c) Whenever the Company brings an action or asserts a defense
as required or permitted by this policy, the Company may pursue
the litigation to a final determination by a court of competent
jurisdiction, and it expressly reserves the right, in its sole
discretion, to appeal any adverse judgment or order
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CONDITIONS (con't)
6. DUTY OF INSURED CLAIMANT TO COOPERATE
(a) In all cases where this policy permits or requires the Company
to prosecute or provide for the defense of any action or proceeding
and any appeals, the Insured shall secure to the Company the right
to so prosecute or provide defense in the action or proceeding,
including the right 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 securing evidence, obtaining witnesses, prosecuting or
defending the action or proceeding, or effecting settlement, and
(ii) in any other lawful act that in the opinion of the Company may
be necessary or desirable to establish the Title or any other matter
as insured. If the Company is prejudiced by the failure of the
Insured to fumish 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.
(b) The Company may reasonably require the Insured Claimant to
submit to examination under oath by any authorized representative
of the Company and to produce for examination, inspection, and
copying, at such reasonable times and places as may be designated
by the authorized representative of the Company, all records, in
whatever medium maintained, including books, ledgers, checks,
memoranda, correspondence, reports, e-mails, disks, tapes, and
videos whether bearing a date before or after Date of Policy, that
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 of these records
in the custody or control of a third party that 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 any reasonably requested information, or
grant permission to secure reasonably necessary information from
third parties as required in this subsection, unless prohibited by
law or governmental regulation, shall terminate any liability of the
Company under this policy as to that claim.
7. 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 that were authorized by the
Company up to the time of payment or tender of payment and that
the Company is obligated to pay.
Upon the exercise by the Company of this option, all liability and
obligations of the Company to the Insured under this policy, other
than to make the payment required in this subsection, shall terminate,
including any liability or obligation to defend, prosecute, or contin-
ue any litigation.
(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
ORT Form 4309 FL
ALTA Owners Policy of Title Insurance 6-17-06 (with Florida Modifications)
policy. In addition, the Company will pay any costs, attorneys' fees,
and expenses incurred by the Insured Claimant that were authorized
by the Company up to the time of payment and that 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 that
were authorized by the Company up to the time of payment and that
the Company is obligated to pay
Upon the exercise by the Company of either of the options provided
for in subsections (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.
8. 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
(a) The extent of liability of the Company for loss or damage under
this policy shall not exceed the lesser of
(i) the Amount of Insurance; or
(ii) the difference between the value of the Title as insured and the
value of the Title subject to the risk insured against by this policy
(b) If the Company pursues its rights under Section 5 of these
Conditions and is unsuccessful in establishing the Title, as insured,
(i) the Amount of Insurance shall be increased by 10%, and
(ii) the Insured Claimant shall have the right to have the loss or
damage determined either as of the date the claim was made by
the Insured Claimant or as of the date it is settled and paid.
(c) In addition to the extent of liability under (a) and (b), the Company
will also pay those costs, attorneys' fees, and expenses incurred in
accordance with Sections 5 and 7 of these Conditions.
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 Unmarketable Title, all as
insured, in a reasonably diligent manner by any method, including
litigation and the completion of any appeals, it shall have fully
performed its obligations with respect to that matter and shall not
be liable for any loss or damage caused to the Insured
(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,
adverse to the Title, as insured.
(c) The Company shall not be liable for loss or damage to the
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 Insurance
by the amount of the payment.
Page 4
CONDITIONS (con't)
11 LIABILITY NONCUMULATIVE
The Amount of Insurance shall be reduced by any amount the Company
pays 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 executed by an Insured after Date of Policy and
which is a charge or lien on the Title, and the amount so paid shall be
deemed a payment to the Insured under this policy
12. PAYMENT OF LOSS
When liability and the extent of loss or damage have been definitely
fixed in accordance with these Conditions, the payment shall be made
within 30 days.
13. RIGHTS OF RECOVERY UPON PAYMENT OR SETTLEMENT
(a) Whenever the Company shall have settled and paid a claim
under this policy, it shall be subrogated and entitled to the rights of
the Insured Claimant in the Title and all other rights and remedies
in respect to the claim that the Insured Claimant has against any
person or property, to the extent of the amount of any loss, costs,
attorneys' fees, and expenses paid by the Company. If requested
by the Company, the Insured Claimant shall execute documents to
evidence the transfer to the Company of these rights and remedies.
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 and remedies.
If a payment on account of a claim does not fully cover the loss of
the Insured Claimant, the Company shall defer the exercise of its
right to recover until after the Insured Claimant shall have recovered
its loss.
(b) The Company's right of subrogation includes the rights of the
Insured to indemnities, guaranties, other policies of insurance, or
bonds, notwithstanding any terms or conditions contained in those
instruments that address subrogation rights.
14 ARBITRATION
Unless prohibited by applicable law, arbitration pursuant tothe Title
Insurance Arbitration Rules of the American Arbitration Association
may be demanded if agreed to by both the Company and the Insured at
the time of a controversy or claim. 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, and 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.
ORT Form 4309 FL
ALTA Owners Policy of Title Insurance 6-17-06 (with Florida Modifications)
15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE
CONTRACT
(a) This policy together with all endorsements, if any, attached to it
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 that arises out of the status of the
Title or by any action asserting such claim whether or not based on
negligence shall be restricted to this policy
(c) Any amendment of or endorsement to this policy must be in
writing and authenticated by an authorized person, or expressly
incorporated by Schedule A of this policy
(d) Each endorsement to this policy issued at any time is made a
part of this policy and is subject to all of its terms and provisions.
Except as the endorsement expressly states, it does not (i) modify
any of the terms and provisions of the policy, (ii) modify any prior
endorsement, (iii) extend the Date of Policy, or (iv) increase the
Amount of Insurance.
16. SEVERABILITY
In the event any provision of this policy, in whole or in part, is held
invalid or unenforceable under applicable law, the policy shall be
deemed not to include that provision or such part held to be invalid, but
all other provisions shall remain in full force and effect.
17 CHOICE OF LAW; FORUM
(a) Choice of Law• The Insured acknowledges the Company has
underwritten the risks covered by this policy and determined the
premium charged therefor in reliance upon the law affecting interests
in real property and applicable to the interpretation, rights, remedies,
or enforcement of policies of title insurance of the jurisdiction
where the Land is located.
Therefore, the court or an arbitrator shall apply the law of the
jurisdiction where the Land is located to determine the validity of
claims against the Title that are adverse to the Insured and to
interpret and enforce the terms of this policy In neither case shall
the court or arbitrator apply its conflicts of law principles to deter-
mine the applicable law
(b) Choice of Forum: Any litigation or other proceeding brought by
the Insured against the Company must be filed only in a state or
federal court within the United States of America or its territories
having appropriate jurisdiction.
18. NOTICES, WHERE SENT
Any notice of claim and any other notice or statement in writing
required to be given to the Company under this policy must be given to
the Company at 400 Second Avenue South, Minneapolis,
Minnesota 55401-2499, Phone: 612-371-1111.
Page 5