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HomeMy WebLinkAbout2005-344BORIGINAL AGREEMENT O - - REAL ESTATE THIS AGREEMENT TO PURCHASE AND SELL REAL ESTATE ("Agreement") is made and entered into as of the 29th Day of September, 2005, by and between Byron H. Beatty ("Seller"), and Indian River County, a political subdivision of the State of Florida ("County"), who agree as follows: 1. Agreement to Purchase and Sell; Effective Date. 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 rea! property described on Exhibits "Q" attached hereto and incorporated by this reference (Parcels 9, 11, and 15), and all improvements thereon, together with all easements, rights and uses now or hereafter belonging thereto (collectively, the "ROW Property"), 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. 2. Purchase Price, Effective Date. The purchase price (the "Purchase Price") for the ROW Property shall be Two Hundred Ten Thousand Two -Hundred Thirteen and 00/100 Dollars ($210,213.00). The Purchase 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 by approval by the Indian River County Board of County Commissioners at a formal meeting of such Board. The necessary 3.40 acres of right-of-way, Zoned A-1, Agriculture with a Land Use Classification of AG -1, 1 unit per 5 acres and located outside of the Urban Service Area shall be purchased at a price of $60,000 per acre. The proposed ROW amounts to a total of 3.40 acres. 3.40 acres @ $60,000 per acre = 204,000.00 + $6,213.00 as referenced in 2.1 (d) below = $210,213.00. 2.1 The following are additional understandings and agreements of the parties: (a) The County or its contractor will move forward as soon as practicable to commence and complete the two-lane paving of 66th Avenue between 4th Street and State Road 60. It is anticipated as of the time of execution of this Agreement that 66th Avenue paving will commence within 24 months. (b) Site improvements (paving) to the benefit of the property owner, related to the 66th Avenue Project, as depicted on the plans will be completed at no expense to the property owner. (c) The Agreement is subject to the granting, by the seller, of blanket 10 -foot temporary construction easements along the construction corridor. (d) See attached "Addendum No,1 to Agreement". Addendum No. 1 is attached hereto 1 F:\Engmeering\RonC\Word Docs\Byron Beatty agreement 2.doc and made a part of this Agreement. Additional compensation has been included in the purchase price of this Agreement. Addendum No. 1 has been attached to both Agreements, but its terms and conditions will only be applied once, wherever applicable. 3. Title. Seller shall convey marketable title to the ROW 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 ROW Property ("Permitted Exceptions"). 3.1 County may order an Ownership and Encumbrance Report with respect to the Property. County shall, within thirty (30) days following receipt of the Ownership and Encumbrance Report, 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. 4. Representations of the Seller. 4.1 Seller is indefeasibly seized of marketable, fee simple title to the ROW Property, and is the sole owner of and has good right, title, and authority to convey and transfer the ROW 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 ROW Property, and shall record no documents in the Public Records which would affect title to the ROW Property, without the prior written consent of the County. 4.3 There are no existing or pending special assessments affecting the ROW 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. 5e 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 delivered to the County at or prior to the Closing Date and thereupon neither the Seller nor any other person 2 F:\Engineering\RonC\Word Docs\Byron Beatty agreement 2.doc 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. Closina. 6.1 The closing of the transaction contemplated herein ("Closing" and "Closing Date") shall take place within 60 days following the Effective Date of the Agreement. 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 ROW Property, free and clear of all liens and encumbrances and in the condition required by paragraph 3. The County shall prepare all closing documents. (b) The Seller shall have removed as much as possible of his personal property and equipment from the ROW Property and Seller shall deliver possession of the ROW Property to County vacant and in the same or better condition that existed at the Effective Date hereof. Exception: The County or its contractor will remove the small frame "house" located within the future right-of-way at the "barn" property north of 12th Street. (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. 6.2 Prorations. All taxes and special assessments which are a lien upon the ROW Property on or prior to the Closing Date (except current taxes which are not yet due and payable) shall be paid by the Seller. If the Closing Date occurs during the time interval commencing on November 2 and ending on December 31, Seller shall pay all current real estate taxes and special assessments levied against the ROW Property, prorated based on the "due date" of such taxes established by the taxing authority having jurisdiction over the ROW Property. If the Closing Date occurs between January 1 and November 1, the Seller shall, in accordance with Florida Statutes section 196.295, pay an amount equal to the current real estate taxes and 3 F:\Engineering\RonC\Word Docs\Byron Beatty agreement 2.doc assessments, prorated to the Closing Date, 7, Closing Costs; Expenses. County shall be responsible for preparation of all Closing documents. 7.1 County shall pay the following expenses at Closing: 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. 7.2 Seller shall pay the following expenses at or prior to Closing: 7.2.1 All costs and premiums for the owner's marketability title insurance commitment and policy, if any. (Not applicable in this instance). 7.2.2 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 ROW Property, 7.3 The Seller and County shall each pay their own attorneys' fees as would apply to this Agreement only. 8. Miscellaneous. 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 ROW 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 ROW 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. 2 F:\Engineering\RonC\Word Docs\Byron Beatty agreement 2.doc 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, and attempted assignment shall be null and void. 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 by certified mail, return receipt requested, or if sent via "overnight" courier service or facsimile transmission, as follows: If to Seller: Seller: Byron H. Beatty Address: 81566 th Avenue City, State, Zip: Vero Beach, FL 32966-1126 If to County: Indian River County 184025 th Street, Vero Beach, FL 32960 Attn: Ron Callahan Facsimile # (772) 778-9391 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 Attornev'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 maybe 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 F:\Engineering\RonC\Word Docs\Byron Beatty agreement 2.doc 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. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above. SELLER: BYROU H. BEATTY 02 tty Date Signed: G FAEngineering\RonC\Word Docs\Byron Beatty agreement 2.doc COUNTY: INDIAN RIVER COUNTY, FLORIDA :E Thomas $. Lowther. Chairman Oct Date Signed a z \ober 1? 05 a„ Attest: 1.3aor COIJcrk , � t_ I' By �= Deputy Clerk By Ronald L. Callahan Real Estate Acquisition Agent ADDENDUM N0, 1 TO AGREEMENT Indian River County 184025 1h Street Vero Beach, Florida 32960 Addendum No. 1 to the Agreement(s) dated September 29, 2005 between Byron H. Beatty and Colleen M. Beatty (Seller) and Indian River County (Buyer). The County or its Contractor agree to the following terms and conditions as part of the Agreement: 1. Install a 12" drainage culvert between the Basile and Beatty properties under 12th Street at Station # 14 of the 3/2005 66th Avenue road plans. Culvert will drain the properties into the sub -lateral B-2 canal. Seller will assist in locating the proposed culvert. Owner must apply for a connection permit from IRFWCD and have the permit issued in his name (per IRFWCD); 2. Replace the existing 12" drainage culvert under 8th Street at the boundary of the Beatty and Rourke (formerly Doris Beatty) properties at or about Station # 4 of the 3/2005 66th Avenue road plans. Seller will assist in locating the existing culvert. Must be approved by IRFWCD; 3. Construct a 22 -foot wide 2"d driveway extending from the south section of the circular drive and connecting to the garage. The two driveways and circular driveway shall be constructed of concrete; 4. Relocate the entry driveway to the asphalt parking pad 60 -feet to the south of the location as shown on the road plan at Station # 45 (on 66th Avenue) of the 3/2005 66th Avenue road plans, 5. Replace the existing drainpipe located at or near Station # 48 along 66th Avenue of the 3/2005 road plans. Seller will assist in locating the existing drainpipe. Must be approved by IRFWCD; 6. Owner will be compensated in the amount of $2,013.00 to replace all existing PVC drainpipes located at the ends of the furrows, which drain west to east to 66th Avenue on Parcel # 7-33-39-00001-0160-00001.1. Owner will perform the work and will assume full responsibility for its completion. 7. County will provide a letter of approval to allow residential construction on any of the smaller than 5 -acre tracts rendered less than 200,000 square feet, due to the sale of the additional right-of-way to the County; 8. Permit a tap -in to County water to the Seller's residence at 815 66th Avenue. All assessments pursuant to providing access to County water available will rest with the Seller. 9. Owner will be compensated in the amount of $2,200.00 to relocate main irrigation line from front of property to middle of property on parcel # 7-33-39-00001-0080- 00003.0. Owner will perform the work and accept full responsibility for its completion. F:\Engineering\RonC\Word Docs\Beatty addendum 3.doc PAGE TWO Beatty Addendum No. 1 10. Construct 12 -foot asphalt access apron to Seller's property at Station # 66 (along 66th Avenue) of the 3/2005 66th Avenue road plans. Seller will assist in the location of this access road. 11. Construct a 24 -foot wide dirt access drive with culvert to access the frame "barn" at Station # 76 along 66th Avenue of the 3/2005 66th Avenue road plans. Seller will assist in the location of said access drive. 12. Construct a 12 -foot access drive to property identified as Parcel # 7-33-39-00001- 0160-00002.0 between Stations 8 and 10 of the 3/2005 road plans along 8th Street to replace the existing access at the intersection of 66th Avenue and 8th Street. Seller will assist in locating this access drive. 13. Owner will be compensated in the amount of $2,000.00 to re -locate the 70 -foot shallow well located within the proposed right-of-way at or about Station # 76 (along 66th Avenue) of the 3/2005 66th Avenue road plans. Seller shall perform the work and assume full responsibility for its completion. 14. County grants permission for the property owner or his employees to fertilize and harvest the citrus fruit from the trees located within the acquired right-of-way until such time as the trees are removed for road building purposes. 15. The drainage, upon road completion, will be as good or better than it is as of the date of this Agreement as pertains to the property at 815 66th Avenue. As of the date of this Agreement, there is no drainage problem at this location. Total additional compensation from Items 6 9 and 14 = $6,213.000 F:\Engineering\RonC\Word Docs\Beatty addendum 3.doc C/) m l l I� IU4iI.L4l� z G� m m x G> D m Z r— z � � O o r z 0 X Z 0 :I7 ' < m �0 a: � �NZ EM w7m� ouz? ° cN� r�m* -Ni o � 0 z C/) m l l I� IU4iI.L4l� z G� m m x G> D m CmD C n < ;u E2 Z �; C O m o Z r— D � � � o r D� CmD C n < ;u E2 Z �; C O m o C � � � o D� 0 X 0 Ca 0 0 � 0 —i znEid-r+ n -i O dmmmdd� ❑ — C Ln O La a rt ❑. n J Ln (n 0 rr O — O ado �5 m O�m Jam° O 70.0r-a0� .• n o• g 0 n n O �M Tm O m 0 < n cmC: Mwm �:�� Cr4rt 3- o c -7-0, -73 O 0 0 m rt— Qo Win' m o�aC;u m n Cn o P n�rt o roz M 0 N 0 n � Cn zT CL `*• n m man o o n m a 0 o 5' Cn rdd�iII 0 M rt T O O o /� rr m 0 rrn (z _ N 10 mCn C n �omnsnm3x�o elm co , ��3o0rnw'�mm'icn 0cnp 0 m CD CD O O M O O N Ul CSD � - O r+ p rt- 0 Q m r* — o ❑mom nQaOu,n �nT aCD _U m r+ 0 ° o'T�-u Ca. _ a 3<cnaaa=r na < ° (D cD -o �• 0 (D -Oc m Cr 0CnCA CD �. w 7D O 0 O 0 ^-O 0 3 n aO. -7 LO amC- LOCn� I n�3 LO CD �'s� ❑ Mao rn 0 Cn Mao ::3 -� CB m J n❑ r»-v�m� .O T 0 a T cn O CD � dddT (D�0 0mo o?ao'< � 5' ❑ a Cn `n ACAD DWG. FILE: 66AVRW.DWG V9 Plotted 7-29-05 U) y Z WE _r Q fir r- cb 1 D n Q0 25 I I � I I IOdd South Line Of North r of the East 20 Ac, v w w North Line Tract 16 I � m I o — I � n 0 0 0 D Ili A. of Tract 16 D� X r U) y Z WE _r Q fir r- cb 1 D n Q0 25 I I � I I IOdd South Line Of North r of the East 20 Ac, v w w North Line Tract 16 I � m I o — I � n 0 0 0 D Ili A. of Tract 16 O x m Z7 0 Z 71 z Z m z O 1t 10 �)I O m �_ C7 Zq G Tm N O =z Cn V O n �© C7 O O 0 O � N c N n N N Lf* V O W D C II O� _r- O CO `< V1 U> 1 CrG� T I owe? �- °V oNm� Cn co z o CD o 0 z O x m Z7 0 Z 71 z Z m z O 1t 10 U) 179 C Cn 0 < O =�� �)I O m �_ C7 Zq G Tm N O =z Cn U) 179 C Cn 0 < O =�� �)I n C_ O n' n G Tm N Cn O a),7 � C7 O O 0 O Tc❑ 0 > I ca N Lf* Z O W C II O� _r- O `< C U> 1 CrG� T I n �- °V CD O Cn co z o CD G 00 0 Oc D OPD r- � il•11 O II mCOoDz LO C O c O -r E- n " O Q 0 Q El 0 ❑ CD O U N z —{DCD �rn �C �0�3❑ C' �(n� ❑ (D (D ID In :3��CL ��G d� V7 O CD r�i • ❑ (DD (n ((D nII C n Q CD ❑ n O S C7 0 - ° C-0. 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C _ II ❑ C CD C N (D Q C7� (per Q�rt� Q 3Cn O�� °gin ❑❑-❑��Q� ° CD e C ❑ CD O C (D . O - D cn (D Cn O (D 0 CD �❑ n ° O CD Q7 U) (D ❑ Q C O GJ ° C 3 O 0.2 LO C/) ° 3 CJ) d (D O CD 3 ❑ M r�-r Cn (D O. i] S O O a 70 CD O (D (.0T � :3C CD 0 I� O O Cn C 0 ❑. O II° < �• Q T �G C' II Q Cn NMI = Cn --I `�. O 7 (D 00) CD Q fi CD c.❑ n � (D O ° CO n O Q O ;j- �I A 'H, =F- Cn n C0 C Nn �GJ(D �] J0 O OCD c.pCL CD O Cn n (D 0 0 (D -h C7 C O Q_* -+ ( M CDD ZI cn m ami-3rn° r° n (D Cn (D o3CD:o 0.0 o o J O (D C C C (D O err :T7 O (D -C1 -1 (nn °, CO S 0 ml (D Cn L4 Z O a O C n 3 s 7 n` \ CD � N ° 0 � c❑ ° (D C) T O (A CD CL CII (D m Q 0 Ca ACAD DWG. FILE: 66AVRW.DWG V11 Plotted 7-29-05 ❑ 7 I o S. Line of N. 1 /2 of 17 19.55 acres of Tract 9 [� O -p ❑ (o n 0 Cn Cn O a),7 �- ❑ O O 0 n Tc❑ I ca N O O W 0 (D to p CD r T I n �- °V CD O Cn co z ❑ 7 I o S. Line of N. 1 /2 of 17 19.55 acres of Tract 9 N [� O I w ow � cD I W 0 C) r T I M °V CD O M O z o 00 0 C 0 N [� O r N. 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FILE: 66AVRW.DWG 70 Cn o O O '1 gQn�rnn(D �l� Mem O coo Ln Un 00'0 _S CD -u C CD D CD n � r CO Q O 7?�N � <C"�0 n O0 ' (D CD c n O a s C: O O O TG Q S r* 0 rte, Cn CD C: o 0- o 1 W CD O 0 rifD cAC00xr�rn n o 0 r.-1 r- CD �n 0aOoCDo Cn -h 0 r -f- _ fv" Cn0 t! �n O O n O II n Z -h M O01 O0fl S Cn LOC.n O CD Q O + cc 0 ? n n -^ O O CD O E- CD rn�CCCL � CD � ED o CD � %%< cr r* o g n ID mZr QmoCD� O Q_-0 O Cn n D � (� O �0 Cn o W < �- r+ rt CA (DD ( n Cn 3 (n m nCD Cn (0 w 0 r� n co o O O n Tl 0 . �a ��. n II 0 (DLC ° o �o /0 n n_ T V15 Plotted 7-29-05 iA n C3 CD I's rn C t- o -+ v �v m j p 0 CO N �N) 00 F C)�o 0t� � ° x fTl n IZ) Ln X � r 25 Cn Z Z Cz rn cn Co w cD � C? � rr,�Ir; cD � Tract 9 Tract 8 2TH STREET I'' 10 0 I SIG .. „ori If Q k 0 M, OWNER'S POLICY OF TITLE INSURANCE Issued by Commonwealth Land Title Insurance Company A POLICY NUMBER LandAmerica Commonwealth Land Title Insurance Company is a member of the A 0 2 — 1 1 � 8 T 2 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 Attest:~ 9 J- / Secretaryr T .o� President w0� � �t►d 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 IIC IVIIVWIIIIJ LVI 1110 WIIVII UOVU III 1I 110 P --y Inca 1. (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 a-1.. J—V... 11, — (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 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. 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 I- EMM=MqW\A 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: 24364384CA Amount of Insurance: $8,235.00 Policy Number: A02-1178439 Reference Number: Beatty/IRC (70810002) Date of Policy: The date shown below or the date of recording of the instruments referred to in Item 3, whichever is the later. OCTOBER 20, 2005 AT 4:05 PM 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 1950, Page 554, 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: A02-1178439 Commencing at the SE corner of the SW 1/4 of the NE 1/4 of Section 22, Township 32 South, Range 39 East, run North on the (40) acre line a distance of 464.98 feet to the Point of Beginning; from said Point of Beginning continue North on said (40) acre line a distance of 90 feet; thence run West a distance of 93.41 feet to a point on the East right of way of a proposed 25 -foot street parallel to the East right of way of Lateral H Canal; thence run Southerly along said East right of way of proposed 25 -foot street a distance of 90.45 feet; thence run East a distance of 85.24 feet to the Point of Beginning. The above parcel of land to be known as Lot 5, Block A, on the proposed plat of Lindsay Manor Subdivision, Unit 1, Indian River County, Florida. Said land lying and being in Indian River County, Florida. Schedule B Policy Number: A02-1178439 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: 1. Taxes and assessments for the year 2005 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. 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.