HomeMy WebLinkAbout2005-344aORIGINAL
AGREEMENT TO PURCHASE AND SELL 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, and
Colene Beatty, correctly known as Colleen M. Beatty ("Seller") and Indian River County, a
political s! !division 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
cct forth in Chic Anraemant that rortain ra l nrnnortv riascriharl nn Pyhihi c "A" attarharl her Pto
and incorporated by this reference (Parcels 7, 12 and 12A), 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 nc'an 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 Fifty-ThreeThousand Eight -Hundred and 00/100 Dollars
($253,800.00). 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 formai
meeting of such Board.
The necessary 4.23 acres of right-of-way, Zoned A-1, Agriculture, with a Land Use Classification
of AG -1, 1 unit per 5 acre and located outside of the Urban Service Area shall be purchased at a
r,rirn r%f (zC,n Onn nor acro Tho nrnnnSnrl Rr)�,/,,/ inrli lHinn leiatnr rntantiron amounts to a total of
VI Lw. vI Wvv� vv V. I vI v. I I Iv VI v�.v vv I %. n Iv .,x..,111y vv%d%% I I v vI ILI � � .... � �..�.� �.... %W .,. . L%011
4.23 acres. 4.23 acres @ $60,000 per acre = $253,800.00.
(See Item 2.1 (d) below).
2.1 The following are additional understandings and agreements of t.h.c, p)?rhes:
(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 with 24 months.
(b) Drainage restoration and site improvements (paving) to the benefit of the property
owners, related to the 66th Avenue Project, as depicted on the plans will he
completed at no expense to the property owners.
(c) The Agreement is subject to the granting, by the seller, of blanket 10 -foot temporary
construction easements along the construction corridor.
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FAEngineering\RonC\Word Docs\Colene and byron agmt.doc1/18/05
(d) See Addendum No. 1 attached hereto and made a part of this Agreement. Additional
compensation has been included in the purchase price of the Agreement between
County and Byron H. Beatty, Item 2, Page 1. 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.
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 delivered to
the County at or prior to the Closing Date and thereupon neither the Seller nor any other person
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FAEngineering\RonC\Word Docs\Colene and byron agmt.docl/18/05
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:
67 Closing.
6.1 The closing of the transaction contemplated herein ("Closing" and "Closing Date") shall
take place within 60 days following the effective date of this. 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.
(b) The Seller shall have removed all of its 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 located north of 12`h Street.
(c) If Seller is obligated to discharge any encumbrances at or prior to Closing and fails to do
Qn Col inty 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
assessments, prorated to the Closing Date,
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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.
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.
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.
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
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FAEngineering\RonC\Word Docs\Colene and byron agmnt.doc1/18/05
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:
Address:
City, State, Zip:
Byron H. and Colleen M. Beatty
81566 th Avenue
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 Attorney's Fees anti 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
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.
FAEngineering\RonC\Word Docs\Colene and byron agmt.docl/18/05
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first set forth above.
SELLER:
BYRON H. BEATTY
Date Signed:
COLLEEN M. BEATTY
go
Colleen
Date Signed:�/g
Approved:
By
L County Administrator
Approve/d,as to forma lega f i 1 y:
By w
CountyAttomey
0
FAEngineering\RonC\Word Docs\Colene and Uyron agmt.docl/18/05
COUNTY:
INDIAN RIVER COUNTY, FLORIDA
r
Thomas S. Lowther, Chairman
Date Signed: October 11, 2005
• tom}
,. p
Attest- X carton; ;Clerk
aAIXrot
D-eputy.Ct4eC'
B•-fz^- e `'``
Y
Ronald L. Callahan
Real Estate Acquisition Agent
ADDENDUM N0, 1 TO AGREEMENT Indian River County
1840 25th 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 2nd 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 66"'
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 52,013.00 to replace all existing PVC
drainpipes located at the ends of the furrows, which drain west to east to 66t"
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 66"' 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 24400t wide dirt access drive with culvert to access the frame `barn" at
Station # 76 along 66th Avenue of the 3/2005 66t" Avenue road plans. Seller will assist
jn lll�. fiii.w iiv ii fjl "J {Zl{[ µZ. �,yuu 11f 11•x.
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 66"' 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.
d 14 = $6,213.
F:TngineeringaonC\Word Docs\Beatly addendum 3.doc
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OWNER'S POLICY OF TITLE INSURANCE
Issued by Commonwealth Land Title Insurance Company
POLICY NUMBER
LandAmerica Commonwealth Land Title Insurance Company is a member of the A U 2 — l l � 8 4? 9
Commonwealth LandAmerica family of title insurance underwriters.
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND
THE CONDITIONS AND STIPULATIONS, COMMONWEALTH LAND TITLE INSURANCE COMPANY, a Pennsylvania corporation,
herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of
Insurance stated in Schedule A, sustained or incurred by the insured by reason of:
1. Title to the estate or interest described in Schedule A being vested other than as stated therein;
2. Any defect in or lien or encumbrance on the title;
3. Unmarketability of the title;
4. Lack of a right of access to and from the land.
The Company also will pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent
provided in the Conditions and Stipulations.
IN WITNESS WHEREOF, COMMONWEALTH LAND TITLE INSURANCE COMPANY has caused its corporate name and seal to be
hereunto affixed by its duly authorized officers, the Policy to become valid when countersigned by an authorized officer or agent of the
Company.
COMMONWEALTH LAND TITLE INSURANCE COMPANY
'?a
.i lieu W : � :,�
Secretary
so,. �.,..•t'aPresident�
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.
ALIA Uwner's Policy (10/17/92) with Florida Modifications Valid only if Schedules A and B are attached
Form 1190-21 B ORIGINAL
(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
^(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.
Form B 1190-21 B
OWNER'S POLICY OF
TITLE INSURANCE
American Land Title Association (10/17/92)
(WITH FLORIDA MODIFICATIONS)
Issued by
Commonwealth Land
Title Insurance Company
Commonwealth Land Title Insurance Company
is a member of the LandAmerica family of title insurance
underwriters.
\ LandAmerica
Commonwealth
LandAmerica Financial Group, Inc.
101 Gateway Centre Parkway
Richmond, Virginia 23235-5153
www.landam.com
THANK YOU.
Title insurance provides for the protection of your
real estate investment. We suggest you keep this
policy in a safe place where it can be readily
available for future reference.
If you have questions about title insurance or the
coverage provided by this policy, contact the
office that issued this policy, or you may call or
write:
Commonwealth Land Title Insurance Company
Consumer Affairs
P.O. Box 27567
Richmond, Virginia 23261-7567
telephone, toll free: 800 446-7086
web: www.landam.com
We thank you for choosing to do business with
Commonwealth Land Title Insurance Company,
and look forward to meeting your future title
insurance needs.
Commonwealth Land Title Insurance Company
is a member of the LandAmerica family of title insurance
underwriters.
\ LandAmerica
Commonwealth
Policy of Title Insurance
Commonwealth Land Title Insurance Company
Schedule A
Order Number: 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.
OWNER'S POLICY OF TITLE INSURANCE
Issued by Commonwealth Land Title Insurance Company
POLICY NUMBER
LandAmerica Commonwealth Land Title Insurance Company is a member of the A U 2 — 11 � 8 -T 3 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:ti
Secretary L President
r;__
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 0R1r.INA1
The following terms when used in this policy mean:
(a) "insured": the insured named in Schedule A, and, subject to any rights
or defenses the Company would have had against the named insured, those who
succeed to the interest of the named insured by operation of law as distinguished
from purchase including, but not limited to, heirs, distributees, devisees,
survivors, personal representatives, next of kin, or corporate or fiduciary
successors.
(b) "insured claimant": an insured claiming loss or damage.
(c) "knowledge" or "known": actual knowledge, not constructive
knowledge or notice which may be imputed to an insured by reason of the public
records as defined in this policy or any other records which impart constructive
notice of matters affecting the land.
(d) "land": the land described or referred to in Schedule A, and
improvements affixed thereto which by law constitute real property. The term
"land" does not include any property beyond the lines of the area described or
referred to in Schedule A, nor any right, title, interest, estate or easement in
abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing
herein shall modify or limit the extent to which a right of access to and from the
land is insured by this policy.
(e) "mortgage": mortgage, deed of trust, trust deed, or other security
instrument.
(f) "public records": records established under state statutes at Date of
Policy for the purpose of imparting constructive notice of matters relating to real
property to purchasers for value and without knowledge. With respect to Section
1(a)(iv) of the Exclusions From Coverage, "public records" shall also include
environmental protection liens filed in the records of the clerk of the United States
district court for the district in which the land is located.
(g) "unmarketability of the title": an alleged or apparent matter affecting
the title to the land, not excluded or excepted from coverage, which would entitle
a purchaser of the estate or interest described in Schedule A to be released from
the obligation to purchase by virtue of a contractual condition requiring the
delivery of marketable title.
2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE.
The coverage of this policy shall continue in force as of Date of Policy in
favor of an insured only so long as the insured retains an estate or interest in the
land, or holds an indebtedness secured by a purchase money mortgage given by
a purchaser from the insured, or only so long as the insured shall have liability by
reason of covenants of warranty made by the insured in any transfer or
conveyance of the estate or interest. This policy shall not continue in force in
favor of any purchaser from the insured of either (i) an estate or interest in the
land, or (ii) an indebtedness secured by a purchase money mortgage given to the
insured.
3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT.
The insured shall notify the Company promptly in writing (i) in case of any
litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come to
an insured hereunder of any claim of title or interest which is adverse to the title
to the estate or interest, as insured, and which might cause loss or damage for
which the Company may be liable by virtue of this policy, or (iii) if title to the
estate or interest, as insured, is rejected as unmarketable. If prompt notice shall
not be given to the Company, then as to the insured all liability of the Company
shall terminate with regard to the matter or matters for which prompt notice is
required; provided, however, that failure to notify the Company shall in no case
prejudice the rights of any insured under this policy unless the Company shall be
prejudiced by the failure and then only to the extent of the prejudice.
4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED
CLAIMANT TO COOPERATE.
(a) Upon written request by the insured and subject to the options
contained in Section 6 of these Conditions and Stipulations, the Company, at its
own cost and without unreasonable delay, shall provide for the defense of an
insured in litigation in which any third party asserts a claim adverse to the title or
interest as insured, but only as to those stated causes of action alleging a defect,
lien or encumbrance or other matter insured against by this policy. The
Company shall have the right to select counsel of its choice (subject to the right
of the insured to object for reasonable cause) to represent the insured as to
those stated causes of action and shall not be liable for and will not pay the fees
of any other counsel. The Company will not pay any fees, costs or expenses
incurred by the insured in the defense of those causes of action which allege
matters not insured against by this policy.
(b) The Company shall have the right, at its own cost, to institute and
prosecute any action or proceeding or to do any other act which in its opinion
may be necessary or desirable to establish the title to the estate or interest, as
insured, or to prevent or reduce loss or damage to the insured. The Company
may take any appropriate action under the terms of this policy, whether or not it
shall be liable hereunder, and shall not thereby concede liability or waive any
provision of this policy. If the Company shall exercise its rights under this
paragraph, it shall do so diligently.
(c) Whenever the Company shall have brought an action or interposed a
defense as required or permitted by the provisions of this policy, the Company
may pursue any litigation to final determination by a court of competent
any adverse judgment or order.
(d) In all cases where this policy permits or requires the Company to
prosecute or provide for the defense of any action or proceeding, the insured
shall secure to the Company the right to so prosecute or provide defense in the
action or proceeding, and all appeals therein, and permit the Company to use, at
its option, the name of the insured for this purpose. Whenever requested by the
Company, the insured, at the Company's expense, shall give the Company all
reasonable aid (i) in any action or proceeding, securing evidence, obtaining
witnesses, prosecuting or defending the action or proceeding, or effecting
settlement, and (ii) in any other lawful act which in the opinion of the Company
may be necessary or desirable to establish the title to the estate or interest as
insured. If the Company is prejudiced by the failure of the insured to furnish the
required cooperation, the Company's obligations to the insured under the policy
shall terminate, including any liability or obligation to defend, prosecute, or
continue any litigation, with regard to the matter or matters requiring such
cooperation.
5. PROOF OF LOSS OR DAMAGE.
In addition to and after the notices required under Section 3 of these
Conditions and Stipulations have been provided the Company, a proof of loss or
damage signed and sworn to by the insured claimant shall be furnished to the
Company within 90 days after the insured claimant shall ascertain the facts
giving rise to the loss or damage. The proof of loss or damage shall describe the
defect in, or lien or encumbrance on the title, or other matter insured against by
this policy which constitutes the basis of loss or damage and shall state, to the
extent possible, the basis of calculating the amount of the loss or damage. If the
Company is prejudiced by the failure of the insured claimant to provide the
required proof of loss or damage, the Company's obligations to the insured under
the policy shall terminate, including any liability or obligation to defend,
prosecute, or continue any litigation, with regard to the matter or matters
requiring such proof of loss or damage.
In addition, the insured claimant may reasonably be required to submit to
examination under oath by any authorized representative of the Company and
shall produce for examination, inspection and copying, at such reasonable times
and places as may be designated by any authorized representative of the
Company, all records, books, ledgers, checks, correspondence and memoranda,
whether bearing a date before or after Date of Policy, which reasonably pertain to
the loss or damage. Further, if requested by any authorized representative of the
Company, the insured claimant shall grant its permission, in writing, for any
authorized representative of the Company to examine, inspect and copy all
records, books, ledgers, checks, correspondence and memoranda in the custody
or control of a third party, which reasonably pertain to the loss or damage. All
information designated as confidential by the insured claimant provided to the
Company pursuant to this Section shall not be disclosed to others unless, in the
reasonable judgment of the Company, it is necessary in the administration of the
claim. Failure of the insured claimant to submit for examination under oath,
produce other reasonably requested information or grant permission to secure
reasonably necessary information from third parties as required in this paragraph
shall terminate any liability of the Company under this policy as to that claim.
6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION
OF LIABILITY.
In case of a claim under this policy, the Company shall have the following
additional options:
(a) To Pay or Tender Payment of the Amount of Insurance.
To pay or tender payment of the amount of insurance under this policy
together with any costs, attorneys' fees and expenses incurred by the insured
claimant, which were authorized by the Company, up to the time of payment or
tender of payment and which the Company is obligated to pay.
Upon the exercise by the Company of this option, all liability and obligations
to the insured under this policy, other than to make the payment required, shall
terminate, including any liability or obligation to defend, prosecute, or continue
any litigation, and the policy shall be surrendered to the Company for
cancellation.
(b) To Pay or Otherwise Settle With Parties Other than the Insured or
With the Insured Claimant.
(i) to pay or otherwise settle with other parties for or in the name of
an insured claimant any claim insured against under this policy, together with any
costs, attorneys' fees and expenses incurred by the insured claimant which were
authorized by the Company up to the time of payment and which the Company is
obligated to pay; or
(ii) to pay or otherwise settle with the insured claimant the loss or
damage provided for under this policy, together with any costs, attorneys' fees
and expenses incurred by the insured claimant which were authorized by the
Company up to the time of payment and which the Company is obligated to pay.
Upon the exercise by the Company of either of the options provided for in
paragraphs (b)(i) or (ii), the Company's obligations to the insured under this
policy for the claimed loss or damage, other than the payments required to be
made, shall terminate, including any liability or obligation to defend, prosecute or
continue any litigation.
CONDITIONS AND STIPULATIONS - continued
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.
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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.