HomeMy WebLinkAbout86-90 RESOLUTIONt
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RESOLUTION NO. 86-90
A RESOLUTION AUTHORIZING THE PURCHASE OF
RIGHT-OF-WAY PROPERTY LOCATED AT 208 E. CENTER
IN THE AMOUNT OF $27,000 FOR THE DETENTION
CENTER ROAD PROJECT.
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the Mayor and City Clerk are hereby
authorized and directed to execute a contract with Joshua Simon
and Hazel ,(Dabney) Simon for the purchasing right-of-way property
located at 208 East Center Street for $27,000.00. A copy of the
authorized for execution hereby is attached hereto marked Exhibit
"A" and made a part hereof.
PASSED AND APPROVED thisl5th
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APPROVED:
BY :.%
Mayor
1990.
OFFER AND ACCEPTANCE CONTRACT
Buyer, the City of Fayetteville, offers to buy, subject to
the terms and conditions set forth herein, the following
described property:
:Part of the Southwest Quarter (SW**) of the
'Northwest Quarter (NW4) of Section Fifteen
(15), Township Sixteen (16) North of Range
;Thirty (30) West, described as beginning at a
;point which is four hundred thirteen and one-
half (4132) feet East and twelve (12) feet
North of the Southwest corner of said forty
'acre tract and running thence North one
hundred (100) feet; thence West fifty (50)
;feet; thence South one hundred (100) feet;
ithence East fifty (50) feet to the place of
'beginning.
Purchase Price: subject to the following conditions the
Buyer shall pay for the property at closing the total and
cash payment'of $27,000.00 cash.
3. Contingent Earnest Money Deposit: The Buyer herewith tenders
a check for $500.00 to Joshua Simon and Hazel (Dabney) Simon,
husband and wife, hereinafter referred .to as Seller, as
earnest money, which shall apply on the purchase price. This
offer of purchase is contingent upon approval of the Board of
Directors of the City of Fayetteville, Arkansas and, if they
do not so approve, the earnest money'deposit'will be returned
to the Buyer by the Seller. 'If title requirements are not
fulfilled or the Seller fails to fulfill any obligations
under this contract, the earnest money shall be promptly
refunded to Buyer. If Buyer fails to fulfill his obligations
under the contract ,or after all conditions have been met,
Buyer fails to close this transaction the earnest money may
at the option of the Seller, become liquidated damages to the
Seller. Alternatively, Seller may assert legal or equitable
rights which it may have because of breach of this contract.
Conveyance will be made to Buyer by general warranty deed,
except it shall be subject to recorded instruments and
easements, if any, which do not materially affect the value
of the property. Such conveyance shall include mineral
rights owned by Seller.
5. Seller shall furnish, at Buyer's cost a policy of title
insurance in the amount of the purchase price.
Taxes and special assessments due on or before closing shall
he paid by the seller. Insurance, general taxes, ad valorem
taxes, special assessments and rental payments shall be
prorated as of closing.
7 The closing date is designated to be ninety (90) days after
acceptance of this offer by the Seller. If such date of
closing falls on a weekend or holiday. it will be held the
following working day.
8 Possession of the property shall be delivered to the Buyer on
the date of closing.
9. All ;fixtures, improvements and attached equipment are
included in the purchase price.
10. Risk of loss or damage to the property by fire or other
casualty occurring up to the time of closing is assumed by
the Seller.
11. This AGREEMENT shall be governed by the laws of the State of
Arkansas.
12. This AGREEMENT, when executed by both Buyer and Seller shall
contain the entire understanding and agreement of the parties
with respect to the matters referred to herein and shall
supercede all price or contemporaneous agreements,
representations and understanding with respect to such
matters, and no oral representations or statements shall be
considered a part hereof.
13. This contract expires, if not accepted, on or before the 27th
day of April, 19.
14. NOTICE: BUYER ASSERTS AND SELLER HEREBY ACKNOWLEDGES THAT
THIS OFFER IS EXPRESSLY CONTINGENT UPON THE CITY OF
FAYETTEVILLE'S BOARD OF DIRECTORS APPROVAL OF THIS
OFFER OF PURCHASE AND THAT THE FAILURE OF THE BOARD
TO SO APPROVE WILL MAKE ALL PORTIONS OF THIS OFFER
NULL AND VOID, INCLUDING, BUT NOT LIMITED TO, THE
RETURN TO BUYER OF THE $500.00 EARNEST MONEY
DEPOSIT.
oe cam,
SELLER
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4-18-90
Date
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FAYETTEVILIJE
%THE CITY OF FAYETTEVILLE, ARKANSAS
I
£( -90
DEPARTMENTAL CORRESPONDENCE
TO: Sherry Thomas, City Clerk
FROM: Bert Rakes, Land Agent
DATE: 19-10-90
"Property
SUBJECT:. "Property Acquisition, Resolution 86-90
1.208 E. Center
Detention Center Road (Mill Street Extend R/W
i
Attached find:
Warranty Deed, Book. 1372, Page 538
Purchaser's/Borrower's Statement
Seller's/Borrower's Affidavit
Seller's Statement
Release, Book 1375, Page 258
Policy of Title Insurance #543500
Survey, DR3-59
BR/mab
Attachments (7)
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WARRANTY DEED
MARRIED PERSON CONVEYING SOLE OWNERSHIP
WITH SPOUSES RELINQUISHMENTOF ALL
RIGHTS AND INTERESTS
KNOW ALL MEN BY THESE PRESENTS:
Hazel Dabney Simon
1
hereinafter called Grantor, for and in consideration - of ,the -sum of
One Dollar ($1.00) and other good 'and valuable consideration to me
That I,
i
in hand paid. by LLf __. !me City'of Fayetteville, Arkansas,
a municipal coiporation
hereinafter called Grantee) do hereby grant, bargain and sell unto the
said Grantee and Grantees heirs and assigns, the following described
land, situate in
Washington'
h
County, State of Arkansas, to -wit:
FILE''''FCR'RECORn
'90 JUN 21 PI) 2. 43
WASHING'ru:N CO AR
A, KO:LL•M.EYE•R
- A part of the SW1/4of the NW; of Section 15, Township 16 North, Range 30 West,
as commencing at the West Quarter Corner (W 1/4) of said. Section 15, and thence along
the East/West Quarter Section:line North 89 degrees 56 minutes 11 seconds Fast 413.50
feet, and continuing thence North 00 degrees 03 minutes 49 seconds West 12:00.f_eet
to the point of beginning, said point of beginning being North 00 degrees 03 minutes
49 seconds West 12.00 feet from said Quarter Section line; thence South 89 degrees 56
`D minutes 11 seconds West 50.00 feet; thence North 00 degrees 03 minutes 49 seconds
(L West 100.00 feet;jthence North 89 degrees 56 minutes 11 seconds East 50.00 feet; thence
South 00 degrees p3 minutes 49 seconds Fast 100.00 feet to the point of beginning,
Fayetteville, Washington County, Arkansas.
described
Ii
County of`Wash]ngtonl,
?tip\fir :tar
G"t'.1 ( Q . m ^ ":.7,
k Hazelrney Simon
! known'•`itq ?rte, (oi•sattilipt: rify proven) to be
. acknoWledijed aa It& Mad executed the same
In viitn,es$-Whereof �It ;hereunto set my hand
My Commission,Exgjre5 10 1 , .
TO HAVE AND TO HOLD the said lands and appurtenances thereunto belonging unto the said Grantee and Grantee's
heirs and assigns, forever. And I, the said Grantor, hereby covenant that I am lawfully seized of said land and premises,
that the same is unincumbered, and that I will forever warrant and defend the title to the said lands against all legal claims
whatever.
And I, the said Grantor, hereby release and relinquish unto the said Grantee my dowerlcurtesy and homestead in and to
said lands.
I, - Joshua Simnn7
, spouse of said Grantor, do hereby release and
relinquish unto the said Grantee my dower/curtesy and homestead In and to said lands and quitclaim unto said Grantee any
interest, right and title 1 jmay have therein. /�—
WITNESS our hands' and seals on this " i' day of
THIS INSTRUMENT PREPARED BY:
BAC, Fayetteville, AR
STATE OF ARKANSAS
ACKNOWLEDGMENT
On this the_d
ay of
June
l/G Jufne,(� c , 19 90
HA7�.Luy�NEY S MON^ O- el••' (Seal)
rOSHUA sima`1
(Seal)
UW1372116E538
19.99 before me, a notary public, personally appeared
and ,.Joshua"Simon, her husband
the persons whose -names are I -subscribed to the foregoing instrument and
for the
purpose;�,usttherein set "forth
and official se -I.1 .� ^
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I, Alma Kollmoyer, Circuit Clerk and
Ex -officio 1._r•?or for Washington County,
Putanses, e• hereby malty that this in-
t1:un::ot was fi:od for record in my office
co in_ir'ted hereon and the same is now
duly recorded with the acknowledgement
and certificate thereon In Record Book and
Page es indicated thereon.
IN WITNESS WHEREOF, I have hereunto
set my hand and affixed the seal of said
Court on the date indicated hereon.
-� s �
AIma:Collmeyerer
tlf^ -
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Grcult Clerk and
/4 -officio retarder •
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SVSNV3RIV 30 3,LV1S
NOTE: A wise man will have his deed recorded
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PURCHASERS/BORROWERS STATEMENT
7.Zel(v
DATE June a; 1990
PURCHASER/BORROWER CITY OF FAYFITEVEL E, ARKANSAS
SELLER HAZEL DABS SIMON
STREET ADDRESS 208 E. Center, Fayetteville, AR 72701
LEGAL DESCRIPTION Pt SW; NW; Sec. 15, Twp 16 N, Rae 30 West
SALES PRICE (IF APPLICABLE)
1
EXPENSES OF PURCHASE/FINANCING
TITLE INSURANCE
CLOSING FEE $
RECORDING''FEES $ 4.00
PREPARING DOCUMENTS $ 15.00
SURVEY $
REVENUE STAMPS $ exempt
LAWYERS OPINION $
TOTAL EXPENSES OF CLOSING:
1
GROSS AMOUNT DUE FROM PURCHASER/BORROWER
CREDITS DUE TO PURCHASER/BORROWER:
EARNEST MONEY $ 500.00
PRORATED'TAXES $ 110.90
MORTGAGE ASSUMED $
LOAN PROCEEDS $
$
TOTAL CREDITS:
$ 27,000.00
NET AMOUNT DUE FROM/TO PURCHASER/BORROWER AT CLOSING
$ 19.00
$ 27,019.00
$ 610.90
$ 26,408.10
The undersigned acknowledge the receipt of this closing statement
and agrees to the correctness thereof, and authorizes the disbursement of the
funds as stated therein.
CITY OF FAYETPEVIT1F, IARKANSAS
PURCHASER/BORROWER
The above is a complete, true and correct account of funds received
and disbursed in connection with the above transaction.
RCHASER/BORROWER
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BRONSON RBST CT COMPANY, INC.
BXT7Ar
CLOSING AGENT
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SELLER'S/BORROWER'S AFFIDAVIT
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STATE OF ARKANSAS
COUNTY OF WASHINGTON
THE UNDERSIGNED, REFERRED TO AS SELLER/BORROWER,
BEING FIRST DULY SWORN ON OATH THAT THE SELLER/BORROWER
FOLLOWING DESCRIBED LANDS, SITUATED IN /.949/7/46TON
TO -WIT:
ifs s-)6 R
WHETHER ONE OR MORE,
IS THE OWNER OF THE
COUNTY, ARKANSAS,
SELLER/BORROWER FURTHER STATES THE FOLLOWING FACTS ARE TRUE:
1. THERE IS NO ADVERSE OCCUPANT OF THE PROPERTY DESCRIBED ABOVE.
2. SELLER/BORROWER AND THOSE UNDER WHOM SELLER/BORROWER CLAIMS TITLE, HAVE
BEEN IN PEACEABLE POSSESSION OF SAID LANDS FOR MORE THAN 7 YEARS PAST.
3. THERE ARE NO UNRECORDED OPTIONS TO PURCHASE, SALES CONTRACTS OR LEASE
AGREEMENTS OUTSTANDING, WHICH AFFECT THE PROPERTY DESCRIBED ABOVE.
4. THERL RAVE BEEN NO IMPROVEMENTS MADE ON THE PROPERTY DESCRIBED ABOVE
DURING THE PAST 130 DAYS FOR WHICH A MECHANICS' AND MATERIALMENS' LIEN MAY BE
FILED.
5. NO APPLIANCES HAVE BEEN INSTALLED IN THE PROPERTY DESCRIBED ABOVE ON
DEFERRED PAYMENTS WHICH ARE UNPAID FOR.
6. THE PROPERTY DESCRIBED ABOVE IS NOT TRAVERSED BY ANY ROADWAYS OR EASEMENTS
EXCEPT T}OSE SHOWN OF RECORD.
7. THERE ARE NO DELINQUENT ASSESSMENTS DUE ON THE RESIDENT'S ASSOCIATION ON
THE PROPERTY DESCRIBED ABOVE IF APPLICABLE.
8. THAT NO MONEY WHATSOEVER IS OWED ON SUII E T PROPERTY TO NY PERSON, FIRM,
OR CORPORAFION OTHER TITAN THE FOLLOWING: cautiosA j-2ml dla00 &r
ltd)
9. THEREIARE NO OUTSTANDING JUDGMENTS AGAINST SELLER\BORROWER AS A RESULT OF
LEGAL ACTION TO INCLUDE, BUT NOT LIMITED TO, TAX LIENS, DIVORCE, BANKRUPTCY OR
FORECLOSURE.
10. THATiTHE MARITAL STATUS OF SELLER/BORROWER HAS NOT CHANGED SINCE THEY
ACQUIRED ABOVE DESCRIBED PROPERTY
,
ITNESS THE HAND AND SEAL OF THE UNDERSIGNED ON THE Xf DAY OF
NET , 19 6.
CRIBED AND SWORN TO BEFORE ME, A NOTARY PUBLIC ON THE 2U -DAY
OF �./N+: , 10'0.
MY COMMISSION EXPIRES:
NOTARY PUBLIC
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BRONSiON ABSTRACT CO., INC. '<
SELLERS STATEMENT
1
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DATE June 20, 1990
SELLER Hazel Dabney Simon
BUYERS 'Ihe City of Fayetteville, Arkansas, a municipal corporation
E
STREET ADDRESS 208 E. Center, Fayetteville, AR 72701
LEGAL DESCRIPTION Pt SW4 NA Sec. 15, Twp 16 N. Rhe 30 West
, ..
SALES PRICE'
OTHER CREDITS:
I
EXPENSES OF SALE:
TITLE INSURANCE $
CLOSING FEE $
RECORDING FEES $ 4.00
PREPARING DOCUMENTS $
•
SURVEY $
1
REVENUE STAMPS $ exempt
EARNEST MONEY $ 500.00
SALES COMMISSION $
MORTGAGE PAYOFF $ 5,020.44
TAXEIS 1989 $ 184.00
TAX PRORATION 1990 $ 110 90
TOTAL EXPENSES OF CLOSING:
1
NET AMOUNT DUE TO SELLER
27,000.00
$ 5,819.34
$ 21,180.66
The undersigned acknowledge the receipt of this closing statement
and agrees tot the correctness thereof, and authorizes the disbursement of the
funds as stated therein.
SEL ER e1 Dabney Simon) ELLER Joshua Simon
The above is a complete, true and correct account of funds received
and disbursedlllin connection with the above transaction.
3589 NORTH COLLEGE, SUITE 210
FAYEPPEVIT.T,F, I AR 72703
rem i eeo_Y1nn
BRONSON AB TRACT OMPANY, INC.
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RELEASE
KNOW ALL MEN BYITHESE PRESENTS:
That in consideration of the full payment of all indebtedness
mentioned in a certain
dated March 6' / , 1980—, and
recorded in Book 1018 . at Page 233
Book at Page
Book at Page
Book at Page
Book at Page
Book at Page
t in the Circuit Clerk's office in and for
1
said indebtedness originally having been owed by
mortgage
:"t'' FCR ,RECORD,
'90 JUL 19 RPI 10 12
'xSlifIN itiN Cu AR
A, K;OL .kifY;ER
Washington
Hazel Dabney, a single person
County, Arkansas
to C. Thomas Pearson Jr,, and Ronald G. Woodruff dila pparGon & Woodruff, a partnership
and secured by a lienon the following property located in Washington County, Arkansas:
Part of the Southwest Quarter (SW 1/4) of the Northwest Quarter (NW 1/4) of Section
' Fifteen (15), Zbanship Sixteen (16) North, Range Thirty (30) West, described as
beginning at a point which is four hundred thirteen and one half (413 2) feet East and
twelve (12) feet North of the Southwest corner of said forty acre tract, and running
thence North one hundred (100) feet; thence West fifty -(50) feet; thence South one
hundred (100) feet; thence East fifty (.50) feet to the place of beginning.
said lien on the property above mentioned is hereby released and discharged in full on this
day of July , 19 90
my he id and seal on the day and year above
071,
naid G. Woodruff
STATE OF ARKANSAS,
County of
Washington
On this day of
notary public
e
Ison the within named 1 C. Therms
//7Z
ACKNOWLEDGMENT
Iss.
July , 19 90, before the undersigned, a
, duly commissioned and acting, appeared in per -
Pearson, Jr., & Ronald G. Wcx,druff to me personally
well known as the grantor sin the foregoing release deed and stated thatthelyad executed the same for the consid-
" - eration and:purposes therein mentioned and set forth.
1 Witness m•: hand and ',•aI as suchnotary public
is v. • r+:
-Fr .•
ti`;F;RY' +-:
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My 1; nThJ:q,•ru•e•y:reti
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C_� '
Please Return This Form To:
this
day of Jul 19 90
(Official Title)
ILMI? 1375PAGE281
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Filed for Record on this
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Form No. 1402
(10/21/87)
ALTA Owners Policy
AIA
POLICY OF TITLE INSURANCE
ISSUED BY
First American Title Insurance Company
10.
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN
SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, FIRST AMERICAN TITLE INSURANCE COMPANY, a
California 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. Unmarke ability of the title;
4. Lack of alright of access to and from the land.
The Company wil also 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.
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N° 543500
PA! Boz 1149
First'Ain. rrraiie 7.111411.iIIravig. :ompiirii
First American Title Insurance Company
BY
ATTEST
a en le 14: ittre%strA3 :+r7
PRESIDENT
SECRETARY
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•
Policy No.543500
SCHEDULE A File No.FATIC 90-1136
Amount of insurance: $27,000.00
Premium: STANDARD
Date of Policy: JULY 1, 1990 AT 7:00 A. M.
1. Name of Insured:
CITY OF FAYETTEVILLE, ARKANSAS, a municipal corporation
2. The estate or interest in the land described herein and which is covered
by this policy is fee simple and is at Date of Policy vested in:
THE INSURED
3. The land referred to in this policy is described in the said instrument,
is situated in the County of WASHINGTON, State of ARKANSAS, and is identified
as follows:
Part of the Southwest Quarter (SW 1/4) of the Northwest Quarter (NW 1/4) of
Section Fifteen (15), Township Sixteen (16) North of Range Thirty (30) West,
described as beginning at the West Quarter corner of said Section 15, and
thence along the East/West Quarter Section line North 89 degrees 56 minutes 11
seconds East 413.50 feet, and continuing thence North 00 degrees 03 minutes
49 seconds West 12.00 feet to the point of beginning; said point of beginning
being North 00 degrees 03 minutes 49 seconds West 12.00 feet from said Quarter
Section line; thence South 89 degrees 56 minutes 11 seconds West 50.00 feet;
thence North 00 degrees 03 minutes 49 seconds West 100.00 feet; thence North
89 degrees 56 minutes 11 seconds East 50.00 feet; thence South 00 degrees 03
minutes 49 seconds East 100.00 feet,to the point of beginning, Fayetteville,
Washington County, Arkansas.
COUNTERSIGNED BY:
BRONSON ABSTRACT COMPANY, INC
28 EAST CENTER STREET
FAYETTEVILLE, AR. 72701
i
*********************************
FIRST AMERICAN TITLE
INSURANCE COMPANY
*************************
•
Policy No.543500
SCHEDULE B File No.FATIC 90-1138
This policy does -not insure against loss or damage by reason of the following:
1- Rights or claims of parties other than Insured in actual possession
of any or all of the property.
2 Unrecorded easements, discrepancies or conflicts in boundary lines,
shortage in ,area and encroachments which an accurate and complete
survey would disclose.
3 "Unfiled mechanics' or materialmen's liens.
4 Loss arising from security interest evidenced by financing
statements filed of record, as of the effective date hereof, under
the Arkansas Uniform Commercial Code and Judgement Liens and other
liens of record in any United States District Court or Bankruptcy
Court in the State of Arkansas, as of the effective date.
5 Loss arising from Oil, Gas or other Minerals, conveyed, retained,
assigned or any other activity caused by the sub -surface rights or
ownership, including but not limited to the right of ingress or
egress for said sub -surface purposes.
6 This policy .does not insure acreage, any mention thereof is for
descriptive purposes only
7 General Taxes for the year 1990 and subsequent years not yet due and•
payable.
8 Encroachment. of fenceline along the West side of insured premises as
shown on the plat of survey by Milholland Company dated May 1990.
BRONSON ABSTRACT COMPANY, INC
28 EAST CENTER STREET
FAYETTEVILLE, AR. 72701
FIRST AMERICAN TITLE
INSURANCE COMPANY
********************************
of Policy in favor of an insured only so long as the insured
retains an estate or interest in the land,'or holds an indebted-
ness secured by a purchase money mortgage given by a
purchaser from the insured, or only so long as the insu ed shall
have liability by reason of covenants of warranty made by the
insured in any transfer or conveyance of ithe 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 Companypromptly in writing (i)
in case of any litigation as set forth in Section 4(a) below, (i) 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 Com-
pany 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 hese Conditions and
Stipulations, theCompany, at its own cost and without unrea-
sonable 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 adefect 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 cabse) 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 interes , as insured, or to pre-
vent 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 p-ovision 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 litiga-
tion to final determination by a court of competent jurisdiction
and expressly reserves the right, in i s sole discretion, to
appeal from 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 pro-
ceeding, 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 Com-
pany's expense, shall give the Company all reasonable aid (i)
in any action or proceeding, securing ev dence, obtaining wit-
nesses, prosecuting or defending the ac ion 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 he insured to furnish
the required cooperation, the Company's obligations to the
insured under the policy shall terminate, ncluding 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 Ross or damage shall
describe the defect in, or lien or encumbrance on the title, or
other matter insured against by this policy which constitutes
Upon the exetoi'i 7the Company of this option, all liability
and obligations to the insured under this policy, other than to
make the payment required, shalt terminate, including any
liability or obligation to defend, prosecute, or continue any
litigation, and the policy shaltbe 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
(i) to pay or otherwise settle with the insured claim-
ant 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 obli-
gations 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 obligationto defend, pros-
ecute or continue any litigation.
7. DETERMINATION, EXTENT OF LIABILITY
AND COINSURANCE.
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 mat-
ters 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,
(i) the difference between the value of the insured
estate or interest as insured. and the value of the insured
estate or'nterest subject to the defect, lien or encumbrance
insured against by this policy.
(b) n the event he Amount of Insurance stated in
Schedule Aat the Date of Policy is less than80 percent of the
value of the insured esta a or interest or the full consideration
paid for the land,whichever is less, or if subsequent to the Date
of Policy an improvement is erected on the land which in-
creases the value of the insured estate or interest by at least
20 percent over the Amount of Insurance stated in Schedule A,
then this Policy is subject to the following:
(i) where no subsequent improvement has been
made, as to any partial loss, the Company shall only pay the
loss pro rata in the proportion that the amount of insurance at
Date of Policy bears to the total value of the insured estate or
interest at Date of Policy; or (ii) where a subsequent
improvement has been made, as to any partial loss, the Com-
pany shall only pay the loss pro rata in the proportion that 120
percent of the Amount of Insurance stated in Schedule A bears
to the sum of the Amount of Insurance stated in Schedule A and
the amount expended for the improvement.
The provisions of this paragraph shall not apply to costs,
attorneys' fees and expenses for which the Company is liable
under this policy, and shall only apply to that portion of any
loss which exceeds, in the aggregate, 10 percent of the
Amount of Insurance stated in Schedule A.
(c) The Company will pay only those costs, attomeys' fees
and expenses incurred in accordance with Section 4 of these
Conditions and Stipulations.
B. APPORTIONMENT. _
If the land described in Schedule (A)(C) consists of two or
more parcels which are not used as a s ng e site, and a loss is
established affecting one or more of the pa cels 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 ex-
press 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 and, or cures the claim of unmarket-
ability of title, all as insured, in a reasonably diligent manner by
any method, including I tigation and the completion of any
appeals therefrom, it sha I have fully performed its obligations
with respect to that mat er and shall not be liable for any loss
or damage caused thereby.
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 the policy not been issued. If requested by the Com-
pany, the insured claimant shall transferto 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, com-
promise 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 sub-
rogated 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 limita-
tion, 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, either the Company
or the insured may demand arbitration pursuant to the Title
Insurance Arbitration Rules of the American Arbitration
Association. 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. All
arbitrable matters when the Amount of Insurance is
$1,000,000 or less shall be arbitrated at the option of either
the Company or the insured. All arbitrable matters when the
Amount of Insurance is in excess of $1,000,000 shall be
arbitrated only when agreed to by both the Company and the
insured. 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 juris-
diction 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 con-
tract 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 as-
serting 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 Presi-
dent, 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 o be furnished the Company
shall include the number of this policy and shall be
addressed to the Company at 114 East Fifth Street, Santa
Ana, California 92701, or to the office which issued this
policy.
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