HomeMy WebLinkAboutBROOKFIELD TITLE INSURANCE - Filed M-MISCELLANEOUS - 2006-09-28Y
OWNER'S POLICY OF TITLE INSURANCE
Issued by Transnation Title Insurance Company
NLandAmerica Transnation Tale Insurance Company is a member of the LandAmenca family of title insurance underwriters.
Transnation
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE
CONDITIONS AND STIPULATIONS, TRANSNATION TITLE INSURANCE COMPANY, an Arizona 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 will 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.
IN WITNESS WHEREOF, TRANSNATION 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.
Attest: �—/ ��, r P.
Secretary
EXCLUSIONS FROM
TRANSNATION TITLE INSURANCE COMPANY
By.
MM
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 taws, 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 unaer this policy;
(c) resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy; or
(a) 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.
NMI PA 10
ALTA Owner's Policy (10/17/92) Face Page ORIGINAL Form 1190-56A Valid only if Schedules A and B and Cover are attached
TRANSNATION TITLE INSURANCE COMPANY
POLICY OF TITLE INSURANCE
SCHEDULE A
Amount of Insurance: $ 846,810.36 Policy No.: 6449054
Date of Policy: June 9, 2004 at 7:00 A.M.
1. Name of Insured:
South Harmony, LLC, a Colorado Limited Liability Company
2. The estate or interest in the land described herein and which is
covered by this policy is: FEE SIMPLE
3. The estate or interest referred to herein is at Date of Policy vested
in:
South Harmony, LLC, a Colorado Limited Liability Company
4. The land referred to in this Policy is described as follows:
(SEE ATTACHED PAGE FOR LEGAL DESCRIPTION)
TRANSNATION TITLE INSURANCE COMPANY
Policy No.: 6449054
LEGAL DESCRIPTION
A tract of land situate in the Northeast 1/4 of Section 4, Townshi_p 6
North, Range 68 West of the Sixth P. M., Larimer County, Colorado, which
considering the North line of the said Northeast 1/4 as bearing due East
and with all bearings contained herein relative thereto is contained
within the boundary lines which begin at a point which bears South 02
degrees 03 minutes East 25.00 feet and
again North 89 degrees 54 minutes East 563.60 feet, and
again East 333.43 feet, and
again South 02 degrees 03 minutes 30 seconds East 1,282.61 feet from the
North 1/4 corner of said Section 4 and run
thence East 1,271.30 feet to a point on the Westerly line of the Fossil
Creek Inlet Ditch;
thence along said Westerly line South 11 degrees 51 minutes East 761.03
feet, and
again South 21 degrees 48 minutes East 389.14 feet, and
again South 24 degrees 06 minutes East 255.96 feet to a point on the South
line of the said Northeast 1/4;
thence North 89 degrees 06 minutes 45 seconds West 1,629.56 feet;
thence North 02 degrees 03 minutes 30 seconds West 1,315.38 feet to the
Point of Beginning.
EXCEPT that portion conveyed to South Harmony, LLC, a Colorado Limited
Liability Company by Deed recorded December 20, 2001 as Reception No.
2001117597.
County of Larimer, State of Colorado.
Page 2
e
TRANSNATION TITLE INSURANCE COMPANY
Policy No.: 6449054
SCHEDULE B
This Policy does not insure against loss or damage by reason of the
following:
1. Rights or claims of parties in possession not shown by the public
records.
2. Easements, or claims of easements, not shown by the public records.
3. Discrepancies, conflicts in boundary lines, shortage in area,
encroachments, and any facts which a correct survey and inspection
of the premises would disclose and which are not shown by the
public records.
4. Any lien, or right to a lien, for services, labor or material
heretofore or hereafter furnished, imposed by law and not shown by
the public records.
5. Taxes due and payable; and any tax, special assessments, charge or
lien imposed for water or sewer service, or for any other special
taxing district.
6. Reservation of right of proprietor of any penetrating vein or lode
to extract his ore, in U.S. Patent recorded October 12, 1889 in
Book 32 at Page 133.
7. Any and all existing leases and/or tenancies.
8. Terms, agreements, provisions, conditions and obligations as
contained in Reciprocal Land Use and Improvements Reimbursement
Agreement recorded August 6, 2001 as Reception No. 2001066199.
9. Any and all existing rights for Fossil Creek Inlet Ditch as
currently exist.
10. Terms, agreements, provisions, conditions and obligations as
contained in Deed of Dedication for Right -of -Way by and between
City of Fort Collins, Colorado and Electric Equipment & Engineering
Co. Employee Profit Sharing Trust recorded September 24, 2001 as
Reception No. 2001085349.
11. Right of way, whether in fee or easement only, for drainage pipe
and utility lines, as granted to City of Fort Collins, Colorado by
Electric Equipment & Engineering Co. Employee Profit Sharing Trust,
recorded September 24, 2001 as Reception No. 2001065373, affecting
the following described property:
As more particularly described in said instrument.
Page 3
TRANSNATION TITLE INSURANCE COMPANY
Policy No.: 6449054
SCHEDULE B - continued
12. Right of way, whether in fee or easement only, for paving, drainage
& utility lines, as granted to City of Fort Collins, Colorado by
Electric Equipment & Engineering Co. Employee Profit Sharing Trust,
recorded September 24, 2001 as Reception No. 2001085374, affecting
the following described property:
As more particularly described in said instrument.
13. All notes and easements as shown on ALTA/AGSM Land Title Survey
recorded November 10, 1999 as Reception No. 0099097011.
14. All notes, easements and statements as contained on said Plat of
Brookfield.
15. Annexation to the Declaration recorded October 7, 2003 as Reception
No. 20030128028.
16. Terms, agreements, provisions, conditions and obligations as
contained in Permit to allow discharge of Drainage Water into North
Poudre Irrigation Company's Ditch recorded October 10, 2003 as
Reception No. 20030130098.
17. Terms, agreements, provisions, conditions, obligations (including
common expenses, fees and costs under the Common Interest Ownership
Act) and restrictions which do not contain a forfeiture or reverter
clause, but omitting restrictions, if any, based upon race, color,
religion, sex, handicap, familial status or national origin, as
contained in the Declaration for The Morningside Village Master
Association recorded June 24, 2003 as Reception No. 20030077586 and
any and all amendments and supplements thereto.
18. Terms, agreements, provisions, conditions, obligations (including
common expenses, fees and costs under the Common Interest Ownership
Act) and restrictions which do not contain a forfeiture or reverter
clause, but omitting restrictions, if any, based upon race, color,
religion, sex, handicap, familial status or national origin, as
contained in the Declaration for The Townhomes at Morningside
Village Owners Association recorded June 24, 2003 as Reception No.
20030077587 and any and all amendments and supplements thereto.
19. Terms, agreements, provisions, conditions, obligations (including
common expenses, fees and costs under the Common Interest Ownership
Act) and restrictions which do not contain a forfeiture or reverter
clause, but omitting restrictions, if any, based upon race, color,
religion, sex, handicap, familial status or national origin, as
contained in the Declaration for The Morningside Village
Condominium Owner's Association recorded July 9, 2003 as Reception
No. 20030085688 and any and all amendments and supplements thereto.
Page
TRANSNATION TITLE INSURANCE COMPANY
Policy No.: 6449054
SCHEDULE B - continued
20. Terms, agreements, provisions, conditions and obligations as
contained in Annexation recorded July 9, 2003 as Reception No.
20030085689.
21. Terms, agreements, provisions, conditions and obligations as
contained in Annexation to the Declaration of Covenants,
Conditions, and Restrictions of the Morningside Village Master
Association and the Morningside Village Condominium Association
recorded October 30, 2003 as Reception No. 20030137678.
22. Terms, agreements, provisions, conditions and obligations as
contained in Annexation to the Declaration of Covenants,
Conditions, and Restrictions of the Morningside Village Master
Association and the Morningside Village Condominium Association
recorded December 23, 2003 as Reception No. 20030160768.
23. Deed of Trust from South Harmony, LLC, a Colorado Limited Liability
Company to the Public Trustee of the County of Larimer for the use
of KeyBank, National Association to secure $668,130.00 dated
December 19, 2001, recorded December 20, 2001 at Reception No.
2001117598 and as Amended and Restated July 12, 2002 at Reception
No. 2002074281 and First Amendment recorded August 22, 2003 at
Reception No. 20030108364 and Amended and Restated Construction
Deed of Trust, Security Agreement, Assignment of Leases and Rents,
and Fixture Filing recorded July 12, 2002 at Reception No.
2002074281 by and between South Harmony, LLC and KeyBank National
Association in the amount of $2,250,000.00, $690,000.00 and
$7,000,000.00. Disbursers Notice recorded July 12, 2002 at
Reception No. 2002074282. First Amendment to Deed of Trust
recorded August 22, 2003 at Reception No. 20030108364. Second
Amendment to Deed of Trust recorded October 30, 2003 at Reception
No. 20030138049.
Third Amendment recorded June 8, 2004 at Reception No. 20040055125
and Disburser's Notice recorded June 8, 2004 at Reception No.
20040055126.
24. Deed of Trust from South Harmony, LLC, a Colorado Limited Liability
Company to the Public Trustee of the County of Larimer for the use
of Home State Bank to secure $825,000.00 dated May 28, 2004,
recorded June 4, 2004 at Reception No. 20040054526.
Page
ENDORSEMENT
110.1
Attached to and forming a part of Policy No. 6449054
Issued by
TRANSNATION TITLE INSURANCE COMPANY
Said Policy is hereby amended by deleting paragraph(s) 4 of
Schedule B.
The total liability of the Company under said policy and any
endorsements therein shall not exceed, in the aggregate, the face amount
of said policy and costs which the Company is obligated under the
conditions and stipulations thereof to pay.
This endorsement is made a part of said policy as of the date thereof
and is subject to the schedules, conditions and stipulations therein,
except as modified by the provisions hereof.
This endorsement is not to be construed as insuring the title to said
estate or interest as of any later date than the date of said policy,
except as herein expressly provided as to the subject matter hereof.
Dated: June 9, 2004
TRANSNATION TITLE INSURANCE COMPANY:
r CONDIWONS AND $TIPULATIONS
(Continued)
7, DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE.
This policy is a ccntraa 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 snail not exceed the least
of:
(i) the Amount of Insurance stated in Schedule A; or.
(u) 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 detect, lien or
encumdrance insured against by this policy.
(b) In the event the Amount of Insurance staled in Schedule A at the Dale
nr Policy is less than 60 percent of the value of the insured estate or interest or the
full consideration paid for the land, whicnever is less, or if subsequent to the Dale
r4 Policy an improvement is erected on the land which increases the value of the
insured estate or interest by at least 20 percent over the Amount or 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 rate in the proponion that the
amount of insurance at Date of Policy bears to the total value of the insured estate
or interest at Date of Policy; a
(ii) where a subsequent improvement has been made, as to any partial
loss, the Company shall only pay the loss pro rate in the proportion that 120
percent of the Amount of insurance stated in Schedule A bears to the sum of the
emcunt of Insurance stated in Schedule A and the amount expended for the
improvement.
The provisions of this caragraph 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, attorneys' fees and expenses
incurred in accordance with Section 4 of these Conditions and Stipulations.
B. 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 rate basis as if
the amount of insurance under this policy was divided pro rate as to the value on
Date of Policy of each separate parcel to the whole, exclusive of any
improvements made subsequent to Dare of Policy unless a liability o, value has
otherwise been agreed upon as to each parcel by the Company and the insures at
the time of the issuance of this policy and shown by an express statement or by
an endorsement attached t- this pohc�.
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 unmarkett lily of title. all as insured, in a reasonably diligent manner
by any method, including litigation and the completion of any appeals therefrom, it
shall nave 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 shalt 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
liabiiiry voluntarily assumed by the insured in seffling 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 ior cost ahomeys
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 Inis 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 Ine 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.
to) 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 nave settled and paid a claim under this
policy, all right of subrogation snail vest in fee Company unaffected by any act of
the insured claimant.
The Company shall be subrogated to and be entitles to all rights and remedies which
he Insured claimant would have had against any person o� property in respaC to the cl=_im
had this pclicy not beer. issued. If requested by the Company, the insured daimaet shall
transfer to tee Company a7 rights and remedies against any person or property necessary Iri
order to peded this right of sub,cgatlon. 7ne Insured claimant snail permjt tee 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 lingation 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 ce suorogated to these rights and remedies
in ;he proponion 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, either the Company or the insured may
demand arbitration pursuant to the Title Insurance Arbitration Roles 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 preach of a policy provision or other obligation. All amicable
matters when the Amount of insurance is S1,000,000 or less shall be arbiha'Lec at
the option of edner the Company or the insured. All arbitrable matters wnen the
Amount of Insurance is in excess of S1.00Q000 shall be arbitrated only when
agreed to by both the Company and the insured. Artu rradon 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 snail be binwirg
upon the ponies. The award may include attorneys' lees 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 Arbdralor(s) may be
entered in any court having jurisdiction thereof.
The law of the sires of ine and shall apply to an arbitration under the Tale
Insurance Arbitration Rules.
A copy of the Rules may be obiamed 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 loseor damage, whether or not based on negligence, and
which arises out of the status of the title to the estate or interest covered nereby or
by any action asserting such claim, shall be restricted it., this policy_
(c) No amendment of or endorsement to this policy can oe made except by
a writing endorsed hereon or attached hereto signed by eifher the President. a
Vice President, the Secretary, an Assistant Secretary, or validating ofl:cer or
authorized signatory of the Company.
16. SEVERABILITY.
In the event any provision of the policy is held invalid or unenforceable
under applicabie law, the policy shall be deemed not to include tnal 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 statemen: 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.
NM 1 PA 10
ALTA Owners Policy (10/17/92)
Form 1190-58 Cover Page ORIGINAL Valid only if Face Page and Schedules A and B are attached