Flood Zone Determination Agreement - Factual Data Corp. and GE Capital Corp.
FLOOD ZONE DETERMINATION AGREEMENT
This Agreement is made and entered into this ____ day of ______________ 1996 by
and between Factual Data Corp, 3665 JFK Parkway, Building 1, Fort Collins,
Colorado 80527 ("FD"), and GE Capital Corporation, 7125 W. Jefferson, Suite 460,
Lakewood, Colorado 80235 ("GECC").
WHEREAS, GECC is engaged in the business of providing flood zone determination
information (herein sometimes called "determinations") to lenders and others,
based on flood hazard boundary maps as published by the Federal Emergency
Management Agency from time to time.
WHEREAS, FD wishes to purchase flood zone determination information for its
designated customers (herein sometimes individually referred to as a "FD
Customer" and collectively as the "FD Customers") and to provide, as an agent of
GECC, flood zone determinations generated by GECC;
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, GECC and FD agree:
1. SERVICES
1.1 GECC will provide upon request and receipt of an accurate
address or other sufficient description from FD or a FD
Customer a determination (sometimes herein called a "Basic
Determination") of the flood zone, community name, number
and status, panel-suffix, and map date, if applicable, with
respect to a property as designated by FD or a FD Customer
in accordance with the Flood Disaster Protection Act of 1973
and the Flood Insurance Reform Act of 1994. Such
determinations will be delivered by GECC in the same manner
submitted, either via facsimile or electronic transmission
(in a format agreed to by both parties at individual account
inception) unless other arrangements have been made. FD
shall be responsible for causing all FD Customers (who
utilize the flood zone determination services herein
described) to execute a GECC Flood Zone Determination
Agreement, in the form approved by GECC. A copy of the FD
Customer's executed GECC Flood Zone Determination Agreement
shall be provided by FD to GECC.
1.2 GECC shall be responsible for the validity and accuracy of
all data transferred electronically by GECC to FD or a FD
Customer only at the time of such transfer. Any subsequent
manipulation of such data, or errors in storage or any other
change in such data shall be the sole responsibility and
liability of FD and the FD Customers.
1.3 GECC shall use reasonable efforts not to disclose to any
third party any information it is provided by FD and the FD
Customers, without the written consent of FD. GECC shall
undertake reasonable precautions to preserve the
confidentiality of such information.
1.4 GECC will act as processing center, including providing
system interfaces, issuance of flood determination
certificates and performing procedures related to life of
loan tracking responsibilities. As to the system interfaces,
GECC will provide data transmission, will receive
determination requests, and will generate a wholesale total
monthly account billing statement by FD Customer reflecting
the wholesale pricing for GECC services outlined in Addendum
A. FD will generate monthly billing for FD Customers based
on retail pricing determined by FD, and FD will be
responsible for management and collection of FD's accounts
receivables.
1.5 FD shall be responsible for all marketing of the flood zone
determination services to be provided hereunder, customer
service and for contract negotiations with FD Customers or
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prospective customers. As indicated above, FD shall be
responsible for causing all FD Customers utilizing the
services herein described to execute a GECC Flood Zone
Determination Agreement in the form approved by GECC. FD
shall be responsible for program implementation and training
of FD Customer personnel. FD shall not use any advertising
materials related to the flood zone determination services
(including both Basic Determination services and Life of
Loan services) not reviewed and approved by GECC. Any
advertising and promotional materials shall properly
identify GECC as the provider of the flood zone
determination services and shall be subject to review and
approval by GECC and herein provided.
1.6 FD, in marketing or providing services to FD Customers or
prospective customers hereunder, agrees not to refer to GECC
or any affiliate of GECC (including specifically but without
limitation the General Electric Company) or use GECC's or
any affiliate's trademarks, tradenames, service marks or any
other identifying characteristics, without GECC's express
prior written consent which consent may be granted or
withheld by GECC in its sole discretion, except as follows:
FD shall be permitted to identify GECC to FD Customers as
the party providing Basic Determination or Life of Loan
Service, provided that in making such identification FD only
states the fact that GECC is providing the service. In the
event that GECC is identified as the party providing the
service, or if GECC shall otherwise grant consent to any
reference to GECC or an affiliate, the use shall be strictly
limited to identification of GECC as the provider of the
Basic Determination or Life of Loan Service, unless
otherwise agreed in writing by GECC. In the event of any use
by FD of GECC's or its affiliates' names, trademarks,
tradenames, service marks or any other identifying
characteristics, including any use for which prior written
consent is sought and obtained as herein provided, FD agrees
to indemnify, defend and hold harmless GECC from and against
any and all liability, loss, cost or expense arising out of
the use or reference to such name, trademark, tradename,
service mark or other identifying characteristic.
2. WARRANTIES AND INDEMNIFICATION
2.1 A flood zone determination made by GECC pursuant to the
terms of this Agreement is exclusively for the benefit of
the identified third party FD Customer.
2.2 FD acknowledges (and FD shall cause each of the FD Customers
to acknowledge) that a flood zone determination is based
upon (and limited to) an examination of the current Flood
Insurance Rate Maps and Flood Hazard Boundary Maps as
published by the Federal Emergency Management Agency as well
as other sources of information as required by federal law.
Any further or additional services to be performed must be
the subject of a separate agreement between FD and GECC.
2.3 FD shall indemnify, defend and hold GECC harmless from any
errors in any information provided by FD to GECC. Said
indemnification is conditional upon the Lender/Client
providing accurate address/sufficient description
information to make an accurate determination.
2.4 For purposes of this Agreement and notwithstanding anything
herein to the contrary (and subject to any other limitation
on liability herein contained, including the limitation on
liability provided in section 2.7 below), the maximum
liability of GECC hereunder shall be limited as follows: On
an uninsured flood loss, if the property and its
improvements were in a Special Flood Hazard Area at the time
of certification and GECC incorrectly certified to FD or a
FD Customer that the property was not in a Special Flood
Hazard Area, GECC's maximum liability is the lesser of the
maximum available insurance coverage under the National
Flood Insurance Program (NFIP) for the property
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improvements, or the amount that would have been paid for
flood damage to the property under the claim payable
pursuant to the Standard Flood Insurance Policy had a
Standard Flood Insurance Policy been in force at the time of
the flood damage covering the damaged or destroyed
building(s) and its contents.
2.5 If any property was not in a Special Flood Hazard Area at
the time a flood zone determination is made by GECC (and
provided by GECC to FD or a FD Customer) which incorrectly
certifies that said property was in a Special Flood Zone
Hazard, FD and/or the FD Customer agrees to notify GECC of
the error within thirty (30) days following the date of
determination by the FD Customer that the error exists and
FD and/or FD Customer shall immediately request cancellation
of any flood insurance coverage with respect to the
property. Assuming that GECC has been properly notified and
such policy has been canceled within the time period herein
provided, GECC shall reimburse the FD Customer for an amount
equivalent to NFIP premiums actually paid during the period
following such incorrect certification, to the extent that
such premiums are not refunded by the flood insurance
carrier as a result of the cancellation of the flood
insurance coverage.
2.6 The flood search information is intended solely for the
purpose of compliance with the Flood Disaster Protection Act
of 1973, and does not constitute an opinion by GECC as to
the advisability of securing flood insurance for the
property.
2.7 Should GECC incorrectly identify a property as not being in
a Special Flood Hazard Area and later, for whatever reason,
correct its certification identifying the property as being
in a Special Flood Hazard Area, and the applicable flood
hazard boundary maps as published by the Federal Emergency
Management Agency has not been revised in the interim,
GECC's liability shall be limited to the payment of the
first year's National Flood Insurance Program premium to the
FD Customer for coverage in the amount of the original loan
amount.
2.8 The parties acknowledge that GECC's timeliness, accuracy,
service, quality, and level of expertise are important
elements of GECC's business practices (sometimes called
"Quality Improvement Process"). FD acknowledges and agrees
that it has also committed itself to the GECC "Quality
Improvement Process" and that FD will take such actions as
may from time to time be requested by GECC to conform to
those service standards as may be established by GECC.
3. LIFE OF LOAN SERVICE
3.1 When a FD Customer orders a Life of Loan Service, GECC
agrees to provide both an initial determination of the
property flood status and to monitor for any map changes
that change the flood status of the property. GECC agrees to
provide direct to the FD Customer written notice of any map
changes that change the property's flood status from the
previous determination within 60 days after the effective
date that the new or revised map is provided to GECC. GECC
shall not notify the FD Customer if a new or revised map is
issued which does not change the property's flood status,
but the FD Customer shall have the right to order updated
certifications, at a cost of per updated certification as
indicated in Addendum A, for properties which do not
experience a change in status, which updates will indicate
the date of the most recently issued map. Life of Loan
Service may be transferred at no additional cost if the FD
Customer provides GECC with proper notification of the
properties to be transferred and the address of the entity
to whom future notices should be sent, and the transferee
agrees to be bound be section 3.2. hereof.
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3.2 FD and/or the FD Customer agree to notify GECC in writing,
or in mutually acceptable electronic form, of all loans that
pay of which were covered by Life of Loan Service within one
year of the payoff date. If the FD Customer pays for the
Life of Loan Service and the loan does not fund, the FD
Customer shall be entitled to a refund of the difference
between the fee for Life of Loan Service and the fee for a
Basic Determination for up to 120 days after the
determination was made.
4. PORTFOLIO TRACKING AND OTHER SERVICES
4.1 When a FD Customer orders Ongoing Tracking, GECC shall
undertake to track the identified portfolio of loans for map
changes (herein called "Change Tracking") for a fee as set
forth on Addendum A. The tracking would commence with ninety
days following receipt by GECC of an electronic record of
the loans involved in a format acceptable to GECC. The loans
shall be tracked for future map changes by community number
and panel number. The obligation of GECC to continue to
track any loan for changes in the Change Tracking service
shall terminate as of the date of termination of this
Agreement.
4.2 In the event a remapping and Life of Loan Service of a
property is ordered by a FD Customer for properties being
tracked under the Change Tracking service, the fee shall be
the amount indicated on Addendum A for a Remapped Property.
5. FEES AND TERMS OF PAYMENT
5.1 The amount to be paid to GECC for each Life of Loan
Determination, Basic Determination, and other services
completed by GECC shall be the amounts indicated on Addendum
A. GECC shall issue invoices monthly for all work completed
during the previous month and FD agrees to pay invoices
within 30 days of receipt.
5.2 Balances not paid when due shall be accessed interest at
the rate of 1% per month from the date due until the date
paid, and GECC may exclude the FD Customer from additional
services under this agreement until paid. Any interest
accessed shall be retained by GECC and no part thereof shall
be due or owing to FD. Any sales or other taxes required by
law shall be additional to the above fees.
5.3 If a Basic Determination or Life of Loan Service is being
obtained with respect to a loan, and HMDA census tract
information is requested by the FD Customer with respect to
that loan, the amount indicated on Addendum A shall be paid
to GECC for a one-time specification of HMDA census tract
information for the property. The census tract information
shall be provided by GECC to the FD Customer in the same
format as the flood zone determination.
6. TERM
6.1 The initial term of this Agreement shall be for one (1)
year from the effective date and shall automatically renew
for successive one year period(s) unless written notice of
nonrenewel is given to either party at least 30 days prior
to any anniversary date.
6.2 Either party may terminate this agreement immediately upon
written notice, if the other party is adjudicated a
bankrupt, files a voluntary petition in bankruptcy, is
declared
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insolvent by a regulatory authority, or makes an assignment
for benefit of creditors and becomes unable to meet its
obligations in the normal course of business as they fall
due.
6.3 The Life of Loan tracking obligations of GECC contained in
Sections 2 and 3 shall survive cancellation of this
Agreement, provided the FD Customer has paid the agreed
fees. Any service, including Life of Loan tracking service,
may be terminated by GECC without further liability to FD or
any FD Customer in the event of the failure of the FD
Customer to pay fees due to GECC under the terms hereof.
6.4 This Agreement may be terminated immediately by any party
if the other party defaults in the performance of a material
provision of this Agreement and such default continues for a
period of thirty (30) days after written notice to the
defaulting party stating the specific default.
7. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado. In the event any portion of this
Agreement shall be unenforceable under the laws of the State of
Colorado, the remaining portion of this Agreement shall remain in
effect.
8. NOTICES
Any notices or communications required to be given hereunder shall be
in writing and sent postage prepaid, certified mail, return receipt
requested, or its equivalent to:
Factual Data Corp General Electric
3665 JFK Parkway, Building 1 Capital Corporation
Fort Collins, CO 80527 7125 W. Jefferson, #460
Lakewood, CO 80235
ATTN: ATTN: Operations Manager
With a copy to:
General Electric
Capital Corporation
3001 Summer Street
Stamford, CT 06927
ATTN: General Counsel
Any party may change its address for purposes of notices hereunder by
written notice given to any party as herein provided.
9. SUCCESSORS AND ASSIGNS
9.1 This Agreement shall be binding upon and inure to the
benefit of the parties hereto. GECC shall be entitled to
subcontract all or any part of the services to be performed
by GECC under the terms hereof.
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9.2 Any time after the initial term of the agreement GECC shall
have the right to assign its rights and obligations to any
third party. GECC shall provide FD with 90 days prior
written notice of such assignment. Any time during such 90
day notice period FD shall have the right to terminate this
Agreement in which event, notwithstanding any other
provisions of this Agreement, neither party shall have any
further obligation to the other party under this Agreement.
10. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the parties
relating to the matters contained herein and supersedes all previous
communications, representations or agreements, either oral or written,
with respect to the subject matter hereof.
11. ATTORNEYS FEES
In the event of any litigation involving this contract of the parties
hereto with regard to the subject matter hereof, the prevailing party
shall be entitled to reasonable costs and attorney's fees, including
any cost of appeal.
IN WITNESS WHEREOF, the parties below have executed this Agreement as the date
indicated.
GENERAL ELECTRIC FACTUAL DATA CORP
CAPITAL CORPORATION
By: /s/ Fred Teifke By: /s/ Jerald H. Donnan
Name: Fred Teifke Name: Jerald H. Donnan
Title: National Marketing Manager Title: President
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ADDENDUM A
Pricing
Life of Loan Services per determination $16.00
Basic Determination per determination 10.00
HMDA Census tract data per loan 1.00*
Ongoing Tracking per loan .05
Ongoing Tracking with
Probability Scan per loan .15
Life of Loan Service for a
Remapped Property per determination 10.00**
* If provided in context of also providing Life of Loan or Basic Determination
** Applies to loans for which Change Tracking has indicated a change in map
status. See section 4.2.