TITLE PLANT AGREEMENT
THIS AGREEMENT is being executed on the 29TH day of APRIL, 1998. The parties to
this Agreement are SECURITY UNION TITLE INSURANCE COMPANY, a California
corporation ("Security Union"), and CAPITAL TITLE GROUP, INC., an Arizona
corporation ("Customer").
RECITALS
A. Security Union and Customer wish to enter into this Agreement for the
purpose of providing Customer with access to the Title Plant owned
exclusively by Security Union, pertaining to real property in San Diego
County, California (the "County"), as more particularly described in
Paragraph 3(a) of this Agreement.
B. Security Union currently maintains its title plant for the County at its
facility located at 0000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx, hereinafter
referred to as "Title Plant Facility".
TERMS OF THE AGREEMENT
In consideration of the facts recited above and the mutual
promises set out below, the parties agree as follows:
1. ACCESS
Security Union grants Customer nonexclusive access during normal working
hours (as set by Security Union) to all of the records and materials, as
described in Paragraph 3(a) below, in Security Union's Title Plant for the
County.
2. TERM
The effective date of this Agreement shall be the 1ST day of JUNE, 1998.
The effective date shall begin the initial term of this Agreement, which is
made for five (5) years. The Agreement shall be automatically extended for
additional five (5) year terms unless either party gives written notice to
the other party of its election not to extend at least six (6) months prior
to the end of the initial term or of any additional term.
3. TITLE PLANT SERVICES
(a) TITLE PLANT DESCRIPTION. During the term of this Agreement, Security
Union agrees to make available to Customer for Customer's use in
searching titles, all of the records and materials located at Security
Union's title plant facility for the County including, but not limited
to, lot books (or microfilm copies of lot books or geographic
folders), on-line property index and general index (also known as an
"individual/corporation index"), as well as all microfilm, maps,
starters (i.e., copies of previously issued policies of title
insurance, preliminary reports, guarantees and binders, hereinafter
referred to as "Starters"), and copies of documents recorded in the
Official Records of the County. These records and materials shall also
include any additions made through Security Union's customary daily
input procedures, and shall be subject to any deletions resulting from
Security Union's customary purging procedures. These records and
materials, sometimes referenced in this Agreement collectively as a
Title Plant, will be used by Customer and others during the term,
subject to all the other provisions of this Agreement. Both parties
recognize that Security Union may in the future acquire records
through purchase, lease assignment or other method of transfer and
that Security Union may restrict, or may be restricted from allowing,
Customer from using such records. Any records so acquired and
restricted are not included in this Agreement.
(b) USE OF STARTERS. Starters furnished to Customer under this Agreement
are to be used by Customer solely for the purpose of searching and
examining specific parcels of real property. Customer agrees that no
other use of any Starter is permitted and further agrees that Security
Union will have no responsibility for errors or omissions of any kind
in these starters.
(c) AVAILABILITY OF STARTERS. The availability of particular Starters
under this Agreement shall be determined by Security Union and will
not include any
Starters of any other company which Security Union may have in its
possession by reason of an agreement with that company if the
agreement with that company contains a provision restricting the use
of their Starters to Security Union. STARTERS IN THE POSSESSION OF
SECURITY UNION THAT WERE ISSUED BY TICOR TITLE INSURANCE COMPANY OF
CALIFORNIA OR ITS PREDECESSORS (THE "TICOR STARTERS") ARE NOT A PART
OF THIS AGREEMENT. Other than restrictions regarding the use of other
companies' Starters and the exclusion of the Ticor Starters, nothing
in this paragraph is intended to restrict Customer from access to all
of the Title Plant described in Paragraph 3(a) of this Agreement.
(d) CUSTOMER INVESTIGATION AND SATISFACTION. Customer has made its own
independent investigation of the operation of the Title Plant and of
the method of input, storage and retrieval of the information
contained in the Title Plant, as well as the quality of the
information in the Title Plant and the type of documents indexed,
including the criteria in effect for including or excluding specific
types of documents in daily plant input procedures, and the criteria
in effect for deleting, by purging procedures, specific types of
documents. Customer is satisfied that input, storage and retrieval
methods, and the quality of the information and the criteria for input
and purging, are satisfactory for the purposes intended in this
Agreement.
4. WARRANTIES, LIABILITIES AND INDEMNITIES
(a) WARRANTY EXCLUSION AND LIMITATION OF DAMAGE. SECURITY UNION MAKES NO
WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, CONCERNING THE ACCURACY OR COMPLETENESS OF THE TITLE PLANT OR
THE INFORMATION CONTAINED IN THE TITLE PLANT. Customer agrees that in
no event shall Security Union be liable for any
lost profits or for any special, consequential or exemplary damages
even if Security Union has been advised of the possibility of such
damages.
(b) DISCLAIMER OF LIABILITIES. Security Union and Customer agree that no
other person, firm or corporation not a party to this Agreement
acquires any rights under this agreement. Security Union and Customer
also agree that Security Union assumes no liability and will not be
held liable to Customer, or to Customer's customers or insureds, or to
any other person to whom Customer may furnish any title policy,
binder, guarantee, endorsement or other title assurance, or any report
or title information, by reason of any error or assertion of error in
the Title Plant or in any services or Starter furnished to Customer by
Security Union.
(c) INDEMNITY. If any customer or person claims or asserts that Security
Union has any liability by reason of an error in the Title Plant or in
any Starter furnished to Customer by Security Union, Customer agrees
to indemnify and hold Security Union harmless from and against the
claim or demand, including all costs, expenses, attorneys' fees and
actual loss or losses incurred or sustained by reason of the claim or
assertion. When a claim or assertion is made, Security Union agrees to
promptly give notice to Customer. Customer shall have the right, if it
so elects, to provide for the defense of Security Union, in any action
or litigation based upon or involving the claim or assertion, by
counsel of Customer's own choosing and at Customer's own cost, and to
pursue litigation to final determination. Customer shall also have the
right, whether or not any action or litigation results, to compromise
or settle the claim on behalf of Security Union but at the sole cost
of Customer.
5. TITLE PLANT ACCESS CHARGE
As set forth at Appendix A, attached.
6. SPACE USE CHARGE
Security Union shall provide and xxxx Customer on a monthly basis, and
Customer shall pay Security Union monthly for the space occupied by
Customer's personnel, equipment and furniture at Security Union's Title
Plant facility.
(a) SQUARE FOOTAGE RATE. The initial space use charge shall be $1.75 per
square foot. Adjustments shall be made to the space use charge
effective the first day of January each year of the term of the
Agreement. The adjustment in the charge shall be an increase or a
decrease as necessary to adjust the space use charge to an amount
equal to the actual average square foot building expense of the prior
twelve month period and the rent rate to be paid by Security Union
during the succeeding twelve month period. The building expenses to be
included are: utilities, building maintenance and supplies (security,
landscaping, refuse, rest room and coffee room supplies), janitorial,
air conditioning maintenance, music/paging system, a ten percent
administrative charge and rent. Security Union will submit an itemized
statement to Customer during the month of June each year setting forth
Security Union's building costs for the prior twelve month period and
rent rate for the succeeding twelve month period, all which will be
used as a basis for any increase or decrease in the space use charge.
Any annual increase shall not exceed ten percent (10%), except that
the item of rent shall be adjusted to the actual amount specified in
any lease with a third party landlord. Customer shall have the right
to review the building cost records of Security Union at Security
Union's office.
(b) MINIMUM SPACE USE CHARGE. Customer has designated an area of
*______square feet as an initial space requirement. Customer shall pay
Security Union a minimum office space use charge based upon this
initial space requirement. Customer's space use may be increased, if
available, and Customer shall pay for increased space at the same
square footage rate as for the minimum space. The space use minimum
may be decreased only if Security Union has a substitute use or other
need for
* To be determined by separate letter agreement.
such decreased amount of space. Any increase or decrease of the square
footage (space) must be agreed to in writing by both parties.
7. PAYMENT DUE DATE; AUDIT
(a) DUE DATE. All monies due from Customer are due and payable to Security
Union on the tenth (10th) work day of each month of the term of this
Agreement. Payment shall be sent to:
SECURITY UNION TITLE INSURANCE COMPANY
0000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Accounting Department
Payment shall continue to be sent to this address until notified in
writing as set forth at Paragraph 28 of this Agreement.
(b) PRORATION OF CHARGES. The charges, set forth at Paragraphs 5 and 6
above, for any partial month of Customer's use of the Title Plant at
the beginning or end of any term of this Agreement shall be prorated
according to the total number of days of use as that number of days
relates to the total number of days in the affected month.
(c) DEFAULT DUE TO NON-PAYMENT. A state of default exists under this
Agreement whenever Customer fails to pay, when due and payable, any
sum payable to Security Union for a period of fifteen (15) days after
the sum has become due and payable. To cure that default, the sum then
due, plus a late payment charge equal to ten percent (10%) of the sum
then due, must be paid to Security Union. In the event of default,
Security Union may discontinue the right of Customer to any service
provided for in this Agreement. If any state of default is not cured
within thirty (30) days after the sum first becomes due and payable,
and after written notice to Customer, Security Union may terminate all
rights of Customer under this Agreement.
(d) WRITTEN REPORT. Simultaneously with the payment of the monthly title
plant charges, Customer must furnish a written report to Security
Union, signed by an officer of Customer, showing the total orders
opened for all
title assurances issued by Customer during the preceding month, and
any other information necessary to enable Security Union to determine
that the amount is correct. This information will be confidential to
and used by Security Union's auditors and accounting personnel and
will not be used for other purposes by Security Union. The report form
will be designed and furnished by Security Union.
(e) AUDIT. Security Union shall have the right to audit the accounts of
Customer, at the expense of Security Union, in order to verify the
correctness of the sums of money being paid to Security Union by
Customer. These audits shall be conducted so as not to unreasonably
interfere with the normal business routine of Customer. Customer shall
supply the following to Security Union at the end of each fiscal year:
+ A complete, signed copy of Customer's audited Annual Report to
the Insurance Commissioner of the State of California;
+ Audited financial statements for the County.
No information need be given to Security Union regarding any of the
business affairs of Customer other than information necessary to
determine the correctness of the amounts of sums paid to Security
Union under this Agreement.
8. COPIES OF TITLE DOCUMENTS FURNISHED BY CUSTOMER
During the term of this Agreement, on a monthly basis, Customer agrees to
furnish Security Union full and complete copies of all title policies,
binders, guarantees, endorsements or other title assurances, as well as
title reports for canceled orders issued by Customer on real property in
the County during the prior month. These copies of title assurances and
reports are to be forwarded to Security Union's Title Plant Manager of the
title plant facility for the County on or before the fifth(5th) work day of
every month. Security Union shall have the right
to place these copies in Security Union's Title Plant for use by
Security Union or other customers. These copies become the property of
Security Union, free of any restrictions as to use or otherwise, but
without warranty as to correctness on the part of Customer.
9. DESK SPACE, EQUIPMENT AND SUPPLIES
(a) DESK AND EQUIPMENT SPACE. Security Union agrees to make available, at
Security Union's title plant facility, desk and equipment space as may
be reasonably necessary to be used by employees of Customer to
"search" title to specific property involved in Customer's title
orders. Security Union shall xxxx Customer on a monthly basis and
Customer shall pay Security Union monthly for use of space in the
title plant facility, in accordance with the provisions of Paragraph 6
of this Agreement.
(b) DEFINITION OF "SEARCH". For the purpose of definition, both parties
agree that the word "search", as used in this Agreement, refers to the
functions of identifying, locating and copying the proper accounts,
documents, Starters and maps necessary for examining, reporting on and
otherwise issuing title evidences on specific parcels of real
property. It does not include any functions of a title company or a
title insurance company beyond the identifying, collecting and initial
copying process described above and specifically does not include the
actual examination of the title and the process of "writing up" the
findings of the examination. Normal customer service activities are
intended to be included.
(c) EQUIPMENT AND SUPPLIES. All microfilm viewer-printers and copying
equipment used by Customer's employees are to be installed and paid
for by Customer, and all supplies and materials used by Customer's
employees are to be paid for by Customer. However, Customer may use
Security Union's micro film viewer-printers and copying equipment if
available and if Customer pays for the cost of its prorated share of
that use. Security Union shall provide personnel and equipment
necessary for the refiling of all film cassettes or reels pulled for
use by Customer and for printing, upon request, one initial copy for
Customer of any plant item
which Security Union now or in the future deems necessary to restrict
from general access. These same services may be provided by Security
Union to all plant users. Security Union shall xxxx and Customer shall
pay its monthly pro rata share of the cost of providing these
services.
10. SERVICES NOT FURNISHED
Security Union will not be obligated to furnish tax, bond or assessment
information nor to furnish any title engineer or other help for the purpose
of verifying or creating a legal description of land involved in Customer's
orders nor any other service, except that which is specifically stated in
this Agreement.
11. PARKING NOT FURNISHED
Security Union will not be obligated to furnish parking for Customer's
employees.
12. TITLE PLANT BUILT BY CUSTOMER
Customer agrees that if at any time during the term of this Agreement it
elects to build or participate in the building of a title plant, it will do
so without the use of the Title Plant owned by Security Union. An election
by Customer to build or participate in the building of a title plant will
not discharge or relieve Customer of any of its obligations under this
Agreement.
13. OWNERSHIP AND USE OF THE TITLE PLANT
(a) PROPERTY OF SECURITY UNION. The Title Plant shall at all times remain
the property of Security Union.
(b) SUPERVISION BY SECURITY UNION. Customer agrees that the use of the
Title plant shall at all times be in the custody and under the
supervision of an employee of Security Union.
(c) NO UNAUTHORIZED USE. Customer agrees to make no reproductions of the
Title Plant or use or permit use of the information obtained from it
except to conduct its own title business as to specific orders and as
to specific parcels of real property, and to provide usual customer
service.
(d) COPIES OF DOCUMENTS. No part of the Title Plant shall be removed from
the premises of Security Union. However, subject to the other
provisions
of this Agreement, Customer shall have the right to make copies of
documents and other information contained in the Title Plant.
(e) CONDUCT OF EMPLOYEES. The use of the Title Plant by Customer and the
conduct and physical appearance of employees of Customer while on the
premises of Security Union shall all be subject to the same directives
and instructions by Security Union now or in the future directed to
employees of Security Union. Security Union shall have the right to
refuse entrance and access to any employee of Customer not complying
with directives and instructions of Security Union.
(f) HOURS OF ACCESS. The use of the Title Plant shall be limited to the
normal business hours of Security Union, except that Security Union
will cooperate with Customer in emergency situations in endeavoring to
provide for the opening of the building and supervision of Customer's
use of the Title Plant by an employee of Security Union in order to
satisfy reasonable plant access requirements of customer, at the
expense of the Customer.
(g) ACCESS LIMITED. Access to the title plant facility and the use of the
Title Plant will be limited to the employees of Customer required to
search title, as defined in Paragraph 9(b) above, to specific property
involved in its title orders and to provide usual customer service.
Customer agrees that access to the Title Plant shall not be utilized
by Customer or any of its employees for the purpose of furnishing any
information to any other title insurance company, title company, or
any person, firm or corporation except Customer and Customer's
customers in the ordinary course of its business.
(h) NO PLANT TOURS. Customer is not allowed to conduct any organized
"plant tours" of the premises where the Title Plant is located.
(i) NO EXTRAORDINARY TITLE PLANT AGREEMENTS. Customer shall not be allowed
to provide for extraordinary Title Plant service agreements to its
customers. Use of the Title Plant is limited to specific bona fide
orders
for title insurance policies, binders, guarantees, endorsements and
reports covering specific parcels of real property. However, Customer
shall have the right to utilize the Title Plant to furnish the usual
customer service as to inquiry by customers of Customer as regards
specific parcels of land or specific documents in the Title Plant.
(j) DUE CARE USE. Customer agrees to exercise due care in the use of the
Title Plant and of the space provided in the title plant facility so
as to prevent loss or damage. Customer also agrees that it will be
liable to Security Union for any loss or damage to the Title Plant or
building or any other property of Security Union arising out of a
failure to exercise due care or arising out of an intentional,
dishonest or fraudulent act of an employee of Customer.
(k) OTHER PLANT USES BY SECURITY UNION. Security Union shall have the
right, during the term of this Agreement, to enter into other
contracts with any title insurer, title company or any other person,
firm or corporation, covering all or any part of the Title Plant or
Security Union's facilities. Those contracts may include, but will not
be limited to, title plant leases, title plant service agreements,
underwriting contracts or any combination of the above.
(l) NONEXCLUSIVE USE. It is recognized by the parties that Security Union
shall continue to use the Title Plant owned by it in the usual and
ordinary course of its business of reporting upon and insuring land
titles, while at the same time furnishing plant services to Customer
as well as others.
(m) ADVERTISEMENT OF USE OR OWNERSHIP. During the term of this Agreement,
Customer shall not publicize to the public that Customer owns the
Title Plant or has any interest in the Title Plant except such rights
as are specifically granted to Customer by this Agreement. Likewise,
during the term of this Agreement, Security Union shall not in any
advertisement or publicity state that Customer is dependent upon
Security Union for use of its Title Plant.
Security Union may, however, publicize to whatever extent it may
desire, its ownership of the Title Plant.
14. DISASTER OR OTHER INTERRUPTION OF SERVICE
(a) FORCE MAJEURE. If at any time either party to the Agreement is
prevented from performance when due (other than performance consisting
of payment of money) by a disaster such as or resulting from flood,
hurricane, cyclone, earthquake, fire or other event commonly referred
to as an "Act of God", causing extensive destruction or damage; or by
acts of war, riot, unlawful assembly, strikes, explosions, "peaceful
protest" gatherings or other similar events causing or accompanied by
extensive destruction; so that it is impossible or unreasonably
difficult for that party to perform, then its failure to perform when
performance is due will be deemed excused. However, that party must
take all reasonable steps to remedy its non-performance or delay in
performance with the least possible delay, and by doing whatever may
reasonably be done to mitigate the adverse effect of its
non-performance upon the other party to this Agreement.
(b) TEMPORARY INTERRUPTIONS. The parties recognize that the input and
retrieval of the information contained in Security Union's computer
system is subject to the hazards of temporary interruptions by reason
of equipment failure arising out of numerous possible causes and that
Security Union is not a guarantor of the constant and continual
availability of the computer system installed on the premises of
Security Union. Security Union does, however, agree that it will
maintain a reasonable capability to provide timely, workmanlike repair
and maintenance service whenever the computer system becomes
inoperable.
(c) SECURITY COPY. Security Union further covenants and agrees that will
at all times maintain a security copy of that portion of the Data Base
which is contained in Security Union's computer system. The security
copy shall be in the form of magnetic tape, stored away from the
location
of Security Union's computer center. The magnetic tape security copy
shall be updated monthly.
15. COMPUTER SYSTEM LIABILITY DISCLAIMER
Notwithstanding any provision of this Agreement to the contrary, Customer
agrees that Security Union shall incur no liability to Customer in the
event of damage or destruction to the computer system installed on the
premises of Security Union or any part of that computer system from any
cause whatsoever. Security Union shall not be required to reinstitute or
reconstruct the then existing computer system if it is damaged or destroyed
from any cause whatsoever. Security Union does, however, covenant and agree
that it will use its best efforts to devise and implement reasonably
adequate security measures to prevent damage or destruction of the computer
system and interruptions of the use of the computer system, all in
accordance with reasonable prudent business practice.
16. OTHER PLANT CONTRACTS
Security Union shall have the right, during the term of this Agreement, to
enter into other contracts with any title insurer or underwritten title
company, or any other person, firm or corporation, covering its title plant
facilities or any portion of those facilities, including, but not limited
to, title plant leases or title plant service agreements.
17. SYSTEMS CHANGES
It is anticipated that Security Union may, during the existence of this
Agreement, but without obligation to do so, make certain systems additions
or changes in the title plant or in the method of input, storage and
retrieval, it is agreed by Customer that Security Union shall have the
right to make such changes or additions so long as the use of the Title
Plant by Customer is comparable to the use by others.
18. CHANGE OF LOCATION
Three (3) months after serving upon Customer written notice of its
intention to move the Title Plant, Security Union shall have the right to
move the physical location of
its Title Plant, and the space and the access furnished under this
Agreement from the present location to any other location. Security Union
may move its computerized records for the Title Plant, any appurtenant
equipment and software to any location at any time without notice
19. NONLIABILITY FOR INJURY OR DAMAGE AND INDEMNIFICATION
(a) NONLIABILITY. Security Union shall not be liable for injuries to any
employees, guests or invitees of Customer nor for damage to property
of Customer caused by the conditions of the premises where the Title
Plant is located.
(b) INJURY OR DAMAGE. Customer agrees to neither hold nor attempt to hold
Security Union, its agents or employees liable for any injury or
damage, either proximate or remote, occurring through or caused by any
repairs, alterations, injury or accidents in or to the premises, to
adjacent premises or other parts of the building, whether by reason of
the negligence or fault of Security Union, another Customer or any
other person; nor liable for any injury of damage occasioned by gas,
smoke, rain, snow, wind, ice, hail, water, lightning, earthquakes,
war, civil disorder, strike, defective electric wiring or the breaking
or stoppage of the plumbing or sewage upon or in the building or
adjacent premises, whether the breakdown or stoppage results from
freezing or otherwise and no matter how often injury or damage occurs.
All personal property stored in the premises will be at the sole risk
of the Customer. Security Union shall not be liable for any misuse or
unauthorized use of Customer's equipment or property, including
telephone equipment and lines.
(c) INDEMNIFICATION. Customer accepts the premises and agrees to defend,
indemnify and hold Security Union harmless from any and all claims,
damages, liabilities, losses or actions, including costs, expenses and
attorneys' fees, arising out of actions or claims by employees, guests
or invitees of Customer, by reason of death, injuries to person or
damage
to property arising out of or relating to use of the premises or use
of any office equipment located on the premises where the Title Plant
is located.
20. INSURANCE
Customer agrees to maintain and pay the premium for the following insurance
coverage during the entire term of this Agreement, together with any
special endorsements as specified:
(a) WORKERS' COMPENSATION INSURANCE. Workers' Compensation Insurance to
meet statutory State requirements (or approval by the State of
California to be permissibly self-insured) and Employers' Liability
coverage with minimum limits of One Hundred Thousand Dollars
($100,000.00) for all persons employed by Customer who may come on to
or occupy the premises and Customer will have its carrier waive any
right of subrogation thereunder with respect to Security Union.
(b) COMPREHENSIVE GENERAL LIABILITY INSURANCE. Comprehensive General
Liability Insurance covering all injuries to persons or damages to
property that occur in or about the premises. This policy will provide
at least the following coverages and limits:
i. The policy will name Security Union as an Additional Insured.
ii. The policy will carry a minimum combined single liability limit
of One Million Dollars ($1,000,000.00), or such higher amount as
Security Union may from time to time reasonably require.
iii. The policy shall be endorsed with a cross-liability endorsement
stating that in the event that a claim is brought by one insured
against another insured under the policy, or by an employee of
one insured against another insured under the policy, each
insured shall be considered a separate insured for the purpose of
the insurance.
iv. The policy shall be written on a "caused by any occurrence"
rather than written on the "caused by accident" basis for bodily
injury and property damage liability coverage.
v. The policy shall be written with a blanket contractual liability
endorsement providing automatic coverage for bodily injury or
property damage, assumed under any type of written contract in
addition to types of contracts defined in the policy form, except
any contract under which the insured assumes liability for the
sole negligence of an indemnitee.
vi. The policy shall be written using a "personal injury" endorsement
providing coverage for claims arising out of false arrest, false
imprisonment, defamation of character, libel and slander,
wrongful eviction, and invasion of privacy, and such endorsement
shall not contain an exclusion of coverage for claims for
"personal injury" brought by employees of an insured.
(c) PROPERTY DAMAGE INSURANCE. Customer will obtain and maintain
during the entire term All-Risk Property Damage coverage for its
personal property, trade fixtures, any interior improvements
constructed within the premises and any alterations to the premises
made by Customer pursuant to this Agreement, all on a replacement cost
basis. Customer will have its carrier waive any right of subrogation
on behalf of Security Union.
(d) OTHER INSURANCE MATTERS.
i. All insurance required of Customer under this Agreement will be
primary coverage and will not be contributing with any other
insurance maintained by Security Union. The insurance must be
written by insurance companies reasonably satisfactory to
Security Union. Customer must provide Security Union prior to
occupancy, and annually thereafter, satisfactory Certificates of
Insurance by Customer to Security Union must specify that thirty
(30) days written notice of cancellation or non-renewal will be
provided to Security Union.
ii. The insurance policies must insure performance by the Customer of
the indemnity provisions of this Agreement related to the use of
the premises.
iii. If Customer fails to obtain any of the insurance required in this
Agreement, Security Union may obtain the insurance on behalf of
Customer and the cost of obtaining the insurance must be paid by
Customer as additional charges with the first payment of charges
which are due subsequent to Security Union incurring any costs.
21. COMPETITION
This Agreement shall not operate to deny either party the right and
opportunity to compete with each other, or to compete on an equal basis on
the open market. Nothing contained in this Agreement is to be deemed to
constitute an association, partnership or joint liability between the
parties. The parties have no intention or thought to agree between
themselves, or even to confer together, as to underwriting methods, as to
fees or premiums to be charged by them to their customers, or as to any
other processes or practices of either party except as otherwise stated or
prescribed by the Issuing Agency Agreement entered into between the
parties.
22. DEFAULT
(a) TERMINATION ON DEFAULT. If either party does not faithfully perform
all of the terms and provisions of this Agreement or in any manner
fails, refuses or neglects to perform its obligations under this
Agreement and does not cure that default within ten (10) days after
receipt of written notice specifying the default, then this Agreement
may be terminated by the party not in default.
(b) NONEXCLUSIVE REMEDIES. Any right of termination is in addition to any
other remedy provided by law or equity.
(c) NONWAIVER. Failure by either party to declare a termination of this
Agreement for the breach of any one or more of the provisions
contained in this Agreement or a failure of either party to take
action under the provisions of
this Agreement for a breach will never be construed as a waiver of the
breach or any subsequent breach of the same or other provisions of
this Agreement. But, on the contrary, either party may at any time
take advantage of and act upon the breach in accordance with
applicable provisions of this Agreement.
23. CONSTRUCTION AND PERFORMANCE
This Agreement shall not be construed against the party preparing it, but
shall be construed as if all parties prepared this Agreement and in
accordance with the laws of the State of California. The headings of each
numbered paragraph are to assist in reference only and are not to be used
in the interpretation of the paragraphs.
24. ARBITRATION
If either party institutes an action against the other party for breach of
this Agreement, at Security Union's option, arbitration shall be conducted
in accordance with the Rules of Commercial Arbitration of the American
Arbitration Association ("AAA"). The arbitration shall be conducted in Los
Angeles by a single arbitrator. If the parties have not agreed to a
mutually acceptable arbitrator within thirty (30) days of the date of the
notice to arbitrate, the arbitrator shall be selected by the AAA from its
regularly maintained list of commercial arbitrators. The arbitrator shall
conduct a single hearing for the purpose of receiving evidence and shall
render a decision within thirty (30) days of the conclusion of the hearing.
The parties shall be entitled to require production of documents prior to
the hearing in accordance with the procedures set forth in the Federal
Rules of Civil Procedure, and shall exchange a list of witnesses and be
entitled to conduct up to five (5) depositions in accordance with the
procedures of the Federal Rules of Civil Procedure. The decision of the
arbitrator shall be binding and final.
25. GOVERNING LAW
This Agreement is to be construed under the laws of the State of
California.
26. SAVINGS CLAUSE
In any one or more of the terms, provisions, promises, covenants or
conditions of this Agreement, or their application to any person,
corporation, other business entity, or circumstance is to any extent
adjudged invalid, unenforceable, void or voidable for any reason whatsoever
by a court of competent jurisdiction, each and all of the remaining terms,
provisions, promises, covenants and conditions of this Agreement and their
application to other persons, corporations, business entities or
circumstances will not be affected and shall be valid and enforceable to
the fullest extent permitted by law.
27. ASSIGNMENT OR TRANSFER
(a) INVOLUNTARY TRANSFER. If Customer's rights and benefits in this
Agreement are transferred in whole or in part by involuntary method,
or by operation of law, or by merger, Security Union shall have the
right to terminate this Agreement if the result is not satisfactory to
Security Union.
(b) NONASSIGNABLE. This Agreement cannot be assigned, in whole or in part,
by Customer without the prior written consent of Security Union, which
consent shall not be unreasonably withheld.
(c) BANKRUPTCY OF CUSTOMER. Notwithstanding the definite term of this
Agreement, it will be automatically terminated upon the filing of a
petition in bankruptcy by Customer, or the appointment of a receiver
for Customer, or the adjudication in bankruptcy on an involuntary
partition against Customer, or if any general assignment for the
benefit of creditors by Customer of its assets is made.
(d) SALE OF CUSTOMER'S ASSETS. If Customer sells all or substantially all
of its assets, then Security Union, at its option, shall have the
right to terminate this Agreement.
(e) ASSIGNMENT BY SECURITY UNION. Security Union shall have the right,
without Customer's consent, to assign this Agreement to a corporation
with which it may merge or consolidate, to any parent or subsidiary of
Security Union or
subsidiary of Security Union's parent, or to a purchaser or
substantially all of Security Union's assets.
28. NOTICES
(a) METHODS AND ADDRESSES. All written notices permitted or required to be
given under this Agreement may be personally delivered to the office
of each of the parties, or mailed to the office of each party by
Registered or Certified United States Mail when addressed as follows:
To Security SECURITY UNION TITLE INSURANCE COMPANY
Union: 0000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Vice President,
Plant and Title Support Operations
-and -
SECURITY UNION TITLE INSURANCE COMPANY
000 Xxxxx Xxx Xxxxxx Xxxxxx, Xxx. 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Division Counsel
To Customer: CAPITAL TITLE GROUP, INC.
00000 X. Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
(b) CHANGE OF ADDRESS. Either party may, by written notice to the other,
change the address to which notices are to be sent.
29. COMPLIANCE WITH LAWS AND REGULATIONS
Customer agrees to use information received from Security Union in
compliance with all applicable State and Federal laws and regulations,
including the Federal Credit Reporting Act (U.S.C.A. Title 15, Chapter 41,
Subchapter III).
30. SURVIVAL
Following the expiration or termination of this Agreement, whether by its
terms, operation of law or otherwise, all terms, provisions or conditions
required for the interpretation of this Agreement or necessary for the full
observation and performance by each party hereto of all rights and
obligations arising prior to the date of expiration or termination, shall
survive such expiration or termination.
31. PROPRIETARY INFORMATION
Customer agrees that all Security Union supplied information, software,
manuals and documentation provided as part of this service are proprietary
and confidential information of Security Union or its suppliers. Customer
will permit only its employees or authorized representatives to have access
to such material. Customer further agrees to not make copies of such
manuals, documentation or Agreements, Attachments and Exhibits. Customer
will return all Security Union property upon termination or expiration of
this Agreement.
32. SUPPLIER ARRANGEMENTS.
Certain of the material and information provided or made available to
Customer under this Agreement is obtained by Security Union from third
party suppliers. In the event that any such supplier fails to deliver (or
delays the delivery of) such material or information (through no fault of
Security Union) or in the event that any such supplier materially and
adversely modifies the conditions or cost to Security Union of obtaining
such material or information, then Security Union, at its option, may (1)
use reasonable efforts to seek alternative sources of supply on
commercially reasonable term; or (2) suspend or terminate its obligations
to Customer under this Agreement either with respect to the portion of such
Agreement which relates thereto or with respect to the entire Agreement
upon sixty (60) days written notice; or (3) notwithstanding any other
provision of this Agreement to the contrary, increase the applicable fees
or charges upon thirty (30) days written notice; or (4) any combination of
the foregoing. Security Union will incur no liability to Customer with
respect to any action or omission under this Paragraph.
33. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
pertaining to the subject contained in it and supersedes all prior and
contemporaneous agreements, both oral and written, representations and
understandings of the parties. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the parties.
No waiver of any of the provisions of this Agreement is to be considered a
waiver to constitute a continuing waiver. No waiver shall be binding unless
executed by the party making the waiver.
34. COUNTERPART EXECUTION
This Agreement may be executed simultaneously in two counterparts, each of
which shall be deemed an original but which together shall constitute one
and the same instrument.
The parties have executed this Agreement effective as of the date written
at Paragraph 2 of this Agreement.
SECURITY UNION TITLE INSURANCE CAPITAL TITLE GROUP, INC.
COMPANY ("Security Union") ("Customer")
By: /s/ Xxxxx X. Beach By: /s/ Xxxxxx X. Head
-------------------------- --------------------------
Print Name: Xxxxx X. Beach Print Name: Xxxxxx X. Head
----------------- ------------------
Title: Vice President Title: CEO
---------------------- -----------------------
Date: 5-12-98 Date: 4-29-98
---------------------- -----------------------
APPENDIX "A"
SCHEDULE OF FEES
1. INITIAL BACK PLANT CHARGE.
The initial charge to Customer for access to the Back Title Plant shall
be Ten Thousand Dollars ($10,000.00).
2. MONTHLY BASE CHARGE.
The monthly charge to Customer for access to the Title Plant shall be a
base fee of Eight Thousand Dollars ($8,000.00) each month, for the
County. This base fee shall allow three hundred title orders for the
month. This base fee shall be due and payable whether or not Customer
finds it necessary to access the Title Plant.
3. FEE FOR TITLE ORDERS EXCEEDING BASE AMOUNT.
Security Union shall xxxx and Customer shall pay Twelve Dollars and
Fifty Cents ($12.50) for each title order in excess of three hundred a
month.
4. ADDITIONAL FEES.
An additional fee of $.10 shall be made each month for each of
Customer's open order items remaining open in the system over 180 days.
5. IMAGE CHARGES.
Customer shall pay Security Union each month for Customer's image
access in the prior month according to the following:
Type of Image Charge
------------- ------
Document $ .42 per Document
Map $ .25 per Map page
Starter $1.25 per Starter
6. NETWORK ACCESS.
Security Union shall xxxx and Customer shall pay a Network Access
charge of Four Hundred Dollars ($400.00) each month, per site.
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APPENDIX "A"
7. ANNUAL INCREASE.
The additional fees charge as stated above, shall be increased annually
on July 1 (first adjustment year 1999) by the percentage amount
indicated by the annual change in the Consumer Price Index for urban
wage earners and clerical workers for the Los Angeles/Riverside/Anaheim
Area of the State of California, as compiled by the U.S. Department of
Labor, Bureau of Labor Statistics ("Index") for the twelve (12) months
immediately preceding the adjustment date.
The charges shown above do not include the necessary equipment, data
line and/or communications equipment necessary to access the title
plant. These monthly charges shall be determined at the time of
installation and invoiced separately.
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