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EXHIBIT 10.61
[NFCS LETTERHEAD]
FLOOD ZONE DETERMINATION AGREEMENT
THIS AGREEMENT is entered into this 14th day of July, 1994, (Effective Date),
between National Flood Certification Services ("NFCS"), a Florida Corporation
with principal offices at McCormick Center 3, 1000 112th Circle, Suite 100, St.
Petersburg, FL 33716, and SunBank NA, located at 200 S. Orange Avenue Twr. 5,
Orlando FL 32801 ("Customer").
WHEREAS, Customer desires to use NFCS for either new loans or to insure that
properties in their mortgage loan portfolios are in compliance as described in
the "Flood Disaster Protection Act of 1973".
WHEREAS, NFCS desires to provide flood zone determinations and documentation of
same to Customer.
1. TERM
A. The term of this Agreement shall commence on a date which shall be the
later of (i) the effective date entered above or (ii) the date signed by
both parties and shall continue thereafter until terminated by either
party upon thirty (30) days written notice to the other party.
B. 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 insolvent by a regulator, or makes an
assignment for benefit of creditors or becomes unable to meet its
obligations in the normal course of business as they fall due.
Additionally, this agreement may be terminated in the event of fraud or
misconduct by either party.
2. COVENANTS AND WARRANTIES
A. FOR ALL CUSTOMERS. NFCS shall provide certification of the determined
zone, community name and number, panel-suffix, map date, firm date and the
base flood elevation, if applicable, as required in order for Customer to
be in compliance with the Flood Disaster Protection Act. In addition if
specifically requested by Customer, NFCS will provide an original Flood
Zone Certificate for the file to all Customers using the service for new
loans; otherwise, a faxed copy will be sufficient.
B. FOR AUTOMATED DELIVERY USERS ONLY. Given the nature of the electronic
transfer of flood policy information from NFCS to customer, customer shall
indemnify and hold NFCS, its officers, directors, employees, agents, and
other affiliates harmless against any and all expenses or fees resulting
from the subsequent manipulation of said electronic data following the
transfer of the data from NFCS. Customer specifically recognizes,
understands, and agrees that all electronic data transferred from NFCS
shall have the presumption of validity and accuracy at the moment of
transmission. This clause is intended to protect NFCS, its associated
personnel and its affiliates from any losses, claims, disputes or material
problems regarding the electronic data due to the potential for
manipulation of such data following the transfer from NFCS, as long as the
loss, claim, dispute or material problem is not due to the negligence or
misconduct of NFCS, its officers, directors, employees, agents or other
affiliates.
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C. Customer shall pay to NFCS, compensation for selected services in the
amounts set forth in Schedule "A" which is attached hereto and by
reference made a part hereof.
D. NFCS shall not, without the written consent of Customer, disclose to any
third party any information it obtains or information provided by Customer.
NFCS shall undertake all reasonable precautions at least equivalent to the
same precautions it takes in preserving the confidentiality of NFCS' own
confidential or proprietary information, to preserve the confidentiality of
customer's information.
3. TERMS AND CONDITIONS
A. The zone determination is exclusively for the benefit of Customer, their
clients and/or the borrower for whose benefit the search is performed and
for no other party.
B. The zone determination is based upon an examination of the current
Flood Insurance Rate Maps as published by the Federal Emergency Management
Agency as well as other sources of information as required and applies only
to Subject Property identified by the Flood Insurance Rate Map Panels(s).
C. NFCS shall indemnify and hold harmless the above named organization for
liability on any uninsured flood loss, up to, and only up to, the maximum
available insurance coverage under the NFIP program for the property, if the
improved property was in a special flood area at the time of certification
and NFCS incorrectly certified that said property was not in such area.
Additionally, if any improved property was not in a special flood
hazard area at the time of certification and NFCS incorrectly certifies
that said property was in the special flood hazard area, NFCS shall
reimburse the borrower for all flood insurance premiums paid that were not
refunded by the named flood carrier's cancellation process. Errors and
Omissions coverage in the amount of $10 million will be maintained by NFCS.
NFCS warrants and represents that there is no requirement under its
error and omissions policy that suit be filed against NFCS in order to
collect damages under the policy.
D. The zone determination may contain information from public land records
and U.S. Government agencies relating to floodplain location. However, this
determination is based on the data which is currently available from
government sources and does not necessarily include all possible flood
hazards. NFCS shall not be liable for not reporting flood zone information
that was not generally available or was inaccurately shown on Government
records. This determination is based on information supplied by customers,
their clients and/or the borrower and NFCS will not be responsible for
inaccuracies in their submission.
A zone determination is valid only if signed by an authorized
representative of NFCS.
NFCS GUIDELINES
When the subject property is in a dual zone, we will certify a
flood zone determination using the most hazardous
zone unless additional information is povided.
We will also identify both zones in a dual zone situation.
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4. NOT A PARTNERSHIP
Nothing in this Agreement shall be construed to cause Customer to be in a
partnership with NFCS.
5. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Florida. Venue
for all legal actions commenced under this Agreement shall be in Orange
County, Florida.
6. INTEREST ON LATE PAYMENTS
In the event that sums due and payable hereunder shall remain unpaid 15
days after the party entitled to payment has served written notice on the
defaulting party that such sums are due but remain unpaid, then interest
shall accrue thereon until paid at the highest rate permitted by law.
7. ATTORNEY'S FEES
If customer or National Flood Certification Services, Inc. should bring a
Court action alleging breach of this Agreement or seeking to enforce,
rescind, renounce, declare void or terminate this Agreement or any
provision thereof, the prevailing party shall be entitled to recover all of
its legal expenses, including reasonable attorney's fees and costs
(including legal expenses for any appeals taken), and to have the same
awarded as part of the judgment in the proceeding in which legal expenses
and attorney's fees were incurred.
IN WITNESS WHEREOF, WE HAVE SET OUR HANDS AND SEALS AS OF THE DAY AND YEAR
FIRST ABOVE SET FORTH.
NATIONAL FLOOD CERTIFICATION Sunbank, National Association
SERVICES, INC. -------------------------------------
Company/Customer Name
/s/ D. M. Howard, Vice Pres. /s/ Sandra W. Jansky, E.V.P.
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David M. Howard, Vice President Signature/Title
7/11/94 7/14/94
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Date Date
(407) 237-6778
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Company/Customer Phone Number
(407) 237-4531
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Company/Customer Fax Number
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SCHEDULE A
New Loan Zone Determinations
Standard Service $12.50 each
(In by 3:00 p.m., out by 5:00 p.m.
in two business days)
Zone Guard* $24.00 each
Next Day Service $ 00. add'l
(In by 3:00 p.m., out by 5:00 p.m.
following business day)
Same Day Service $ 5.00 add'l
(In by 9:00 a.m., out by 5:00 p.m.
In after 9:00 a.m., out before Noon
the following business day)
(Times above are Eastern Standard Time.)
Fleet Service $ 7.00 add'l
(Five hour turnaround time.)
Recertifications $ 8.00 each
Billing amount to be due and payable within 30 days of Customer's receipt of
invoice.
*ZONE GUARD PROGRAM
Part A
For a one time fee, NFCS shall provide Customer an unlimited number of
recertifications of flood zone determinations relating to the same property at
no additional charge. (As mandated by regulations of the Federal Insurance
Administration, recertification is required should there be any subsequent
making, increasing, extension or renewal of a loan following loan origination.)
Part B
Zone Guard will also include notification if the flood hazard status of a
property in which Customer is the mortgagee changes as a result of the
issuance of a new flood map by the Federal Emergency Management Agency.
Transferring Zone Guard
Zone Guard is actually an "add-on" to the New Loan Determination or Portfolio
Analysis Zone Determination. After the date of the initial Certification,
whenever the applicable FEMA map panel is revised, each property will again be
assessed and certified within sixty (60) days after the date the FEMA map panel
is revised and generally available to NFCS. The Zone Guard recertifications are
transferable to subsequent mortgagees. However, all Zone Guard recertifications
shall be sent by regular mail to the address set forth on the face of this
Agreement or such alternative address as Customer (or its assignees) may, from
time to time designate in writing to NFCS.