HomeMy WebLinkAboutAgreement A-18-590 with Fidelity National Title Company.pdf-1-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TITLE AND ESCROW AGREEMENT
THIS AGREEMENT is made and entered into this day of ___________, 2018,
by and between the COUNTY OF FRESNO, a Political Subdivision of the State of California,
hereinafter referred to as the "COUNTY", and Fidelity National Title Company, a California
corporation, whose address is 7475 N Palm Avenue, Suite 101, Fresno CA 93711, hereinafter
referred to as the "COMPANY".
W I T N E S S E T H:
WHEREAS, the COUNTY’S Department of Public Works and Planning desires to acquire
Litigation Guarantees, Escrow Services, and Title Insurance Policies for parcels to be acquired for
various projects that may arise from time to time; and
WHEREAS, the COMPANY represents that it is able to provide Litigation Guarantees,
Escrow Services and Title Insurance Policies, and is willing to provide them subject to the terms
and conditions of this AGREEMENT.
NOW, THEREFORE, in consideration of the covenants and conditions of the parties
hereinafter expressed, it is agreed as follows:
1.DEFINITIONS
A.The word “Report(s)” used herein shall mean Litigation Guarantee(s) as
currently defined by the California Land Title Association.
B.“Escrow Service(s)” shall mean those services which facilitate a transfer of
an interest in real property and in which documents and funds are delivered by the COUNTY to
the COMPANY as escrow holder, pursuant to specific escrow instructions from the COUNTY.
C.“Title Insurance Policy” shall mean the California Land Title Association
standard coverage policy (current form).
D. “Updated Report(s)” shall refer to any Report, as defined herein,
originally issued to the COUNTY pursuant to this AGREEMENT and which is then re-issued in
an updated form and which covers the same property as described in the original Report.
18-1026
9th October
Agreement No. 18-590
-2-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2.OBLIGATIONS OF THE COMPANY
A.The COMPANY shall furnish Reports, Escrow Services and Title Insurance
Policies for properties, as requested in writing by the COUNTY.
B.The COMPANY shall make a good faith effort to deliver Reports requested
by the COUNTY within thirty (30) days following receipt of the request. The COMPANY shall
provide the COUNTY with three (3) copies of each Report and shall make delivery to the following
address: County of Fresno, Department of Public Works and Planning, Design Division, 2220
Tulare Street, 6th Floor, Fresno, California 93721, Attention: Design Engineer.
C.Each Report shall include a copy of the vesting paragraph and shall recite
the exact title as it would appear on a grant deed, or other valid instrument of title, followed by the
date of recordation and the other recording data of the vesting deed. The COMPANY reserves
the right to add additional language to the vesting area as it deems necessary. The required
Report format is detailed in Exhibit “A”, attached. The Reports shall also include but not be limited
to the following:
1)One copy of the vesting deed;
2)Legal description of property;
3)All liens, encumbrances, easements and right of way of record, which
would purport to affect the condition of the title as of the date of the guarantee or report;
4)Assessor’s parcel number and valuation;
5)APN map with property marked; and
6)Names, interest and addresses of all parties of record.
D.The COMPANY will advise the COUNTY within two (2) weeks if the
COMPANY will be unable to deliver any of the requested Reports within the thirty (30) day period.
Thereafter, if so requested by the COUNTY in writing, the COMPANY shall cease further work on
the requested Reports. The COUNTY shall pay for all services provided by the COMPANY prior
to notice to cease work, which payment shall be pro-rated on the basis the work satisfactorily
completed bears to the total work required for each requested Report.
-3-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3.OBLIGATIONS OF THE COUNTY: When Requesting Reports and Escrow
Services, the COUNTY shall furnish the COMPANY the exact location of the parcels of land for
which title information is requested. It is understood that the COUNTY is under no obligation to
request any Reports, Escrow Services and Title Insurance Policies under this Agreement.
4.TERM: The term of this AGREEMENT shall be for a period of three (3)
years, commencing on the date of execution through and including the third anniversary of
execution. This AGREEMENT may be extended for two (2) additional consecutive twelve (12)
month periods upon written approval of both parties no later than thirty (30) days prior to the
first day or the next twelve (12) month extension period. The Director of the Department of
Public Works and Planning or his or her designee is authorized to execute such written
approval on behalf of the COUNTY based on the COMPANY’s satisfactory performance.
Reports may only be ordered during the initial term of this Agreement. Updates for Reports and
Escrow Services may be ordered at any time during the term of this Agreement.
5.TERMINATION
A.Non-Allocation of Funds - The terms of this AGREEMENT and the services
to be provided thereunder, are contingent on the approval of funds by the appropriating
government agency. Should sufficient funds not be allocated, the services provided may be
modified, or this AGREEMENT terminated, at any time by giving the COMPANY thirty (30) days
advance written notice.
B.Breach of Contract - The COUNTY may immediately suspend or terminate
this AGREEMENT in whole or in part, where in the determination of the COUNTY there is:
1)An illegal or improper use of funds;
2)A failure to comply with any term of this AGREEMENT;
3)A substantially incorrect or incomplete report submitted to the
COUNTY;
4)Improperly performed service.
In no event shall any payment by the COUNTY constitute a waiver by the COUNTY
of any breach of this AGREEMENT or any default which may then exist on the part of the
-4-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COMPANY, nor shall such payment impair or prejudice any remedy available to the COUNTY
with respect to the breach or default. The COUNTY shall have the right to demand of the
COMPANY the repayment to the COUNTY of any funds disbursed to the COMPANY under this
AGREEMENT, which in the judgment of the COUNTY were not expended in accordance with the
terms of this Agreement. The COMPANY shall promptly refund any such funds upon demand.
C. Without Cause - Under circumstances other than those set forth above,
this AGREEMENT may be terminated by the COUNTY upon the giving of thirty (30) days advance
written notice of an intention to terminate to the COMPANY. In the event of such termination, the
COMPANY shall be paid for satisfactory services completed and delivered to the COUNTY by
date of termination.
6. COMPENSATION/INVOICING: A Fee Schedule for services is included in
Exhibit B, attached. The regular billing rate for all services shall be as detailed in Exhibit B, unless
adjusted as specified in accordance with this Agreement. The COUNTY shall compensate the
COMPANY as follows:
A. Reports – The COUNTY shall pay the COMPANY for each Report ordered
by and furnished to the COUNTY, except in the event of an unusually difficult title search, wherein
such case the COMPANY shall notify the COUNTY in advance of anticipated additional charges,
and then only proceed if the COUNTY agrees in writing to said additional charges. Updated
Reports requested by the COUNTY shall be provided by the COMPANY at no extra charge for up
to one year after the date the original Report was issued.
B. Escrow Services – The COUNTY shall pay the COMPANY for each
Escrow Service ordered by the COUNTY. The COMPANY shall notify the COUNTY in advance
of performing any Escrow Services that will result in an additional cost to the COUNTY, and only
process if said additional cost is first approved in writing by the COUNTY Supervising Engineer or
his designee. The COUNTY will pay the COMPANY for those additional costs at the rates set
forth in the written approval of the COUNTY. Should any escrows remain open after the
termination of this AGREEMENT, escrow charges will be billed upon close of escrow at the same
amount as set forth under this AGREEMENT.
-5-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
C. Title Insurance – Upon request, the COMPANY shall provide a Title
Insurance Policy in the amount of the purchase price of the property represented in each report.
7. INVOICING:
A. Billing - Generally, the COUNTY will order Reports in a group for a
particular project. The COMPANY shall submit only one invoice for each group of Reports
ordered upon the completion and delivery of all Reports in the group. Invoices for Escrow
Services, however, shall be submitted upon the close of each individual escrow. The COMPANY
shall submit invoices to the COUNTY at: Department of Public Works and Planning, Business
Office, 2220 Tulare Street, 6th Floor, Fresno, California, 93721, or
PWPBusinessOffice@co.fresno.ca.us. Invoices shall include the COUNTY project name and
report/escrow numbers. Upon review and approval of invoice, the COUNTY will provide payment;
typically within approximately forty-five (45) days from receipt of an invoice.
B. Payment Limit - In no event shall services performed under this Agreement
during its term and successive renewals total in excess of Two Hundred Thousand Dollars
($200,000.00). It is understood that all expenses incidental to the COMPANY'S performance of
services under this AGREEMENT shall be borne by the COMPANY.
8. INDEPENDENT CONTRACTOR: In performance of the work, duties and
obligations assumed by the COMPANY under this AGREEMENT, it is mutually understood and
agreed that the COMPANY, including any and all of the COMPANY'S officers, agents, and
employees will at all times be acting and performing as an independent contractor, and shall
act in an independent capacity and not as an officer, agent, servant, employee, joint venturer,
partner, or associate of the COUNTY. Furthermore, the COUNTY shall have no right to control
or supervise or direct the manner or method by which the COMPANY shall perform its work and
function. However, the COUNTY shall retain the right to administer this AGREEMENT so as to
verify that the COMPANY is performing its obligations in accordance with the terms and
conditions thereof. The COMPANY and COUNTY shall comply with all applicable provisions of
law and the rules and regulations, if any, of governmental authorities having jurisdiction over
matters the subject thereof.
-6-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Because of its status as an independent contractor, the COMPANY shall have
absolutely no right to employment rights and benefits available to COUNTY employees. The
COMPANY shall be solely liable and responsible for providing to, or on behalf of, its employees all
legally-required employee benefits. In addition, the COMPANY shall be solely responsible and
hold the COUNTY harmless from all matters relating to payment of the COMPANY'S employees,
including compliance with Social Security withholding and all other regulations governing such
matters. It is acknowledged that during the term of this AGREEMENT, the COMPANY may be
providing services to others unrelated to the COUNTY or to this AGREERMENT.
9. MODIFICATION: Any matters of this AGREEMENT may be modified from
time to time by the written consent of all the parties without, in any way, affecting the remainder.
10. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this
AGREEMENT nor their rights or duties under this AGREEMENT without the prior written consent
of the other party.
11. HOLD HARMLESS: Subject to the applicable Coverages and the standard
Schedule of Exclusions and Guarantee Condition and Stipulations contained in the COMPANY’s
guarantees and Reports, examples of which are attached hereto as Exhibit “C” and incorporated
by this reference, the COMPANY agrees to indemnify, save, hold harmless, and at the
COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all
costs and expenses, damages, liabilities, claims, and losses occurring or resulting to the COUNTY
in connection with the performance, or failure to perform, by the COMPANY, its officers, agents, or
employees under this AGREEMENT, and from any and all costs and expenses, damages,
liabilities, claims, and losses occurring or resulting to any person, firm, or corporation who may be
injured or damaged by the performance, or failure to perform, of COMPANY, its officers, agents,
or employees under this AGREEMENT.
12. INSURANCE: Without limiting the COUNTY's right to obtain indemnification
from the COMPANY or any third parties, the COMPANY, at its sole expense, shall maintain in
full force and effect, the following insurance policies, throughout the term of the AGREEMENT:
A. Commercial General Liability
-7-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Commercial General Liability Insurance with limits of not less than Two
Million Dollars ($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars
($4,000,000.00). This policy shall be issued on a per occurrence basis. The COUNTY may
require specific coverage including completed operations, products liability, contractual liability,
Explosion-Collapse-Underground, fire legal liability or any other liability insurance deemed
necessary because of the nature of this contract.
B. Automobile Liability
Comprehensive Automobile Liability Insurance with limits for bodily injury of
not less than One Million Dollars ($1,000,000.00) per accident for bodily injury and for property
damages. Coverage should include any vehicle used in connection with this AGREEMENT.
C. Professional Liability (Errors and Omissions)
The COMPANY shall maintain a policy of errors and omissions liability
insurance with limits of not less than One Million Dollars ($1,000,000.00) per occurrence, Two
Million Dollars ($2,000,000.00) annual aggregate during the term of this AGREEMENT.
D. Worker's Compensation
A policy of Worker's Compensation insurance as may be required by the
California Labor Code.
The COMPANY shall obtain endorsements to the Commercial General Liability
insurance naming the County of Fresno, its officers, agents, and employees, individually and
collectively, as additional insured, but only insofar as the operations under this AGREEMENT are
concerned. Such coverage for additional insured shall apply as primary insurance and any other
insurance, or self-insurance, maintained by the COUNTY, its officers, agents and employees shall
be excess only and not contributing with insurance provided under the COMPANY's policies
herein. This insurance shall not be cancelled or changed without a minimum of thirty (30) days
advance written notice given to the COUNTY.
Within thirty (30) days from the date the COMPANY signs and executes this
Agreement, the COMPANY shall provide certificates of insurance and endorsements as stated
above for all of the foregoing policies, as required herein, to the County of Fresno, Department of
-8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Public Works and Planning, Design Division, Attention Design Engineer, 2220 Tulare Street, 6th
Floor, Fresno, California, 93721-2120, stating that such insurance policies have been obtained
and are in full force; that the County of Fresno, its officers, agents and employees will not be
responsible for any premiums on the policies; that such Commercial General Liability insurance
names the County of Fresno, its officers, agents and employees, individually and collectively, as
additional insured, but only insofar as the operations under this AGREEMENT are concerned; that
such coverage for additional insured shall apply as primary insurance and any other insurance, or
self-insurance, maintained by the COUNTY, its officers, agents and employees, shall be excess
only and not contributing with insurance provided under the COMPANY's policies herein; and that
this insurance shall not be cancelled or changed without a minimum of thirty (30) days advance,
written notice given to the COUNTY.
In the event the COMPANY fails to keep in effect at all times insurance
coverage as herein provided, the COUNTY may, in addition to other remedies it may have,
suspend or terminate this Agreement upon the occurrence of such event.
All policies shall be with admitted insurers licensed to do business in the State
of California, and such insurance shall be purchased from companies possessing a current A.M.
Best, Inc. rating of A FSC VII or better.
13. LAWS AND REGULATIONS: The COMPANY, its consultants, contractors
and subcontractors shall comply with all applicable State and Federal laws and regulations
regarding services supplied by the COMPANY under this AGREEMENT.
14. AUDITS AND INSPECTIONS: The COMPANY shall at any time during
business hours, and as often as COUNTY may deem necessary, make available to the COUNTY
for examination all of its records and data with respect to the matters covered by this
AGREEMENT. The COMPANY shall, upon request by the COUNTY, permit the COUNTY to audit
and inspect all of such records and data necessary to ensure the COMPANY'S compliance with
the terms of this AGREEMENT.
If this AGREEMENT exceeds ten thousand dollars ($10,000.00), the
COMPANY shall be subject to the examination and audit of the Auditor General for a period of
-9-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
three (3) years after final payment under contract (Government Code Section 8546.7).
15. NOTICES: The persons and their addresses having authority to give and
receive notices under this Agreement include the following:
COUNTY:
Department of Public Works & Planning/
Design Division, 2220 Tulare Street, 6th Floor
Fresno, CA 93721
Attn: Mohammad Alimi, Design Div. Manager
COMPANY:
Fidelity National Title Company
7475 N. Palm Avenue, Suite 101
Fresno, CA 93711
Attn: Andy Kern, Vice President
Any and all notices between the COUNTY and the COMPANY provided for or
permitted under this AGREEMENT or by law shall be in writing and shall be deemed duly served
when personally delivered to one of the parties, or in lieu of such personal service, when
deposited in the United States Mail, postage prepaid, addressed to such party.
16. GOVERNING LAW : Venue for any action arising out of or related to this
Agreement shall only be in Fresno County, California.
The rights and obligations of the parties and all interpretation and performance
of this Agreement shall be governed in all respects by the laws of the State of California.
17. DISCLOSURE OF SELF-DEALING TRANSACTIONS:
This provision is only applicable if the COMPANY is operating as a corporation (a for-profit or
non-profit corporation) or if during the term of this agreement, the COMPANY changes its
status to operate as a corporation.
Members of the COMPANY’s Board of Directors shall disclose any self-
dealing transactions that they are a party to while the COMPANY is providing goods or
performing services under this AGREEMENT. A self-dealing transaction shall mean a
transaction to which the COMPANY is a party and in which one or more of its directors has a
material financial interest. Members of the Board of Directors shall disclose any self -dealing
transactions that they are a party to by completing and signing a Self -Dealing Transaction
Disclosure Form, Exhibit “D” and submitting it to the COUNTY prior to commencing with the
self-dealing transaction or immediately thereafter.
1 18. SEVERABILITY: Should any part of this AGREEMENT be determined to be
2 invalid or unenforceable, then this AGREEMENT shall be construed as not containing such
3 provision, and all other provisions which are otherwise lawful shall remain in full force and effect,
4 and to this end, the provisions of this AGREEMENT are hereby declared to be severable.
5 19. ENTIRE AGREEMENT: This AGREEMENT constitutes the entire agreement
6 between the COMPANY and the COUNTY with respect to the subject matter hereof and
7 supersedes all previous Agreement negotiations, proposals, commitments, writings,
8 advertisements, publications, and understandings of any nature whatsoever unless expressly
9 included in this AGREEMENT.
10 IN WITNESS WHEREOF, the parties have executed this Agreement on the date set
11 forth above.
12
13 COMPANY;/
14 ~~
15 Andy Kern, Vict"esident
Fidelity National Title Company
7475 N. Palm Ave., Ste. 101
16
17 Fresno, CA 93711
18
19
20
21
22
23
24 FOR ACCOUNTING USE ONLY:
ORG: 4510 25 FUND: 0010
26 SUBCLASS: 11000
ACCOUNT: 7295
27
28
-10-
COUNTY OF FRESNO
ATTEST:
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California
EXHIBIT A
LITIGATION GUARANTEES
1. Escrow Officer’s Name
2. Escrow Officer’s Phone Number
3. Escrow Officer’s Fax Number
4. Escrow Officer’s Email Address
5. Escrow Number
6. Property Owner’s Name
7. Property Situs Address
8. Schedule A
a. Name of Assured: County of Fresno
b. Date of Guarantee:
c. “This Litigation Guarantee is furnished solely for the purpose of facilitating
the filing of an action to: Eminent Domain
d. The estate or interest in the Land which is covered by this Guarantee is:
Fee
e. Title to the estate or interest in the land is vested in:
f. Legal Description:
9. Schedule B
a. Defects, liens (Deeds of Trust), encumbrances or other matters affecting
title
b. Part One
i. General and special taxes and assessments for the current fiscal
year
ii. The lien of supplemental taxes, if any
iii. Water rights, claims or title to water
iv. Taxes and assessments, if any, of the property’s water district
v. Easements
vi. Any declarations of homestead
c. Part Two
i. Plat Map
10. Schedule C
a. Mailing Addresses, Recording Information, and their corresponding
Paragraph Number
11. Any exclusions from coverage of the Litigation Guarantee
12. Any Guarantee conditions and stipulations
13. Attachments, if applicable:
a. Exceptions
b. Vesting (Deeds)
c. Other Documents (including, but not limited to: Declaration of Homestead,
etc)
d. Plat Map
UPDATED LITIGATION GUARANTEES
Updated Litigation Guarantees should be submitted with the above information, with the
most current information available, including but not limited to:
1. Taxes paid, if applicable
2. New Deeds, if applicable
Exhibit B
Exhibit C
SELF-DEALING TRANSACTION DISCLOSURE FORM
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code 5233 (a)
(5) Authorized Signature
Signature: Date:
EXHIBIT D