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HomeMy WebLinkAbout2016-248-E DEAPR - Kennon Craver, Attys. - legal services for purchase of 37-acres from S. L. Efland Heirs, LLC DocuSign Envelope ID:01852EBC-82FE-4793-A89C-BAA6D5AE159C [Departmental Use Only] TITLE S.L. Efland Heirs closing FY 2015-16 ORANGE COUNTY CONTRACT UNDER$15,000.00 NORTH CAROLINA THIS AGREEMENT, made and entered into this 2nd day of May, 2016, ("Effective Date")by and between Orange County, North Carolina, a political subdivision of the State of North Carolina, (the "County"),parry of the first part; and Kennon Craver, Attorneys at Law (the "Provider"),party of the second part; WITNESSETH: For the purpose and subject to the terms and conditions hereinafter set forth, the County hereby contracts for the services of the Provider, and the Provider agrees to provide the following services to the County in accordance with the terms of this Agreement, time being of the essence: The services and/or materials (hereinafter referred to collectively as "Services") to be furnished under this Agreement are as follows: Legal services for completing Orange County's purchase of a 37-acre property from S.L. Efland Heirs, LLC consistent with an engagement letter provided by Mr. Brian Ferrell, Kennon Craver,Attorneys at Law(attached). The term of this agreement rendered shall be from May 2, 2016 to June 30,2016. Provider represents and agrees that Provider is qualified to perform and fully capable of performing and providing the services required or necessary under this Agreement in a fully competent, professional and timely manner to the satisfaction of the County. Provider shall be responsible for all errors or omissions, in the performance of the Agreement. Provider shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the County. Provider agrees that Provider shall not sub-contract any of the services to be provided in this Agreement, nor shall Provider assign any right or responsibility granted or required by this Agreement,without the prior written approval of the County. SPECIFIC TERMS I. Payment: The County agrees to pay at the rates specified for Services satisfactorily performed in accord with this Agreement. The amount to be paid by the County shall not exceed Four Thousand Dollars, ($4,000). Payment shall be made within thirty(30) days of an invoice properly submitted to County. Should Provider fail to perform its duties under the terms of this Agreement, County may,without fault or penalty,withhold any payment associated with the work to be performed until such time as said work is completed. 2. Non—waiver: Failure by County at any time to require the performance by Provider of any of the provisions hereof shall in no way waive or affect the County's right hereunder to enforce the same, nor shall any waiver by the County of any breach be held to be a waiver of any succeeding breach or a waiver of this Non-Waiver Clause. 3. Independent Contractor: The Provider shall operate as an independent contractor and the County shall not be responsible for any of the Provider's acts or omissions. The Provider shall not be treated as an employee with respect to the Services performed hereunder for federal or state tax, unemployment or workers' compensation purposes. The Provider understands that neither federal, nor state, nor payroll tax of any kind shall be withheld or paid by the County on behalf of the Provider or the employees of the Provider. 4. Insurance: Provider shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers' Compensation Insurance, and any additional insurance as may Revised 1/16 1 DocuSign Envelope ID:01852EBC-82FE-4793-A89C-BAA6D5AE159C be required by County's Risk Manager as such insurance requirements are described in the Orange County Risk Transfer Policy and Orange County Minimum Insurance Coverage Requirements (each document is incorporated herein by reference and may be viewed at http://www.orangecountync.gov/departments/purchasing division/contracts.php). If County's Risk Manager determines additional insurance coverage is required such additional insurance shall consist of (if no additional insurance required mark N/A as being not applicable). Provider shall not commence work until such insurance is in effect and certification thereof has been received by the County's Risk Manager. 5. Indemnity: The Provider agrees to defend, indemnify, and hold harmless Orange County from all losses, liabilities, claims, demands, suits, costs, damages or expenses (including reasonable attorney's fees) arising from bodily injury, including death, to any person or persons or damage to or destruction of any property caused in whole or in part by any negligent or intentional act or omission on the part of the Provider, its agents, or assigns directly or indirectly related to the Services to be performed pursuant to this Agreement on the part of the Provider. 6. Termination: This Agreement may be terminated at any time by mutual written agreement of the parties or by the County upon written notice to the Provider. County may suspend this Agreement upon reasonable notice to the Provider. 7. Entire Agreement and Signatures: The parties have read this Agreement and agree to be bound by all of its terms, and further agree that it constitutes the complete and exclusive statement of the Agreement between the parties unless and until modified in writing and signed by the parties. This Agreement together with any amendments or modifications may be executed electronically. All electronic signatures affixed hereto evidence the intent of the Parties to comply with Article I IA and Article 40 of North Carolina General Statute Chapter 66. 8. Priori : In determining the basic services to be provided, should any documents be referenced in or attached to this Agreement, the terms of this Agreement shall have priority in any conflict between the terms of referenced documents and the terms of this Agreement. 9. Governing Law:aw: Both parties agree that this Agreement shall be governed by the laws of the State of North Carolina. Provider shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all anti-discrimination laws. By executing this Agreement Provider affirms that Provider is and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. 10. Dispute Resolution: Any and all suits or actions to enforce, interpret, or seek damages with respect to any provision of, or the performance or non-performance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County,North Carolina. It is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. Binding arbitration may not be initiated by either Parry, however, the Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. 11. Non Appropriation: Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of County's obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability and non-appropriation of public funds. [SIGNATURE PAGE TO FOLLOW] Revised 1/16 2 DocuSign Envelope ID:01852EBC-82FE-4793-A89C-BAA6D5AE159C IN WITNESS WHEREOF, County and the Provider have signed this Agreement, effective as of the day first written above. ORANGE COUNTY PROVIDER By: F&ocuSigned by: DocuSigned by: VGVUt-(' By: u wl�t County M ^gVr994B755E477... Title: BD328765EO5245A... 200 S. Cameron St. Kennon Craver,Attorneys at Law P.O. Box 8181 4011 University Drive, Suite 300 Hillsborough,NC 27278 Durham,NC 27707 Revised 1/16 3 DocuSign Envelope ID:01852EBC-82FE-4793-A89C-BAA6D5AE159C K E N N 0 N]EGM 6 dii,zsn A Anderson,111 Gwendolyn C Brooks* i' 1C Joel M C)sU� l LL G Rhodes Craver ATTORNEYS AT LAW James R Fastho»s Brian Al Ferrell William T Hutcbms,fi** l7ebon,(b A Ak Derrnott h atberine£McKee Heng V,Sapperrfreld Leigh P Vaned A William Kennon, Retired {� *Bnm,d Cerd S,,:,,1w in April 22, 2016 l'r'd Sp Estate Manning C�Probate Lit,, **Board Certified Speci-Iisr in Real Property Lare; Bwinesr. Commercial—d lndrrstrial7>amartions Mr. Rich Shaw Land Conservation Manager Orange County, North Carolina P.O. Box 8181 Hillsborough, North Carolina 27278 RE: Engagement For Legal Services: Orange County's Purchase of approximately 37 Dear Rich: acres from S L Efland Heirs, LLC (the "S L Efland Heirs") Thank you for contacting me regarding Orange County's need for legal assistance in connection with the purchase of the property described herein (the "Transaction"). I am pleased to assist the County with this matter. If agreeable, this letter establishes the terms of our engagement. Title Search & Title Insurance The subject property is identified as being an approximately 37 acre portion of the land having Orange County PIN 9844264137 (the "Property"). The Property was Conveyed to the current owner, the S L Efland Heirs via a Special Warranty Deed recorded on August 7, 2015 in Book 5997, Page 493 of the Orange County Registry (the "Current Deed"). There are approximately seventeen (17) individual and entity grantors on the Current Deed. Seller previously engaged attorney Joseph J. Kalo of the law firm Pittman & Steele ("Kalo")to perform title vrork and other legal services including preparation of the Current Deed. Kalo confirmed completing a full title search on the Property was a significant and expensive undertaking. Kalo also confirmed there is no existing title insurance policy for the Property. A title search of approximately 40 years in duration will be required for the County to obtain title insurance. A new 40 year search of the Property will be expensive. In lieu of our firm conducting a new full search, Kalo has agreed to contract with the County (or our firm via subcontract) to provide a title opinion based on the extensive title work he has already performed. This title opinion, when combined with a title update at closing by our firm, will be sufficient to obtain title insurance, Kalo, and not this firm, will review title documents prior to the date of the Current Deed and will identify title defects that occur prior to that date. Any defects appearing in the public records will be disclosed in Kalo's title opinion, and the County will be insured against 1 4011 universit;,drive,suite 3001, durham, ne 27707 post office box 51579,durham, nc 27717-1579 TEL E PHONE 919 490 0.500 FAX 919 490 0873 • wiviv..kennoncraver:writ DocuSign Envelope ID:01852EBC-82FE-4793-A89C-BAA6D5AE159C undisclosed defects via the title insurance policy we will procure on behalf of the County. We will update title beginning after the date of the Current Deed and otherwise coordinate any and all work with KaIo necessary to obtain a title insurance policy for the purchase amount of $740,000.00. The County will be responsible for the payment of the title insurance premium. Please be aware that matters of zoning and environmental hazards are not included in a standard title search. Please notify me immediately if you require additional information or assistance concerning these two issues. Zoning laws affect setback and use requirements to name a few. Environmental hazards include, but are not limited to, the existence of radon gas, lead-based paint, underground storage tanks and asbestos. We will prepare a legal description of the Property based on the survey that I understand is now being prepared specifically for the Transaction. The legal description will be used to describe the Property in the General Warranty Deed conveying the property to the County (the "Deed"). Save and except contract provisions related to Kalo's title work for the County, the contract for the purchase of the Property was negotiated and drafted prior to my involvement in this matter. Closin We will conduct the closing on the Transaction. The closing can occur in my offices or another location that works better for the parties. The County agrees to wire the closing funds into my trust account prior to the closing. I will make every effort to provide the County with a draft of the settlement statement no less than 24 hours prior to the closing date. Following the closing, we will update title and record the new plat and Deed in the office of the Orange County Register of Deeds. We will also prepare a final title opinion and deliver the same to Investors Title for issuance of the title insurance policy. Legal Fees &Expenses This engagement is specifically limited to: (i) coordinating the title search on the i Property as described herein; (ii) coordinating and otherwise preparing the title opinion in conjunction with Kalo; (iii) procuring title insurance; (iv) discussing any title issues discovered during the title search with you; (v) recording the documents listed above; and (vi) conducting the closing. Please be aware that additional work necessary to complete the closing, such as ' attempting to resolve significant title defects, may require work beyond the scope of this letter and in excess of the "not to exceed" amount listed below. In the event the County requires representation prior to closing or additional legal work not referenced in this letter becomes necessary (such as work associated with clearing any title defects), then I will perfornr such work at the County's specific request under an amendment to this agreement at our normal hourly rates. i Our fees for performing the legal work outlined herein are as follows: (i) $85.00 dollars per hour for the services of my firm's real estate paralegal who will collect the necessary documents from the office of the Register of Deeds and otherwise assist me with this matter; (ii) $225.00 per hour for all work performed by Kennon Craver attorneys which represents a local government discount :from Brian Ferrell's standard hourly rate of $265.00; and (iii) Kalo's a current hourly rate. The fees due under this agreement will not exceed $4 000.00. kennon craven,pllc 4011 rntiversiq drive,quite 300,durhnnt, ne 2770," port olfrre box 51579,dtrrhunt, nc 21771715;19 TELEPHONE 919 490 0500,FAX 919 490087_3 tc,wiv.ken noncraver_com DocuSign Envelope ID:01852EBC-82FE-4793-A89C-BAA6D5AE159C We will begin work on this transaction as soon as I receive an executed copy of this letter agreement from the County. Please understand that I must charge for all work performed even if this transaction fails for any reason. Kennon Craver, PLLC, certifies that, as of execution, we are not on the Final Divestment List as created by the State Treasurer pursuant to N.C.G.S. § 147-86.58. In compliance with the requirements of the Iran Divestment Act, we shall not utilize in the performance of this Agreement any subcontractor that is identified on the Final Divestment List. By executing this Agreement, Kennon Craver affirms it is in compliance with Article ') of Chapter 64 of the North Carolina General Statutes. Please do not hesitate to contact me with any questions or concerns regarding this letter. I look forward to working with you. Sincerely, Bri errell THE FIRM 3 i kennon c nvei;plI 4011 unwersity drive,suite 300.dia-ham. tic 21770,- port office box$1579 durharn, nc 27?17-15 9 TELEPHONE 919 490 0500, FAX 91949008'3 nvnvrr.ken nonrraver.coin DocuSign Envelope ID:01852EBC-82FE-4793-A89C-BAA6D5AE159C Engagement Letter Signature Page The legal services engagement described herein is understood and agreed to: Orange County, North Carolina By: Name/Title: Date: 4w This instrument has been preaudited in the manner required by the Local Government Fiscal Control Act. Orange County Finance Officer n 4 kennon onver,pllc 4-011 university drive,suite 300,durham,nc 27,0,7 part o ice box 51572 drrrGrrnr,rrc ?sl?15-9 TELEPHONE 919 490 0500, FAX 9194900871 ruu.r<.krnnurrrraver.com DocuSign Envelope ID:01852EBC-82FE-4793-A89C-BAA6D5AE159C S LIABILITY INSURANCE 5020 Weston Parkway, suite 200 919.677.8900TFt. COMPANY OF Cary, North Carolina 27513 8 00.662.8843 TOLL FREE Post Office Box 1929 919.677.9641 F.Ax MUTUAL I NORTH CAROLINA Cary, North Carolina 27512-1929 www.lawyersmutuainc.com Declarations KENNON CRAVER, PLLC Location: PO BOX 51 579 4011 UNIVERSITY DR STE 300 DURHAM, NC 27717-1579 DURHAM NC 27707 Policy Number: 0022032- 13 Policy Period: 05/01/2016 to 05/01/2017 Prior Acts Date of 12:£31 A.M. Standard Time at the address of the Named Insured stated herein Named Insured: 05/01/2003 Limits of Liability: A. $ 5,000,000 A. Applicable to any claim or one or more related claims. B. $ 5,000,000 B. Aggregate limit of the Company's liability for all damages and claims expenses without regard to the number of Insureds, Extended Reporting Endorsements, claims, suits, or claimants. Deductible: C. $ 50,000 C. See INSURING AGREEMENT VI. Deductible and (including claims expenses) Limit of Liability. Premium: $ 32,150 Endorsement Attachments: 012 041 in witness whereof, Lawyers Mutual Liability Insurance Company of North Carolina has caused this Policy to be signed by its President and Secretary and countersigned by a duly authorized agent of the Company_ ,)r Secretary Pre ident Authorized Agent Lawyers Professional Liability Policy (This is a Claims-Made and Reported Policy. Defense costs are a part of the Policy Limits and reduce the amount available to pay losses. You should read your Policy for a complete understanding of its Terms,Conditions&Coverages). (08/01/2015.2) PolicyForm 22032 - 2016 DocuSign Envelope ID:01852EBC-82FE-4793-A89C-BAA6D5AE159C �� � 5 LIABILITY INSURANCE 5020 Weston Parkway,Suite 200 919.677.8900 TEL COMPANY OF Cary, North Carolina 27513 800.662.8843 TOLL PREE MT �1�` j Past Office Box 1929 919.677.9641 rAx �J �AL NORTH CAROLINA Cary, North Carolina 27512-1929 www.tawyersmutualnc.com Insured Listing / Prior Acts Date Endorsement This Endorsement, effective 12:01 A.M. on 05/01/2016 forms a part of Policy No. 0022032 - 13 (the "Policy")issued by LAWYERS MUTUAL LIABILITY INSURANCE COMPANY OF NORTH CAROLINA and applies to KENNON CRAVER, PLLC (the "Named Insured"). It is hereby understood and agreed that as to each Insured Iisted below, this Policy shall not apply to such Insured's act(s) or omission(s), or series of related act(s) or omission(s), occuring or beginning prior to the date listed individually for eachlinsured below ("Prior Acts Date"). All Policy provisions, terms, exclusions, and conditions, except as provided otherwise in this Endorsement, remain in full force and effect. Name Licensing State License Prior Acts Date (or Other) Number 1 . WILLIAM ALBERT ANDERSON III NC 29085 10/02/2000 2. GWENDOLYN C BROOKS NC 26502 09/17/1999 3. JOEL M CRAIG NC 9179 02/01/1980 4. G RHODES CRAVER NC 10291 02/01/1982 5. JAMES ROBERT EASTHOM NC 23489 06/14/1998 6. BRIAN M FERRELL NC 27819 04/03/2002 7. WILLIAM T HUTCHINS lR NC 22129 06/01/1995 8. DEBORAH ANN McDERMOTT NC 47933 09/02/2014 9. KATHERINE L MCKEE NC 7161 02/01/1977 10. HENRY WILLIAM SAPPENFIELD NC 37419 12/03/2007 11 . LEIGH PURYEAR VANCIL NC 27342 03/01/2007 Authorized Agent END#:012 (08/01/2015) Wage 1 of 1 AttyListPALE 22032 2016