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HomeMy WebLinkAbout2017-547-E DEAPR - Kennon Craver for legal services for purchase of trail easement on Triangle Land Conservancy's Brumley Forest DocuSign Envelope ID:65E9A8D2-18C4-4B97-8580-E126BE266687 [Departmental Use Only] TITLE Brumley Trail E Closing FY 2017-18 ORANGE COUNTY CONTRACT UNDER $15,000.00 NORTH CAROLINA THIS AGREEMENT, made and entered into this 3rd day of October, 2017, ("Effective Date") by and between Orange County, North Carolina, a political subdivision of the State of North Carolina, (the "County"), party 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 acquisition of a trail easement on the north side of Triangle Land Conservancy's Brumley Forest 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 October 3, 2017 to November 30, 2017. 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 1. 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 Two Thousand Five Hundred Dollars, ($2,500). 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 2/17 1 DocuSign Envelope ID:65E9A8D2-18C4-4B97-8580-E126BE266687 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/contra cts.ph p). if County's Risk Manager determines additional insurance coverage is required such additional insurance shall consist of Professional Liability Insurance (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 consent of the Parties to utilize electronic signatures and the intent of the Parties to comply with Article 11A and Article 40 of North Carolina General Statute Chapter 66. 8. Priority: 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: 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 state and federal anti-discrimination laws, policies,rules, and regulations and the Orange County Non-Discrimination Policy and Orange County Living Wage Policy (each policy is incorporated herein by reference and may be viewed at http://www.orangecountync.gov/departments/purchasing_division/contracts.php.). Any violation of this requirement is a breach of this Agreement and County may immediately terminate this Agreement without further obligation on the part of the County. This paragraph is not intended to limit and does not limit the definition of breach to discrimination. 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. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor, on the list created by the State Treasurer pursuant to G.S. 147-86.58. 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 Party, however, the Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. Revised 2/17 2 DocuSign Envelope ID:65E9A8D2-18C4-4B97-8580-E126BE266687 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 2/17 3 DocuSign Envelope ID:65E9A8D2-18C4-4B97-8580-E126BE266687 IN WITNESS WHEREOF,County and the Provider have signed this Agreement, effective as of the day first written above. ORANGE COUNTY PROVIDER DocuSigned by: DocuSigned by: B : 6151/L lt, Roolui 10/6/2017 BBy F 10/3/2017 nt anager "" lit : BD328765E05245A... 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 2/17 4 DocuSign Envelope ID:65E9A8D2-18C4-4B97-8580-E126BE266687 KENNON GRAVER Wilham A Anderson,III plic (,wendolyn( ',hooks* Joel MChug ATTORNEYS AT LAW G Rhodes Craver James R Liuthom Brian M Ferrell William I Hutchins,/ 01 Deborah A McDermatt Candace B Miniares Ilerer))W Sappenfr:eld Leigh P Vane/ A William Kennon, Retired Katherine I.McKee, Retired Board Certifred Specialise ivt LLstate Planning r Probate taw "'*Board(,trtijzed S/reria/r,rt in Real Property Law; Business, I ammo Hal and Industrial Transaction, September 28, 2017 Ms. Kim Livingston Land Conservation Manager Orange County, North. Carolina P.O. Box 8181 I Iillsborough,North Carolina 27278 VIA EMAIL DELIVERY RE: Engagement For Legal Services: Acquisition of Brumley Forest Trail Easement from Triangle Land Conservancy Dear Ms. Livingston, We are pleased to represent Orange County in the acquisition of the above referenced easement (the "Easement"). If agreeable to the County, this letter establishes the terms of our engagement. Title Search & Title Insurance The property to be encumbered by the Easement is comprised of an approximately 162 acre parcel identified as having Orange County PIN 988-37-22214 (the "Property"). In preparation for closing, we will perform a title search on the Property. The nature of that search may take on many one of two forms, depending upon whether or not the title has previously been. insured. If the title has not been previously insured, a search of the public records for a period of time satisfactory to the title insurance company will be required. If the title has previously been insured, we can obtain coverage for the County by having the title examined from the effective date of that coverage to the present. The process of performing only a limited title search is what is known as "tacking". If we tack to an existing title insurance policy, the County will be relying on its policy of title insurance and not our having actually examined the public records for any matter affecting title prior to the date of the existing policy of title insurance to which we tacked. Therefore, absent your timely objection, we will determine if title insurance coverage exists on. the Property and, if so, have the public records examined only from the date of that coverage to 1 4011 university drive, suite 300, duihain, Ili 27707 • past o ce box 51579, durham, nc 2771 7-1 57 9 TELEPHONE 919.4900500 FAX 919 i90 0873 • wwuh.kennoncraver,comn DocuSign Envelope ID:65E9A8D2-18C4-4B97-8580-E126BE266687 the present. In other words absent your timely objection, we will "tack" to that existing policy of title insurance. This procedure will enable us to keep the County's costs to a minimum while, at the same time, providing full title insurance coverage for the County. You should be advised that title insurance, while a valuable insurance coverage, does not cover any and all damage that may arise from a title defect. Title insurance also does not necessarily provide immediate relief in the form of the payment of a claim given title insurers have a reasonable time to correct defects in title which the insurer reasonably believes can be corrected. What constitutes a"reasonable time" depends upon the nature of the defect. Assuming title is insurable, we will obtain a title insurance policy in favor of the County in the amount of the purchase price for the Easement. The County will be responsible for the payment of the title insurance premium at closing. Please be aware that matters of zoning and environmental matters are not included in a standard title search. We, as closing attorneys, do not provide any opinion as to the environmental condition of the Property. Please notify me immediately if the County requires additional information or assistance concerning these two issues. Zoning laws affect setbacks 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. You have provided a legal description of the Easement to us. This legal description will be used to describe the boundaries of the Easement in the Deed of Public Trail Easement (the "Easement Deed"). I understand the final terms of the Easement Deed have been agreed to by the County and Triangle Land Conservancy prior to our involvement in this matter, and the County does not require our assistance with negotiating or drafting the Easement Deed. Conflict Waiver As we have discussed, you are aware that my firm represents Triangle Land Conservancy from time to time in various matters. We do not believe that this ongoing representation impermissibly conflicts with our work on this Easement on behalf of the County because: (i) the scope of our representation is limited as provided herein; (ii) the County and Triangle Land Conservancy already negotiated the terms of the Easement Deed prior to our involvement; (iii) this firm does not represent Triangle Land Conservancy with regard to the Easement; (iv) this firm did not represent Triangle Land Conservancy in regard to its acquisition of the Property; and (v) Triangle Land Conservancy has consented to our representation of the County in this matter. Provided, however, if a dispute arises between the County and the Triangle Land Conservancy as a result of the Easement we would not be able to represent either party in any adversarial proceeding. By proceeding with an agreement to which this letter is attached, the County acknowledges our representation of Triangle Land Conservancy and waives any conflicts that arise in the scope of this engagement as a result thereof. Please provide a copy of this letter to the County Attorney and obtain his legal advice as to the consequences of this waiver. Closing We will conduct the closing on the Easement. The closing can occur in our offices or another location that works better for the parties. The County agrees to wire the closing funds 2 kennon(raver,pito 4011 unzveruty drzve, spite 300,durham, II(27707 0 post()Fife box 5/579,duo/soon, no 27717-1579 TELEPHONE 959 490 0500, FAX 979 490 0873 Jowly ken nom-Joy(r (0111 DocuSign Envelope ID:65E9A8D2-18C4-4B97-8580-E126BE266687 into my trust account prior to the closing. We 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 Easement Deed in the office of the Register of Deeds and 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: (1) performing the title search; (2) preparing the title opinion; (3) procuring title insurance (if available); (4) disusing any title issues discovered during the title search with you; (5) recording the documents listed above; (6) preparing the settlement statement and (7) conducting the closing. Please be aware that additional work necessary to complete the closing, such as attempting to resolve significant title defects, significant work related to locating heirs or resolving estate issues related to the property in the chain of title, etc., may require work beyond the scope of this letter and cost in excess of the fee 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 and resolving estate issues), then we may perform such work at the County's specific request under an amendment to this agreement at our normal hourly rates. Our fee for performing the legal work outlined herein is $2,500.00 payable in full at the closing. In addition to the foregoing flat fee, the County will be responsible for payment of any expenses incurred by our firm in connection with the closing such as express mail charges, and wire fees each and all of which will be set out on the settlement statement at closing. The County will also be responsible for other typical costs of closing such as recording fees and survey expenses. We will begin work on this transaction as soon as I receive an executed copy of the associated Services Agreement from the County. Please understand that we must charge for all work performed even if this transaction fails for any reason. Please do not hesitate to contact me with any questions or concerns regarding this letter. I look forward to working with you on this transaction. --- i cerely, 7__, lb r* „,,, re l _--- AFIRM ye/914 --- fr / / / kennon craver,par 4011 university drive, mite 300,durham, ;lc 27707 * post o//lee box 51579,durham, at 27717 15-9 TE LEPHONE 919 490 0500, FAX 919 490 0873 . wrciv kennowwwer tow