HomeMy WebLinkAbout2017-634-E DEAPR - Kennon Craver, Attorney at Law - Legal service for conservation easement for Hill farmland (15 acres) DocuSign Envelope ID:D0A248C0-E9E5-4FDE-8226-BE8B1F3AF44B
[Departmental Use Only]
TITLE Hill CE Closing
FY 2017-2018
NORTH CAROLINA
SERVICES AGREEMENT UNDER$90,000.00
NO RFP/RFQ
ORANGE COUNTY
This Services Agreement (hereinafter "Agreement"), made and entered into this 16 day of
November, 2017, ("Effective Date") by and between Orange County, North Carolina a political
subdivision of the State of North Carolina (hereinafter, the "County") and Kennon Craver,
Attorneys at Law, (hereinafter, the "Provider").
WITNESSETH:
That the County and Provider, for the consideration herein named, do hereby agree as
follows:
1. Services
a. Scope of Work.
i) This Agreement is for services to be rendered by Provider to County with respect
to (insert type of project): Legal services for completing Orange County's
acquisition of a conservation easement for the Hill farmland (15 acres) consistent
with an engagement letter provided by Mr. Brian Ferrell, Kennon Craver, Attorneys
at Law (attached).
ii) By executing this Agreement, the 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.
iii) Time is of the essence with respect to this Agreement.
iv) The services to be performed under this Agreement consist of Basic Services, as
described and designated in Section 3 hereof. Compensation to the Provider for
Basic Services under this Agreement shall be as set forth herein.
2. Responsibilities of the Provider
a. Services to be provided. The Provider shall provide the County with all services
required in Section 3 to satisfactorily complete the Project within the time limitations set
forth herein and in accordance with the highest professional standards.
b. Standard of Care.
i) The Provider shall exercise reasonable care and diligence in performing services
under this Agreement in accordance with the highest generally accepted standards
of this type of Provider practice throughout the United States and in accordance
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with applicable federal, state and local laws and regulations applicable to the
performance of these services. Provider is solely responsible for the professional
quality, accuracy and timely completion and/or submission of all work related to
the Basic Services.
ii) Provider shall be responsible for all errors or omissions of its agents, contractors,
employees, or assigns 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.
iii) The Provider shall not, except as otherwise provided for in this Agreement,
subcontract the performance of any work under this Agreement without prior
written permission of the County. No permission for subcontracting shall create,
between the County and the subcontractor, any contract or any other relationship.
iv) Provider is an independent contractor of County. Any and all employees of the
Provider engaged by the Provider in the performance of any work or services
required of the Provider under this Agreement, shall be considered employees or
agents of the Provider only and not of the County, and any and all claims that may
or might arise under any workers compensation or other law or contract on behalf
of said employees while so engaged shall be the sole obligation and responsibility
of the Provider.
v) If activities related to the performance of this Agreement require specific licenses,
certifications, or related credentials Provider represents that it and/or its
employees, agents and subcontractors engaged in such activities possess such
licenses, certifications, or credentials and that such licenses certifications, or
credentials are current, active, and not in a state of suspension or revocation.
vi) In determining the basic services to be provided, should any documents be
referenced in 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. Should a request for proposals and a proposal be referenced the
terms of the request for proposals shall have priority over the terms of any
proposal.
3. Basic Services
a. Basic Services. The Services to be rendered pursuant to this Agreement are as follows
(fully describe services to be provided): Legal services, including title search, title
insurance, and closing, for completing Orange County's acquisition of a conservation
easement for the Hill farmland (15 acres) consistent with an engagement letter provided
by Mr. Brian Ferrell, Kennon Craver, Attorneys at Law (attached).
4. Duration of Services
a. Term. The term of this Agreement shall be from November 20, 2017 to December 29,
2017.
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b. Scheduling of Services.
i) The Provider shall schedule and perform its activities in a timely manner.
ii) Should the County determine that the Provider is behind schedule, it may require
the Provider to expedite and accelerate its efforts, including providing additional
resources and working overtime, as necessary, to perform its services in
accordance with the approved project schedule at no additional cost to the
County.
iii) The Commencement Date for the Provider's Basic Services shall be December 29,
2017.
5. Compensation
a. Compensation for Basic Services. Compensation for Basic Services shall include all
compensation due the Provider from the County for all services under this Agreement.
The maximum amount payable for Basic Services shall not exceed two thousand and
five hundred Dollars ($2,500). Payment for Basic Services shall become due and
payable within thirty(30) days of Provider properly invoicing County. Payment shall be
subject to provisions of Section 5(b).
b. Disputes. In the event the amount stated on an invoice is disputed by the County, the
County may withhold payment of all or a portion of the amount stated on an invoice
until the parties resolve the dispute. 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.
c. Additional Services. County shall not be responsible for costs related to any services in
addition to the Basic Services performed by Provider unless County requests such
additional services in writing and such additional services are evidenced by a written
amendment to this Agreement.
6. Responsibilities of the County
a. Cooperation and Coordination. The County has designated (Kim Livingston) to act as
the County's representative with respect to the Project and shall have the authority to
render decisions within guidelines established by the County Manager and/or the County
Board of Commissioners and shall be available during working hours as often as may be
reasonably required to render decisions and to furnish information.
7. Insurance
a. General Requirements. Provider shall obtain, at its sole expense, Commercial General
Liability Insurance, Automobile Insurance, Workers' Compensation Insurance, and any
additional insurance as maybe 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
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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.
8. Indemnity
a. Indemnity. The Provider agrees, without limitation, to defend, indemnify and hold
harmless the County from all loss, liability, claims or expense, including attorney's fees,
arising out of or related to the Project and arising from property damage or bodily injury
including death to any person or persons caused in whole or in part by the negligence or
misconduct of the Provider except to the extent same are caused by the negligence or
willful misconduct of the County. It is the intent of this provision to require the Provider
to indemnify the County to the fullest extent permitted under North Carolina law.
9. Amendments to the Agreement
a. Changes in Basic Services. Changes in the Basic Services and entitlement to additional
compensation or a change in duration of this Agreement shall be made by a written
Amendment to this Agreement executed by the County and the Provider. The Provider
shall proceed to perform the Services required by the Amendment only after receiving a
fully executed Amendment from the County.
10. Termination
a. Termination for Convenience of the County. This Agreement may be terminated without
cause by the County and for its convenience upon seven (7) days' prior written notice to
the Provider.
b. Other Termination. The Provider may terminate this Agreement based upon the County's
material breach of this Agreement; provided, the County has not taken all reasonable
actions to remedy the breach. The Provider shall give the County seven (7) days' prior
written notice of its intent to terminate this Agreement for cause.
c. Compensation After Termination.
i) In the event of termination, the Provider shall be paid that portion of the fees and
expenses that it has earned to the date of termination, less any costs or expenses
incurred or anticipated to be incurred by the County due to errors or omissions of
the Provider.
ii) Should this Agreement be terminated, the Provider shall deliver to the County
within seven (7) days, at no additional cost, all deliverables including any
electronic data or files relating to the Project.
d. Waiver. The payment of any sums by the County under this Agreement or the failure of
the County to require compliance by the Provider with any provisions of this Agreement
or the waiver by the County of any breach of this Agreement shall not constitute a
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waiver of any claim for damages by the County for any breach of this Agreement or a
waiver of any other required compliance with this Agreement.
e. Suspension. County may suspend the Basic Services and this Agreement at any time for
County's convenience and without penalty to County upon three (3) days' notice to
Provider. Upon any suspension by County, Provider shall discontinue work on the Basic
Services and shall not resume the Basic Services until notified to proceed by County.
11. Additional Provisions
a. Limitation and Assignment. The County and the Provider each bind themselves, their
successors, assigns and legal representatives to the terms of this Agreement. Neither the
County nor the Provider shall assign or transfer its interest in this Agreement without the
written consent of the other.
b. Governing Law. This Agreement and the duties, responsibilities, obligations and rights
of respective parties hereunder shall be governed by the laws of the State of North
Carolina. By executing this Agreement Provider affirms that Provider and any
subcontractors of Provider are 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 identified, on the list created by the State Treasurer pursuant to
G.S. 147-86.58. By executing this Agreement Provider certifies that Provider has not
been identified, and has not utilized the services of any agent or subcontractor identified,
on the list created by the State Treasurer pursuant to G.S. 147-86.81.
c. Non-Discrimination. 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 non-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 the Orange County Non-Discrimination Policy 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.
d. 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.
e. Entire Agreement. This Agreement represents the entire and integrated agreement
between the County and the Provider and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement may be amended
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only by written instrument signed by both parties. Modifications may be evidenced by
facsimile signatures.
f. Severability. If any provision of this Agreement is held as a matter of law to be
unenforceable, the remainder of this Agreement shall be valid and binding upon the
Parties.
g. Ownership of Work Product. Should Provider's performance of this Agreement generate
documents, items or things that are specific to this Project such documents, items or
things shall become the property of the County and may be used on any other project
without additional compensation to the Provider. The use of the documents, items or
things by the County or by any person or entity for any purpose other than the Project as
set forth in this Agreement shall be at the full risk of the County.
h. 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. It is expressly agreed that County
shall not activate this non-appropriation provision for its convenience or to circumvent
the requirements of this Agreement, but only as an emergency fiscal measure during a
substantial fiscal crisis.
In the event of a change in the County's statutory authority, mandate and/or mandated
functions, by state and/or federal legislative or regulatory action, which adversely affects
County's authority to continue its obligations under this Agreement, then this Agreement
shall automatically terminate without penalty to County upon written notice to Provider
of such limitation or change in County's legal authority.
i. Signatures. 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.
j. Notices. Any notice required by this Agreement shall be in writing and delivered by
certified or registered mail,return receipt requested to the following:
Orange County Provider's Name
Attention:Kim Livingston Kennon Craver, Atty. at Law
P.O. Box 8181 4011University Dr, Suite 300
Hillsborough,NC 27278 Durham,NC 27707
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have
hereunder set their hands and seal, all as of the day and year first above written.
ORANGE COUNTY: PROVIDER:
F,¢DocuSigned by: Docusigned by:
B :bOl&Uut, Nummt-rStU 11/22/2017 BF5riA,A, ruyta 11/16/2017
C®t ityMranager BD328765E05245A...
Brian Ferrell
Kennon Craver, Attorneys at Law
Printed Name and Title
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DocuSign Envelope ID:D0A248C0-E9E5-4FDE-8226-BE8B1F3AF44B
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Declarations
KENNON CRAVER, PLLC
PO BOX 51579
DURHAM, NC 27717-1579
Policy Number: 0022032-LPL-14
Policy Period: 05-01-2017 to 05-01-2018
12:01 A.M. Standard Time at the address of the Named Insured stated herein.
Prior Acts Date of May 1, 2003
Named Insured:
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: $30,923.00
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.
3.54.s.„ /44..,47„:„
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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
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Insured Listing / Prior Acts Date Endorsement
This Endorsement, effective 12:01 A.M. on May 1, 2017 forms a part of Policy No. 0022032-LPL-14 (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 listed 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 each Insured 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 JR NC 22129 06-01-1995
8 DEBORAH ANN McDERMOTT NC 47933 09-02-2014
9 HENRY WILLIAM SAPPENFIELD NC 37419 12-03-2007
10 LEIGH PURYEAR VANCIL NC 27342 03-01-2007
11 CANDACE B. MINJARES NC 50378 02-01-2016
END #: 012 (08/0112015) AttyListPALE
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Specific Acts Exclusion Endorsement
This Endorsement, effective 12:01 A.M. on May 1, 2017 forms a part of Policy No. 0022032-LPL-14
(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 a condition of the issuance of this Policy, the
EXCLUSIONS AND LIMITED WAIVER I. Exclusions section of the Policy is hereby amended to add
this Specific Acts Exclusion.
Irrespective of whether the act(s) or omission(s) alleged in support of a claim, suit, or theory of
liability presented in a suit, would fall within INSURING AGREEMENT, I. Coverage- Attorney, II.
Coverage - Fiduciary or III. Coverage - Arbitrator &Mediator, this Policy does not afford to any
Insured any coverage or benefits whatsoever, including, but not limited to, any right to any defense,
with respect to:
Any claim, or any theory of liability asserted in a suit, based in whole or in any part upon any act(s)
or omission(s) of any Insured arising out of, related to, or on account of the following:
Services including legal services rendered to, for, or on behalf of McKee Family Associates, LLC
and clients thereof.
Services including legal services rendered to, for, or on behalf of Craver Realty Corp.
(17 Anil' Agait
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Ms. Kim Livingston
Land Conservation Manager
Orange County,North Carolina
P.O. Box 8181
Hillsborough,North Carolina 27278
VIA EMAIL DELIVERY
RE: Engagement For Legal Services: Purchase of Conservation Easement from Betty Jane
Walters Hill
Dear Ms. Livingston:
Thank you for contacting me regarding Orange County's need for legal assistance in the
acquisition of the above referenced conservation easement (the "Easement"). We are pleased to represent
Orange County in this transaction. 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 a single 14.84 acre parcel
identified as having Orange County PIN 9827-82-2692 (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 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
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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. \fe, 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.
We will prepare a legal description of the Property based on the County's survey, if any. If the
County does not prepare a survey for this transaction the legal description will be based on the deed(s)
into the current owner. The County will make payment arrangements directly with the surveyor. The
legal description will be used to describe the Property in the Warranty Deed of Conservation Easement
(the "Easement Deed"). I understand that the County does not require our assistance with negotiating or
drafting the Easement Deed, so the preparation of that document is not included in the scope of our
engagement.
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 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 the title company for issuance of the title insurance policy.
Wire Instructions
Our wiring instructions are included with this letter. BEFORE SENDING ANY WIRE, CALL
OUR OFFICE AT (919) 490-0580 TO VERIFY THE INSTRUCTIONS. WE WILL NOT
CHANGE WIRING IN8TR0CTDONS, IF YOU RECEIVE WIRING INSTRUCTIONS FOR A
DIFFERENT BANK, BRANCH LOCATION, ACCOUNT NAME OR ACCOUNT NUMBER
OTHER THAN TH INSTRUCTIONS YOU HAVE ON FILE, THEY SHOULD BE PRESUMED
FRAUDULENT. DO NOT SEND ANY FUNDS AND CONTACT OUR OFFICE IMMEDDATELY,
FAILURE TO FOLLOW THIS PROCEDURE ENDANGERS YOUR FUNDS.
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
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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.
The flat fee is the entire payment for the work outlined herein regardless of the amount of time that it
takes to perform the work. The flat fee will be earned by us immediately upon payment and will be
deposited in our business account rather than a client trust account or, if the wire containing the flat fee
includes other client funds (recording fees, title insurance premiums, etc.) and is initially deposited into
our trust account, the flat fee will be immediately transferred to our business account; and when our
representation in this matter ends, the County will not be entitled to a refund of any portion of the flat fee
unless (1) the closing is not completed, in which event a proportionate refund may be owed, or(2) it can
be demonstrated that the flat fee is clearly excessive under the circumstances. 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. Should this transaction not close for any reason, then we will bill the
County at a discounted local government rate of$250.00 per hour for all work done up and through the
date of the termination of the transaction. In such event, the County also agrees to pay $100 per hour for
the services of our firm's real estate paralegal who will collect the necessary documents from the office of
the Register of Deeds and otherwise assist me with the Project. The County will also be responsible for
other typical costs of closing such as recording fees and survey expenses. 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.
Nicer ely /�
:11
. .." ----/ -72
�R' -yrrell
" TF "FIRM
/,,
Enclosure(Kennon Craver Trust A'count W W.e Instructions)
kennon craver,pllc
KC: 367198.1
9011 ¢rniversiry drive,sure 300,dnr(unn, n, 27707 • post office box 51.579,(Lillian?,su 27717 1M)
TELLPHONE 9194100500, FAX 919490087,_i • WIC m.krnnrim-rnver.(ow