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HomeMy WebLinkAbout2019-118-E DEAPR - Kennon Craver legal services for Gledhill conservation easement DocuSign Envelope ID: D723FFOF-9894-4280-9F89-4CFA76F281FF [Departmental Use Only] TITLE Gledhill CE Closing FY 2018-2019 ORANGE COUNTY CONTRACT UNDER$5,000.00 NORTH CAROLINA THIS AGREEMENT, made and entered into this 25 day of February, 2019, ("Effective Date") by and between Orange County, North Carolina, a body politic and corporate organized under the laws 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 and/or construction (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 conservation easement on the Cedar Grove Windy Hill Farm(39 acres)owned by Jane Gledhill 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 February 25,2019 to October 31, 2019. 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 five thousand, ($5,000). 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. Revised 12/18 1 DocuSign Envelope ID: D723FFOF-9894-4280-9F89-4CFA76F281FF 4. Insurance: Provider shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers' Compensation Insurance, and any additional insurance as may 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 be designated here 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, without limitation, 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 in carrying out Provider's duties and obligations related to the Services to be provided in this Agreement. 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 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. Modifications may be evidenced by telefacsimile signature. 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 I IA and Article 40 of North Carolina General Statute Chapter 66. 8. Governing Law and Priority: Both parties agree that this Agreement shall be governed by the laws of the State of North Carolina and Orange County. 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.oran etync. ovg /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 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. By executing this Agreement Provider affirms Provider is and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. In determining the basic services to be provided, should any documents be referenced in or attached to this Agreement, the terms herein shall have priority in any conflict between the terms of referenced documents and the terms of this Agreement. 9. Dispute Resolution: Neither party may initiate binding arbitration. Any disputes shall be resolved by nonbinding mediation. If such mediation fails either party may initiate litigation to resolve the dispute. Should either party initiate litigation to settle any dispute involving the terms of this Agreement Revised 12/18 2 DocuSign Envelope ID: D723FFOF-9894-4280-9F89-4CFA76F281FF such litigation shall be initiated in the General Court of Justice of North Carolina seated in Orange County, North Carolina. 10. 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. IN WITNESS WHEREOF, Orange County and the Provider have signed this Agreement, effective as of the day first written above. ORANGE COUNTY PROVIDER DocuSigned by: cuSigned by: bawl �f�u[ 2/25/2019 C�Vl Farr2/25/2019 s11 CFA1 D507A495... %ctor 3287&5E05245A...U• 200 S. Cameron St. Brian Ferrell,Kennon Craver,Atty. at Law P.O. Box 8181 4011 University Dr., Suite 300 Hillsborough,NC 27278 Durham,NC 27707 Revised 12/18 3 DocuSign Envelope ID: D723FFOF-9894-4280-9F89-4CFA76F281FF William A.Anderson,III KENNON CRAVERA Gwendolyn C.Brooks* Joel M.Craig PlI c G.Rhodes Craver James R.Easthom Brian M.Ferrell William T.Hutchins,Jr.** Deborah A.McDermott Henry W Sappenfield Leigh P. Vancil *Board Certified Specialist in Estate Planning&Probate Law **Board Certified Specialist in Real Property Law Business,Commercial and Industrial Transactions E-mail:bferrell(a,kennoncraver.com February 15, 2019 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 Jane Gledhill 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 38.88 acre parcel identified as having Orange County PIN 9858-20-5907 (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 KC: 367198.1 DocuSign Envelope ID: D723FFOF-9894-4280-9F89-4CFA76F281FF 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 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. 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 THE COUNTY HAS OUR TRUST ACCOUNT WIRING INSTRUCTIONS ON FILE. BEFORE SENDING ANY WIRE, CALL OUR OFFICE AT (919) 490-0500 TO VERIFY THE INSTRUCTIONS. WE WILL NOT CHANGE WIRING INSTRUCTIONS. IF YOU RECEIVE WIRING INSTRUCTIONS FOR A DIFFERENT BANK, BRANCH LOCATION, ACCOUNT NAME OR ACCOUNT NUMBER OTHER THAN THE INSTRUCTIONS YOU HAVE ON FILE, THEY SHOULD BE PRESUMED FRAUDULENT. DO NOT SEND ANY FUNDS AND CONTACT OUR OFFICE IMMEDIATELY. FAILURE TO FOLLOW THIS PROCEDURE ENDANGERS YOUR FUNDS. Legal Fees &Expenses KC: 367198.1 DocuSign Envelope ID: D723FFOF-9894-4280-9F89-4CFA76F281FF 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. We will bill the County at a discounted hourly rate of$250 for time spent by firm attorneys on the Transaction and $110 per hour for time spent by paralegals on the Transaction. Our legal fees for performing the legal work outlined herein will not exceed $5,000.00. We may bill the County on an interim basis or collect all fees due at closing depending on the circumstances of the Transaction. Payments of fees and costs are due within 30 days of the County's receipt of our invoice if we bill the County on an interim basis. hi addition to the foregoing hourly fees, 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 including, but not limited to, 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. Sincerely, /Brian M. Ferrelll FOR THE FIRM KC: 367198.1 DocuSign Envelope ID: D723FFOF-9894-4280-9F89-4CFA76F281 FIF pp 'A J S LAWYLR 'A MUTUAL i( K 1 A k, k 1 N Declarations KENNON CRAVER, PLLC PO BOX 51579 DURHAM, NC 2 771 7-1 579 Policy Number: 0022032-LPL-1 5 Policy Period: 05-01-2018 to 05-01-2019 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.Deductibleand (including claims expenses) Limit of Liability. Premium: $31,438.00 Endorsement Attachments: 012 041 069 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. Secretary A Lill ti n;_/LLd A2al Pre ident 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 DocuSign Envelope ID: D723FFOF-9894-4280-9F89-4CFA76F281 FF d. ANVYE�ad.J ll -. A T .. - 'W fti r , I_I XAUAL Insured Listin / Prior Acts Date Endorsement This Endorsement, effective 12:01 A.M. on May 1, 2018 forms a part of Policy No. 0022032-LPL-15 (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 ornission(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 Licensin 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 Awlonzcd END #: 012 (o8/0112o15) AttyllistPALE DonuSign Envelope ID: o7z3FFOF-988442o0*Fo94CFA70Fz81FF � �� Y� {� L|A8U|TY |N�[R ��[E �~/'��� � ��J���� ( 0#M\�YOF MUTUAL � �� T-�` T | l��� l~/ � V / �� L� | %{)RTH ['4R[}L|X/\ Specific Acts Exclusion Endorsement This Endorsement, effective 12:Ol /\.$4. nn May 1, 2018 forms a part nf Policy No. 0022832-LPL'1 5 (the "Policy") issued by LAWYERS MUTUAL LIABILITY INSURANCE COMPANY {}P NORTH [AROL|NA and applies toKEN/NONC0AVER, PLU[ (the "Named [ooured"). It is hereby understood and agreed that as a condition of the issuance of this Policy, the EXCLUSIONS AND LIMITED WAIVER U. Exclusions section nf the Policy is hereby amended hoadd this Specific Acts Exclusion. Irrespective of whether theact(s) or omission(s) alleged in support of claim, suit, or theory of liability presented in axoit would fall within INSURING AGREEMENT, X. Cmweragm- Attormey, 11' Coverage Fiduciary or U|U' 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, bused in whole or in any part upon anyact(s) ururnission(s) of any Insured arising out of, related to, nrnn 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 [raver Rea|ty Corp. � � DocuSign Envelope ID: D723FFOF-9894-4280-9F89-4CFA76F281 FF LAWYERS vs���ro.la�n��°s�ra�a�la�alni_coum Financial Fraud Exclusionary Endorsement (Real Estate with Safe Harbor) This Endorsement, effective 12:01 A.M. on May 1, 2018 forms a part of Policy No. 0022032-LPL-15 (the "Policy") issued by LAWYERS MUTUAL LIABILITY INSURANCE COMPANY OF NORTH CAROLINA. 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. All Policy provisions, terms, and conditions, except as expressly provided otherwise in this endorsement, remain in full force and effect. 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 Ill. 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 loss, misappropriation, or attempted misappropriation of funds, through any dishonest, deceitful, or fraudulent scheme or means, including but not limited to written, electronic, telegraphic, cable, teletype, facsimile, or telephone communications or access to, use of, or change to any software, application, data, or information within any computer, server, electronic device, or electronic account of an Insured. This exclusion applies regardless of whether any other act(s) or omission(s) contributed concurrently or in any sequence to the loss, misappropriation, or attempted misappropriation of funds. This exclusionary endorsement shall apply only to funds directly or indirectly connected with or related to any purchase, sale, financing, or refinancing of real estate. Provided, however, that this endorsement shall not apply to the loss, misappropriation or attempted misappropriation of funds (1) wired or electronically transmitted by or on behalf of a client if any Insured had previously obtained the client's written agreement to terms of engagement applicable to the representation that identified a specific IOLTA Trust Account as the only bank account to be used, and that warned the client substantially as follows: "BEFORE SENDING ANY WIRE, CALL OUR OFFICE TO VERIFY THE INSTRUCTIONS. WE WILL NOT CHANGE WIRING INSTRUCTIONS. IF YOU RECEIVE WIRING INSTRUCTIONS FOR A DIFFERENT BANK, BRANCH LOCATION, ACCOUNT NAME OR ACCOUNT NUMBER, THEY SHOULD BE PRESUMED TO BE FRAUDULENT. DO NOT SEND ANY FUNDS AND CONTACT OUR OFFICE IMMEDIATELY. FAILURE TO FOLLOW THIS PROCEDURE ENDANGERS YOUR FUNDS," or (2) disbursed by or on behalf of any Insured in accordance with a written, original, notarized disbursement instruction authorizing the wiring or electronic transmission of the funds. END #: 069 (06/20/2017) FFEE(REw$H)