S01- Attachment 1 - Statement of Work.pdf

U.S. Department of Agriculture Title Services Scope of Work Natural Resources Conservation Service NRCS Easement Programs

Statement of Work for

PRELIMINARY TITLE SEARCH, TITLE COMMITMENT, CLOSING

SERVICES and TITLE POLICY for KANSAS NATURAL RESOURCES

CONSERVATION SERVICE’S AGRICULTURAL CONSERVATION

EASEMENT PROGRAMS

I. OBJECTIVE

The objective of this contract is to obtain a preliminary title search, a title search, title commitment, post survey updates, final title policy, or closing services for acquisitions of conservation easements on behalf of the United States of America, acting by and through the Natural Resources Conservation Service (NRCS), U.S. Department of Agriculture (USDA), pursuant to Title II of the Agricultural Act of 2014 (Public Law 113-79).

II. BACKGROUND

The Agricultural Conservation Easement Program (ACEP) authorizes the acquisition of easement rights from willing landowners for the purpose of restoring and protecting wetlands and associated upland and riparian rights. NRCS is an agency within the U.S.

Department of Agriculture that is responsible for administration of this program.

III. SCOPE

Furnish sufficient labor, materials, transportation, equipment, tools, operating supplies, incidentals, etc. to complete the work as specified in each order in accordance with this statement of work. Provide enough qualified personnel and in a timely fashion to perform the services according to the delivery schedule specified in each order. Agree that any reports and conclusions supplied under this agreement are for the exclusive use of the U.S. Government. No disclosure is allowed of any conclusions, in whole or in part to any persons other than representatives of USDA/NRCS. The Contractor shall coordinate and facilitate the following services:

1. Provide the title commitment (or title search and/or update of abstracts), including copies of all instruments that created rights, interests, or encumbrances on the property, for the proposed easement area and ingress-egress descriptions.

2. Work with NRCS and the landowners to clear exceptions on title to the property and resolve vesting interests.

3. Develop the title commitment/binder, after NRCS provides legal description of easement area and purchase price for the easement, including copies of all instruments that created rights, interests, or encumbrances on the property, not included on the preliminary title search, for the easement boundary and ingress-egress descriptions.

4. Hold funds in escrow, provide closing protection coverage, and provide payment to proper recipient and comply with Internal Revenue Service (IRS) tax reporting Form 1099.

5. Obtain signatures on warranty easement deeds (WED) provided by NRCS.

6. Obtain signatures on subordination agreements and limited lien waivers, affidavits, and any other necessary documents.

7. Record documents in the local land records office (e.g., the applicable county registrar or recorder’s office, county, or town clerk records office).

8. Provide a final title insurance policy using American Land Title Association (ALTA) U.S. Policy 09-28-1991 (Revised 12/3/2012).

9. Provide other services, as necessary, to finalize the easement transaction.

The contractor will provide the above-listed items to the designated NRCS contact identified on the attachment to this statement of work.

IV. STANDARDS AND RESPONSIBILITIES

The acquisition of the program easement and any access easement is governed by the following requirements:

a. Department of Justice Title Standards 2001;

b. Attorney General’s title regulations (1970), with two amendments (1974, 1990);

c. Regulations of the Attorney General Governing the Review and Approval of Title for Federal Land Acquisitions (2016)

d. NRCS regulations and policies governing the NRCS program under which the easement is being acquired.

The contractor will perform the same services that are customarily provided in a commercial transaction, including chain of title, determination of ownership and interest share of surface and subsurface rights, securing and providing all underlying documents, obtaining and recording deeds, and any necessary curative instruments to ensure merchantable, insurable title to the easement are in the name of the United States of America. The contractor is responsible for having up-to-date knowledge of the requirements of the State’s laws on title searches, closing real estate transactions, and title clearance. The title insurance company and its issuing agents must comply with the State’s laws, including title insurance reserve requirements. The contractor must be licensed to do title insurance business in Kansas. The title insurance company must be approved by the State’s insurance commissioner.

The contractor and any subcontractors must obtain a valid Entity Unique Identifier (EUI) number and must maintain active registration in System for Award Management (SAM) for the duration of any contracts or agreements to provide closing services to the NRCS.

The contractor must provide evidence of liability insurance coverage or indemnification in an amount equal to the amount of Federal funds for each easement satisfactory to NRCS, acting on behalf of the Commodity Credit Corporation, providing for reimbursement to NRCS for any loss of Federal funds caused by errors, omissions, fraud, dishonesty, negligence, or failure by the attorneys, agents, or closing agent employees to comply with NRCS’s written closing instructions. The ALTA closing protection letter, revised 4/2/2014, is satisfactory to meet this condition of responsibility. Evidence of liability insurance must be provided prior to award.

V. DESCRIPTION OF SERVICES

A. Preliminary Title Search (or preliminary title commitment) The contractor must obtain the following:

1. Copies of all instruments that created rights, interests, or encumbrances on the proposed easement property

2. Preliminary title search, which must cover both the proposed easement area and access for ingress and egress and must commit to issuing the final title policy to the United States of America on the American Land Title Association (ALTA) U.S. Policy Form 9/28/91 (Revised 12/3/2012).1

The preliminary title search must be from a licensed title insurance company. The title search will be for a sufficient period of time for the title company to insure the title without objectionable exceptions, and will determine all owners of record, outstanding mortgages, liens, judgments or pending suits, outstanding tax claims, easements, or rights-of-way of any type, including oil, gas, and mineral interests that have been severed, and any other exceptions that may cloud the title of the easement to be purchased. The search must show ownership interest of the surface and subsurface rights including oil, gas, coal, sand, gravel, and other minerals associated with the property. The preliminary title search must include a legible copy of all underlying documents of any type, whether oil, gas, and mineral interests have been severed, mortgages, bankruptcies, and any other exceptions that may cloud the title of the easement to be purchased.

Title search services and preliminary title search must be provided to Contracting Officer Representative (COR) within 15 business days of receiving the request from NRCS. The contractor will be provided with the name and address of the landowner, a copy of the deed, a location map of proposed easement area, and access

B. Title Commitment (or Title Search and/or Update of Abstracts) The title commitment/binder must be from a licensed title insurance company. The contractor must obtain the title commitment, which must cover both the surveyed easement area and access for ingress and egress and have the amount of the owner’s coverage listed as the purchase price for the easement. NRCS will provide a description of the surveyed easement area and access for ingress and egress along with the easement purchase price to contractor. The final title policy to the United States of America may only be issued on the American Land Title Association (ALTA) U.S. Policy Form 9/28/91 (Revised 12/3/12).

The title commitment should not contain an exception related to the terms and conditions of the WED to be recorded at closing. However, if such exception is required by the title company, only the following language is acceptable:

1 For easement acquisitions in Texas, the T-11 U.S. Policy and T-12 U.S. Endorsement may substitute any place the ALTA U.S. Policy Form 9/28/91 (Revised 12/3/12) is mentioned in this document.

“All those rights reserved by the Grantor in that certain Warranty Easement Deed between _______________(Grantor) and the United State of America (Grantee), recorded ____________, as Document No. __________________.”

The title commitment will be for a sufficient period of time for the title company to insure the title without objectionable exceptions, and will determine all owners of record, outstanding mortgages, liens, judgments or pending suits, outstanding tax claims, easements, or rights-of-way of any type, including oil, gas, and mineral interests that have been severed, and any other exceptions that may cloud the title of the easement to be purchased, if different from the preliminary title search.

Upon receipt of the title commitment, NRCS will forward the documents to the USDA Office of General Counsel (OGC) Regional Attorney for a preliminary title opinion. If any outstanding issues remain, NRCS will work with OGC to determine which exceptions are acceptable and which must be cured. The contractor will be required to communicate with NRCS and the landowner, proper procedure(s) for the landowner to clear exceptions and obtain the execution of documents such as releases, subordinations, full or partial satisfaction for mortgages, lien waivers, affidavits of materialmen’s liens, and other types of releases of encumbrances on the property.

Title commitment must be provided to the COR within 15 business days of receiving the survey description of the easement area, access description for ingress and egress and easement purchase price from NRCS.

C. Closing Services After receiving the surveyed legal description from NRCS, the contractor must provide an updated preliminary title commitment, which must cover both the easement area and access for ingress and egress. The preliminary title commitment update must be provided to the designated NRCS contact identified on the attachment to this statement of work within 14 business days of receiving the request from NRCS. In the event of acreage changes, after the completion of the survey, the title commitment must be updated to provide adequate owner’s coverage.

Upon receipt of the updated preliminary title commitment, NRCS will forward the preliminary title commitment and other related documentation to the USDA Office of the General Counsel (OGC) regional attorney for a preliminary title opinion (PTO). If any outstanding issues remain, NRCS will work with OGC to determine which exceptions are acceptable and which exceptions must be cured.

The preliminary title commitment must not contain an exception related to the terms and conditions of the Warranty Easement Deed to be recorded at closing. However, if such exception is required by the title company, the proposed language for such exception must be approved prior to closing by OGC.

NRCS will provide the NRCS closing instructions and the applicable instructions from the OGC PTO identifying the requirements that must be met before the easement can be closed. The contractor must communicate with NRCS and the landowner regarding proper procedures for the landowner to clear exceptions and the contractor must obtain the execution of documents such as releases, subordinations, full or partial satisfaction for mortgages, lien waivers, affidavits of materialmen’s liens, child support, and other types of releases of encumbrances on the property.

The contractor must establish an escrow account in an FDIC-insured account for the payment of the easement associated with the closing and include the escrow account information in their System for Award Management (SAM) registration. The contractor will be responsible for Form 1099 reporting of the easement payment to the IRS. NRCS will prepare documentation needed to authorize payment to the escrow account when notified of the closing date. In certain cases, as stated in the NRCS closing instructions, the contractor may be required to withhold a portion of the payment for property taxes or assessments that are not yet determined or payable in an escrow account and process payments when due.

The contractor is required to close within 30 calendar days of receipt of the Federal funds from the U.S Treasury by electronic funds transfer. The contractor will not close any transaction or record deeds or other instruments prior to receiving the NRCS closing instructions letter and OGC PTO requirements.

Prior to closing the easement, the contractor must ensure that the following have occurred:

1. No new encumbrances have been recorded against the subject property since the date of the most recent title commitment/binder, no adverse change in title has occurred, and there are no intervening matters affecting title that might result in a new title exception to the policy. If any new encumbrances have been recorded against the subject property or other adverse changes in title have occurred since the date of the most recent title commitment/binder, notify the NRCS technical representative immediately and do not proceed until further instructions are received. The contractor may be required to provide a pro forma title policy or marked up title commitment, or an updated title commitment, to confirm all title requirements will be met at or prior to closing.

2. The contractor has received the electronic funds transfer of the easement payment in his or her escrow account.

3. The contractor is prepared to issue the policy of title insurance referred below.

4. All exceptions required to be removed, released, subordinated, waived, or otherwise handled as set forth in the NRCS closing instructions have been completed and the applicable clearance documents recorded and all other requirements met. Proposed subordination agreements, satisfactions, releases, partial releases, and other title curative documents to be signed at closing will be provided to NRCS for review and approval at least 3 business days prior to closing.

5. Compliance with any listed title commitment/binder requirements.

6. Review the Warranty Easement Deed according to the NRCS closing instructions and ensure the proper names and marital status are correct.

7. The contractor must provide a copy of the proposed HUD-1 settlement statement to NRCS for review and approval as least 3 business days prior to closing.

The contractor must schedule the execution of the Warranty Easement Deed deed with the landowner at a mutually agreed upon location and time. The preferred location is the local NRCS service center; however, the deed execution may take place at any agreed-upon location. The contractor must obtain properly executed and acknowledged deed from the landowners conveying the conservation easement, including the associated ingress and egress to the easement area. The contractor must ensure that the deed contains all required signatures, release of dower rights, and that all signatures are in proper form and have been acknowledged, that the acknowledgement certificates are in proper form and have been completed correctly, and that the deed contains all of the necessary exhibits. The contractor must also obtain NRCS signatures on the Warranty Easement Deed.

When the signed documents are returned, the contractor must record the deeds and other instruments as necessary, and ensure the following have occurred:

1. The contractor must ensure that no new encumbrances have been placed on the property prior to recording the Warranty Easement Deed.

2. NRCS receives an electronic copy of the executed deed.

3. The contractor must record the Warranty Easement Deed, exhibits, and any necessary title curative documents within 5 business days of execution.

4. All taxes, homeowners’ assessments, etc. are paid to the date the Warranty

Easement Deed is recorded.

5. The contractor must issue a policy of title insurance on ALTA U.S. Policy Form

9/28/91 (Revised 12/3/12)2, with the “United States of America” named as the insured party in the full amount of the easement compensation amount identified on the Warranty Easement Deed as of the time and date of the recording of the Warranty Easement Deed. Said policy of title insurance must be free and clear of any and all encumbrances to the title except those shown as acceptable in the NRCS closing instructions and insure the United States’ interest in the easement area and the right of ingress-egress thereto. The final policy should reflect the execution and recording information pertaining to the insured easement, such as:

“30-Year or Perpetual Easement granted by to United States of America, by Warranty Easement Deed dated and recorded in Deed Record pages in the Office of the Recorder of County,__________.”

6. Complete IRS tax reporting Form 1099 for the full easement compensation amount, as identified in the warranty easement deed, issued to the appropriate parties.

2 For easement acquisitions in Texas, the T-11 U.S. Policy and T-12 U.S. Endorsement may substituted any place the ALTA U.S. Policy Form 9/28/91 (Revised 12/3/12) is mentioned in this document.

The contractor must return the following package to the designated NRCS contact identified on the attachment to this statement of work within 5 business days of receipt of recorded documents from the local land records office:

1. The invoice submitted to the Invoice Processing Platform (IPP) covering the agreed-upon costs incurred for services provided at www.ipp.gov. The contractor will be paid a flat fee for services rendered, including all travel expenses, copy costs, telephone charges, and the like. The contractor must provide documentation for reimbursable expenses, such as title insurance fees and recording costs.

2. Policy of title insurance (original and one copy), ALTA U.S. Policy Form 9-28-91 (Revised 12/3/2012).

3. Recorder’s certified copy of the ACEP-WRE Warranty Easement Deed and a recording receipt

4. Recorder’s certified copies of any curative documents, including subordination agreements

5. Original and one copy of executed settlement statements

6. Record of disbursement of funds to the landowner

7. Completed IRS Form 1099 issued to the landowners

Upon receipt of the final documents, NRCS will request a final title opinion (FTO) from the OGC. If the FTO identifies issues that were not resolved by the contractor in accordance with the NRCS closing instructions and OGC PTO requirements, NRCS will notify the contractor of required remedies. If necessary corrections were originally identified in the NRCS closing agent requirements form or NRCS closing instructions, such corrections must be done at no additional cost to NRCS and returned to the NRCS technical representative within 14 days of notification of such issue. Upon receipt of an OGC FTO indicating that all NRCS closing instruction and OGC PTO requirements have been met, NRCS will process the contractor’s payment for closing services.

VI. PAYMENT

There will be three payments issued:

1. Payment will occur upon receipt and approval of all deliverables identified above in section V.A. (preliminary title commitment).

2. Payment for recording costs and policy premiums will occur upon receipt and

NRCS approval of all deliverables identified in above section V.B.

3. Payment of the contractor’s closing fee will occur upon final review and approval by NRCS or OGC of all deliverables identified in above section V.B., including satisfactory completion of any required remedies or corrections.

NRCS will process the contractor’s payment through the Invoice Processing Platform (IPP at www.ipp.gov) for services rendered.

VII. CONFLICT OF INTEREST

The contractor must not close an NRCS easement purchase for their spouse, children, partners, or business associates, and must not have a financial interest in the real estate covered by the proposed easement.

http://www.ipp.gov/

VIII. AUTHORITY

Only the NRCS contracting officers may place orders under this BPA. Any modifications or questions may be directed to the originating contracting officer identified on the signed contract.

IX. NONDISCLOSURE

Work performance required by this statement of work will involve access to potentially sensitive information about governmental and landowner issues. All contractor personnel must comply with the terms of AGAR 452.224-70, “Confidentiality of Information,” as well as provisions of the Privacy Act of 1974, 5 U.S.C. Section 552a. Additionally, the contractor’s employees must comply with the NRCS guidelines and requirements regarding the disclosure of personal information protected under section 1244 of the Food Security Act of 1985, as amended (16 U.S.C. Section 3844), and information protected under section 1619 of the Food, Conservation, and Energy Act of 2008 (Public Law 110- 246), 7 U.S.C. Section 8791.

X. CIVIL RIGHTS AND PROGRAM DELIVERY

By signing this agreement, the contractor assures the Department of Agriculture that the program or activities provided for under this agreement will be conducted in compliance with all applicable Federal civil rights laws, rules, regulations, and policies.

EXHIBIT A

1) NRCS CONTACTS FOR SUBMISSION OF DELIVERABLES

David P. Driscoll, Easement Program Coordinator Natural Resources Conservation Service 760 South Broadway Salina, Kansas 6740 David.Driscoll@usda.gov 785-823-4505

Dean Krehbiel, State Resource Conservationist Natural Resources Conservation Service 760 South Broadway Salina, Kansas 67401 dean.krehbiel@usda.gov

2) NRCS CLOSING AGENT REQUIREMENTS

Closing agent is responsible for having up-to-date knowledge of the requirements of State law in connection with closing real estate transactions and title clearance.

The title insurance company and its issuing agents must comply with all State laws, including title insurance reserve requirements. You must be an approved agent licensed to engage in title insurance business in the State. The title insurance company must be approved by the State Insurance Commissioner.

Closing agent must obtain a valid Entity Unique Identifier (EUI) number and maintain active registration in the System for Award Management (SAM) or successor registry for the duration of any contracts or agreements to provide closing services to the Natural Resources Conservation Service (NRCS).

Closing agent will provide evidence of liability insurance coverage in the amount equal to at least the amount of the Federal funds for the easement satisfactory to the NRCS, acting on behalf of the Commodity Credit Corporation, providing for reimbursement to NRCS for any loss of Federal funds caused by errors, omissions, fraud, dishonesty, negligence, or failure by the attorneys, agents, or closing agents’ employees to comply with these written closing instructions. The American Land Title Association (ALTA) closing protection letter revised 4/2/2014 is satisfactory to meet this condition of responsibility. Evidence of liability insurance will be provided to NRCS prior to the transfer of Federal funds into escrow.

Closing agent will not close on an easement purchase for their spouse, children, partners, or business associates, and must not have a financial interest in the real estate to be covered by the proposed easement.

mailto:dean.krehbiel@usda.gov