BPA PWS PRS Title Services DRAFT.docx

PERFORMANCE WORK STATEMENT

FOR DELIVERY OF TITLE EVIDENCE AND CLOSING SERVICES

PART I – GENERAL

1. TERMS OF THE BLANKET PURCHASE AGREEMENT (BPA). This agreement shall be in effect for a maximum of five (5) years from the Effective Date of the Agreement.

This BPA shall be effective for a five (5) year continuous period without exercising option years. The total dollar amount for all vendors over the five (5) year period shall not exceed $500,000.00. A maximum of four (4) BPA holders is contemplated. Each BPA Call will be competed. A Request for Quote (RFQ) will be issued to all four (4) BPA holders for each required call.

2. DESCRIPTION OF AGREEMENT. This BPA is to provide Title services from commercial vendors in connection with various real property transactions. The title services, which may include individual property and/or project-wide title services, are frequently required in support of voluntary acquisitions and/or eminent domain proceedings and may involve total or partial acquisitions of fee, leasehold, and/or easement estates.

3. PERIOD OF PERFORMANCE. The period of performance for this Agreement will not exceed five (5) years from the date of award.

4. EXTENT OF OBLIGATION. The Government is only obligated to the extent of authorized calls placed against this BPA.

5. PURCHASE LIMIT. No individual call shall exceed $25,000.00.

6. INDIVIDUALS AUTHORIZED TO PLACE ORDERS. Only Contracting Officers assigned to the Contracting Division located at the U.S. Army Corps of Engineers, Pittsburgh District are authorized to place orders under this Agreement.

7. FEDERAL HOLIDAYS. Federal Holidays are observed as Follows:

New Year’s Day Martin Luther King Jr.’s Birthday Presidents’ Day Memorial Day Juneteenth Independence Day Labor Day Columbus Day Veteran’s Day Thanksgiving Day Christmas Day

8. SECURITY REQUIREMENTS.

a) General security requirements and guidance: The security requirements described below apply to all contract personnel (including employees of the prime Contractor (“Contractor”) and all subcontractor employees) supporting the performance requirements of this contract. The Contractor is responsible for compliance with these security requirements. Questions regarding security matters shall be addressed to the designated Government representative (e.g., Contracting Officer Representative (COR), Requiring Activity (RA) representative, or Contracting Officer (if a COR or other RA representative is not appointed)). Contract personnel are critical to the overall security and safety of US Army Corps of Engineers (USACE) installations, facilities and activities, and security awareness training contributes to those efforts. The Department of Defense (DoD) and Army security training requirements specified below, if applicable, are performance requirements; all applicable contract personnel shall complete initial training within 30 days of contract award or the date new contract personnel begin performance on the contract. Within five business days from the completion of training, the Contractor shall provide written documentation (e.g., email or memorandum) to the Government representative. The documentation shall include the names of contract personnel trained and which training they completed; the Contractor shall maintain training records as part of their contract files and be prepared to provide copies of training certificates to the Government representative. Contractor personnel and vehicles are subject to search when entering federal installations. Additionally, all contract personnel shall comply with Force Protection Condition (FPCON) measures, Random Antiterrorism Measures (commonly referred to as “RAMs”), and Health Protection Condition (HPCON) measures. The Contractor is responsible for meeting performance requirements during elevated FPCON and/or HPCON levels in accordance with applicable RA plans and procedures --this includes identifying mission essential and non-mission essential personnel. In addition to the changes otherwise authorized by the changes clause of this contract, should the FPCON or HPCON levels at any individual facility or installation change, the Government may implement security changes that affect contract personnel. The Contractor shall ensure all contract personnel are aware of their security responsibilities, including any site-specific requirements identified in local policies or procedures.

b) Pre-screen candidates using E-Verify Program: Contractors shall comply with the requirements set forth in FAR clause 52.222-54 Employment Eligibility Verification and FAR Subpart 22.18 in using the E-Verify Program at (https://www.e-verify.gov/) (website subject to change) to meet the contract employment eligibility requirements. Contractors are encouraged to cooperate with Federal and State agencies responsible for enforcing labor requirements to include eligibility for employment under United States immigration laws in accordance with FAR 22.102-1(i). An initial list of verified/eligible candidates shall be provided to the COR no later than three business days after the initial contract award. When contracts are with individuals, the individuals will be required to complete a Form I-9, Employment Eligibility Verification, and submit it to the Contracting Officer to become part of the official contract file.

PART II – EXECUTION

1. WORK TO BE DONE. The work to be done under these specifications consists of furnishing and delivering Owner's Guarantee (Insurance) Policies or Certificates of Title and Continuations thereof in the form of preliminary, interim or final policies, certificates of title, interim binders, or endorsements, as appropriate, and, when requested for a particular acquisition, Closing Services, as set forth on the Schedule/Performance Work Statement (PWS) to which these specifications are attached. Except where certificates are clearly referred to separately, all references hereinafter to "Policies" and "Continuations" shall apply to the forms of title evidence specified by said PWS. The preference for insuring documents is Policies and Preliminary Policies/Commitments (or Certificates only where this is the prevailing local practice). The Government will not accept delivery of certificates except where the Contractor's title insurance company does not issue policies for any lands located in the state wherein the property to be insured lies. Title services will be required in the following states: Pennsylvania, Maryland, West Virginia, Ohio, and New York.

2. NOTIFICATION OF WORK TO BE DONE. A Call, issued by a duly authorized Government officer, will list those items from the line item schedule that are to be performed and delivered. Each line item is reflected on the PWS that will accompany each individual call. Any attached information, such as legal descriptions and source deeds, is provided for general information only and should not be relied upon by the Contractor as definitive or necessarily accurate information.

3. QUANTITY OF WORK. The quantities listed in the PWS are approximate and are provided as information only to assist in preparation of the order. The specific quantities are not guaranteed, and the actual quantities may be more or less than shown. Award of a contract does not guarantee that the Government will require or order all of the items listed under the contract from the Contractor. For example, the Schedule/PWS may include a preliminary, closing, and final policy for a particular tract, but the Government may elect not to acquire that tract, so the closing and final policy would not be needed. In such an instance, the Contractor would not be entitled to compensation for the line items in the Schedule/PWS for the closing or final policy. The Government reserves the right to perform any portion of the items listed in the Schedule/PWS.

4. OWNERSHIP. One Preliminary Policy will be furnished for each contiguous area of land in identical ownership. Land will be deemed contiguous even though portions thereof are separated by roads, railroad rights-of-way, streams, etc. If there has been a severance of the surface and the subsurface of the land, determination of what constitutes a tract will be based on ownership of the surface.

Unless otherwise specified in the individual call and subject to the following paragraph, the Preliminary Policy shall cover the entire ownership of the tract and if certain estates or subsurface interests are vested in others than the owner or owners of the surface, the Preliminary Policy shall cover all such outstanding estates or interests. The Preliminary Policy shall furnish pertinent information such as parties, dates and recordation data regarding mineral severance deeds and the deeds under which the present owner or owners of the minerals acquired title thereto. The Preliminary Policy shall include complete copies of all Schedule B exceptions.

Before commencing a title search on subsurface interests where there has been a severance, the Contractor shall notify the Government that there has been a severance of the surface and subsurface of the land and discuss with the Government. In situations where a severance exists, it shall be the Government’s option whether to perform multiple acquisitions pertaining to the same tract of land. In such cases where the Government elects to obtain title evidence for subsurface interests, such requirements will be separately priced and ordered by a duly authorized government representative.

Where there has been a severance of the surface and subsurface of the land, it is contemplated that there may be multiple acquisitions pertaining to the same tract of land. In the event the Contractor has furnished a Final Policy covering acquisition of the surface owner's interest in the land, the Contracting Officer reserves the right to order Intermediate Policies and Final Policies covering the acquisition of the outstanding minerals underlying the same tract. The Contractor shall be paid for such Intermediate and Final Policies at the appropriate unit prices set forth in the schedule.

5. REMUNERATION. Payment shall be made for Preliminary Policies, Intermediate Policies, Closing Services (where requested and performed), and Final Policies ordered and delivered on the item basis and at the unit price provided in the contract.

All invoices shall be either emailed or mailed to the following:

USACE Finance Center Attn: Disbursing 5722 Integrity Drive Millington, TN 38054-5005 CEFC-H4invoices@usace.army.mil

USACE Pittsburgh District Real Estate Office Attn: Ken Lieu 1000 Liberty Ave, Rm. 2003 Pittsburgh, PA 15222 viet.l.lieu@usace.army.mil

a) The invoices shall specify which tract numbers the charges correlate to, and whether for Preliminary, Intermediate and/or Final Policies. Invoices shall itemize, as a separate item, the cost of title insurance, which charge shall not include any amount for search fees or similar but be limited solely to the title insurance premium. Payment for title insurance shall be made along with payment for the Final Title Policy showing title to be vested in the United States of America or the local sponsor, as applicable. The Contractor shall assume and pay all charges of the company issuing the policies to be furnished under this contract. If court judgments result in the need for endorsements to the Title Policy to increase the limits of liability, payment in such cases will be limited to the fee for the endorsement and the units of title insurance, in excess of the units covered by the previously issued Title Policy or endorsement.

b) The Contractor shall review all additional curative actions submitted by the Government, discuss any proposed curative actions with Corps legal staff, and will delete, remove and/or amend exceptions in compliance with law. The Contractor will have open communications with the Corps legal staff, including communications by phone, facsimile, and electronic mail, with a view toward curing title deficiencies. Any time or costs associated with such discussions will not be billed separately, but instead is factored in the contract price for the title evidence items specified herein.

6. DELIVERABLES. Title evidence, policies, and recorded instruments provided under the contract shall be provided in hard copy, with an advance copy delivered electronically. The electronic copy shall be transmitted to the Contracting Officer Representative (COR). A single printed hard copy shall be sent to: Real Estate Office, U.S. Army Corps of Engineers, Pittsburgh District, 1000 Liberty Avenue, Pittsburgh, PA 15222, unless otherwise directed by the COR.

PART III – DELIVERABLES

1. REPRESENTATION. The Contractor represents as a condition of any obligation of the Government hereunder, that the corporation which is to issue title policies hereunder, is authorized and qualified in the State where the land is located. If the Contractor is an attorney, the written proposal of charges shall be accompanied by the written commitment of a corporation so qualified, to issue title policies and continuations ordered hereunder, and a statement by said corporation that the Contractor\attorney is its agent and can issue policies in its name.

2. REGULATION. The Contractor shall in all instances adhere to the Regulations of the Attorney General Governing the Review and Approval of Title for Federal Land Acquisitions (2016), or any successor thereto as may be in effect at the time of delivery. The DOJ title regulations can currently be found at: https://www.justice.gov/enrd/selected-documents.

3. PRELIMINARY POLICIES. The Preliminary Policies to be furnished shall be based on a thorough search and examination of the public records affecting the title to the land and shall contain the legal description of the property as furnished by the Government. The Contractor shall correct or revise the source or derivation of title of the present owner or owners, contained in such description, if necessary, or otherwise furnish an appropriate derivation of title as required by law or local practice. The policy shall contain the legal description of the property as furnished by the government and shall be immediately followed by a reference to the source of title of the present owner. The Preliminary Policy shall be issued only on the most recent forms approved by the Attorney General of the United States and the American Land Title Association for acquisitions by the United States. The following information, though correct at the time this specification was written, is provided for the Contractor's information only, and is not guaranteed:

American Land Title Association (ALTA) U.S. Policy - 9/28/91 (Revised 12/3/12) is the ONLY currently approved policy form.

Delivery of policies on forms other than those so approved will be considered a nonconforming delivery. Delivery of certificates shall be considered a nonconforming delivery in any state where the insurer issues policies to any client, or if the certificate is not the most recent approved form for acquisitions by the United States. Some or all of the lands to be insured may be acquired in the name of an entity other than the United States of America. If so, the entity will be a sponsor of the project as contemplated by the Water Resources Development Act of 1986, as amended. If requested by the Government, the Preliminary Policy shall offer to insure the United States of America or the local sponsor. If title to the lands is taken in the name of the local sponsor, then the Final Title Policy or certificate shall be issued on the title company's policy or certificate then in use for non-federal acquisitions, notwithstanding that the preliminary policy or certificate was issued on the federal form.

4. CONDEMNATION. In the event of condemnation, the title company, as part of the Commitment price, will provide addresses of lien holders, etc., and to the best of its ability, help with the names and addresses of those mentioned as having possible ownership interests – with the exception of Judgment lists with the multiple common names. In addition, Title Policies for tracts acquired by condemnation proceedings shall include information regarding the United States' immediate predecessor in the title, in language similar to the following:

5. DISCLOSURES. The Title Policy will disclose the name or names of the record owner or owners of the property described therein. Where the Government has ordered title evidence for subsurface estates or interests in the property to be acquired, and those estates are owned by persons, corporations, or other legal entities, other than the owners of the surface estate, the present record owners of each such outstanding estate or interest and all pertinent data relating thereto shall be shown in the Title Policy unless otherwise specified in the order.

Title policies shall be executed and shall contain in Schedule B thereof the names and addresses, as disclosed by the public records, of all persons or entities having any liens on or rights or interests in the property described therein, in order that they may be joined as parties or defendants in a condemnation proceeding if one is necessary.

6. OTHER REQUIRED INFORMATION. The Title Policy/ Commitment shall contain sufficient information concerning defects, liens, encumbrances, and other matters excepted, to enable an attorney examining the policy to determine the nature and extent of such exceptions and their probable effect on the validity of the title to the land described. Examination is required of state and federal records in the district(s) where the land is located to identify judgment liens, decrees, and pending cases that could affect title. It shall also state or be accompanied by a report specifying the evidence or action, if any, which will be acceptable to the corporation issuing the policy, as a basis for the issuance of a Continuation deleting each such defect, lien, encumbrance, and other matter from the Title Policy. As part of the preliminary title submittal, Contractor shall furnish copies of plats referenced in any portion of the legal description, including the preamble, and shall furnish copies of all items noted as exceptions in Schedule “B” to include any recorded plats or maps referenced in the said noted items as well as other recorded references in these items. To this end, the Schedule “B” referenced data shall be tabbed or clearly marked to indicate the precise Schedule “B” exception item number. Also, Contractor shall furnish a copy of source(s) of title (deed, will, etc.) into the owner(s) of the land. Receipt by the Government of the preliminary title/commitment shall be within thirty (30) calendar days from the date of the call, unless arrangements are made between the Contractor and the Government for earlier or later delivery.

7. TAXES AND LIENS. Each policy/commitment shall contain a detailed statement of any taxes and special assessments of record which are a lien on the property described. Such statement will include, at a minimum, the current assessment information, including name of taxpayer, district (if applicable) assessment, and dollar amount. The statement will also either clearly itemize all delinquent taxes or affirmatively state that there are no delinquent taxes.

If the policy contains any objection with respect to liens for taxes, assessments, or bonds of a special improvement district, such objections will be followed by references to the statutes pursuant to which such special improvement district was organized, its taxes and assessments levied and its bonds issued and any other facts necessary to enable an attorney examining the policy to determine the nature and extent of the lien, if any, created by such taxes, assessments, or bonds, on the land described therein.

In the acquisition of fee parcels, all taxes relating to the property, including but not limited to, school and similar local taxes against the land, and water and sewer charges shall be satisfied or escrowed as necessary before or at closing – to include all liens relating to the same – at no additional charge to the Government. Similarly, the Contractor shall discharge all mortgages, judgments, liens and similar monetary encumbrances, with Government funds, obtain releases from all mortgage companies, or appropriate persons or entities, have them recorded, and pay any recording fees. Partial releases in fee acquisitions are acceptable as long as the Government’s title is free of the mortgage or lien.

Mortgages, judgments, liens and similar monetary encumbrances in easement acquisitions shall be discussed with the Government closing coordinator to determine whether satisfaction of the same, partial releases/subordinations, etc. will be required by the Government.

8. PARTIAL RELEASES. For acquisitions where the Government intends to acquire less than the full interest of the property owner, it may be necessary to obtain a partial release from a lender or other lienholder. In such cases where a partial release is required and the lender/ lienholder insists on payment for appraisals or administrative expenses, the contractor shall coordinate with the lender to determine fair and reasonable costs charged by a lender to obtain such releases, partial releases, subordinations, etc., whether prepared by the lender or the contractor. Once the contractor has determined the cost, the contractor shall contact the Contracting Officer and seek approval for payment of any lender expenses for partial releases deemed reasonable and necessary to obtain partial releases. The Government shall be responsible for no such cost unless and until the Government has provided written approval and has obligated funding for those costs through a modification of the Order/BPA Call. After the releases, partial releases, subordinations, etc. are obtained from the lender, the contractor shall submit an invoice to the Government for the actual expenses charged by the lender issuing the release, partial release, subordination, etc. and the administrative charge as stated as the unit price provided in the contract. The Government shall pay the contractor, upon receipt, the invoice amount separate from expenses related to actual closing and recording fees which shall be submitted on a separate invoice.

9. LIMITATIONS ON AUTHORITY. If the policy shows title in a record owner who is deceased, it shall also state therein, or be accompanied by a statement indicating whether a judicial proceeding, affidavits of heirship, or some other form of proof will be acceptable to the title company as the basis for the issuance of a Title Policy showing title in the United States upon execution and recordation of a deed to the United States from such persons shown by such proof to be all heirs of the deceased.

If the policy shows record title in a state, county municipality, or other subdivision of the state, or in a corporation, or a church or other religious, educational, or charitable institution or organization, or in a person or persons acting in a fiduciary or similar capacity, without authority to convey the property in the absence of specific authorization, the policy shall disclose the incapacity of or limitation on the authority to convey the property and shall specify what action, if any, is necessary before a valid conveyance of the property may be made to the United States and what proof thereof will be required by the title company before issuing a Title Policy showing valid title to the property in the United States.

10. SERVICEMEMBER CIVIL RELIEF ACT (SCRA) OF 2003. Policies containing any exception or objection with respect to rights or possible rights under the provisions of the Servicemember Civil Relief Act of 2003, as amended (50 USC §§ 501-597b) shall:

a) Contain the name of each person having such rights, and the address of any such person, if known;

b) Contain or be accompanied by a statement of the company issuing the policy showing the nature and extent of the interest in the land of each such person, and;

c) If any such person has an actual interest in the land, contain or be accompanied by a transcript of the proceeding giving rise to such rights and disclose the action, if any, taken in the proceeding to comply with the requirements of said Acts.

11. SPECIAL CLOSING REQUIREMENTS. In fee and in easement acquisitions, the Contractor shall satisfy, prior to or at closing, specially listed closing requirements in Schedule “B” (for example, proof that the grantor is single, that sale into the grantor by a corporation was in adherence with the law, etc.). When the Government is purchasing the full interest of the property owner in a particular tract, all releases, subordinations, etc., whether prepared by the lender or the contractor, and related recording fees shall be provided at no additional cost to the Government. For acquisitions where the Government intends to acquire less than the full interest of the property owner, and it is necessary to obtain a partial release or subordination, additional compensation and reimbursement to the Contractor shall be evaluated in accordance with paragraph 18.

12. ENSURANCE OF MARKETABILITY. If the corporation which is to issue Title Policies hereunder customarily ensures marketability of title in the locality where the land is situated, the Policies to be issued hereunder shall not contain the paragraph headed "Refusal to Purchase" under "General Exceptions" of the aforesaid approved Title Policy but shall ensure the marketability of the title.

13. CLOSING SERVICES. In instances where closing is part of the contracted scope of work, when the Government advises the Contractor that a parcel is ready for closing, the Contractor shall schedule closing with the seller. The closing services by the Contractor shall be discussed and arranged with the Government coordinator as necessary to meet the target closing dates for Project scheduling requisites. However, all closings shall be conducted within thirty (30) calendar days of receipt of final closing package from the Government coordinator unless arrangements are made between the Contractor and the Government for earlier or later closings. At the time of closing, the Contractor shall have seller execute the Government furnished deed and closing sheet, shall have the deed notarized, and disburse funds. The Contractor shall record the deed and pay any recording fees. As part of recordation of the deed, the Contractor shall submit to the recorder of deeds the Government completed transfer tax and value form in which the Government will declare an exemption, for the particular State or Commonwealth in which the land is situate. In some instances, it may be appropriate for the Contractor to assist in preparing State and county/city transfer tax and value forms.

14. INTERIM UPDATES. The Policy/final title policy shall include the title bring to date as of the recording of the Deed from the Commitment date or date of an interim title update, if an interim update was ordered.

15. FINAL POLICY REQUIREMENTS. Final title policy(s) shall be delivered thirty (30) days from the closing date (when funds are disbursed which presumably is also the conveyance instrument recording date or very close to it). Originally recorded deeds or deeds of easement shall accompany the delivery of the policy(s); or in the event the recorded conveyance instrument(s) is not yet available from the Recorder’s office, copies of the recorded and stamped instrument(s) or official documentation of recording data of liber and folio shall accompany the policy(s). In the latter event, the recorded instrument shall be forwarded to the Government when it is received by the Contractor.

PART IV - QUALITY CONTROL & QUALITY ASSURANCE

1. QUALITY CONTROL PLAN (QCP). This acquisition is for commercial services and will be performed in accordance with Federal Acquisition Regulation (FAR) Part 12. The contractor’s existing quality assurance system shall be utilized in accordance with FAR 12.208. The Contractor shall inform the COR of issues or potential issues that might affect the performance within 24 hours of identifying those issues. Verbal reports shall be followed up by written reports within 5 business days.

2. QUALITY ASSURANCE. The Quality Assurance Surveillance Plan (QASP, together with the Performance Requirements Summary in Appendix I, constitute the respective plan and metric by which quality assurance will be conducted by the Government. Monthly Status Reports (Appendix II) will be accomplished by the COR for all active BPAs.

Appendix I Performance Requirements Summary (PRS) Real Estate Title Services

AQL: 100% of the time.

What: Title Services

How: 100% Inspection

Who: COR, Office of Counsel, Realty Specialist, other Customer Parties

Documentation: Inspection Reports, Monthly Status Reports

Remedy: If the standard is not met, the Contractor shall be penalized.

A minor (Level I) non-conformance is remedies via re-performance of the task.

A major (Level II) non-conformance up to 20% of the cost of the service, in addition to re-performance of the task. Deductions will be calculated by taking the number of days past the due date that a conforming title service is ultimately submitted and accepted by the Government, dividing by the number of days in the total period of performance for the specific order, and deducting the resulting % of the cost of the services, up to a maximum of 20%.

A critical (Level III) non-conformance up to 50% of the cost of the services, in addition to re-performance of the task. Deductions will be calculated by taking the number of days past the due date that a conforming title service is ultimately submitted and accepted by the Government, dividing by the number of days in the total period of performance for the specific order, and deducting the resulting % of the cost of the services, up to a maximum of 50%.

Standard: Inspection applies to all standards.

Appendix II Example Monthly Status Report (MSR) image1.png