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HomeMy WebLinkAboutP-23-154 KAN Ventures Inc. dba Ewell Group.pdf CO,U County of Fresno �+ INTERNAL SERVICES DEPARTMENT 10 Facilities• Fleet•Graphics• Purchasing • Security•Technology O� 185�O �R-V,S PROCUREMENT AGREEMENT Agreement Number P-23-154 March 29, 2023 KAN Ventures, Inc. dba Ewell Group Attn: Austin B. Ewell III 735 W. Alluvial Ave., Ste. 103 Fresno, CA 93711 The County of Fresno (County) hereby contracts with KAN Ventures, Inc. dba Ewell Group (Contractor)to provide Consulting Services in accordance with the text of this agreement and Attachment"A", by this reference made a part hereof. TERM: This Agreement shall become effective March 28, 2023 and shall remain in effect through March 27, 2026. MINIMUM ORDERS: Unless stated otherwise there shall be no minimum order quantity. The County reserves the right to increase or decrease orders or quantities. CONTRACTOR'S SERVICES: Contractor shall perform the services as described in Attachment"A" attached, at the rates set forth in Attachment"A". ORDERS: Orders will be placed on an as-needed basis by Department of Public Works and Planning under this contract. PRICES: Prices shall be firm for the contract period. MAXIMUM: In no event shall services performed and/or fees paid under this Agreement be in excess of one hundred seventy-five thousand dollars ($175,000.00). ADDITIONAL ITEMS: The County reserves the right to negotiate additional items to this Agreement as deemed necessary. Such additions shall be made in writing and signed by both parties. DELIVERY: The F.O.B. Point shall be the destination within the County of Fresno. All orders shall be delivered complete as specified. All orders placed before Agreement expiration shall be honored under the terms and conditions of this Agreement. DEFAULT: In case of default by Contractor, the County may procure the articles/services from another source and may recover the loss occasioned thereby from any unpaid balance due the Contractor or by any other legal means available to the County. The prices paid by County shall be considered the prevailing market price at the time such purchase is made. Inspection of deliveries or offers for delivery, which do not meet specifications, will be at the expense of Contractor. 333 W. Pontiac Way, Clovis, CA 93612 / (559) 600-7110 *The County of Fresno is an Equal Employment Opportunity Employer* PROCUREMENT AGREEMENT NUMBER: P-23-154 Page 2 KAN Ventures, Inc. dba Ewell Group March 29, 2023 INVOICING: An itemized invoice shall be sent to requesting County department in accordance with invoicing instructions included in each order referencing this Agreement. The Agreement number must appear on all shipping documents and invoices. Invoice terms shall be Net 45 Days. INVOICE TERMS: Net forty-five (45) days from the receipt of invoice. TERMINATION: The County reserves the right to terminate this Agreement upon thirty (30) days written notice to the Contractor. In the event of such termination, the Contractor shall be paid for satisfactory services or supplies provided to the date of termination. LAWS AND REGULATIONS: The Contractor shall comply with all laws, rules and regulations whether they be Federal, State or municipal, which may be applicable to Contractor's business, equipment and personnel engaged in service covered by this Agreement. AUDITS AND RETENTION: Terms and conditions set forth in the agreement associated with the purchased goods are incorporated herein by reference. In addition, the Contractor shall maintain in good and legible condition all books, documents, papers, data files and other records related to its performance under this contract. Such records shall be complete and available to Fresno County, the State of California, the federal government or their duly authorized representatives for the purpose of audit, examination, or copying during the term of the contract and for a period of at least three years following the County's final payment under the contract or until conclusion of any pending matter(e.g., litigation or audit), whichever is later. Such records must be retained in the manner described above until all pending matters are closed. LIABILITY: The Contractor agrees to: Pay all claims for damage to property in any manner arising from Contractor's operations under this Agreement. Indemnify, save and hold harmless, and at County's request defend the County, its officers, agents and employees from any and all claims for damage or other liability, including costs, expenses (including attorney's fees and costs), causes of action, claims or judgments resulting out of or in any way connected with Contractor's performance or failure to perform by Contractor, its agents, officers or employees under this Agreement, and from any and all costs and expenses (including attorney's fees and costs), damages, liabilities, claims, and losses occurring or resulting to any person, firm or corporation who may be injured or damaged by the performance, or failure to perform, of Contractor, its officers, agents, or employees under this Agreement. INSURANCE: Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, the following insurance policies or a program of self-insurance, including but not limited to, an insurance pooling arrangement or Joint Powers Agreement(JPA)throughout the term of the Agreement: A. Commercial General Liability: Commercial General Liability Insurance with limits of not less than Two Million Dollars ($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars ($4,000,000.00). This policy shall be issued on a per occurrence basis. County may require specific coverage including completed operations, product liability, contractual liability, Explosion-Col lapse- Underground, fire legal liability or any other liability insurance deemed necessary because of the nature of the contract. B. Automobile Liability: Comprehensive Automobile Liability Insurance with limits of not less than One Million Dollars ($1,000,000.00) per accident for bodily injury and for property damages. Coverage should include any auto used in connection with this Agreement. C. Professional Liability: If Contractor employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W., M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less than One Million Dollars ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) annual aggregate. D. Worker's Compensation: A policy of Worker's Compensation insurance as may be required by the California Labor Code. P-23-154 KAN Ventures,Inc.dba Ewell Group.docx PROCUREMENT AGREEMENT NUMBER: P-23-154 Page 3 KAN Ventures, Inc. dba Ewell Group March 29, 2023 Additional Requirements Relating to Insurance: Contractor shall obtain endorsements to the Commercial General Liability insurance naming the County of Fresno, its officers, agents, and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are concerned. Such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained by County, its officers, agents and employees shall be excess only and not contributing with insurance provided under Contractor's policies herein. This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance written notice given to County. Contractor hereby waives its right to recover from County, its officers, agents, and employees any amounts paid by the policy of worker's compensation insurance required by this Agreement. Contractor is solely responsible to obtain any endorsement to such policy that may be necessary to accomplish such waiver of subrogation, but Contractor's waiver of subrogation under this paragraph is effective whether or not Contractor obtains such an endorsement. Within Thirty (30) days from the date Contractor signs and executes this Agreement, Contractor shall provide certificates of insurance and endorsement as stated above for all of the foregoing policies, as required herein, to the County of Fresno, Public Works and Planning, 2220 Tulare Street, 6th Floor, Fresno, CA 93721, stating that such insurance coverage have been obtained and are in full force; that the County of Fresno, its officers, agents and employees will not be responsible for any premiums on the policies; that such Commercial General Liability insurance names the County of Fresno, its officers, agents and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are concerned; that such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained by County, its officers, agents and employees, shall be excess only and not contributing with insurance provided under Contractor's policies herein; and that this insurance shall not be cancelled or changed without a minimum of thirty(30) days advance, written notice given to County. Certificates of Insurance are to include the contract number at the top of the first page. In the event Contractor fails to keep in effect at all times insurance coverage as herein provided, the County may, in addition to other remedies it may have, suspend or terminate this Agreement upon the occurrence of such event. All policies shall be with admitted insurers licensed to do business in the State of California. Insurance purchased shall be purchased from companies possessing a current A.M. Best, Inc. rating of A FSC VII or better. COMING ON COUNTY PROPERTY TO DO WORK: Contractor agrees to provide maintain and furnish proof of Comprehensive General Liability Insurance with limits of not less than $500,000 per occurrence. INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations assumed by Contractor under this Agreement, it is mutually understood and agreed that Contractor, including any and all of Contractor's officers, agents, and employees will at all times be acting and performing as an independent contractor, and shall act in an independent capacity and not as an officer, agent, servant, employee,joint venturer, partner, or associate of the County. Furthermore, County shall have no right to control or supervise or direct the manner or method by which Contractor shall perform its work and function. However, County shall retain the right to administer this Agreement so as to verify that Contractor is performing its obligations in accordance with the terms and conditions thereof. Contractor and County shall comply with all applicable provisions of law and the rules and regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof. Because of its status as an independent contractor, Contractor shall have absolutely no right to employment rights and benefits available to County employees. Contractor shall be solely liable and responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In addition, Contractor shall be solely responsible and save County harmless from all matters relating to payment of Contractor's employees, including compliance with Social Security, withholding, and all other regulations governing such P-23-154 KAN Ventures,Inc.dba Ewell Group.docx PROCUREMENT AGREEMENT NUMBER: P-23-154 Page 4 KAN Ventures, Inc. dba Ewell Group March 29, 2023 matters. It is acknowledged that during the term of this Agreement, Contractor may be providing services to others unrelated to the County or to this Agreement. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this Agreement nor their rights or duties under this Agreement without the written consent of the other party. AMENDMENTS: This Agreement constitutes the entire Agreement between the Contractor and the County with respect to the subject matter hereof and supersedes all previous negotiations, proposals, commitments, writings, advertisements, publications, Request for Proposals, Bids and understandings of any nature whatsoever unless expressly included in this Agreement. This Agreement supersedes any and all terms set forth in Contractor's invoice. This Agreement may be amended only by written addendum signed by both parties. INCONSISTENCIES: In the event of any inconsistency in interpreting the documents which constitute this Agreement, the inconsistency shall be resolved by giving precedence in the following order of priority: (1)the text of this Agreement (excluding Attachment"A"), and (2)Attachment"A". GOVERNING LAWS: This Agreement shall be construed, interpreted and enforced under the laws of the State of California. Venue for any action shall only be in County of Fresno. ELECTRONIC SIGNATURES: The parties agree that this Agreement may be executed by electronic signature as provided in this section. A. An "electronic signature" means any symbol or process intended by an individual signing this Agreement to represent their signature, including but not limited to (1)a digital signature; (2) a faxed version of an original handwritten signature; or(3) an electronically scanned and transmitted (for example by PDF document) of a handwritten signature. B. Each electronic signature affixed or attached to this Agreement (1) is deemed equivalent to a valid original handwritten signature of the person signing this Agreement for all purposes, including but not limited to evidentiary proof in any administrative or judicial proceeding, and (2) has the same force and effect as the valid original handwritten signature of that person. C. The provisions of this section satisfy the requirements of Civil Code section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1). D. Each party using a digital signature represents that it has undertaken and satisfied the requirements of Government Code section 16.5, subdivision (a), paragraphs (1)through (5), and agrees that each other party may rely upon that representation. This Agreement is not conditioned upon the parties conducting the transactions under it by electronic means and either party may sign this Agreement with an original handwritten signature. Please acknowledge your acceptance by returning all pages of this Agreement to my office via email or USPS. P-23-154 KAN Ventures,Inc.dba Ewell Group.docx PROCUREMENT AGREEMENT NUMBER: P-23-154 Page 5 KAN Ventures, Inc. dba Ewell Group March 29, 2023 Please refer any inquiries in this matter to Susan Walker, Purchasing Technician, at 559-600-7111 or suwalker@fresnocountyca.gov. FOR THE COUNTY OF FRESNO Digitally signed by Gary Cornuelle Gary CO rn U e l I e Date:2023.03.29 16:04:08-07'00' Gary E. Cornuelle Purchasing Manager 333 W. Pontiac Way Clovis, CA 93612 GEC:slw P-23-154 KAN Ventures,Inc.dba Ewell Group.docx PROCUREMENT AGREEMENT NUMBER: P-23-154 Page 6 KAN Ventures, Inc. dba Ewell Group March 29, 2023 CONTRACTOR TO COMPLETE: Company: KAN Ventures, Inc. Type of Entity: ❑ Individual ❑ Limited Liability Company ❑ Sole Proprietorship ❑ Limited Liability Partnership ■❑ Corporation ❑ General Partnership 735 W ALLUVIAL AVE #103 FRESNO CA 93711 Address City State Zip 559-437-1990 AUSTIN@EWELLGROUP.COM TELEPHONE NUMBER FAX NUMBER E-MAIL ADDRESS Print Name & Austin Ewell President Title: Print Name &Title: Signature: Signature: ACCOUNTING USE ONLY ORG No.: 43600300 Account No.: 7295 Requisition No.: 4362303003 (08/2022) P-23-154 KAN Ventures,Inc.dba Ewell Group.docx PROCUREMENT AGREEMENT NUMBER: P-23-154 Attachment Page 1 of 3 KAN Ventures, Inc. dba Ewell Group March 29, 2023 A TTACHMENT "A " CONSULTING AGREEMENT RECITALS: A. County is interested in facilitating the use of a water storage and storage,possibly through a transfer or exchange of other water supplies to provide for potential fire suppression and/or Municipal and Industrial use for in, and around, the Shaver Lake area of Fresno County. B. County is interested in obtaining the necessary water supplies and rights from the necessary parties. C. The current rights or interests for each project are more particularly described in Exhibit "A" hereto. Ewell Group, and its principal,Austin B. Ewell III (herein after "Ewell") is a licensed California Attorney but will not be providing legal services to County as County has separate and independent legal counsel. Ewell is also an appointed member of the County Planning Committee and will recuse himself from land use matters relating to such water supply. Ewell is involved as a consultant in various land and water matters including local, state and federal government relations,inter-governmental,legislative affairs and policy matters, and as such, involvement in those matters will continue. D. Ewell has extensive experience and background in California agriculture and water. Ewell is familiar with the complex,political and geographical challenges facing California's Central Valley. As the Deputy Assistant Secretary for Water and Science at the U.S. Department of the Interior, Ewell had oversight and primary policy lead responsibility for the U.S. Bureau of Reclamation. F. The parties wish to enter this Consulting Fee Agreement to provide compensation to Ewell for work, contacts and services provided by Ewell to County, all upon the terms set forth herein. NOW,THEREFORE, for and in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the parties agree as follows: 1. Information. County shall deliver into the possession of Ewell,within a timely manner from the execution date hereof, any additional relevant information concerning the description and,water or storage rights,related to Shaver Lake and Cross Valley Contract,which Ewell will require to properly analyze the value, status, and water supplies. 2. Consulting Fees. For the services described in the Agreement, the fee shall be billed monthly for services provided. (a) Success Fee. The parties herein will review and determine if a mutually agreeable success fee is appropriate and due Ewell for the procurement of a water supply. P-23-154 KAN Ventures,Inc.dba Ewell Group.docx PROCUREMENT AGREEMENT NUMBER: P-23-154 Attachment Page 2 of 3 KAN Ventures, Inc. dba Ewell Group March 29, 2023 3. Duration of Consulting Fee Agreement. The initial term of this Result- Consulting Agreement shall be for eighteen months (18) and then continuing monthly and allowing for termination upon 30 days written notice, subject to the payment to consultant of any fees due at such time,with a maximum time duration of 3 years. 4. Disclosures. Ewell agrees not to disclose information obtained in confidence from County except as authorized verbally or in writing by County or as may be required for Ewell to perform its obligations hereunder, or as required by law. 5. Conflicting Interest. Ewell and its principals are acting as a non-exclusive Consultant to County hereunder and shall not be deemed to owe any fiduciary duties to County or to any related or associated businesses or operations, their agents or consultants which are not expressly set forth within this Agreement. County, Ewell and its principals are free to engage in such other projects, acquire and sell, transfer and lease such other properties,water supplies or engage in such other business opportunities as they deem,in their sole and exclusive discretion, to be advantageous to each party,it being expressly understood that the relationship expressed hereby shall not obligate the other party to provide corporate, employee, consultant or employer or any other type of opportunities to the other. 6. Nature of this Agreement. The parties recognize and agree that this Agreement constitutes a Consulting agreement and shall not be construed nor shall be either party assert that this Agreement constitutes a real estate listing agreement or an agreement to provide legal representation or to render legal services to County by Ewell or its principals. County has been advised by Ewell that it must obtain its own independent counsel for representation of its interests in this matter. It is expressly understood that the water rights and supplies are unique and require the expertise of Ewell,which expertise is based upon a fee schedule. 7. Notices. All notices hereunder shall be deemed given if delivered in writing,by mail, at the appropriate address of the party,postage prepaid, or by delivery via facsimile transmission to the parties as follows: County of Fresno Attention: Bernard Jimenez 2220 Tulare Street, 6`' Floor, Fresno, CA 93721 Telephone: Email: bjimenez@fresnocountyca.gov KAN Ventures,Inc. Attention: Austin Ewell,President 735 W. Alluvial Avenue, Suite# 103 Fresno, CA 93711 Telephone: (559) 437-1990 Email: austin@ewellgroup.com P-23-154 KAN Ventures,Inc.dba Ewell Group.docx PROCUREMENT AGREEMENT NUMBER: P-23-154 Attachment Page 3 of 3 KAN Ventures, Inc. dba Ewell Group March 29, 2023 8. Entire Agreement of the Parties. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, offers, acceptances and understandings of the parties with respect to the subject matter hereof. In the event the parties would like to extend this agreement with future projects, the parties shall amend this agreement. The Parties acknowledge that additional properties or pursuits may later be included through amendment of this Agreement. 9. Disputes. In the event of any dispute between County and Ewell concerning this Consulting Agreement, the dispute shall be resolved by informal mediation in the following manner. County and Ewell shall both appoint One (1) representative (who may be affiliated with that party or an agent of attorney of that party).Within Ten (10) days of the designation of the second representative, the Two (2) representatives so chosen shall select a third party who is unrelated to both County and Ewell. The Three (3) arbitrators shall then meet in a convenient location in Fresno County within Twenty (20) days of the selection of the third arbitrator. The dispute shall be resolved by the decision of Two (2) of the Three (3) arbitrators and such decision shall be binding on all parties absent fraud. 11. Authority of Signatures. By signing of this Agreement, the parties acknowledge and represent to one another that all have been performed and that the persons signing for each party have been duly authorized to do so. 12. Execution. This Agreement may be executed in multiple parts as originals by facsimile or electronic copies of executed originals. County Of Fresno By: Dated: KAN Ventures,Inc., a Cali rni orporatio By: Austin well, President Dated: 3/29/2023 EXHIBIT `A' Parties to work in conjunction with the Bureau of Reclamation (`BOR"), the Friant Water Authority ("FWA"),including Friant Contractors, and others as identified, to secure an adequate water supply for necessary use in Shaver Lake, California, Fresno County. Such work may require using certain rights and supplies to exchange or transfer as necessary for delivery,work, usage, and storage within Shaver Lake, CA. P-23-154 KAN Ventures,Inc.dba Ewell Group.docx