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HomeMy WebLinkAboutHolloway Environmental Solutions LLC 1st Amendment To Agreement 11-2-231 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT (Amendment) made and entered into as of this ____ day of November 2023, (Effective Date) amends the Agreement heretofore entered into between the CITY OF FRESNO, a municipal corporation (City), and Holloway Environmental Solutions LLC, a Wyoming Limited Liability Corporation (Contractor). RECITALS WHEREAS, The City and Contractor entered into a Service Agreement on January 17, 2019, (Agreement) to provide for Biosolids reuse and disposal services for $1,274,400.00 per year for three years with two one-year optional terms; and WHEREAS, the City and Contractor desire to increase the contract price to not to exceed $2,826,866.69, for a total contract value of $9,198,866.69; and WHEREAS, with entry into this Amendment, Contractor agrees that it has no claim, demands, or disputes against the City. AGREEMENT NOW, THEREFORE, the City and Contractor agree that the aforesaid Agreement be amended as follows: 1.The contract price shall be increased by $2,826,866.69, for a total contract value of $9,198,866.69. 2.In the event of any conflict between the body of this Amendment and any exhibit or attachment hereto, the terms and conditions of the body of this Amendment shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Amendment, shall be null and void. 3.Except as otherwise provided herein, the Agreement dated January 17, 2019, will remain in full force and effect. [Signatures follow on the next page.] DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 3rd 2 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and year first above written. CITY OF FRESNO, A California municipal corporation By: Brock D. Buche, PE, PLS, Director Department of Public Utilities APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Angela M. Karst Date Senior Deputy City Attorney Date Holloway Environmental Solutions LLC, A Wyoming Limited Liability Corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) ATTEST: TODD STERMER, CMC City Clerk By: Deputy Addresses: CITY: City of Fresno Attention: Cory Asher 5607 W Jensen Avenue Fresno, CA 93706 Telephone No. 559-621-5170 CONSULTANT: Holloway Environmental Solutions LLC, Attention: Dan Allen 2019 Westwind Drive Suite B Bakersfield, CA 93301 Telephone No. 661-332-5034 DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 Brian Maxted 10/10/2023 CEO COO Dan Allen 10/10/2023 10/10/2023 11/3/2023 Tina M Your 11/3/2023 SERVICE CONTRACT fi•/::'_ !1� 1 '1-Iii�·, I/., I/! 1 THIS CONTRACT is made and entered into by and between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to as "City"), and Holloway Environmental Solutions LLC, a Wyoming Limited Liability Corporation (hereinafter referred to as "Contractor") as follows: 1. CONTRACT DOCUMENTS. The "Notice Inviting Proposals," "Instructions to Proposers," "Proposal" and the "Specifications" including "General Conditions," "Special Conditions", "Federal Conditions", "Functional Specifications" and "Technical Requirements" for the following: Requirements Contract for the Removal, Processing, and Beneficial Reuse of Biosolids (Request for Proposals No. 9468) copies of which are annexed hereto, together with all the documents specifically referred to in said annexed documents, including the Performance Bond, if required, are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2.PRICE. For the monetary consideration of ONE MILLION TWO HUNDRED SEVENTY FOUR THOUSAND FOUR HUNDRED DOLLARS AND NO CENTS ($1,274,400.00), as set forth in the Proposal, Contractor promises and agrees to perform or cause to be performed, in a good and workmanlike manner, and to the satisfaction of City, and in strict accordance with the Specifications, all of the work as set forth in the Contract Documents. 3.PAYMENT. City accepts Contractor's Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. Contractor agrees to accept electronic payment from City. 4.INDEMNIFICATION: Contractor shall indemnify, hold harmless and defend City and each of its officers, officials employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Contract. Contractor's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or volunteers are actively or passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of the City or any of its officers, officials, employees, agents or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. I/Ill Ill/I RFP 3-14 06/25/13CAOApprovedJR DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 ATTACHMENT A AUTHORIZED SIGNATORIES MATRIX HOLLOWAY MANAGEMENT, LLC (the “Company”) As of December 31, 2020 DOCUMENTS AUTHORIZED SIGNATORIES SECTION A. Dividends Declaring a dividend to Members Requires Approval of TWO Managing Directors Document to be signed by: Any two Managing Directors SECTION B. Employment and Related Party Transactions Employment, Severance and Compensation of Officers- Documents constituting employment, severance or compensation agreements with any Company Officers (an “Officer” being any employee with the title of Vice President or greater or who has signing authority for the Company) Requires Approval of TWO Managing Directors Document to be signed by Any two of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Chief Operating Officer Employment, Severance and Compensation of non- Officer Employees- DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 Documents constituting employment, severance or compensation agreements with any Company employee (other than an Officer) Requires Approval of ANY Managing Director Document to be signed by: Any two of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Chief Operating Officer; or 6) Controller Related Party Transactions- Entering into any agreement or action which bestows a direct or indirect financial benefit to any director, officer or shareholder or any affiliate thereof (each a “Related Party”), including, but not limited to: a) any consulting agreement between the Company and any Related Party, b) setting the salary or other compensation of any officer or director, c) the purchase, lease, or continual use of any company vehicle, d) the incurrence of any debt or advancement of any loan between the Company and any Related Party, or e) the purchase of any other property by the Company for use of one or more Related Parties to achieve a business end or otherwise. Requires Approval of TWO Managing Directors Document to be signed by: Any two of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Chief Operating Officer; or 6) Controller Intergroup Transaction Any agreement or action by and between any two or more entities within the Holloway Group. Requires Semi-Annual Review of the Board of Directors Document to be signed by: DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 Any one of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer AND, TOGETHER WITH Any one of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Chief Operating Officer SECTION C. Indebtedness, Investments, and Disposition of Real Property and other Assets Documents relating to or affecting the property or operations of the Company and pertaining to transactions involving the acquisition, transfer, purchase or sale of any form of equity interests; the incurrence of debt or the advancement of any loan, including as evidenced by any form of notes, bonds or other evidence of indebtedness; any form of financial instruments (including swaps, options or hedges). Documents relating to or affecting the property or operations of a Company and pertaining to transactions involving the purchase or sale of, or leasing or sub-leasing of, or transfer of, or granting or obtaining of any interest in, real estate (including short and long term commercial office leases, and temporary housing arrangements for officers, employees and other parties) utilized by a Company for its own business operations (including any amendment, modification or supplement to or of any such Document), but excluding ordinary course arrangements for hotels and similar venues, and storage of files or other Company property Requires Approval of TWO Managing Directors Document to be signed by: Any one of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer AND, TOGETHER WITH Any one of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Controller; or DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 Documents relating to or affecting the property or operations of the Company and pertaining to any form of guarantee, indemnity (other than ordinary course indemnities associated with services provided by third parties), surety, re-conveyance or repurchase agreement; pledging or encumbering any Company property or asset or otherwise creating liens or encumbrances (other than ordinary course purchase money liens for office equipment) 6) Chief Operating Officer SECTION D. Banking, Brokerage and Other Account Documents Documents relating to the opening, modification or closing of any Company bank, custodial, securities, brokerage, margin, prime brokerage or securities lending account with any bank, or financial institution, or the designation in writing to any depository or custodial bank or firm or the Company officers and employees who are authorized to deposit, withdraw, or transfer funds with respect to such accounts and to revoke or amend any such designations in writing. Document to be signed by: Any one of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer AND, TOGETHER WITH Any one of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Controller; or 6) Chief Operating Officer SECTION E. Substantial Third Party Arrangement Documents Documents relating to or affecting the property or operations of the Company and pertaining to transactions including joint venture agreements, partnerships, or joint development agreements Requires Approval of TWO Managing Directors Document to be signed by: DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 Any one of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer AND, TOGETHER WITH Any one of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Controller; or 6) Chief Operating Officer SECTION F. Tax, Accounting, Legal and Compliance Documents; Power of Attorney Tax Documents- Except as addressed by any other Section above, Documents relating to ordinary course tax matters relating to or affecting the property or operations of the Company 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Controller; or 6) Chief Operating Officer Accounting Documents- Except as addressed by any other Section above, Documents relating to ordinary course accounting matters relating to or affecting the property or operations of the Company Any two of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Controller; or 6) Chief Operating Officer 7) Controller DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 Legal Documents- Except as addressed by any other Section above, Documents relating to ordinary course legal matters relating to or affecting the property or operations of the Company Any two of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Controller; or 6) Chief Operating Officer Compliance, Regulatory and Permit Relating Documents- Except as addressed by any other Section above, Documents relating to ordinary course compliance, regulatory and permit related matters relating to or affecting the property or operations of the Company Any one of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Controller; or 6) Chief Operating Officer NOTE: If applying for a new Permit or engaging in the process to apply for a new Permit or amend an existing permit, authorization from any Managing Director is required SECTION G. General Documents Contracts, documents, filings, notices, instruments or agreements (each a “Document”) relating to or affective the property or operations of the Company having a transaction value of the level specified immediately below: 1) Except as otherwise provided for in the Sections above, Documents relating to or affecting the property of the Company having a transaction value Any one of, acting alone: 1) Managing Director; or 2) Chairman; or DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 (individually or in any series of related transactions) of $5,000 or less 3) Chief Executive Officer; or 4) President; or 5) Controller; or 6) Chief Operating Officer; or 7) Any Vice President 2) Except as otherwise provided for in the Sections above, Documents relating to or affecting the property of the Company having a transaction value (individually or in any series of related transactions) greater than $5,000 but less than $25,000 Any two of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Controller; or 6) Chief Operating Officer; or 7) Any Vice President 3) Except as otherwise provided for in the Sections above, Documents relating to or affecting the property of the Company having a transaction value (individually or in any series of related transactions) of $25,000 or more Requires Approval of ANY Managing Director Document to be signed by: Any two of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Controller; or 6) Chief Operating Officer; or 7) Any Vice President SECTION H. All Other Documents Documents of any other sort or relating to any other transaction not expressly provided for above relating DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10 to or affecting the property, personnel or operations of the Company Document to be signed by any two of: 1) Managing Director; or 2) Chairman; or 3) Chief Executive Officer; or 4) President; or 5) Controller; or 6) Chief Operating Officer NOTE: Email confirmation by the Managing Directors shall be sufficient evidence of Authorization as required above. DocuSign Envelope ID: 283374FA-2897-4739-893D-D20F334B6E10