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Home My WebLink AboutCEMEX Construction Materials Pacific LLC Tolling Agreement 8-15-23 Tolling A reement This Tolling Agreement (Agreement) is made and entered into by and between CEMEX Construction Materials,Pacific LLC., a Delaware limited liability company ("Applicant'), the County of Fresno, a political subdivision of the State of California ("County"), and the City of Fresno, a California Municipal Corporation ("City"), each individually referred to as a "Party" and collectively referred to as the "Parties." WHEREAS, on July 18, 2023, the County approved Applicant's Unclassified Conditional Use Permit Application Nos. 3755-A and 3755-B which amended Unclassified Conditional Use Permit No. 3093 and related Unclassified Conditional Use Permit Nos. 367, 2032, 2209, 2241, 2235, and 3063 to allow an additional three years of operation (through July 28, 2026) for an existing aggregate processing plant, and related uses on a combined 476 acres located at 13475 N. Friant Road and 14757 N. Friant Road and determined that, (1)pursuant to Section 15162 of the "CEQA Guidelines" (Tit. 14, Div. 6, Chap. 3 of the Cal. Code Regs., commencing with § 15000), the project was not subject to the preparation of a supplemental Environmental Impact Report and (2) that the project is also exempt under Sections 15061(b)(3) and 15301 of the CEQA Guidelines (collectively "Approvals"); and WHEREAS, City believes, and County and Applicant deny, that the County's Approvals were improper due to, among other things, but not limited to, procedural and substantive violations of the California Environmental Quality Act (Cal. Pub. Res. Code, §§ 21000, et seq.) ("CEQA"); and WHEREAS, the County filed a Notice of Exemption ("NOE") with the California Office of Planning and Research for Conditional Use Permit Application Nos. 3755-A and 3755-B on July 21, 2023, citing exemptions from CEQA pursuant to Sections 15301, 15061(b)(3), and 15162 of the CEQA Guidelines; and WHEREAS, pursuant to Section 15062(d) of the CEQA Guidelines,the filing of a Notice of Exemption and the posting on the list of notices starts a 35-day statute of limitations period on legal challenges to the agency's decision that the project is exempt from CEQA, and as such any legal challenge to the County's Approvals pursuant to CEQA must be filed within 35 days of July 21, 2023; and WHEREAS, the Parties are engaged in good faith negotiations to address City's concerns regarding the alleged potential environmental impacts of the County's Approvals and avoid potential litigation; WHEREAS, to provide the Parties a reasonable opportunity to continue these negotiations, the Parties have agreed to toll the applicable statute of limitations provided in Section 15062(d) of the CEQA Guidelines. {00063953;1} 1 NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, receipt of which is hereby acknowledged, the Parties agree as follows: 1. Each recital set forth above is incorporated herein and is part of this Agreement. 2. This Agreement shall be effective as of the date of the final signatory to this Agreement ("Effective Date") 3. The Parties agree that the statute of limitations set forth in Section 15062(d) of the CEQA Guidelines shall be and hereby is tolled until November 21, 2023 ("Tolling Period"). 4. The County shall not assert any defense it has or may have against City arising from the expiration of the statute of limitations set forth in Section 15062(d) of the C.EQA Guidelines, laches, estoppel, or waiver, based solely on the passage of time prior to expiration of the Tolling Period, in any lawsuit, claim, or cause of action brought by the City solely to enjoin, set aside, vacate, or otherwise void the Approvals. 5. This Agreement is intended to satisfy California Code of Civil Procedure Section 360.5 and any other provision of law necessary to extend the applicable statute of limitations set forth in Section 15062(d) of the CEQA Guidelines. 6. The approval of this Agreement does not constitute and shall not be construed as an admission by any Party of any liability regarding any claims or causes of action. This Agreement shall not be admissible in any proceeding as an admission of any factual matter against any Party, except as to the agreement set forth in Section 4 of this Agreement. Except as expressly provided in Sections 3 and 4 of this Agreement, nothing in this Agreement waives or modifies any claims presentation requirements or procedures provided by law, including but not limited to CEQA and the Government Claims Act (Div. 3.6 of Tit. 1 of the Cal. Gov. Code, commencing with § 810). 7. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties pursuant to this Agreement. 8. This Agreement shall be governed by the laws of the State of California. 9. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 10. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any Party {00063953;1} 2 may execute the Agreement by signing any such counterpart. Facsimile, email, or other electronic signatures of or on behalf of any Party shall have the same force and effect as an original signature. 11. Each individual signing this Agreement on behalf of a Party represents and warrants that he or she is authorized to do so and to bind that Party fully to the terms hereof. 12. This Agreement memorializes the entire agreement among the Parties regarding the subject matter hereof. 13. This Agreement may only be modified or extended by a further written instrument signed by the Parties to be bound thereto. 14. The Parties acknowledge that each Party and its counsel have reviewed this Agreement and that no rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall be employed in the interpretation of this Agreement. CITY OF FRESNO, COUNTY OF FRESNO A California municipal corporation A California Charter Law l county By: By: V \ Georgeanne A. White Paul Nerland City Manager Administrative Officer APPROVED AS TO FORM: APPROVED AS TO FORM: ANDREW JANZ DANIEL C. CEDERBORG City Attorney County Counsel BY By:Talia Kolluri Date Peter Wall, Chief Deputy Assistant City Attorney Executed: August 15 , 2023 ATTEST: TODD STERMER, CMC CEMEX Construction Materials Pacific City Clerk LLC By: By: Deputy Name: Executed: August_, 2023 Title: Executed: August_, 2023 {00063953;1} 3 may execute the Agreement by signing any such counterpart. Facsimile, email, or other electronic signatures of or on behalf of any Party shall have the same force and effect as an original signature. 11. Each individual signing this Agreement on behalf of a Party represents and warrants that he or she is authorized to do so and to bind that Party fully to the terms hereof. 12. This Agreement memorializes the entire agreement among the Parties regarding the subject matter hereof. 13. This Agreement may only be modified or extended by a further written instrument signed by the Parties to be bound thereto. 14. The Parties acknowledge that each Party and its counsel have reviewed this Agreement and that no rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall be employed in the interpretation of this Agreement. CITY OF FRESNO, COUNTY OF FRESNO A Caiifornia municipal cor ration A California Charter Law county By: By:Geor a nne A. White Paul Nerland City alter Administrative Officer APPROVED AS TO FORM: APPROVED AS TO FORM: ANDREW JANZ DANIEL C. CEDERBORG City Attar ey7 County Counsel By. v By: Talia ll irl Cat Assistant City Attorney Executed: August_, 2023 ATTEST: TODD STERMER, CMC CEMEX Construction Materials Pacific City Clerk LLC By. Ate By: I► ' Deputy t Name: � � c' Executed: August ' 2023 Title: Executed: August 2023 {00063853;1} 3