HomeMy WebLinkAboutCEMEX Construction Materials Pacific LLC First Amendment to Tolling Agreement - 11-21-23 First Amendment to Tolling A reement
This First Amendment to Tolling Agreement(First Amendment)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 Sate 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, the Parties entered into a Tolling Agreement on August 15,
2023, regarding disputes over an Unclassified Conditional Use Permit Application
(Application) approved by the County on July 18, 2023; and
WHEREAS, the Tolling Agreement extended the applicable statute of
limitations provided in Section 15062(d) of the CEQA Guidelines with respect to
the Application to November 21, 2023; and
WHEREAS, the Parties continue to be engaged in good faith negotiations
that would, if successful,address City's concerns regarding the County's action on
the Application and avoid potential litigation; and
WHEREAS, to provide the Parties additional opportunity to complete these
negotiations, the Parties have agreed to amend the Tolling Agreement to further
extend the applicable statutes of limitations provided in Section 15062(d) of the
CEQA Guidelines.
NOW, THEREFORE, in consideration of the mutual promises contained in
this First Amendment, 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
First Amendment.
2. The Parties agree that the statute of limitations set forth in Section
15062(d) of the CEQA Guidelines shall be and hereby is waived and tolled until
January 5, 2024 (Tolling Period). The statute of limitations shall expire on January
8, 2024, the last day of the Tolling Period, unless extended by a separate written
agreement of the Parties.
3. 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 CEQA 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.
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4. This First Amendment is intended to satisfy California Code of Civil
Procedure section 360.5 and any other provision of law necessary to extend the
applicable statutes of limitations.
5. The approval of this First Amendment 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 First Amendment 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 3 of this First Amendment, nothing in this First
Amendment 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).
6. There are no intended third-party beneficiaries of any right or
obligation assumed by the Parties pursuant to this First Amendment.
7. This First Amendment shall be governed by the laws of the State of
California.
8. If any portion of this First Amendment is declared invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
9. This First Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument. Any Party may execute this Second Amendment 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.
10. Each individual signing this First Amendment 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.
11. This First Amendment memorializes the entire agreement among the
Parties regarding the subject matter hereof.
12. This First Amendment may only be modified or extended by a further
written instrument signed by the Parties to be bound thereto.
13. The Parties acknowledge that each Party and its counsel have
reviewed this First Amendment 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 First Amendment.
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CITY OF FRESNO, COUNTY OF FRESNO
A California municipal corporation A California Charter Law county
By U�'-LBy: qa1a2(—
Ge4qanne A.White Peef-Nedef%&
City manager
APPROVED AS TO FORM: A
ANDREW JA DANIEL C. CEDERBORG
City Attorne County Counsel
By: By:
tafid kolluri Date
Assistant City Attorney
ATTEST: CEMEX Construction Materials Pacific
TODD STERMER, CMC LLC
City Clerk
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(if corporation or LLC, Board
Chair, Pres. or Vice Pres.)
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