HomeMy WebLinkAboutEIR 7763 Amendment No. 1 Applicant Agreement Signed.pdf 1 AMENDMENT NO. 1 TO THE APPLICANT AGREEMENT
2 CEMEX Construction Materials Pacific, LLC.
3 This Amendment No. 1 to the Applicant Agreement (Amendment No. 1) is dated
4 CL-Te-&C- 27f 702ZZ (Effective Date) and is between CEMEX Construction Materials
5 Pacific, LLC., a Delaware limited liability company (Applicant), and the County of Fresno, a
6 political subdivision of the State of California (County). County and Applicant may be referred
7 to individually as a "Party," or collectively as "Parties," in this Amendment No. 1. Consultant is
8 not a party to the Agreement or Amendment No. 1.
9 RECITALS
10 A. County and Applicant entered into the Applicant Agreement (Agreement) dated March
11 25, 2020, under which the Applicant was to pay the County for the consultant services of
12 Benchmark Land Use Group, Inc., dba Benchmark Resources, (Consultant) in the preparation
13 of an Environmental Impact Report (EIR) for County.
14 B. Applicant and County desire to the change in the scope of services and budget
15 allocations for Contract Deliverables, pursuant to the previously entered Agreement to pay
16 the county for consultant services.
17 C. Applicant and County desire to amend text in the Agreement as a result of the change
18 in the scope of services and budget allocations for Contract Deliverables.
19 D. Applicant understands that this Amendment No. 1 will address and/or augment the
20 basic fee as well as those fees provided in subsection 3.E and Exhibit D of the Agreement
21 (Extra Services) and pursuant to the Agreement the Applicant is still under contractual
22 obligation to pay to the County for all services performed by Consultant as compensation for
23 such services necessary to complete the EIR.
24 E. Applicant understands that Consultant and County will adopt a first amendment to the
25 Applicant Agreement on the same date as this Amendment No. 1 to reflect the change in the
26 scope of services and budget allocations for Contract Deliverables.
27 F. Applicant understands that except as set forth in this Amendment, the Agreement is
28 unaffected and shall continue in full force and effect in accordance with its terms. If there is
Amendment No. 1 to the Applicant Agreement- CEMEX
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1 conflict between this Amendment No. 1 and the Agreement, the terms of this Amendment No.
2 1 will prevail.
3 AMENDMENTS TO THE AGREEMENT
4 Applicant and County agree to amend the Agreement as follows:
5 1. Changes to Exhibits
6 A. Exhibit B, Page 8, is amended to add the following:
7 "Task 10: Document Accessibility Training and Implementation. Because there
8 is a high level of public interest in the project such that the parties agree that all
9 efforts should be made toward ensuring the ADA compliance of the draft and final
10 EIR documents. Consultant has identified and scheduled attendance for document
11 accessibility trainings and workshops, in an effort to meet all standards for ADA
12 compliance.The scope of work for Task 10 includes the costs associated with the
13 attendance of Consultant at these trainings and workshops, along with the work
14 associated with coordination and presenting findings to County.
15 Task 10 is to be billed at the completion of the Final El and will be
16 included in Deliverable V.
17 Task 10 Deliverables
18 10.1 General Cordination & Consultation
19 10.2 ADA & DOR Documentation Training
20 10.3 ADA & DOR Documentation Follow Up
21 10.4 ADA Implementation"
22 B. Attachment C of Exhibit B is deleted in its entirety and replaced with
23 Attachment C-2 of Exhibit A to this Amendment No. 1.
24 2. Section 4.A and 4.13 of the Agreement located at page 4 line 3 through page 6
25 line 2 is deleted in its entirety and replaced with the following:
26 4. Payment to the County For Consultant Services
27 A. The APPLICANT shall make five(5) payments, in the amounts and at the times
28 set forth below, to the COUNTY, which together shall total Five Hundred Seventy-
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1 Six Thousand Nine Hundred Seventy-Four Dollars and no cents ($576,974.00).
2 Said amount represents the basic fee for CONSULTANT to prepare the EIR
3 pursuant to the COUNTY/CONSULTANT AGREEMENT. The COUNTY shall
4 make the payments to CONSULTANT as described in Subsections 4.A and 4.13 of
5 the COUNTY/CONSULTANT AGREEMENT. The five payments shall be made by
6 the APPLICANT to the COUNTY in the following manner:
7 (1) Payment for Contract Deliverables I: Within five (5) business
8 days after the Effective Date of this AGREEMENT, APPLICANT shall
9 remit the sum of Fifty-Six Thousand Six Hundred Fifty dollars and no
10 cents ($56,650.00) to COUNTY, which the COUNTY shall use to
11 compensate CONSULTANT for all work to be performed by
12 CONSULTANT to complete Task 1, Task 2, and a portion of Task 9 as
13 identified in EXHIBIT B WORK PROGRAM, to this AGREEMENT.
14 (2) Payment for Contract Deliverables II: Within ten (10) business
15 days of receipt of an invoice by APPLICANT, to be delivered by email
16 to the APPLICANT at christinem.iones(a-)cemex.com and
17 a cbuada(a)buada.com, from the COUNTY, APPLICANT shall remit the
18 sum of One Hundred Fifty-Nine Thousand Three Hundred Seventy-
19 Nine dollars and no cents ($159,379.00) to COUNTY, which the
20 COUNTY shall use to compensate CONSULTANT for all work to be
21 performed by CONSULTANT to complete Task 3 and a portion of Task
22 9, as identified in EXHIBIT B WORK PROGRAM, to this AGREEMENT.
23 (3) Payment for Contract Deliverables III: Within ten (10) business
24 days of receipt of an invoice by APPLICANT, to be delivered by email
25 to the APPLICANT at christinem.iones @cemex.com and
26 icbuada(o)buada.com, from the COUNTY, APPLICANT shall remit the
27 sum of One Hundred Eighty-Nine Thousand Four Hundred Ten dollars
28 and no cents ($189,410.00), which the COUNTY shall use to
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1 compensate CONSULTANT for all work to be performed by
2 CONSULTANT to complete Task 4, Task 5, and a portion of Task 9, as
3 identified in EXHIBIT B WORK PROGRAM, to this AGREEMENT.
4 (4) Payment for Contract Deliverables IV: Within ten (10) business
5 days of receipt of an invoice by APPLICANT, to be delivered by email
6 to the APPLICANT at christinem.iones(a)cemex.com and
7 0cbuada buada.com, from the COUNTY, APPLICANT shall remit the
8 sum of Fifty-Three Thousand One Hundred dollars and no cents
9 ($53,100.00)to COUNTY,which the COUNTY shall use to compensate
10 CONSULTANT for all work to be performed by CONSULTANT to
11 complete Task 6, and a portion of Task 9, as identified in EXHIBIT B
12 WORK PROGRAM, to this AGREEMENT.
13 (5) Payment for Contract Deliverables IV: Within ten (10) business days
14 of receipt of an invoice by APPLICANT, to be delivered by email to the
15 APPLICANT at christinem.iones(cDcemex.com and
16 icbuada(a)buada.com, from the COUNTY, APPLICANT shall remit the
17 sum of One Hundred Eighteen Thousand Four Hundred Thirty-Five
18 dollars and no cents ($118,435.00), which the COUNTY shall use to
19 compensate CONSULTANT for all work to be performed by
20 CONSULTANT to complete Task 7, Task 8, Task 10 and a portion of
21 Task 9, as identified in EXHIBIT B WORK PROGRAM, to this
22 AGREEMENT.
23 B. Five Hundred Seventy-Six Thousand Nine Hundred Seventy-Four Dollars and
24 no cents ($576,974.00) is the entire consideration to be paid by COUNTY to
25 CONSULTANT for all of the basic services performed by CONSUL TANT pursuant
26 to Subsection 4.A of the COUNTY/CONSULTANT AGREEMENT except as
27 otherwise provided in EXHIBIT D of said AGREEMENT (Extra Services). If
28 DIRECTOR or the DIRECTOR's designee determines that Extra Services will be
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1 authorized pursuant to Subsection 4.D of the COUNTY/CONSULTANT
2 Agreement, DIRECTOR shall first notify the APPLICANT of the determination, and
3 those services shall only be authorized after COUNTY's receipt from the
4 APPLICANT of the entire sum determined by DIRECTOR to be the maximum that
5 may be rendered for those Extra Services. APPLICANT shall pay to COUNTY,
6 within thirty (30) calendar days after APPLICANT's receipt of DIRECTOR's
7 determination. Such sum shall not exceed One Hundred Fifteen Thousand Three
8 Hundred Ninety-Five dollars and no cents ($115,395.00).
9 3. When both parties have signed this Amendment No. 1, the Agreement and this
10 Amendment No. 1 together constitute the Agreement.
11 4. The Applicant represents and warrants to the County that:
12 A. The Applicant is duly authorized and empowered to sign and perform its
13 obligations under this Amendment.
14 B. The individual signing this Amendment on behalf of the Applicant is duly
15 authorized to do so and his or her signature on this Amendment legally binds the
16 Applicant to the terms of this Amendment.
17 5. Electronic Signatures. The Parties agree that this Amendment No. 1 may be
18 executed by electronic signature as provided in this section.
19 (1) An "electronic signature" means any symbol or process intended by
20 an individual signing this Amendment No. 1 to represent their
21 signature, including but not limited to (a) a digital signature; (b) a
22 faxed version of an original handwritten signature; or (c) an
23 electronically scanned and transmitted (for example by PDF
24 document) version of an original handwritten signature.
25 (2) Each electronic signature affixed or attached to this Amendment No. 1
26 (a) is deemed equivalent to a valid original handwritten signature of
27 the person signing this Amendment No. 1 for all purposes, including
28 but not limited to evidentiary proof in any administrative or judicial
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1 proceeding, and (b) has the same force and effect as the valid original
2 handwritten signature of that person.
3 (3) The provisions of this section satisfy the requirements of Civil Code
4 section 1633.5, subdivision (b), in the Uniform Electronic Transaction
5 Act (Civil Code, Division 3, Part 2, Title 2.5, beginning with section
6 1633.1).
7 (4) Each Party using a digital signature represents that it has undertaken
8 and satisfied the requirements of Government Code section 16.5,
9 subdivision (a), paragraphs (1) through (5), and agrees that each
10 other Party may rely upon that representation.
11 (5) This Amendment No. 1 is not conditioned upon the Parties conducting
12 the transactions under it by electronic means and either Party may
13 sign this Amendment No. 1 with an original handwritten signature.
14 6. Counterparts. This Amendment No. 1 may be signed in counterparts, each of which
15 is an original, and all of which together constitute this Amendment No. 1.
16 7. Provisions in Full Force. The Agreement as amended by this Amendment No. 1 is
17 ratified and continued. All provisions of the Agreement and not amended by this
18 Amendment No. 1 remain in full force and effect.
19 [Signature page follows.]
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1 In witness whereof,the Parties are signing this Amendment as of the Effective Date.
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3 APPLICANT: COUNTY OF FRESNO:
CEMEX CONk
TERIALS, LLC j
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BY: BY:
7 ALE ' LES STEVEN -E"PE, PLS
VIC RESIDENT DIRECTOR
8 DEPARTMENT OF PUBLIC WORKS
AND PLANNING
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Amendment No. 1 to the Applicant Agreement— CEMEX
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1 Exhibit A
2 ATTACHMENT C-2
3 CEMEX ROCKFIELD QUARRY MODIFICATION PROJECT
4 PROJECT DELIVERABLES (MILESTONES) AND PAYMENT TRACKER
Deliverable Deliverable Description6 Total
Task 1:Application Review and Kickoff Meeting
7 Task 2: Noticing and Scoping
1 $ 56,650.00
8 *30%of Task 9, "General Activities Coordination,"
applied
g Task 3: Peer Review
2 *10%of Task 9, "General Activities Coordination," $ 159,379.00
10 applied
11 Task 4: Project Description
Task 5: Administrative Draft EIR Preparation
3 $ 189,410.00
12 *30%of Task 9, "General Activities Coordination,"
applied
13 Task 6: Draft EIR Preparation
14 4 *20%of Task 9, "General Activities Coordination," $ 53,100.00
applied
15 Task 7: Final EIR Preparation
Task 8: Presentation Preparation and Hearing Attendance
16 5 Task 10 Document Accessibility Training and $ 118,435.00
Implementation*10% of Task 9, "General Activities
17 Coordination, "applied
18 TOTALS: $
576,974.00
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Exhibit A of Amendment No. 1 to the Applicant Agreement— CEMEX
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