FIRST AMENDMENT TO NATIONWIDE ENVIRONMENTAL SERVICES
CATCH BASIN CLEANING SERVICES AGREEMENT
This First Amendment ("First Amendment") to the agreement for catch basin cleaning services for the City of Commerce, is entered into as of May 15, 2018, by and between the CITY OF COMMERCE, a California municipal corporation ("City"), and JOE'S SWEEPING, INC. dba NATIONWIDE ENVIRONMENTAL SERVICES ("Contractor"). City and Contractor are sometimes individually referred to herein as a "Party," and jointly as "Parties."
RECITALS
A. The Parties entered into the agreement for catch basin cleaning services for the City of Commerce on September 23, 2014, which was effective October 1, 2014, for the purpose of retaining the services of Contractor to provide catch basin cleaning services to City (hereinafter "Master Agreement").
B. On January 16, 2018, the City Council authorized certain amendments to the Master Agreement pursuant to Contractor's request.
C. The City and Contractor desire to further amend the Master Agreement as set forth herein.
D. This First Amendment is authorized pursuant to Section 29 of the Master Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the Parties agree as follows:
Section 1. Compensation
Section 3, Subsection B of the Master Agreement entitled CONSIDERATION OF ADJUSTMENT OF COMPENSATION RATES, shall be amended in its entirety to read as follows:
Beginning July 1, 2018 and each subsequent July 1st thereafter, the compensation paid to Contractor hereunder may be increased upon request of the Contractor and at the discretion of the City Council, according to the annual Consumer Price Index (CPI) increase based on the January index, for the services provided pursuant to the Master Agreement and First Amendment.
Section 2. Effective Date
The Effective Date of this First Amendment shall be January 16, 2018.
Section 3. Term
Section 2 of the Master Agreement entitled Term, shall be amended in its entirety to read as follows:
1 The term of this Master Agreement shall be as follows:
A. Term: Five (5) years from October 1, 2019 ("Second Term").
B. Optional Extension Period. The Master Agreement may be extended for an additional five (5) year term following the completion of the Second Term by mutual written consent of the Parties. The Parties may exercise the option to extend the Master Agreement for an additional five (5) years at any time before the expiration of the Second Term.
Section 4. Termination
Section 20 of the Master Agreement entitled TERMINATION, shall be amended in its entirety to read as follows:
The Master Agreement and First Amendment may be terminated, prior to the expiration of its term, and for cause only as determined by a majority vote (3 votes) of the City Council, and only if the Contractor is in default of a material term, except as may be excused by circumstances or acts of god, in the performance of any material term or conditions of the Master Agreement and First Amendment. In the event that the City Council determines that the Contractor is in default of a material term of this Master Agreement and First Amendment, City shall cause to be served upon the Contractor a written notice of default ("Notice of Default"). The Contractor shall have fifteen (15) days after service upon it of said Notice of Default in which to cure the default by rendering a satisfactory performance; provided that, if the default is not reasonably susceptible to being cured within said fifteen (15) day period, the Contractor shall have a reasonable time to cure the default, so long as the Contractor commences to cure such default within fifteen (15) days of service of such Notice of Default and diligently prosecutes the cure to completion; provided further that if the default is an immediate danger to the health, safety and general welfare, the Contractor shall take such immediate action as may be necessary. Notwithstanding the foregoing, the City may, in its sole and absolute discretion, grant a longer cure period. Should the Contractor fail to cure the default within the time period provided in this Section, the City shall have the right, notwithstanding any other provision in the Master Agreement and First Amendment, and in addition to any other rights the City may have at law or in equity, to terminate the Master Agreement and First Amendment pursuant to the requirements set forth herein by issuing a Notice of Termination For Cause. CONTRACTOR agrees that in the event of such termination, CITY's obligation to pay CONTRACTOR shall be limited to payment only for those services satisfactorily rendered prior to the effective date of termination.
The City's decision to issue a written Notice of Termination for Cause, a Notice to Default, and/or any and all other determinations and/or notices made under this Section, shall only be made and issued by the City Council. Compliance with the provisions of this Section shall be a condition precedent to electing to terminate under this section.
Section 5. Assignment
Section 22 of the Master Agreement, entitled ASSIGNMENT shall be amended to read in its entirety as follows:
2 This Master Agreement & First Amendment may not be assigned by CONTRACTOR, in whole or in part, without prior written consent of the CITY, which may not be unreasonably withheld.
Section 6. Exhibit A, Fees and Costs
Exhibit A, Scope of Services of the Master Agreement, entitled FEES AND COSTS, shall be amended to read in its entirety as follows:
Contractor fees for the services rendered beginning January 16, 2018 are set forth below, plus annual CPI increases as set forth in Section 1 of this First Amendment:
ARS Catch Basins $29.00 per unit
CPS Catch Basins $29.00 per unit
ARS & CPS Catch Basin $29.00 per unit
Non-retrofitted Catch Basins $29.00 per unit
"No Dumping" Stenciling $7.00 per unit
"Staff Gauge" Stenciling $4.00 per unit
There are approximately 669 catch basins within the City of Commerce as listed in the Master Agreement and inclusive of this Agreement requiring the aforementioned services four times per year. Additional cleanings shall be at the discretion of the City at the prices set forth herein.
Section 7. Incorporation of Agreement
Except as expressly amended herein, all of the terms and conditions of the Master Agreement shall remain in full force and effect and are ratified by each Party. The First Amendment and the Master Agreement contain the entire Contract of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. The Parties agree that if any provisions of this First Amendment conflict with the Master Agreement, then the provisions of this First Amendment shall prevail. 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.
Section 8. Corporate Authority
The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound.
3 IN WITNESS WHEREOF, the Parties enter into this First Amendment as of the Effective Date set forth above.
CITY OF COMMERCE NATIONWIDE ENVIRONMENTAL
SERVICES DIV. OF JOE'S SWEEPING,
INC.
("CIT"') "CONTRACTOR")
Gale Y Reboll
Oralia Rebollo Ani Samuelian, Vice President
Mayor
Date: 6/5/2018 Date: 0/5/18
APPROVED AS TO FORM:
Need
Noel Tapia, City Attorney
4837-6102-0259, v. 1
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