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3 AMENDMENT NO. 3 FOR
SHOPPING CART RETRIEVAL SERVICES AGREEMENT
This Amendment No. 3 is entered into as of March ____, 2024 ("Amendment") and is to amend that certain Shopping Cart Retrieval Agreement (“Agreement”) between the City of Norwalk, California municipal corporation ("City") and Nationwide Environmental Services, a division of Joe's Sweeping, Inc., a California Corporation ("Contractor") (collectively the City and Contractor may be referred herein as “Parties”) dated July 1, 2014 as amended by Amendment No. 1 dated July 1, 2016 and by Amendment No. 2 dated July 1, 2019 (collectively "Agreement").
RECITALS
A. On July 1, 2014, City and Contractor entered into the Shopping Cart Retrieval Agreement for shopping cart retrieval services.
B. The Parties entered into Amendment No. 1 to the Agreement on July 1, 2016, modifying the compensation amount per shopping cart rate and approving the City Manager to approve an increase in the per shopping cart rate, not to exceed four percent (4%) ("Amendment No. 1").
C. The Parties entered into Amendment No. 2 to the Agreement on July 1, 2019, modifying the term of the Agreement through June 30, 2024 D. As set forth in Section 2 of the Agreement, the Agreement originally was set to expire on June 30, 2019, but was extended by Amendment No. 2 to June 30, 2024.
E. The City is pleased with the services provided by the Contractor and Norwalk Municipal Code, Section 3.16.070F provides that the City, with approval of the City Council by resolution, determines that the best interests of the City would be served by purchasing the nonprofessional services which are provided by the Contractor may secure such services without observing the bidding procedures required by Sections 3.20.010 or 3.20.020.
F. Accordingly, the City makes such determination as expressed above and desires to extend the term for an additional five (5) year period, up to and including June 30, 2029, provide an annual rate adjustment and add certain standard provisions to the Agreement not included in the original Agreement or amendments.
The Parties therefore agree as follows:
Section 1. The City and Contractor hereby agree to amend Section 2 of the Agreement to extend the term of the Agreement for an additional five-year period from July 1, 2024 through June 30, 2029, unless sooner terminated as provided for in Section 13 of the Agreement. The Parties also agree that the Term may be extended for an additional Attachment
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five (5) year period from July 1, 2029 through June 30, 2034, unless sooner terminated as provided in Section 13 of the Agreement, under the same terms and conditions of the Agreement, as amended, administratively by the Contractor submitting a request for an extension of the Term in writing to the City Manager no later than April 1, 2029. If the Contractor is not in material breach of any terms or conditions of this Agreement, the City Manager shall approve the requested extension without the need to obtain City Council approval.
Section 2. The City and Contractor hereby agree to amend Section 3 of the Agreement to provide as full compensation for Contractor’s services provided under this Agreement wherein the City shall pay Contractor $3.22 per abandoned shopping cart retrieved by Contractor in the City’s jurisdiction (“Per Cart Rate”). Commencing July 1, 2024 and continuing on July 1 each year during the Term of this Agreement, the Contractor shall be entitled to an automatic annual adjustment to the Per Cart Rate. The adjustment shall be (a) an amount equal to the increase from the April Consumer Price Index for all Urban Consumers for the Los Angeles-Riverside-Orange County, CA issued by the U.S. Department of Labor from the previous year to the current year, or (b) four percent (4%), whichever is greater.
Section 3. The Parties agree to amend Section 16 of the Agreement by deleting the current language and substituting the following in its entirety, as follows:
Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the written approval of the City, which shall not to be unreasonably withheld. For the purposes hereof, an assignment shall be deemed to include a change in any person or entity that is the controlling shareholder of Contractor, or any merger or dissolution of Contractor. Notwithstanding, the above, Contractor may assign or transfer its controlling shareholder interest to a person who is a member of the Samuelian family by birth or marriage, or to a trust for the benefit of a person who is member of the Samuelian family by birth or marriage, without the prior approval of the City.
Section 4. The Parties agree to add the following Sections to the Agreement, as follows:
21. Force Majeure. The time period specified in the Agreement and any schedules or exhibits for performance of the services rendered under this Agreement, as amended, and other time periods set forth in this Agreement, as amended, shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of any public enemy, acts of the Government, fires, earthquakes, floods, epidemics, pandemics, quarantine restrictions, riots, strikes, freight embargoes, acts of any governmental agency, terrorist acts, and unusual severe weather if the Contractor shall, within fourteen (14) days of the commencement of such delay, notify the City in writing of the causes of the delay.
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3 22. Affirmation of Agreement; Warranty Re Absence of Defaults.
Except as amended by the First, Second and/or this Third Amendment, all of the terms and conditions of the Agreement shall remain in full force and effect. The Agreement and First and Second Amendments are ratified by each Party and shall remain unchanged except as amended herein by this Third Amendment and are in full force and effect. City and Contractor each ratify and reaffirm each and every one of the respective rights and obligations arising under the Agreement, and the First and Second Amendments, inclusive, except as expressly amended by this Third Amendment. Each party represents and warrants to the other that there have been no written or oral modifications to the Agreement other than as provided in the First and Second Amendments, inclusive, and this Third Amendment. Each party represents and warrants to the other that the Agreement, and the First Amendment through Third Amendments, inclusive are currently effective, valid, and binding obligations.
Contractor represents and warrants to City that, as of the date of this Third Amendment, City is not in default of any material term of the Agreement, the First and Second Amendments, inclusive, and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement, and/or the First Amendment through this Third Amendment, inclusive.
City represents and warrants to Contractor that, as of the date of this Third Amendment, Contractor is not in default of any material term of the Agreement, the First and Second Amendments, inclusive, and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement, and/or the First Amendment through this Third Amendment, inclusive.
23. Authority to Execute this Agreement. The persons executing this Third Amendment on behalf of the parties warrants and represents that they have the authority to execute this Third Amendment on behalf of said parties and has the authority to bind the parties to the provisions of this Third Amendment. [SIGNATURE PAGE FOLLOWS]
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3 The parties are signing this Third Amendment as of the date stated in the introductory clause.
CITY OF NORWALK NATIONWIDE ENVIRONMENTAL
SERVICES, A DIVISION OF JOE’S
SWEEPING, INC.
By: ___________________________
Name:Jesus M. Gomez
City Manager
Date: ___________________________ By: ____________________________ Name: Ani Samuelian
Title: President
ATTEST:
By: __________________________ By: ___________________________ Theresa Devoy, CMC Name: Suzy Samuelian
City Clerk Title: Corporate Secretary
APPROVED AS TO FORM:
By: __________________________
Arnold M. Alvarez-Glasman
City Attorney
Date: __________________________