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HomeMy WebLinkAbout2016 CON Medifit Community Services DBA Exos - Aquatic Services Las Palmas Pool - Amendment #1CALIFORNIA NATIONAL Orr \_. INCORPORATES FIRST AMENDMENT TO THE SERVICE AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND MEDIFIT COMMUNITY SERVICES, LLC, D.B.A. EXOS This First Amendment ("Amendment") to the Service Agreement by and between the City of National City and MediFit Community Services, LLC ("Service Agreement"), is entered into this 7th day of December, 2016, by and between the City of National City (the "City") and MediFit Community Services, LLC, d.b.a. EXOS ("EXOS" or "MEDIFIT"). RECITALS WHEREAS, the City and MEDIFIT, previously entered into the Service Agreement entitled "Service Agreement by and Between the City of National City and MediFit Community Services, LLC, for the Operation of Las Palmas Pool" dated November 4, 2015; WHEREAS, in the Service Agreement the City engages MEDIFIT to operate the real property commonly known as Las Palmas Pool, located at 1800 E. 22nd Street, National City, California (the "Premises") to provide aquatic programs serving the local community; WHEREAS, Article 1.1, Term, establishes the term of the Service Agreement as November 4, 2015 through June 30, 2017; and WHEREAS, Article 1.2, Option to Extend Term, allows an extension of the Service Agreement upon mutual agreement of the parties no less than six (6) months prior to the end of the Term. AMENDMENT TO SERVICE AGREEMENT NOW THEREFORE, the City and EXOS agree as follows: 1. All references to MEDIFIT in the Service Agreement shall be changed to EXOS. 2. The City and EXOS hereby delete Exhibit B to the Service Agreement in its entirety and replace it with the attached Exhibit B which revises the monthly base management fee, actual payroll and staffing expenses, and marketing and administrative costs. 3. Extension of Term. In accordance with Section 1.2 of the Service Agreement, the City, MEDIFIT and EXOS hereby agree to extend the Term of the Service Agreement through June 30, 2018. 1 2016 First Amendment to Agreement Between City of National City and EXOS 4. Article 3.1.2, Permitted Uses, is hereby amended by adding the following as the last sentence thereof: "Article 3.1.2 is also being fulfilled by providing learn to swim classes for third grade students in the National School District." 5. Article 3.2, Hours of Service, is hereby amended and restated as follows: "EXOS may provide programming between the hours of 5:00 a.m. and 10:00 p.m. seven (7) days a week. Hours of service may be changed upon mutual agreement." 6. Article 4.1.9.2 is hereby added to the Service Agreement as follows: "Social Media. EXOS shall be responsible for social media marketing for the Premises and will adhere to the City's Social Media Policy." 7. Article 8.1.1, Base Management Fee, is hereby amended by deleting the last sentence thereof and adding in its place the following: "Notwithstanding anything to the contrary in the foregoing, beginning July 1, 2017, the City shall pay EXOS a monthly base management fee (the "Base Management Fee") for each month in the amount of $5,325 per month, excluding 5 (five) months during learn to swim classes for the National School District, when the monthly Base Management Fee shall be $6,160. The Base Management Fee shall be invoiced monthly and shall be due thirty (30) days after receipt of invoice therefor." 8. Article 8.2, Payment Terms, is hereby amended and restated as follows: "At the end of each month EXOS shall submit to the City an invoice for monthly operating expenses as set forth in Exhibit B." 9. Article 8.2.1 is hereby deleted in its entirety and replaced with: "8.2.1 [Reserved.)" 10. Article 8.1.3 is hereby deleted in its entirety and replaced with: "8.2.2 Monthly Balance Due Payment. EXOS shall submit an invoice each month in which Services are rendered. To the extent applicable, each invoice will reflect the monthly Base Management Fee, actual payroll and staffing expenses, and actual marketing and administrative costs together with all amounts payable to EXOS, as set forth in Exhibit `B". Upon request, EXOS shall submit to the City supporting documentation for payroll and staffing expenses and marketing and administrative costs. Supporting documentation may be, but is not limited to, copies of payroll and receipts for purchases." 2 2016 First Amendment to Agreement Between City of National City and EXOS 11. Article 8.3, Not To Exceed Amount, is hereby amended and restated as follows: "EXOS agrees that the combined base management fee, payroll and staffing fees, and marketing and administrative costs, shall not exceed a total of $464,000 over the Term of this Agreement. Should the parties agree to extend the Service Agreement, Article 8.3 must be negotiated and mutually agreed upon." 12. Article 8.5, Revenue Collected by EXOS, is hereby amended and restated as follows: "Revenue collected by EXOS for its programing of open swim, learn to swim, and exercise classes will be collected and handled by EXOS. EXOS shall submit cash and credit card receipts to the City two (2) times per week or at any time the amount of cash at the Premises exceeds $500.00." 13. Article 10.1 EXOS Indemnity, is hereby amended and restated as follows: "EXOS agrees to defend, indemnify and hold harmless the City of National City, its officers, employees, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of EXOS' performance or other obligations under this Service Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, employees or volunteers. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Service Agreement for any alleged or actual omission, act, or negligence under this Service Agreement that occurred during the term of this Service Agreement." 14. Article 22.1, Notices, is hereby amended and restated as follows: "Whenever in this Service Agreement it shall be required or permitted that notice or demand be given or served by either party to this Service Agreement to or on the other, such notice or demand shall be in writing, mailed or personally delivered to the other party at the addresses specified below. Mailed notices shall be sent by United States Postal Service, postage prepaid and shall be deemed to have been given, delivered and received three (3) business days after the date such notice or other communication is posted by the United States Postal Service. All other such notices or other communications shall be deemed given, delivered and received upon actual receipt. Either party may, by written notice delivered pursuant to this 3 2016 First Amendment to Agreement Between City of National City and EXOS provision, at any time designate a different address to which notices shall be sent. CITY: Stacey Stevenson, Deputy City Manager City of National City 140 East 12th Street National City, CA 91950-4301 EXOS: Medifit Community Services, LLC Attention: Dan Burns, Chief Executive Officer V. Carl Walker, General Council 25 Hanover Road Building A, Suite 104 Florham Park, New Jersey 07932" 15. Article 25.3, City Approval, is hereby amended and restated as follows: "Except where stated herein to the contrary, the phrases "CITY approval," and "CITY written approval" or such similar phrases shall mean approval of the City Manager or Deputy City Manager of National City or said person's representative as authorized by said person in writing." 16. Article 25.18 is hereby added to the Service Agreement as follows: Alcohol. Consumption of alcohol on the Premises is not permitted. 17. Except as specifically amended by this Amendment, the parties agree that each and every term of the Service Agreement shall remain in full force and effect. [Signature Page to Follow] 4 2016 First Amendment to Agreement Between City of National City and EXOS IN WITNESS THEREOF, the parties hereto have executed this First Amendment on the date and year first written above. CITY O X1rIONAL CITY MEDIFIT COMMUNITY SERVICES, LLC, d.b.a. EXOS B on Morrison By: Mayor Bill Bourque, President Account Management & Field Operations Approved as to form: By: / 1 George H. Eiser, III Interim City Attorney By: Kurt Atherton, President Community Services 5 2016 First Amendment to Agreement Between City of National City and EXOS EXHIBIT B BUDGET Fiscal Year 2018 Payroll and Staffing Expenses Salary -Managers $ 69,300 Wages -Guards for Recreational Swim, Swim classes and National School District Swim Classes $ 87,573 Wages -Administrative staff for Recreational Swim, Public Access and National School District Swim Classes $ 11,168 Wages -Instructors for Swim Classes and National School District Swim Classes $ 28,217 Wages-Courses/Certification/Clinics $ 1,200 Wages -Guards for Sweetwater Unified High School District programs $ 35,448 Wages -Guards for Southwestern College programs $ 17,724 Wages -Aquatic Group Exercise Classes $ 13,008 Payroll Burden-26% of payroll $ 64,703 Sub -Total Marketing and Administrative Costs $ 328,341 Advertising and Marketing $ 6,000 Dues & Membership $ 2,400 Meeting Expenses $ 2,450 Uniforms $ 1,000 Locker Room Supplies $ 6,000 Office Supplies $ 1,800 Travel and Mileage Reimbursement $ 980 Program Supplies & Expenses $ 4,400 Sub -Total Base Management Fee $ 25,030 Monthly Fee for Service $ 68,075 Sub -Total :h Total Expenses : ���` F :�� � , � � ti���:.M $ 68,075 $ 421,446 6 2016 First Amendment to Agreement Between City of National City and EXOS RESOLUTION NO. 2016 — 206 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A FIRST AMENDMENT TO THE SERVICE AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND MEDIFIT COMMUNITY SERVICES, LLC, DOING BUSINESS AS EXOS, EXERCISING THE OPTION TO EXTEND THE AGREEMENT TO PROVIDE AQUATIC SERVICES AT LAS PALMAS POOL TO JUNE 30, 2018, WITH A NEW OPERATING BUDGET WITH ADDITIONAL REVISIONS MODIFY THE TERMS TO REFLECT THE ACTUAL TERMS AND OPERATIONS WHEREAS, on November 3, 2015, the City Council approved a 20 month Service Agreement with MediFit Community Services, LLC, now doing business as EXOS, for the operation of Las Palmas Pool; and WHEREAS, EXOS successfully reopened Las Palmas Pool in February 2016 providing recreational swim, lap swim, aquatic exercise classes, learn to swim classes, and facility rentals; and WHEREAS, the City desires to amend the Service Agreement with EXOS to extend the term for one additional year, expiring June 30, 2018, and include a new EXOS operating budget and additional revisions to reflect actual operations; and WHEREAS, the new EXOS operating budget is estimated at $422,000 for Fiscal Year 2018 and includes payroll and staffing expenses, marketing and administrative costs, and monthly base management fees; and WHEREAS, additional revisions to the agreement to reflect actual operations include the following: 1. Acceptance of the name change from MediFit to EXOS. 2. Addition of the National School District third grade learn to swim program. 3. Change in operating hours to accommodate lap swimmers at 5:00 a.m. 4. Addition of the City's Social Media Policy. 5. Clarification on how EXOS invoices the City, and how revenue is collected and submitted to the City. 6. Addition of language prohibiting consumption of alcohol at Las Palmas Pool. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute the First Amendment to the Agreement with MidiFit Community Services, LLP, dba EXOS, to extend the term by 12 months ending on June 30, 2018, and to amend sections of the Agreement to reflect the actual terms and operations. [Signature Page to Follow] Resolution No. 2016 — 206 Page Two PASSED and ADOPTED this 20th day of December2016. brrison, Mayor ATTEST: Michael R. DaIIity Clerk APPROVED AS TO FORM: % )r 7) SLeAT George H. Eiser, III Interim City Attorney Passed and adopted by the Council of the City of National City, California, on December 20, 2016 by the following vote, to -wit: Ayes: Councilmembers Cano, Mendivil, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California 1,,,411 rk of the of CitCity National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2016-206 of the City of National City, California, passed and adopted by the Council of said City on December 20, 2016. City Clerk of the City of National City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: December 20, 2016 ITEM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute a First Amendment to the Service Agreement between the City of National City and MediFit Community Services LLC, doing business as EXOS, exercising the option to extend the term by 12 months ending on June 30, 2018 and to amend sections of the Agreement to reflect the actual terms and operations. (Community Services) PREPARED BY: Audrey Denham DEPARTMENT: Community rvices PHONE: 619-336-4243 APPROVED BY: AGENDA ITEM NO. 6 EXPLANATION: The First Amend to the Agreement extends the term to June 30, 2018, and amends the following sections of the Agreement: Permitted Uses; Hours of Service; Base Management Fees; Payment Terms; Not to Exceed Amount; Submittal of Cash and Credit Card Receipts; Indemnity; Notices; City Approval. The following sections have been added: Social Media; Prohibiting Consumption of Alcohol on the Premises. Subsection 8.2.1 (90% Monthly Payment) has been deleted and is "reserved", and Subsection 8.1.3 (Monthly Balance Due Payment) is renumbered as 8.2.2. FINANCIAL STATEMENT: APPROVED: Finance ACCOUNT NO, APPROVED: MIS During FY18 budget development staff will include $422,000 in the Community Services Contract Services account. ENVIRONMENTAL REVIEW: This is not a project and, therefore, is not subject to environmental review. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution authorizing the Mayor to execute a First Amendment to the Service Agreement between the City of National City and EXOS. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: 1. Staff Report 2. Service Agreement 3. Amendment to Service Agreement a1/4.otiv‘v©u No . Qo\s-Q06 CALIFORNIA ,z.. TI O NAL INCORPORATE City Council Staff Report December 13, 2016 ITEM Staff Report: Resolution of the City Council of the City of National City authorizing the Mayor to execute a First Amendment to the Service Agreement between the City of National City and EXOS, formerly known as MediFit, exercising the option to extend the term by 12 months beginning July 1, 2017 and ending on June 30, 2018. BACKGROUND On November 3, 2015 City Council approved a 20 month Service Agreement with EXOS, formerly known as MediFit, to provide aquatic services at Las Palmas Pool. In February 2016, EXOS successfully reopened Las Palmas Pool. As part of the Service Agreement, the City is responsible for utilities, chemicals, facility and landscape maintenance, and janitorial services. Each month, EXOS invoices the City for staffing expenses, marketing and administrative costs, and a flat management fee. SUMMARY OF FIRST AMENDMENT City staff and EXOS have negotiated a one year extension to the Service Agreement at a cost of $422,000. a1 Year Proposed Budget 2017 $394,000 2018 $422,000 The fiscal year 2018 proposed budget includes a projected reduction in administrative and supply expenses and an increase in staff costs. The increase in staff costs is attributable to increased programming. The net change in the budget is an increase of $28,000 in projected expenditures for fiscal year 2018 over fiscal year 2017. This increase will be offset by corresponding revenues from programming. RECOMMENDATION Adopt the resolution authorizing the Mayor to execute a First Amendment to the Service Agreement between the City of National City and EXOS. Page 2 Staff Report — First Amendment to the Service Agreement between the City and EXOS December 13, 2016 FISCAL IMPACT During budget development for fiscal year 2018 staff will budget $422,000 in the Community Services Contract Services account. SERVICE AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND MEDIFIT COMMUNITY SERVICES LLC FOR TIME OPERATION OF LAS PALMAS POOL This Service Agreement (this "Service Agreement") is entered into by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and MEDIFIT COMMUNITY SERVICES LLC, a limited liability company ("MEDIFIT'). RECITALS A. The CITY owns the real property commonly known as Las Palmas Pool, located at 1800 E. 22nd Street, National City, California (the "Premises") as depicted on Exhibit A. B. MEDIFIT is a privately -held fitness and wellness management and consulting company and is in the business of designing, managing and operating all aspects of mixed use health, fitness and aquatics centers similar to Las Palmas Pool. C. The CITY wishes to have MEDIFIT operate the Las Palmas Pool with MEDIFIT programs serving the local community. D. The CITY is responsible for repair and maintenance of the Premises, which includes improvements, landscaping, janitorial, facility maintenance, chemical maintenance and information technology. The City desires to engage MEDFIT to operate of the Premises, which includes, personnel, programming, events and operating procedures and policies. NOW, THEREFORE, in consideration of the foregoing facts, and in consideration of the promises and covenants hereinafter set forth, the parties agree as follows: ARTICLE 1 TERM OF AGREEMENT 1.1 Term. The term of this Service Agreement shall be for twenty (20) months beginning November 4, 2015 (the "Commencement Date") and terminating on June 30, 2017 (such period, the "Term"). 1.2 Option to Extend Term. This Service Agreement may be extended upon mutual agreement between the parties. If either party desires an extension, the requesting party must make the request for an extension to the Tenn no less than nine (9) months prior to the end of the Term and mutual agreement must be reached no less than six (6) months prior to the end of the Tenn. At the time of an extension request, MEDIFIT and the CITY shall discuss a mutually agreed upon scope of work for the extended Term. The CITY and MEDIFIT may mutually agree to extend the Term of this Service Agreement for up to two (2) additional one (1) year terms. 1 Service Agreement Between City and MediFit 9-4-15 1.3 Transition Period. Should the CITY or MEDIFIT decide not to extend this Service Agreement within the timeframe above, MEDIFIT will work with the CITY to transition the operations to the CITY over the six (6) month period preceding the end of the Term of this Service Agreement. ARTICLE 2 PREMISES AND PERSONAL PROPERTY 2.1 Facilities to be Operated. For the purpose of operating the Premises for the benefit of the citizens of National City, the CITY hereby engages MEDIFIT to operate the Premises, subject to the covenants and conditions hereinafter set forth, on the Commencement Date. Facilities to be operated include the main pool, the activity pool, the locker rooms, main pump and storage rooms and the main lobby and administrative offices (the "Facilities"). The main pool is 50 meters by 19.8 meters, with 8 lanes of 50 meters, including one 3 meter diving board and two 1 meter diving boards. The activity pool is 80 feet long and at its widest it is 45 feet wide with a total area of 81,000 square feet; it has 4 different spray features and a 16 foot high slide with a ride length of 134.58 feet. The locker rooms are enclosed by a high wall and have a large changing area, showers and restrooms. There is a main pump room adjacent to the pool along with multiple storage rooms. There is also a main lobby and administrative offices. 2.2 Ownership of Personal Property and Improvements. The rights and obligations of the parties regarding the ownership of persona' property and improvements on the Premises shall be as follows: 2.2.1 All of the CITY's personal property not permanently affixed to the Premises ("Personal Property"), such as but not limited to, furnishings, office equipment and supplies shall remain the property of the CITY. All improvements existing on the Premises ("Improvements"), together with all fixtures permanently attached to the Premises ("Fixtures"), as of the Commencement Date shall remain the property of the CITY during the Term. MEDIFIT shall not remove any Personal Property, Improvements, or Fixtures from the Premises nor waste, destroy, or modify any Personal Property, Improvements, or Fixtures on the Premises. All new Improvements, together with all new Fixtures permanently attached to the Premises, after the Commencement Date shall remain the property of the CITY during the Term. MEDIFIT shall not remove any of the CITY's Personal Property, Improvements, or Fixtures from the Premises nor waste, destroy, or modify any Personal Property, Improvements, or Fixtures on the Premises. 2.2.2 All of MEDIFIT's personal property not permanently affixed to the Premises shall remain the property of MEDIFIT. ARTICLE 3 PERMITTED USE 2 Service Agreement Between City and MediFit 9-4-15 3.1 Permitted Uses. MEDIFIT shall operate the Premises by providing for and facilitating the following proposed activities beginning January 2016, which may be amended or replaced from time -to -time by agreement of the authorized representatives of the parties: 3.1.1 Open Swim on Saturday and Sunday throughout the year and open swim seven (7) days a week during the months of June, July and August; as well as during the National School District two (2) week fall break that occurs during September and/or October. In addition, consideration based on need will be given for an expanded open swim schedule during the National School District two (2) week winter and spring breaks. 3.1.2 Learn to swim classes throughout the year based on community needs. The number of classes offered will increase during the months of June, July and August. A variety of learn to swim classes for youth and adults with varying levels of experience will be offered. Cancelation of classes is permitted if enrollment is under three (3) participants. 3.1.3 Exercise classes for various ages and abilities and offered based on community needs. Cancelation of classes is permitted if enrollment is under five (5) participants. 3.2 Hours of Service. MEDIFIT may provide programming between the hours of 7:00 a.m. and 10:00 p.m. seven (7) days a week beginning January 2016. Hours of service may be changed upon mutual agreement. 3.2 CITY Use. The City may use the Premises for special events including National Night Out and Summer Movies in the Park. The CITY may use the Premises for up to ten (10) additional events or programs per year. Dates and times of such uses will be agreed upon by the CITY and MEDIFIT. 3.3 Consideration. MEDIFIT's performance under this Service Agreement shall serve as the sole consideration due to the CITY for MEDIFIT's right to operate the Premises. 3.4 CITY Residents. Participants seeking day use of the Premises who prove to MEDIFIT's satisfaction that they are residents of the CITY shall not be required to become members of MEDIFIT and shall be offered reduced resident rates. ARTICLE 4 SERVICES 4.1 MEDIFIT shall render the management services listed below (the "Services") to the CITY for the on -site management and supervision of the Premises. The Services shall be performed in accordance with generally accepted standards in the fitness and wellness management industry and shall be performed in accordance with such requirements or restrictions as may be imposed by any government authority. MEDIFIT shall provide the Services as follows: 3 Service Agreement Between City and MediFit 9-4-15 4.1.1 MEDIFIT has formulated an annual budget in accordance with financial targets for net operating income/surplus and meeting agreed upon benchmarks as set forth in Exhibit B attached hereto and incorporated herein. The budget is mutually agreed upon by the CITY and MEDIFIT. 4.1.2 MEDIFIT shall endeavor to meet or exceed the revenue goals as set forth in Exhibit B through the development and execution of effective marketing and retention plans. 4.1.3 MEDFIT shall provide learn to swim classes, open swim and other programs at affordable resident rates approved by the City. 4.1.4 MEDIFIT shall endeavor to meet or exceed budgeted net operating income/surplus goals as set forth in Exhibit B. Financial results will be monitored by and reviewed with the CITY on a monthly, quarterly and annual basis. 4.1.5 MEDIFIT shall provide quarterly reports to the City denoting National City participant numbers, total participant numbers, events and programs coordinated, total use by third parties, such as athletic teams, and any other pertinent statistics. 4.1.6 MEDIFIT shall recruit, hire and employ, as employees of MEDIFIT, all persons who will work at, or provide services to the Premises, managed by MEDIFIT in furtherance of the CITY operations (all such persons being referred to herein, collectively as "Managed Personnel"). Salaries and other expenses of Managed Personnel will be charged to CITY as an operating expense only to the extent such Manned Personnel are actually employees of MEDIFIT. Both parties hereto in the performance of this Service Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither MEDIFIT nor, to MediFit's knowledge, MEDIFIT'S employees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY'S employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Service Agreement contemplates the personal services of MEDIFIT and MEDIFIT'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Service Agreement was, and is, the professional reputation and competence of MEDIFIT and its employees. Neither this Agreement nor any interest herein may be assigned by MEDIFIT without the prior written consent of the CITY. Nothing herein contained is intended to prevent MEDIFIT from employing or hiring as many employees as MEDIFIT may deem necessary for the proper and efficient performance of this Service Agreement. All agreements by MEDIFIT with third parties shall require the third party to adhere to the applicable terms of this Service Agreement. 4 Service Agreement Between City and MediFit 9-4-15 4.1.7 MEDIFIT will manage personnel, facilities and programs/services in a manner consistent with the mission and values of the CITY. MEDIFIT will provide personnel as it deems reasonably necessary to perform the Services set forth in this Service Agreement. Personnel will be trained by MEDIFIT to properly perform the Services. MEDIFIT will present the CITY with General Manager candidates for review prior to hiring. The CITY will have the right to disapprove of the General Management candidates. 4.1.8 MEDIFIT will establish and implement policies and procedures designed to operate the Premises in a manner that promotes safety, customer service and financial accountability. 4.1.9 MEDIFIT will work closely with the CITY and the Community Services Department in designing and implementing effective and low cost program marketing campaigns, including community outreach to find programming opportunities. MEDIFIT will develop and launch outdoor fitness and program initiatives. 4.1.9.1 Use by Qthers. MEDIFIT may allow use of the Premises to other groups or organizations such as athletic teams/clubs. Any third party group users such as athletic teams/clubs shall be required to obtain a facility use permit from the CITY, and shall pay fees to the CITY for their use of the Premises. 4.1.10 MEDIFIT will develop and enhance measurement and analytics capabilities to help optimize revenue. 4.1.11 MEDIFIT will assist the CITY with a needs assessment for the Premises, which includes, but is not limited to, providing analysis and recommendations to improve operations and collecting input from the community through survey's and community meetings. ARTICLE 5 EQUIPMENT 5.1 The CITY will be solely responsible for providing and equipping the Premises (including, without limitation, Automatic External Defibrillators) so that the Services may be rendered by MEDIFIT in accordance with this Service Agreement and in compliance with all applicable rules and regulations relating to the Premises and the Services. The CITY shall provide such items as office furniture and equipment, telephones, computers and software for the Premises. The CITY will also be responsible for purchasing or leasing all aquatic related exercise equipment and safety and first aid equipment necessary to operate the Premises as reasonably requested by MEDIFIT. The CITY also agrees to, at its sole expense, maintain such equipment to the best of their ability. The CITY will consider the nature and priority of the maintenance and available funding to determine if and when such repairs and maintenance will be completed. 5 Service Agreement Between City and MediFit 9-4-15 5.2 MEDFIT shall, provide general administrative supplies and marketing materials necessary for the operation of the Premises at the City's sole cost and expense. The City shall pay for such supplies and materials within thirty (30) days of receipt of MEDIFIT's invoice therefor. MEDIFIT shall prepare and distribute marketing materials and CITY shall assist with the distribution of marketing materials. ARTICLE 6 UTILI 11ES 6.1 Utility Services. The CITY shall be responsible for maintaining utility services to the Premises, and shall provide and pay for all utilities or services necessary for its use and operation of the Premises during the Term, including but not limited to gas, water, electricity, trash, sewer charges and telephone. The CITY shall pay directly to the applicable utility company such charges, and MEDIFIT shall have no obligation to pay for such utility services. ARTICLE 7 REPAIRS; MAINTENANCE 7.1 CITY Repair and Maintenance Obligations. The CITY shall, at its own cost and expense, repair, maintain in good and tenantable condition, ordinary wear and tear excepted, and replace, as necessary, the Premises. The CITY is responsible for all repair and maintenance including but not limited to, landscape maintenance, janitorial maintenance and facility maintenance. The CITY shall work with MEDIFIT to maintain public safety, hygiene and fire safety of the Premises. The CITY shall consider the nature and priority of the work and available funding to determine if and when such repairs and maintenance will be completed. 7.1.1 Landscape Maintenance. The CITY is responsible for all outdoor cleaning and landscape maintenance at the Premises. 7.1.2 Janitorial Maintenance. The CITY is responsible for janitorial maintenance at the Premises, including but not limited to, routine cleaning of office, lobby, restrooms and locker rooms which includes waste removal, window cleaning, sweeping and mopping floors, and dusting and wiping counters and surfaces. The CITY is responsible for stocking janitorial items such as toiletries and cleaning supplies. The CITY has sole discretion on the frequency of cleaning and amount of janitorial items stocked. 7.1.3 Facility Maintenance. The CITY is responsible for all facility maintenance, including but not limited to, electrical, lighting, plumbing, pool chemicals, paint, flooring, HVAC systems and heat and air conditioning. 7.1.4 Information Technology. The CITY is responsible for providing internet access, telephones and support services. 7.2 MEDIFIT Repair and Maintenance Obligations. MEDFIT shall operate the Premises in manner that promotes the safety and security of the public while MEDFIT personnel is on the Premises. Safety and security issues must be reported to the designated CITY contact promptly 6 Service Agreement Between City and MediFit 9-4-15 and MEDIFIT personnel will endeavor to protect the safety and security of the public until the CITY can address the safety and/or security issue. Except for normal wear and tear occurring in the ordinary course of business, MEDIFIT agrees to repair or replace any damage or injury done to the Premises, or Personal Property, or any part thereof, caused by MEDIFIT or MEDIFIT's agents, employees or invitees, at MEDIFT's own cost and expense. If MEDIFIT fails to make such repairs or replacements promptly, CITY may, at its option, make such repairs or replacements, and MEDIFIT Shall repay the cost thereof to the CITY within ten (10) days of written demand. However, for any repair work, costing over Five Hundred and no/100 Dollars ($500.00) to be performed by MEDIFIT or MEDIFIT's agents, MEDIFIT shall not perform such repair work without the CITY's prior written consent. Any repairs or replacements in or to the Premises, other than repair work in emergency situations, which would require an expenditure exceeding Five Thousand and no/100 Dollars ($5,000.00) and which constitute a "public project" under Section 20161 of the California Public Contract Code, shall be contracted for/by CITY and let to the lowest responsible bidder after notice. 7.3 CITY Right to Inspect. MEDIFIT shall permit the CITY to enter the Premises at all times to inspect the Premises, provided, however, that such entry shall not unreasonably interfere with MEDIFIT's operation of the Premises. Nothing contained in this Article 7, however, shall be construed as creating any duty on the part of the CITY to do any work which, under any provision of this Agreement, MEDIFIT may be required to do. 7.4 Prevailing Wages. MEDIFIT shall, pay prevailing wages if required by law for work performed on the Premises. ARTICLE 8 FEES AND PAYMENT TERMS 8.1 Fees. The CITY shall pay MEDIFIT a monthly base management fee, actual payroll and staffing expenses and marketing and administrative costs as set forth in this Article 8.1 and Exhibit B. 8.1.1 Base Management Fee. As compensation for the Services, the CITY shall pay MEDIFIT a monthly base management fee (the "Base Management Fee") for each month beginning November 4, 2015 (prorated for any partial months at the beginning or end of the Term) in the amount of $5,000 per month throughout the Term and the Base Management Fee shall be invoiced monthly. The Base Management Fee shall be due thirty (30) days after receipt of invoice therefor. 8.1.2 Payroll and Staffing Expenses. MEDIFIT shall recruit, hire and employ, as employees of MEDIFIT, all persons who will work at, or provide services at the Premises. Monthly payroll and staffing expenses are estimated as set forth in Exhibit B and will be charged to the CITY as an operating expense only to the extent such Managed Personnel are actually employees of MEDIFIT. 7 Service Agreement Between City and MediFit 9-4-15 8.1.3 Marketing and Administrative Costs. MEDFIT shall, provide such items as general administrative supplies and marketing materials necessary for the operation of the Premises. Monthly marketing and administrative costs are estimated as set forth in Exhibit B and the cost of the marketing materials and the administrative supplies shall be paid for by the City within thirty (30) days after receipt of an invoice setting forth the amount of such costs. 8.2 Payment Terms. The CITY shall pay MEDIFIT ninety percent (90%) of the estimated monthly operating expenses as set forth in Exhibit B on or before the first (1st) day of every month. At the end of the month MEDIFIT shall submit an invoice for the remaining balance due. 8.2.1 90% Monthly Payment. Commencing on December 1, 2015 the CITY will pay to MEDIFIT, on or before the first (1st) day of every month, an amount equal to ninety percent (90%) of MEDJFIT's budgeted monthly Base Management Fee, estimated payroll and staffing expenses, and estimated marketing and administrative costs, as set forth in Exhibit B. The initial payment shall be payable on the first (1st) day of December 2015. The remainder of the actual monthly payment shall be paid as set forth in 8.1.3. 8.1.3 Monthly Balance Due Payment. MEDIFIT shall submit an invoice for the remaining balance due each month in which Services are rendered. To the extent applicable, each invoice will reflect the monthly Base Management Fee, actual payroll and staffing expenses and actual marketing and administrative costs together with all amounts payable to MEDIFIT as set forth in Exhibit B, less any payments or revenue received during the month in which Services are rendered. Upon request, MEDIFIT shall submit to the CITY supporting documentation for payroll and staffing expenses and marketing and administrative costs. Supporting documentation may be, but is not limited to, copies of payroll and receipts for purchases. 8.3 Not to Exceed Amount. MEDIFIT agrees that the combined base management fee, payroll and staffing fees, and marketing and administrative costs, shall not exceed a total of $650,000 over the Term of this Agreement. Should the parties agree to extend the Service Agreement, Article 8.3 must be negotiated and mutually agreed upon. 8.4 Third Party Rental Groups. The CITY will separately collect and retain rental revenue from third party rental groups. MEDIFIT shall allow all CITY approved third party rental groups to use the Premises and shall give priority use to CITY requests for either third party rental groups or CITY use for events. 8.5 Revenue Collected by MEDIFIT. Revenue collected by MediFit for its programing of open swim, learn to swim, and exercise classes will be collected and handled by MEDIFIT. MEDIFIT shall submit daily cash receipts to the CITY each month with the monthly balance due invoice. 8.6 Notwithstanding any other provision contained herein, in the event that CITY's outstanding balance for fees and charges to MEDIFIT is greater than ninety (90) days past due, MEDIFIT will have the right to immediately and unilaterally terminate this Agreement. 8 Service Agreement Between City and MediFit 94-15 8.7 The CITY shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by the CITY hereunder. ARTICLE 9 TAXES 9.1 Definition. "Taxes" shall mean all taxes, governmental bonds, special assessments, charges, or transfer taxes, license and transaction fees, including, but not limited to, (i) any state, local, federal income tax, or any real or personal property tax, (ii) increases in taxes attributable to MEDIFIT's operation of the Premises, or (iii) any taxes which are essentially payments to a governmental agency, other than the CITY, for the right to make improvements to the Premises. MEDIFIT recognizes and agrees that this agreement may create a possessory interest subject to property taxation and that MEDIFIT may be subject to the payment of taxes levied on such interest. MEDIFIT agrees to pay, before delinquency, all taxes, assessments and fees assessed or levied upon the Premises. 9.2 Responsibility for Payment of Taxes. The CITY shall not be obligated to pay any Taxes accruing against MEDIFIT. ARTICLE 10 INDEMNIFICATION AND INSURANCE 10.1 MEDIFIT's Indemnity. MEDIFIT agrees to defend, indemnify and hold harmless the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suites, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the MEDIFIT'S performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the CITY, its agents, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Operating Agreement for any alleged or actual omission, act, or negligence under this Operating Agreement that occurred during the term of this Operating Agreement. 10.2 Insurance. MEDIFIT, at its sole cost and expense, shall purchase and maintain, and shall require its subcontractors, when applicable, to purchase and maintain throughout the term of this Service Agreement, the following checked insurance policies: A. If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents and 9 Service Agreement Between City and MediFit 9-4-15 employees as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of $5,000,000 per occurrence and $10,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Service Agreement. The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of MEDIFIT'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Service Agreement. If MEDIFIT has no employees subject to the California Workers' Compensation and Labor laws, MEDIFIT shall execute a Declaration to that effect. Said Declaration shall be provided to MEDIFIT by CITY. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the MEDIFIT shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Service Agreement. In addition, the "retro" date must be on or before the date of this Service Agreement. G. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. H. This Service Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the MEDIFIT does not keep all of such insurance policies in full force and effect at all times during the terms of this Service Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Service Agreement and terminate the Service Agreement as provided herein. I. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. ARTICLE 11 TERMINATION 11.1 This Service Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to MEDIFIT. During said 60-day period MEDIFIT shall perform all services in accordance with this Service Agreement. This Service Agreement may also be terminated immediately by the CITY for cause 10 Service Agreement Between City and MediFit 9-4-15 in the event of a material breach of this Service Agreement, misrepresentation by MEDIFIT in connection with the formation of this Service Agreement or the performance of services, or the failure to perform services as directed by the CITY. Termination with or without cause shall be effected by delivery of written Notice of Termination to MEDIFIT as provided for herein. The CITY further reserves the right to immediately terminate this Service Agreement upon: (1) the filing of a petition in bankruptcy affecting MEDIFIT; (2) a reorganization of MEDIFIT for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of MEDIFIT. 11.2 This Service Agreement may be terminated by MEDIFIT by notice to the CITY, at any time if (1) the CITY becomes insolvent or admits its inability to pay its debts generally as they become due, (2) the CITY becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) days or is not discussed or vacated within forty-five (45) days after filing, (3) the CITY is dissolved or liquidated or takes any action for such purpose, (4) the CITY makes a general assignment for the benefit of creditors, or (5) the CITY has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 11.3 Upon termination of this Agreement, within thirty (30) days of the termination MEDIFIT shall return to the CITY all property of the CITY, and MEDIFIT shall remove all property of MEDIFIT at MEDIFIT's expense. ARTICLE 12 HAZARDOUS MATERIALS 12.1 Hazardous Materials Laws -Definition. As used in this Article, the term "Hazardous Materials' Laws" means any and all federal, state or local laws or ordinances, rules, decrees, orders, regulations or court decisions (including the so-called "common law"), including without limitation the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C., sec.9601 et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C., sec.1801 et seq.), and the Resource Conservation and Recovery Act of 1986, as amended (42 U.S.C., sec. 6901 et seq.), relating to hazardous substances, hazardous materials, hazardous waste, toxic substances, environmental conditions on, under or about the Premises, soil and ground water conditions or other similar substances or conditions. 12.2 Hazardous Materials - Definition. As used in this Section the term "Hazardous Materials" means any chemical, compound, material, substance or other matter that: 12.2.1 is a flammable, explosive, asbestos, radioactive nuclear medicine, vaccine, bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious material, whether injurious or potentially injurious by itself or in combination with other materials; 11 Service Agreement Between City and MediFit 9-4-15 12.2.2 is controlled, referred to, designated in or governed by any Hazardous Materials Laws; 12.2.3 gives rise to any reporting, notice or publication requirements under any Hazardous Materials Laws, or 12.2.4 is any other material or substance giving rise to any liability, responsibility or duty upon the CITY or MEDIFIT with respect to any third person under any Hazardous Materials Law. 12.3 MEDIFIT Representations and Warranties. MEDIFIT represents and warrants that, during the Term or any extension thereof, MEDIFIT shall comply with the following provisions of this Section unless otherwise specifically approved in writing by CITY, subject to the terms and conditions of MEDIFIT maintenance obligations provided elsewhere in this Service Agreement: 12.3.1 MEDIFIT shall not cause or authorize any Hazardous Materials to be brought, kept or used in or about the Premises by MEDIFIT, its agents, employees, assigns, contractors or invitees, except as required by MEDIFIT's permitted use of the Premises in the normal course of operations; 12.3.2 Any handling, transportation, storage, treatment or usage by MEDIFIT of Hazardous Materials that is to occur on the Premises following the Commencement Date shall be in compliance with all applicable Hazardous Materials Laws; 12.3.3 Any leaks, spills, release, discharge, emission or disposal of Hazardous Materials which may occur on the Premises following the Commencement Date shall be promptly reported in writing to CITY; 12.3.4 No friable asbestos shall be constructed, placed on, deposited, stored, disposed of, or located by MEDIFIT in the Premises; 12.3.5 No underground improvements, including but not limited to treatment or storage tanks, or water, gas or oil wells shall be located by MEDIFIT on the Premises without CITY's prior written consent; 12.3.6 MEDIFIT shall promptly supply the CITY with copies of all notices, reports, correspondence, and submissions made by MEDIFIT to the United States Environmental Protection Agency, the United Occupational Safety and Health Administration, and any other local, state or federal authority which requires submission of any information concerning environmental matters or hazardous wastes or substances pursuant to applicable Hazardous Materials' Laws with respect to the Premises; and 12.3.7 MEDIFIT shall promptly notify the CITY of any liens threatened or attached against the Premises pursuant to any Hazardous Materials' Law. ARTICLE 13 ASSIGNMENT 12 Service Agreement Between City and MediFit 9-4-15 13.1 CITY's Consent Required. MEDIFIT shall not voluntarily or involuntarily assign or otherwise transfer all or any portion of its rights and duties under this Agreement without the CITY's prior written consent. Any attempted assignment or transfer without the CITY's prior written consent shall be void. ARTICLE 14 DEFAULTS BY MEDIFIT; REMEDIES 14.1 Events of Default; Remedies. If MEDIFIT neglects or fails to perform or observe any of its obligations under the terms, covenants, or conditions contained in this Service Agreement within thirty (30) days after written notice of default or, when more than thirty (30) days shall be required because of the nature of the default, if MEDIFIT fails to cure such default after written notice thereof, then MEDIFIT shall be liable to the CITY for any and all damages sustained by the CITY as a result of MEDIF1T breach and the CITY may terminate this Service Agreement. ARTICLE 15 DEFAULTS BY CITY; REMEDIES 15.1 Events of Default; Remedies. If the CITY neglects or fails to perform or observe any of its obligations under the terms, covenants, or conditions contained in this Service Agreement within thirty (30) days after written notice of default or, when more than thirty (30) days shall be required because of the nature of the default, if the CITY fails to cure such default after written notice thereof, then the CITY shall be liable to MEDIFIT for any and all damages sustained by MEDIFIT as a result of the CITY's breach and MEDIFIT may terminate this Service Agreement. ARTICLE 16 DAMAGE OR DESTRUCTION 17.1 CITY Duty to Repair Casualty. Except as provided in this article and subject to the terms and conditions of MEDIFIT maintenance obligations provided elsewhere in this Service Agreement, should the Premises be damaged by fire, earthquake, or any other identifiable event of a sudden, unexpected, or unusual nature (Casualty), the CITY, at the CITY's sole discretion may repair any damages to the Premises, and may repair, restore and replace any such damaged or destroyed Fixtures, Improvements or Personal Property. In the event the City decides not to repair any damage, and such damage renders the Premises inoperable, the City may terminate this agreement as provided in Article 11 (Termination). 17.2 No Abatement. In the event of reconstruction, replacement or repair, MEDIFIT shall continue its operations on the Premises during any such period to the extent reasonably practicable from the standpoint of prudent business management, and in continuing compliance with applicable laws and regulations. MEDIFIT shall not be entitled to any compensation or damages from the CITY for loss of use of the whole or any part of the Premises, MEDIFIT's Personal Property, or any inconvenience or annoyance occasioned by such damage, reconstruction or replacement. 13 Service Agreement Between City and MediFit 9-4-15 17.3 Major Destruction. Notwithstanding any of the foregoing provisions of this Article to the contrary, if, at any time after the Commencement Date, (i) the Improvements are damaged or destroyed to the extent of more than twenty-five percent (25%) of their replacement cost, or (ii) the damage is such that the Improvements cannot be repaired and restored within one hundred and eighty (180) days after the Casualty, then MEDIFIT shall have the right to terminate this Service Agreement upon thirty (30) days' prior written notice to CITY. ARTICLE 18 EMINENT DOMAIN 18.1 Condemnation. If all of the Premises is taken under eminent domain proceedings by a party other than CITY, or, if less than all of the Premises is taken under such proceeding and the part taken substantially impairs the ability of MEDIFIT to use the remainder of the Premises for the purposes permitted by this Service Agreement, then MEDIFIT may terminate this Service Agreement as of the date that the condemning authority takes possession by delivery of written notice of such election within twenty (20) days after MEDIFIT has been notified of the taking or, in the absence thereof, within twenty (20) days after the condemning authority shall have taken possession. 18.2 Continuation of Service Agreement After Condemnation. it this Service Agreement is not terminated by MEDIFIT, it shall remain in full force and effect as to any portion of the Premises remaining, and this Service Agreement will end as of the date possession of the part taken by the public entity as to the part of the Premises that is taken. 18.3 Award. All monies awarded in any condemnation shall belong to the CITY. The CITY shall have no liability to MEDIFIT for any award not provided by the condemning authority. ARTICLE 19 SALE OR MORTGAGE BY CITY 19.1 Sale or Mortgage. Subject to MEDIFIT rights under this Service Agreement, CITY may, pursuant to existing and subsequently enacted CITY ordinances and State laws, at any time and without the consent of MEDIFIT, sell, purchase, exchange, transfer, assign, lease, encumber or convey CITY interest in whole or in part, in the Park (collectively referred to in this Article as a "Sale"). CITY shall provide to MEDIFIT written notice of CITY intent to a Sale pursuant to this Article at least ninety (90) days prior to said proposed transfer. 19.2 Release on Sale. From and after a Sale of the CITY's entire interest in the Premises, upon payment of all amounts due or owing to MediFit, the CITY shall be released from all liability to MEDIFIT and MEDIFIT successors and assigns arising from this Agreement because of any act, occurrence or omission of the CITY occurring after such Sale. ARTICLE 20 SUBORDINATION; ATTORNMENT 14 Service Agreement Between City and MediFit 9-4-15 20.1 Subordination. Without the necessity of any other document being executed and delivered by MEDIFIT, this Service Agreement is and shall be junior, subject and subordinate to any existing or future permits or approvals issued by the United States of America or any local, State or federal agency affecting the control or operation of the Premises; MEDIFIT shall be bound by the terms and provisions of such permits or approvals. In addition, this Service Agreement is and shall also be subject, subordinate and junior to all mortgages, deeds of trust, and other security instruments of any kind covering the Premises, or any portion thereof, as of the Commencement Date of this Service Agreement. ARTICLE 21 CITY'S RIGHT OF ACCESS 21.1 Right of Entry. The CITY, its agents, employees, and contractors may enter the Premises at any time in response to an emergency, and, at reasonable hours to (a) inspect the Premises and Improvements; (b) determine whether MEDIFIT is complying with its obligations in this Service Agreement (including its obligations with respect to compliance with Hazardous Materials Laws); (c) post notices of non -responsibility or similar notices; (d) inspect the progress of construction of any improvement; or (e) make repairs that this Service Agreement requires or allows the CITY to make, or make repairs to any adjoining space or utility services, or make repairs, alterations, or improvements to any other portion of the Premises; provided, however, that all work will be done as promptly as reasonably possible and so as to cause as little interference to MEDIFIT as reasonably possible. ARTICLE 22 NOTICES 22.1 Notices. Whenever in this Service Agreement it shall be required or permitted that notice or demand be given or served by either party to this Service Agreement to or on the other, such notice or demand shall be in writing, mailed or personally delivered to the other party at the addresses specified below. Mailed notices shall be sent by United States Postal Service, postage prepaid and shall be deemed to have been given, delivered and received three (3) business days after the date such notice or other communication is posted by the United States Postal Service. All other such notices or other communications shall be deemed given, delivered and received upon actual receipt. Either party may, by written notice delivered pursuant to this provision, at any time designate a different address to which notices shall be sent. CITY: City of National City Attention: Leslie Deese, City Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 MEDIFIT: MEDIFIT Community Services LLC Attention: Dan Burns, Chief Executive Officer and V. Carl Walker, General Council 25 Hanover Road 15 Service Agreement Between City and MediFit 9-4-15 Building A, Suite 104 Florham Park, New Jersey 07932 ARTICLE 23 NONDISCRIMINATION 23.1 Nondiscrimination. MEDIFIT hereby covenants by and for itself, its successors, assigns and all persons claiming under or through it, that this Service Agreement is made and accepted upon and subject to the condition that there shall be no discrimination against, or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the use, operation, or enjoyment of the Premises. ARTICLE 24 RECORDS, ACCOUNTS AND AUDITS 24.1 MEDIFIT Duty to Keep Records. MEDIFIT shall, at all times during the Term, and for a period of five (5) years following expiration or earlier termination of this Service Agreement, keep or cause to be kept, true and complete books, records and accounts of all financial transactions in the operation of all business activities, of whatever nature, conducted pursuant to the rights granted by this Agreement. The books, records and accounts must be supported by source documents such as sales slips, cash register tapes, purchase invoices or other pertinent documents. 24.2 CITY's Right to Audit. The CITY shall have the right at any reasonable times, upon reasonable notice, to examine and perform audits of MEDIFIT's records pertaining to its operations on the Premises. The cost of said audits shall be borne by the CITY; however, MEDIFIT shall provide to the CITY at MEDIFIT's expense, necessary data to enable CITY to fully comply with each and every requirement of the State of California or by the United States of America for information or reports relating to this Service Agreement and to MEDIFIT's use of the Premises. ARTICLE 25 GENERAL PROVISIONS 25.1 Authority. MEDIFIT represents and warrants that it has full power and authority to execute and fully perform its obligations under this Service Agreement pursuant to its governing instruments, without the need for any further action, and that the person executing this Service Agreement on behalf of MEDIFIT is the duly designated agent of MEDIFIT and is authorized to do so. 25.2 Captions. The captions and headings appearing in this Service Agreement are inserted for convenience only and in no way define, limit, construe, or describe the scope or intent of the provisions of this Service Agreement. 16 Service Agreement Between City and MediFit 9-4-15 25.3 CITY Approval. Except where stated herein to the contrary, the phrases "CITY approval," and "CITY written approval" or such similar phrases shall mean approval of the City Manager of National City or said person's representative as authorized by said person in writing. 25.4 Compliance with Laws. MEDIFIT, shall procure, maintain and hold available for the CITY's inspection, any governmental license or permit required for the proper and lawful conduct of MEDIFIT operation of the Premises. MediFit shall invoice the CITY for expenses related to any governmental license or permit required for the proper and lawful conduct of MEDIFIT operation of the Premises. Except, the expense of the environmental health permit to operate a pool issued by the County of San Diego, Department of Environmental Health shall be paid by the CITY to the County of San Diego. MEDIFIT shall not use the Premises for any use or purpose in violation of the laws of the United States of America, or the laws, ordinances, regulations, orders or requirements of the State of California, the County of San Diego, the CITY, or of other lawful authorities. MED1FIT shall, at its expense, comply promptly with all applicable statutes, laws, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the Term (Laws or Orders), regulating the use by MEDIFIT of the Premises. 25.5 Cumulative Remedies. In the event of a default under this Service Agreement, each party's remedies shall be limited to those remedies set forth in this Service Agreement; any such remedies are cumulative and not exclusive of any other remedies under this Service Agreement to which the non -defaulting party may be entitled. 25.6 Entire Agreement. This Service Agreement, together with all addenda, exhibits and riders attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior or contemporaneous agreements, understandings and representations, oral or written, are superseded. 25.7 Exhibits. All exhibits referred to herein are attached hereto and incorporated by reference: Exhibit A: Depiction of Las Palmas Pool Exhibit B: Budget 25.8 Force Majeure. If either party is prevented or delayed from performing any act or discharging any obligation hereunder, because of any and all causes beyond either party's reasonable control, including unusual delays in deliveries, abnormally adverse weather conditions, unavoidable casualties, strikes, labor disputes, inability to obtain labor, materials or equipment, acts of God, governmental restrictions, regulations or controls, any hostile government actions, civil commotion and fire or other casualty, legal actions attacking the validity of this Service Agreement or the CITY or MEDIFIT operations of the Premises, or any other casualties beyond the reasonable control of either party ("Force Majeure"), performance of such act shall be excused for the period of such delay, and the period for performance of such act shall be extended for a period equivalent to the period of such delay. Force Majeure shall not include any bankruptcy, insolvency, or other financial inability on the part of either party hereto. 17 Service Agreement Between City and MediFit 9-4-15 25.9 Governing Law. This Service Agreement shall be governed, construed and enforced in accordance with the laws of the State of California. 25.10 Independent Contractor. MEDIFIT acknowledges that it is an independent contractor; that it alone retains control of the manner of conducting its activities in furtherance of this Service Agreement; and that it, as well as any persons, contractors or agents it may employ, are not employees of CITY for any purpose. 25.11 Interpretation. The provisions of this Service Agreement shall be liberally construed to effectuate its purpose. The language of all parts of this Service Agreement shall be construed simply according to its plain meaning and shall not be construed for or against either party. 25.13 Modification. The provisions of this Service Agreement may not be modified, except by a written amendment signed by both parties. 25.14 Partial Invalidity. If any provision of this Service Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Service Agreement shall not be affected thereby. Each provision shall be valid and enforceable to the fullest extent permitted by law. 25.15 Successors & Assigns. This Service Agreement shall be binding on and inure to the benefit of the parties and their successors and assigns, except as may otherwise be provided herein. MEDIFIT shall not assign this Service Agreement to any other party unless approved in writing by CITY. 25.16 Time of Essence. Time is of the essence of each and every provision of this Service Agreement. 25.17 Waiver. No provision of this Service Agreement or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed. IN WITNESS WHEREOF, the CITY and MEDIFIT have duly executed this Service Agreement as of the day and year first above written. 18 Service Agreement Between City and MediFit 9-4-15 CITY OF NATIONAL CITY (CITY) By: Ron Morrison, Mayor PROVED AS TO FORM: Claudia Gaci : Silva City Attorney 19 MEDIFIT COMMUNITY SERVICES LLC (MEDIFIT) (Corporation — signatures of two corporate officers required) By: By: Bill Bourque (Print) President, Account Management & Field Operations (Title) Name) - (Print) l ®ti'NAWAitSeances (Title) Service Agreement Between City and MediFit 9-4-15 EXHIBIT A DEPICTION OF THE PREMISES 20 Service Agreement Between City and MediFit 9-4-15 EXHIBIT B BUDGET Expenses Payroll and Staffing Expenses Salary -Managers $ 33,000 $ 66,000 $ 99,000 Wages -Guards for Recreational Swan & Lessons* $ 37,850 $ 76,330 $ 114,180 Wages -Administrative staff for recreational swim/public access $ 8,116 $ 8,724 $ 16,840 Wages -Learn to Swim Classes/Lessons* $ 8,417 $ 16,834 $ 25,250 Wages-Courses/Certification/Clinics $ $ - $ Wages -Guards for Sweetwater Unified High School District programs $ 14,714 $ 35,448 $ 50,162 Wages -Guards for Southwestern College programs $ 14,714 $ 35,448 $ 50,162 Wages -Aquatic Group Exercise Classes $ 4,890 $ 13,008 $ 17,898 Payroll Burden-26% of payroll $ 31,642 $ 61,699 $ 93,341 Sub -Total $ 153,343 $ 313,491 $ 466,834 FY16 FY17 Totals Totals GRAND TOTAL Marketing and Administrative Costs Advertising & Marketing -Other $ 3,000 $ 6,000 $ 9,000 Dues & Membership $ $ 200 $ 200 Meeting Expense (mandatory monthly staff meetings) $ 1,225 $ 2,450 $ 3,675 Uniforms $ 500 $ 500 $ 1,000 Locker Room Supplies $ 3,000 $ 6,000 $ 9,000 Office Supplies & Expenses $ 900 $ 1,800 $ 2,700 Travel -Mileage Reimbursement/Parking/Tolls $ 350 $ 350 $ 700 Program Supplies & Expenses $ 1,500 $ 2,400 $ 3,900 Sub -Total $ 10,475 $ 19,700 $ 30,175 Base Management Fee $ 35,000 S 60,000 S 95,000 Total Expenses $ 198,818 $ 393,191 S 592,009 Revenue Recreational Swim Learn to Swim Classes/Lessons $ $ Courses/Certification/Clinics Total Revenue 21 $ Service Agreement Between City and MediFit 9-4-15 22 Service Agreement Between City and MediFit 9-4-15 RESOLUTION NO. 2015 —165 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A 20-MONTH SERVICE AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND MEDIFIT COMMUNITY SERVICES, LLC, TO PROVIDE AQUATIC SERVICES AT LAS PALMAS POOL IN AN AMOUNT NOT TO EXCEED $650,000; ESTABLISHING A GENERAL FUND COMMUNITY SERVICES CONTRACT SERVICES APPROPRIATION OF $200,000 FOR MEDIFIT MANAGEMENT FEES AND OPERATING COSTS; INCREASING THE GENERAL FUND COMMUNITY SERVICES BUILDING SERVICES INTERNAL CHARGES APPROPRIATION BY UP TO $144,300 TO ACCOUNT FOR GAS, ELECTRIC, WATER, AND CHEMICAL COSTS; AND THE ESTABLISHING A GENERAL FUND REVENUE BUDGET TO ACCOUNT FOR USER FEES IN THE AMOUNT OF $112,500 WHEREAS, the City of National City owns the real property commonly known as Las Palmas Pool, located at 1800 East 22nd Street, National City (the "Premisesp); and WHEREAS, MediFit is a privately -held fitness and wellness management and consulting company and is in the business of designing, managing, and operating all aspects of mixed use health, fitness and aquatics centers similar to Las Palmas Pool; and WHEREAS, the City desires to enter into an Agreement with MediFit for the operation the Las Palmas Pool with MediFit programs serving the local community; and WHEREAS, pursuant to the Agreement the City will be responsible for repair and maintenance of the Premises, which includes improvements, landscaping, janitorial, facility maintenance, chemical maintenance, and information technology; and WHEREAS, MediFit will be responsible for the operation of the Premises, which includes, personnel, programming, events, and operating procedures and policies; and WHEREAS, an appropriation of $200,000 is necessary for this fiscal year to cover MediFit's management fee and operating costs. The appropriation will be covered by a General Fund fund balance where additional revenues would offset the cost to operate the pool; and WHEREAS, an increase to the Community Services Building Service intemal charges line item for up to $144,300 is required for the cost of utilities and, chemicals associated with the operation of Las Palmas Pool, and an equal decrease to the General Fund and Library Fund Building Services internal charges line items, making it a net zero increase to the General Fund. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a 20-month Service Agreement, with MediFit Community Services, LLC, to provide aquatic services at Las Palmas Pool. BE IT FURTHER RESOLVED that the City Council authorizes the establishment of a General Fund Community Services Contract Services appropriation of $200,000. BE IT FURTHER RESOLVED that the City Council authorizes an increase to the General Fund Community Services Building Services internal charges appropriation by up to $144,300. Resolution No. 2015 —165 Page Two BE IT FURTHER RESOLVED that the City Council authorizes the establishment of a'General Fund revenue budget to account for user fees of $112,500. PASSED and ADOPTED this 3rd day of Novembe 2015. on on'ison, Mayor ATTEST: Mict4ael R. Dalla, dity-Clerk PPROVED AS TO FOM: „mil 1. it ita ► ,° •ia Gaci u: Silva City Attorn Passed and adopted by the Council of the City of National City, California, on November 3, 2015 by the following vote, to -wit: Ayes: Councilmembers Cano, Mendivil, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON By: Mayor of the City of National City, California MICHAEL R. DALLA City Clerk of the City of National City, California Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2015-165 of the City of National City, California, passed and adopted by the Council of said City on November 3, 2015. City I City, California CI rk of the City of ationa By: Deputy CALIFORNIA ---- NATIONAL CCI FIRST AMENDMENT TO THE SERVICE AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND MEDIFIT COMMUNITY SERVICES, LLC, D.B.A. EXOS This First Amendment ("Amendment") to the Service Agreement by and between the City of National City and MediFit Community Services, LLC ("Service Agreement"), is entered into this 7th day of December, 2016, by and between the City of National City (the "City") and MediFit Community Services, LLC, d.b.a. EXOS ("EXOS" or "MEDIFIT"). RECITALS WHEREAS, the City and MEDIFIT, previously entered into the Service Agreement entitled "Service Agreement by and Between the City of National City and MediFit Community Services, LLC, for the Operation of Las Palmas Pool" dated November 4, 2015; WHEREAS, in the Service Agreement the City engages MEDIFIT to operate the real property commonly known as Las Palmas Pool, located at 1800 E. 22nd Street, National City, California (the "Premises") to provide aquatic programs serving the local community; WHEREAS, Article 1.1, Term, establishes the term of the Service Agreement as November 4, 2015 through June 30, 2017; and WHEREAS, Article 1.2, Option to Extend Term, allows an extension of the Service Agreement upon mutual agreement of the parties no less than six (6) months prior to the end of the Term. AMENDMENT TO SERVICE AGREEMENT NOW THEREFORE, the City and EXOS agree as follows: 1. All references to MEDIFIT in the Service Agreement shall be changed to EXOS. 2. The City and EXOS hereby delete Exhibit B to the Service Agreement in its entirety and replace it with the attached Exhibit B which revises the monthly base management fee, actual payroll and staffing expenses, and marketing and administrative costs. 3. Extension of Term. In accordance with Section 1.2 of the Service Agreement, the City, MEDIFIT and EXOS hereby agree to extend the Term of the Service Agreement through June 30, 2018. 1 2016 First Amendment to Agreement Between City of National City and EXOS 4. Article 3.1.2, Permitted Uses, is hereby amended by adding the following as the last sentence thereof: "Article 3.1.2 is also being fulfilled by providing learn to swim classes for third grade students in the National School District." 5. Article 3.2, Hours of Service, is hereby amended and restated as follows: "EXOS may provide programming between the hours of 5:00 a.m. and 10:00 p.m. seven (7) days a week. Hours of service may be changed upon mutual agreement." 6. Article 4.1.9.2 is hereby added to the Service Agreement as follows: "Social Media. EXOS shall be responsible for social media marketing for the Premises and will adhere to the City's Social Media Policy." 7. Article 8.1.1, Base Management Fee, is hereby amended by deleting the last sentence thereof and adding in its place the following: "Notwithstanding anything to the contrary in the foregoing, beginning July 1, 2017, the City shall pay EXOS a monthly base management fee (the "Base Management Fee") for each month in the amount of $5,325 per month, excluding 5 (five) months during learn to swim classes for the National School District, when the monthly Base Management Fee shall be $6,160. The Base Management Fee shall be invoiced monthly and shall be due thirty (30) days after receipt of invoice therefor." 8. Article 8.2, Payment Terms, is hereby amended and restated as follows: "At the end of each month EXOS shall submit to the City an invoice for monthly operating expenses as set forth in Exhibit B." 9. Article 8.2.1 is hereby deleted in its entirety and replaced with: "8.2.1 [Reserved.]" 10. Article 8.1.3 is hereby deleted in its entirety and replaced with: "8.2.2 Monthly Balance Due Payment. EXOS shall submit an invoice each month in which Services are rendered. To the extent applicable, each invoice will reflect the monthly Base Management Fee, actual payroll and staffing expenses, and actual marketing and administrative costs together with all amounts payable to EXOS, as set forth in Exhibit "B". Upon request, EXOS shall submit to the City supporting documentation for payroll and staffing expenses and marketing and administrative costs. Supporting documentation may be, but is not limited to, copies of payroll and receipts for purchases." 2 2016 First Amendment to Agreement Between City of National City and EXOS 11. Article 8.3, Not To Exceed Amount, is hereby amended and restated as follows: "EXOS agrees that the combined base management fee, payroll and staffmg fees, and marketing and administrative costs, shall not exceed a total of $464,000 over the Term of this Agreement. Should the parties agree to extend the Service Agreement, Article 8.3 must be negotiated and mutually agreed upon." 12. Article 8.5, Revenue Collected by EXOS, is hereby amended and restated as follows: "Revenue collected by EXOS for its programing of open swim, learn to swim, and exercise classes will be collected and handled by EXOS. EXOS shall submit cash and credit card receipts to the City two (2) times per week or at any time the amount of cash at the Premises exceeds $500.00." 13. Article 10.1 EXOS Indemnity, is hereby amended and restated as follows: "EXOS agrees to defend, indemnify and hold harmless the City of National City, its officers, employees, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of EXOS' performance or other obligations under this Service Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, employees or volunteers. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Service Agreement for any alleged or actual omission, act, or negligence under this Service Agreement that occurred during the term of this Service Agreement." 14. Article 22.1, Notices, is hereby amended and restated as follows: "Whenever in this Service Agreement it shall be required or permitted that notice or demand be given or served by either party to this Service Agreement to or on the other, such notice or demand shall be in writing, mailed or personally delivered to the other party at the addresses specified below. Mailed notices shall be sent by United States Postal Service, postage prepaid and shall be deemed to have been given, delivered and received three (3) business days after the date such notice or other communication is posted by the United States Postal Service. All other such notices or other communications shall be deemed given, delivered and received upon actual receipt. Either party may, by written notice delivered pursuant to this 3 2016 First Amendment to Agreement Between City of National City and EXOS provision, at any time designate a different address to which notices shall be sent. CITY: Stacey Stevenson, Deputy City Manager City of National City 140 East 12th Street National City, CA 91950-4301 EXOS: Medifit Community Services, LLC Attention: Dan Burns, Chief Executive Officer V. Carl Walker, General Council 25 Hanover Road Building A. Suite 104 Florham Park, New Jersey 07932" 15. Article 25.3, City Approval, is hereby amended and restated as follows: "Except where stated herein to the contrary, the phrases "CITY approval," and "CITY written approval" or such similar phrases shall mean approval of the City Manager or Deputy City Manager of National City or said person's representative as authorized by said person in writing." 16. Article 25.18 is hereby added to the Service Agreement as follows: Alcohol. Consumption of alcohol on the Premises is not permitted. 17. Except as specifically amended by this Amendment, the parties agree that each and every term of the Service Agreement shall remain in full force and effect. [Signature Page to Follow] 4 2016 First Amendment to Agreement Between City of National City and EXOS IN WITNESS THEREOF, the parties hereto have executed this First Amendment on the date and year first written above. CITY OF NATIONAL CITY By: Ron Morrison Mayor Approved as to form: By: George H. Eiser, III Interim City Attorney MEDIFIT COMMUNITY SERVICES, LLC, d.b.a. EXOS By: By: J Bill Bourque, Presidentt Account Management & Field Operations Kurt Atherton, President Community Services 2016 First Amendment to Agreement Between City of National City and EXOS EXHIBIT B BUDGET Fiscal Year 2018 Payroll and Staffing Expenses Salary -Managers $ 69,300 Wages -Guards for Recreational Swim, Swim classes and National School District Swim Classes $ 87,573 Wages -Administrative staff for Recreational Swim, Public Access and National School District Swim Classes $ 11,168 Wages -Instructors for Swim Classes and National School District Swim Classes $ 28,217 Wages-Courses/Certification/Clinics $ 1,200 Wages -Guards for Sweetwater Unified High School District programs $ 35,448 Wages -Guards for Southwestern College programs $ 17,724 Wages -Aquatic Group Exercise Classes $ 13,008 Payroll Burden-26% of payroll $ 64,703 Sub -Total Marketing and Administrative Costs $ 328,341 Advertising and Marketing $ 6,000 Dues & Membership $ 2,400 Meeting Expenses $ 2,450 Uniforms $ 1,000 Locker Room Supplies $ 6,000 Office Supplies $ 1,800 Travel and Mileage Reimbursement $ 980 Program Supplies & Expenses $ 4,400 Sub -Total Base Management Fee $ 25,030 Monthly Fee for Service $ 68,075 Sub -Total T,.t-, 1C,,,,o„coc $ 68,075 $ 421,446 6 2016 First Amendment to Agreement Between City of National City and EXOS RESOLUTION NO. 2016 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A FIRST AMENDMENT TO THE SERVICE AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND MEDIFIT COMMUNITY SERVICES, LLC, DOING BUSINESS AS EXOS, EXERCISING THE OPTION TO EXTEND THE AGREEMENT TO PROVIDE AQUATIC SERVICES AT LAS PALMAS POOL TO JUNE 30, 2018, WITH A NEW OPERATING BUDGET WITH ADDITIONAL REVISIONS MODIFY THE TERMS TO REFLECT THE ACTUAL TERMS AND OPERATIONS WHEREAS, on November 3, 2015, the City Council approved a 20 month Service Agreement with MediFit Community Services, LLC, now doing business as EXOS, for the operation of Las Palmas Pool; and WHEREAS, EXOS successfully reopened Las Palmas Pool in February 2016 providing recreational swim, lap swim, aquatic exercise classes, learn to swim classes, and facility rentals; and WHEREAS, the City desires to amend the Service Agreement with EXOS to extend the term for one additional year, expiring June 30, 2018, and include a new EXOS operating budget and additional revisions to reflect actual operations; and WHEREAS, the new EXOS operating budget is estimated at $422,000 for Fiscal Year 2018 and includes payroll and staffing expenses, marketing and administrative costs, and monthly base management fees; and WHEREAS, additional revisions to the agreement to reflect actual operations include the following: 1. Acceptance of the name change from MediFit to EXOS. 2. Addition of the National School District third grade learn to swim program. 3. Change in operating hours to accommodate lap swimmers at 5:00 a.m. 4. Addition of the City's Social Media Policy. 5. Clarification on how EXOS invoices the City, and how revenue is collected and submitted to the City. 6. Addition of language prohibiting consumption of alcohol at Las Palmas Pool. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute the First Amendment to the Agreement with MidiFit Community Services, LLP, dba EXOS, to extend the term by 12 months ending on June 30, 2018, and to amend sections of the Agreement to reflect the actual terms and operations. [Signature Page to Follow] Resolution No. 2016 — Page Two PASSED and ADOPTED this 20th day of December, 2016. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: George H. Eiser, III Interim City Attorney CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk December 21, 2016 Mr. Dan Bums Medifit Community Services dba EXOS 25 Hanover Road Building A, Suite 104 Florham Park, NJ 07932 Dear Mr. Burns, On December 20th, 2016, Resolution No. 2016-206 was passed and adopted by the City Council of the City of National City, authorizing execution of a First Amendment to a Service Agreement with Medifit Community Services dba EXOS. We are enclosing for your records a certified copy of the above Resolution and a fully executed original Amendment. Michael R. Dalla, CMC City Clerk Enclosures