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CD Reimbursement AgreementREIMBURSEMENT AGREEMENT THIS REIMBURSEMENT AGREEMENT (Agreement) is entered into this September 20, 2018 ("Effective Date"), between BioMarin Pharmaceutical Inc. ("Developer"), and the CITY OF SAN RAFAEL, a municipal corporation organized and existing under the laws of the State of California ("the City"). RECITALS A. Developer is preparing to submit an application for a development proposal to add a Research and Development facility with Senior Housing development on a portion of the site ("the proposed project"). B. Developer is considering options for the new research and development facility and senior housing project and has not yet finalized plans for submittal. C. Pursuant to the City's comprehensive planning and environmental review process, the City has tentatively determined that the proposed project will require the following permits and land use entitlements [ mark those applicable]: [X] General Plan Amendment [X] Zoning Change/Planned Development [X] Minor Subdivision/Tentative Map [ ] Major Subdivision/Tentative Map [X] Use Permit [X] Environmental and Design Review [ ] Variance [X] Sign Review/ Sign Program/Amendment [X] Environmental Impact Report D. Due to the current work load of the City's Community Development Department and the aggressive timeline requested by the Developer, the City must hire a Contract Planner to serve as "Project Planner" for this project and expedite the review of the proposed project on the condition that Developer reimburse the City for its costs incurred in connection with these outside vendors ("Contract Planner"). E. In addition, due to the complexity of the environmental review process and the expertise required to comply with the California Environmental Quality Act (CEQA), the City must hire an Environmental Consulting firm to provide CEQA guidance and prepare an Environmental Impact Report in accordance with CEQA ("Contract CEQA Consultant"), and City may also be required to consult with an outside law firm for expert legal advice regarding CEQA or other applicable law ("Contract Law Firm"), on the condition that Developer reimburse the City for its costs incurred in connection with these outside vendors. Page 1 of7 ATTACHMENT 3 L\-S-155A JRIGINAL F. California Public Resource Code Section 21082.1 authorizes the City to employ a Contract Planner and Contract CEQA Consultant to provide planning and environmental review services, including preparation of the environmental documents required by the California Environmental Quality Act (CEQA) for the proposed project. G. California Government Code Section 66014, California Public Resource Code Section 21089, and San Rafael Municipal Code Section 3 .34.40 entitle the City to recover its costs of processing the applications for the land use entitlements required for the proposed project, including but not limited to the cost of the City's preparation and review of all required environmental documents. Accordingly, the City is entitled to recover its Contract Planner and Contract CEQA Consultant costs from Developer. H. This Agreement is intended to set forth procedures and a funding mechanism for Developer's payment of all planning and environmental consulting costs that will be incurred in connection with the proposed project. NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties hereby agree as follows: TERMS OF REIMBURSEMENT AGREEMENT 1. Recitals Incorporated. The foregoing recitals are incorporated into this Agreement. 2. Reimbursement. The City will contract directly with Contract Planner and Contract CEQA Consultant to provide planning and environmental consulting services for the proposed project. Developer agrees to reimburse the City for all Contract Planner and Contract CEQA Consultant costs that the City incurs which are related to the proposed project. The Contract Planner costs may include charges for various independent contractors working under Contract Planner's supervision (for example, traffic engineering consultants, biological study consultants, etc.). Developer agrees that the Contract Planner and Contract CEQA Consultant reimbursement charges will be separate and are in addition to the City's other processing and development fees to be charged to and paid by Developer pursuant to San Rafael Municipal Code Section 3.34.40. 3. Project Reimbursement Account. The contract amount of the proposed project includes two separate contracts, one for Contract Planner and one for Contract CEQA consultant. A.The initial contract amount of the Contract Planner is $65,000 ("the Contract Amount"). Developer shall pay 50% of the Contract Amount ($32,500.00) to the City within 30 days of receiving the City's request, for deposit to a non-interest-bearing Reimbursement Account that will be created by the City's Finance Department for the proposed project. This amount does not include the planning application submittal fees that would be required for this project and are required to cover City staff time associated with oversight and supervision of the Contract Planner. The application fees will be based on the scope of the project, once finalized by the Developer, but may include General Plan Amendment, Planned Development/Rezoning, Minor Subdivision, Use Permit, Design Review Permit, Page 2 of7 ATTACHMENT 3 and Sign Program. These application fees shall be paid at the time of submittal of the formal applications and shall be paid by a separate check. The City will hold Contract Amount funds in the Reimbursement Account and charge invoices received from Contract Planner against the Reimbursement Account. The City will provide Developer with copies of all such invoices, however, Developer agrees that the City may redact portions of the Contract Law Firm invoices to protect the City's attorney-client privilege. Within 30 days of Developer's receipt of the City's written notice that the Reimbursement Account has been reduced to a balance of less than $10,000.00, Developer agrees to pay the remaining 50% of the Contract Amount ($32,500.00) to the City to replenish the Reimbursement Account. Developer agrees to continue making such payments until the City is reimbursed for all the Contract Planner costs related to the proposed project. The City will hold any funds remaining in the Reimbursement Account until the City's processing of the proposed project is completed. Although the Reimbursement Account is primarily intended to fund the costs related to Contract Planner, Developer agrees that the City may collect any unpaid development fees and charges related to the proposed project from the funds in the Reimbursement Account. Any remaining funds in the Reimbursement Account after payment of all fees and costs related to the proposed project shall be refunded to Developer. B. The initial contract amount (including optional tasks and contingencies) of the Contract CEQA Consultant is $277,771 ("the Contract Amount -CEQA"). Developer shall pay 50% of the Contract Amount ($138,885.50) to the City within 30 days of receiving the City's request, for deposit to a non-interest-bearing Reimbursement Account that will be created by the City's Finance Department for the proposed project. This amount does not include the 25% EIR administrative fee that is required to cover City staff time associated with review of EIR and administration of contract. This 25% administrative fee ($69,442.75) shall be paid at the time of submittal of the fund for the Initial Study/EIR contract and shall be by a separate check. The City will hold Contract Amount funds in the Reimbursement Account and charge invoices received from Contract CEQA Consultant Firm against the Reimbursement Account. The City will provide Developer with copies of all such invoices, however, Developer agrees that the City may redact portions of the invoices to protect the City's attorney-client privilege. Within 30 days of Developer's receipt of the City's written notice that the Reimbursement Account has been reduced to a balance of less than $10,000.00, Developer agrees to pay the remaining 50% of the Contract Amount ($138,885.50) to the City to replenish the Reimbursement Account. Developer agrees to continue making such payments until the City is reimbursed for all the Contract CEQA Consultant costs related to the proposed project. The City will hold any funds remaining in the Reimbursement Account until the City's processing of the proposed project is completed. Although the Reimbursement Account is primarily intended to fund the costs related to Contract CEQA Consultant, Developer agrees that the City may collect any unpaid development fees and charges related to the proposed project from the funds in the Reimbursement Account. Any remaining funds in the Reimbursement Account after Page 3 of7 ATTACHMENT 3 payment of all fees and costs related to the proposed project shall be refunded to Developer. C. The initial contract amount of the Contract Law Firm is $0 ("the Contract Amount - Legal"). Developer agrees to reimburse the City for all pre-approved Contract Law Firm costs that the City incurs that are related to the proposed project. In the event City is required to incur fees to a Contract Law Firm in connection with the proposed project, City and Developer will enter into an amendment to this Agreement prior to any Contract Law Firm costs being incurred, setting forth the Contract Amount-Legal, and the reimbursement terms for such costs. 4. Automatic Withdrawal of Application. Developer's failure to make the payments required by the provisions of Section 3 of this Agreement shall result in an automatic withdrawal of the application for the proposed project. Notwithstanding such automatic withdrawal, Developer shall remain responsible for all amounts due pursuant to this Agreement and shall submit the same for payment to the City within 30 days of the City's demand for payment. After automatic withdrawal of the application pursuant to this Section, should Developer desire to re-apply for approval of the proposed project, City will require that Developer pay all regular City fees then applicable to initiate processing of a new application. Should Developer fail to make the payments required under this Agreement, or otherwise breach this Agreement, the City will not be obligated to complete any environmental review that has been initiated with respect to the proposed project. 5. Binding Effect of Agreement. This Agreement inures to the benefit of and binds the parties to this Agreement and their respective agents, employees, successors, and assigns. 6. Relationship of Parties. a. Contract Planner, Contract CEQA Consultant, and Contract Law Firm (and their agents and employees) are not employees of the City but instead are independent contractors. b. Contract Planner, Contract CEQA Consultant, and Contract Law Firm shall act solely on behalf of the City and shall not be consultants to, representatives of, or agents of Developer. Developer agrees not to communicate with or contact Contract Planner, Contract CEQA Consultant, or Contract Law Firm (or any of their respective consultants, agents, or employees) without prior written authorization from the City. c. Developer agrees that this Agreement and any document executed in connection herewith shall not cause Developer and the City to become joint venturers or partners. d. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns and does not, nor is it intended to, create any rights in favor of or obligation owing to any third parties. 7. No Entitlements Granted. This Agreement provides no legal or vested right to Developer to secure approval of any development plan, any particular environmental determination under Page 4 of7 ATTACHMENT 3 CEQA, or any particular permit or land use entitlement. Accordingly, Developer understands and agrees that in the performance of their services, including the preparation and review of all necessary environmental documents, Contract Planner and Contract CEQA Consultant will be as accurate and objective as reasonably possible. The City may determine during the course of processing of the proposed project application that final approval will require issuance of other permits in addition to those listed in Recital B of this Agreement, due to changes in the applicable state law, City Municipal Code, changes to the proposed project, or otherwise. Due to the nature of the required environmental and planning review, the City cannot predict with accuracy the total costs that the City will incur and charge to Developer concerning the proposed project. Developer agrees that it has not relied (and will not rely) on any estimates that the City may provide in this regard. 8. Notices. All notices required or provided by this Agreement shall be in writing and delivered in person or sent by certified mail, postage prepaid, return receipt requested, to the principal offices of the City and Developer. Notice shall be effective on the date it is delivered in person, or the date when the postal authorities indicate the mailing was delivered to the address of the receiving party indicated below: Notice to the City: Raffi Boloyan, Planning Manager City of San Rafael -Community Development Department PO Box 151560 San Rafael, CA 94915-1560 Notice to Developer: Eric Davis General Counsel BioMarin Pharmaceutical Inc. 105 Digital Drive Novato, CA 94949 9. Indemnification. Defense and Hold Harmless. With respect to any claim, action, or proceeding arising from this Agreement, Developer agrees to defend and indemnify the City and hold it hannless against all damages, costs and fees that may be incurred by the City. 10. Amendments. No amendment of this Agreement shall be valid or binding unless made in writing, duly authorized, and signed on behalf of both parties. 11. Administrator. The City employee with responsibility for administering this Agreement is Raffi Boloyan, Planning Manager, or other employee as may be designated by the City's Community Development Director. 12. Integration Clause. This Agreement constitutes the full, final, complete and entire agreement between the parties with respect to the subject matter of this Agreement, and there are no other terms, obligations, covenants, representations, statements, or conditions except as set forth in this Agreement. No change or amendment to this Agreement will be effective unless in writing and signed by the parties to this Agreement. Failure to insist upon strict compliance with any term or provision of this Agreement will not be deemed to be a waiver of any rights under a subsequent act or failure to act. This Agreement specifically supersedes all prior agreements between the parties with respect to the subject matter of this Agreement. Page 5 of7 ATTACHMENT 3 13. Severability Clause. Should any portion of this Agreement be declared void or unenforceable, such portion(s) shall be considered independent and severable from the remainder, and the validity of the remainder shall remain unaffected. 14. Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. 15. Public Record. This Agreement and all non-privileged documents prepared pursuant to this Agreement shall be maintained as public records. 16. Representation of Comprehension. In entering into this Agreement, the parties represent that they have read the Agreement, that they have had the opportunity to review the terms of the Agreement with counsel of their choosing, and that the terms of the Agreement are understood and voluntarily accepted by them. If any dispute or ambiguity should arise in the future over the terms of this agreement, neither party will be deemed the drafter of this document. 17. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any action arising out of or connected with this Agreement shall be instituted and maintained in the Marin County Superior Court. 18. Attorneys' Fees. In any action arising out of this Agreement, the prevailing party shall be entitled to costs (including non-statutory costs) and reasonable attorneys' fees from the non- prevailing party or parties. 19. Counterparts. The parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument. 20. Authority. The person signing this Agreement for Developer hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Developer. IN WITNESS WHEREOF this Agreement has been executed by the parties on the day and year first above written, CITY OF SAN RAFAEL DEVELOPER Jim Printed Name: 12-ob-re .nv £3,:,t,.;,, <--?::- Page 6 of7 ATTACHMENT 3 ATTEST: Lindsay Lara, City Clerk APPROVED AS TO FORM: L~. f2 ~ . ~11-Fff Robert F. Epstein,CityArney Page 7 of7 ATTA CHM ENT 3 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Community Development-Planning Division Project Manager: Raffi Boloyan, Planning Manager Extension: 3095 Contractor Name: BioMarin Pharmaceuticals Contractor's Contact: Contact's Email: shar.zamanpour@bmrn.com D FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION DEPARTMENT 1 Project Manager a. Email PINS Introductory Notice to Contractor b. Email contract (in Word) & attachments to City Atty c/o Laraine .Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise , and comment on draft agreement and return to Project Manager b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Project Manager Forward three (3) originals of final agreement to contractor for their signature 4 Project Manager When necessary, * contractor-signed agreement agendized for Council approval *PSA > $20,000; or Purchase> $35,000; or Publ ic Works Contract> $125,000 Date of Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed agreement 7 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) 8 City Manager/ Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager COMPLETED DATE N/A 8/16/2018 8/17/2018 8/17/2018 lick here• nter a da □ N/A Or 9/17/2018 10/1/18 lfJj()'/Jt:!. Jt>/5-JJ~ ,o Ii D /1r · \ol \ o I I ?, REVIEWER Check/Initial □ □ ~ LG ~ LG N/A ~ ~ . ~ JlJ4_ '}J/; I .,_. ~ (i\. ~~ . 0