HomeMy WebLinkAboutPD 700 Irwin Street Right of Entry License AgreementLICENSE AGREEMENT
FOR A RIGIIT OF ENTRY FOR TEMPORARY
USE
This License Agreement for a Right of Entry for Temporary Use (this "License
Agreement") is made and entered into this April 29, 2019 (the "Effective Date") by
BIOMARIN PHARMACEUTICAL, a Delaware corporation, hereinafter called
"BioMarin", and the CITY OF SAN RAFAEL, a public body of the State of California,
hereinafter called "Licensee."
RECITALS:
WHEREAS, BioMarin owns improved property at 700 Irwin Street, hereinafter
called the "Property", located in the City of San Rafael, County of Marin, State of
California.
WHEREAS, Licensee has requested permission to temporarily use the Property as
a training site for the Police Department.
WHEREAS, Licensee has requested permission for Licensee to enter the Property
and conduct certain activities on the Property as more fully described in this License
Agreement and BioMarin is willing to grant such permission subject to the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, BioMarin and
Licensee hereby agree as follows:
1. Temporary Right of Entry. Subject to the terms and conditions set forth in
this License Agreement, BioMarin hereby grants to Licensee a temporary, personal,
non-exclusive and non -possessory right and license to enter, and for Licensee to allow
Licensee's directors, officers, partners, members, managers, and employees
("Licensee's Representatives") to enter the Property for the sole purpose of conducting
Police Department training hereinafter referred to as "Licensee's Activities". All of
Licensee's Activities shall be performed at Licensee's sole cost and expense. This
License Agreement gives Licensee a license only and does not constitute a grant by
BioMarin of any ownership, leasehold, easement, or other similar property interest or
estate.
2. Work Plan. Licensee shall discuss with BioMarin any specific
requirements for Licensee's Activities on the Property. Licensee's Activities on the
Property shall conform with the description provided in the work plan, attached hereto
as Exhibit A, which specifies in detail the nature, scope, location, proposed schedule, and
purpose of all of Licensee's activities to be performed on the Property (the "Work
Plan"). Licensee acknowledges and agrees that BioMarin's review of the Work Plan
is solely for the purpose of protecting BioMarin's interests, and shall not be deemed to
create any liability of any kind on the part of BioMarin, or to constitute a representation
on the part of BioMarin or any person consulted by BioMarin in connection with such
review that the Work Plan is adequate or appropriate for any purpose, or complies with
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applicable Legal Requirements, as defined herein. Licensee agrees and covenants that
all of Licensee's Activities shall be performed solely within the Property and in strict
accordance with the Work Plan.
3. Term; Termination; Surrender. This License Agreement shall be for a term of one
(1) day, on May 2, 2019, (the "Term"); provided, however, that BioMarin may terminate
this License Agreement, at any time, for any reason or no reason, including, without
limitation, upon twenty-four (24) hours written notice to Licensee. Upon the expiration
or termination of this License Agreement, Licensee shall remove all personal property
of Licensee and Licensee's Representatives and remove all vehicles, debris, and waste
material resulting from Licensee's Activities and shall return the Property to the
condition which existed at the commencement of the term to BioMarin's satisfaction.
Licensee shall bear the entire cost of such removal and BioMarin shall have no liability
for any losses or damages caused by or related to any termination of this License
Agreement. In the event Licensee fails to comply with the requirements of this Section,
BioMarin may elect, at Licensee's expense, to remove such personal property, vehicles,
debris and waste material as necessary.
4. Condition of the Property. Licensee accepts the Property in its "As -Is" state
of repair and condition and Licensee expressly agrees that BioMarin has made no
representations to Licensee regarding the condition of the Property. Licensee further
acknowledges that BioMarin will not provide security for Licensee during the term of
this License and Licensee shall be responsible, at Licensee's sole cost, for providing
any security services required or desired by Licensee.
5. Licensee's Covenants.
(a) Gates and Doors. Licensee shall keep all gates and doors to the Property
locked during its use hereunder.
(b) Legal Compliance. Licensee agrees, at Licensee's sole cost and expense,
promptly to comply, and to cause all of Licensee's Representatives to comply,
with all laws, statutes, ordinances, rules, regulations, requirements or orders of
municipal, state, and federal authorities now in force or that may later be in force,
which may be applicable to the Property (collectively, "Legal Requirements"),
insofar as they relate to Licensee's Activities or the use or occupancy of the
Property by Licensee.
(c) Use of Property. Licensee agrees that Licensee shall not in any way
interfere or permit any interference with the use of the Property by BioMarin.
(d) Procedure for Entry. Licensee shall contact Benjamin M. Whitfield of
BioMarin Global Security at (415) 996-2851 to arrange for admittance to the
Property. Licensee agrees that a representative of BioMarin may be present to
observe Licensee's Activities to ensure compliance with the terms and conditions
of this License Agreement. Licensee shall inform BioMarin's Representative
whether a representative of any governmental entity or agency (other than the San
Rafael Police Department) will be present during the planned activities.
(e) Licensee's Activities. Licensee agrees that Licensee and Licensee's
Representatives shall notify BioMarin of any potential safety, environmental or
other hazards to BioMarin employees or property arising out of, or associated
with, Licensee's Activities or stemming from conditions caused by Licensee, so
that BioMarin may take appropriate precautions. Licensee agrees that Licensee
shall conduct Licensee's Activities in compliance with the Work Plan and in such
a manner so as to protect the Property, the environment, and human health and
safety. Licensee shall not cause or permit any Hazardous Substances, as defined
herein, to be brought upon, produced, stored, used, discharged or disposed of on,
or in the vicinity of, the Property. Licensee agrees to be responsible for the
cleanup and remediation of any releases of Hazardous Substances resulting from
Licensee's Activities, or any activity by Licensee or Licensee's Representatives,
and shall immediately report the details of any such releases to BioMarin and to
the appropriate regulatory agencies as required by any and all applicable Legal
Requirements.
6. Indemnification; Release.
(a) Licensee shall, to the maximum extent permitted by law, indemnify,
protect, defend and hold harmless BioMarin, its parent corporation, subsidiaries,
affiliates, and their respective officers, managers, directors, representatives,
agents, employees, transferees, successors and assigns (each, an "Indemnitee"
and collectively, "Indemnitees") from and against all claims, losses (including,
but not limited to, diminution in value), actions, demands, damages, costs,
expenses (including, but not limited to, experts fees and reasonable attorneys' fees
and costs) and liabilities of whatever kind or nature (collectively, "Claims"),
including Claims arising from the passive or active negligence ofthe Indemnitees,
which arise from or are in any way connected with Licensee's Activities, or the
entry on, occupancy or use of, the Property by Licensee or Licensee's
Representatives, or the exercise by Licensee of Licensee's rights hereunder, or the
performance of, or failure to perform, Licensee's duties under this License
Agreement, including, but not limited to, Claims arising out of. (i) injury to or
death ofpersons, including, but not limited to, employees of BioMarin or Licensee
(and including, but not limited to, injury due to exposure to EMFs and other
Potential Environmental Hazards in, on or about the Property); (ii) injury to
property or other interest of BioMarin, Licensee or any third party; (iii) violation
of any applicable federal, state, or local laws, statutes, regulations, or ordinances,
including all Legal Requirements relating to the environment and including any
liability imposed by law or regulation without regard to fault. In the event any
action or proceeding is brought against any Indemnitee for any Claim against
which Licensee is obligated to indemnify or provide a defense hereunder, upon
written notice from BioMarin, Licensee shall defend such action or proceeding at
Licensee's sole expense by counsel approved by BioMarin, which approval shall
be in BioMarin's sole and absolute discretion.
(b) Licensee's use of the Property shall be at Licensee's sole risk and expense,
and Licensee accepts all risk relating to Licensee's occupancy and use of the
Property. BioMarin shall not be liable to Licensee for, and Licensee hereby
waives and releases BioMarin and the other Indemnitees from, any and all
liability, whether in contract, tort or on any other basis, for any injury, damage, or
loss resulting from or attributable to an occurrence on or about the Property.
(c) The provisions of this Section 6 shall survive the expiration or termination
of this License Agreement.
7. Additional Activities. Licensee shall not perform any activities beyond
Licensee's Activities specifically authorized by this License Agreement without the
prior written consent of BioMarin, which consent shall be in BioMarin's sole and
absolute discretion, and the prior consent, to the extent required by applicable Legal
Requirements, of any governmental authority having jurisdiction.
8. Reserved Rights. BioMarin reserves the right to use the Property for any
and all purposes whatsoever, including, without limitation, the right to use the Property
for such purposes as it may deem necessary or appropriate if, and whenever, in the
interest of its service to its patrons or consumers or the public, it shall appear necessary
or desirable to do so.
9. Compliance, Safety, and Insurance. Licensee shall obtain, at Licensee's
sole cost and expense, any and all necessary permits, authorizations and approvals
applicable to Licensee's Activities and to evidence compliance with all Legal
Requirements. BioMarin shall have a right to observe Licensee's Activities at any time
to confirm Licensee's compliance with the requirements of this License Agreement and
applicable Legal Requirements. At all times during the term of the License, Licensee shall
maintain insurance coverage in the minimum amounts of US Dollars $1,000,000 per occurrence
each for commercial general liability, property damage, and personal injury coverage, with
$2,000,000 in the aggregate, $1,000,000 for automobile liability, as well as $5,000,000 in
umbrella coverage for all of the above. Licensee shall promptly provide to BioMarin certificates
of insurance naming BioMarin as an additional insured and evidencing the above specifications.
For so long as the Licensee hereunder is the City of San Rafael, Licensee may elect to
self -insure for any or all of the required coverage.
10. Notices. Any notices or communications hereunder shall be in writing and
shall be personally delivered, or sent by first class mail, certified or registered, postage
prepaid, or by national overnight courier, with charges prepaid for next business day
delivery, addressed to the addressee party at the address or addresses listed below, or to
such other address or addresses as such party may from time to time designate in
writing. Notices shall be deemed received upon actual receipt or refusal of the notice
by the party being sent the notice.
If to BioMarin:
Benjamin Whitfield
BioMarin Pharmaceutical Inc.
105 Digital Drive
Novato, CA 94949
(415) 006-2851
Benj amin.whitefield(iDbmm. com
With a copy to:
BioMarin Pharmaceutical Inc.
105 Digital Drive
Novato, CA 94949
Attn: General Counsel
If to Licensee:
Todd Berringer (Investigations Sergeant)
San Rafael Police Department
501 a,srpd.org
C: (415) 720-4404
11. Governing Law. This License Agreement shall in all respects be
interpreted, enforced, and governed by and under the laws of the State of California.
12. Entire Agreement. This License Agreement supersedes all previous oral
and written agreements between and representations by or on behalf of the parties and
constitutes the entire agreement of the parties with respect to the subject matter hereof.
This License Agreement may not be amended except by a written agreement executed
by both parties.
13. Binding Effect. This License Agreement and the covenants and
agreements herein contained shall be binding on, and inure to the benefit of, the parties
hereto and their respective heirs, successors and assigns, subject to the limitations on
assignment set forth in this License Agreement.
14. Assignment. This License Agreement is personal to Licensee, and
Licensee shall not assign, transfer, convey or encumber the license and other rights
herein granted or any portion thereof or interest herein.
15. Attorneys' Fees. Should either party bring an action against the other party, by
reason of or alleging the failure of the other party with respect to any or all of its obligations
hereunder, whether for declaratory or other relief, and including any appeal thereof, then the
party which prevails in such action shall be entitled to its reasonable attorneys' fees (of both
in-house and outside counsel) and expenses related to such action, in addition to all other
recovery or relief. For purposes hereof, the reasonable fees of BioMarin's in-house
attorneys who perform services in connection with any such action shall be recoverable,
and shall be based on the fees regularly charged by private attorneys with the equivalent
number of years of experience in the relevant subject matter area of the law, in law
firms in the City of San Francisco with approximately the same number of attorneys as
are employed by BioMarin's Law Department.
16. No Waiver. Any waiver with respect to any provision of this License
Agreement shall not be effective unless in writing and signed by the party against whom
it is asserted. The waiver of any provision of this License Agreement by a party shall
not be construed as a waiver of a subsequent breach or failure of the same term or
condition or as a waiver of any other provision of this License Agreement.
17. No Dedication; No Third Party Beneficiary. Nothing herein contained shall
be deemed to be a gist or dedication of the Property or portion thereof to the general
public, or for any public use or purpose whatsoever. The right of the public or any
person, including Licensee and Licensee's Representatives, to make any use
whatsoever of the Licensee Area or any portion thereof, other than the expressly
permitted herein or as expressly allowed by a recorded map, agreement, deed or
dedication, is by permission and is subject to the control of BioMarin in its sole and
absolute discretion. The provisions of this License Agreement are for the exclusive
benefit of the parties and their successors and assigns, and shall not be deemed to confer
any rights upon any person, except such parties and their successors and assigns, subject
to the limitations on assignment set forth in this License Agreement. No obligation of
a party under this License Agreement is enforceable by, or is for the benefit of, any
other third parties.
18. Severability. If any provision of this License Agreement shall be invalid
or unenforceable, the remainder of this License Agreement shall not be affected
thereby, and each provision of this License Agreement shall be valid and enforced to
the full extent permitted by law, provided the material provisions of this License
Agreement can be determined and effectuated.
19. Counterparts. This License Agreement may be executed in identical
counterpart copies, each of which shall be an original, but all of which taken together
shall constitute one and the same agreement.
20. Survival. The waivers of claims or rights, the releases and the obligations
of Licensee under this License Agreement to indemnify, protect, defend and hold
harmless BioMarin and other Indemnitees shall survive the expiration or earlier
termination of this License Agreement, and so shall all other obligations or agreements
of BioMarin and Licensee hereunder which by their terms survive the expiration or
earlier termination of this License Agreement.
21. Authority; Execution; Conditions to Effectiveness. The Parties and
individuals executing this License Agreement on behalf of the parties, each represent,
by executing this License Agreement, that he or she is duly authorized to do so and to
bind the respective party to its
terms.
IN WITNESS WHEREOF, the parties have executed this License Agreement as of the
date set forth below each signature, effective upon the Effective Date first written
above.
BIOMARIN PHARMACEUTICAL
INC.,
a Delaware corporation
go
Name:
Title:
TI IE CITY OF SAN RAFAEL, a public
body of the State of California
By:
Name: Ji Schutz
Title: City Manager
EXHIBIT A
WORK PLAN
San Rafael Police Department ("SRPD") will conduct training on May 2nd, 2019 from 9:30 am
through 11:30 am.
SRPD will bring approximately 8 people from its Investigations Unit for an investigations training
day to cover search warrant operations, including the following activities and equipment:
• Search warrant planning/preparation
• Team movements throughout the interior of the building
• Review of communications plan
• Reacting to contingencies
SRPD will bring and park 2 vehicles on site during the hours it conducts its training exercises.
As part of their training exercises, SRPD plans to use the following equipment:
• Ballistic shield
• Medical kit
Clearly marked plastic training red/blue imitation firearms
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At the end of the day on Thursday, May 2nd and once SRPD completes its training activities,
SRPD will remove all vehicles and equipment brought on site and ensure that it removes any
hazards generated by its activities.
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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: Police Dept.
Project Manager: Chief Diana Bishop Extension: 3009
Contractor Name: BioMarin-700 Irwin Street (PD Training on 5/2/19)
Contractor's Contact: Benjamin M. Whitfield, BioMarin Global Security Contact's Email: Benjamin.Whitfield@bmrn.com
❑ FPPC: Check if Contractor/Consultant must file Form 700
Step
RESPONSIBLE
T
DESCRIPTION
COMPLETED
REVIEWER
DEPARTMENT
DATE
Check/Initial
1
Project Manager
a. Email PINS Introductory Notice to Contractor
N/A
4/29/2019
b. Email contract (in Word) and attachments to City
Attorney c/o Laraine.Gittens@cityofsanrafael.org
2 City Attorney
a. Review, revise, and comment on draft agreement +
4/29/2019
and return to Project Manager
N/A
b. Confirm insurance requirements, create Job on
PINS, send PINS insurance notice to contractor
®
3 + Department Director
Approval of final agreement form to send to
4/29/2019
❑ DB
contractor
4
Project Manager
Forward three (3) originals of final agreement to
Click here to
❑
contractor for their signature
enter a date.
5
Project Manager
When necessary, contractor -signed agreement
® N/A
agendized for City Council approval
*City Council approval required for Professional Services
Agreements and purchases of goods and services that exceed
Or
$75,000; and for Public Works Contracts that exceed $175,000
Click here to
Date of City Council approval
enter a date.
PRINT
CONTINUE ROUTING PROCESS WITH HARD COPY
6 Project Manager
Forward signed original agreements to City
4/29/19
Attorney with printed copy of this routing form
7
City ttorney
Review and approve hard copy of signed
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agreement
7
8
City Attorney
Review and approve insurance in PINS, and bondsu/ZQ
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(for Public Works Contracts)
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City Manager/ Mayor
Agreement executed by City Council authorized
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10 City Clerk
Attest signatures, retains original agreement and
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forwards copies to Project Manager