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HomeMy WebLinkAboutPD Training Session at BioMarinDocuSign Envelope ID: 5CC138813-0110-4038-AE66-5C9E3C0800CB LICENSE AGREEMENT FOR A RIGHT 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 October 25, 2017 (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 the real property commonly known as the former San Rafael Service Center, 999 Third Street, San Rafael, CA, Assessor's Parcel Number 01 1- 265- 01, State Board of Equalization No. 135-49-2E, 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 portion of the Property as shown on EXHIBIT "A" attached hereto and by this reference made a part hereof (the "License Area") as a training site for the Police Department SWAT and Hostage Negotiations Teams. WHEREAS, Licensee has requested permission for Licensee to enter the License Area and conduct certain activities on the License Area 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, employees, representatives, agents, permittees and invitees ("Licensee's Representatives") to enter the License Area for the sole purpose of conducting Police Department SWAT and Hostage Negotiation Team 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 properly 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 B, which specifies in detail the nature, scope, location, proposed schedule, and purpose of all of Licensee's activities to be perfon-ned 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 B N/1RN!63 721.v 1 q,l o � e3,. 3.. so DocuSign Envelope ID: 5CC138BB-0110-4038-AE66-5C9E3C0800CB BioMarin's interests, and shall not be deemed to create any liability of any ]rind 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 applicable Legal Requirements, as defined herein. Licensee agrees and covenants that all of Licensee's Activities shall be performed solely within the License Area 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 October 30, 2017. (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 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 acknowledges that the Property is the subject of the Covenant and Agreement to Restrict Use of Property (the "Covenant") recorded in the office of the Marin County Recorder as Official Records No. 89-45973. Please see EXHIBIT "C" for details on hazards at this site. BioMarin acknowledges that Licensee's intended use of the property for police training exercises will not be in violation of the Covenant. Licensee accepts the Property "as is," in its existing physical condition, without warranty by BioMarin or any duty or obligation on the part of BioMarin to maintain the Property. Licensee expressly agrees that BioMarin has made no representations to Licensee regarding the condition of the Property and 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. Licensee further acknowledges that one or more of the following (collectively, "Potential Environmental Hazards") may be located in, on or underlying the Property: (a) electric and magnetic fields, electromagnetic fields, power frequency fields and extremely low frequency fields, however designated, whether emitted by electric transmission lines, other electrical distribution equipment or by any other means ("EMFs"); (b) Hazardous Substances (as hereinafter defined). For purposes hereof, the term "Hazardous Substances" means any hazardous or toxic material or waste which is or becomes regulated by Legal Requirements, as defined herein, relating to the protection of human health or the environment, including, but not limited to, laws, requirements and regulations pertaining to reporting, licensing, permitting, investigating and remediating emissions, discharges, releases or threatened releases of such substances into the air, surface water, or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of such substances. Without limiting the generality of the foregoing, the term Hazardous Substances includes any material or substance: BNiRN 63721.vl 2 DocuSign Envelope ID: 5CC1388B-0110-4038-AE66-5C9E3CO800CB (1) now or hereafter defined as a "hazardous substance," "hazardous waste," "hazardous material," "extremely hazardous waste," "restricted hazardous waste" or "toxic substance" or words of similar import under any applicable local, state or federal law or under the regulations adopted or promulgated pursuant thereto, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§9601 et seq. ("CERCLA"); the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§6901 et seq.; the Clean Air Act, 42 U.S.C. §§7401 et seq.; the Clean Water Act, 33 U.S.C. §§1251 et seq.; and the Toxic Substance Control Act, 15 U.S.C. §§2601 et seq.; or (2) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous, and is now or hereafter regulated as a Hazardous Substance by the United States, the State of California, any local governmental authority or any political subdivision thereof; or (3) the presence of which on the Property poses or threatens to pose a hazard to the health or safety of persons on or about the Property or to the environment; or (4) which contains gasoline, diesel fuel or other petroleum hydrocarbons; or BMRN 63721.-1 DocuSign Envelope ID: 5CC138BB-0110-4038-AE66-5C9E3C0800CB (5) which contains lead-based paint or other lead contamination, polychlorinated biphenyls ("PCB's") or asbestos or asbestos -containing materials or urea formaldehyde foam insulation; or (6) which contains radon gas.- (c) as; (c) fuel or chemical storage tanks, energized electrical conductors or equipment, or natural gas transmission or distribution pipelines; and (d) other potentially hazardous substances, materials, products or conditions. Licensee shall take all necessary precautions to protect Licensee's Representatives from risks of harm from Potential Environmental Hazards, and Licensee shall be solely responsible for the health and safety of Licensee's Representatives. Licensee acknowledges that it has previously evaluated the condition of the Property and all matters affecting the suitability of the Property for the uses permitted by this License Agreement, including, but not limited to, the Potential Environmental Hazards listed herein. Licensee's Covenants. (a) Notification. Licensee shall provide prior notice of its planned activities to the Kaiser Medical Clinic located at 1033 Third Street, San Rafael, CA 94901. On the day of the event, Licensee shall post informational signs regarding Licensee's activities on all four sides of the Property. (b) Vehicles. Licensee shall bring novehicles otherthan passengervehicles, light- duty trucks and two (2) trailers, each limited to a maximum of 61000 lbs. gross vehicle weight onto the Property. (c) Gates. Licensee shall keep all gates to the License Area locked during its use hereunder. (d) Portable Toilets. Licensee agrees to provide, at its own cost expense, such portable toilets as are necessary for Licensee's use during Licensee's activities hereunder, and have any such toilets promptly removed at the end of Licensee's use hereunder. (e) 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 novo 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. (f) 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. Licensee shall not drill, bore, or excavate under any circumstances. (g) Procedure for Entry. Licensee shall contact Benjamin M. Whitfield of DocuSign Envelope ID: 5CC1388B-0110-4038-AE66-5C9E3C0800CB BioMarin Global Security at (415) 996-2851 to arrange for admittance to the License Area. Licensee agrees that a representative of BioMarin may be present to observe Licensee's Activities to ensure compliance with the teens 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. (h) 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. 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 of the indemnitees, which arise from or are in any way connectedwith Licensee's Activities, orthe entry on, occupancy oruse 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 perforin. Licensee's duties under this License Agreement, including, but not lirnitedto, Claims arising out of. (i) injury to or death of persons, 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 aboutthe Property); (ii) injury to property or other interest ofBioMarin, Licensee or any third party; (iii) violation of any applicable federal, state, or local laws, statutes, regulations, or ordinances, including all Legal Requirements relatingtothe environment and including any liability imposed bylaw or regulation without regard to fault. in the event any action or proceeding is brought against any Indemnitee for any Claimagainst which Licensee isobligated toindemnify 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 DocuSign Envelope ID: 5CC138BB-0110-4038-AE66-5C9E3C0800CB 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 fi-om, 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 deerned received upon actual receipt or refusal of the notice by the party being sent the notice. I If to BioMarin: Benjamin Whitfield BioMarin Pharmaceutical Inc. 105 Digital Drive Novato, CA 94949 DocuSign Envelope ID: 5CC13888-0110-4038-AE66-5C9E3C0800CB (415) 006-2851 Ben jumin.v�hiteficld u;bnu•n.coni With a copy to: BioMarin Pharmaceutical Inc. 105 Digital Drive Novato, CA 94949 Attn: General Counsel If to Licensee: Scott W. Eberle San Rafael Police Department 1400 Fifth Avenue San Rafael, CA 94901 (415) 720-7819 (cell) (415)485-3000 (office) 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 DocuSign Envelope ID: 5CC138BB-0110-4038-AE66-5C9E3C0800CB 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 frill 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. DocuSign Envelope ID: 5CC138813-0110-4038-AE66-5C9E3C0800CB ?J. 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. DS BIOMARIN PHARMACEUTICAL INC a Delaware corporation DADCEBF520F04CO... Name: G. Eric Davi s THE CITY OF SAN RAFAEL, a public body of the State of California By: j Q Name: �J vj/7i Title: Executive vice President, General C6phj el �jt 1 "lam es/ DocuSign Envelope ID: 5CC1388B-0110-4038-AE66-5C9E3C0800CB EXHIBIT A PROPERTY DESCRIPTION & DIAGRAM OF LICENSE AREA I,,JI, I h:rd Sirc,:l- �;iii (A Page 10 of 11 y DocuSign Envelope ID: 5CC138BB-0110-4038-AE66-5C9E3C0800CB EXHIBIT B WORK PLAN San Rafael Police Department ("SRPD") will conduct training on Monday, October 30, 2017 from 6:30 am through 4:00 pm. SRPD will bring approximately 12 SWAT Members, 1 Safety Officer and 2 Cadets on site to perform the following training activities throughout the day: • Team movements throughout the interior of the building • Officer down drills outside in the parking lot with an armored vehicle. [Simmunition Training (like paintball, but not paint its soap based. Simmunition will only be used inside the facility with a Safety Officer • Breaching solid core doors (no doors with glass will be breached) • Throw Smoke canister to simulate gas. They are not loud and do not leave any residue. Nor are they flammable. But a Safety officer will be on standby with a fire extinguisher SRPD will bring and park 6 vehicles on site during the hours it conducts its training exercises. SRPD will conduct its training both on the outside parking lots between the buildings and inside the buildings. SRPD will perform the following tasks to prepare the site for its activities • Post "Police Training in Progress" signs o Notify Kaiser and surrounding business o Have a designated safety officer present at all times SRPD will not damage any of the exterior doors, nor conduct any "breach" work to enter the buildings. BioMarin will unlock the doors for SRPD at the beginning of the day and relock upon completion of SRPD's training. As part of their training exercises, SRPD plans to use the following equipment: • Non-toxic smoke (a variant of the types used in stage plays, haunted houses, amusement parks, etc.), which dissipates after use, and leaves no long lasting impact to air quality. The smoke machines, however, may leave some burn marks. • Siniunitions (a police version of paintball pellets that will leave marks on walls, but will not break any glass). • Armored Vehicle • 4 regular vehicles, 1 truck that is pulling a 30 foot Trailer with all of our SWAT equipment At the end of the day 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 so that BioMarin's abatement team may initiate activities the following day without the need to conduct any unexpected preparation work to make the site safe for workers. Page 11 of 11 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 Department Project Manager: Lt. Roy Leon Extension: ALK Hole Lo rsrttUr LF=xi. Contractor Name: BioMarin Contractor's Contact: :ntac heno to entor wxt. Contact's Email: if- r= to enter, tt,x(. ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor Clic-?c hclt-e Lo ❑ entcr sa irate. b. Email contract (in Word) & attachments to City Click here to Atty c/o Laraine.Gittens@cityofsanrafael.org c )Lc:r tt ❑ 2 City Attorney a. Review, revise, and comment on draft agreement 10/30/2017 © LAG and return to Project Manager ("lick hcrc to b. Confirm insurance requirements, create Job on e1,110r ,t date. ❑ Project Manager PINS, send PINS insurance notice to contractor 3 Forward three (3) originals of final agreement to Cii(k iit-re ro ❑ Project Manager contractor for their signature entet L.1 date 4 When necessary, * contractor -signed agreement ® N/A agendized for Council approval *PSA > $20,000; or Purchase > $35,000; or Or ❑ Public Works Contract > $125,000 Click here to Date of Council approval E'nCc,r ddtc, 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 104//7 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 V 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager -23,01 ��'