Loading...
HomeMy WebLinkAboutReso RDA 5-1998 RESOLUTION NO. 5-98 REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPROVING AN OWNER PARTICIPATION AGREEMENT BETWEEN THE SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY AND TRAMMEL CROW NORTHERN CALIFORNIA INCORPORATED, RELATED TO PROPERTY AT 349 OYSTER POINT BOULEVARD WHEREAS, the Redevelopment Agency of South San Francisco, and Trammel Crow Northern California Incorporated, desire to enter into an Owner Participation Agreement related to 349 Oyster Point Boulevard; and NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of South San Francisco that it hereby approves the Owner Participation Agreement, attached hereto as Exhibit A, between the Redevelopment Agency and Trammel Crow Northern California Incorporated, and authorizes the Executive Director to sign the Agreement on behalf of the Agency. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the Redevelopment Agency of the City of South San Francisco at a regu l ar meeting held on the 22nd day of April ,1998 by the following vote: AYES: Boardmembers dames L. Datzman, doseph A. Fernekes, Karyl Matsumoto, dohn R. Penna and Chairman Eugene R. Mullin NOES: None ABSTAIN: None ABSENT: None J:\WPD~VINRSW~405\O 1 ~LE S O'V~R9 8\TRAMM EL.RDA EXHIBIT A RESOLUTION NO. 5-98 OWNER PARTICIPATION AGREEMENT by and between THE REDEVELOPMENT AGENCY OF THE CITY OF SOUTH SAN FRANCISCO and TC NORTHERN CALIFORNIA, INC. OWNER PARTICIPATION AGREEMENT THIS OWNER PARTICIPATION AGREEMENT (this "Agreement") dated as of ,199__, is entered into by and between the CITY OF SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY, a public body corporate and politic (the "Agency") and TC Northern California, Inc., a Delaware Corporation ("Participant"). The Agency and Participant agree as follows: This Agreement is entered into with reference to the following facts: A. The purpose of this Agreement is to effectuate the Redevelopment Plan and Implementation Plan for the Downtown Central Redevelopment Project Area, Sub-Area 2C by providing for the redevelopment of the Property. Completion of the Improvements constituting the Project pursuant to this Agreement is in the best interests of the City and the Agency, and the health, safety and welfare of residents and taxpayers of the Project Area and the City, and is in accord with the public purposes and provisions of applicable and state and local laws. B. A material inducement to the Agency to enter into this Agreement is the agreement by Participant to construct the Improvements within a limited period of time, and the Agency would be unwilling to enter into this Agreement in the absence of an enforceable commitment by Participant to construct the Improvements within a limited period of time. C. Construction of the Improvements will assist in the elimination of blight in the Project Area, provide additional jobs, improve safety in the Project Area and substantially improve the economic and physical conditions in accordance with the purposes and goals of the Redevelopment Plan. D. The Agency has determined that the land use specified in this Agreement and the provisions relating to construction of the Improvements specified in this Agreement are consistent with the provisions of the Redevelopment Plan and each of its applicable elements. Owner Participation Agreement Northern California, Inc. Page 1 of 16 C:~VlODI~M~OPA.205 February 6, 1998 ..... NOW, THEREFORE, the parties hereto agree as follows: ARTICLE 1. DEFINITIONS. The following terms as used in this Agreement shall have the meanings given unless expressly provided to the contrary: 1.1. Agency means the City of South San Francisco Redevelopment Agency, a public body, corporate and politic, exercising governmental functions and powers and is organized and existing under the Community Redevelopment Law of the State of California and with full power and authority to execute this Agreement. The principal office of the Agency is located at 400 Grand Avenue, South San Francisco, California 94080. 1.2. Agreement means this Owner Participation Agreement. 1.3. City means the City of South San Francisco, a municipal corporation. The principal office of the City is located at 400 Grand Avenue, South San Francisco, California 94080. 1.4. Improvements means the improvements described on Exhibit A, attached hereto and incorporated herein by this reference (the "Scope of Development"). The scope of Development includes only the building shells described in Section 2.2.1 hereof, and does not include any tenant improvements. 1.5. Project means the construction of the Improvements on the real property located at 349 Oyster Point Boulevard in accordance with the Scope of Development. 1.6. Project Area means Downtown Central Redevelopment Project of the Agency. 1.7. Property means the real property located at 349 Oyster Point Boulevard. 1.8. Redevelopment Plan means the Redevelopment Plan for the Downtown Central Redevelopment Project approved by the City Council by Ordinance No. 1056-89 on July 12, 1989, and as amended. 1.9. Participant means TC Northern California, Inc. Owner Participation Agreement Northern California, Inc. Page 2 of 16 C:~oDE~OW20S February 6, 1998 ARTICLE 2. DEVELOPMENT OF THE PROPERTY Section 2.1. Ownership of the Property. Participant hereby covenants that Participant is the owner of the Property as of the date and execution of this Agreement. In addition, Participant, as "Seller", and Riggs Bank N.A. as Trustee of the Multi-Employer Property Trust, a Trust organized under 12 C.F.R. §9.18 ("Riggs'), as "Purchaser", are parties to a Purchase and Sale Agreement dated July 31, 1997, wherein, among other things, upon satisfaction of certain conditions precedent Seller shall sell and Purchaser shall buy the Property and the Improvements ("Riggs Purchase"). Section 2.2. Development of the Property 2.2.1. Scope of Development. Participant hereby agrees to cause to have constructed on the 5.52 acre site the following improvements on the Property: two (2) office/research and development buildings which are two stories in height totaling approximately, One Hundred and Five-Thousand (105,000) rentable square feet. Such project, including all tenant improvements, is estimated to cost about One Hundred and Thirty Dollars ($130) per square foot to construct. Added value to the Proiect Area will be about Thirteen Million Six Hundred Fifty Thousand Dollars ($13,650,000). Participant shall complete all Improvements within approximately one year from the date Agency approves the Construction Plans as provided in Section 3.03 hereof subiect to delays caused by strikes, material shortages, accidents, severe weather, government requirements (including but not limited to, mandated changes in the plans and specifications and actions required to comply with environmental laws) and injunctions (collectively "Force Maieure"). Section 2.3 Payment of Oyster Point Overpass Fees It is understood that Participant agrees that it will pay the Oyster Point Overpass Fees in the amount of Two Hundred and Two Thousand Six Hundred and Fifty Seven Dollars ($202,657.00) as provided in Resolution Nos. 102-96 and 152- 96 approved by the City Council on June 26, 1996 and as amended on October 9, 1996. Participant further agrees that said fees will be paid at the time of issuance of the building permits for the Project. Owner Participation Agreement Northern California, Inc. Page 3 of 16 C:'~MODEM~OPA.205 February 6, 1998 Section 2.4. Cost of Construction. The Cost of developing and constructing the on-site Improvements shall be bome solely by Partidpant and shall not be an obligation of the Agency. Section 2.5. Final Construction Drawings and Related Documents. Participant has prepared, submitted, and will obtain approval from the City of plans and specifications for the Improvements. In addition, Partidpant hereby covenants that it has obtained all necessary permits which may be required by the City or any other govemmental agency having jurisdiction over such construction or development. Section 2.6. Progress of Construction. During construction of the Improvements, Participant shall submit to the Agency from time to time, within ten days following the Agency's request therefor, but not more frequently than monthly, a written report of the progress of the construction. The report shall be in such form and detail as to inform the Agency fully of the status of construction. Section 2.7. Rights of Access. In addition to those rights of access to and across the Property to which the Agency and City may be entitled by law, members of the staffs of the Agency and City shall have the right of access to the Property, without charge or fee, anytime during normal weekday construction hours, to inspect the work being performed at the Property, provided that they do not obstruct or interfere with the progress of construction. In consideration of the granting of this right of access, Agency, on its behalf and on behalf of all persons who exercise this right of access granted to Agency, aclmowledges and agrees that any such access is its risk and hereby releases and discharges Participant and Riggs, and their respective officers, directors, employees, agents, contractors, and lenders from any liability whatsoever for in}ury to persons or damage to property occurring as a consequence of or related to any access to the Property hereunder. Owner Participation Agreement Northern California, Inc. Page 4 of 16 c:~oo~oP~2OS February 6, 1998 Section 2.8. Local. State and Federal Laws. Partidpant shall carry out the construction of the Improvements in conformity with all applicable laws, including all applicable federal and state occupation, safety and health standards. Section 2.9. Failure to Complete Construction of Improvements Within One Year. If Participant fails to complete the construction of the Improvements on the Property within the period prescribed in Section 2.2.1 hereof, then all sums disbursed or advanced by the Agency pursuant to the provisions of Section 4.2 hereof shall, at the option of Agency, immediately become due and payable, and the Agency shall be released from any and all further obligations to Participant under the terms of this Agreement. ARTICLE THREE. CONSTRUCTION OF IMPROVEMENTS 3.01 Construction Pursuant to Plans. Unless modified by operation of Section 3.02 of this Part, all works of construction and development on the Property shall be done substantially in accordance with the Construction Plans approved pursuant to Section 2.5 above. 3.02 Change in Construction Plans. If the Participant desires to make any material change in the Construction Plans, the Participant shall submit the proposed change to the Agency for its approval which approval shall not be unreasonably withheld or delayed. If the Construction Plans, as modified by any proposed change, conform to the requirements of this Agreement, the Agency staff shall approve the change by notifying the Participant in writing. For purposes of this Agreement, the term "material change" means any change in design or materials which results in an increase or decrease of the cost of construction in excess of Twenty-Five Thousand Dollars ($25,000.00). Unless said proposed change is rejected by the Agency within five (5) days, it shall be deemed approved. If rejected within such time period, the previously approved Construction Plans shall continue to remain in full force and effect. Owner Participation Agreement Northern California, Inc. Page 5 of 16 C:hMODEM~OPA.205 February 6, 1998 Any change in the Construction Plans required in order to comply with applicable codes shall be deemed approved, so long as such changes do not substantially nor materially change the architecture, design, function, use, or other amenities of the Improvements as shown on the latest approved Construction Plans. 3.03 Construction Plans Must Be Approved. Within fifteen (15) days after the date this Agreement is executed by both parties, Agency shall review and approve construction plans for the Project. 3.04 Completion of the Improvements and Use of Property. The Participant, for itself, its successors and assigns, hereby covenants and agrees diligently to perform in accordance with the following provisions ("Operating Covenants"): (a) To prosecute to completion the construction of the Improvements within the period prescribed in Section 2.2.1 hereof; and (b) To operate within thirty (30) days after the date specified in subparagraph (a) above, and continue to operate two (2) office/research and development buildings, which may include related light manufacturing, each two (2) stories in height totaling approximately One Hundred and Five Thousand (105,000) square feet for a period of ten (10) years from the date Participant satisfies all the requirements for issuance of a Certificate of Completion for the Improvements. 3.05 Progress Reports Until construction of the Improvements has been completed, Participant authorizes the Agency to have full access to all building inspection reports and other information at the City of South San Francisco to assist the Agency in reviewing the actual progress of construction. Participant shall allow the Agency to review construction documents and records maintained by Participant in the ordinary course of the construction as may be reasonably requested by the Agency. 3.06 Equal Opportunity. During the construction of the Improvements, Participant shall not discriminate on the basis of race, religion, sex, disability, or national origin in the Owner Participation Agreement Northern California, Inc. Page 6 of 16 C:XMODI~I~OPA.205 February 6, 1998 hiring, firing, promoting or demoting of any person engaged in the construction work and shall direct its contractors and subcontractors to refrain from discrimination on such basis. 3.07 Certificate of Completion for Improvements. Promptly after completion of construction of Improvements in accordance with the provisions of this Part, the Agency will provide an instrument so certifying provided that, at the time such certification is issued, the Improvements have been completed (hereafter "Certificate of Completion"). Such Certificate of Completion shall be conclusive determination that the covenants in this Agreement with respect to the obligations of Participant, its successors and assigns, to construct the Improvements and the dates for the beginning and completion of construction thereof have been met. Such Certificate of Completion shall be in such form as will enable it to be recorded among the official records of San Mateo County. Such Certificate of Completion and determination shall not constitute evidence of compliance with or satisfaction of any obligation of Participant to any holder of a deed of trust securing money loaned to finance the Improvements or any part thereof and shall not be deemed a notice of completion under the California Civil Code. 3.08 Construction Bonds. Prior to the commencement of construction of the Improvements, the Participant shall deliver to the Agency copies of any labor and material bonds, and performance bonds which may be required by Participant's lenders, which bonds shall be issued by a reputable insurance company licensed to do business in Califomia. Such bonds shall name the Agency as co-obligee. 3.09 Implementation of Mitigation Measures. In carrying out the construction of the Improvements, it shall be the sole responsibility of the Participant to implement all mitigation and monitoring measures required by the Conditions of Approval (PUD-97-018 and ND-97-018) as approved and amended by the Planning Commission of the City on July 3, 1997. Owner Participation Agreement Northern California, Inc. Page 7 of 16 c:~aon~ov~.~o$ February 6, 1998 ARTICLE FOUR. RESPONSIBILITY FOR FUNDING IMPROVEMENTS Section 4.1. Participant's Responsibility for Off-site Improvements It is acknowledged that the Participant is responsible for the development of certain off-site improvements required as a result of the development of the 349 Oyster Point site. Said improvements ("Off-site Improvements") are identified as follows: a. Widen Oyster Point Boulevard along the frontage of the subject property in conformance with cross section plans for the street prepared by the City Engineer and constructed in accordance with plans designed by the Participant's civil engineer, as approved by the City Engineer. b. The work described above shall include the construction of new curb, gutter, sidewalk and driveway approaches, the installation of roadway structural section, the removal of the existing railroad tracks, the installation of three street lights and five "No Stopping" signs, the installation of underground conduits to be used for future utility undergrounding, the installation of detection loops and other modifications to the Gull Drive traffic signal as necessary to accommodate the driveway entrance to the project Section 4.2 Agency Funding of Off-Site Improvements. As part of Agency's improvement of Oyster Point Boulevard, Agency shall include in its public works contract Participant's Off-site Improvements, which are valued in a sum not to exceed Two Hundred Thousand Dollars ($200,000.00). Unless Participant defaults under this Agreement, or impermissibly transfers the Property prior to the issuance of a Certificate of Completion, Agency shall pay for the cost of such Off-site Improvements. ARTICLE FIVE. USE OF THE PROPERTY Section 5.1. Prohibited Uses. Participant is expressly prohibited from using the Property for any uses prohibited by applicable City zoning ordinances or regulations, or the Redevelopment Plan for the Project Area. Owner Participation Agreement Northern California, Inc. Page 8 of 16 C:~ODE~OW2O5 February 6, 1998 Section 5.2. Obligation to Refrain from Discrimination. There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, age, handicap, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enioyment of the Property, and Participant (itself or any person claiming under or through Participant) shall not establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees thereof or any portion thereof. Section 5.3. Effect and Duration of Covenants. All of the terms, covenants, agreements or conditions set forth in this Agreement pertaining thereto shall cease and terminate at the time expressly provided in this Agreement and in no event later than ten (10) years after the date of substantial completion of construction of the Project, excepting only the following provision which shall survive in accordance with its provisions: Section 5.2 (relating to nondiscrimination) shall remain in effect in perpetuity. Section 5.4 Prevailing Wage Policy. From and after execution of this Agreement by both parties, Participant shall comply with Agency Resolution No. 15-97 attached hereto as Exhibit B, regarding the payment of prevailing wages. ARTICLE SIX. CHANGES IN PARTICIPANT 6.01 Identity of Participant. The Participant is a Delaware corporation. 6.02 Changes Only Pursuant To This Agreement. The qualifications, experience and expertise of Participant is of particular concern to the Agency. It is because of these qualifications, experience and expertise that the Agency has entered into this Agreement. No voluntary or involuntary successor in interest to Participant shall acquire any rights or powers under this Agreement, except as hereinafter provided. Owner Participation Agreement Northern California, Inc. Page 9 of 16 C:xlVIODEIvI~OPA.20$ February 6, 1998 6.0:3 Prohibition Against Transfer of Property and Assignment of Agreement. Prior to the issuance by the Agency of a Certificate of Completion for the Improvements, except for the transfer to Riggs described in Section 2.1 hereof the Participant shall not voluntarily or involuntarily make or attempt any total or partial sale, transfer, conveyance, assignment or lease ("Transfer") of the whole or any part of the Property or the buildings or structures thereon or this Agreement without the prior written approval of the Agency; except for a transfer to a settlor or beneficiary of the Participant, or to an entity principally controlled by the Participant. The Agency's approval may be given by the Executive Director unless the Executive Director refers the matter to the Agency Board. This prohibition shall not apply to any portion of the Property for which a Certificate of Completion has been issued. This prohibition shall not be deemed to prevent the granting of temporary easements or permits to facilitate development or the dedication of Property required pursuant to this Agreement. If the Participant proposes a Transfer of the Property or a portion thereof, the proposed transferee shall have the qualifications and financial responsibility necessary and adequate as may be reasonably determined by the Agency to fulfill the obligations undertaken in this Agreement by the Participant. Any transferee, by instrument in writing satisfactory to the Agency and in form recordable among the land records, for itself and its successors and assigns, and for the benefit of the Agency shall expressly assume all of the obligations of the Participant under this Agreement relating to the Property and agree to be subject to all the conditions, covenants and restrictions to which the Participant is subject to, including but not limited to the operating covenant of Section 3.04. There shall be submitted to the Agency for review all instruments and other legal documents proposed to effect any such Transfer; and if approved by the Agency its approval shall be indicated to the Participant in writing. In the event that, in violation of the provisions of this Agreement, the Participant undertakes a Transfer for all or any part of the Property or the buildings, structures or other improvements thereon prior to the recordation of a Certificate of Completion, Participant shall be required to reimburse the Agency for the cost of the Off-site Improvements to the extent that the Agency has at the time of such reimbursement disbursed funds thereof. In the absence of specific written agreement by the Agency, no Transfer by Participant shall be deemed to relieve the Participant or any successor in interest from Owner Participation Agreement Northern California, Inc. Page 10 of 16 C:~aoDE~XOW2OS February 6, 1998 any obligations under this Agreement. 6.04 Transferee Subject to All Conditions of Agreement. After filing the Certificate of Completion for a portion of the Property, no approval under this Agreement is needed for a Transfer of any portion of the Property. However, any transferee shall be subject to the all the conditions, covenants and restrictions of this Agreement, or Participant shall be required to reimburse Agency for the cost of the Off-site Improvements in the event of Participant's default, as provided in this Agreement,. Owner Participation Agreement Northern California, Inc. Page 11 of 16 C:hMODEM~OPA.20$ February 6, 1998 6.05 Exception to Prohibition Against Transfer. In addition to a transfer to Riggs, Partidpant may at any time, without limitation, and without the necessity of approval from the Agency, make a Transfer of the Property or any part thereof or any interest therein or any improvements thereon or of this Agreement, to: (i) a subsidiary, affiliate, parent or other entity which controls, is controlled by, or is under common control with Partidpant; (ii) a successor corporation related to Partidpant by merger, consolidation, non-bankruptcy reorganization, or government action; or (iii) a ioint venture in which Participant or any successor to Participant under the preceding clauses (i) and (ii) is a venturer or partner. ARTICLE 7. DEFAULTS, REMEDIES AND TERMINATION Section 7.1. Defaults - General. 7.1.1. Failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who so fails or delays must immediately commence to cure, correct, or remedy such failure or delay, and shall complete such cure, correction or remedy with reasonable diligence and during any period of curing shall not be in default. 7.1.2. The non-defaulting party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. Section 7.2. Applicable Law. The laws of the State of California shall govem the interpretation and enforcement of this Agreement. Any action must be instituted in either the Superior Court of the County of San Mateo, State of California, or in an appropriate court in that County. Section 7.3. Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different Owner Partidpation Agreement Northern California, Inc. Page 12 of 16 C:~vlODEM~OPA.205 February 6, 1998 times, of any other rights or remedies for the same default or any other default by the other party. Section 7.4. Inaction Not a Waiver of Default. Except as expressly provided in this Agreement to the contrary, any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either such party of its rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. Section 7.5 Remedies If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within ten (10) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement thereof, then (i) the non-defaulting party may terminate this Agreement, and the defaulting party shall be liable to the non-defaulting party for any damages caused by such default, and the non-defaulting party may thereafter commence an action for damages against the defaulting party with respect to such default; and/or (ii) the non-defaulting party, at its option, may thereafter commence an action for specific performance of the terms of this Agreement pertaining to such default; and/or (iii) if Participant is the defaulting party, the Agency shall be released from any and all further obligations to Participant under the terms of this Agreement; and/or (iv) if Participant is the defaulting party, Participant shall be required to reimburse Agency for the cost of the Off-site Improvements. ARTICLE 8 GENERAL PROVISIONS Section 8.1 Notices, Demands and Communications Between the Parties. Any written notice or payment of one party to the other shall be service by registered or certified mail, postage prepaid, return receipt requested, addressed to the parties as follows: Owner Participation Agreement Northern California, Inc. Page 13 of 16 C:~ODE~OV~20S February 6, 1998 ,, Agency: CITY OF SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY 400 Grand Avenue South San Francisco, California 94083 ATTN: Michael A. Wilson, Executive Director cc: Meyers, Nave, Riback, Silver & Wilson 777 Davis Street, Suite 300 San Leandro, CA 94577 Attn: Steven T. Mattas Participant: TC Northem Califomia, Inc. 1241 East Hillsdale Boulevard, Suite 200 Foster City, CA 94404 ATTN: Dean Givas cc: Jackson, Tufts, Cole & Black, L.L.P. 60 South Market Street, 10th Floor San Jose, CA 95113 Attention: George H. Cole, Jr. All notices shall be deemed received on the date two (2) business days after the date of deposit into the U.S. mail in the fashion provided herein. Section 8.2. Conflicts of Interest. No member, official or employee of the Agency shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. Section 8.3. Warranty Against Payment of Consideration for Agreement. Participant warrants that it has not paid or given, and will not pay or give, to any third person, any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers and attorneys. Owner Participation Agreement Northern California, Inc. Page 14 of 16 c:~oD~,~oP~2os February 6, 1998 Section 8.4. Nonliability of Agency and City Officials. No member, offidal or employee of the Agency or City shall personally be liable to Participant, or any successor in interest of Participant, in the event of any default or breach by the Agency or for any amount which may become due to Participant or successor or on any obligation under the terms of this Agreement. Section 8.5. Litigation. If the Agency shall be or shall become a party to any legal proceedings instituted in connection or arising out of this Agreement or the improvement of the Property, Participant agrees to pay to the Agency all sums paid or incurred by the Agency as costs and expenses in the legal proceedings, including but not limited to actual attorneys' fees and costs incurred by the Agency. In the event of any dispute between the parties hereto arising out of this Agreement, the non-prevailing party agrees to pay to the prevailing party all sums paid or incurred by the prevailing party as costs and expenses in the legal proceedings, including but not limited to actual attorneys' fees. Notwithstanding the foregoing, in the event a third party institutes legal proceedings against the Agency challenging the Agency's right to make expenditures for funding off-site improvements as provided in Section 4.2, Participant shall not be required to indemnify and defend Agency for costs and expenses relating to that specific challenge. Section 8.6. Entire Agreement. Waivers and Amendments. The Agreement is executed in duplicate originals, each of which is deemed to be an original. This Agreement, together with all attachments and exhibits hereto, constitutes the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. Any waiver or modification of any provision of this Agreement must be in writing and signed by the party to be charged. Owner Participation Agreement Northern California, Inc. Page 15 of 16 c:~or>~.~o~.2o5 February 6, 1998 IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the day and year first above written. CITY OF SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY ATTEST: APPROVED AS TO FORM: Agency Counsel "PARTICIPANT" TC Northern California, Inc. its: T~' NORTHERN CALIFOI:INIk, INO, Executive Vice President ' Owner Participation Agreement Northern California, Inc. Page 16 of 16 C:~ODEIvI~OPA.20$ February 6, 1998 -, Exhibit A SCOPE OF DEVELOPMENT Participant shall, at its own cost and expense, provide or cause to be provided, the following improvements within the time period provided by this Agreement: Two office/research and development buildings, which are two stories in height totaling approximately One Hundred and Five-Thousand (105,000) rentable square feet. Exhibit B PREVAILING WAGE POLICY EXHIBIT A TO RESOLUTION NO. 15-97 PREVAILING WAGE POLICY CITY OF SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY 1. GENERAL POLICY. All ~vorkers performing construction ~vork for a project covered by Section (2) hereof, from the commencement of construction until the issuance of a final Certificate of Occupancy shall be paid wages not less than the per diem rate determined to be the prevailing wage rate by the Director of the California Department of Industrial Relations 'pursuant to California Labor Code Section 177:3 et seq., or any successor statutes. The total prevailing ~vage rate shall be paid directly to the ~vorker in a cash equivalent as wages, but if the worker i$ subject to a collective bargaining agreement, the wages shall be disbursed in accordance ~vith the provisions of such collective bargaining agreement. Construction work includes all construction of the building core and shell. It shall also include all tenant improvements for such project if a building permit for such improvements has been issued no later than one year after City's approval of a certificate of occupancy for the building shell. Also included are public ~vorks that are within the customary jurisdiction of the construction trades and crafts, ~vhether performed on or off the project site. Work done off the site on materials to be assembled in the project at a later date is not covered by this policy, but the work of assembly of such materials on site is covered. 2. pROJECT SUBJECT TO PREVAILING WAGE POLICY. The Prevailing Wage Policy shall apply to any construction project ~4th a total construction cost, including tenant improvements, of $100,000 or more meeting the criteria set forth in (a), (b), (c) or (d) below and not made exempt from the policy by (e) below: (a) Where a construction project is subsidized directly or indirectly by public funds in the amount of $100,000 or more pursuant to an agreement with theAgency. (b) Where a construction pro}ect is financed in ~vhole or in part by the issuance of Agency bonds. (c) Where a construction project is on land owned by the Agency or land conveyed or leased to the landowner or developer by the Agency. ..... (d) Where the construction project is the subject of a Development and Disposition Agreeme,~t, an Owner Participation Agreement where the Agency has provided direct or indirect financial benefit to the osvner, or a Development Agreement. (e) The Prevailing Wage Rate Policy shall not apply to any of the following: (1) Construction Projects consisting solely of tenant improvements if the building permits for such work are issued more thin one year after a Certificate of Occupancy has been approved for the building shell: (2) For the remodeling or rehabilitation of any building, structure, or site improvement sin existence as of the date this amended policy is adopted; (3) A.ny project ~vhere Federal and State laxv prohibits any imposition of a prevailing wage requirement; (4) Any project constructed using public employees; (5) Construction of four or fewer single family residences; (6) Rehabilitation of multi-family housing of seven or fewer units financed by Community Development Block Grant funds or of eleven or fewer units financed by Rental Rehabilitation Program .funds: (7) This policy shall not apply to supervisory, managerial or secretarial personnel, to persons employed in the rental, operation or maintenance of the project, or to any person employed in a job classification for which no wage determination is issued. 3. EMPLOYEES COVERED. The prevailing Wage Policy shall apply to all workers (hereinafter sometimes referred to as 'employees") performing construction work for the developer, the general contractor, or subcontractors or other contractor engaged in construction of the Project by the developer, including their successors and assignees. 4. PREVAILING WAGE DETERMINATION. Prevailing xvage rates for each employee shall be those wage rates, as determined and published periodically by 2 the Department of Industrial Relations pursuant to Section 1773 of the Labor Code. $. PAYROLL RECORDS. Aa~y developer, general contractor, subcontractor or other contractor subiect to this policy shall maintain and compile accurate and complete payroll records. Certified copies of the payroll records shall be available for inspection at all reasonable hours at a local office of the employer. Copies of the records shall be provided promptly upon request by a representative of the Agency. Upon request of any worker or his or her authorized representative or a member of the public whose has a reasonable belief that employees covered hereunder are not being paid prevailing wages, the City shall request certified copies of the payroll records. Any ~vorker, his or her authorized representative, or the public may also request a copy of the records fi'om the Agency. The addresses and Social Security numbers of employees may be masked or deleted so as to prevent disclosure in copies furnished to the pt, blic. The failure to provide complete payroll records upon such request shall create a presumption that prevailing wages have not been paid. 6. APPRENTICES. Nothing contained herein shall prevent the employment of apprentices, as defined in Chapter 4, Division :3 of the Labor Codm Every such apprentice shall be paid not less than the standard wage paid to apprentices under the regulations of the craft or trade at which he or she is employed. The employment and training of each apprentice shall be in accordance with the provisions of the apprenticeship standards and apprentice agreements under which he or she is in training. 7. MONITORING. The Prevailing Wage Policy will be monitored by the Agency, but the Agency assumes no responsibility regarding the completeness or accuracy of the payroll records that may be submitted to it. 8. BREACH: LIABILITY FOR UNPAID WAGES. The employer shall be liable to the employee for unpaid prevailing wages or any portion thereof, and including, for example, overtime ~vages. 9. ENFORCEMI:.NT. (I) In addition to any other rights provided by California law to recover compensation, a worker that has been paid less than the prevailing wage rates shall have a right to commence an action or proceeding against his or her employer for the difference between the prevailing wage rates and the amount paid to such worker for each calendar day or portion thereof for which the worker ~vas paid less 3 than the compensation required to be paid under the provisions of this policy. No issue other than that of the liability of the employer for the amount of unpaid wages alleged due shall be determined in such action or proceeding, and the burden shall be on the employer to establish that the amounts demanded are not due. A worker recovering any or all of the wages claimed to be due shall recover his or her costs and attorneys' fees in securing such recovery. Nothing in this section shall preclude its enforcement by the California Division of Labor Standards Enforcement. (b) The Agency shall include a requirement for compliance with the policy for projects which are subiect to the prevailing wage requirement in any Disposition and Development Agreements, O~xaaer Participation Agreements where the City is providing a financial benefit to the owner, lease agreements, or sale agreements. In addition, no Agency funds shall be paid nor shall the proceeds of any bond issuance be released for projects subject to the prevailing svage requirement until the person undertaking the proiect has executed a written agreement to comply with this policy. 10. INTERPRETATION OF POLICY. Where the application of this policy in a given circumstance is unclear, the Executive Director of the Redevelopment Agency may refer to statutes, regulations and precedents that apply to the determination and payment of prevailing wages on public xvorks projects of public agencies in California, and base a determination on the mostly nearly applicable rule. C:~MODEM~REVAI LI.WG E 4