|
12. Developer shall carry out the construction through completion of the
<br />Project and the overall development of the Site in conformity with all applicable federal, state
<br />and local labor laws and regulations, including, without limitation, if applicable, the
<br />requirements to pay prevailing wages under federal law (the Davis Bacon Act, 40 U.S.C.
<br />Section 3141, et seq., and the regulations promulgated thereunder set forth at 29 CFR Part 1
<br />(collectively, "Davis Bacon")) and California law (Tabor Code Section 1720, et seq.).
<br />Notwithstanding the foregoing, (a) the Agency hereby acknowledges and agrees that nothing in
<br />this Agreement (or any of the documents entered into by the Agency and the Developer in
<br />connection with the transactions contemplated by this Agreement) is intended to impose on the
<br />Developer, contractually or otherwise, the obligation to pay prevailing wages under federal, state
<br />or local law, and (b) the Agency hereby represents and warrants to the Developer, its successors
<br />and assigns, that all funds used by the Agency in connection with this Agreement and the
<br />transactions contemplated hereby, including, without limitation, funds used and to be used by the
<br />Agency to acquire each and every component of the Site, funds used and to be used to pay for
<br />relocation and demolition of existing improvements on the Site, funds used and to be used to
<br />fund the Agency Loans and funds used and to be used to fund Homebuyer Assistance Loans,
<br />solely constitute moneys from a Low and Moderate Income Housing Fund established pursuant
<br />to Section 33334.3 of the California Health and Safety Code, all within the meaning of
<br />Section 1720(c)(4) of the California Labor Code. The Agency understands and agrees that the
<br />Developer will materially rely on the foregoing warranties in its determination as to whether
<br />prevailing wages are required pursuant to California law or Davis-Bacon. The parties
<br />acknowledge that a financing structure utilizing certain federal and/or state funding sources and
<br />financing scenarios not otherwise identified herein may trigger compliance with applicable state
<br />and federal prevailing wage laws and regulations. The applicability of federal, state and local
<br />prevailing wage laws will be determined based upon the final financing structure and sources of
<br />funding of the Project, as approved by the Agency Executive Director.
<br />The Developer shall be solely responsible, expressly or impliedly and legally and
<br />financially, for determining and effectuating compliance with all applicable federal, state and
<br />local public works requirements, prevailing wage laws, labor laws and standards, and, except as
<br />provided above, neither the Agency nor City makes any representation, either legally and/or
<br />financially, as to the applicability or non-applicability of any federal, state and local laws to the
<br />Project, either onsite or offsite. The Developer expressly, knowingly and voluntarily
<br />acknowledges and agrees that neither the Agency nor City have previously represented to the
<br />Developer or to any representative, agent or Affiliate of Developer, or any contractor(s) or any
<br />subcontractor(s) for the construction or development of the Project, in writing or otherwise, in a
<br />call for bids or otherwise, that the work and construction undertaken pursuant to this Agreement
<br />is (or is not) a "public work," as defined in Section 1720 of the Labor Code or under Davis
<br />Bacon.
<br />The Developer knowingly and voluntarily agrees that the Developer shall have
<br />the obligation to provide any and all disclosures or identifications as required by Labor Code
<br />Section 1781 and/or by Davis Bacon, as the same may be amended from time to time, or any
<br />other similar law or regulation. If and only if the representation and warranty provided by the
<br />Agency to the Developer in this Section 12 remains true, correct and complete in every respect,
<br />the Developer shall Indemnify, protect, pay for, defend and hold harmless the Agency, the City
<br />and their respective officers, employees, agents and representatives from and against any and all
<br />ATTACHMENT NO. 3-7
<br />DOCS00 1400673v 141200272.0001
|