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All lot line window agreements shall comply with the following requirements:
1. The building to which the agreement relates shall comply with the Building Code and all other applicable codes, ordinances and regulations of the City and with all applicable federal and State laws and regulations.
2. The building shall be constructed or remodeled in conformity with the plans and specifications submitted with the application for a lot line window agreement and shall be used for the purposes stated in the application.
3. The agreement shall be terminable at any time, with or without cause and without penalty, by either party. The termination will not be effective, however, unless the terminating party gives at least 90 days prior written notice of termination which is mailed or delivered to the other party. The notice of termination shall contain the legal descriptions of both properties and shall be acknowledged by the terminating party. The notice of termination may be recorded by either party at any time and, after the termination date, the recorded notice shall be conclusive proof of termination of the agreement.
4. The building owner shall agree that, in the event the agreement is revoked, the openings consented to by the agreement shall be protected or closed, as required by the Building Code, and the building otherwise modified as may be necessary to comply with those Building Code requirements that become applicable because of protecting or closing the openings.
5. The building owner shall indemnify the City, its officers, employees and agents, against all liabilities that may result from or be connected with the agreement.
6. During the life of the agreement, the building owner shall maintain comprehensive personal liability insurance with limits satisfactory to the Risk Manager of the City and with the City, its officers, agents and employees named as additional insureds.
7. The agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns.
8. The agreement shall be executed by both parties and shall contain the legal descriptions of both properties. The Director of Property shall execute the agreement for and on behalf of the City, provided the agreement has been previously approved by the City Attorney and the head of the department having jurisdiction over the City's Real Property. The agreement shall be acknowledged by both parties and the Director of Property shall cause the agreement to be recorded.
(Formerly Sec. 23.29; added by Ord. 559-85, App. 12/27/85; amended and renumbered by Ord. 15-01, File No. 001965, App. 2/2/2001)
The application fee which is to accompany each application shall be $2,500 unless changed by appropriate action of the Board of Supervisors. If the Director of Property determines, after his investigation of the application, that the application fee is inadequate to cover the cost of preparing and processing an agreement, the Director of Property shall notify the building owner of the additional amount that is required. The additional amount shall be paid by the building owner as a prerequisite to preparation and processing of an agreement by the Real Estate Department.
The Real Estate Department is authorized to collect the fees due under lot line window agreements and shall deposit such fees to the credit of the department having jurisdiction over the City's Real Property.
The application fees and any additional amounts required to cover the cost of preparing and processing agreements shall be deposited to the credit of the Real Estate Department.
(Formerly Sec. 23.30; added by Ord. 559-85, App. 12/27/85; amended and renumbered by Ord. 15-01, File No. 001965, App. 2/2/2001)
Findings and Declarations. | |
Definitions. | |
Policy, Requirements and Procedures to Minimize Labor/Management Conflict When City Has Proprietary Interest. | |
Scope and Exemptions. | |
Enforcement. | |
Effective Date and Application. | |
Severability. |
(1) In the course of managing Real Property that it owns or in otherwise carrying out its functions in the public interest, the City and County of San Francisco (hereinafter "City") occasionally participates in Real Property development as a landlord, proprietor, lender or guarantor, facing the same risks and liabilities as other business entities participating in such ventures. For example, the City sometimes Leases its Real Property under a percentage Lease, or otherwise invests or pledges its resources in real estate development projects as a landlord, a lender or a guarantor. When it does, the City has an ongoing proprietary interest in that development, and, thus, has a direct interest in its performance.
(2) In such situations, the City must make prudent business decisions, as does any private business entity, to ensure efficient and cost-effective management of its business concerns, and to maximize benefit and minimize risk. One of those risks is the possibility of labor/management conflict arising out of labor union organizing campaigns. Such conflict can adversely affect the City's investment in real estate developments or other circumstances in which it has a proprietary business interest by causing delay in the completion of projects, and/or by reducing revenues or increasing costs of the project when they are completed.
(3) These risks are heightened in the hotel and restaurant industry because they are so closely related to tourism-a mainstay of San Francisco's economy. Labor strife in hotel or restaurant projects in which the City is an investor or other economic participant can jeopardize the operation of related tourist and commercial facilities, as well as the City's national reputation as a tourist and convention destination. To minimize that risk in circumstances where costly labor/management conflict has arisen in the past, the City enacts this Article which requires that certain specified employers in the hotel and restaurant industry shall agree, as a condition of the City's economic involvement in a hotel or restaurant project, to nonconfrontational and expeditious procedures by which their workers can register their preference regarding union representation.
(4) A major potential source of labor/management conflict that threatens the economic interests of the City as a participant in development projects is the possibility of economic action taken by labor unions against employers in those developments when labor unions seek to organize their workers over employer opposition to unionization. Experience of municipal and other investors has demonstrated that organizing drives pursuant to formal and adversarial union certification processes often deteriorate into protracted and acrimonious labor/management conflict. That conflict potentially can result in construction delays, work stoppages, picketing, strikes and more recently, in consumer boycotts or other forms of "corporate campaigns" that can generate negative publicity and reduced revenues that threaten the interests not only of the immediate "target" of such tactics, i.e., the employer, but of other investors in the development, and also the City's special interests identified herein.
(5) These risks of potential labor/management conflict are particularly acute when labor unions seek to organize workers in hotels and restaurants, as labor relations in the hospitality industry in San Francisco have proven especially contentious, and have resulted in many protests, boycotts and other activities which have disrupted the business of the hotel or restaurant and the tourist industry and the downtown hotel area.
(6) In view of these concerns, the City deems it necessary to approach with great caution any economic participation in a hotel or restaurant project if the City retains a proprietary interest, either as landlord, lender or guarantor. The City finds that cautionary approach to be particularly appropriate given other possible factors present in such developments, such as the City's sometimes special proprietary interests or other special concerns identified herein, and/or their complex financing schemes, the possible use of scarce land resources, as well as the dependence of such projects on public "good will" and the special vulnerability of such projects to consumer boycotts, etc.
(7) One way to reduce the City's risk where it has a proprietary interest in a hotel or restaurant project is to require, as a condition of the City's investment or other economic participation, that employers operating in the hotel or restaurant project agree to a lawful, nonconfrontational alternative process for resolving a union organizing campaign. That alternative process is a so-called "card check," wherein employee preference regarding whether or not to be represented by a labor union to act as their exclusive collective bargaining representative is determined based on signed authorization cards. Private employers are authorized under existing federal law to agree voluntarily to use this procedure in lieu of NLRB-supervised election procedures.
(8) The Board of Supervisors finds based on local history that compliance with these procedures will help reduce the possibility of labor/management conflict jeopardizing the City's proprietary interest in a hotel or restaurant project. To ensure that card check procedures are required only to the extent necessary to ensure the goal of minimizing labor/management conflict, an employer who agrees to such procedures and performs its obligations under a card check agreement will be relieved of further obligation to abide by those procedures if a labor organization engages in economic action such as striking, picketing or boycotting the employer in the course of an organizing drive and at a site covered by this Article.
(9) The sole purpose of this Article is to protect the City's proprietary interest in a particular hotel or restaurant project covered hereby. This Article is not enacted to favor any particular outcome in the determination of employer preference regarding union representation, nor to skew the procedures in such a determination to favor or hinder any party to such a determination. Likewise, this Article is not intended to enact or express any generally applicable policy regarding labor/management relations, or to regulate those relations in any way, but is intended only to protect the City's proprietary interest in certain narrowly prescribed circumstances where the City commits its economic resources and/or its related interests are put at risk by certain forms of labor/management conflict.
(Formerly Sec. 23.31; added by Ord. 6-98, App. 1/16/98; amended and renumbered by Ord. 15-01, File No. 001965, App. 2/2/2001)
For purposes of this Article, the following definitions shall apply:
(1) "Card check agreement" means a written agreement between an employer and a labor organization providing a procedure for determining employee preference on the subject of whether to be represented by a labor organization for collective bargaining, and if so, by which labor organization to be represented, which provides, at a minimum, the following:
(a) Determining employee preference regarding union representation shall be by a card check procedure conducted by a neutral third party in lieu of a formal election;
(b) All disputes over interpretation or application of the parties' card check agreement, and over issues regarding how to carry out the card check process or specific card check procedures shall be submitted to binding arbitration;
(c) Forbearance by any labor organization from economic action against the employer at the worksite of an organizing drive covered by this Article, and in relation to an organizing campaign only (not to the terms of a collective bargaining agreement), so long as the employer complies with the terms of the card check agreement;
(d) Language and procedures prohibiting the labor organization or the employer from coercing or intimidating employees, explicitly or implicitly, in selecting or not selecting a bargaining representative.
(2) "City contract" means a Lease, management agreement, service agreement, loan, bond, guarantee, or other similar agreement to which the City is a party and in which the City has a proprietary interest.
(3) "Collective bargaining agreement" means an agreement between an employer and a labor organization regarding wages, hours and other terms and conditions of employment of the employer's employees. For purposes of this Article, a collective bargaining agreement does not include a card check agreement as defined herein.
(4) "Developer" means any person, corporation, association, general or limited partnership, limited liability company, joint venture or other entity which does or which proposes to purchase, Lease, develop, build, remodel or otherwise establish a hotel or restaurant project.
(5) "Economic action" means concerted action initiated or conducted by a labor union and/or employees acting in concert therewith, to bring economic pressure to bear against an employer, as part of a campaign to organize employees or prospective employees of that employer, including such activities as striking, picketing, or boycotting. A lawsuit to enforce this Article is not "economic action."
(6) "Employer" means any developer, manager/operator or subcontractor who employs individuals in a hotel or restaurant in a hotel or restaurant project.
(7) "Hotel or restaurant project" means a development project or facility in which the City has a proprietary interest and which contains a hotel or restaurant. For purposes herein a "hotel" shall mean any use or facility falling within either definition of Section 314.1(g) or (h) of the San Francisco Planning Code. For purposes herein a "restaurant" shall mean any facility that has as its principal purpose the sale of food and beverage for primarily on-site consumption, including any such facility operating within or as part of another facility, such as a stadium, hotel or retail store. A hotel or restaurant project, as defined herein, includes a mixed-use development project in which the City has a proprietary interest which contains a hotel or restaurant, regardless of whether the City's proprietary interest is in the hotel or restaurant portion of such mixed-use development or the mixed-use development project as a whole. Notwithstanding the foregoing or anything else contained herein, the requirement in this Article that an employer enter into a card check agreement shall apply only to those employers who employ employees in a hotel or restaurant and shall not apply to those portions of a mixed-use development project which do not contain a hotel or restaurant.
(8) "Labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
(9) "Manager/operator" means any person, corporation, association, limited or general partnership, joint venture or other entity (including a developer) that operates or manages a hotel or restaurant in a hotel or restaurant project, or provides any material portion of the services provided by such hotel or restaurant in a hotel or restaurant project, whether by subcontract or City contract.
(10) "Proprietary interest" means any nonregulatory arrangement or circumstance in which the financial or other nonregulatory interests of the City in a hotel or restaurant project could be adversely affected by labor/management conflict or consumer boycotts potentially resulting from a union organizing campaign, in the following circumstances:
(i) The City receives significant ongoing revenue (such as rent payments) under a Lease of Real Property owned by the City for the development of a hotel or restaurant project, excluding government fees or tax or assessment revenues, or the like (except for tax revenues under the circumstances specified in (ii)); or
(ii) The City receives ongoing revenue from a hotel or restaurant project to pay debt service on bonds or loans provided by the City to assist the development of such hotel or restaurant project (including incremental tax revenues generated by the hotel or restaurant project or the development project in which it is located and used, directly or indirectly, to pay debt service on bonds or to repay a loan by the City where the proceeds are used for development of that hotel or restaurant project or the development project in which it is located);
(iii) The City has agreed to underwrite or guarantee the development or operation of a hotel or restaurant project, or loans related thereto.
In addition to the circumstances described in (i)above, the City shall be deemed to have a proprietary interest in a hotel or restaurant project if the City determines or an interested party demonstrates prior to the effective date of the subcontract or City contract pursuant to which a hotel or restaurant will be operated in a hotel or restaurant project that there is a significant risk that the City's financial or other nonregulatory interest in a hotel or restaurant project could be adversely affected by labor/management conflict or consumer boycotts potentially resulting from a union organizing campaign except that no circumstance or arrangement shall be considered "financial or non-regulatory" under this definition if it is such that arises from the exercise of regulatory or police powers such as taxation, (except as provided in (ii) above), zoning or the issuance of permits and licenses.
(11) "Subcontract" means any Lease, sublease, management agreement or other similar agreement between a developer or a manager/operator and a subcontractor which contemplates or permits the subcontractor to operate or manage all or a portion of a hotel or restaurant in a hotel or restaurant project.
(12) "Subcontractor" means any person, corporation, association, limited or general partnership, limited liability company, joint venture or other entity that enters into a subcontract with a developer or manager/operator.
(13) "Substantial amendment" to a Pre-Existing Agreement, for purposes of the exemption for Employers operating before the effective date of this Chapter in Section 23.53(b)(2) and Section Two of Ordinance No. 108-99, means an amendment to or renewal or extension of a Pre-Existing Agreement that provides for or permits any of the following:
(a) A change in use within the scope of this Article (i.e., which provides for the operation of a hotel or restaurant);
(b) An increase in square footage, seating or rooms of more than 25%; except neither of the following, by themselves, shall constitute a substantial amendment:
(i) Addition of outside seating or patio dining which increases the total seating or square footage devoted to seating by less than 25%;
(ii) An increase in space for purpose of parking or storage; or
(c) A new Lease period of greater duration than the period provided in the Pre-Existing Agreement.
(Formerly Sec. 23.32; added by Ord. 6-98, App. 1/16/98; amended by Ord. 108-99, File No. 990298, App. 5/7/99; amended and renumbered by Ord. 15-01, File No. 001965, App. 2/2/2001)
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