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SunCal Promises on Measure B Not Enforceable

An analysis by the Alameda City Attorney shows that SunCal’s promises about negotiated agreements to modify Measure B are not legally enforceable.

The analysis, reflected in a December 17, 2009 letter to City Council and accompanying spreadsheet shows that the Development Agreement included in the February 2, 2010 Measure B ballot initiative would likely trump any attempts to mitigate the negative fiscal impacts to the City through a negotiated Disposition and Development Agreement (DDA) after the election.

The summary and the letter are included below.

Question: Can the City and SunCal enter into a legally binding agreement prior to the February 2, 2010 election date, in order to mitigate the fiscal impacts identified by the City in the Alameda Point Development Initiative Election Report Executive Summary?

Answer: No. It is not legally possible for the City and SunCal to enter into a binding and enforceable agreement to mitigate the fiscal impacts identified by the City prior to the February 2, 2010 election date because such an agreement would require compliance with the California Environmental Quality Act (CEQA), and the CEQA analysis of the project will not have been completed prior to the February election date.

Conclusion: Before the February 2, 2010 election, it will not be possible to enter into any enforceable agreement because no prior environmental review will have been completed;

Question: If the Initiative passes, can the Development Agreement in the Initiative be amended and if so, under what process?

Answer: Assuming the Initiative is adopted by a majority of voters on February 2, 2010, the Development Agreement within the Initiative can be amended only by a subsequent initiative or by an application brought by the developer; however, the developer cannot increase the square footage of commercial development, increase the number of housing units or eliminate or reduce the developer’s obligation to fund the public benefits described in the Initiative.

Conclusion: After the election (and assuming voter-approval), SunCal may amend the Development Agreement if it chooses to do so; However, SunCal will control whether and when it would seek such a amendment and it should not be assumed that any developer would voluntarily relinquish fiscal and other benefits gained from a voter-approved Initiative;

Question: If the Initiative passes and the City and SunCal enter into subsequent agreements that conflict with the Development Agreement in the Initiative, which agreement would control–the Development Agreement or the subsequent agreement’s)?

Answer: Assuming the Initiative is adopted by a majority of the voters on February 2, 2010, the Development Agreement likely would control in the event of conflicting terms in any other agreement entered into by the City and SunCal subsequent to election.

Conclusion: Inconsistent terms in any other negotiated agreement (such as a Disposition and Development Agreement, or “DDA”) may be required to be resolved in favor of the terms in the Development Agreement. Accordingly, although the City and SunCal could negotiate a DDA to mitigate the impacts identified in the Election Reports, SunCal also would have to amend the Development Agreement in order to assure consistency and enforceability a of any such negotiated terms,

Legal Enforce Ability SunCal

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