Memo from City Attorney to City Council Regarding Enforceability of Agreements in Conflict with Alameda Point Initiative, December 17, 2009

Excerpt:

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;

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;

Inconsistent terms in any other negotiated agreement (such as a Disposition and Development Agreement, or "DDADisposition and Development Agreement") 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,