requirement to do so. supervisor campos: i am wondering if there is case law the city attorney is basing that opinion on. my reading of it is different. just a quick question along the same lines. does the city attorney's office consider these substantive changes? >> we often use the word "substantive" as a term of art when we are talking about making changes that might trigger additional review under the brown act ort sunshine act. i would not say they are substantive for this purpose. certainly, there are substantial changes here. supervisor campos: i guess i am trying to understand. what is the level of change or substance that is needed for

there to be a trigger of additional input? i am just trying to understand why a set of changes that into a hot -- that intel 14 pages of dense, complicated language -- that entail 14 pages of dense, complicated language would not require additional notice. >> i would like to point out the ordinance is not being amended by any of the changes in the documents. it is an ordinance approving a development agreement substantially in the form that was filed. we spelled out divisions in the text of the ordinance we thought would be of particular concern for the board. for example, one for replacement units, one based on costa- hawkins, all the things we thought the board would be concerned bond. if one of those things were to change or work to change in the

text of the ordinance before you, that could require noticing. but what you have in front of you is an ordinance that approves a development agreement substantially in the form of the board file. it is contemplated that the board might want to make changes or talk about changing. if the board and the developer agree upon those changes, it is appropriate for those changes to be made to the development agreement, as has been done in other major development deals. most importantly, the shipyard redevelopment project -- a number of changes were made before the board at the hearing. the important distinction here is we are making changes to an underlying document that is in the board file. there is a form of a delegation substantially in the form. for purposes of sunshine

noticing and brown records of this and, anybody who has been following this project would be familiar, and it would be reasonable to expect that these are the kind of changes that might be asked of the board at this meeting. supervisor campos: i am not going to go back and forth. i think i get the point. i think a statement that anybody who has been following this project would know this type of changes could be made -- i think there are a number of people in the audience who would disagree with that statement. but let me say this. i actually think that explanation is probably complicating things more and confused me more than it did help me. for the record, i do believe that we are running afoul of the laws that govern how these kinds of matters should be handled. i do not think it is appropriate for us to take action on the

kinds of substantive changes that have been made, is respected of what we think about the substance of those changes -- irrespective of the substance of those changes. the fact that parties have agreed does not affect compliance or non-compliance with public meeting laws. the fact that we may have done something with respect to another matter in the past does not change what we are required to do legally in this case. i still do not understand the answer. the first deputy city attorney who spoke about it records these changes as both non-substantive and substantive. make of that whatever you can. for the record, i do think this is a problem. thank you. supervisor weiner: thank you.

i will be supporting the eir and i also want to thank supervisor elsbernd for his work and supervisor chiu for his work in strengthening the provisions. this project points to an unfortunate tension in california between rent control and new development that to make it challenging to maintain affordability will you also meet the future housing needs of a growing state and city. i believe that this project addresses that tension and the so admirably. when you look at some of the arguments being made against it,

that would be the trinity project and instead of what we're seeing happening, some of the real improvements in the neighborhood we are in right now, we would have johnson building there. this is not just about trinity. this is about the future of housing and planning for the future of san francisco and providing the amount of housing that we need in the future. if we are going to take the position that some of our opponents want us to take, then i think that will have dramatic ramifications for the future of housing in san francisco. nothing in life is 100% certain. from everything i have heard, we have a very compelling argument that this development agreement will be enforceable. thank you to president chiu, so

-- if something happens that i cannot think will happen, i understand that they think in light can happen. this is quite solid and i will support it. i have had some concerns about rent-controlled and i believe they have been addressed. this was a model project in terms of what we all think universally about good urban planning. it is for the entire neighborhood. terrific public spaces and preserving the affordability of these units. and to achieve in the equity in terms of concentrating all new density in my district. and supervisor kim's district and supervisor campos' district.

i also wanted to address the concern that campos raised about the nature of the changes and whether it would require a continuance. the development agreement already addressed this topic, how to strengthen rent control protection in a very significant way. what president chiu's additions did worse -- were simply to strengthen that. it did not go beyond strengthening what was already there. the opponents of this project, their opposition is fundamental. i completely and utterly respect that opposition. these changes, they are not going to change the dynamics of this project. those dynamics are what they are. i believe that we should

proceed today and we do not need to continue the matter. thank you. >> thank you, supervisor. >> i just wanted to direct a couple of question to the city attorney's office. to the city attorney and to mr. sullivan the intents of the changes i made were to strengthen rent-controlled for the attendants. if you could summarize for everyone, what those protections are that are laid out currently in the development agreement that would insure in force -- enforcability. i want you to give an idea of how strong you think the enforcement is and what protections exist in case this happens.

>> thank you, president chiu. i spoke this morning. i am going to summarize some of my words. i will first talk about what is in the development agreements. we will have to answer additional questions about any specifics. he generally does not allow cities to impose rent control. there are three exceptions to that rule. one of them is when rent control is included in a contract with a public agency. that language has banned in the development agreement for a long time. we have cited all of the reasons we believe we fall within that exemption. we have the developer a greeting

in a separate letter that they are providing. it would not be possible to develop this project. it would not be financially feasible without these forms of assistance. this was created by the assistants case. and that recognizes under the ellis act the cost. that case in the exception provides that when rent- controlled agreements are demolished under the ellis act that they can be imposed within five years. that is currently within the san francisco rent ordinance. we talked about how those would apply in this instance. we have the potential strengths and weaknesses of those. in the development agreement, we have added a number of

provisions for the rent control provisions including establishing the clear intent of providing when the city would not enter in that without rent control protections. two, giving the attendance the private right to enforce the it rent-controlled provisions. we have included the requirement that the rent control provisions be added into each lease with each tenant that occupies the replacement unit. that reiterates all of the protections. i am reading this off of the last. -- list. number 4 is the requirement that the rent control provisions be controlled in the assumption

agreement so that if be read controller transfers this, they transfer the rights and obligations under the agreement. that agreement must be consented to end signed by the city. we will have a direct contractual pricy by the owner. the amendments introduced by supervisor chiu this morning include specific contract remedies. they spell out specific rights of termination. liquidated payment amounts and giving the city the right of first refusal to rent these apartments for the right of the city or the designee. i have already mentioned the opinion letter. i have received this from the

developer's council. there is another one you have heard about this morning. and a letter from the developer. the contracts and provisions give the strong legal position in defending the legal applicant of rent control. those arguments and provisions include three different avenues to speak to enforce the rent control provisions. they have been confirmed in writing by the developments and employers. the expressed exception under the ellis act. the court upheld this in the hawkins challenge. these parental control units are replaced within five years. third, the various contract provisions and remedies in deeper foes -- proposed

agreements. i am happy to talk about those. what we included originally was the remedy of specific performance termination. we now have and express right to terminate if there is reneging developer. if there is a situation after significant construction has begun, then there is the right for the developer to abide by the rent control provisions or pay a liquidated amount. the liquidated amount you heard supervisor elsbernd talk about. that is a citation to a cbre and the rent control is valued at $160 million. that would be the value of the units with and without rent- controlled plus 20%. the developer would be required to pay that money.

i am happy to answer any questions further. >> one follow-up to that. the development agreement includes both rent control protections and separate contractual remedies. at the suggestion was made that if it turns out that these rent control projections are struck down, it could also strike down the contractual remedies. how confident are you in the enforceability of the rent control agreement? how confident are you that the contractual remedies would be able to protect us? >> a couple of questions there. the first is the enforceability of the rent control provisions. we know they're there is a lot of case law on this.

we have included in the context of all of the bus was given you that concludes that we have a strong argument. not that we have a guarantee. you have raised the additional question, which is if the court were to determine that the red control provisions are un- enforceable, mike they throw out all of the remedies? the one thing we have done in the agreement is we have made it abundantly clear that this agreement is establishing the hit -- the intent of the parties and providing for the benefit of the parties. we have done that in the context. there are a bunch of community improvements. we need to do some of the

improvements and the 19th avenue improvements of the state agency. we have included the language to say that if we do not that third-party approval, we will maintain the benefit of the park and of both parties. in this case with respect to the rent control provisions, we have added the same kind of language. we need to maintain the benefit of the bargain of the parties. the express language about stopping all development and relocations and demolitions if we are in this land where somebody is challenging the rental agreement until the matter is worked out. it is unlikely that a court will determine that the protections and the remedies should be eliminated. the developer still has the

right to pursue under this agreement. >> thank you. >> thank you. >> thank you, mr. president. i just wanted to thank the city for the clarification. i do want to thank all of the folks that have been involved. it is not an easy topic. a lot of people have very strong positions on it. in terms of rent control units, from everything i have heard whether it is the development agreement or the additional amendments proposed by supervisor chiu, and all speaks to a desired and concerted effort from the city's side and developer'aside to maintain those units. we have heard that throughout this project -- this process. i am very appreciative of the provisions that were added in there.

the other things that were mentioned in passing, but i do want to publicize that i am appreciative of is the staging proposed by supervisor chiu that really was not something that was drawn out. this was for as long as possible to allow 15-20 years to allow people to stay in those units. this may not be something that people think is important. people talk about the importance of their garden and what that space has meant to them. this is a very significant improvement. we will be maintaining those units as long as possible. it is a big change from the first time we heard it to this meeting. i know we still have to go through the environmental impact assessment before we go through the development agreements and other documents.

one of the things that this most attractive to the other projects is the ability for us to master plan on this project. this is cognizant of where we are going in terms of transportation and how the community can be structured. one of the biggest things i see in my district is the impact of these big corridors. in all indications, we are only going to see that number grote, even without the development of this project. this allows the city to go forward and not only for the city to make big investments in the infrastructure on the western side of the city, but make sure that the developer also puts money into making some of those changes possible. part of that is land acquisition agreements. this is a really big point to make.

we may not be thinking about it now. can you imagine 15, 20, 30 years from now if we were ever able to build an extension, what that would mean for the west side of the city and san francisco. this is a part that is very attractive and compelling to me. i know that we are going to be voting on the possibility of a continuance. i know we will be voting on the amendments. i would keep some of these items in mind as we go forward. >> colleagues, if there is no further discussion, we can entertain a motion between three and five, supervisor elsbernd. supervisor elsbernd: i will move to item three and table items four and five. >> on the motion to move to item three f table four and five.

supervisor avalos: no. president chiu: aye. supervisor chu: aye. supervisor cohen: aye. supervisor elsbernd: aye. supervisor farrell: aye. supervisor kim: no. supervisor mar: aye. supervisor mirkarimi: no. >> there are 6 ayes and 5 nos. >> me motion succeeds. we will return to the items. items number 25-28. roll-call. >> on item 25-28. supervisor wiener: aye. supervisor avalos: no.

supervisor campos: no. president chiu: aye. supervisor chu: aye. supervisor cohen: aye. supervisor elsbernd: aye. supervisor farrell: aye. supervisor kim: no. supervisor mar: no. supervisor mirkarimi: no. >> there are 6 ayes and 5 no's. madame clerk, could you please call item six-eight? >> that is affirming the

planning department's project that the at&t lightspeed project is exempt from environmental review. item seven is reversing the and marmot to review. item eight is the direction of the appropriation of funding. supervisor wiener: mr. president, i move to delay consideration of item 6, 7, and 8 until we consider 21 and 22, in other words, a short delay in consideration of the appeal. i want this to occur after the ceqa hearing. >> any objections about hearing the at&t items after the 4:00 appeal? why do we not hear item 9?

>> going to the budget committee without recommendation. this is adding a new section to add a payroll expense for the proportion of an eligible person's payroll expense that is eligible for stock-based compensation. >> any discussion? roll-call vote. supervisor wiener: aye. supervisor avalos: aye. supervisor campos: aye. president chiu: aye. supervisor chu: no. supervisor cohen: aye. supervisor elsbernd: no. supervisor farrell: no. supervisor kim:aye. supervisor mar: aye. supervisor mirkarimi: aye.

>> there are 8 ayes and 3 no's. >> the ordinance is passed. >> taking money from the public lies -- public library preservation fund for the litigation expenses in fiscal year 2010-11. >> roll call vote. supervisor wiener: ayue. supervisor avalos: aye. supervisor campos: aye. president chiu: aye. supervisor chu: aye. supervisor cohen: aye. supervisor elsbernd: aye. supervisor farrell: aye. supervisor kim: aye. supervisor mar: aye. supervisor mirkarimi: aye. >> there are 11 ayes. >> this ordinance passes.

>> this is amending the environmental code on how to say is fully get rid of the unused portion. >> this ordinance is finally passed. item 12. >> amending the government to conduct code to allow the former mayor to have a full-time city employment within one year after leaving office. >> this item is finally passed. >> item 13 has surplus revenues to support shortfalls in the department of health in the amount of approximately $25.9 million. this ordinance is passed on the first reading. >> item 14, the resolution approving the lease agreement of the san francisco international airport. >> this resolution is adopted.

>> item 15, the resolution approving the amendment won for the food and beverage of these for the city. >> this resolution is adopted. >> item 16 is a resolution approving an agreement with the nonprofit owners associated with the profit based district known as the ocean avenue commercial benefits district. this resolution is adopted. >> the ordinance amending the general plan by adopting the 2009 housing element and the priority policies of the planning code. president chiu: ladies and gentlemen, if you could please leave the chamber if you would like to carry on a conversation. like to carry on a conversation. if you could keep the do