city attorney. >> the development agreement is a contract. there is legislation approving it. the board of supervisors cannot amend contracts. the board can vote them up or down. the only way a contract can be amended before approval of the board would be for both sides to be party to the agreement, to enter into a new agreement with new terms and then submit that to the board for approval. technically, the board does not have the ability to actually amend the document without the consent of the parties. supervisor mirkarimi: a response? supervisor avalos: i could possibly request a continuance for the greater discussion on the amendment, which i think is a valid amendment to consider. supervisor mirkarimi: madam city

attorney, there could be an amendment to the legislation, if not the development agreement, correct? >> the legislation approving the development agreement could be amended, but it could not be amended to impose terms on the parties that would be binding on them. supervisor avalos: so vacancy rent control would be amending the terms of the agreement? >> if the parties both agreed to those terms, you would accept an amended agreement and the legislation would not need to be amended. supervisor avalos: without that agreement, no? supervisor mirkarimi: what is think about that, supervisor, and we will go to a couple other speakers. supervisor elsbernd: a couple things. i want to respond to supervisor avalos, but first to supervisor campos. thank you for the intellectual

honesty in saying you would have opposed the trinity project. that surprised me. i apologize for my reaction. i hope you will continue to vote against any projects that approve below-market units. the legal argument you are making to argue this legal agreement is invalid is the same one you should be making to all other projects, based on the city attorney's opinion. it was the exact same costa- hawkins question. not only is it comparable to trinity. it is comparable to any other project anywhere in san francisco that includes bmr units. you were sent to an -- you are saying to any tenant in those units that it is legally questionable. i hope you continue forward with any other project that includes one bmr unit or thousands. it is the same law.

to supervisor avalos, i assume you know the value of the rent control subsidies already offered is $160 million. i am betting you do not know the value of the amendment you are offering care. i do not think any of us know. but it is not going to be $160 million. it is going to be significantly more. i think we also know the developers are not going to say yes. it is a nonstarter. it destroys the entire project. let us not put on a sure way that this is an amendment that is coy to help move the -- not -- let us not put on a sure raid -- a charade that this is an amendment that is going to help move the project forward. superivsor mar: in a to three for our land use committee

meeting this morning, we heard -- in a three to four hour land use committee meeting this morning, we heard pages of amendments from president chiu to increase rent control protections for the unit's scheduled to be demolished. i will say i think the planning department staff and others have put together a wonderful project on paper that really is a sustainable eco-city in some ways, meeting our city and regional housing needs. i appreciate the efforts to protect rent control units and to offer power units to existing garden apartment residents. i also really appreciated the community hubs that are created within walking distance, and a lot of the sustainable planning that went into the project. but when it comes down to it, my visit to parkmerced and my history of working at san

francisco state for 28 years, often being around the community there, i do see it as a viable, vibrant community with shared backyards and space. i feel very strongly that like someone said in the hearing this morning, the demolition of those 1538 units is equivalent to clear-cutting a community, and existing place where families have grown up for generations. my visit to several houses and beautiful garden apartments, the human side of what we are doing to this development -- without considering and non-demolition alternative is a tragedy. i strongly support the appeal to look more closely at other alternatives. i want to see stronger language and protections of the rent control. i would like to seek a continuance so we can look more

carefully at the 14 pages of amendments president chiu has offered. i will be moving to continue this item to look more closely. supervisor mirkarimi: it has been mentioned several times on the question of continuance, just looking over certain notes that should remind us that we are at the deadline of being able to consider this plan. it is not at the deadline the general plan amendment texan. is that correct? >> the board has 90 days to affirm or reject a general plan amendment, after which point the general plan amendment would go into effect. one of the number of a dislike of items that make up this project is a general plan amendment. today is the last regular board meeting for the board to reject that general plan amendment.

supervisor avalos: i want to propose my amendment. it does not make the project go away. it mitigates displacement. i have a question for the city attorney about the difference between what i have proposed here and what was adopted today as amendments this morning. deputy city attorney cheryl atoms? -- adams? the question is the amendment i offered here, how that differs from the amendments that were adopted this morning in committee. those amendments adopted this morning did not have a mutual agreement from the different parties that were involved in the agreement.

>> i will ask charles sullivan to address that. >> the amendments were actually discussed and agreed upon by the developers. the point of what sherrill said earlier -- cheryl said earlier is that this was a contract. the board can condition approval of that contract. they cannot force the developer to address those -- to accept the changes. it would require that the developer consent to change the contract, ultimately. the question is are the changes being proposed something the developer would accept. if not, the board could pass a resolution approving an agreement that never enters into. supervisor avalos: since the developer has already accepted that agreement -- >> the developer discussed the changes introduced by president chiu and agreed to those. supervisor avalos: and on the

tenants side, they do not have a say? >> we are entering into an agreement with the developer, not the tenants. supervisor avalos: that is some catch-22. supervisor campos: let me first of all respond to supervisor elsbernd. that is one of the fun things about having all of these lawyers on this board. for me, in terms of deciding the level of risk or uncertainty that one is willing to take, we have to listen to the tenants to have been exposed to that risk. we have heard through discussions with the tenants that they are not willing to take this level of risk. granted, maybe others are more than willing to do that. i do have a question for the

city attorney's office, if i may, through the chair. we have 14 pages of amendments that have been introduced, very sensitive and substantive amendments. i am trying to understand from a public notice perspective what the propriety of us in voting on these amendments is, given that under the brown act, for instance, you have to give a reasonable person reasonable notice of what it is we will be voting on, the notice for this meeting for items relevant to this matter. it does not say anything about the kinds of changes that have been proposed. i am starting to understand legally the appropriateness of voting on these items. >> deputy city attorney cheryl adams. the notice is very broad.

it discusses the development agreement and defines the project. while there are a number of changes proposed, all of those changes, from a notice in perspective, are covered by this notice, such that the board would not need to take additional public comment. certainly, the board can take additional public comment, if that is the desire. but there is not a legal 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 thasome 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.