Home » Eve Pearlman

Eve Pearlman: How do you solve a problem like the Point?

Submitted by on 1, January 15, 2010 – 6:00 am36 Comments

Photo by Jan Watten

Photo by Jan Watten

Second of two parts (Part one)

I have been thinking about Measure B and pondering what to do in the voting booth. As best I understand it, we’re being asked to make three decisions.

1. To modify Measure A for the land at Alameda Point only. (Remember that A is an amendment to the city’s charter, passed in 1973, which caps new construction on the Island at two residential units per building.)

2. To approve the Alameda Point land plan. Do we like the design for the former base? Are we pleased with the mix of businesses, homes, parks, and open space?

3. To approve a Development Agreement. And here is where it gets tricky, because a DA  – though a legally permitted step which regulates some elements of a project of this magnitude – is not, as a lay person might think, the document that sets forth all the contractual nitty-gritty – timelines, financials, specifics of construction, the actual sale of the land. Those details are hashed out in a project’s Development and Disposition Agreement – an agreement that has yet to be negotiated for Alameda Point.

But to back up for a moment:  If you know you don’t want A overturned – if you know you don’t want any apartments at the Point (the merits of which I am not discussing at this moment), you’ll want to vote no on B. And if you don’t generally like this plan for base development – if you want to continue on with the western third of the Island in its present state with all the pros and cons (all, of course, up for debate in the minefield that is Alameda politics), then your vote is also easy: Vote no on B.

And you’re done! Your vote is relatively simple. See ya!

But if you are OK with amending A, and if you like the community-developed plan for the land, it is much less clear how to proceed. I have not talked to anyone who is shouting, “Yay, Measure B is perfect, top notch A-1 terrific!”

Many of the people involved in the process have in fact have said that they like the land plan – the vision for how the Point will look – and that they are OK modifying A. But they don’t like the DA which was written by SunCal and contains some nonstandard terms favorable to the developer – all of which have provided ample fodder for those who absolutely oppose modification of A and/or Point development. The DA has in fact become a central argument against B, one that has been picked up by our formerly pro-B mayor and the Alameda Chamber of Commerce.

But there is another point of view about the importance of the DA and the authority it has over the Point’s – and city’s – future. Alameda’s former Assistant City Manager, David Brandt, who was intimately involved with the project for nearly a decade, until he left in August to become City Manager of Redmond, Oregon, says the DA is not at all the end of the negotiation road and that the city does have the power to make deal terms that are favorable to the city.

“Without a DDA, SunCal doesn’t have the property and without the property, they can’t build,” said Brandt. And while there has been much debate about whether, if in conflict, the DA would trump the DDA or vice versa, the bottom line, says Brandt, is without a DDA the deal is dead. “The DA is useless unless you have the property,” said Brandt – noting it is the DDA by which the property is actually transferred. “But a lot of people don’t want to make that distinction because it doesn’t support their position.”

The exclusive negotiating agreement the city has with SunCal until July of this year doesn’t, says Councilwoman Lena Tam, obligate Alameda to anything contained in B, and if no deal has been reached when that negotiating agreement terms out, the city can walk away. “During the negotiation process the city can choose to accept or reject any of the points,” said Tam, who has also served on the Alameda County Planning Commission and worked as an engineer for Santa Clara’s Land and Property Development Department. “As with any negotiation, there is no agreement if the parties do not come to a meeting of the minds on deal points.”

Yes, it is true, Measure B offers an imperfect choice. And surely some who support the Measure B land use plan for the Point are cursing SunCal for including the DA in the initiative. But when has any ‘yay’ or ‘nay’ ever been perfect? When has any candidate for office been perfect? When has any law been perfect? And it seems to me, that if you support this vision for development, then this is not the place to look for perfection. Because if in fact perfect is allowed to be the enemy of the good, then there will never, ever be any development at Alameda Point.

“SunCal is not a bunch of wizards,” said Brandt. “They spend a lot of money on lawyers, but the city does, too. It is not an impossible task to negotiate a good deal.”

It boils down to this: If you’re OK with amending A, and you like Measure B’s land use plan for the Point, and if you think the city can negotiate a satisfactory agreement on our behalf, then vote yes on B with a clear conscience.

Eve Pearlman offers her take on Alameda’s stories, big and small, every Friday on The Island. Contact her at eve@theislandofalameda.com.


  • tim says:

    Good articles. Concise and both sides presented well. I'm a "no" man myself. =)

  • Miriam says:

    Or vote No on B because you believe that the City can negotiate a better development agreement than the one offered by SunCal.

  • Barbara Thomas says:

    Or vote No on B, because it is time Alamedans kept the profits from development for ourselves. Our staff is smart and wise enough to develop a good cost effective plan and development timetable based on the profits we are already making to develop the Point the right way.

  • Irene says:

    Reasonable minds can differ on whether a voter-approved DA would trump a DDA in a conflict. Let’s just hope that the courts won’t have to decide for us should Measure B prevail, since this arrangement is unprecedented.

  • Scott says:

    Or vote yes on B beacause doing nothing is no longer an option. The City of Alameda should be a place where families can raise their children and enjoy our beautiful scenery along the San Francisco Bay. It has been 13 years since the Navy left the base for good. When is the magic plan that people feel comfortable with going to come? Do people really want to wait another 13 years? The answer is no. People need to start preparing for the fact that measure B will be approved and that construction will begin this summer. It is time for people to Lead, Follow or Get out of the way of the redevelopment of the point.

  • Tracy Jensen says:

    Eve thanks for the thoughtful commentary. As you point out, if Measure B passes the City could "walk away" from the development in July. That may be true legally, but only if the legislators on the City Council felt comfortable ignoring the will of the voters. If the Initiative passes the development would be legitimized in a way that would make it very difficult for our Council to terminate the exclusive negotiating agreement with SunCal, regardless of what the developer does or does not do later.

    This leaves the question of whether the City or the developer would have more power to negotiate the DDA if the Initiative passes. We have heard the majority of the City Council state publicly that the developer would be calling the shots. The City Manager, the City Attorney, the Superintendent and the School District Counsel have all stated that Measure B is not in the best interests of the City or the School District. I will rely on the recommendations of elected City leaders and administrators who have been charged with accomplishing the critical base redevelopment task and vote no on Measure B.

    Looking Forward ~ Tracy Jensen

  • Allan Mann says:

    Finally…a cogent explanation of the issue that I can understand and use to make my decision in the voting both. Thanks, Eve!

  • dlm says:

    Eve: what you've done here is to give us a rubber stamped version of John Knox White's and Lena Tam's position. I wish you have spoken to people on both sides of this. I also wish that you'd spent more time on the technical isses involved in SunCal's plan for Alameda Point. In all fairness, I don't think it's entirely responsible to say, in effect, "I find this stuff too boring to read, but here's my considered endorement anyway".

    Did you have an opportunity to speak to David Brandt, or did you get an email perhaps? I'd like to know if it's possible to get in touch w/ him as well. Since you didn't mention it, I wonder, are you aware that his statements above directly contradict statements he made, at length, in Express article on this issue? I think someone should follow up on that.

    I'll post an excerpt below, but basically he said that the DDA should not be negotiated "in the shadow" of an already signed DA, and that a DA needs far more negotiation than this one got (which is none).

  • BC says:

    Good, clear article, breaking the intiative into its parts. And free of the rancor and fuzzy math that characterizes so much discussion of the issue. Thank you!

  • steve says:

    Thanks Eve. A quality write-up of Measure B, as you have provided, has been long overdue.

  • dlm says:

    Here's a brief quote from this article.


    But SunCal has taken a different route. There is only one way to adopt a development agreement without negotiation, and that is through a voter-sponsored initiative. Essentially, in the process of taking the Measure A issue to voters, the developer is attempting to bypass the usual way of doing business and seeking to set a number of its own terms.

    "It's pretty one-sided," said Assistant City Manager David Brandt. "They wrote it and it wasn't negotiated. Typically, if there was no initiative, they might have submitted a draft and we would have sent it up marked-up six ways to Sunday."

  • Eve says:

    Hi, DLM,

    You wrote:

    "Did you have an opportunity to speak to David Brandt, or did you get an email perhaps? I’d like to know if it’s possible to get in touch w/ him as well. Since you didn’t mention it, I wonder, are you aware that his statements above directly contradict statements he made, at length, in Express article on this issue? I think someone should follow up on that.

    I’ll post an excerpt below, but basically he said that the DDA should not be negotiated “in the shadow” of an already signed DA, and that a DA needs far more negotiation than this one got (which is none)."

    I spoke with Brandt at length. He said he does not like DAs in general and does not like the terms of this one specifically – and he does not like that it was drafted unilaterally. But he also emphasized that a DA is not – though it certainly does sound like it based on its name! – the agreement that governs all the details of the deal – financial, chronological and construction-related. All that happens in the DDA, and all that has yet to be negotiated. And, as I wrote, if the parties don't come to terms, there are no terms.

  • Michael Krueger says:

    The East Bay Express article contains a mixture of David Brandt's perspective and conclusions drawn by the article's author. If one looks only at what Mr. Brandt himself actually says, there is no contradiction between his statements then and now.

    For example, Mr. Brandt is quoted as saying that the city's redevelopment agency would have to negotiate a disposition and development agreement "under the sort of shadow of this whole initiative." It is the Express article's author, not Mr. Brandt, who goes on to say "that shadow could be a dark one." It seems clear from Mr. Brandt's subsequent statements that although he would have preferred for the DA to have been left out of the initiative, its presence is certainly not a "deal breaker," either.

    In other words, Measure B may not be perfect, but it's good enough. After 16 years of planning, after two failed development attempts, after a full boom-and-bust cycle in the real estate market, all without breaking ground on as much as an outhouse, now we are finally on the verge of moving forward with a comprehensive plan for re-use of the old base, a plan most Alamedans say they like. Should we throw that chance away based on the vague hope that something better will come along?

  • Eve says:

    Hi Tracy J!

    You wrote:

    "If the Initiative passes the development would be legitimized in a way that would make it very difficult for our Council to terminate the exclusive negotiating agreement with SunCal, regardless of what the developer does or does not do later."

    Which is a very interesting point – but I can't imagine the city approving a final deal that was bad, in balance, for the city, no matter the outcome of the vote on B. The message from leadership to the voters would have to be, "We know you want development at the point, but we can't come to acceptable terms with SunCal." And your argument also works the other way: if voters turn B down, how is the city swayed/pressured when it goes back to the table with SunCal? How are would city officials be positioned to negotiate a deal if with the voters' no behind them? And how does anyone know who voted no because they oppose development and who voted no only because they don't like the DA? The ramifications of the passage or rejection of B are certainly interesting to consider.

    You also wrote: "The City Manager, the City Attorney, the Superintendent and the School District Counsel have all stated that Measure B is not in the best interests of the City or the School District."

    I have not seen an official position taken by any of these city/district officials. I have heard measured/calculated language that has a message of 'we have not come to terms yet' (in the case of the district) and 'we are not sure of the ramifications of this and this and that) in the case of the city. But I have not seen a position – could be I missed it?

  • Miriam says:

    If the voters turn down B, the Council will be in a stronger position in negotiating an agreement. SunCal would then be in a weakened position with the clock running. B is a bad deal for Alameda and we can get better. There is no reason to go into negotiations with a ballot measure already under SunCal's belt. A defeat for SunCal will give the Council the leverage it needs to drive a hard bargain.

  • Marc says:

    If one of the key issues is guaranteeing the money to build the community amenities will be there, ensuring that SunCal will pay for them seems to lead to a "no" vote. There is certainly time to come to the ballot again without having placed the developer in a sstong negotiating position against the City. If the difference is, say, $100,000,000, that would affect the price of the homes to be built $22K ($30K if the afforable housing units were excluded), assuming SunCal would simply build the cost of the amenities into the product to be sold. In the current market, is that 3-4% shift going to prevent sales? Probably not. But if SunCal's guarantee si capped and the costs are as high as some project, then the City will be on the hook for money it has no viable way to raise, or the amenities will not get built. To me, that leads to voting "no" to give the City stronger bargaining position. Don't panic. It's not the 11th hour.

  • Edmundo Delmundo says:

    Well written, nice argument, but sorry, Eve, I just can't get past this notion of pushing a DDA to the public for a vote. This is just bad business process and sets a really bad precedent – why THIS DDA and not all DDA's? Will all future DDA's require a public acclamation for approval?

    Then there is this notion that the City can still negotiate the DDA even after it is approved by vote. So why can't the City negotiate the original DDA with the developer (SunCal or otherwise?)? There has been conspiracy theory that the City Manager's office, afraid of touching anything that reeks of an anti-Measure A hot potato, sloughed this off on the developer so that the City avoids looking like the M.A. bad guy. This actually doesn't sound so crazy.

    Whether it's true or not, I don't buy it. Had the Measure B language simply covered your points 1 and 2 (Measure A exception for THIS piece of property for THIS concept), done deal. To ask the public to approve a DDA with so many loose ends; not good policy and even worse lawmaking.

  • Lauren Do says:

    Edmundo: Just want to clarify that the document on the ballot is the Development Agreement (DA) which covers vested rights and freezes existing ordinances, rules, and regulations into place.

    The Disposition and Development Agreement (DDA) has yet to be negotiated and covers land sale, financing, timing, and phasing of the development.

    The DA binds the City, the DDA binds the ARRA (Redevelopment Authority).

  • anon says:

    For everyone who claims that the delay of the last decade has been horrible, consider the alternative if a relatively quicker development had happened. 300 million spent by the Navy for toxic clean up would most likely not have been spent (or a lot less) and the development would be bankrupt with a concentration of foreclosures and business failures that Alameda has largely avoided.

  • Rich Kleinman says:

    Thanks for the article Eve. I consider a little more educated as a result of reading this.

    The nature of the anti-B comments on this board reflect concern that a yes on B will reflect a tacit acceptance of the DA. Given that, would it be possible to get some of commentary (quotes) from the principals (Sun Cal management, City Council, City Manager, etc.) reflecting their position as to why they feel that the DA does not create obligations or political pressure that would in effect, create an approval of the DA?

  • AD says:

    Lauren Do, that’s the crux of the issue, isn’t it? The DA grants vested rights. Quickly, from wikipedia: “One has a vested right to an asset that cannot be taken away by any third party, even though one may not yet possess the asset.”

    What position does that leave the city in when it comes to deciding whether or not to execute a DDA, meaning, go ahead with the actual sale? Answer: no position at all. If B passes, the city either plays like SunCal wants it too, or risks having the base held in limbo by SunCal until it does, thanks to SunCal's vested rights, even it doesn't have the property yet. That's all SunCal wants with this measure—their vested rights. It's everything, no matter how you turn it. Voting yes on B is voting to tie the city's hands behind its back before it sits down to "negotiate" with SunCal. What would anyone want this for the city is beyond me.

    On the other hand, voting no on B will restore the equilibrium and allow fair negotiations. SunCal just indicated they will stick around even if Measure B doesn't pass. Good news–vote "No".

  • dlm says:

    This is a good question and it reflects the problem w/ the SunCal Initiative (now Measure B): the complexity of these issues is beyond the time and resources of the average voter to understand, such as the relationship between a "Development Agreement" and a "Disposition and Development Agreement".

    Anyway, the answer to this particular question is short: If Measure B wins, the city will be _required_ to sign the Development Agreement withinn a few days after the election. (See Section 8 of the Initiative.) The DA is a legal contract that was written by SunCal and tacked onto the Measure B documents without _any_ negotiation with the city, so not surprisingly, it strongly favors SunCal's interests, and it will lock the city into an unfavorable position from the outset.

    The "Don't Worry, Be Happy" approach that's recommended above is similar to the promises made regarding the failed AP&T telecom division — if a deal looks too risky at the outset, then assurances that it can be "fixed" or "undone" should not be relied on.

    Given the complexity of these issues, it would be advisable to look at the Ballot Arguments in the Voter Pamphlet for a concise rundown. For something short and readable, see the Chamber of Commerce statement in opposition to Measure B. (Use View/Zoom to blow this up.)

    You can also see more detailed Election Reports (and other information) at AlamedaPointInfo.com: http://alamedapointinfo.com/Election-Reports

  • dlm says:

    Here's a link to the Ballot Arguments and a list of major endorsements:

    What organizations and elected officials have taken a position on Measure B?


    Councilmember Lena Tam

    East Bay Regional Park District Board Vice President Doug Siden

    Alameda Unified School District Board Vice President Mike McMahon

    HOMES (Housing Opportunities Make Economic Sense)


    Mayor Beverly Johnson

    Vice Mayor Doug deHaan

    Councilmember Frank Matarrese

    City Treasurer Kevin Kennedy

    City Auditor Kevin Kearney

    Alameda Unified School District Board Member Tracy Jensen

    Alameda Unified School District Board Member Trish Spencer

    State Assembly Member Sandré Swanson

    Alameda County Supervisor Alice Lai Bitker

    Alameda Chamber of Commerce

    Renewed Hope Housing Advocates

    Alameda Architectural Preservation Society

    Alameda County Central Labor Council

    Alameda County Building and Construction Trades Council

    Alameda County Democratic Party

    Alameda Republican Women Federated

    Oakland Chinatown Coalition

  • Richard Bangert says:

    Rich Kleinman,

    Re your question regarding getting comments from principals "as to why they feel that the DA does not create obligations…."

    Below is a link to the recent letter in which the city attorney explains, among other things, why the initiative-embedded development agreement DOES create obligations. It is an interesting document and worthy of reading. For me, seeing the "warning flag" from the officer hired to look out for our city's interest is reason alone to vote No on Measure B.


    The link below to SunCal's October letter is the best I can do in the way of official comments by a supporting party to Measure B concerning the "fix-it" issue.


  • Lauren Do says:

    AD: And if you actually think that any real estate developer would buy a vested right only without the land attached to it, then I have a bridge I can sell you.

    Because you see, if the City Council sitting as the ARRA decides that they do not agree to the terms of the DDA and the ENA period expires before a DDA is signed, that's it. Game over. Vested rights are meaningless because SunCal will never get their hands on the land. But if that is not enough "leverage" for the City, then I would suggest that we urge the City to hire better negotiators.

  • AD says:

    Lauren: Like I said: It's a RIGHT TO PURCHASE something. It's contractual. If I promise to you, in a legally binding manner, to sell you my one-of-a-kind baroque dresser, and then say, nope, changed my mind, not gonna sell it, or gonna sell it to you but only if you let me drive your porsche on Saturdays, assuming you really want that dresser (or why would you create and have me enter into a contract with you if you didn't), I bet my next paycheck that you will drag me to court and sue my socks off. That's what the city, and a large number of its citizens, are trying to avoid here–signing the silly contract in the first place. Why do you want the city to sign that contract?

  • AD says:

    Slight correction to comment above: It’s not a right to purchase something; It’s a right to try and purchase (under exclusive negotiating conditions) something specific (my baroque dresser, or the land with certain favorable zoning rules). For a price I’m not quite satisfied with (shortchanging on benefits amount, assessment caps etc). SunCal is asking voterrs to say yes to the exact deal they have in mind (Yes, Suncal, we want you to have this dresser for that price). Once we do that, SunCal will be very ticked off if the city (ARRA) gets all kinds of second thoughts and refuses to complete the deal. The ENA period is longer than the timeframe for signing the DDA (the DDA period is very short, days I think). If I were SunCal, and the city didn’t sign a DDA and the ENA was still on, I would sue the city for not negotiating in good faith, just like some people have become fond of reminding us. That’s a great soup for the city to get into. Somebody has really got it cooked just right.

  • Lauren Do says:

    AD: Your concern about SunCal and the vested rights in your analogy of your dresser is separate than what the City’s concerns about the vested rights issue is.

    The concern is not that SunCal has the vested rights, but that those rights can be sold and transferred to some other entity that the City has not vetted.

    Right now, the City doesn’t own the land. The Navy does. Conveyance of the land is performed not upon the signing of the Development Agreement, but upon signing of the Disposition and Development Agreement as well, and the conveyance process is concluded.

    “Good faith” does not mean “coming to the conclusion that I agree with,” meaning that SunCal would not automatically sue if the DDA negotiations broke down and the ARRA could not come to adequate terms on the items within the DDA in the ENA period. Particularly if the City can show that it has acted in good faith during these negotiations, which I imagine that they will be hyper aware of moving forward.

    And I imagine that if a suit is filed for breach of “good faith” the most egregious examples will come, not from during the DDA negotiation, but from the point in time when the Mayor decided that she was against the Initiative after being for it.

  • Barbara Thomas says:

    The fundamental problem of developing Alameda Point, is that we are already at capacity for the infrastructure, tubes and bridges,leaving town in the AM/returning in the PM. That capacity cannot be increased due to legal and environmental constraints. Any developer who tries to aggravate that situation is going to be opposed by those who live on the island (and neighboring Oakland) already. Transit management etc. are all pie in the sky dreams, that may or may not pan out. If they don’t, Alamedans are left with a seriously degraded commute, while SUNCAL skips away with its profits.

    Add to that the fact that the taxes residential development generates NEVER pays for the services used by that development. SUNCAL is willing to pay little more than 1/2 in 2009 dollars of the public amenities it has promised. And while it may cover the cost of the school buildings, it will not be here to cover the costs, year after year of the teachers.

    SUNCAL’s ballot Measure B is so complicated, that to sit back and predict that which will ultimately shake out, compounds the problem unnecessarily. As an attorney, I would never make a legal recommendation to a client without knowning all the facts and law available. We don’t have that due to SUNCAL’s non-disclosure of certain facts. Presumably, the City Attorney and School District’s legal counsel do. They serve the citizens of Alameda. SUNCAL’s attorneys and representatives serve only SUNCAL. It is better to err on the side of caution, than to squander Alameda’s and our children’s futures on the hope that SUNCAL will not treat Alameda, the way it has treated nearly 30 other communities.

  • Scott says:


  • Mike says:

    I don’t like the one-sided, over-reaching initiative.

    I don’t like the way Sun Cal has run it’s campaign.

    I don’t think it’s a good deal.

    I don’t think there’s anything in it for existing residents of Alameda.

    I think no deal is better than a bad deal. Would folks who urge doing something now because so much time has gone by urge, for example, their sister in her thirties to hurry up and marry the next guy she meets because so much time has gone by? Well, that’s the logic.

    I’m not convinced that Alameda needs a lot of ticky-tacky houses (or high density worker hives) and resulting traffic.

    I get the feeling that future residents will have strange illnesses that they will blame on partially remediated toxic waste. Sun Cal will be have folded it’s tent, but the sick future Alamedans will still be able to sue the city.

    So much wrong with it… it is stunningly bad.

  • adam says:

    An imperfect choice is still not worth making when it is this bad and biased in favor of the developer and against the city and people of Alameda. Sometimes it *is* better to continue working for a better solution, instead of settling for a half-baked idea that lines the pocket of a bankrupt developer and shortchanges an entire community. Think for yourself, Eve, don’t just recycle SunCal’s pablum and call it a solution.

  • Mister Psuedonym says:

    I was mildly pro-B until I went to the town hall meeting on B hosted by the League of Women Voters.

    The opponents’ speaker pointed out his side’s problems with the law we were being asked to vote on. The SunCal rep talked about SunCal’s planned development, but (to the best of my memory) never about the law. SunCal’s failure to address the law changed my vote to ‘no’. If the opponents are wrong about the law, why not refute them?

    If what Ms Pearlman says is true (that the city can still negotiate and their hands aren’t tied by the law), then why didn’t SunCal mention this? If they said it, I missed it, but I was playing very close attention.

    I believe that SunCal wants the project to succeed. Unfortunately, I have to worry more about the law. I’m regretfully voting no.

  • ct says:

    Many thanks to Ms Pearlman for her clear and straightforward explanation in layman's terms of the issues surrounding Measure B. With members of the pro- and anti-B camps vigorously swatting around their various numbers as though they were badminton shuttlecocks, it's a relief when analysis like this makes perfect sense on a first reading.

  • dlm says:

    It makes perfect sense because it's incredibly simplistic. This is a ten minute take on an issue that requires more like ten hours to understand. There is no effort to interview both sides, either. I think someone who's not willing or able to put in even the minimal effort to understand this ballot measure should probably just stay away from any kind of endorsement.

    Other civic groups which *have* considered Measure B at length have chosen to remain neutral, such as the League of Women Voters. That's a reasonable position, and I think it would make sense here. I don't think it makes sense to repeat what other people have said (on one side of Measure B) without any real understanding of the issue, which is what happened here.

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