United States District Court, N.D. California, Oakland Division
CROWELL LAW OFFICES - TRIBAL ADVOCACY GROUP Scott Crowell
Attorneys for Plaintiff Guidiville Band of Pomo Indians.
O'KEEFE & O'KEEFE LLP Garet D. O'Keefe
Attorneys for Plaintiff UPSTREAM POINT MOLATE LLC.
JAMES
D. LEVINE General Manager Upstream Point Molate, LLC.
CITY
ATTORNEY FOR CITY OF RICHMOND Attorneys for Defendant CITY OF
RICHMOND.
MORRISON & FOERSTER LLP Arturo Gonzalez Attorneys for
Defendant CITY.
[PROPOSED] AMENDED
JDGMENT
In
March 2012, plaintiffs Guidiville Rancheria of California
(Tribe) and Upstream Point Molate LLC (Upstream) (together,
Plaintiffs) commenced the above-captioned action (Action)
against defendant City of Richmond (City). The controversy
concerns a Land Disposition Agreement (LDA) and its
amendments, between Upstream and the City, the subject of
which was a proposed development of property located at the
former Navy Fuel Depot Point Molate in Richmond, California.
Following
the signing of the LDA in 2004 and in accordance with the
California Environmental Quality Act (CEQA), the Court finds
that the City conducted a multi-year review of potential
environmental impacts resulting from several proposed
projects, including a project with residential
units.[1] In 2011, the City certified a final
environmental impact report (EIR) for potential projects at
Point Molate. No party challenged the EIR.
In this
Action, Plaintiffs allege, inter alia, that the City
breached the LDA; the City denies Plaintiffs' claims.
In
accordance with the stipulated request of the Parties, and
good cause appearing, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED THAT:
1.
Under 28 U.S.C. §§ 1331 and 1362, the Court has
jurisdiction over the Action and shall retain such
jurisdiction to enforce this Judgment.
2. The
Court expressly finds and determines that the terms of this
Judgment are fair, reasonable and in the public interest.
DEFINITIONS
3.
"Judgment" shall mean this Amended Judgment, the
Judgment dated April 12, 2018, and all exhibits attached
thereto.
4.
"Point Molate" or the "Property" shall
mean the approximately 270 acres of upland and 134
acres[2] of tidal and submerged real property that
was transferred to the City by the United States Navy in or
around September 2003, and the "Remainder Property"
transferred to the City by the Navy in or around September
2009.
5.
"Development Areas" shall mean the four development
areas shown on Figure 6, Land Use Areas, Point Molate Reuse
Plan (attached as Exhibit A) or any parcel subsequently
designated or subdivided from those four Development Areas
subject to the provisions of Paragraph 20.
6.
"Point Molate Reuse Plan" shall mean the Reuse Plan
prepared by a 45-member Blue Ribbon Advisory Committee in or
around March 1997, and adopted by the Richmond City Council
in 1997. In 2002, the U.S. Navy published a "Record of
Decision for Disposal and Reuse of the Fleet Industrial
Supply Center, Naval Fuel Depot, Point Molate, CA" (67
Fed. Reg. 41967, June 20, 2002) based on the Point Molate
Reuse Plan, which included residential use as one of three
alternatives. A complete copy of the Point Molate Reuse Plan
is attached as Exhibit B and it is also available on the
City's website at
https://www.ci.richmond.ca.us/DocumentCenter/Home/View/7510.
The City shall maintain a hard copy of the Point Molate Reuse
Plan for review by the public.
7.
"Certified EIR" shall mean the final Environmental
Impact Report certified by the City on or about March 8,
2011, which can be located at
http://www.ci.richmond.ca.us/1863/Point-Molate-Resort-and-Casino,
and any and all errata, addenda or other modifications
thereto, and as the same may be amended, supplemented or
updated. The City shall maintain a hard copy of the Certified
EIR for review by the public.
8.
"Discretionary City Approvals" shall mean all
discretionary approvals made by the City necessary to entitle
development and construction of the Development Areas. The
Discretionary City Approvals shall allow for a minimum of 670
residential units and further the goals of the Point Molate
Reuse Plan, including preservation of open space and
rehabilitation of the Core Historic District (including
Building 6). Those 670 residential units must comply with the
requirements of the City's inclusionary housing ordinance
in effect at this time. That compliance can be met either by
(i) providing within the City the percentage of below market
units presently specified in section 15.04.810.063 of the
City's Municipal Code or (ii) paying an in-lieu fee,
which must equal the amounts presently applied to residential
projects within the City. Discretionary City Approvals
includes any additional review and actions required under
CEQA, zoning changes, and general plan amendments, but
excludes (1) design review permits and certificates of
appropriateness by the City; (2) ministerial permits provided
by the City; and (3) other approvals or permits provided by
any entity other than the City, such as the United States
government, State of California, or regional agencies, such
as the Bay Conservation Development Commission and the
Regional Water Quality Control Board. The City shall
diligently process any required design review permits and
certificates of appropriateness and ministerial permits to be
provided by the City; and City shall also diligently process
and cooperate with all requests for information that might be
required for any other approvals or permits provided by any
entity other than the City, such as the United States
government, State of California, or regional agencies, such
as the Bay Conservation Development Commission and the
Regional Water Quality Control Board.
9.
"Effective Date" shall mean the date this Judgment
is entered by the Court.
10.
"Revenues" shall mean all amounts received or
earned by City or Plaintiffs from the sale or development or
long-term leasing (more than one (1) year) of any portion of
the Development Areas, including, without limitation, any
amounts received for (i) exclusive rights to negotiate, (ii)
any purchase monies or purchase deposits paid, (iii) any
option payments, (iv) any amounts paid pursuant to a services
agreement or any similar one-time payment, or recurring
payments made to City or Plaintiffs by the purchaser(s),
developer(s), builder(s) or any subsequent owner of any
portion of the Development Areas or (v) any reimbursement for
costs or expenses incurred pursuant to Paragraph 24.
"Revenues" does not include grants, reimbursements
paid to the City or to Plaintiffs by a third party (e.g.,
developer) for costs incurred in the pre-development phase
other than costs incurred under Paragraph 24, short-term
rental/use fees collected by the City prior to the sale of
the Development Areas, property taxes or other taxes paid to
the City and proceeds received from a financing district.
11.
"Customary Fees" means fees paid to City for
permits or similar customary administrative fees,
cost-recovery fees, development fees and/or impact fees
(e.g., traffic, school and in-lieu housing impact fees) in
amounts routinely charged and similarly collected by the City
on other projects.
12.
"Sale" or "Sold" or "Sell" or
any similar term relating to the sale of the property that is
the subject of this Judgment, shall mean close of escrow upon
which purchase monies are paid to City or Plaintiffs in
exchange for which title to the portion of the property being
sold in that transaction is simultaneously transferred to the
buyer(s). The terms "Sale" or "Sold" or
"Sell" shall also include execution of a contract
or agreement to sell any portion of the Development Areas so
long as the sale of a substantial portion of any one of the
Development Areas is closed and title transferred within 48
months of the Effective Date, with the understanding that
such contracts/agreements are to facilitate phased
developments and must remain in effect until the final parcel
of the Development Area at issue is sold.
13.
"Entitlement Costs" shall mean all costs incurred
after the Effective Date, which directly concern the issuance
of entitlements and compliance with CEQA, including, without
limitation, the preparation of environmental review documents
and costs similar to those Plaintiffs previously paid prior
to completion of the ...