Guidiville Rancheria of California v. United States

          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 ...