June 27, 2023
City Attorney's Office
DATE: June 27, 2023
TO: Mayor Martinez and Members of the City Council
FROM:
Dave Aleshire, City Attorney
Shannon Moore, Chief Assistant City Attorney
Subject:
Fifth Amendment of the Downey Brand Legal Services
Agreement
FINANCIAL IMPACT: This amendment will add $75,000 for a total amount not to exceed $1,125,000. This agreement is charged to the
Risk Management General Liability Fund (50182316-
400554).
PREVIOUS COUNCIL
ACTION:
The City Council approved the original Legal Services
Agreement (LSA) on October 6, 2020. Subsequently, the
City Council approved the LSA’s first ($500,000), second ($200,000), and third ($60,000) amendment(s), dated
April 1 and November 2, 2021; and May 3, 2022,
respectively, on May 5, 2022. City Council approved the fourth amendment ($40,000) on September 13, 2022.
STATEMENT OF THE
ISSUE:
To ensure the City has appropriate legal representation relating to the Point Molate litigation and claims, additional funds are needed.
RECOMMENDED ACTION:
APPROVE a fifth amendment to the legal services
agreement with Downey Brand, in the amount of $75,000,
to represent the City in pending appeals and any further litigation involving the Point Molate property and the
City’s prior CEQA and land use entitlement process(es), for a total contract amount of $1,125,000 – City
Attorney’s Office (Dave Aleshire 510-620-6509).
AGENDA
REPORT
June 27, 2023
DISCUSSION:
Downey Brand, a public sector law firm, represents the City in pending appeals involving Point Molate. To continue its representation of the City, the City Attorney’s Office requests a $75,000 amendment to the existing legal services agreement (LSA) for a total contract amount not to exceed $1,125,000.
The City Council of the City of Richmond on September 8, 2020, certified a Subsequent Environmental Impact Report (SEIR) and adopted a resolution approving land use entitlements for the Point Molate Mixed-Use Development Project. Those approvals were the subject of two lawsuits in the form of peremptory writs of mandate filed in the Contra Costa County Superior Court on or about October 9, 2020, including Point Molate Alliance, et al., v. City of Richmond and North Coast Rivers Alliance, et al. v. City of Richmond. The lawsuits named the City as respondent and Winehaven Legacy, LLC as real party in interest, and asserted causes of action under the California Environmental Quality Act (CEQA), California Planning and Zoning Law, California Constitution, and the common law public trust doctrine, as well as other grounds. The trial court entered judgment in the City’s favor on March 15, 2022, and Petitioners Point Molate Alliance and North Coast Rivers Alliance filed separate appeals in the First District Court of Appeal. The appeals were subsequently consolidated for purposes of briefing, oral argument, and decision, and are now proceeding as Point Molate Alliance, et al. v. City of Richmond, First App. Dist. Case Nos. A164906 and A165758. Briefing commenced in the consolidated appeals on January 2, 2023, with petitioners/appellants narrowing their appeal to certain claims under CEQA, California Planning and Zoning Law, and the California Constitution. The City filed answering briefs on April 4, 2023. Appellants’ reply briefs are due on June 14, 2023. We are expecting the Court of Appeal to schedule oral argument in late 2023 or early 2024.
Downey Brand will continue to serve as lead trial and appellate counsel for the City in its defense of these actions, and will have responsibility for case management and coordination among defense counsel, assisting with settlement negotiations, and for providing advice to and representation of the Richmond City Attorney’s Office in the proceedings. Downey Brand’s litigation fees and expenses remain subject to reimbursement by real party in interest Winehaven Legacy, LLC based on the indemnity provisions and conditions imposed under the entitlements and both the Disposition and Development Agreement (“DDA”) and Development Agreement (“DA”). However, because Winehaven failed to close escrow under the DDA and is currently in litigation against the City, the fees and expenses authorized herein may not be recoverable by the City.
As part of its services, Downey Brand will provide concise written reports to the City Attorney on a monthly basis, which will address important milestones and efforts in the case. The City Attorney will share the reports with the City Council and will return to the City Council for more substantive reports and to further augment the contract amount as may be necessary for future phases of the litigation, including further appeals or after remand to the trial court.
June 27, 2023
DOCUMENTS ATTACHED:
Attachment 1 – Downey Brand Legal Services Agreement (“DB LSA”) Attachment 2 – DB LSA, First Amendment
Attachment 3 – DB LSA, Second Amendment
Attachment 4 – DB LSA, Third Amendment
Attachment 5 – DB LSA, Fourth Amendment
Attachment 6 – DB LSA, Fifth Amendment (proposed)