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SETTLEMENT AGREEMENT AND LIMITED UNILATERAL RELEASE OF CLAIMS
This SETTLEMENT AGREEMENT AND LIMITED RELEASE OF CLAIMS (“Settlement Agreement”) is entered into by and between the following entities: Point Molate Futures, LLC, owner of the following described property; Plaintiffs The Guidiville Rancheria of California, a federally recognized Indian tribe , and Upstream Point Molate LLC , a California limited liability corporation (the three foregoing entities together, “Tribe/Upstream”), and Defendant the City of Richmond (“City”) (collectively, Tribe/Upstream and the City are referred to as “Parties,” or singularly each a “Party”), to settle fully and finally all current disputes between the Parties arising out of, or related to, only the City’s obligation to date to pay 50% of Revenues received by City, pursuant to Paragraph 23 of the Amended Judgment, filed November 21, 2019 (“Amended Judgment”), in the matter of Guidiville Rancheria of California, et al. v. United States of America, et al. (United States District Court, Northern District of California, Case No. CV 12- 1326), the (“Action”).
RECITALS
WHEREAS, in March 2012, Tribe/Upstream filed the above-referenced Action alleging material breach of various agreements related to Tribe/Upstream’s right to develop and purchase the Point Molate property (the “Property”) from the City . On November 21, 2019 , the Court entered an Amended Judgment in that Action, amending its earlier Judgment of April 2018. The Amended Judgment included a revenue sharing mechanism among the Parties. Specifically, under that mechanism the City would control the Property for a specified four-year window of time during which the City would share certain net revenues collected in connection with its control of the Property on a fifty-fifty basis with Tribe/Upstream. Thereafter, Tribe/Upstream would control the Property for five (5) years and would similarly share net revenues on a fifty-fifty basis with the City.
WHEREAS, the period of City control of the Property ended and on August 29, 2022 the period of Tribe/Upstream control commenced and a dispute has arisen among the Parties over how the Net Revenues received by the City should be calculated pursuant to the terms of the Amended Judgment. T he Parties now wish to settle this dispute with commencement of Tribe/Upstream control to avoid protracted litigation over the terms of the Amended Judgment , thereby avoiding the uncertainty and costs of further litigation, including potential appeals therefrom, and resolving fully and finally all current disputes by and between the Parties concerning the Amended Judgment.
WHEREAS, by entering into this Settlement Agreement no Party admits liability for the claims arising from the Amended Judgment. The Parties’ mutual agreement to settle the current dispute shall not be construed in any manner as an admission of any liability by any Party.
NOW, THEREFORE, based upon the foregoing recitals and the terms, conditions, covenants, and agreements contained herein, the Parties agree as follows:
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AGREEMENT
In consideration of the facts, acknowledgements, agreements, general release, and promises contained in this Settlement Agreement, and for other good and valuable consideration, the receipt of which is acknowledged by each Party hereto, the Parties promise and agree as follows:
1. Recitals. The preceding recitals are hereby incorporated and made part of this Settlement Agreement.
2. Settlement Payments. The Parties agree to settle the current dispute as follows (“Settlement Payments”):Following execution of this Settlement Agreement by the Parties, the City shall pay to Tribe/Upstream the total sum of seventy-five thousand dollars ($75,000) within thirty (30) calendar days of executing this Settlement Agreemen t, provided that Tribe/Upstream deliver to the City, within twenty (20) calendar days of executing this Settlement Agreement, wire instructions to a Tribe/Upstream bank account available to receive the funds.
The Settlement Payment above shall be in full consideration, compromise, and settlement of any and all currently disputed claims between the Parties arising out of, or related to, only the City’s obligation to date to pay 50% of Revenues received by City to date, pursuant to Paragraph 23 of the Amended Judgment.
3. Limited Unilateral Release (“Release”). For good and valuable consideration, including, but not limited to, the delivery of Settlement Payments due, the adequacy of which are hereby acknowledged, Tribe/Upstream do hereby fully and irrevocably release and forever each discharge the City, including the current and former employees, officials, agents, or representatives, or any of the them (“Releasees”), of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agre ements, promises, liability, claims, demands, damages, loss, costs or expenses, of any nature whatsoever, known or unknown, fixed or contingent (“Claims”), which Tribe/Upstream now has or may hereafter have against the City by reason of any matter, cause, or thing whatsoever arising out of, or related to, only the City’s obligation to date to pay 50% of Revenues received by City to date, pursuant to Paragraph 23 of the Amended Judgment. This is a limited release only, and operates only to release the City from liability for c laims related to its obligation pay Revenues to date as set forth hereinabove. The Tribe/Upstream reserve the right to assert any other claims against the City that either of them may have now or in the future relating to any obligations of the City under the Amended Judgment, other than the obligation to have paid Revenues to the Tribe/Upstream before the City transferred title of the property to Point Molate Futures, LLC.
4. Effective Date. The Release as set forth above shall be effective as of the last date of the execution of this Settlement Agreement by the Parties.
5. Discovery of Different or Additional Facts. The Parties acknowledge that they may hereafter discover facts different from or in addition to those that they now know or believe to be true with respect to the claims, demands, causes of action, obligations, damages, and liabilities of any nature whatsoever that are the subject of the Limited Release set forth in Paragraph 4 of this Settlement Agreement, and expressly agrees to assume the risk of the possible
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discovery of additional or different facts, and the Parties agree that this Settlement Agreement shall be and remain effective in all respects regardless of such additional or different facts.
6. Non-Admission of Liability . The Parties acknowledge and agree that this Settlement Agreement is a settlement of disputed claims. Neither the fact that the Parties have settled no r the terms of this Settlement Agreement shall be construed in any manner as an admission of any liability by the Parties and/or the Releasees, all of whom have consistently taken the position that they have no liability whatsoever.
7. No Assignment of Claims . The Parties warrant that neither has made an assignment, and will make no assignment, of any claim, cause of action, right of action or any right of any kind whatsoever, embodied in any of the claims and allegations referred to herein, and that no other person or entity of any kind had or has any in terest in any of the demands, obligations, actions, causes of action, debts, liabilities, rights, contracts, damages, attorney’s fees, costs, expenses, losses or claims referred to herein.
8. Successors and Assigns. This Settlement Agreement, and all the terms and provisions hereof, shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns.
9. Knowing and Voluntary . This Settlement Agreement is an important legal document and in all respects has been voluntarily and knowingly executed by the Parties hereto.
The Parties acknowledge that this Settlement Agreement was jointly prepared by them, by and through their respective legal counsel. The Parties further represent that they have each carefully read and fully understand all the provisions of this Settlement Agreement, and that they are voluntarily, knowingly, and without coercion entering into this Settlement Agreement based upon their own judgment.
10. Assistance of Counsel . The Parties each specifically represent that th ey have consulted to their satisfaction with and received independent advice from their respective counsel prior to executing this Settlement Agreement concerning the terms and conditions of this Settlement Agreement.
11. Counterparts. This Settlement Agreement may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute on agreement.
12. Severability. Should any portion, word, clause, phrase, sentence or paragraph of this Settlement Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, the validity of which shall remain unaffected.
13. Waiver. Failure to insist on compliance with any term, covenant or condition contained in this Settlement Agreement shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquishment of any right or power contained in this Settlement Agreement at any one time or more times be deemed a waiver or relinquishment of any right or power at any other time or times.
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14. Governing Law and Venue. This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced and governed under the laws of said State without giving effect to conflicts of laws principles. Any action to enforce, invalidate, or interpret any provision of this agreement shall be brought in the United States District Court, Northern District of California.
22. Entire Agreement. This Settlement Agreement constitutes the entire agreement between the Parties who have executed it supersedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied between the Parties to this Settlement Agreement regarding Claims arising out of, or related to, only the City’s obligation to date to pay 50% of Revenues received by City to date, pursuant to Paragraph 23 of the Amended Judgment. The Amended Judgment otherwise remains in full force and effect.
No representation, inducement, promise, agreement or warranty not contained in this Settlement Agreement, including, but not limited to, any purported supplements, modifications, waivers, or terminations of this Settlement Agreement shall be valid or binding, unless executed in writing by all of the Parties to this Settlement Agreement.
15. Authority to Execute. The persons executing this Agreement on behalf of each of the Parties hereto warrant that (a) the Party on which behalf it is executing is duly organized and existing, (b) such person is duly authorized to sign and deliver this Agreement on behalf of th e Party he or she represents, (c) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, (d) the entering into of this Agreement does not violate any provision of any other agreement to which such Party is bound and (e) there is no litigation or legal proceeding which would prevent such Party from entering into this Agreement.
[Signatures on following page]
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IN WITNESS WHEREOF, the undersigned execute this Settlement Agreement and Release of All Claims, consisting or a total of seven (7) pages, on the dates set forth below. The Effective Date shall be deemed to be the _____ day of _______________, 2023.
Dated: November _____, 2023 The Guidiville Rancheria of California
By: __________________________________
Dated: November _____, 2023 Upstream Point Molate LLC
By:___________________________________
_________________________________
Dated: November _____, 2023 City of Richmond
By:__________________________________
Attest:
____________________________________
APPROVED AS TO FORM:
Dated: November ______, 2023 O’KEEFE & O’KEEFE LLP
By: ______________________________
Garet D. O’Keefe
Attorney for Plaintiffs
Dated: November ______, 2023 ALESHIRE & WYNDER, LLP
By: ______________________________
David Aleshire
Attorney for Defendant