February 20, 2024
City Attorney's Office
DATE: February 20, 2024
TO: Mayor Martinez and Members of the City Council
FROM:
Dave Aleshire, City Attorney
Shannon Moore, Chief Assistant City Attorney
Subject:
Approve a Seventh Amendment to the Legal Services
Agreement with Downey Brand LLP
FINANCIAL IMPACT: This amendment will add $100,000 for a total amount not to exceed amount of $1,325,000. 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) in the amount of $250,000 on October
6, 2020. Subsequently, the City Council approved the
first LSA amendment ($500,000) on April 1, 2021, the
second amendment ($200,000) on November 2, 2021,
the third amendment ($60,000) on May 3, 2022, the
fourth amendment ($40,000) on September 13, 2022, the
fifth amendment ($75,000) on June 27, 2023, and the
sixth amendment ($100,000) on September 12, 2023.
STATEMENT OF THE
ISSUE:
Additional funds are needed to ensure that the City has the appropriate legal representation for the Point Molate litigation and related claims.
AGENDA
REPORT
February 20, 2024
RECOMMENDED ACTION:
APPROVE the seventh amendment to the legal services
agreement with Downey Brand LLP, in the amount of
$100,000, to represent the City in pending appeals and
any further proceedings in the current Point Molate
Alliance, et al. v. City of Richmond litigation involving the Point Molate property and the City’s prior CEQA and land use entitlement process(es), for a total contract amount of $1,325,000 – City Attorney’s Office (Dave Aleshire
510-620-6509).
DISCUSSION:
Downey Brand,LLP, a public sector law firm, represents the City in pending appeals involving Point Molate. To continue the firm’s representation of the City, the City Attorney’s Office is requesting an amendment in the amount of $100,000 to the existing LSA, for a total contract amount not to exceed $1,325,000.
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 focusing their appeal to claims under CEQA, California Planning and Zoning Law, and the California Constitution. The City filed answering briefs on April 4, and Appellants filed separate reply briefs on June 7 and June 14, respectively. In addition to the extensive merits briefings in this case, Appellant Point Molate Alliance and Amicus Curiae Guidiville Rancheria of California filed further briefs on the issue of tribal cultural resources, as well as competing appellate motions for judicial notice, declarations, objections and oppositions in June and July, 2023. Downey Brand will continue to serve as lead 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.
February 20, 2024
Attorney rates are between $335-$410 per hour and paralegal rates are $225 per hour.
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.
Downey Brand possesses invaluable, historical knowledge regarding the Point Molate issues and case developments to date. This is especially true given the City staff turnover of those working on these cases originally. If the City switched firms at this point in the appeals process, it would be both inefficient and economically detrimental.
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
Attachment 7 – DB LSA, Sixth Amendment
Attachment 8 – DB LSA, Seventh Amendment (proposed)