4139676.3
POINT MOLATE ALLIANCE AND CITY OF RICHMOND
AGREEMENT TO SETTLE ATTORNEYS’ FEES
This Agreement to settle Petitioner Point Molate Alliance, et al.’s (“PMA’s”) claims for attorneys’ fees and expenses is entered into as of June 18, 2024 (the “Effective Date”) by and among the City of Richmond (“City”) and PMA (collectively, “Parties”).
RECITALS
This Agreement is made with reference to, and in consideration of, the following facts and representations, which the Parties agree are true and correct:
A. In October 2020, Petitioners North Coast Rivers Alliance, et al. (“NCRA”) and PMA filed two related petitions for writ of mandate: North Coast Rivers Alliance, et al. v. City of Richmond et al., Contra Costa Co. Sup. Ct. Case No. MSN20-1528 (later consolidated with MSN20-1474) (“Action”). Petitioners challenged the City’s certification of a Subsequent Environmental Impact Report (“SEIR”) under the California Environmental Quality Act for the Point Molate Mixed-Use Development Project and the related approvals (“Project”).
B. On March 21, 2022, the trial court entered a judgment denying the petitions, ruling in favor of the City on all issues and upholding approvals of the Project. NCRA and PMA timely filed notices of appeal. The appeals were consolidated for all purposes on September 2, 2022 (Appellate Case No. A164906).
C. On October 27, 2023, the First District Court of Appeal issued its opinion in the consolidated appeals upholding in part and reversing in part the trial court’s judgment.
Specifically, the Court of Appeal found the SEIR for the Project deficient in its analysis of mitigation measures addressing impacts to tribal cultural resources and emergency evacuation risks. After remittitur, the trial court on January 22, 2024, entered judgment and issued its peremptory writ of mandate directing the City to vacate its certification of the SEIR and approvals of the Project.
D. On March 21, 2024, PMA filed and served a motion to recover its attorneys’ fees and litigation expenses in connection with the Action pursuant to Code of Civil Procedure section 1021.5. As a successful party in the litigation, PMA sought a total recovery of $2,118,984. The City disputes PMA’s entitlement to attorneys’ fees in the amounts claimed, but the Parties nevertheless desire to avoid the time and expense associated with contesting post- judgment motions.
E. This Agreement is the product of arms-length negotiations between the Parties, and the Parties enter this agreement to once and for all settle PMA’s claims for attorneys’ fees related to the Action, pursuant to the terms set forth below.
AGREEMENT
NOW, THEREFORE, in reliance on the above Recitals, which are true and correct, and in consideration of the mutual promises, covenants, conditions, and releases set forth in this 4139676.3
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
A. Settlement Amounts. In full consideration of PMA’s execution of this Agreement and its agreement to be legally bound by its terms, the City agrees to pay PMA the amount of $825,000 (“PMA Settlement Payment”). The City shall remit to PMA a check payable to the law firm of Cheasty, Cheasty & Malek, LLP, in trust for all PMA Petitioners, within sixty (60) days after the Effective Date of this Agreement.
B. Notice of Settlement. Within ten (10) days of the Effective Date, the City shall file with the trial court a Notice of Settlement of Attorneys’ Fees. Simultaneously, PMA shall withdraw its Motion for Attorneys’ Fees and request that the trial court vacate any briefing and hearing dates on the Motion.
C. Releases. On the condition that the City pays the PMA Settlement Payment, PMA, on behalf of itself and its attorneys, hereby voluntarily and knowingly releases and forever discharges the City from all claims to costs, expenses, or attorneys’ fees, whether known or unknown, arising from or related to the Action, that have accrued through the Effective Date of this Agreement. Such release and discharge shall not preclude the City from seeking reimbursement for the PMA Settlement Payment from Real Party in Interest Winehaven Legacy LLC (“Winehaven”) under Winehaven’s separate indemnity obligations to the City.
D. No Admission. This Agreement consists of a compromise and settlement by the Parties concerning PMA’s claims for attorneys’ fees and expenses related to the Action. The City specifically denied any liability for such claims. This Agreement is not and shall not be treated as an admission of liability by the City for any purpose.
E. Authority. Each signatory of this Agreement represents and warrants that he or she has full authority to enter into this Agreement on behalf of the respective Parties and to settle and compromise all claims that are the subject matter of this Agreement.
F. No Assignment. Except as provided in this Agreement, the obligations of the Parties under this Agreement may not be assigned, or otherwise transferred, except by operation of law, without the prior written consent of the Parties, which consent shall not be unreasonably withheld. In no event shall any Party’s approved assignment of any aspect of this Agreement relieve such Party of its obligations under this Agreement.
G. Entire Agreement. This Agreement constitutes a single, integrated written contract expressing the entire agreement between the Parties hereto relative to PMA’s claims for attorneys’ fees and costs related to the Action. No covenants, agreements, representations or warranties of any kind whatsoever have been made by any Party hereto; except as specifically set forth in this Agreement. All prior discussions and negotiations have been and are integrated into and are superseded by this Agreement.
H. Waiver and Modification. No provision of this Agreement may be waived unless in writing signed by each of the Parties to this Agreement. The waiver of any one provision of this Agreement shall not be deemed to be a waiver of any other provision of this Agreement. 4139676.3
This agreement may be modified or amended only by a written agreement executed by each of the Parties.
I. Mutual Cooperation. Each Party shall execute and deliver to the other Parties all such other further instruments and documents, and take all other such actions, as may be reasonably necessary to carry out the terms and provisions of this Agreement and secure to the other Parties the full and complete enjoyment of their respective rights and privileges hereunder.
The Parties agree not to take positions inconsistent with the terms of this Agreement and to exercise care in raising issues that may be contentious by first attempting to meet and resolve such issues with the other Parties in good faith.
J. Taxes. PMA Petitioners shall be individually responsible for, and is legally bound to make payment of, any taxes resulting from their respective settlement payments determined to be due and owing (including penalties and interest related thereto) to any federal, state, local, or regional taxing authority. PMA agrees to indemnify, defend, and hold harmless the City in the event that any governmental taxing authority asserts against the City any claim for unpaid taxes, failure to withhold taxes, penalties, or interest based upon the payment of their respective settlement payments.
K. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. Facsimile and electronically scanned signatures shall be sufficient as an original signature.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed.
Dated: June ___, 2024 LAW OFFICES OF STUART M. FLASHMAN By: __________________________________
STUART M. FLASHMAN
Attorney for Petitioners POINT MOLATE
ALLIANCE, OCEAN AWARENESS PROJECT,
INC., ANDRES SOTO, SARA L. TOBIN,
ANTHONY SUSTAK, PAMELA STELLO,
MARGARET BROWNE, and DAVID HELVARG
Dated: June ___, 2024 LAW OFFICES OF NORMAN LA FORCE
By: __________________________________
NORMAN LA FORCE
Attorney for Petitioners SIERRA CLUB and
SPRAWLDEF
4139676.3
Dated: June ___, 2024 CHEASTY, CHEASTY & MALEK, LLP
By: __________________________________
ROBERT C. CHEASTY
Attorneys for Petitioners CITIZENS FOR EAST
SHORE PARKS, GOLDEN GATE AUDUBON
SOCIETY, CALIFORNIA NATIVE PLANT
SOCIETY, NORMA WALLACE, and ISABELLA
ZIZI
Dated: June ___, 2024 CITY OF RICHMOND
By: __________________________________
EDUARDO MARTINEZ
Mayor of Respondent CITY OF RICHMOND
Approvals as to Form:
Dated: June ___, 2024 CITY ATTORNEY, CITY OF RICHMOND
By: __________________________________
DAVID J. ALESHIRE
Attorneys for Respondents CITY OF RICHMOND
and RICHMOND CITY COUNCIL
DOWNEY BRAND LLP
By: __________________________________
CHRISTIAN L. MARSH
Attorneys for Respondents CITY OF RICHMOND
and RICHMOND CITY COUNCIL