In a November 16 email, Jim Levine of Upstream responded to some of the issues I raised in Point Molate Update, November 12, 2009. Unfortunately, Upstream appears to be rather intransigent.

From: Jim Levine [mailto:Jim.Levine@upstream.us.com]
Sent: Monday, November 16, 2009 11:11 AM
To: Lopez, Ludmyrna; Bates, Nat; elirapty@aim.com; Viramontes, Maria; Ritterman, Jeff; Butt, Tom
Cc: Schneider, Janet; gordonhart@paulhastings.com; bruce_goodmiller@ci.richmond.ca.us; Lindsay, Bill; Velasco, Lina; Jcoho
Subject: Thoughts on possible LDA Amendment for your consideration

Dear Vice Mayor Lopez and City Councilmembers Bates, Butt, Ritterman, Rogers and Viramontes:

We understand that the subject of a possible amendment to the Point Molate LDA will be addressed in closed session. The idea of an LDA Amendment arose recently as a way to streamline the closing process for the land purchase, after the City considers, and hopefully certifies the project EIR. The current LDA is workable, however during discussions with City staff, it became clear that some minor changes in closing conditions could provide the City the time it needs to finish the EIR process, potentially provide more cash to the City of Richmond in 2010, accelerate future payments by making the term of the note 10 years rather than 15 years, and allow a smooth transition in the note guarantor from Harrah’s to our current financial partner. The refinements that have been discussed with staff would add more certainty and provide some improvement in economics for both parties.

County Agreement and CEQA Settlement Discussions

As you all know, the Guidiville Tribe has recently entered into an Intergovernmental Agreement with Contra Costa County.  As has been reported, the Tribe continues in discussions with various environmental groups to settle existing CEQA litigation.  These initiatives by the Tribe will provide millions of dollars for County health and law enforcement services and, if completed, the pending environmental agreement will provide funding for shoreline open space in West County.  Both of these agreements further the governmental mission of the City of Richmond and will benefit its citizens, and should not be considered a diversion of funds from the City, but a benefit that the City has put in motion by the initial LDA.

More important, the Tribe’s initiatives with the County and to settle the CEQA litigation should be viewed as further evidence of the Tribe’s resolve to assure that the Project will succeed.  Any substantial delays in opening the project are not in the City’s interest to achieve the social and economic goals it has established.  So, these agreements can and should be viewed as helping to deliver City benefits earlier, and providing additional benefits to the City and community, funded by the Tribe.
 

Most important, the Tribe’s initiatives with the County and the environmental group should not be misconstrued to be an invitation for the City to revisit the basic economic terms of the LDA or MSA.

Municipal Services Agreement

The Municipal Services Agreement (MSA) between the City and Guidiville was negotiated fairly and completely and remains a valid and good deal for both parties. No change of facts has occurred to believe otherwise. Any suggestion that the MSA was simply the “form but not substance” is simply wrong and would not be supported by the facts or the negotiators for either party. The agreement at the time the LDA was approved was to sign the MSA after the EIR was completed and simply attach all EIR mitigations as enforceable components of the Agreement. Any suggestion that it is would remain up for renegotiation is wrong and would not be well received by us or the Tribe. We know that the idea of dishonoring the MSA is not a majority Council view, but wanted to make sure our understanding of the Agreement was clear.

Typical of many tribes, please bear in mind that Guidiville is in the position it is in today because of a treaty that was negotiated between Guidiville ancestors and the United States that was later unilaterally nullified by the US government. We have continually encouraged the Tribe to believe that there are people in California who will honor agreements, and can be trusted.  Honoring the MSA as written will help establish positive relations between the Guidiville and the City for decades to come. I am hopeful that the City Council does not prove us wrong. In the same vein, our funding agreements with the Yocha Dehe Wintun Nation (formerly Rumsey) were developed in the belief that the City MSA would be honored. It would not add any certainty to the project to place this underlying agreement in question now. 

We have also seen false statements that we intend to abandon the project and simply turn around and sell the land to Chevron for $30 million more than we pay for it, providing us a “healthy profit for a day’s work.” To once again dispel this notion, please be advised that by the time we get to closing; we will have invested more than $20 Million in addition to the $15 Million of LDA payments to the City. With interest on the funds already spent, re-selling the land as described would provide no benefit to us and is a ludicrous suggestion. At the same time, we have communicated to City staff that we are amenable to guaranteeing to the City a fixed timetable for making payments under the MSA and will work this out through further discussions with City staff.

Design Concept Document

As clearly described in the LDA, the Design Concept Documents were never intended to be a “design” document (we are suffering from a bad name choice), but rather an agreed-upon envelope of allowable project development that we could build without further City CEQA review. With respect to comments we have heard regarding the Design Concept Documents, we do acknowledge that there is additional information we can provide that would better describe the high level of quality we are planning on building. In recent discussions with City staff, we have come up with some ideas on how to better present this information and will do so before the City is asked to approve the project.  .

Now that we are nearing final approval of the project by governmental authorities at all levels, we look forward to concluding this process with the City to continue to work together to build the highest quality project ever conceived in Richmond, so that we both can realize the tremendous benefits that caused us to enter into this process together five years ago.

Please call or email me with your comments.

Sincerely,

Jim Levine

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Please note my new email: jim.levine@upstream.us.com