Oakland Bulk And Oversized Terminal, Insight Terminal Solutions, Letter To City Of Oakland

Oakland, CA – This “Oakland Bulk And Oversized Terminal ( and partner Insight Terminal Solutions) Letter To City Of Oakland” was issued by Oakland Bulk And Oversized Terminal LLC. It was made available to the public (including the media) on Monday, September 30th, 2019.

The document is a letter sent to William A. Gilchrist Director, Planning and Building Department, City of Oakland, and is a response to the “City of Oakland’s August 30, 2019 letter entitled Annual Compliance Review for the period Commencing July 12, 2018 and Ending July 16, 2019”.

The letter provides extreme details of how the City of Oakland worked at every turn to frustrate Oakland Bulk And Oversized Terminal (Insight Terminal Solutions) attempts to build the bulk terminal in accordance with the development agreement (called “DA), and for purely political reasons. Those reasons were related to fears of pollution via the handling of coal that were roundly discredited by a Federal Judge and led to the ruling that the City of Oakland’s “coal ban” was illegal.

In the opinion of this blogger (who has a history with the project dating back to 1991 and Oakland Sharing The Vision and has Insight Terminal Solutions as a client), The City of Oakland has continued to act in violation of the judge’s ruling to date. Developer Phil Tagami and the Insight Terminal Solitions organizations has prevailed in their efforts to overturn the city of Oakland’s illegal coal ban, as U.S. District Judge Vince Chhabria ruled ruled in favor of the Oakland Bulk And Oversized Terminal last year.

Meanwhile, the truth about the Oakland Bulk And Oversized Terminal is that it was designed, from the start, to be a low-emissions development: even the coal cars used would be covered, not open. Which brings up another point constantly made at Oakland News Now: it’s a bulk terminal and not a coal terminal or coal factory – contrary to a cache of efforts to produce fake news about the project.

As the letter will show, the facts are that the Oakland Bulk And Oversized Terminal was known to be planned to handle coal and other commodities with the assistance of the City of Oakland in the form of Pat Cashman, an economic development specialist and his colleague Doug Cole.

As a note, changes were made to the text of the letter to improve search engine optimization. For example, references to “City” or “The City” were changed to “City of Oakland” or “The City of Oakland”, though not in every single case where that appeared. the same is true for “DA” which stands for “Development Agreement”.

Exhibits Related To The OBOT Letter To City of Oakland

There are references to letters and communications throughout the letter below. Many of those documents were provided in an online Dropbox folder. Those files, all 174 of them, were downloaded into this post, and appear at the end of it.

Here’s the letter, below.

September 27, 2019
Sent Electronically & Hand Delivered
William A. Gilchrist
Director, Planning and Building Department
City of Oakland
250 Frank H. Ogawa Plaza, Suite 3315
Oakland, California 94612-2032
[email protected]
Copy To:
City of Oakland
250 Frank H. Ogawa Plaza, 5th Floor
Oakland, CA 94612-2032
Attention: John Monetta
Email: [email protected]
Re:

Oakland City Attorney’s Office
One Frank H. Ogawa Plaza, 6th Floor
Oakland, CA 94612-2032
Attention: Bijal Patel
Email: [email protected]

2019 DA Annual Review
RESPONSE TO CITY LETTER &
REQUEST TO MEET & CONFER
Response Due Within Thirty (30) Days

Mr. Gilchrist,
On behalf of (Insight Terminal Solutions) Oakland Bulk & Oversized Terminal, LLC (“OBOT”), this response (“Response”) 1 replies to the City of Oakland’s August 30, 2019 letter entitled Annual Compliance Review for the period Commencing July 12, 2018 and Ending July 16, 2019 (“Annual Review Period”) under the Gateway Development/Oakland Global Project Development Agreement (“DA”) with the City of Oakland (“City”) with Respect to the Area Covered by the Ground Lease for West Gateway Dated February 16, 2016 (“WGW Ground Lease”) (“Letter”). Capitalized terms used but not expressly defined herein have the same meaning as set forth in the Letter and the WGW Ground Lease. The allegations set forth in the Letter come as no surprise; particularly considering the City’s conduct since (Insight Terminal Solutions) OBOT’s 2018 DA Annual Review submission. For some time now—either intentionally or perhaps because of the extended duration of the Oakland Army Base redevelopment project (“OAB This Response focuses on how OBOT and its subtenants have complied with the DA and the WGW Ground Lease. This Response does not fully explore all of the ways the City has breached the DA and WGW Ground Lease or otherwise damaged (Insight Terminal Solutions) OBOT. By providing this Response, OBOT does not waive any claims it has against the City of Oakland for breach of the DA, breach of the WGW Ground Lease, or any combination thereof or otherwise, including, without limitation, those allegations against the City of Oakland set forth in that certain First Amended Complaint, dated June 6, 2019 (“Complaint”), which Complaint is incorporated herein by reference. 1

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 2

Redevelopment”) and high rate of employee turnover at the City 2 (most likely some combination thereof)—the City has ignored many important facts that have transpired over the last 7+ years. Consequently, in addition to specifically responding to the allegations set forth in the Letter, OBOT wishes to provide the City with a more comprehensive response demonstrating OBOT’s compliance with the DA and the WGW Ground Lease, even in the face of the City’s efforts to stop the Project (defined below). This Response includes: (1) a detailed Statement of Facts, intended to supplement and correct the errors set forth in the Letter; (2) discussion of OBOT’s prior Force Majeure claims against the City, as well as an additional Force Majeure claim; (3) specific responses to the allegations set forth in the Letter; and (4) a request for the City to issue a certificate of compliance with the DA or commence the Meet & Confer process.

STATEMENT OF FACTS

A. OBOT’s Rights Under the DA The DA “vest[s] in Developer the right to develop the Project.”

3 The definition of Project, with regards to the West Gateway, includes the right to develop:
1.
Bulk Oversized Terminal: A ship-to-rail terminal designed for the export of non-containerized bulk goods and import of oversized or overweight cargo (“Bulk Oversized Terminal”).

2. See Project Timeline with City of Oakland Turnover, a copy of which is attached hereto as Exhibit A. Development Agreement (July 16, 2013), at 16, a copy of which is attached hereto as Exhibit B. The City of Oakland’s recent brief filed in connection with its Appeal from the Superior Court of California, County of Alameda Order Denying Special Motion to Strike Under Code of Civil Procedure § 425.16 (Case No. RG18930929) acknowledges that “[t]he agreements [the LDDA and DA] granted OBOT the right and obligation to develop, build, and operate the Terminal, . . . The Terminal was envisioned as a facility for unloading bulk goods from railcars and transferring those goods onto ships for export to other countries.” Opening Brief of Defendant–Appellant City of Oakland (Case No. A157330) at 13–14. This is a shift by the City from its argument in Oakland Bulk & Oversized Terminal, LLC v. City of Oakland (Case No. 3:16-cv-07014-VC), where it argued OBOT had no vested rights to develop, operate, and use the Terminal.
3

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 3

2.
Railroad Improvements: Railroad tracks and related equipment necessary to adequately serve the Bulk Oversized Terminal as shown on the Master Plan.

4 With regards to the definition of Bulk Oversized Terminal, the terms “non-containerized bulk goods” and “bulk commodities” are common shipping industry terms used to refer to thousands of different types of goods and material transported without use of individual containers; the most common of which have been known by the City from the conception of the OAB Redevelopment.
5 In fact, the City’s own 2013 Long-Range Property Management Plan (“LRMP”) cites as examples of bulk commodities: “lumber, coal, [and] sulfur.”
6 As lead agency for the 2012 Oakland Army Base Project Initial Study/Addendum (“EIR”), the City and its consultant, LSA Consultants, Inc. (“LSA”), studied the environmental impacts of the Bulk Oversized Terminal and Railroad Improvements.
7 Although aware of the different types of bulk commodities, neither LSA nor the City focus their analysis on any specific bulk commodity to be handled at the Project. Rather, LSA and the City conducted a global analysis, looking at a terminal operating on a 24 hour per day basis and capable of handling non-containerized bulk goods transported vis-a-vis up to three unit trains (trains of 100+ railcars) per day.
8 The conclusion reached by both was, after the Army Base Gateway Redevelopment Project Lease Disposition and Development Agreement (2012) (“LDDA”), Attachment 7, at 2, a copy of which is attached hereto as Exhibit C.
See also WGW Ground Lease, Exhibit 3.1, a copy of which is attached hereto as Exhibit D (adopting similar [albeit somewhat more detailed] descriptions of the Bulk Oversized Terminal and Railroad Improvements).
4 Letter from David Smith, OBOT legal counsel, to Senator Ricardo Lara (May 11, 2016), a copy of which is attached hereto as Exhibit E (opposing SB 1277 [Hancock] and setting forth four examples, going back to 2011, when the City was notified of potential bulk commodities to be handled at the Bulk Oversized Terminal).
See also TLS Basis of Design available at http://www2.oaklandnet.com/government/o/ CityAdministration/ d/projectimplementation/OAK038485 (last visited September 26, 2019) (identifying common bulk commodities and handling requirements).
5

Letter from Elizabeth “Betsy” Lake (then the City’s outside legal counsel) to the City, et al. (September 12, 2013) (“Lake Report”), Exhibit 4 (LRMP), at 8 (emphasis added), a copy of which is attached hereto as Exhibit F. Clearly, the City’s own document—in addition to OBOT’s numerous presentations—acknowledges that coal could be a potential commodity handled by the Bulk Oversized Terminal. The LRMP, voted on and approved by the City Council (Resolution No. 2013-12), was submitted by the City to the (1) California Department of Finance, (2) Oakland Redevelopment Successor Agency (ORSA) Board, and (3) the California Department of Toxic Substances Control (DTSC) to justify the Project. Id. The full version of the Lake Report is available electronically upon request.
6

7
LSA Associates, Inc., 2012 Oakland Army Base Project Initial Study / Addendum (May 2012). The full EIR is available at http://www2.oaklandnet.com/oakca1 /groups/ceda/documents/report/oak035061.pdf (last visited September 18, 2019).

Id. at 30, 46. A copy of these EIR pages are attached hereto as Exhibit G. This is consistent with an October 21, 2015 e-mail from Darin Ranelletti (then Deputy Director of the City’s Planning and Building Department) to
8

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 4

application of applicable mitigation measures, the Project would not result in new significant environmental impact. 9 The DA also limits the City’s regulatory power over the Project in three primary ways: (i) locks in place the “Existing City Regulations” applicable to the Project; 10 (ii) prohibits the City from, among other things, “materially chang[ing] or modify[ing], or interfer[ing] with, the timing, phasing, or rate of development of the Project; . . .” 11 and (iii) requires the City to “rely on the EIR to satisfy the requirements of [the California Environmental Quality Act (“CEQA”)] to the fullest extent permissible by CEQA and City will not require a new initial study, negative declaration or subsequent or supplemental EIR, unless required by CEQA . . . .” 12 By so doing, the DA was designed to provide OBOT “with a measure of certainty that new and unexpected government regulations [would] not stymie” the Project from moving forward. 13

B. The Parties’ DA Obligations
In order to ensure that each party is acting in a manner that will best advance the Project, the City and OBOT are annually required to review the DA, including all actions taken pursuant to the terms thereof, to certify their good faith substantial compliance with the same. 14 Where the developer, in this case Zachary Wald (Chief of Staff for City Council member Lynette Gibson McElhaney) explaining that the EIR analyzed the environmental impacts from both the construction and operation of the bulk terminal handling “‘noncontainerized bulk goods’ generally, rather than analyzing any specific commodities, or mix of commodities that might be transported.” A copy of this e-mail is attached hereto as Exhibit H. Id. See also Agenda Report from Fred Blackwell, Assistant City Administrator, to Deanna Santana, City Administrator (May 30, 2012) at 21–22, a copy of which is attached hereto as Exhibit I.
9

10
DA § 3.4. See also Oakland Bulk & Oversized Terminal, LLC v. City of Oakland (N.D. Cal. 2018) 321 F. Supp. 3d 986, 990 (stating that “[w]ith a few exceptions, the agreement freezes in place the regulations that existed when the agreement was signed and precludes the application of regulations adopted after the signing.”) A copy of the original “Findings of Fact and Conclusions of Law” is attached hereto as Exhibit J (“Findings of Fact”). The term “Existing City Regulations” is defined in the DA as “[t]he City Regulations and City Policies in effect as of the Adoption Date and to the extent such are consistent therewith, the City Approvals as such are adopted from time to time.” DA § 1.1.
11

DA § 3.4.1.

12
DA § 3.5.1. See also Letter from Barry W. Lee, OBOT legal counsel, to Barbara Parker, City Attorney (October 19, 2018) at 24–26, a copy of which is attached hereto as Exhibit K (discussing the difference between ministerial and discretionary approvals, as well as when CEQA may be reopened by the lead agency).
13

Oakland Bulk & Oversized Terminal, 321 F. Supp. 3d at 992 (Findings of Fact at 8).

14

DA §§ 6.1, 6.2.

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 5

OBOT, has complied with the Development Agreement, the City of Oakland is required to provide a certificate of compliance.15 If the City believes the developer has not complied with the DA, the developer is given an opportunity to respond, after which the City either certifies compliance or engages in a meet and confer process with the developer. 16 If, at any time, either party believes that the other is not in compliance with the DA, it may notify the alleged non-compliant party, specifically setting forth the claims of non-compliance, thereby triggering a response requirement followed by the meet and confer process. 17 OBOT has alleged for some time that the City has failed to comply in good faith with the requirements of the DA; and a federal district court agreed (“Ruling”). 18 Despite the Ruling, multiple requests to meet and confer, and over a dozen claims of Force Majeure against the City—identifying how the City’s actions have inhibited OBOT’s ability to Commence Construction 19—the City has refused to engage in any meaningful dialog, electing instead to brush aside OBOT’s claims in favor of allegations that OBOT has failed to comply with the WGW Ground Lease and DA. As set forth below, the City’s allegations are patently false and only further delay a project that was designed to benefit not only OBOT but also the City, its workforce, and its residents. 20

C. OBOT’s Efforts to Commence Construction – Bulk Oversized Terminal
As it relates to the Bulk Oversized Terminal, OBOT declares that it has complied with its obligation to Commence Construction, or is otherwise excused from any delay caused by the City, as follows:

15

DA §§ 6.3, 6.5.

DA §§ 6.3, 8.4. If the developer and City cannot resolve any issues through the meet and confer process, the City Council is to conduct a noticed public hearing wherein the developer may advance evidence of its good faith substantial compliance with the DA. DA § 8.5.
16

17

DA §§ 8.2, 8.3.

18

Oakland Bulk & Oversized Terminal, 321 F. Supp. 3d at 1010–11 (Ruling at 37).

See infra “Force Majeure Claims.” The WGW Ground Lease § 40 defines “Commence Construction” as “with respect to any and all Improvements on all or any portion of the Premises, that a Building Permit has been obtained for such Improvements, where applicable a foundation (slab or other type) has been installed ad such Improvements are subject to active and on-going construction.” Building Permit means a building permit or equivalent permit for construction issued by the City. Id.
19

20

See Agenda Report, supra note 9, at 21.

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 6

I.

Initial Project Submittals

Even before the WGW Ground Lease was executed, and despite not having the Existing City Regulation binders the City was required to provide, 21 OBOT and its then proposed tenant, Terminal Logistics Solutions (“TLS”), submitted to the City the Basis of Design (“BOD”), which identified the foundational components of any future terminal, regardless of the types of commodities shipped. 22 The BOD also provided a conceptual schedule for the Project. 23 As part of the BOD effort, OBOT and TLS hired architects, engineers, and industry experts, expending millions of dollars in furtherance thereof. The

Section 3.4.3 of the DA required the City to provide the Developers (including OBOT) binders of the Existing City Regulations (“Binders”) within ninety (90) calendar days after the Adoption Date (as defined in the DA). The City failed to meet this requirement. Instead, after over 2 ½ years of asking for the Binders, the City asked California Capital & Investment Group, Inc. (“CCIG”) to compile the Binders and submit them to the City. CCIG is the sole member of OBOT. Despite having no obligation to do so, in an effort to advance the Project, CCIG answered the City’s request and compiled the Existing City Regulations, delivering the same to the City. See Transmittal from CCIG to John Monetta, City project manager (March 31, 2016), a copy of which is attached hereto as Exhibit L. The City acknowledged receipt of the Binders—see Memorandum from Claudia Cappio, then Deputy City Administrator for Phil Tagami, CCIG President & CEO (March 31, 2016), a copy of which attached hereto as Exhibit M—but ultimately decided to compile its own Binders, delivering the same to the developers on June 15, 2016, nearly three years after it was required to do so under the DA and four months after the WGW Ground Lease had been fully executed. See Letter from Darin Ranelletti to Mark Hansen, Prologis, and Phil Tagami (June 15, 2016), a copy of which is attached hereto as Exhibit N. The significance of this City failure was that OBOT and TLS could not provide than a conceptual design in the BOD because it was unclear what rules and regulations would be applied to the Project. As set forth below, this qualified as a Force Majeure event, delaying OBOT’s obligations under the WGW Ground Lease. See infra “Force Majeure Claims.”
21

See Transmittal from CCIG to Doug Cole, City project manager (August 5, 2015), a copy of which is attached hereto as Exhibit O. The BOD was submitted in advance of the July 21, 2015 “Health and Safety” hearing, and again on August 5, 2015. See TLS Basis of Design, supra note 5. At the time the BOD was submitted, TLS had an option to enter into a sublease with OBOT following OBOT’s execution of the WGW Ground Lease with the City. See Letter from Jerry Bridges, President and CEO of TLS to Sabrina Landreth, City Administrator (September 8, 2015), a copy of which is attached hereto as Exhibit P. The BOD sets forth the requirements with which any future facility would have to comply in terms of its design, equipment, staffing, and operations to a 10% level. The BOD only existed at the time of its submittal because the City had asked OBOT to forego site improvements at the West Gateway and enter into its lease early in order to solve a City funding shortfall. In what later became known as the Mid-Project Budget Revise, OBOT agreed and spent money to accelerate development of the Project. The City, on the other hand, delayed execution of the WGW Ground Lease (and, consequently, any sublease) for over a year.
22

23

See TLS Basis of Design, supra note 5, at Section 17.

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 7

City’s input was imperative at the BOD phase, however, so that money and time were not wasted in pursuit of a design the City would not approve. But the City provided no comments to the BOD. 24 The other primary concern, given the unique nature of the Project and the need to avoid bureaucratic delay, was the City’s ability to process Project permits. As such, OBOT requested a meet and confer process with the City to discuss the handling of permits and the need for City cooperation. 25 OBOT also submitted a project schedule to the City, further explaining that any arbitrary delays on behalf of the City would delay the Project. 26 After execution of the WGW Ground Lease by the City (acting in its “proprietary” or market participant capacity), 27 OBOT again reached out to request a “kick off meeting with the appropriate [C]ity staff to discuss the process we will adopt to design, plan check, and build and obtain inspection services for” the Project. 28 The City responded by saying it would set up a meeting to discuss the “project overview, basis of design so far, review of permits and processes, and next steps.” 29 Thereafter a meeting was set for March 9, 2016. OBOT was finally hopeful that the Project would move forward. But such hope was about to be dashed by the City.
II.

Pre-Application Meeting between OBOT and City Staff

On March 9, 2016, OBOT attended a “pre-application” meeting with City staff to discuss the BOD and the essential components needed to complete the permit submission package. The meeting was attended by a representative, if not the department head, of virtually every relevant department of the City, as well as the City’s legal counsel.

Instead, the City used the BOD as a dart board in the context of its “health and safety” review and what it hoped would be an outcome-determined administrative record that it presumed would support a pre-ordained adoption of an ordinance and resolution prohibiting the transport or handling of coal or coke at or by the Project.
24

E-mail from Phil Tagami to Claudia Cappio, Assistant City Administrator (January 12, 2016 16:26 PST), a copy of which is attached hereto as Exhibit Q.
25

E-mail from Phil Tagami to Claudia Cappio (January 21, 2016 16:38 PST), a copy of which is attached hereto as Exhibit R. As part of this e-mail, OBOT raised a concept that had been orally discussed between Mr. Tagami and Ms. Cappio, the potential that the City would need to hire a third-party peer reviewer as the City did not have the inhouse expertise to be able to review the BOD. Id. This is an issue that has never been resolved by the City.
26

Section 5.2.1 of the WGW Ground Lease “Tenant acknowledges and agrees that Landlord is entering into this Lease in its proprietary capacity as the holder of fee title to the Property, and not in its capacity as a governmental regulatory agency . . . .” See also infra at “Force Majeure Claims.”

27

E-mail from Claudia Cappio to Phil Tagami (February 23, 2016 15:51 PST), a copy of which is attached hereto as
Exhibit S.
28

29

Id.

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 8

Instead of discussing the City’s specific substantive requirements needed to move the Project forward (including a review of the BOD), it quickly became apparent that the City had a different agenda in mind. The Assistant City Administrator began the meeting by stating that the City’s review of OBOT’s submissions would be “discretionary.” Upon request for further elaboration, the Deputy City Attorney clarified that—notwithstanding OBOT’s vested right to build and operate the Bulk Oversized Terminal, the City’s obligation under the DA to rely on the EIR “to the fullest extent permissible by CEQA,” 30 as well as the City’s pre-existing knowledge regarding the types of commodities that would potentially be handled by the Bulk Oversized Terminal—the City had determined it was going to reopen CEQA and approve (or not) any future permits on a “commodity-by-commodity” basis. In other words, regardless of the sufficiency and safety of the Project’s proposed design, construction, and operations, if the commodity to be shipped through the Bulk Oversized Terminal was politically untenable, permitting would not occur. 31 OBOT immediately warned the City that this position was contrary to CEQA, violated OBOT’s vested rights under the DA, and would expose the Project to new litigation challenges.
32

Ignoring OBOT’s warnings, the Assistant City Administrator went on to explain that the City was also looking for other instances where OBOT (or its subtenant) would be required to apply to the City for discretionary approvals. 33 One specific example cited by the City was that it was now requiring OBOT to apply for a Creek Protection Permit. The City’s justification: The City had determined that the San Francisco Bay, to which the Project adjoins, was a “creek.” OBOT was perplexed by this position for two reasons. First, when did the definition of a creek become so expansive as to include a large salt water bay navigated by ships? Second, the City’s EIR expressly states that a Creek Protection Permit is not required for the Project. 34 Nevertheless, the City insisted that it had the authority to require such a discretionary permit.
30

DA § 3.5.1.

Draft Letter from David Smith to Mark Wald, Deputy City Attorney (March 10, 2016), a copy of which is attached hereto as Exhibit T (“Draft Letter”). A copy of the Draft Letter was shared by Mr. Smith with Mr. Wald, but the Draft Letter was never formally delivered to the City.
31

32
Id. Two prior CEQA attacks on the Project by third parties had already been abandoned on statute of limitations grounds: (i) Communities for a Better Environment, et al. v. City of Oakland, et al. (Case No. RG15788084) and (ii) Marcus Crawley v. City of Oakland, et al. (Case No. RG16809940). In fact, it was the Crawley case, filed April 4, 2016, that led to OBOT’s discovery of the Cappio Memo. See infra, note 36.
33
Discretionary approvals may also potentially reopen CEQA under limited circumstances into which the City was
attempting to gerrymander. See Draft Letter, supra note 31.

EIR at 182–83, a copy of which is attached hereto as Exhibit U (stating “In conclusion, waters in the project area are not defined as a creek by the Creek Protection Ordinance. This finding is consistent with the 2002 EIR findings
34

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 9

Once the City of Oakland’s intent was made clear, OBOT unambiguously expressed its disagreement with the City of Oakland’s position. And seeing that the City was not actually there to advance the Project, OBOT walked out of the meeting. Subsequent correspondence from OBOT to the City articulated why the City of Oakland’s position was legally indefensible and, further, that the City’s actions constituted a Force Majeure Event resulting in a tolling of OBOT’s obligations under the WGW Ground Lease. 35 Little did OBOT know at the time that this was all part of a multi-faceted attack by the City on the Project.
III.

City of Oakland’s Plan to Block the Project

Unbeknownst to OBOT, going back to 2015, the City had been actively trying to block the Project from moving forward. The City hoped to accomplish this through three methods: (a) Refuse to Issue Permits for the Project. On information and belief, the City was instructed not to issue permits for the Project. This plan was implemented through a November 6, 2015 Memorandum from Claudia Cappio, then Assistant City Administrator, to the Planning and Building Department (“Cappio Memo”). 36 The Cappio Memo directs City staff not to issue any permits to OBOT, instead inventing a new policy that required staff to obtain authorization from senior level City employees before issuing a permit. 37 On information and belief, no other project in the City is or has been subject to a similar requirement or restriction. 38 To OBOT’s knowledge, the Cappio Memo is still in effect. 39 Not only does the creation of this new City Policy that there are no creeks in or near the project area, and conditions do not exist that could cause a conflict with the City’s Creek Protection Ordinance.”)
Letter from Marc Stice, OBOT legal counsel, to Sabrina Landreth and Diane Millner (March 11, 2016), a copy of which is attached hereto as Exhibit V. See also Draft Letter, supra note 31.
35

E-mail from Darin Ranelletti to the Planning and Building Department (November 9, 2015), a copy of which is attached hereto as Exhibit W. Importantly, the Cappio Memo was also sent to Mayor Libby Schaaf and the City Council, parties generally not involved in the permit processing aspect of projects.
36

37

Id.

On its face, the Cappio Memo only applies to OBOT and the Project, despite multiple other development project at the Oakland Army Base. Id. Additionally, OBOT is aware that the Port has been issuing permits to its Oakland Army Base tenant without requiring the tenants to obtain a permit through the Planning and Building Department.
38

During an August 7, 2018 meeting, Elizabeth Lake, Assistant City Administrator, verbally notified OBOT that Cappio Memo had been lifted and that OBOT could now apply for a permit. Thereafter, Ms. Lake denies that she ever lifted the Cappio Memo, thus the restriction on OBOT’s permitting ability remains in place to date.
39

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 10

violate the Existing City Regulation restriction in the DA, the Cappio Memo materially interferes with, the timing and rate of development of the Project in violation of the express terms of the DA. 40
(b) Invent Discretionary Approvals.
Due to a misguided assumption that other governments had been successful in blocking terminal projects through the use of discretionary approvals, the City actively began to explore discretionary permits it could utilize to delay, diminish, or destroy the Project. 41 This approach was reiterated in a letter from Sabrina Landreth to Phil Tagami, in which she states:
[T]he City is also evaluating discretionary decisions it may take in the future with respect to the bulk commodities terminal (e.g., additional permit requirements) and the scope of additional environmental review, if any, that it may require in connection with any such decision(s), consistent with its existing contractual obligations. 42 When taken in context with the March 9, 2016 meeting and the Cappio Memo (which also identifies discretionary permits such as a Creek Protection Permit), it is clear the City was trying to obstruct the development of the Project by inventing permits and additional layers of regulatory review that it could later deny.

As stated above, the DA forbids the City from enacting new City Policies, particularly those policies that “materially change or modify, or interfere with, the timing, phasing, or rate of development of the Project.” DA § 3.4.1. OBOT challenges the City to provide evidence that prior to the execution of the DA, the City had a similar policy to that which is set forth in the Cappio Memo. The failure to provide such evidence demonstrates that this was a new policy enacted against the Project in violation of the DA.
40

E-mail from Doug Cole to Mark McClure, CCIG Vice President (May 8, 2015 13:37 PST), a copy of which is attached hereto as Exhibit X.
41

Letter from Sabrina Landreth to Phil Tagami (February 11, 2016), a copy of which is attached hereto as Exhibit Y. OBOT responded to the Landreth Letter, objecting to the City’s assertions that the City was entitled to future discretionary approvals. See Letter from Phil Tagami to Sabrina Landreth (February 19, 2016), a copy of which is attached hereto as Exhibit Z.
42

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 11

(c) Conduct a Health and Safety Hearing. Perhaps the method that garnered the most energy by the City (certainly the most public funds) was its attempt to circumvent the restrictions in the DA through a health and safety hearing, 43 eventually resulting in the City passing of Oakland Ordinance No. 13385 (“Ordinance”), banning “the storage, loading, unloading, stockpiling, transloading and handling of coal and coke,” 44 and Resolution No. 86234
(“Resolution”), applying the Ordinance to the Project. The practical effect of the Ordinance and Resolution was that it placed a cloud of uncertainty over the Project, as the market place did not know what commodities the City may next attack, placing an undue burden on OBOT’s ability to procure a subtenant and financing for the Project. Notwithstanding the City’s clear attacks on the Project and conscious disregard of OBOT’s vested
rights conveyed in the DA, OBOT continued its efforts to move the Project forward. But receiving no meaningful assistance, cooperation, leadership, or direction from the City, OBOT was left with no alternative but to protect its vested interests in court. IV.

The Federal Lawsuit

Unable to overcome the City’s adversarial advances by itself, on December 7, 2016, OBOT filed a lawsuit in the United States District Court for the Northern District of California, alleging various federal preemption causes of action, as well as breach of the DA by the City. On May 15, 2018, after a three-day bench trial, the court issued a 37-page ruling, finding (among other things) that the City’s passing of the Resolution constituted a breach of the DA because the record before the City was devoid of any credible evidence supporting the City’s feigned “health and safety” concerns.45 Following the Ruling, the Mayor and City Council members went on record declaring that they would continue to do whatever is in their power to stop the Project from moving forward. 46 As a result, the City appealed the Ruling, with oral DA § 3.4.2. Given the depth and breadth of the Federal Court’s analysis of Section 3.4.2 in the federal lawsuit, OBOT will refrain from a further recitation on the City’s misapplication of this DA provision. Instead it will refer the reader to consult the Findings of Fact.
43

44

O.M.C. § 8.60.010, et seq.

45

See Oakland Bulk & Oversized Terminal, LLC, 321 F. Supp. 3d at 1005–06 (Findings of Fact at 28–30).

Mayor Libby Schaaf is quoted as saying: “We will continue to fight this battle on all fronts; not just today, but every day.” Darwin BondGraham, Judge Rules in Favor of Oakland Coal Project, East Bay Express (May 15, 2018), https://www.eastbayexpress.com/SevenDays/archives/2018/05/15/oaklands-coal-ban-struck-down-byfederal-judge. Council Member Dan Kalb is quoted as saying: “I will do everything in my power to stand against attacks on the health and safety of our East Bay communities. The City should do whatever it takes within the law to make sure this coal terminal never gets built.” Dan Kalb, Councilmember Kalb’s Spring Newsletter (May 18, 2018)
46

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 12

arguments scheduled before the United States Court of Appeals for the Ninth Circuit on November 12, 2019. On the heels of the Ruling, OBOT moved forward with procuring a subtenant for the Bulk Oversized Terminal and advancing the Railroad Improvements through its affiliate entity, Oakland Global Rail Enterprise (“OGRE”). And for a time, the City seemed willing to cooperate if OBOT agreed to a modified version of the Project. But things quickly changed once OBOT notified the City that OBOT was entering into a sublease with Insight Terminal Solutions, LLC (“ITS”) for the Bulk Oversized Terminal.
V.

2018 DA Annual Review

The first sign that something had changed was the City’s response to OBOT’s 2018 Annual
DA Review. The report identified how OBOT had complied with the DA for the review period
from July 6, 2017 to July 12, 2018 (“2018 Review Period”).
47 In its response (“2018 City
Response”), the City improperly extended the 2018 Review Period to at least August 14, 2018, so that it could argue OBOT had failed to submit schematic drawings or a building permit
application to the City prior to the Initial Milestone Date. 48 The City needed to make this
argument so that it could say OBOT was in breach of the WGW Ground Lease and, by extension,
that OBOT was not in compliance with DA.
49 The City’s assertion was difficult to reconcile
because at the time of the 2018 City Response, the City had not delivered to OBOT a notice of
default as required by the WGW Ground Lease.
50 Calling out the City’s improper extension of
available at http://www2.oaklandnet.com/oakca1/groups/citycouncil/documents/statement/oak071919.pdf. Council Member Kalb is further quoted as saying: “We need to do whatever it takes within the law to hold firm in our opposition to this ridiculous proposal. The residents in that area, the workers of Oakland and the entire world need us to stop this export terminal.” Kimberly Veklerov, Federal Judge Strikes Down Oakland’s Ban of Coal Facility Operations, SFGate (May 15, 2018), https://www.sfgate.com/bayarea/article/Federal-judge-overturns-Port-ofOakland-coal-ban-12916650.php.
See Letter from Phil Tagami to William Gilchrist, Director of the Planning and Building Department (July 12,
2018), a copy of which is attached hereto as Exhibit AA.

47

This despite both the BOD submission to which the City never responded, as well as OGRE’s fence permit application.

48

Letter from William Gilchrist to Phil Tagami (August 27, 2018), a copy of which is attached hereto as Exhibit AB. As discussed below, this claim is also flat wrong. At the time the 2018 City Response was delivered, OBOT’s affiliate/subtenant, OGRE, had submitted to and received approval from the City for the Permanent Fence. See infra Section C(VI). OGRE had also completed a portion of the Railroad Improvements. See infra, note 158.
49

50

WGW Ground Lease § 18.1 et seq.

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 13

the 2018 Review Period, OBOT replied with a detailed letter (“2018 OBOT Reply”) identifying
OBOT’s good faith efforts to comply with Initial Milestone Date set forth in the WGW Ground
Lease, claiming that any delay thereof was a result of Force Majeure Events caused by the City.
51
OBOT’s reply also demanded that the City comply with Section 6.3 of the DA and either issue
the certificate of compliance or commence the meet and confer process.
52
And did the City comply with Section 6.3? No. Instead, the City recognized that it had not provided a notice of default and, on September 21, 2018, provided written notice to OBOT that the City was unilaterally rejecting OBOT’s multiple Force Majeure claims without any explanation, declaring an Unmatured Event of Default that needed to be cured by October 22, 2018 (“Cure Date”), and conditioning any City cooperation on OBOT agreeing (within 4 days) to a “Ban-Compliant Terminal,” the details of which would be worked out at some later date (“Notice of Unmatured Event of Default”).
53 The Notice of Unmatured Event of Default was followed up a few of days later by a letter from the City saying that it was deferring any substantive response to the 2018 OBOT Reply until after the Cure Date (“Gilchrist Response”).
54 Without waiving its rights, 55 but recognizing that the City was now making up the rules, OBOT determined to work with its new subtenant, ITS, to move the Project forward and submit plans to the City.

VI.

Schematic Drawing Submittal

On September 28, 2018, OBOT, on behalf of ITS, submitted schematic drawings (“Schematic
Drawings”) to the City (acting in its propriety/landlord capacity) for the Bulk Oversized Terminal.
56 The Letter from Phil Tagami to William Gilchrist (August 28, 2018), a copy of which is attached hereto as Exhibit
AC.
51

Id. Section 6.3 of the DA states: “ If the Director of City Planning does not agree with Developer’s response, then he/she shall provide written notice of the commencement of the Meet and Confer/Mediation Process within 30 days of the receipt of the response, and the dispute resolution procedures and process detailed in Article VII will apply, commencing with Section 8.4 (Meet and Confer/Mediation Process).”
52

Letter from Barbara Parker to Phil Tagami (September 21, 2018), a copy of which is attached hereto as Exhibit AD. Although the letter is dated Friday, September 21, 2018, it was delivered to OBOT’s address after business hours. Thus, the letter was not received and processed by OBOT until September 24, 2018.
53

54

Letter from William Gilchrist to Phil Tagami (undated), a copy of which is attached hereto as Exhibit AE.

See Letter from Marc Stice to Sabrina Landreth and Bijal Patel, Deputy City Attorney (September 24, 2018), a copy of which is attached hereto as Exhibit AF (objecting to the City’s claims of an Unmatured Event of Default).

55

56
Letter from Phil Tagami to Sabrina Landreth and Bijal Patel (September 28, 2018), a copy of which is attached hereto as Exhibit AG. A box link with the Schematic Drawings was also shared with the City. See E-mail from

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 14

Schematic Drawings were an updated version of the BOD (to which the City had never responded), and included a revised Project schedule. OBOT supplemented the submission by providing the City with an air quality analysis, specifically addressing the City’s concerns regarding PM10 and PM2.5. 57 Approval on the Schematic Drawings was needed from the City in its landlord capacity before OBOT and ITS could submit the Schematic Drawings to the City (in its regulatory capacity) for review. Comment on the Schematic Drawings was also needed from the City in its regulatory capacity to refine the design of the

Bulk Oversized Terminal. 58
Surprisingly, on October 4, 2018, representatives from the City (Elizabeth Lake and Bijal Patel) met with OBOT and ITS to discuss the Project. During the meeting, OBOT and ITS requested help in setting up a preliminary intake meeting with the City.
59 On that same day, a representative of OBOT and ITS reached out to William Gilchrist, Director of the City’s Building and Planning Department to request a meeting to discuss the Project and permitting process, as well as to solicit input on the Schematic Drawings.
60 A meeting was scheduled for October 14, 2018.
61 It seemed like things might finally move
forward. But it was all just a charade. The day before the meeting, Mr. Gilchrist cancelled the meeting.
62 OBOT’s and ITS’s requests to reschedule went unanswered.
63 The City attempted to hide behind bureaucratic red-tape and demanded that an Application for Development Review be submitted before it Amanda Price, CCIG Legal and Compliance Analyst, to Sabrina Landreth, Bijal Patel, and Elizabeth Lake (September 28, 2018 17:04 PST), a copy of which is attached hereto as Exhibit AH.Price E-mail, supra note 56. See Oakland Bulk & Oversized Terminal, LLC, 321 F. Supp. 3d at 1002–05 (Findings of Fact at 24-28). While OBOT and ITS each believe the EIR adequately assessed the construction and operation environmental impacts of the Project, including, without limitation, air quality, given the nearly 2-year delay caused by the Health and Safety hearing and resulting lawsuit, OBOT and ITS felt it appropriate to include this expert report.

57

58

See supra Section C(I).

See Letter from John Siegel, Executive Chairman of ITS, to Elizabeth Lake and Bijal Patel (October 12, 2018), a
copy of which is attached hereto as Exhibit AI.

59

E-mail from Phil Tagami to Jim Wolff, ITS CFO, et al. (October 14, 2018 13:14 PST), a copy of which is attached
hereto as Exhibit AJ.
60

61

Id.

62

Id.

See e.g., E-mail from Jim Wolff to William Gilchrist (October 22, 2019 14:04 PST), a copy of which is attached
hereto as Exhibit AK.
63

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 15

would meet to discuss the Project. So when ITS’ consultant promptly completed and submitted an Application for Development Review before the Cure Deadline, 64 the City refused to respond. The City also had to figure out how it would deal with the fact OBOT and ITS had submitted the Schematic Drawings before the Cure Deadline. Its solution: The City delivered to OBOT a letter (“Drawings Determination”), stating that the City was only recognizing the “conceptual drawings” portion of the submission—a small portion of the multi-volume Schematic Drawings—and disregarding the rest of the submittal. 65 The City further argued that the Schematic Drawings were “incomplete,” largely without specifying how or why the submittal was incomplete, nor did the City identify what was required by the City to render it complete. 66 As pointed out in OBOT’s response, where the City did specify items it deemed missing, nearly all of that information was included in the Schematic Drawings.
67 It was clear that the City had failed to review the Schematic Drawing package.
68 Notwithstanding all of
the evidence that OBOT and ITS had tried to Commence Construction, on October 23, 2018, the City issued a Notice of Event of Default, claiming that the WGW Ground Lease was automatically
terminated.
69

64
Letter from David Carter, Millcreek Engineering, to William Gilchrist and Elizabeth Lake (October 19, 2018), a copy of which is attached hereto as Exhibit AL.
65

Letter from Elizabeth Lake to Phil Tagami (October 18, 2018), a copy of which is attached hereto as Exhibit AM.

66

Id.

67
Letter from Skyler Sanders, CCIG General Counsel, to Elizabeth Lake (October 25, 2018), a copy of which is attached hereto as Exhibit AN.

The City’s underlying motive is evident in the following statement from the Drawings Determination: “The City’s response to this submittal shall in no way be construed as a substantive response or acceptance of a cure or commencement of cure of the Unmatured Event of Default described in the letter from the City Attorney dated September 21, 2018.” Id. Of course the City could not acknowledge that OBOT and ITS had commenced to cure. If it had, the City could not have turned around and alleged that OBOT had breached the WGW Ground Lease, ultimately leading to the City’s absurd claim that the WGW Ground Lease was automatically terminated.
68
Letter from Barbara Parker to Phil Tagami (October 23, 2018), a copy of which is attached hereto as Exhibit AO. Left without other recourse, OBOT and OGRE filed a lawsuit against the City. See Oakland Bulk and Oversized Terminal, LLC, et al. vs. City of Oakland (Case No. RG18930929). After the court ruled in OBOT’s and OGRE’s favor, allowing the case to move forward, the City appealed the decision. The case is currently with the California Court of Appeal, First Appellate District (Case No. A157330).
69

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 16

VII.

Fence Permit

Another example of the extreme difficulty, if not virtual impossibility, in permitting even a “simple”
part of the Project is OGRE’s effort to obtain a fence permit for the Railroad R/O/W.
70 Originally part of
the City’s scope under the public infrastructure work, due to funding issues, the City pushed the fence
construction onto the OAB Redevelopment developers, including OBOT.
71 Nevertheless, the work had
still been approved by the City as well as the San Francisco Bay Conservation & Development
Commission (BCDC) as codified in the existing permits for the OAB Redevelopment.
72 Yet, when it came to the Project, the City demanded OGRE obtain a new permit from the City,
73 further frustrating and delaying the Project. Nevertheless, if it meant moving the Project forward, OGRE was willing to acquiesce to the City’s demand. When CCIG (on behalf of OGRE) went to the City and submitted its initial documents for a fence permit, however, it was informed that a permit could not be issued over the counter (part of the new City normal for the Project).
74 Instead, CCIG was told that the process would require a special intake meeting
with City staff.
75 The Cappio Memo in action. Thereafter, CCIG was notified that the City needed to reapprove the fence work.
76 The City also demanded that OGRE obtain a new BCDC permit before the City would issue its permit.
77 The issue here is two-fold: (i) BCDC had already approved the fence as part of its open permit with the City, and (ii) BCDC generally requires a city permit before it will issue its

70

As part of the WGW Ground Lease definitions, “R/O/W” stands for “Right-of-Way.”

See Letter from James Heilbronner to Doug Cole (May 10, 2018), a copy of which is attached hereto as Exhibit
AP.
71

72

Id.

Id. On information and belief, the City allowed the other developers to install fencing using the City’s existing master permits for the OAB Redevelopment.
73

74
E-mail from Megan Morodomi, CCIG project manager, to Phil Tagami and Mark McClure (July 19, 2018 13:12 PST), a copy of which is attached hereto as Exhibit AQ.
75

Id.

E-mail from Megan Morodomi to Phil Tagami, Mark McClure and Skyler Sanders (July 30, 2018 15:25 PST), a copy of which is attached hereto as Exhibit AR. Attached to the e-mail is a letter from Peterson Vollmann, City planner, to Megan Morodomi (July 30, 2018). Again, this is work that the City was originally going to perform, and which was already permitted under the OAB Redevelopment permits.
76

77

Id.

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 17

permit resulting in a chicken and egg dilemma.
78 It was yet another in a long line of unnecessary City
delays aimed at slowing—if not outright killing—the Project.
Although OGRE objected to the need for a new BCDC permit, it provided the City with the requested
documents.
79 The City determined that the planned fence was “consistent with design standards for the
OAB” and was approved by the City (in its Landlord capacity).
80 Shortly thereafter, the City approved
the fence drawings in its regulatory capacity.
81 On August 14, 2018, the City approved the final submittal
packet and notified OGRE it could now apply to BCDC for a permit.
82 Putting aside its arguments that a new BCDC was unnecessary, within 15 minutes from receipt of the City’s approval, OGRE submitted the
permit application to BCDC.
83 Thereafter, OGRE provided the City with a copy of the building permit application records
84 and paid all City permitting fees.
85 Yet the BCDC permit was delayed. Why? Because the City had not completed its mitigations and closed out its OAB Redevelopment permit with BCDC.
86 BCDC staff went so far as to say that they could not recommend issuing OGRE a permit until the West Gateway parking lot mitigation, required Id. See also E-mail from Megan Morodomi to Phil Tagami (August 9, 2018 11:43 PST), a copy of which is attached hereto as Exhibit AS.
78 Letter from Patricia McGowan, City planner, to Megan Morodomi (August 8, 2018), a copy of which is attached hereto as Exhibit AT.

79

Id. The letter from the City also clarifies that it will not issue the building permit until CCIG (on behalf of OGRE) is able to obtain a BCDC permit.
80

81
E-mail from Megan Morodomi to Peterson Vollmann (August 13, 2018 10:08 PST), a copy of which is attached hereto as Exhibit AU.
82
E-mail from Patricia McGowan to Megan Morodomi (August 14, 2018 16:15 PST), a copy of which is attached hereto as Exhibit AV. Eventually, the City also provided OGRE a Zoning Compliance Letter, finding that the planned fence was permitted by the City’s zoning. Letter from Peterson Vollmann to Mark McClure (August 20, 2018), a copy of which is attached hereto as Exhibit AW. Again, all this for a fence that the City had already approved and permitted.
83
E-mail from Megan Morodomi to Rebecca Coates-Maldoon, BCDC Permit Analyst (August 14, 2018 16:26 PST), a copy of which is attached hereto as Exhibit AX.

E-mail from Megan Morodomi to John Monetta (August 22, 2018 17:41 PST), a copy of which is attached hereto as Exhibit AY.
84

CCIG Oakland Global check and City receipt (August 29, 2018), a copy of which is attached hereto as Exhibit AZ.
85

In May 2018, the City and CCIG had submitted a request to BCDC to amend the City’s existing permits with BCDC. Letter from Elizabeth Lake and Phil Tagami to Tinya Hoang, BCDC (May 4, 2018), a copy of which is attached hereto as Exhibit BA. To CCIG’s knowledge, BCDC never agreed to the requested amendment.

86

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 18

under the City’s BCDC permit, had been completed;
87 even threatening an enforcement hearing and penalties against the City.
88 OBOT had previously offered to perform the public improvements on behalf of the City if the City would cooperate in the permitting process and agree to a potential reconciliation based on subsequent mitigations required by BCDC for the Project.
89 Even after the City delivered the Notice of Unmatured Event of Default, OBOT maintained that it would perform the City’s mitigations.
90
The City would not agree to the offer. So with the City conditioning its issuance of the fence permits on a BCDC permit and BCDC conditioning the issuance of its permit on the City completing its BCDC mitigation requirements, OGRE and the fence were stuck.
91 Matters only became more complicated when the City asked BCDC not to issue any permits to OBOT, OGRE, and ITS.
92
Undaunted, OGRE continued to work with BCDC. Eventually, BCDC agreed to issue a permit to OGRE conditioned upon (i) the OGRE fence not restricting access to the “West Gateway Public Access Area” required under the City’s BCDC permit, and (ii) OBOT and OGRE providing proof of an adequate property interest.
93 And on January 18, 2019, the conditional BCDC permit for the fence was issued to
OGRE.
94 Letter from Rebecca Coates-Maldoon to Mark McClure (September 12, 2018), a copy of which is attached hereto as Exhibit BB. OGRE provided a copy of this BCDC communication to the City along with a copy of OGRE’s response to the BCDC letter. See E-mail from Megan Morodomi to Patricia McGowan and Elizabeth Lake (September 28, 2018 11:20 PST), a copy of which is attached hereto as Exhibit BC.
87

E-mail from Phil Tagami to Elizabeth Lake, et al. (August 17, 2018 14:20 PST), a copy of which is attached hereto as Exhibit BD.
88

89

Id.

Letter from Marc Stice to Sabrina Landreth and Bijal Patel (September 28, 2018), a copy of which is attached hereto as Exhibit BE.
90

See E-mail from Megan Morodomi to Rebecca Coates-Maldoon (October 22, 2018 11:44 PST), a copy of which is attached hereto as Exhibit BF (asking multiple times for an update on OGRE’s BCDC permit application). See also E-mail from Megan Morodomi to Rebecca Coates-Maldoon (December 3, 2018 11:37 PST), a copy of which is attached hereto as Exhibit BG.
91

92
Letter from Elizabeth Lake to Brad McCrea, BCDC Director (December 7, 2018), a copy of which is attached hereto as Exhibit BH. Memorandum from Brad McCrea and Lawrence Goldzband, BCDC Executive Director, to Commissioners and Alternates (January 4, 2019), a copy of which is attached hereto as Exhibit BI.

93

Letter from Rebecca Coates-Maldoon to Mark McClure (January 18, 2019), a copy of which is attached hereto as

Exhibit BJ.

94

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 19

With the BCDC permit now in hand, OGRE went to finalize its City fence permits. 95 After submitting a Waste Reduction and Recycling Plan (“WRRP”) to the City, 96 OGRE was informed that the permits were locked and would need to be specially approved by Dave Harlan, a manager in the Planning and Building Department. 97 After the City approved the WRRP 98—thereby completing all of the City’s requirements to issue a permit—Megan Morodomi, a CCIG project manager, went to the City to pick up the fence permits. However, when Ms. Morodomi arrived at the permit counter, she was notified that the permits were still locked, with special instructions not to issue any permits until it had been approved by senior City staff supervising the OAB Redevelopment.
99 The City staffer working the desk said that she had never seen such a message locking access to a permit in the City’s computerized system.
100
Nevertheless, OGRE would have to wait to receive the permits until the issue had been resolved with John Monetta, one of the City’s OAB Redevelopment project managers.
101 Thereafter, Mr. Monetta contacted Ms. Morodomi to inform her that the City Attorney’s Office had instructed the Planning and Building Department to lock the permits because the City’s had deemed the WGW Ground Lease terminated.
102 Thus, the fence permit became yet another victim in the wake of the City’s plan to stop the Project. Therefore, despite OBOT’s, OGRE’s and ITS’ good faith efforts, the City’s own bad faith conduct (both in its regulatory and proprietary capacities) prevented OBOT and its subtenants from Commencing Again, the City had conditioned the issuance of its permits on OGRE obtaining a BCDC permit. See supra notes
76, 77.

95

On September 21, 2019, OGRE was notified for the first time that it would need to submit a WRRP as part of its permit application. E-mail from Alan Lu, City Process Coordinator, to Mark McClure (September 21, 2018 17:55 PST), a copy of which is attached hereto as Exhibit BK. OGRE’s fence contractor had been put on hold until the BCDC issue had been resolved. See E-mail from Megan Morodomi to Steven Mathews, North American Fence & Railing, Inc. (October 3, 2018 16:14 PST), a copy of which is attached hereto as Exhibit BL. The matter was further complicated by an edge condition left unfinished by the City where the fence was to be located within the Railroad R/O/W. See infra note 127.
96

97

Memorandum from Megan Morodomi (January 16, 2019), a copy of which is attached hereto as Exhibit BM.

E-mail from Mark McClure to Megan Morodomi (January 24, 2019 14:34 PST), a copy of which is attached
hereto as Exhibit BN.
98

E-mail from Megan Morodomi to Phil Tagami, et al. (January 25, 2019 17:16 PST), a copy of which is attached
hereto as Exhibit BO.
99

100

Id.

101

Id.

E-mail from John Monetta to Megan Morodomi (February 2, 2019 18:31 PST), a copy of which is attached
hereto as Exhibit BP.
102

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 20

Construction on or before the Initial Milestone Date, thereby excusing and/or tolling OBOT’s required compliance with that provision of the WGW Ground Lease.
D. OBOT’s Efforts to Commence Construction – Railroad Improvements
As it relates to the Railroad Improvements, 103 OBOT declares that it has complied with its obligation to Commence Construction, or is otherwise excused from any delay caused by the City, as follows:
I.

OBOT’s Rail Rights and Obligations under the WGW Ground Lease

With regards to rail, the WGW Ground Lease does four things:
(a) Grants OBOT Rights to the Railroad R/O/W.
The WGW Ground Lease grants to OBOT the right to occupy and use the Premises (a/k/a Property), including that area described as the Railroad R/O/W. 104 The grant also includes “all rights, privileges and easements” held by the City and associated with the Property. 105 Notwithstanding the foregoing, the WGW Ground Lease acknowledges that (at the time of execution) the City had not completed its Public The use of rail to transport bulk commodities to and from shipping vessels is a linchpin of the OAB Redevelopment.
The core vision for the OAB Redevelopment—converting diesel-truck-transported shipments to rail for air quality and traffic improvements—was central to the City obtaining the Trade Corridor Infrastructure Fund (“TCIF”) grant. The EIR described the OAB Redevelopment project as an “infrastructure program to support the seaport and the Trade and Logistics Center cargo distribution facilities, including rail lines, rail yards, roadways, and utilities.” EIR at 46–
47 (“An estimated 23,610 linear feet of track would be dedicated to a near-dock intermodal yard, and approximately 30,770 linear feet of track would be designated a support yard for transloading, manifest, or switching activities to support the intermodal facility, the logistics facility, and the West Gateway marine terminal. . . . [A]dditional rail spurs
would be constructed on the site to provide access to the proposed logistics uses, such as storage warehouses and distribution centers.”). See also $15 Million Federal TIGER Grant for Port of OAB Redevelopment Project, PORT OF OAKLAND (July 9, 2012) https://www.portofoakland.com/press-releases/press-release-273/ (last visited September 26,
2019) (stating that the Port’s Outer Harbor Intermodal Terminal was constructed, in part, to provide “vital rail access for the proposed Oakland Army Base redevelopment. These federal funds, along with additional local and state funding, will support this critical transportation project.”).
Moreover, the case for the TCIF grant was based on 200 rail cars per day passing through the OAB Redevelopment. See E-mail from Frank Kennedy to Doug Cole, John Monetta and Betsy Lake (June 21, 2018 16:33 PST) (“Kennedy E-mail”), a copy of which is attached hereto as Exhibit BQ. The majority of this rail traffic is associated with the Bulk Oversized Terminal. See EIR at 30, 46. The City has not only interfered with OGRE’s desire to complete the Railroad Improvements (as discussed below), the City has allowed other developers to omit a rail component from their projects in violation of the City’s representations. See Kennedy E-mail, supra. 103

104

WGW Ground Lease § 1.1.1, a copy of which is attached hereto as Exhibit BR.

105

Id.

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 21

Improvements, including its work in the Railroad R/O/W. 106 Consequently, once the City completed its Public Improvements, it was required to notify OBOT in writing, at which time the City and OBOT would jointly retain a civil engineer to confirm that the improvements had been constructed to plan, as well as to re-certify the square footage of the Property.
107 (b) Grants OBOT Rail Access Rights. The WGW Ground Lease grants to OBOT the right to access and use the Port Rail Terminal,108 as well as any other “rights of access as granted to the City by the Port under the Rail Access Agreement . . . .”
109 Upon Tenant’s written request, the WGW Ground Lease also requires the City to reasonably cooperate with Tenant to resolve any other title matters that unreasonably interfere with Tenant’s Permitted Uses of the Premises . . . .”
110 (c) Obligates the City to Complete the Rail Access Agreement.
In 2012, the City and the Port of Oakland, a department of the City (“Port”) negotiated basic terms for the joint use of the Port Rail Yard and associated rail facilities related to the OAB Redevelopment.
111 All that was left was for the City and Port to enter into the more definitive agreement known as the Rail Access Agreement.
112 Consequently, the WGW Ground Lease requires the City to use “commercially

Id. See also WGW Ground Lease § 37.9.2(b) (requiring the City to certify in writing that the Public Improvements have been constructed pursuant to the Approved Public Improvement Construction Drawings.).
106

107

Id.

the Federal Railroad Administration (FRA) provided money to the Port to supplement its construction of a multimillion-dollar rail yard, which, due to the City’s actions to stop the Project, currently sits almost entirely unused.
108

109

WGW Ground Lease § 1.5.1, a copy of which is attached hereto as Exhibit BS.

110

WGW Ground Lease § 1.6.4.

Amended and Restated Cost Sharing Agreement (Former Oakland Army Base) (June 19, 2012), at 16-17, a copy of which is attached hereto as Exhibit BT.
111

112

Id.

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 22

reasonable efforts” to finalize and enter into the Rail Access Agreement with the Port,
113 a document that, as of August 2015, was “close to completion” according to the City.
114 (d) Obligates OBOT to Complete the Railroad Improvements. The WGW Ground Lease requires OBOT to make improvements to “WGW Lead Track No. 2 that is located within the Port Rail Easement,” “[t]he portion of WGW Lead Track No. 2 to be constructed on the Port property located east of the Railroad R/O/W Property and north of the Port Rail Terminal,” and “[t]he rail Improvements designated as Industry Drill Track No. 1” which track is depicted in Exhibit 6.1B of the Lease as located on Port property.
115 In order for OBOT to complete the improvements on Port

WGW Ground Lease § 5.2.3, a copy of which is attached hereto as Exhibit BU. If the City is unable to enter into the Rail Access Agreement, the WGW Ground Lease provides that OBOT may elect to terminate the lease; however, it does not obligate OBOT to terminate the lease.
113

Letter from John Monetta to Mark McClure (August 10, 2015), a copy of which is attached hereto as Exhibit BV.
Despite its importance, for over seven years, the City has failed to execute the Rail Access Agreement. The City’s own resolution authorizing the City Administrator to negotiate and enter into the Rail Access Agreement acknowledges that “without this rail access, portions of the contemplated development of the City-owned portions of the Base by private developers may become infeasible.” Resolution No. 85325 (November 25, 2014), a copy of which is attached hereto as Exhibit BW. See also Port Resolution (214-15) (April 9, 2015), a copy of which is attached hereto as Exhibit BX (authorizing the Port’s Executive Director to “negotiate and execute a Rail Access Agreement with the City describing the Port and City’s respective rights and obligations for permitted access and use of the Railyard an associated rail facilities . . . .”). OBOT has submitted numerous written demands for the City to advance the Rail Access Agreement. See, e.g., Letter from Mark McClure to Claudia Cappio (March 2, 2016), a copy of which is attached hereto as Exhibit BY; E-mail from Doug Cole to Mark McClure (July 11, 2017 15:32 PST), a copy of which is attached hereto as Exhibit
BZ; Letter from Phil Tagami to Sabrina Landreth and Bijal Patel (July 20, 2018), a copy of which is attached hereto as Exhibit CA. Nevertheless, the City has failed to use commercially reasonable efforts to pursue a written Rail Access Agreement. “[A]t some point real soon the City and Port are probably going to have to answer to why the [Rail Access Agreement] has not advanced and how this has impacted the fundamental basis for the grants to both
the City and Port . . . .” E-mail from Doug Cole to Pat Cashman, Elizabeth Lake and Bijal Patel (August 16, 2018 11:38 PST), a copy of which is attached hereto as Exhibit CB. OBOT has argued that even absent a Rail Access Agreement, OBOT/OGRE still have the right to use the Port Rail Yard. See Tagami Letter, supra. The City has never responded. Instead, it elects not to move forward with the Rail Access Agreement, potentially exposing it to significant damages under the TCIF grant agreement. See E-mail from Doug Cole to Elizabeth Lake (August 24, 2018 14:56 PST), a copy of which is attached hereto as Exhibit CC.
114

115

WGW Ground Lease § 6.1, a copy of which is attached hereto as Exhibit CD.

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 23

controlled property, 116 the City represented that it had easements with the Port that would allow OBOT and its subtenants the right to enter upon Port property to construct and use this segment of Track.
117
II.

The City’s Failure to Turn Over of the Railroad R/O/W

Although the City required OBOT to pay rent for the Property,
118 the City failed to turn over the Railroad R/O/W to OBOT. Originally anticipated to be completed by the end of July 2018,
119 by the end of September 2018, the City had not notified OBOT that the Public Improvements within the Railroad R/O/W had been completed, nor had the City instructed a civil engineer to re-survey the property.
120 On October 9, 2018, the City confirmed that it was not prepared to turn over the rail corridor to OGRE, citing an uncompleted survey of the facilities.
121 Even in an October 18, 2018 estoppel certificate in favor of OGRE, the City acknowledges that it has not accepted the improvements within the Railroad R/O/W.
122 The request for a survey was particularly important to OGRE given the condition of the Railroad R/O/W. Specifically, in March 2018, OGRE learned that the East Bay Municipal Utility District (EBMUD) had installed lights and conduit that encroached into Railroad R/O/W.
123 At the same time, EBMUD was claiming that the City’s Public Improvements encroached on its property. 124 Either way, the situation potentially impacted the functionality and square footage of the Railroad R/O/W and needed to be resolved. OGRE and its contractor made numerous requests to the City to re-survey the area to
116

A misnomer as discussed below.

117

WGW Ground Lease §§ 1.1.1, 1.1.2, 1.5.1, and 1.5.2.

See Letter from Bijal Patel to Phil Tagami and Skyler Sanders (July 24, 2018), a copy of which is attached hereto as Exhibit CE. The Rent calculation cited in both the letter and check includes the Railroad R/O/W.
118

E-mail from Doug Cole to Mark McClure (May 23, 2018 12:45 PST), a copy of which is attached hereto as Exhibit CF.
119

E-mail from Frank Kennedy to John Monetta (September 27, 2018 12:07 PST), a copy of which is attached hereto as Exhibit CG.
120

121
E-mail from Mark McClure to Phil Tagami and Skyler Sanders (October 9, 2018 9:02 PST), a copy of which is attached hereto as Exhibit CH.

Letter from Bijal Patel to Phil Tagami (October 18, 2018), a copy of which is attached hereto as Exhibit CI. The City did not file its Notice of Completion accepting the Public Improvements until June 17, 2019. OBOT and OGRE are still not certain that the Property has ever been re-surveyed.
122

See Letter from Chris Stotka to Mark McClure (March 14, 2018), a copy of which is attached hereto as Exhibit
CJ.
123

E-mail from Diana Lee, EBMUD engineer, to Mark McClure, et al. (May 1, 2018 16:20 PST), a copy of which is attached hereto as Exhibit CK.
124

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 24

resolve the issue;
125 however, the City stated that it was not prepared to provide any definitive response.
126 OGRE is still waiting for a response from the City on this issue, again thwarting OGRE’s and OBOT’s ability to perform. Equally, if not more, concerning to OBOT and OGRE was that the City had allowed its Public Improvements contractor to leave the OAB Redevelopment without curing a dangerous edge condition along the border of the Railroad R/O/W and W. Burma Road. Specifically, there was a 90 degree drop off from the W. Burma Road sidewalk onto the Railroad R/O/W.
127 After pressing the City for months to correct the issue, the City responded that it was looking into the problem.
128 Around that same time, the City entered into a contract with a new contractor to cure the edge condition. 129 City invoices show the City’s work within the Railroad R/O/W was not completed until the end of February 2019.
130 Thus, if the City had not completed its work within the Railroad R/O/W until approximately March 1, 2019, how was OBOT/OGRE to complete the Minimum Project Rail Improvements by the August 14, 2018 Initial Milestone Date? 131

See, e.g., Letter from Chris Stotka to Doug Cole (September 26, 2018), a copy of which is attached hereto as Exhibit CL (requesting the City to confirm that the subgrade had been constructed according to the Approved Public Improvement Construction Drawings).
125

Letter from Frank Kennedy to Chris Stotka (October 17, 2018), a copy of which is attached hereto as Exhibit CM.
126

E-mail from Megan Morodomi to John Monetta (October 26, 2018 17:41 PST), a copy of which is attached hereto as Exhibit CN (showing vehicles and pedestrians actively using the supposedly closed W. Burma Road, including one pedestrian that happened to be captured jumping or falling into the Railroad R/O/W). See also Letter from Phil Tagami to Elizabeth Lake and Bijal Patel (November 9, 2018), a copy of which is attached hereto as Exhibit CO (asking the City, among other things, to resolve the edge condition in the Railroad R/O/W).
127

Letter from Elizabeth Lake to Phil Tagami (December 7, 2018), a copy of which is attached hereto as Exhibit CP.
128

129

Change Order, Oakland Army Base (November 29, 2018), a copy of which is attached hereto as Exhibit CQ.

130
Oakland Army Base Consultant Payment Request Cover Sheet (February 20, 2019), a copy of which is attached hereto as Exhibit CR.

In addition to everything else that has transpired with regards to the Railroad R/O/W, due to another City funding issue, the City requested that OBOT (and OGRE) agree to an inferior site condition—the City was originally obligated to install lightweight concrete along that segment of the Railroad R/O/W running adjacent to W. Burma Road; however, to save money, the City asked if OBOT/OGRE would accept the use of ballast rock. To be a good tenant, OBOT agreed to the change. But the City never installed the ballast rock, nor did it ever seek (or obtain) OBOT’s and OGRE’s approval of the final site condition. See Frank Kennedy E-mail, infra note 152 (noting that the sub-ballast rock had not been placed by the City).
131

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 25

Therefore, because the City has never re-surveyed the Railroad R/O/W, certified that the improvements constructed within the Railroad R/O/W have been completed pursuant to the Approved Public Improvement Construction Drawings, nor has the City turned over the Railroad R/O/W, OBOT’s obligation to construct the Railroad Improvements is tolled. And this is not the only time the City’s actions have derailed the rail components of the Project.
III.

The City of Oakland’s Interference at the Surface Transportation Board

To honor the WGW Ground Lease’s obligation to comply with all applicable Laws, 132 OGRE thought it prudent to confirm with the Surface Transportation Board (“STB”), whether or not STB approval was required in order to complete the Railroad Improvements. 133 As such, in May 2018, OGRE filed a petition with the STB (“OGRE Petition”), seeking confirmation that no additional STB approval was required to perform the rail rehabilitation work required under Section 6.1 of the WGW Ground Lease. 134 Although the City had previously supported OGRE’s application the STB, 135 and despite the City’s obligation to cooperate in good faith with OBOT’s request for Regulatory Approvals, 136 in the wake of the Ruling, the City objected to OGRE’s petition to move forward with the Commencement of the Railroad Improvements. 137 Not diverging from its tactics to delay the Bulk Oversized Terminal, the City
132

WGW Ground Lease § 5.1

133
The STB has exclusive jurisdiction over “the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State.” 49 U.S.C. § 10501.

Oakland Global Rail Enterprise, Petition for Declarator Order (May 23, 2018), a copy of which is attached hereto as Exhibit CS. OGRE expressly noted in its petition for declaratory order that it would be seeking operation exemption from the STB under a separate application. Id. at 5, FN 16.
134

135

See Monetta Letter, supra note 114.

136

WGW Ground Lease § 5.2.2, et seq.

137
City of Oakland, Petition for Leave to File a Reply and a Reply (June 29, 2018), a copy of which is attached hereto as Exhibit CT (exhibits omitted). But why the change of mind? The City did not want the STB to find that it had jurisdiction because such a finding limits the City’s ability to implement restrictions on the Project (including on the Railroad R/O/W). For example, the City would not be able to apply the Ordinance (prohibiting the transportation, handling, and storage of coal and coke) to the Railroad R/O/W and likely the Bulk Oversized Terminal.

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 26

even requested that the STB require a full regulatory process before allowing the rail rehabilitation work to proceed. 138 Not to be outdone, the Port joined the City in objecting to the OGRE Petition. 139 The Port argued that OGRE should not be allowed to rehabilitate the rail because “OGRE has not yet obtained the property rights that it needs from the Port to build any track on Port property . . . .” 140 This is problematic for two reasons. First, to the extent the Port is correct, and OBOT/OGRE do not have the right to enter upon Port property to complete the Rail Improvement, that obligation under WGW Ground Lease is illusory (i.e. unenforceable) because OBOT has no way to perform the same. Second is the concept of “Port property”. The Port is a department of the City. 141 Additionally, the Charter of the City of Oakland specifies that “[a]ll real property acquired by the City shall be held in the name of ‘The City of Oakland.’” 142 In other words, there is no such thing as “Port property” as title to all property is legally

Comments by the City of Oakland, California to OGRE’s August 21 Response (September 18, 2018), a copy of which is attached hereto as Exhibit CU, at 4-5. The City had already review the rail work under the EIR. See EIR at 46–47. The City had also approved the rail drawings upon which OGRE based its submittal. See infra, note 157.
138

Port of Oakland Comments in Response to Oakland Global Rail Enterprise Petition for Declaratory Order (September 18, 2018), a copy of which is attached hereto as Exhibit CV.
139

Id. at 13. Even though OBOT and OGRE had entered into a sublease for the Railroad R/O/W and all other rail rights granted under the WGW Ground Lease, the Port goes on to argue: “OGRE does not have the property rights necessary to construct any portion of [the] West Gateway Lead No. 2 track on the Port’s property. The City did have a temporary easement from the Port to perform some ongoing preparatory work on this portion of Port property as part of the OAB redevelopment project, but that temporary easement expired and no permanent easement allowing OGRE to proceed with any track construction on the Port’s property has been negotiated by the parties.” Id. at 7. See also Port of Oakland, Supplemental Comments (October 9, 2018), a copy of which is attached hereto as Exhibit CX.
140

THE CHARTER OF THE CITY OF OAKLAND § 700 (as amended through July 2018), available at
https://library.municode.com/ca/oakland/codes/code_of_ordinances?nodeId=THCHOA (last visited September 27,
2019).
141

Id. § 1204. Under the Charter, the powers of the Port include the ability “[t]o acquire in the name of the City by purchase, condemnation, gift, lease, or otherwise take over and hold all lands, property, property rights, leases, or easements, and personal property of every kind, necessary or convenient for the development and operation of the port, or for the carrying out of the powers herein granted to the Board. Whenever the Board determines that any lands owned by the City within its jurisdiction have become unnecessary for port purposes or harbor development, it may in its discretion transfer such lands to the control of the Council, free from all restrictions, or it may sell or exchange such lands, by ordinance subject to the referendum provisions of this Charter.” Section 706(15) (emphasis added). 142

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 27

held by the City. Consequently, the City and Port cannot enter into easements with one another. 143 Either way, these arguments to the STB improperly inhibit OBOT’s ability to move the Project forward. Ultimately, the STB determined in March 2019 (“STB Decision 1”) that it had jurisdiction over the Railroad R/O/W, but that no additional approval was required from the STB for the rail rehabilitation work. 144 The STB further found that Railroad R/O/W needed to immediately be reconnected to the interstate rail network, and that the City, OBOT and OGRE all needed to apply to the STB for acquisition authority related to the Railroad R/O/W. 145 Thereafter, the City petitioned the STB to stay and reconsider the STB Decision 1. 146 The City’s justification: It had terminated the WGW Ground Lease, which purportedly new information should change the STB’s decision. 147 But the City could not explain why it did not prosecute an earlier-filed though quickly and summarily dismissed unlawful detainer action against OBOT, nor could it refute California case law holding that a tenant has the right to possess a property until the landlord has obtained a judicial declaration to the contrary. 148 Thus, the STB rejected 143 Cal. Civ. Code § 805 (West 2019). See also 6 Cal. Real Est. § 15:5 (4th ed.) (“An easement is an interest in the land of another. . . . Therefore, a person cannot have an easement in his or her own land.”).

Surface Transportation Board, Decision (March 14, 2019), a copy of which is attached hereto as Exhibit CX. Shortly after the STB Decision 1, OGRE contacted the City and asked if the Public Improvements within the Railroad R/O/W had been completed and if the property was ready to be turned over to OBOT/OGRE. Letter from Skyler Sanders to Elizabeth Lake and Bijal Patel (March 19, 2019), a copy of which is attached hereto as Exhibit CY. In typical fashion, the City has never responded.
144

145

STB Decision 1, supra note 144, at 6, 10–11.

See City of Oakland, Petition for Stay (March 25, 2019), a copy of which is attached hereto as Exhibit CZ (“Stay Petition”); City of Oakland, Petition for Reconsideration (April 4, 2019), a copy of which is attached hereto as Exhibit DA (“Reconsideration Petition”).
146

147

Id. The City adopted the same argument to contest OBOT’s and OGRE’s Petitions for Acquisition Exemption.

See City of Oakland, Complaint for Unlawful Detainer (December 11, 2018) (Case No. RG18931713), a copy of which is attached hereto as Exhibit DB; City of Oakland, Request for Dismissal (December 14, 2018), a copy of which is attached hereto as Exhibit DC. California law is clear, “The right of a tenant to the continued use of his rented property is a substantial and valuable right and until it has been judicially determined that such right has been forfeited because of the failure to meet certain conditions in the rental agreement . . . the right is entitled to judicial protection.”. Mihans v. Mun. Court, 7 Cal. App. 3d 479, 484 (Cal. Ct. App. 1970); see also Bedi v. McMullan, 160 Cal. App. 3d 272, 276 (Cal. Ct. App. 1984) (holding that a “valid writ of execution is the ultimate indispensable element of the legal process by which a party entitled to possession of the property acquires possession.”) (emphasis added). Which begs the question: If the City is so confident that the WGW Ground Lease is automatically terminated due to OBOT’s (and its subtenants’) failure to Commence Construction, why has the City not pursued a judicial determination stating the same? Answer: The City knows that it has unclean hands. Instead, it has taken the approach of stalling as long as possible to cause OBOT to walk away from the Project. But this will not happen. 148

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 28

the City’s petitions. 149 Nevertheless, the City’s and Port’s oppositions were enough to delay the final resolution from the STB on the rail rehabilitation for over a year. Moreover, the Port’s argument that OGRE cannot enter upon “Port property” to perform the Railroad Improvements is still unresolved by the City.
IV.

OGRE’s Efforts to Commence Construction

Notwithstanding the City’s failure to turn over the Railroad R/O/W, re-survey the Property, and the City’s and Port’s objections (and losses) at the STB, OBOT and OGRE have diligently and in good faith attempted to pursue the Railroad Improvements, including, by doing the following: (a) Contractor. In 2015, OBOT hired Industrial Railways Company (“IRC”) to coordinate the future Railroad Improvements with the City and the OAB Redevelopment—it so happened that as the only Oakland based rail construction company, IRC was also the City’s rail contractor. 150 Since that time, IRC has performed periodic rail work for OGRE as necessity has dictated and the City has allowed. 151 OGRE has maintained this relationship and, upon the City’s proprietary approval of the rail schematic drawings, IRC is ready to proceed with the rail rehabilitation work. (b) Materials. To date, OGRE has spent approximately $1,614,000.00 on rail materials and work. 152 The materials are currently stored on the Property and are ready to be utilized for the Railroad Improvements as soon as the City approves the work. (c) Equipment. In addition to other materials and equipment needed for future operations, OGRE recently purchased a $2.3M Tier IV locomotive (best-in-class diesel emissions), which was ordered for manufacture in February 2018 and delivered to OGRE in June 2019. 153 Part of the Surface Transportation Board, Decision (June 19, 2019), a copy of which is attached hereto as Exhibit DD. To date, the City has spent millions of tax payer dollars on legal fees trying to block the Project. 149

Letter from Chris Stotka to Mark McClure (September 20, 2018), a copy of which is attached hereto as Exhibit DE.
150

151

Id.

Many of the rail materials were purchased from the Port after it had completed construction of the Port Rail Yard. See Bill of Sale Agreement for Railroad Materials (August 4, 2017), a copy of which is attached hereto as Exhibit DF.
152

153

Progress Rail Sales Invoice, a copy of which is attached hereto as Exhibit DG.

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 29

purchase was funded through a grant from the Bay Area Air Quality Management District
(BAAQMD). 154
(d) Future Operations. OGRE has entered into an industrial track agreement (ITA) with Union
Pacific to allow for future rail operations on the OAB rail network. 155 Additionally, OGRE
entered into a Card-Check Agreement with the Teamsters to ensure a strong employee pool to
support OGRE operations. 156
(e) Construction. OGRE’s rail construction drawings have already been approved by the City in its regulatory capacity. 157 Additionally, as acknowledged by the City, on or before May 24, 2018, OGRE completed some of the Railroad Improvements within the Railroad R/O/W. 158 Following CMP/MSIF and Community Health Protection Grant Program, Projects Approved Between 10/12/17 and 7/6/18, a copy of which is attached hereto as Exhibit DH, also available at http://www.baaqmd.gov/~/media/files/strategicincentives/carl-moyer/yr-19-projects-jan-2018-pdf.pdf?la=en (last visited September 24, 2019). The BAAQMD grant was premised upon the rail traffic assumptions for the Project outlined in the City’s Master Plan. The City has
repeatedly represented to the State of California, to the developers, and to the community, that the Project is to be rail served, including the clear statement that “[t]he proposed Oakland Bulk and Oversized Terminal . . . would link rail to vessel break bulk shipping operations.” LRMP, infra note 6 at 8.
154

Letter from Kathryn Floyd, Venable, to Cynthia Brown, STB (March 13, 2019), a copy of which is attached hereto as Exhibit DI. The ITA was delayed until the City had finished the rail rehabilitation in that portion of the OAB Redevelopment commonly known as the Northern Interface, which work was occurring on Union Pacific property. Moreover, in order to meet the requirements of the TCIF grant, OGRE’s rail partner, West Oakland Pacific Rail, LLC (“WOPR”), has been operating at a los s for the last three years, serving Port tenants at and around
the former Oakland Army Base. The City’s refusal to allow the OAB rail network to be reestablished is not only in violation of the STB Decision 1, but it has also cost WOPR several potential heavy rail use customers, which, in turn, would have led to additional revenue to the City.
155

Card-Check Agreement (October 25, 2017), a copy of which is attached hereto as Exhibit DJ. Upon receiving operating authority from the STB, OGRE also anticipates applying to the Railroad Retirement Board to secure proper benefits for its employees.
156

See Railroad Plans (August 25, 2014), a copy of the cover page is attached hereto as Exhibit DK (showing the signature of Frank Kennedy, the City’s OAB Redevelopment engineer). A full version of this document is available electronically upon request. See also Heilbronner Letter, supra note 71 (stating that the “rail plans [] were signed by Frank Kennedy on September 24, 2014 as part of the Construction of Improvements Permit (CIP) for the horizontal project.”). It is these same rail drawings that were used in connection with the TCIF grant from the California Department of Transportation, Division of Rail.
157

See E-mail from Frank Kennedy to John Monetta, Elizabeth Lake, and Doug Cole (May 24, 2018 16:17 PST), a copy of which is attached hereto as Exhibit DL. The rail rehabilitation was performed at the City’s request to complete the under-freeway work before the area was needed by Caltrans as part of an overpass improvement project. See also image attached hereto as Exhibit DM (depicting the rehabilitated rail between Engineer’s Road and W. Burma Road).
158

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 30

the STB Decision 1 (now that it was clear no additional Regulatory Approval was required),
OGRE submitted the rail schematic drawings to the City for the City to approve in its landlord capacity. 159 Unsurprisingly, the City responded that it would not review the drawings. 160 What more can be said? Short of building all the Railroad Improvements without the City’s approval (in its landlord capacity) and against apparent property rights issues with the Port, OGRE did everything within its control to Commence Construction, even building a portion of the rail as approved by the City. Nevertheless, just as with the Bulk Oversized Terminal, the City has done everything it can to stymie the Project.
FORCE MAJEURE CLAIMS
The WGW Ground Lease excuses a party’s non-performance of its obligations where the nonperformance is a result of events outside of that party’s control (i.e. actions of the other party or of the government). 161 Thereafter, the impacted party is afforded such additional time as may be necessary to

This little nuance presents a very large problem to the City’s allegation that the WGW Ground Lease is automatically terminated. Specifically, Section 6.1.2 of the WGW Ground Lease—which defines the City’s “sole and exclusive remedies for an Event of Default with respect to Tenant’s minimum Project obligations” (emphasis added—provides that where Tenant has partially Commenced Construction of its Minimum Project obligations, the WGW Ground Lease only terminates as to those portions of the Premises where the Minimum Project was not
commenced by the applicable deadline. WGW Ground Lease § 6.1.2.1. While OBOT and OGRE disagree with the City’s position, assuming, arguendo, that the City was correct and OBOT/OGRE had no justification in failing to Commence Construction for the entire Project on or before the Initial Milestone Date, by the City’s own admission, OGRE had completed a portion of the Minimum Project Rail Improvements on or before the Initial Milestone Date.
Thus, the WGW Ground Lease would still be in effect as to that area of the Railroad R/O/W where the rail rehabilitation had occurred, and the City could not argue that the entire WGW Ground Lease was terminated. This is yet another instance of the City willfully disregarding contractual provisions with which it is obligated to comply.
E-mail from John Monetta to Mark McClure (April 9, 2019 14:33 PST), a copy of which is attached hereto as Exhibit DN. As stated above, the rail drawings had previously been approved by the City, but in order to avoid another delay with the City, OGRE submitted the drawings to the City in its Landlord capacity under the WGW Ground Lease for review and approval.
159

160

Id.

Section 16.1 provides, “a Party whose performance of its obligations hereunder is hindered or affected by events of Force Majeure shall not be considered in breach of or in default in its obligations hereunder to the extent of any delay resulting from Force Majeure . . . . A Party seeking an extension of time pursuant to the provisions of this Section 16.1 shall give notice to the other Party describing with reasonable particularity (to the extent known) the
facts and circumstances constituting Force Majeure within (a) a reasonable time (but not more than thirty (30) days unless the other Party’s rights are not prejudiced by such delinquent notice) after the date that the claiming party has actual knowledge of the scope and magnitude of the applicable Force Majeure event or (b) promptly after the other
161

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 31

perform the hindered act. 162 The Force Majeure provisions are applicable to the majority of obligations under the WGW Ground Lease, including the Minimum Project.163 A claim of a Force Majeure Event is
made by providing written notice to the other party. 164 Going back to 2016, OBOT has made at least sixteen (16) written claims of Force Majeure, claiming that the City’s conduct impacted OBOT’s (and its subtenants’) ability to perform under the WGW Ground Lease. 165 And after years of these Force Majeure claims against the City, the City responded twice. The
first time was on August 20, 2018, when the City elected to defer a substantive response. 166 So not a response at all. Then, on September 21, 2018, the City delivered the Notice of Unmatured Event of Party’s demand for performance.” Section 7.1 of the DA adopts the Force Majeure provisions of the WGW Ground Lease.
Force Majeure is defined as “events which result in delays in a Party’s performance of its obligations hereunder due to causes beyond such Party’s control, including, but not restricted to, acts of God or of the public enemy, acts of the government, acts of the other Party, fires, floods, earthquakes, tidal waves, terrorist acts, strikes, freight embargoes, delays of subcontractors and unusually severe weather and, in the case of Tenant, any delay resulting from a defect in Landlord’s title to the Premises other than a Permitted Exception. Force Majeure does not include failure to obtain financing or have adequate funds. The delay caused by Force Majeure includes not only the period of time during which performance of an act is hindered, but also such additional time thereafter as may reasonably be required to complete performance of the hindered act.” WGW Ground Lease § 40 (emphasis added).
162

Id.

163

WGW Ground Lease § 16.1.

164

Id.

See Letter from Marc Stice to Sabrina Landreth and Diane Millner, Deputy City Attorney (March 11, 2016) (Exh. V); Letter from Marc Stice to Sabrina Landreth and Bijal Patel (April 10, 2018); Letter from Skyler Sanders to Sabrina Landreth and Bijal Patel (July 30, 2018); Letter from Skyler Sanders to Sabrina Landreth and Bijal Patel (August 3, 2018); Letter from Marc Stice to Sabrina Landreth and Bijal Patel (August 28, 2018); Letter from Phil Tagami to William Gilchrist (August 28, 2018) (Exh. AC); Letter from Marc Stice to Sabrina Landreth and Bijal Patel (September 19, 2018); Letter from Marc Stice to Sabrina Landreth and Bijal Patel (September 24, 2018) (Exh. AF); Letter from Marc Stice to Sabrina Landreth and Bijal Patel (September 28, 2018) (Exh. BE); Letter from Barry Lee to Barbara Park and Bijal Patel (October 3, 2018); Letter from Skyler Sanders to Sabrina Landreth and Bijal Patel (October 4, 2018); Letter from Barry Lee to Barbara Park (October 19, 2018) (Exh. K); Letter from Skyler
Sanders to Sabrina Landreth and Bijal Patel (December 21, 2018); Letter from Skyler Sanders to Elizabeth Lake and Bijal Patel (March 19, 2019) (Exh. CY); Letter from Skyler Sanders to Sabrina Landreth and Bijal Patel (April 3, 2019); and Letter from Skyler Sanders to Sabrina Landreth and Bijal Patel (June 7, 2019) (copies of which are collectively attached hereto as Exhibit DO [except where indicated as earlier attached]).
165

Letter from Sabrina Landreth to Phil Tagami (August 20, 2018), a copy of which is attached hereto as Exhibit DP. See also Letter from Bijal Patel to Skyler Sanders (August 20, 2018), a copy of which is attached hereto as Exhibit DQ (stating that the City was electing to defer a substantive response “in recognition of OBOT’s on-going, good faith discussions with the City regarding the resolution of all pending issues and litigation related to the Ground Lease.”).
166

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 32

Default, which merely states that the City rejects OBOT’s claims of Force Majeure. 167 No explanation. No justification. Just a unilateral statement. 168 Moreover, it does not appear the City’s rejection of OBOT’s Force Majeure claims is permitted under the WGW Ground Lease—the express language of the WGW Ground Lease only states that a party seeking an extension needs to provide the other party with written notice describing the facts and circumstances of the delay within a certain time period. To date, the City has not objected to the timeliness of OBOT’s Force Majeure claims; and it cannot because OBOT delivered such claims within days of the City’s Force Majeure conduct. Thus, OBOT properly asserted claim for Force Majeure against the City, granting OBOT (and its subtenants) additional time to complete the Minimum Project. With that in mind, OBOT once again alleges that the City’s actions as set forth in this Response constitute Force Majeure Events under the WGW Ground Lease, excusing OBOT’s performance thereunder and affording OBOT additional time as is reasonably necessary to complete the hindered acts.

SPECIFIC RESPONSES TO LETTER

While OBOT felt it necessary to provide a more detailed narrative in order to fully respond to the City’s general assertion that OBOT has failed to materially comply with the terms of the WGW Ground Lease, to avoid any confusion or argument to the contrary, and in compliance with Section 8.2 of the DA, OBOT specifically responds to the City’s allegations set forth in the Letter as follows: 169 Allegation No. 1: OBOT failed to create and advance a schedule of development. RESPONSE: Going back to 2015, OBOT and ITS have repeatedly delivered schedules of development to the City. The City has never provided any comments to the schedules; however, the City has used the schedules as part of its TCIF reporting requirements.
Allegation No. 2: OBOT failed to obtain Landlord’s approval of schematic drawings.
Parker Letter, supra note 53. The Gilchrist Response (delivered sometime after the Notice of Event of Unmatured Default) includes a similar statement. Supra, note 54.
167

The Letter states, “the City has repeatedly rejected OBOT’s claims and has responded that none of the City’s actions, nor any event outside of OBOT’s control. Prevented OBOT from diligently and satisfactorily pursuing all requisite actions needed to commence construction . . . .” As stated above, the City never repeatedly rejected OBOT’s Force Majeure claims. It did so on one occasion to support its claim of an Unmatured Event of Default.
168

In responding to the City’s allegations, OBOT incorporates by reference the information set forth in the Statement of Facts above.
169

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 33

RESPONSE: OBOT, OGRE and ITS have all submitted schematic drawings to the City on multiple occasions for review. The City, in its proprietary capacity, approved OGRE’s fence schematic drawings. The City has failed to adequately respond to OBOT’s and ITS’ schematic drawings for the Bulk Oversized Terminal. The City also ignores the fact that the rail drawings were approved by the City in its regulatory capacity. Allegation No. 3: OBOT failed to obtain preliminary and final construction documents.
RESPONSE: OBOT, OGRE and ITS attempted, more than once, to obtain preliminary and final construction documents from the City. Outside of OGRE—which was able to obtain final construction documents for the fence, as well as the rail drawings—the City has refused to meaningfully participate in the landlord approval process.
Allegation No. 4: OBOT failed to obtain all construction permits.
RESPONSE: Due to its misguided efforts to stop the Project from moving forward, the City has
improperly refused to issue construction permits, going so far as to require additional permits that other
Oakland Army Base developers were not required to obtain.
Allegation No. 5: OBOT failed to enter into the Initial Improvements Construction Contract
RESPONSE: OGRE entered into a contract with Industrial Railways Company (IRC) with
regards to the Railroad Improvements. ITS (and its predecessor-in-interest) engaged HDR and Millcreek
to work on the Bulk Oversized Terminal.
Allegation No. 6: OBOT failed to deliver a Completion Guaranty and Minimum Project Liquidated
Damages Guaranty.
RESPONSE: The Minimum Project Liquidated Damages Guaranty was delivered to the City as part of the WGW Ground Lease execution. 170 Due to the City’s adversarial efforts, OBOT never reached the stage in the permitting process where it could have known the approved scope of development

Pursuant to the WGW Ground Lease escrow instructions (signed off on by Dianne Millner), the Minimum Project Liquidated Damages Guaranty was required in order for escrow to close. See Oakland Army Base – Development Agreement, Third Amendment to LDDA, Partial Assignments and West Gateway Ground Lease, Escrow No. 76040-A (February 10, 2016), a copy of which is attached hereto as Exhibit DR (“Escrow Instructions”). An executed (but undated) copy of this document was provided to First American, see Guaranty of Minimum Project Liquidated Damages, a copy of which is attached hereto as Exhibit DS; however, pursuant to the Escrow Instructions, the completed document was sent to the City at closing. 170

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 34

required to be guaranteed under the WGW Ground Lease; however, the Completion Guaranty will be provided after the Landlord has approved the Final Construction Documents. Allegation No. 7: OBOT failed to obtain performance, labor, and materials bonds at Landlord’s request.
RESPONSE: To OBOT’s knowledge, the City never requested such a bond.
Allegation No. 8: OBOT failed to submit a scope of work and contracted costs for OBOT Wharf and Rail Improvements, wharf repairs, and site preparation work.
RESPONSE: OBOT and ITS have submitted this information to the City on multiple occasions.
To date, the City has failed to respond (in good faith) to the submissions.
Allegation No. 9: OBOT failed to commence and actively conducting on-going construction.
RESPONSE: Despite OBOT’s, OGRE’s, and ITS’ good faith efforts, the City has knowingly and intentionally prevented the construction of the Project. Notwithstanding the foregoing, at the City’s request, OGRE was able to complete a portion of the Railroad Improvements. Allegation No. 10: OBOT failed to submit a complete development application and approval by the Bureau of Planning.
RESPONSE: ITS (through Mill Creek), submitted a development application to the City’s
Bureau of Planning. The City never responded to the submission.
REQUEST FOR CERTIFICATION OR MEET & CONFER
The matters and patterns of conduct identified in this Response are certainly not exhaustive. But they clearly demonstrate the good faith efforts by OBOT, OGRE, and ITS to Commence Construction in the face of the City’s Force Majeure efforts to halt the Project. Within thirty (30) days from the receipt of this Response, OBOT requests that the City either notify OBOT of its compliance under the DA or “provide written notice of the commencement of the Meet and Confer/Mediation Process . . . and the dispute resolution procedures and process detailed in Article VIII . . . .” 171

171

DA § 6.3.

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 35

Respectfully,

Skyler Sanders
General Counsel
California Capital & Investment Group, Inc.
On behalf of Oakland Bulk & Oversized Terminal
cc:

Sabrina Landreth, City Administrator
Barbara Parker, City Attorney
Betsy Lake, Deputy City Administrator
Bijal Patel, Special Counsel, Office of City Attorney
Phil Tagami, California Capital & Investment Group, Inc.
Mark McClure, California Capital & Investment Group, Inc.
Barry Lee, Manatt, Phelps & Phillips, LLP
David Smith, Manatt, Phelps & Phillips, LLP

Exhibits
The exhibits listed herein are available electronically at:
https://www.dropbox.com/sh/xxalr31jof8asso/AABWXV327Oiiz84_HDVadAAFa?dl=0
Exh. A
Exh. B
Exh. C
Exh. D
Exh. E
Exh. F
Exh. G
Exh. H

− Project Timeline with City Turnover
− Development Agreement (July 16, 2013)
− Army Base Gateway Redevelopment Project Lease Disposition and Development
Agreement (2012) (“LDDA”), Attachment 7
− WGW Ground Lease, Exhibit 3.1
− Letter from David Smith, OBOT legal counsel, to Senator Ricardo Lara (May 11,
2016)
− Letter from Elizabeth “Betsy” Lake (then the City’s outside legal counsel) to the City,
et al. (September 12, 2013) (“Lake Report”), Exhibit 4 (LRMP)
− LSA Associates, Inc., 2012 Oakland Army Base Project Initial Study / Addendum
(May 2012)
− October 21, 2015 e-mail from Darin Ranelletti (then Deputy Director of the City’s
Planning and Building Department) to Zachary Wald (Chief of Staff for City Council
member Lynette Gibson McElhaney)

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 36

Exh. I
Exh. J
Exh. K
Exh. L
Exh. M
Exh. N
Exh. O
Exh. P
Exh. Q
Exh. R
Exh. S
Exh. T
Exh. U
Exh. V
Exh. W
Exh. X
Exh. Y
Exh. Z
Exh. AA
Exh. AB
Exh. AC
Exh. AD
Exh. AE
Exh. AF
Exh. AG
Exh. AH
Exh. AI

− Agenda Report from Fred Blackwell, Assistant City Administrator, to Deanna
Santana, City Administrator (May 30, 2012)
− “Findings of Fact and Conclusions of Law”
− Letter from Barry W. Lee, OBOT legal counsel, to Barbara Parker, City Attorney
(October 19, 2018)
− Transmittal from CCIG to John Monetta, City project manager (March 31, 2016)
− Memorandum from Claudia Cappio, then Deputy City Administrator for Phil Tagami,
CCIG President & CEO (March 31, 2016)
− Letter from Darin Ranelletti to Mark Hansen, Prologis, and Phil Tagami (June 15,
2016)
− Transmittal from CCIG to Doug Cole, City project manager (August 5, 2015)
− Letter from Jerry Bridges, President and CEO of TLS to Sabrina Landreth, City
Administrator (September 8, 2015)
− E-mail from Phil Tagami to Claudia Cappio, Assistant City Administrator (January
12, 2016 16:26 PST)
− E-mail from Phil Tagami to Claudia Cappio (January 21, 2016 16:38 PST)
− E-mail from Claudia Cappio to Phil Tagami (February 23, 2016 15:51 PST)
− Draft Letter from David Smith to Mark Wald, Deputy City Attorney (March 10,
2016)
− EIR at 182–83
− Letter from Marc Stice, OBOT legal counsel, to Sabrina Landreth and Diane Millner
(March 11, 2016)
− E-mail from Darin Ranelletti to the Planning and Building Department (November 9,
2015)
− E-mail from Doug Cole to Mark McClure, CCIG Vice President (May 8, 2015 13:37
PST)
− Letter from Sabrina Landreth to Phil Tagami (February 11, 2016)
− Letter from Phil Tagami to Sabrina Landreth (February 19, 2016)
− Letter from Phil Tagami to William Gilchrist, Director of the Planning and Building
Department (July 12, 2018)
− Letter from William Gilchrist to Phil Tagami (August 27, 2018)
− Letter from Phil Tagami to William Gilchrist (August 28, 2018)
− Letter from Barbara Parker to Phil Tagami (September 21, 2018)
− Letter from William Gilchrist to Phil Tagami (undated)
− Letter from Marc Stice to Sabrina Landreth and Bijal Patel, Deputy City Attorney
(September 24, 2018)
− Letter from Phil Tagami to Sabrina Landreth and Bijal Patel (September 28, 2018)
− E-mail from Amanda Price, CCIG Legal and Compliance Analyst, to Sabrina
Landreth, Bijal Patel, and Elizabeth Lake (September 28, 2018 17:04 PST)
− Letter from John Siegel, Executive Chairman of ITS, to Elizabeth Lake and Bijal
Patel (October 12, 2018)

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 37

Exh. AJ
Exh. AK
Exh. AL
Exh. AM
Exh. AN
Exh. AO
Exh. AP
Exh. AQ
Exh. AR
Exh. AS
Exh. AT
Exh. AU
Exh. AV
Exh. AW
Exh. AX
Exh. AY
Exh. AZ
Exh. BA
Exh. BB
Exh. BC
Exh. BD
Exh. BE
Exh. BF
Exh. BG
Exh. BH
Exh. BI
Exh. BJ
Exh. BK
Exh. BL

− E-mail from Phil Tagami to Jim Wolff, ITS CFO, et al. (October 14, 2018 13:14 PST)
− E-mail from Jim Wolff to William Gilchrist (October 22, 2019 14:04 PST)
− Letter from David Carter, Millcreek Engineering, to William Gilchrist and Elizabeth
Lake (October 19, 2018)
− Letter from Elizabeth Lake to Phil Tagami (October 18, 2018)
− Letter from Skyler Sanders, CCIG General Counsel, to Elizabeth Lake (October 25,
2018)
− Letter from Barbara Parker to Phil Tagami (October 23, 2018)
− Letter from James Heilbronner to Doug Cole (May 10, 2018)
− E-mail from Megan Morodomi, CCIG project manager, to Phil Tagami and Mark
McClure (July 19, 2018 13:12 PST)
− E-mail from Megan Morodomi to Phil Tagami, Mark McClure and Skyler Sanders
(July 30, 2018 15:25 PST)
− E-mail from Megan Morodomi to Phil Tagami (August 9, 2018 11:43 PST)
− Letter from Patricia McGowan, City planner, to Megan Morodomi (August 8, 2018)
− E-mail from Megan Morodomi to Peterson Vollmann (August 13, 2018 10:08 PST)
− E-mail from Patricia McGowan to Megan Morodomi (August 14, 2018 16:15 PST)
− Zoning Compliance Letter from Peterson Vollmann to Mark McClure (August 20,
2018)
− E-mail from Megan Morodomi to Rebecca Coates-Maldoon, BCDC Permit Analyst
(August 14, 2018 16:26 PST)
− E-mail from Megan Morodomi to John Monetta (August 22, 2018 17:41 PST)
− CCIG Oakland Global check and City receipt (August 29, 2018)
− Letter from Elizabeth Lake and Phil Tagami to Tinya Hoang, BCDC (May 4, 2018)
− Letter from Rebecca Coates-Maldoon to Mark McClure (September 12, 2018)
− E-mail from Megan Morodomi to Patricia McGowan and Elizabeth Lake (September
28, 2018 11:20 PST)
− E-mail from Phil Tagami to Elizabeth Lake, et al. (August 17, 2018 14:20 PST)
− Letter from Marc Stice to Sabrina Landreth and Bijal Patel (September 28, 2018)
− E-mail from Megan Morodomi to Rebecca Coates-Maldoon (October 22, 2018 11:44
PST)
− E-mail from Megan Morodomi to Rebecca Coates-Maldoon (December 3, 2018 11:37
PST)
− Letter from Elizabeth Lake to Brad McCrea, BCDC Director (December 7, 2018)
− Memorandum from Brad McCrea and Lawrence Goldzband, BCDC Executive
Director, to Commissioners and Alternates (January 4, 2019)
− Letter from Rebecca Coates-Maldoon to Mark McClure (January 18, 2019)
− E-mail from Alan Lu, City Process Coordinator, to Mark McClure (September 21,
2018 17:55 PST)
− E-mail from Megan Morodomi to Steven Mathews, North American Fence & Railing,
Inc. (October 3, 2018 16:14 PST)

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 38

Exh. BM
Exh. BN
Exh. BO
Exh. BP
Exh. BQ

−
−
−
−
−

Exh. BR
Exh. BS
Exh. BT

−
−
−

Exh. BU
Exh. BV
Exh. BW
Exh. BX
Exh. BY
Exh. BZ
Exh. CA
Exh. CB

−
−
−
−
−
−
−
−

Exh. CC
Exh. CD
Exh. CE
Exh. CF
Exh. CG
Exh. CH

−
−
−
−
−
−

Exh. CI
Exh. CJ
Exh. CK

−
−
−

Exh. CL
Exh. CM
Exh. CN
Exh. CO
Exh. CP
Exh. CQ
Exh. CR
Exh. CS
Exh. CT

−
−
−
−
−
−
−
−
−

Memorandum from Megan Morodomi (January 16, 2019)
E-mail from Mark McClure to Megan Morodomi (January 24, 2019 14:34 PST)
E-mail from Megan Morodomi to Phil Tagami, et al. (January 25, 2019 17:16 PST)
E-mail from John Monetta to Megan Morodomi (February 2, 2019 18:31 PST)
E-mail from Frank Kennedy to Doug Cole, John Monetta and Betsy Lake (June 21,
2018 16:33 PST)
WGW Ground Lease § 1.1.1
WGW Ground Lease § 1.5.1
Amended and Restated Cost Sharing Agreement (Former Oakland Army Base) (June
19, 2012)
WGW Ground Lease § 5.2.3
Letter from John Monetta to Mark McClure (August 10, 2015)
Resolution No. 85325 (November 25, 2014),
Port Resolution (214-15) (April 9, 2015)
Letter from Mark McClure to Claudia Cappio (March 2, 2016)
E-mail from Doug Cole to Mark McClure (July 11, 2017 15:32 PST)
Letter from Phil Tagami to Sabrina Landreth and Bijal Patel (July 20, 2018)
E-mail from Doug Cole to Pat Cashman, Elizabeth Lake and Bijal Patel (August 16,
2018 11:38 PST)
E-mail from Doug Cole to Elizabeth Lake (August 24, 2018 14:56 PST)
WGW Ground Lease § 6.1
Letter from Bijal Patel to Phil Tagami and Skyler Sanders (July 24, 2018)
E-mail from Doug Cole to Mark McClure (May 23, 2018 12:45 PST)
E-mail from Frank Kennedy to John Monetta (September 27, 2018 12:07 PST)
E-mail from Mark McClure to Phil Tagami and Skyler Sanders (October 9, 2018 9:02
PST)
Letter from Bijal Patel to Phil Tagami (October 18, 2018)
Letter from Chris Stotka to Mark McClure (March 14, 2018)
E-mail from Diana Lee, EBMUD engineer, to Mark McClure, et al. (May 1, 2018
16:20 PST)
Letter from Chris Stotka to Doug Cole (September 26, 2018)
Letter from Frank Kennedy to Chris Stotka (October 17, 2018)
E-mail from Megan Morodomi to John Monetta (October 26, 2018 17:41 PST)
Letter from Phil Tagami to Elizabeth Lake and Bijal Patel (November 9, 2018)
Letter from Elizabeth Lake to Phil Tagami (December 7, 2018)
Change Order, Oakland Army Base (November 29, 2018)
Oakland Army Base Consultant Payment Request Cover Sheet (February 20, 2019)
Oakland Global Rail Enterprise, Petition for Declarator Order (May 23, 2018)
City of Oakland, Petition for Leave to File a Reply and a Reply (June 29, 2018)

Mr. William A. Gilchrist
City of Oakland
September 27, 2019
Page 39

Exh. CU
Exh. CV
Exh. CW
Exh. CX
Exh. CY
Exh. CZ
Exh. DA
Exh. DB
Exh. DC
Exh. DD
Exh. DE
Exh. DF
Exh. DG
Exh. DH
Exh. DI
Exh. DJ
Exh. DK
Exh. DL
Exh. DM
Exh. DN
Exh. DO
Exh. DP
Exh. DQ
Exh. DR
Exh. DS

− Comments by the City of Oakland, California to OGRE’s August 21 Response
(September 18, 2018)
− Port of Oakland Comments in Response to Oakland Global Rail Enterprise Petition
for Declaratory Order (September 18, 2018)
− Port of Oakland, Supplemental Comments (October 9, 2018)
− Surface Transportation Board, Decision (March 14, 2019)
− Letter from Skyler Sanders to Elizabeth Lake and Bijal Patel (March 19, 2019),
− City of Oakland, Petition for Stay (March 25, 2019)
− City of Oakland, Petition for Reconsideration (April 4, 2019)
− City of Oakland, Complaint for Unlawful Detainer (December 11, 2018) (Case No.
RG18931713)
− City of Oakland, Request for Dismissal (December 14, 2018)
− Surface Transportation Board, Decision (June 19, 2019)
− Letter from Chris Stotka to Mark McClure (September 20, 2018)
− Bill of Sale Agreement for Railroad Materials (August 4, 2017)
− Progress Rail Sales Invoice
− CMP/MSIF and Community Health Protection Grant Program, Projects Approved
Between 10/12/17 and 7/6/18
− Letter from Kathryn Floyd, Venable, to Cynthia Brown, STB (March 13, 2019)
− Card-Check Agreement (October 25, 2017)
− Railroad Plans (August 25, 2014)
− E-mail from Frank Kennedy to John Monetta, Elizabeth Lake, and Doug Cole (May
24, 2018 16:17 PST)
− Image depicting the rehabilitated rail between Engineer’s Road and W. Burma Road
− E-mail from John Monetta to Mark McClure (April 9, 2019 14:33 PST)
− Letter from Skyler Sanders to Sabrina Landreth and Bijal Patel (June 7, 2019)
− Letter from Sabrina Landreth to Phil Tagami (August 20, 2018)
− Letter from Bijal Patel to Skyler Sanders (August 20, 2018)
− Oakland Army Base – Development Agreement, Third Amendment to LDDA, Partial
Assignments and West Gateway Ground Lease, Escrow No. 76040-A (February 10,
2016)
− Guaranty of Minimum Project Liquidated Damages

Stay tuned.

EXHIBITS From Dropbox Files</h2

Exh DK_ Combined_OAB Rail Drawings

Exh AH_ Expert Report Lyle Chinkin

Exh AL_ ITS_DRX App_Final

Exh A_Oakland City Admin Graphic_1-22-19

Exh A_Oakland City Admin Graphic_1-22-19

Exh B_ Oakland Global Development Agreement

Exh R_ Conceptual Schedule email 1.21.16

Exh CN_ 2018_10_26_Status of West Burma Road and Temp Bypass Road

Exh AU_ Megan Email Burma Road Permit 8.13.18

Exh I_ Agenda Report 5.30.12

Exh DA_ City of Oakland Petition for Reconsideration, Finance Docket No. 36168 – FINAL

Exh CZ_ 03.25.2019 Petition of City of Oakland for Stay, Finance Docket No. 361…

Exh E_ Basis for Opposition Letter 5.11.16

20190812_-_whistleblower_complaint_unclass

PC_3_PLN19-191_Coal-and-Petroleum-Coke-Regulations_07_18_2019

Exh CC_ 18-4005 City Attorney email records responsive to section #2 of request (first batch)

Exh CV_ Port of Oakland Comment Sept 18 2018

Exh DE_ Summary of Construction 2018

20190826_-_icig_letter_to_acting_dni_unclass

Exh BL_ Megan email Agreement for Services Construction_Estimate Request 10.3.18

Exh CO_ 2018_11_09_OAB_MH-1- Outstanding Issues

Exh CN_ 2018_10_26_Status of West Burma Road and Temp Bypass Road