Loading...
HomeMy WebLinkAboutTC Agd Pkt 2009-10-26TOWN OF TIBURON Special Meeting Tiburon Town Hall. Tiburon Town Council 1505 Tiburon Boulevard October 26, 2009 "Tiburon, CA 94920 Special Meeting - 6:30 p.m. Closed Session - 6:00 p.m. AGENDA TIBURON TOWN COUNCIL CLOSED SESSION - (6:00 p.m.) CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Section 54956.9(a)) Martha Company v. Town of Tiburon CALL TO ORDER AND ROLL CALL Councilmember Collins, Councilmember Gram, Councilmember Slavitz, Vice Mayor Berger, Mayor Fredericks ANNOUNCEMENT OF ACTION TAKEN IN CLOSED SESSION, IF ANY ORAL COMMUNICATIONS Persons wishing to address the Town Council on subjects not on the agenda may do so at this time. Please note however, that the Town Council is not able to undertake extended discussion or action on items not on the agenda. Matters requiring action will be referred to the appropriate Commission, Board, Committee or staff for consideration or placed on a future Town Council meeting agenda. Please limit your comments to three (3) minutes. ACTION ITEMS 1. Proposed Memorandum of Understanding (MOU) regarding The Martha Company v. Town of Tiburon Litigation - Consider adoption of Memorandum of Understanding for Reduced density EIR alternative for Martha Company development application currently pending before the County of Marin (Director of Community Development Anderson, Town Attorney Danforth, Town Manager Curran) Continued without discussion from the October 21, 2009 Town Council meeting ADJOURNMENT LATE MAIL #.A-I*wpl Last Chance Committee for Open Space 1911 Straits View Drive Tiburon CA 95476 October 21, 2009 U L 2 i_ ~RE: MOU between the Martha Company and Town of Tiburon To The Tiburon Town Council and Planning Staff, As negotiations continue, we have one more request at this time. With regard to the lots that will be placed on the end of the secondary ridge (noted as lots 12 -14 and particularly lot 13 on the 32 lot alternative map), we cannot tell whether the building and landscape envelope run over the hill. The open land below that lot can be observed regionally from Angel Island, San Francisco, SF Bay, and Paradise Drive. Due to its regional significance, we think it is appropriate to request that the building envelope and all associated landscaping be pulled back from the toe of that ridge, to a more flat surface so that the topography will leave the natural look. Thank you. Your Sincerely, Joanna Kemper & Jerry Riessen Co-Chairs, Last Chance Committee for Tiburon Open Space LATE MAIL # R-T- i Robert H. Becker 1907 Straits View Dr Tiburon, Ca. 94920 October 21, 2009 Tiburon Town Council Tiburon, CA 94920 Re: Martha Settlement Proposal I have the following observations that I would like to make. I believe that the proposed construction road is essential to the development of this project and if it is nor a requirement for approval then you will be jeopardizing our health and safety . We. have lived here for 18+ years and with the narrow roads and poor visibility of the access roads any attempt to try to develop the property via Hilhaven's roads will be a disaster for the residents. Removing all construction traffic from the Hill Haven and Old Tiburon neighborhoods is a very prudent safety measure. I also believe the road should be made permanent and the lots that are shown as lot 9-17 on the ridge line should be spread along the proposed construction road. Taking the 10 houses (lots 947) off the ridge is a very big concession for Martha but that would be a wonderful addition to the Town's open space. However at a minimum if something can't be negotiated now perhaps the right of first refusal after the map is approved and recorded can be agreed upon. The other point I want to make is that there is a serious argument that says that the so called construction road be kept permanent to provide another means of egress from Hillhaven in the event of a wildfire or other natural disaster. Thank you for the opportunity to be heard on this matter. Robert H. Becker To: TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 Mayor and Members of the Town Council From: Community Development Department Office of the Town Manager Office of the Town Attorney Special Town Council Meeting October 26, 2009 , i Agenda Item: a Ir Subject: Consideration of Memorandum of Understanding Setting Forth Terms for Settlement of The Martha Company v. Town of Tiburon Litigation and Which Proposes a Reduced Density 32-lot Alternative to the Martha Company's Application for a 43-lot Development on 110 acres Currently Pending Before the County of Marin Reviewed By: BACKGROUND On September 16, 2009, and again on October 7, 2009, the Town Council considered a proposed Reduced Density Alternative as a possible settlement to litigation between the Town and the Martha Company related to its 110-acre property at the eastern end of the peninsula. Readers seeking background on this issue are referred to the staff reports from those meetings. At its October 7, 2009 meeting, the Town Council directed staff to return with a draft Memorandum of Understanding (Exhibit A) for its consideration and possible approval via Resolution (Exhibit B). The MOU sets forth the points of agreement and a mechanism by which both parties would seek to have the County consider the Reduced Density Alternative as part of its ongoing CEQA and development review process, and approve that alternative under certain circumstances following certification of the environmental impact report (EIR) for the project. The Town's requests to the Board of Supervisors, consistent with the terms of the MOU, are contained in attached Exhibit C. Under the terms of the MOU if adopted, Martha would agree to accept the Reduced Density Alternative if approved by the County and would annex into the Town. In turn, the Town would agree to honor the County approvals after annexation and be bound by the terms set forth in the MOU following annexation. The MOU and the entire process at the County would be contingent upon the outcome of the County's CEQA process; both parties recognize that an MOU agreement reached at this time may need to be modified through a good-faith negotiation process accordingly following the conclusion of the County EIR and approval process. The draft MOU has as an attachment a form of Development Agreement, which would be negotiated by the parties and adopted by the Marin County Board of Supervisors. The Development Agreement would thenceforth govern development rights for the property. TOWN OF TIBURON PAGE 1 OF 2 26, 2009 FINANCIAL IMPACT There is no direct financial impact to the Town as a result of the direction sought at this time. If an MOU and Development Agreement are ultimately approved and the property annexed, there will be financial implications, including new taxes and assessments as well as new impacts and expenses, all of which will be itemized at that time. There is not expected to be any significant net financial impact to the Town after annexation. RECOMMENDATION Staff recommends that the Town Council: 1. Allow staff to present a staff report. 2. Hear from interested members of the public on the proposal. 3. Direct staff to make any desired changes to the Memorandum of Understanding or its attached Form of Development Agreement. 4. Move to adopt the Resolution approving the MOU, authorizing the Town Manager to complete any final minor negotiations on details of the MOU terms of the terms of its attachment in consultation with the ad-hoc subcommittee, and authorizing the Town Manager to execute the MOU as appropriate. 5. Move to adopt the Resolution requesting certain actions by the Marin County Board of Supervisors. Exhibits: A. Memorandum of Understanding with attached Form of Development Agreement B. Resolution approving MOU C. Resolution urging Board of Supervisors to take certain action related to the Martha Company applications Prepared By: Peggy Curran, Town Manager Scott Anderson, Director of Community Development Ann Danforth, Town Attorney S: Udministration l Town Council lStaff Reports 120091 October 26 speciallMartha staff report 10-26-09.doc - MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding ("MOU") is entered into this day of , 2009 ("MOU Effective Date") by and between the Town of Tiburon ("Town") and Martha Co., a California corporation ("Martha"). RECITALS A. Martha owns approximately 110 acres of real property designated as Marin Assessor Parcel No. 059-251-05 located on the Tiburon Peninsula in unincorporated Marin County, California ("Property"), as more particularly described and depicted in Exhibit 1 hereto. B. The County of Marin, Martha, Town, and certain other defendants have engaged in litigation related to potential development of the Property . On December 29, 1976, a Judgment Pursuant to Stipulation was entered into in United States District Court for the Northern District of California case number C 75 0125 RHS 1976 Judgment"). On September 4, 2007, a Stipulation for Entry of Judgment Creating Timeline and Procedures for Enforcing Judgment Entered in Martha Co. v. County of Marin, No. C 75 0125 RHS was filed in United States District Court for the Northern District of California case number C 06 0200 SBA ("2007 Stipulation") pursuant to which a Proposed Judgment Pursuant to Stipulation was signed by the United States District Court Judge on November 7, 2007 and filed on November 8, 2007 ("2007 Judgment"). The 1976 Judgment, 2007 Stipulation, and 2007 Judgment (collectively, the "Martha Judgment") granted Martha certain rights to develop the Property as set forth therein. C. Pursuant to the Martha Judgment and in accordance with the California Environmental Quality Act (Public Resources Code section 21000 et seq.) ("CEQA"), the County, as lead agency, is preparing a draft Environmental Impact Report ("EIR") analyzing various development possibilities for the Property, including the 43-unit development project originally proposed by Martha in its 2007 Application (as that term is defined in the 2007 Stipulation) ("43 Unit Project") and a lower density alternative to Martha's proposal. As used in this MOU, "32-Unit Lower Density Alternative" means a project alternative with a reduced count of 32 units as described in the LDA Development Agreement attached hereto as Exhibit 1 ("LDA Development Agreement"). D. On July 1, 2009, the Town pre-zoned certain areas outside of the Town's boundaries but within its sphere of influence, including the Property. Martha filed a writ of mandamus (Marin County Case No. CV 093636, "Writ of Mandate") contending, among other things, that (i) the Mitigated Negative Declaration approved by the Town in connection therewith called for future environmental review in order to limit Property development, and (ii) the pre- zoning was the first step in an impermissible piecemeal approach to Property annexation. The Town denies Martha's allegations. E. Martha desires to develop the Property in accordance with the Martha Judgment; the Town desires that the Property be developed at a lower density. The parties disagree whether Martha's rights under the Martha Judgment would bind the Town if the Town were to annex the Property. 1222869v6 29146/0011 EXHIBIT F. The parties now desire to enter into this MOU to set forth their mutual understandings and commitments with respect to the proposed development of the Property. Without admitting any issue of fact or law, the parties agree that entry into this MOU is in good faith and in the public interest, and is designed to avoid litigation between Martha and the Town with respect to the Property. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Incorporation of Recitals and Exhibits. The recitals set forth above, and all defined terms set forth in such recitals and in the introductory paragraph preceding the recitals, and the Exhibit attached hereto are hereby incorporated into this MOU as though set forth in full. 2. 32-Unit Lower Density Alternative. a. The parties acknowledge that the scope of any proposed development on the Property would be dependent on the findings in an EIR, and certification of the EIR by the County. b. Should changes be made by the County to the 32-Unit Lower Density Alternative which are unacceptable to the Town or to Martha, including without limitation changes in the number of lots, changes in the maximum permitted square footage of homes and ancillary structures, reconfiguration of lots or imposition of unexpected fees or mitigations, neither the Town nor Martha will be under any obligation to proceed with commitments hereunder, except that the parties will meet and confer in good faith for up to 90 days to reach a resolution acceptable to both parties. In such event, Martha and Town each commit in good faith to work together with each other and the County towards a mutually agreeable development alternative substantially consistent with the 32-Unit Lower Density Alternative. Nothing contained in the LDA Development Agreement shall be construed as limiting the generality of the foregoing. 3. Martha Support of 32-Unit Lower Density Alternative. a. Martha, on behalf of itself and its shareholders and its and their heirs, executors, successors and assigns, agrees to accept the 32-Unit Lower Density Alternative as described in the LDA Development Agreement, and to provide the County and Town with a written waiver, in form reasonably acceptable to County and Town, of all rights to approval of any project which would involve a subdivision of more than 32 lots or result in a development of greater height, bulk, square footage size or floor area ratio than the 32-Unit Lower Density Alternative, within 10 days after all of the following occur: i) the 32-Unit Lower Density Alternative as described in the LDA Development Agreement is found by the County of Marin to be an environmentally prudent course of action; and ii) the County joins with Martha in petitioning the United States District Court for the Northern District of California to enter an amended judgment incorporating the Page 2 1222869v6 29146/0011 32-Unit Lower Density Alternative as described in the LDA Development Agreement, and the Town appears in such proceeding in support; and iii) the County in fact enters into a development agreement with Martha substantially in the form attached hereto as Exhibit 1, and such development agreement becomes effective. Martha agrees to take all actions on its part necessary to ensure that the foregoing three events in fact occur, including without limitation providing the County with the necessary information to evaluate the 32-Unit Lower Density Alternative for CEQA purposes, originating or joining in a petition with the County for an amended judgment, and executing a development agreement with the County in substantially the form attached as Exhibit 1, provided however that Martha need not incur any costs in connection with a referendum campaign, if one should be necessary. b. Martha shall cooperate and negotiate in good faith with the County and Town for reasonable modifications to the 32-Unit Lower Density Alternative to accommodate changes and mitigation measures identified in the EIR. C. Martha shall support the Town's efforts as set forth in MOU section 4. 4. Town Support of Lower Density Alternative Project. Subject to Town concluding that the 32-Unit Lower Density Alternative will not result in conditions dangerous to health and safety, as provided in section 5 below, the Town agrees to support approval of the LDA Development Agreement attached hereto as Exhibit 1. Such support would be in the form of a Town resolution (to be adopted concurrent with approval of this MOU) urging the County to: a. Evaluate the 32-Unit Lower Density Alternative as a project alternative in the draft EIR. b. If the 32-Unit Lower Density Alternative is found environmentally equal or superior to the 43 Unit Project, approve the master plan, tentative subdivision map, and precise development plan applications based on the 32-Unit Lower Density Alternative and enter into the LDA Development Agreement with Martha for the Lower Density Alternative substantially the form attached hereto as Exhibit 1. C. Require as a condition of the LDA Development Agreement the entry of a substitute judgment ("Substitute Judgment") by the federal court under its continuing jurisdiction, said Substitute Judgment superseding the Martha Judgment and incorporating: (i) the terms of the LDA Development Agreement for the 32-Unit Lower Density Alternative; (ii) Martha's acknowledgment that the Martha Judgment is superseded and that Substitute Judgment will subsequently control future development rights and obligations with respect to the Property; Page 3 1222869v6 29146/0011 (iii) County's acknowledgement that Martha's rights under LDA Development Agreement create no health or safety issues; (iv) Martha's dismissal with prejudice of the Writ of Mandate concurrent with full execution of the LDA Development Agreement; and (v) provisions to ensure clarity and enforcement so that the Town and Martha receive the benefit of this MOU, and the Town, Martha, and County receive the benefit of the Substitute Judgment and the LDA Development Agreement. 5. Review of Health and Safety Issues. Town agrees that it will review the County EIR when certified in order to determine whether there are any health and safety constraints on the 32-Unit Lower Density Alternative. Town further agrees to conduct all other reviews, studies, and analyses necessary to satisfy itself that implementation of the 32-Unit Lower Density Alternative, including required mitigation measures, will not result in conditions dangerous to health and safety. The Town reserves full and complete discretion with respect to the conduct of such review and the making of such findings. Provided the Town reaches this conclusion after its own independent review, Town hereby agrees to execute the certification attached to the LDA Development Agreement as Exhibit E. If the Town is unable to reach the conclusion that the 32-Unit Lower Density Alternative will not result in conditions dangerous to health and safety, then this MOU shall automatically terminate and thereafter both parties shall be released from their obligations hereunder. 6. Aueement to Term of Development Agreement. The Town hereby agrees that, if a Development Agreement is entered into between Martha and the County in substantially the form attached hereto as Exhibit I. then such agreement may have a term of fifteen (15) years after annexation, or the then-remaining duration of such LDA Development Agreement, whichever is shorter, and the Town will execute a consent to such duration in substantially the form attached as Exhibit F to the LDA Development Agreement. 7. Annexation into Sanitary District. To the extent consistent with the findings of the EIR, the Town will support annexation of the Property into the public sanitary district, or, in its discretion, the Town will enter into a deferred annexation agreement to permit annexation of the Property into the public sanitary district prior to annexation into the Town. 8. Stay of Writ of Mandate Litigation. The parties agree to stay the Writ of Mandate litigation during the term of this MOU, and shall jointly submit to the court any necessary papers in that regard, including a request for a CCP § 1094.5(g) stay. 9. Property Annexation. a. Martha acknowledges that the Town has made no commitments as to whether or not the Town will annex the Property. b. Subject to satisfaction of the conditions precedent is section 3.a.(i) - (iii) above, and upon request of Town, Martha will support annexation of the Property by the Town, including without limitation by supporting governmentally required submissions necessary or Page 4 1222869v6 29146/0011 desirable to accomplish the such annexation and, if requested by Town, attendance and expressed public support of the Property annexation. C. Town acknowledges that annexation of the Property may effectively shorten Martha's desired 20 year term of the LDA Development Agreement; as such, the Town would abstain from Property annexation until the earlier of (i) recordation of the first final map for the Lower Density Alternative, or (ii) five (5) years after the effective date of the LDA Development Agreement, or (iii) the effective date of any subsequent development agreement entered into between the Town and Martha. 10. Expiration; Termination; Periodic Review. If the LDA Development Agreement has not been finalized, approved and fully executed by County and Martha by June 30, 2010, or such other date as mutually agreed in writing by the parties ("Outside Date"), this MOU shall automatically terminate and be of no further force or effect, and neither party shall have any further obligations hereunder. If (a) the EIR is not certified, (b) the 32-Unit Lower Density Alternative is not found environmentally equal or superior to the 43 Unit Project and the parties cannot agree to a development alternative substantially consistent with the 32-Unit Lower Density Alternative, or (c) a development agreement other than the LDA Development Agreement is executed without the Town's consent, then the parties' obligations under this MOU shall terminate as of the earliest date of any such event, as if such date were the Outside Date. Notwithstanding the foregoing, the parties may amend this MOU (including to extend or terminate the term hereof) upon mutual written agreement, and shall review this MOU on an as- needed basis, but at least every six (6) months, to consider whether any amendments are necessary or desirable. 11. Notices. All notices required under this MOU shall be made in writing and sent to the parties at their respective addresses specified below or to such other address as a party may designate by written noticed delivered to the other parties in accordance with this section 11. All such notices shall be sent by: (a) personal delivery, in which case notice is effective upon delivery; (b) overnight courier, in which case notice shall be deemed delivered upon receipt, as evidenced by a record of delivery; or (c) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, as evidenced by a transmission report reflecting the accurate transmission thereof, provided that a duplicate copy of the faxed notice is promptly delivered by United States mail (first class with postage prepaid). Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. California time or on a non-business day. Town: Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 Attention: Town Manager Telephone: (415) 435-7373 Facsimile: (415) 435-2438 with a copy to: Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 Page 5 1222869v6 29146/0011 Attention: Telephone: Facsimile: Martha: Town Attorney (415) 435-7373 (415) 435-2438 Attention: Telephone: Facsimile: with a copy to: Hanson Bridgett LLP 80 E. Sir Francis Drake Boulevard, Suite 3E Larkspur, CA 94939 Attention: Mary K. McEachron Esq. Telephone: (415) 925-8400 Facsimile: (415) 925-8409 12. Applicable Laws. The parties shall comply with all applicable statues, ordinances, laws, rules, regulations and requirements under Federal, State, County, Town and other applicable authority with respect to implementation of this MOU. 13. Limitations of the MOU. While this MOU has been prepared in order to set forth the parties' mutual understandings and commitments with respect to the proposed development of the Lower Density Alternative on the Property pursuant to the LDA Development Agreement between County and Martha, Martha acknowledges and agrees that, by execution of this MOU, the Town is not committing to or agreeing to annex the Property, assume any development agreement, or undertake any other acts or activities or issue any approvals requiring the subsequent independent exercise of discretion by the Town Council, Planning Commission or Design Review Board, other than as specifically set forth and agreed under this MOU. Nothing in this MOU shall be deemed to require the Town to initiate the annexation process for the Property. 14. Assi nment. This MOU shall not be assigned by any party. 15. Governing Law; Venue. The interpretation, validity and enforcement of this MOU shall be governed by and construed under the laws of the State of California, excluding its conflict of laws rules. 16. Authority to Enter into MOU. The individuals executing this MOU on behalf of the Town and Martha each represent and warrant that they have the right, power, legal capacity and authority to enter into and to execute this MOU. 17. Severability. If any provision of this MOU or the application of any such provision shall be held by a court of competent jurisdiction to be invalid, void or unenforceable to any extent, the remaining provisions of this MOU and the application thereof shall remain in full force and effect and shall not be affected, impaired or invalidated. (415) (415) Page 6 1222869v6 29146/0011 18. Interpretation. As used in this MOU, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This MOU shall be interpreted as though prepared jointly by all parties. This MOU may only be amended by mutual written agreement of the parties. No waiver by Town of any breach or default of any provision of this MOU or any amendment shall be deemed a waiver of any other provision hereof or of any subsequent breach or default of the same or any other provision. Nothing contained herein nor any acts of the parties hereto shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture by the parties hereto. 19. Entire Agreement; Counterparts. This MOU (including the exhibit attached hereto) contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, oral and written, between the parties with respect to such subject matter. This MOU may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 20. Reimbursement of Fees and Costs. Upon execution of the LDA Development Agreement, Martha will pay Town the amount of seventeen thousand five hundred dollars ($17,500) to reimburse Town for a portion of its processing and legal fees in connection with the negotiation and drafting of the MOU, including form of LDA Development Agreement. Fees and costs reimbursable to the Town pursuant to this MOU shall be due and payable within fifteen (15) days after the County approves the LDA Development Agreement. Any unpaid fees and costs shall bear interest at the lower of 10% per annum or the highest rate allowable by applicable law until paid. If the LDA Development Agreement is not approved, Martha shall have no obligation to reimburse Town therefor. IN WITNESS WHEREOF, the parties hereto have executed this MOU as of the MOU Effective Date. [SIGNATURES ON FOLLOWING PAGE] Page 7 1222869v6 29146/0011 TOWN OF TIBURON Approved as to Form: By: Ann Danforth, Town Attorney Approved as to Form: t Hanson Bridgett LLP By: Mary K. McEachron Esq. 1222869v6 29146/0011 By:_ Name: Its: MARTHA COMPANY, a California corporation By:_ Name: Its: By:_ Name: Its: Page 8 Exhibit 1 Form of LDA Development Agreement 1222869v6 29146/0011 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Marin County Community Development Agency 3501 Civic Center Drive #308 San Rafael, CA 94903-4157 Attn: Community Development Agency Director Space Above This Line Reserved for Recorder's Use Exempt from Recording Fee Per Government Code Section 27383 DEVELOPMENT AGREEMENT BY AND BETWEEN THE COUNTY OF MARIN AND MARTHA CO. WITH RESPECT TO EASTON POINT Effective Date: TABLE OF CONTENTS Page RECITALS ................................................................................................................1 ARTICLE I Relationship to 2010 Judgment ...........................................................5 1.1 2010 Judgment 5 1.2 Owner's Relinquishment of Prior Claims 5 1.3 Acknowledgement of Rights of Owner 5 1.4 Entitlement to Full Benefit and Term of Agreement .............................................6 1.5 Condition Precedent to Termination or Modification Pursuant to Gov't Code § 65865.1 ..........................................................................................6 1.6 Condition Precedent to Termination, Modification or Suspension for Health and Safety or Other Reasons 6 1.7 Representations Concerning Health and Safety .................................................7 ARTICLE II Property and Term ................................................................................7 2.1 Property Subject to Agreement 7 2.2 Term of Agreement 7 (a) : Initial Term 7 (b) Two 5-Year Extensions 7 (c) Notice and Cure of Default with Respect to Extensions ...........................8 (d) Effect of Annexation ................................................................................8 2.3 Extension of Term 8 (a) Extension of Term Due to Moratoria 9 (b) Extension of Term Due to Uncontrollable Events ....................................9 (c) Other Extensions 9 2.4 Effect of Termination of Agreement 10 (a) Subdivision Lots 10 (b) Remainder Lot 10 (c) Indemnification Provisions .....................................................................10 ARTICLE III Realization of Benefits by the County ...............................................10 3.1 Reduction in Density 10 3.2 Dedication of Land for Public Purposes ............................................................10 3.3 Improvement of Pedestrian Access to Open Space ..........................................11 3.4 Infrastructure and Street Improvements 12 3.5 Conditions, Covenants & Restrictions ...............................................................12 ARTICLE IV Permitted Development ......................................................................12 4.1 Permitted Use of Property 12 4.2 Residential Lots 13 (a) Subdivision Lots 13 (b) Remainder Lot 13 (c) Amenities Permitted 13 (d) Design Review 13 (e) Limitation on Square Footage 13 (f) Maximum Building Height 13 (g) Building Sizes 14 (h) Building & Landscape Envelope 15 (i) Residential Building Envelope 15 U) Private Open Space 16 (k) landscape Design 17 4.3 Dedicated Open Space 17 (a) Improvements 17 (b) ' Reservation of Easements 17 (c) Indemnity 18 4.4 Water Tank 19 (a) Location of Water Tank Parcel 19 (b) Water Tank Screening 19 4.5 Sewers 20 4.6 Roads and Driveways 20 (a) Residential Roads and Driveways 20 (b) Water Tank Road 20 (c) Construction Road 20 4.7 Staging and Stockpiling 21 ARTICLE V Vesting .................................................................................................21 5.1 Vesting 21 5.2 Vested Elements 21 5.3 Development Standards 22 5.4 Fees and Mitigations for Subdivision Improvements .........................................23 (a) Subdivision Improvement Agreement Bond ...........................................23 (b) Fees for Subdivision Improvements and Infrastructure Development .........................................................................................23 (c) Town-Wide Tax and Assessment Districts ............................................24 (d) No Affordable Housing Mitigations and Fees ..25 (e) No Parks & Recreation / Quimby Act Fees ..25 5.5 Fees and Mitigations for Individual Home Construction ..25 5.6 Phasing of Maps Permitted ..26 5.7 Timing and Duration of Phased Development ..26 5.8 Compliance with Other Laws ..27 5.9 Building Requirements ..28 5.10 Life Safety Matters ..28 5.11 Procedural Matters 28 5.12 Permits and Approvals from Other Agencies ..28 ARTICLE VI Subsequent Approvals .......................................................................29 6.1 Subsequent Approvals ......................................................................................29 (a) Subsequent Ministerial Approvals 29 (b) Subsequent Discretionary Approvals .....................................................29 6.2 Processing Applications for Subsequent Approvals ..........................................30 6.3 Additional CEQA Processing ............................................................................30 ARTICLE VII Obligations of the Parties ...................................................................31 7.1 Owner 31 (a) Compliance with Development Agreement ............................................31 (b) Implementation of On-Site Mitigation Measures ....................................31 (c) Grant of Conservation Easement 31 (d) Creation of HOA ....................................................................................31 (e) Indemnification and Defense of County .................................................32 7.2 County ..............................................................................................................32 (a) Certificate of Compliance 32 (b) Affordable or Inclusionary Housing Mitigations and Fees 32 (c) Relocation of Parcel C 32 (d) Good Faith in Proceedings 33 (e) Additional Approvals 33 (f) No Contrary Actions 33 ARTICLE VIII Default and Remedies .........................................................................34 8.1 Notice of Breach / Meet and Confer 34 8.2 Request for Notice 35 8.3 Remedies for Breach 35 (a) Remedies in General 35 (b) Remedies Pursuant to Sections 1.5 and 1.6 35 (c) Monetary Damages Unavailable 36 (d) Attorneys' Fees and Costs 36 (e) No Other Remedies 36 ARTICLE IX Annual Reviews and Amendments ....................................................37 9.1 Annual Review 37 9.2 Procedures to Amend 37 9.3 Insubstantial Amendments 37 9.4 Amendments to Development Agreement Legislation 38 9.5 Amendment of Existing Approvals 38 ARTICLE X Transfers and Assignments 39 10.1 Town as Successor-in-Interest to County 39 10.2 Right to Assign 39 10.3 Release Upon Transfer 40 10.4 Covenants Run with the Land 40 10.5 Future Lot Owners and HOA as Third-Party Beneficiaries 41 ARTICLE XI Mortgage Protection, Certain Rights of Cure ...................................41 11.1 Mortgage Protection 41 11.2 Mortgagee Not Obligated 41 11.3 Notice of Default to Mortgagee .........................................................................42 ARTICLE XII General Provisions .............................................................................42 12.1 Common Sense Interpretation 42 12.2 Private Undertaking; Indemnification 43 12.3 No Joint Venture or Partnership 43 12.4 Notices, Demands and Communications between the Parties 43 12.5 Waivers 44 12.6 County Approvals and Actions 45 -iv- 12.7 Severability .......................................................................................................45 12.8 Section Headings ..............................................................................................45 12.9 Entire Agreement 45 12.10 Estoppel Certificate 45 12.11 Applicable Law 46 12.12 Consistency with County Ordinance 46 12.13 Recordation 46 12.14 Definitions 46 -v- DEVELOPMENT AGREEMENT BY AND BETWEEN THE COUNTY OF MARIN AND MARTHA CO. WITH RESPECT TO EASTON POINT THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of the day of , 2010, by and between the COUNTY OF MARIN, a governmental entity organized and existing as a county under the laws of the State of California ("County"), and MARTHA CO., a California corporation ("Owner"). RECITALS The following recitals are a substantive part of this Agreement and incorporated herein by this reference: A. In order to diminish the waste of economic resources and promote certainty in construction of development projects, the Legislature of the State of California enacted Sections 65864 et seq. of, the Government Code (the "Development Agreement Legislation"), which authorizes the County and an applicant for a development project to enter into a development agreement, establishing certain rights in the property which is the subject of the project application. B. Owner is the owner in fee of approximately one-hundred-ten (110) acres of real property on Paradise Drive in unincorporated Marin County adjacent to the Town of Tiburon, which property is known as Easton Point, Marin Assessor's Parcel No. 059-251-05, and described in the legal description attached as Exhibit A and the map attached as Exhibit B ("Property"). C. On December 29, 1976, judgment was entered in federal court requiring the County to approve a minimum of forty-three (43) homes on minimum half-acre lots on the Property ("1976 Judgment"). On November 8, 2007, a second federal court judgment ("2007 Judgment") was entered creating a binding timeline and procedures for enforcing the 1976 Judgment. 1 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10122109 D. During 2008, Owner filed an application with County for approval of forty-three homes, and in accord with its obligations under the 2007 Judgment, County has processed such application. Pursuant to the California Environmental Quality Act ("CEQA"), on , 2010, County certified an Environmental Impact Report ("EIR") with respect to such application. Such EIR determined that no unmitigatable health or safety impact precluded development of forty-three homes on this site. Therefore, pursuant to the terms of the 2007 Judgment, the County would be required to approve forty-three homes on this site absent the Owner's written acceptance of fewer homes. E. On October 26, 2009, by Resolution No. , the Town of Tiburon ("Town") had proposed that, in conducting environmental review for the Easton Point proposal, the County should also evaluate the 32-Unit Lower Density Alternative, a plan and narrative description of which are attached hereto as Exhibit C, incorporated herein by reference, and further described in ARTICLE IV, infra ("32-Unit LDA" or "Project"). F. On October 26, 2009, the Town, by Resolution No. authorized a Memorandum of Understanding ("MOU") with Owner for the purpose of restricting Owner's development rights to those described in the 32-Unit LDA, provided that such alternative was found to be environmentally equal or superior to the pending forty-three unit proposal. Pursuant to such MOU - and subject to the completion of CEQA review and adoption of a binding development agreement - Owner agreed to limit future development of the Property to the 32- Unit LDA. G. Resolution No. of the Town of Tiburon also urged that, in the event the County determined the 32-Unit LDA to be environmentally equal or superior to the pending 43- unit application, the County should enter into a development agreement with Owner for the purpose of carrying out the intent and purposes of the MOU. H. In certifying the Easton Point EIR on 2010, the County in fact determined that the 32-Unit LDA was environmentally superior to the pending application for 2 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 0122109 forty-three homes. The County has therefore determined that, by entering into this Development Agreement, it is not only conforming to the October 2009 recommendation of the Town of Tiburon, but also implementing an environmentally superior alternative while simultaneously complying with its obligations under the 1976 and 2007 Judgments. 1. For the reasons stated herein, among others, County and Owner have determined that a development agreement is appropriate for this Project. This Agreement will eliminate uncertainty in planning for and securing orderly development of the Property and will otherwise achieve the goals and purposes for which the Development Agreement Legislation was enacted. J. The terms and conditions of this Agreement have undergone extensive review by County and Tiburon Staff, the Board of Supervisors, and the Tiburon Town Council at publicly- noticed meetings and have been found to be fair, just, and reasonable, especially in light of Owner's pre-existing rights under the 1976 and 2007 Judgments. K. County has given notice of its intention to adopt this Agreement, has conducted public hearings thereon pursuant to Government Code Section 65867, and the Board of Supervisors hereby finds that: (1) The provisions of this Agreement and its purposes are consistent with the mandatory goals, policies, and standards specified in the Countywide Plan and compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located. (2) The provisions of this Agreement and its purposes are consistent with the precatory goals, policies, and standards specified in the Countywide Plan to the greatest extent legally feasible under the 1976 and 2007 Judgments. (3) This Agreement would facilitate important economic, social, environmental and planning goals of the County and the Town and is in conformity with public convenience, general welfare and good land use practice. (4) The Owner has made commitments to a high standard of quality and has agreed to development limitations beyond those permitted under the 1976 and 2007 Judgments, and therefore beyond the limitations which the County could otherwise legally demand. 3 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 (5) This Agreement complies in all respects with the County's Resolution No. Establishing Procedures and Requirements for the Consideration of Development Agreements Under Government Code Sections 65864-65869.5 (the "Development Agreement Resolution"). (6) The subdivision to which this Agreement pertains is not within the definition of "Subdivision" found in Government Code § 66473.7. (7) This Agreement will not be detrimental to health, safety and general welfare. L. The Project, as described at Exhibit C and in ARTICLE IV, infra, was the subject of extensive alternatives analysis in an EIR prepared and adopted in accordance with CEQA. The Board of Supervisors has found that there is no significant change in the Project or in the environmental setting in which the Project is to be undertaken, nor have any material facts been ascertained with respect to the Project or its environmental setting, since certification of the EIR which would require further study or analysis under CEQA. Accordingly, the Board of Supervisors finds that this Agreement complies with the requirements of CEQA. M. The following development approvals, entitlements, policies and findings have been adopted by the County and applied to the Project: (1) The "Rezoning," as approved by Ordinance No. on , 2010; (2) The "Master Plan" (MP 09-2), as approved by Resolution No. on , 2010; (3) The "Tentative Subdivision Map" (SD 09-1), as approved by Resolution No. on , 2010; (4) The "Precise Development Plan" (DP 09-4), as approved by Resolution No. on , 2010; (5) Approval of "Exceptions to Subdivision Standards," as adopted by Resolution No. on , 2010; and (6) Resolution No. on , 2010, certifying the Environmental Impact Report, adopting a Statement of Overriding Considerations, and adopting a Mitigation Monitoring Program. The approvals and development policies described in subparagraphs M(1) through M(6) above shall be collectively referred to herein as the "Existing Approvals." 4 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 N. On , 2010, the County adopted its Ordinance No. approving this Agreement, and such Ordinance thereafter became effective on , 2010 (the "Effective Date") NOW, THEREFORE, County and Owner agree as follows: ARTICLE I Relationship to 2010 Judgment 1.1 2010 Judgment On , 2010, Owner and County petitioned the United States District Court for the Northern District of California - pursuant to its continuing jurisdiction under the 2007 Judgment - to enter a new judgment superseding the 1976 and 2007 Judgments and incorporating instead all terms and conditions of this Development Agreement. The Town appeared in those proceedings to support entry of such judgment. The court having entered a superseding judgment on 2010 ("2010 Judgment," attached hereto as Exhibit D), the terms and conditions of this Agreement shall henceforth govern the rights and obligations of the Owner, the County, and the Town concerning the Property. It is the intent of the Owner, the County, and the Town that such accord shall now fully and finally resolve all disputes, disagreements, litigation, and threats of litigation among them concerning future uses of the Property. 1.2 Owner's Relinquishment of Prior Claims. Owner irrevocably relinquishes all right and claim to construct more than the thirty-two units described herein or to construct such units on terms materially different from those described in ARTICLE IV, infra. 1.3 Acknowledgement of Rights of Owner. In exchange for Owner's relinquishment of the right to construct the forty-three units otherwise permitted under the 1976 and 2007 Judgments, County, by requesting the court to enter its 2010 Judgment, and Town, by supporting said request, have acknowledged the right of Owner to construction of the thirty-two unit Project described herein. 5 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 1.4 Entitlement to Full Benefit and Term of Agreement. Owner shall have the full term of protection afforded by this Agreement, and no technicality, mistake, or inadvertency will be used to deny Owner the full twenty years (or fifteen years after annexation) of protection so afforded. To this end the County (and upon annexation, the Town) shall work with Owner to ensure that any perceived breach or default is promptly resolved, and extensions occur as scheduled, in the absence of a finding by United States District Court for the Northern District of California that termination of the Agreement is warranted under Section 8.3(e), infra, by reason of a default on Owner's part which is continuing and unremediated despite a prior directive of such court as described below in Sections 1.5 and 1.6. 1.5 Condition Precedent to Termination or Modification Pursuant to Gov't Code 65865.1. Prior to termination or modification of this Agreement pursuant to Government Code § 65865.1, County (or upon annexation, Town) shall petition the United States District Court for the Northern District of California - pursuant to its continuing jurisdiction under the 2010 Judgment - for a resolution of any dispute between itself and Owner concerning compliance with this Agreement and shall subsequent to such ruling afford Owner a reasonable opportunity to bring itself into conformity with the ruling of the court. 1.6 Condition Precedent to Termination, Modification or Suspension for Health and Safety or Other Reasons. Prior to termination, modification, or suspension of this Agreement for any reason other than that described in Section 1.5, supra, including for reasons described in Gov't Code § 65865.3, County (or upon annexation, Town) shall petition the United States District Court for the Northern District of California - pursuant to its continuing jurisdiction under the 2010 Judgment - for a determination of whether such health and safety issues or other reasons permitted by law for modification or termination of a development agreement can feasibly be addressed by means which do not deprive Owner of the benefit of this Agreement. The parties shall work cooperatively to implement any resultant directive of the court. 6 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 1.7 Representations Concerning Health and Safety. County represents that it has reviewed the EIR analysis for the 32-Unit LDA and has satisfied itself that implementation of such alternative, including required mitigation measures, will not result in conditions dangerous to health and safety. In reaching this conclusion, County has relied as well on the representations of the Town of Tiburon, attached hereto as Exhibit E and incorporated herein by reference, that the Town also has reviewed the EIR analysis for the 32-Unit LDA and has conducted all reviews, studies, and analyses necessary to satisfy itself that implementation of the 32-Unit LDA described herein, including required mitigation measures, will not result in conditions dangerous to health and safety. ARTICLE II Property and Term 2.1 Property Subject to Agreement. All of Owner's Property described and depicted at Exhibits A and B shall be subject to this Agreement. 2.2 Term of Agreement. The term of this Agreement shall commence upon its Effective Date and shall continue in full force and effect until the expiration date determined in accordance with this Section 2.2, except as otherwise provided in Sections 2.3 and Article ARTICLE VIII. (a) Initial Term. The initial term of this Agreement shall extend through the tenth anniversary date of its Effective Date. (b) Two 5-Year Extensions. Provided that Owner is not in a continuing, unremediated default under the terms of this Agreement that it has failed to remedy despite the proceedings described at Sections 1.4 to 1.5 and ARTICLE VIII, infra, at the expiration of the initial term, or the first extended term, as the case may be, then the term of this Agreement shall be extended as provided in this subsection (b). The first such extension shall extend the term of this Agreement through the fifteenth anniversary of its Effective Date; the second such extension shall extend the term of this Agreement through the twentieth anniversary of its 7 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 Effective Date. If the first extension does not commence, the second extension shall automatically terminate. (c) Notice and Cure of Default with Respect to Extensions. Within one month following the 9th and 14th Annual Reviews held pursuant to Section 9.1, infra, County shall use the procedure described in Section 8.1, infra, to notify Owner of any event of default which would justify denial of an extension under Section 2.2(b). Such Notice of Breach shall inform Owner of all steps required to bring itself into compliance with this Agreement. Upon receipt of evidence that such default has been cured, County will provide Owner with a written statement that such default has been cured and the Agreement will be extended according to its terms. If the parties disagree as to whether a default has occurred that would warrant denial of an extension, or if the parties disagree as to the steps necessary to cure such default, the parties shall meet and confer, and otherwise pursue the means of resolution set forth in Section 8.3, infra, so that defaults can be timely cured prior to commencement of the extension term and extensions granted in the ordinary course. (d) Effect of Annexation. In accord with the Town of Tiburon's written consent, attached hereto as Exhibit F and incorporated herein by reference, if the Property or any portion thereof is annexed into the Town of Tiburon, then the remaining term of this Agreement as it applies to any portion of the Property annexed into Tiburon shall be the earlier of: (i) the remaining duration of this Agreement, as described in Sections 2.2(a)-(c), supra; or (ii) fifteen (15) years from the effective date of annexation. If Section 2.2(d)(ii) becomes applicable, then Sections 2.2(a)-(c) shall continue to apply according to their terms, but only through the fifteenth anniversary of the effective date of annexation. 2.3 Extensions of Term. (a) Extensions of Term Due to Moratoria. (i) For purposes of this section, a development moratorium includes a water and sewer moratorium, as well as other actions of public agencies that regulate land 8 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 use, development, or the provision of services to the Property, including the County, which thereafter prevents, prohibits, or delays the approval of entitlement required for the Project ("Project Approval"). A development moratorium shall also be deemed to exist for purposes of this section for any period of time during which a condition imposed by the County could not be satisfied because the condition was one that, by its nature, necessitated action by County, and the County either did not take the necessary action or by its own action or inaction was prevented or delayed in taking the necessary action prior to expiration of the tentative map. (ii) If Owner believes that any development moratorium would delay a Project Approval, or performance of a condition that the County imposed on a Project Approval, it shall notify the County in writing. During any development moratoria that applies to the Project and could reasonably be expected to postpone the construction of improvements at the Project, the term of this Agreement shall be extended without further act of the parties by a period equal to the duration of any such moratorium. However, the length of the moratorium shall not exceed five years. Nothing in this Section 2.3 is intended, however, to confer on the County or any related agency any right to impose any such moratoria or interruption, except as otherwise expressly provided herein. (b) Extension of Term Due to Uncontrollable Events. If, during the final five years of the term of this Agreement, an "Uncontrollable Event" occurs or continues which interferes with Project completion, then the term of this Agreement shall be automatically extended for the same period as the duration of the Uncontrollable Event, but not more than two years, provided that Owner sends to County a notice claiming such extension within sixty (60) days of the commencement of the Uncontrollable Event or two years prior to the expected termination date of this Agreement, whichever is later. An "Uncontrollable Event" must be one which in fact interferes with the ability to continue the Project and is limited to the following: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of 9 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; litigation; unusually severe weather; acts or omissions of County; acts or failures to act of any other public or governmental agency or entity. Adverse changes in economic conditions, in market conditions or demand, or in ability to obtain financing shall not constitute Uncontrollable Events. (c) Other Extensions. Except as otherwise specifically provided in Sections 2.2 and 2.3(a) and (b), any further extension of the term of this Agreement shall require the approval of the County Board of Supervisors, which may be given or withheld in its sole discretion. 2.4 Effect of Termination of Agreement. Notwithstanding the termination of this Agreement according to its terms: (a) ' Subdivision Lots. With respect to each of the thirty-one subdivision lots shown on Exhibit C hereto ("Subdivision Lots"), so long as both (i) conduits intended to provide water, sewer, and electric service and (ii) road paving have been installed to the lot line of such Subdivision Lot prior to the termination of this Agreement, then the owner of such Subdivision Lot shall retain a vested right to construct a home on such site in compliance with the terms of Section 4.2(g), infra, for a period of thirty (30) years from the Effective Date of this Agreement. (b) Remainder Lot. The owner of the remainder lot shown on Exhibit C hereto ("Remainder Lot") shall continue to have a vested right to construct a home on such site in compliance with the terms of Section 4.2(g), infra, for a period of thirty (30) years from the Effective Date of this Agreement.. (c) Indemnification Provisions. Owner's agreement to indemnify the County pursuant to Sections 4.3(c) and 12.2, infra, shall survive the termination of this Agreement. 10 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 ARTICLE III Realization of Benefits by the County 3.1 Reduction in Density. As consideration for this Agreement, Owner has agreed to accept a reduction in density from the forty-three (43) units otherwise required to be approved pursuant to the 1976 and 2007 Judgments to the thirty-two (32) units described herein. 3.2 Dedication of Land for Public Purposes. As further consideration for this Agreement, Owner shall make an irrevocable offer to dedicate approximately fifty-nine (59 acres for open space purposes in the configuration shown at Exhibit C, but with the precise acreage dedicated to open space depending on the final record-of-survey acreage of the Property and the final size of Parcel C. This dedication is in excess of the required dedication of 48% of the Property under the 1976 and 2007 Judgments. Owner will make an irrevocable offer to dedicate and convey for public purposes the lands shown as Parcels A, B, and C on Exhibit C at the time of recordation of the first final map for Easton Point. Subject to the reservation of t rights and easements over such Parcels described in Section 4.3, infra, Owner agrees to convey Parcels A and B for open space purposes to the Marin County Open Space District or such other public or nonprofit conservation / open space entity as designated by the County in consultation with the Town of Tiburon. Any public open space dedication accepted by the County or the Marin County Open Space District shall be and remain obligations of such entity, and shall not pass to Town by virtue of Property annexation; provided, however, that Town and County may separately negotiate for such public open space to pass to Town upon mutually agreeable terms and conditions, which shall include ongoing County funding for costs associated with ownership thereof, including for repair, maintenance, and insurance. 3.3 Improvement of Pedestrian Access to Open Space. The 1976 and 2007 Judgments required Owner to provide access to open space, but contemplated that County would construct any desired trails. As further consideration for this Agreement, Owner, at its expense, shall construct two trails, substantially as shown at Exhibit C or as otherwise agreed in 11 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 0/22/09 writing with County, and a third trail in the roadbed remaining after removal of the Construction Road as described in Section 4.6(c), infra, subject to the reservation in favor of Owner of easements allowing installation and maintenance of signs: over Parcel A directing trail users to remain on trails in order to avoid damage to sensitive habitat; and over Parcel B describing the sensitivity of dwarf flax habitat and disallowing all public entry. Such trails shall be constructed to the same standards customarily used on Marin County Open Space District properties. The two trails shown at Exhibit C hereto shall be completed on or before the County issues the first certificate of occupancy for any residence within the Project. The trail to be constructed after removal of the Construction Road shall be created simultaneously with removal of the Construction Road paving. 3.4 Infrastructure and Street Improvements. Owner shall construct street, drainage, utility, and other infrastructure improvements, including, without limitation, street section, sidewalk, curb and gutter, and water pipe and hydrant installation. Owner agrees that, notwithstanding that Ridge Road and Forest Glen Court shall remain private and be privately maintained, Owner shall make an irrevocable offer of dedication of a public access easement over both streets on the subdivision map(s) creating said streets." 3.5 Conditions, Covenants & Restrictions. The Conditions, Covenants & Restrictions for Easton Point shall also include appropriate provisions to ensure regular maintenance of all common improvements and landscaping. To ensure that public benefits of this Agreement continue to be met after initial development, Owner will cause the Conditions, Covenants & Restrictions for Easton Point to grant the County and Town the power but not the responsibility to ensure that the provisions pertaining to maintenance of common improvements and landscaping, and public access to Ridge Road and Forest Glen Court, are honored. The Conditions, Covenants & Restrictions shall be in a form reasonably acceptable to Town, shall name Town as a third party beneficiary of such provisions with independent rights of enforcement and shall provide that the provisions pertaining to Ridge Road and Forest Glen 12 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 Court and maintenance of common improvements and landscaping may not be amended without Town's prior written consent. ARTICLE IV Permitted Development 4.1 Permitted Use of Property. The permitted use of the Property is the development of thirty-two residential units, along with subdivision infrastructure, trails, and dedicated open space, as more fully described in the Existing Approvals, at Exhibit C, and in this ARTICLE IV. 4.2 Residential Lots. (a) Subdivision Lots. Thirty-one residential Subdivision Lots shall be allowed, of the size and in the configuration shown at Exhibit C. The Subdivision Lots may not be further subdivided. (b) Remainder Lot. One residential Remainder Lot shall be allowed, of the size and in the configuration shown at Exhibit C. The Remainder Lot may not be further subdivided. (c) Amenities Permitted. Subject to the requirements of this ARTICLE IV, including normally applicable design review, maximum building height, and maximum building size, each of the Subdivision Lots and the Remainder Lot may be developed with, in addition to a primary residence, features customarily associated with luxury residential developments - including, by way of example and not limitation, guest houses, pools, cabanas, gazebos, decks, patios, sports courts, swing sets and similar play features, hardscape and other landscape design features, and garages. (d) Design Review. The configuration, height and design - including color, exterior fagade, roof materials, window placement, and other design elements - of all primary residences and other permitted ancillary amenities and structures ordinarily subject to design review under the Development Standards (as defined below), shall be subject to design review, which shall be a Subsequent Discretionary Approval as provided in Section 6.1(b) below. 13 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 (e) Limitation on Square Footage. Maximum square footage per lot, as described in Section 4.2(g), infra, may not be exceeded. (f) Maximum Building Height. Residential buildings shall not exceed thirty feet (30') in height from grade, provided however that the height of the residence on Lot 9 shall not exceed eighteen feet (18') from grade on the uphill side, but the building may step down the slope if permitted by design review. Accessory buildings shall not exceed fifteen feet (15') in height above grade, and such structures on Lot 9 shall not break the plane of the San Francisco Bay water view as seen from the trail above at Global Positioning System coordinates . The permissible height of each structure shall be determined by design review. Nothing in this subsection (f) shall preclude construction of the maximum sizes shown in subsection (g) below. (g) Building Sizes. (i) Maximum Square Footage of Structures. The maximum total permissible square footage of all structures on each lot shall be as follows: Lot 1 4,800 sq.ft. Lot 17 6,000 sq.ft. Lot 2 4,800 sq.ft. Lot 18 6,000 sq.ft. Lot 3 4,800 sq.ft. Lot 19 6,000 sq.ft. Lot 4 4,800 sq.ft. Lot 20 6,000 sq.ft. Lot 5 6,000 sq.ft. Lot 21 6,000 sq.ft. Lot 6 6,000 sq.ft. Lot 22 10,000 sq.ft. Lot 7 6,000 sq.ft. Lot 23 10,000 sq.ft. Lot 8 6,000 sq.ft. Lot 24 10,000 sq.ft. Lot 9 5,500 sq.ft. Lot 25 10,000 sq.ft. Lot 10 7,500 sq.ft. Lot 26 10,000 sq.ft. Lot 11 71500 sq .ft. Lot 27 10, 000 sq .ft. Lot 12 7,500 sq.ft. Lot 28 10,000 sq.ft. Lot 13 7,500 sq.ft. Lot 29 10,000 sq.ft. Lot 14 7,500 sq .ft. Lot 30 10,000 sq.ft. Lot 15 7,500 sq.ft. Lot 31 10,000 sq.ft. Lot 16 7,500 sq.ft. Remainder Lot 15,000 sq.ft. (ii) Entire Square Footage Shall Be Allowed. Owner shall be permitted to build structures on each of the foregoing lots which total the maximum square 14 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 footage shown above. The normally applicable design review process will control the shape and height of structures and their location within the Landscape and Building Envelope (as defined below), except that each lot owner will be entitled to construct the entire maximum permissible square footage defined in Section 4.2(g), supra. To the extent, if any, that a Development Standard might otherwise prevent construction of the entire maximum permissible square footage, such standard shall not be applied in a manner that reduces maximum permissible square footage. For the Remainder Lot, construction of maximum permissible square footage may be conditioned on provision of adequate utilities to serve such construction, including adequate fire flow. (iii) Calculation of Square Footage. Square footage shall be calculated according to the method set forth in the Tiburon Zoning Code as of October 26, 2009, including Tiburon Zoning Code's definition of "Floor Area, Gross," except that garages, carports and accessory buildings shall be counted towards square footage. (iv) Features Excluded from Square Footage. For the purpose of calculating maximum square footage per lot, "structure" does not include such features as: fences; retaining walls; features customarily associated with landscape design (such as trellises, gazebos, and fountains); children's play sets; shade structures having fewer than four sides; and features which are three feet or less above grade (such as pools, decks, and sports courts). (h) Building & Landscape Envelope. Landscape, hardscape, and structures not customarily used for overnight accommodation may be located anywhere within the Building & Landscape Envelope shown at Exhibit C ("Building & Landscape Envelope"), subject to design review approval when applicable. The Building & Landscape Envelope for each lot may be fully enclosed with 6-foot high open wire fencing substantially in conformance with the specifications shown in the narrative attached at Exhibit C hereto, except that the use of such fencing within twenty feet (20') of the edge of the pavement on Ridge Road or Forest Glen Court is permissible only with design review approval. In addition, for Lots 5 and 6, such fencing 15 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22109 within 20' of the edge of the pavement of the driveway which serves Lots 6-8 requires design review approval. (i) Residential Building Envelope. All structures customarily used for overnight accommodations, including the primary residence and any guest home, must be within the Residential Building Envelope shown at Exhibit C ("Residential Building Envelope"), provided, however, that minor adjustments in the location of each such Residential Building Envelope that do not increase the size of the Residential Building Envelope may be made during design review based on more precise field topography, by concurrence between the project engineer and County Public Works Director or, in the event of annexation by Town, the Town Community Development Director. (j) Private Open Space. As shown at Exhibit C, the Private Open Space consists of all area on each Subdivision and Remainder Lot that is outside the Building & Landscape Envelope ("Private Open Space"). Construction activities shall be limited to the Residential Building Envelope to the maximum extent feasible. The Private Open Space is intended, following completion of construction, to be visually indistinct from public open space. For this reason, only the following activities are permitted on private lots outside of the Building & Landscape Envelopes: (i) installation and maintenance of surveyor markers not to exceed one foot (1') in height above grade at corners and at metes and bounds call-out change points to delineate the boundary interface between the Private Open Space and Parcels A or B; (ii) grassland- and tree-mitigation planting, irrigation, and maintenance per approved plans; vegetation management for compliance with all fire regulations, whether imposed by the Tiburon Fire Protection District, the County, the state, or the federal government; 16 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 (iv) landslide repair, and drain pipe and drainage-path improvement and maintenance whenever necessary, per approved plans; (v) installation, maintenance, repair, and replacement of underground utilities (e.g., storm drain, sanitary sewer, water, PG&E, telephone, cable), per approved plans; (vi) replanting after soil disturbance associated with the above-listed activities or natural disasters. (k) Landscape Design. All introduced planting is to be contained within the Building & Landscape Envelope except as otherwise permitted under Section 4.20) above. Within the Building & Landscape Envelope for each lot, landscape design and planting will not be subject to design review except: (i) landscape planting must meet Tiburon Fire Protection District, Marin Municipal Water District, and Tiburon Tree Ordinance guidelines and regulations; (ii) a majority of introduced landscaping must be fire, frost, and drought tolerant; and (iii) landscaping within twenty feet (20) of the edge of the pavement of Ridge Road or Forest Glen Court may be regulated through design review in order to achieve an orderly streetscape from lot to lot. 4.3 Dedicated Open Space. (a) Improvements. Except as otherwise provided in Section 3.3, supra (Owner's initial trail construction), and 4.3(b), infra (Owner's right to conduct certain activities on Parcel A), all trail maintenance and repair and other improvements to and management of Parcels A and B, and the costs thereof shall be the exclusive responsibility of the entity to which such parcels are deeded. (b) Reservation of Easements. Owner shall be entitled to reserve express easements over Parcels A and B, and to convey such easements to the HOA, for all of the following purposes: 17 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 (i) Health and Safetv of Subdivision Residents. Owner shall retain an easement over Parcels A and B for any future work required for the health and safety of any Easton Point resident, including without limitation landslide repair and - to the extent if any that the owners of Parcels A and B fail to maintain vegetation in accord with any future local, county, state, or federal fire safety requirements - the ability to cut or clear vegetation in accord with such fire safety requirements. Exercise of the rights reserved under this Section 4.3(b)(i) shall require a permit from the County, which permits shall not be unreasonably withheld. (ii) Drainageways and Utilities. Owner shall retain an easement for the construction, use, maintenance, and repair of all drainageways and utilities which cross Parcel A. Exercise of the rights reserved under this Section 4.3(b)(ii) shall require a permit from the County, which permits shall not be unreasonably withheld. (iii) Construction Road. Owner shall retain a temporary construction easement over Parcel A for the construction, use, maintenance, repair, and removal of the Construction Road. Such temporary construction easement shall automatically terminate upon completion of the Construction Road demolition and removal activities and completion of the replacement trail construction. (iv) Trail Signs. Owner shall retain an easement over Parcels A and B for the placement of trail signs, as described in Section 3.3, supra. (v) Grassland and Tree Mitigation. Owner shall retain an easement over Parcel A for the planting of trees and grasses that are required as mitigation either for the Project or for the construction of improvements to any Subdivision Lot or Remainder Lot. Prior to the planting of trees, Owner shall confer with the entity to which Parcel A is deeded for approval of the optimal location and species of tree to be planted, which approval will not be unreasonably withheld. (vi) Relocation of Water Tank Parcel. If the final site for the new water tank serving Easton Point has not yet been determined by County in consultation with Town as 18 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10122109 of the date of conveyance of Parcel A, then Owner shall reserve a license to trade the currently- designated Parcel C for any other land contained within Parcel A for the purposes water tank construction. vii Owner shall indemnify, defend and hold County and its elected and appointed representatives, officers, agents and employees harmless from any liability for damage or claims for damage for personal injury, bodily injury, death or property damage, including attorneys fees and costs, which may arise from Owner's acts, omissions, negligence and willful misconduct in connection with the exercise of its reserved easement rights, whether such acts, omissions, negligence and willful misconduct are by Owner or any employee, contractor or subcontractor or agent of Owner. The foregoing indemnity shall not apply to the extent the liability or claims arise from the sole negligence or willful misconduct of County or its elected and appointed representatives, officers, agents and employees. 1 4.4 Water Tank. (a) Location of Water Tank Parcel. While Parcel C as shown on Exhibit C has been temporarily designated as the location for the new water tank serving Easton Point, such water tank will be located by Owner at the direction of the Town of Tiburon, provided that all of the following conditions are met: (i) Concurrence of Fire District. The Tiburon Fire Protection District must concur that, with the water tank at such newly-designated location, domestic water and fire flow to all Subdivision Lots shown at Exhibit C will be adequate to serve homes of the maximum size permitted under Section 4.2(g), supra. (ii) Concurrence of MMWD. The Marin Municipal Water District must agree to placement of the tank at such newly-designated location. (iii) CEQA Compliance. The newly-designated location has been or will be subject to appropriate environmental review under CEQA without further cost to Owner. 19 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 (iv) Timely Designation. The Town of Tiburon must designate such new location prior to recordation of the first final map for Easton Point. (v) County Concurrence. The County must agree that a final map for Easton Point may be recorded with Parcel C in its newly-designated location. (b) Water Tank Screening. If the newly-designated water tank site allows the new water tank to be situated partially or fully underground while still maintaining adequate domestic and fire flow to all lots, Owner will do so at its expense. Otherwise, Owner shall provide such landscaping as will best screen the tank's visual impacts. 4.5 Sewers. All Subdivision Lots and the Remainder Lot shall only be served by the public sewer district and may not be served by any septic system. The Town of Tiburon having previously agreed to consider annexation of the Property as provided in the Memorandum of Understanding executed between Town and Owner on (or if annexation cannot be accomplished on a timely basis, to enter into a deferred annexation agreement with Owner to permit annexation of the Property into the public sewer district prior to its annexation into the Town). 4.6 Roads and Driveways. (a) Residential Roads and Driveways. Roads and driveways shall be designed and constructed per Existing Approvals. All roads and driveways shall be privately maintained, but public access to Ridge Road, Forest Glen Court, and the road serving the water tank may not be obstructed or restricted against public use, and the Construction Road shall not be obstructed or restricted against public pedestrian use except as such use may conflict with active construction access requirements. The foregoing public access requirements shall be included with the Conditions, Covenants & Restrictions for the Project, and Town shall be a third party beneficiary thereof with independent rights to enforce such requirements. 20 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 90122109 (b) Water Tank Road. The road serving the water tank shall be made as informal as possible while still being adequate for construction traffic, Tiburon Fire Protection District, and Marin Municipal Water District purposes. (c) Construction Road. (i) Timing and Necessity. The Construction Road shown at Exhibit C hereto must be installed prior to installation of any other improvements, including utilities, provided however that if Lots 9 through 17 are dedicated to non-residential uses, then the Construction Road need not be built, and construction access to Lots 1 through 8 shall be through the Hill Haven subdivision. If the Construction Road is built, then so long as it remains in place, it shall be the exclusive construction access for Lots 1 through 17, unless the Town Council in its discretion otherwise directs. (ii) Removal. Unless otherwise approved by the County in its discretion - and subject to consultation with the Tiburon Fire Protection District and any other agency with jurisdiction that the Project is acceptable without the Construction Road in place - Owner shall cause the paving, guard rails, and runaway truck ramp for the Construction Road to be removed and the roadbed re-vegetated or otherwise made suitable for trail use (but not recontoured except as necessary for trail use) during the first construction season after either, at the County's discretion, twelve (12) of the homes to be constructed on Lots 1-17 have been granted a certificate of occupancy, or ten (10) years from the Effective Date of this Agreement, and thereafter all subsequent construction access to Lots 1 through 17 shall be through the Hill Haven subdivision. 4.7 Staging and Stockpiling. Lot 5, or a suitable alternative lot approved by County, shall be set aside for construction staging and stockpiling until residences on all other Lots deriving access from the Hill Haven subdivision have been constructed. 21 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 ARTICLE V Vesting 5.1 Vesting. This Agreement sets forth the applicable fees, policies, and zoning requirements that apply to Owner's development of the Project and provides Owner with a vested right to develop the Project in accord with this Agreement throughout its entire term. The term and duration of all Existing Approvals shall automatically be extended for the longer of the duration of this Agreement or the term otherwise applicable to such Existing Approvals. 5.2 Vested Elements. The Existing Approvals, this Agreement, and the Development Standards described in Section 5.3, infra, shall control the permitted use of the Property, the density and intensity of use, landscape and design requirements, maximum height and size of proposed buildings, development phasing, access and circulation requirements, provisions for reservation or dedication of land for public purposes, provisions for infrastructure and subdivision improvements, and impact fees and exactions applicable to the Property and Project ("Vested Elements"). Except as otherwise provided in Sections 5.9, 5.10, and 5.11, infra, to the extent any changes in the Countywide Plan or Tiburon General Plan, the zoning codes or other rules, ordinances, regulations or policies (whether adopted by means of an ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the Board of Supervisors, Town Council, a Planning Commission or any other Board, Commission or Department of the County or Town or any office or employee thereof, or by the electorate) are in conflict with the Vested Elements or the provisions of this Agreement, the Vested Elements and the provisions of this Agreement shall prevail. Such change in Plans, codes, rules, ordinances, regulations, or policies shall be deemed to conflict with the Vested Elements if such change is contrary to or inconsistent with the Vested Elements, or would burden the Project with significant expense or material delay unforeseen as of the Effective Date. 22 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 5.3 Development Standards. The development policies, rules and regulations, including but not limited to subdivision ordinances of the County in effect as of the Effective Date are hereby vested subject to the provisions of this Agreement; provided however that upon annexation, the development policies, rules and regulations of the Town of Tiburon in effect as of October 26, 2009 (or as otherwise agreed by the parties and bound in the "Existing Approvals and Tiburon Development Standards" volume described below), shall vest instead ("Development Standards"), with the explicit exception of the Town's development policies governing landslide repair - which the parties acknowledge are potentially inconsistent with Existing Approvals - and further provided that the foregoing explicit acknowledgement of the inconsistency of the Town's landslide repair policies with Existing Approvals shall not be cause to invoke the principle of expressio unis est exclusio alterius in interpreting the applicability of other Development Standards to the Project. For ease of future reference under this Agreement, and because annexation is anticipated, the parties have prepared three (3) identical copies of the Existing Approvals as well as the development policies, rules, and regulations of the Town of Tiburon in effect as of October 26, 2009 (or as otherwise agreed by the parties), they have bound such copies and entitled them "Existing Approvals and Tiburon Development Standards," and they have distributed one copy each to the County, the Town, and the Owner. To the extent that the Development Standards conflict with Existing Approvals, the Existing Approvals shall control. To the extent that the Existing Approvals conflict with this Agreement, the requirements and terms of this Agreement shall prevail. 5.4 Fees and Mitigations for Subdivision Improvements. Impact fees and off-site mitigations in connection with subdivision improvements and infrastructure development shall be governed by this Section 5.4. (a) Subdivision Improvement Agreement Bond. A refundable deposit or performance, labor and materials and warranty bonds may be required in connection with the subdivision improvement agreement at the time the first grading permit for the Project is issued, 23 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 provided however, that such requirements shall not be applied to the Project in a different manner than to other similar properties within the County. (b) Fees for Subdivision Improvements and Infrastructure Development. No additional impact fees, nor any additional requirements for off-site improvements, may be imposed on the Project beyond what is provided in this Section 5.4. Impact fees and all off-site mitigations with respect to subdivision improvements and infrastructure development shall be limited to the following: (i) Grading and Building Permit and Inspection Fees. Customary fees for grading and building permits and inspections may be charged, at the rates then in effect when such fees are due, provided that such fees shall not be applied to the Project in a different manner than to other similar properties within the County. (ii) Offsite Traffic Mitigations. Owner shall either construct or pay for the following off-site traffic mitigations, subject to normally applicable permit requirements: • Posting of signs prohibiting parking along both sides of Diviso Street and along other residential streets in the Hill Haven subdivision narrower than twenty feet (20') wide; • Installing stop or yield sign control for the side streets intersecting Ridge Road; • As provided in the Precise Development Plan, improving the Forest Glen Court / Paradise Drive intersection to provide a minimum of 150 feet of sight distance in both directions for outbound vehicles to see and be seen; and • As provided in the Precise Development Plan, widening Paradise Drive roadway to include four-foot (4) shoulders with 60-foot tapers at the driveway on the south end (driveway for Lots 18-21) and the Forest Glen intersection at the north end. 24 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 (iii) Paradise Drive Improvements. Owner shall repair any deteriorated pavement along Paradise Drive and Old Tiburon / Hill Haven streets identified in cooperation with the Town of Tiburon and Marin County by a before-and-after pavement evaluation program that shall determine if project-generated truck traffic caused any additional pavement deterioration. In addition, Owner shall pay a one-time road mitigation fee of four hundred thousand dollars ($400,000) at the time Owner receives its first grading permit (iv) EIR / MMRP Mitigations. Owner shall also comply with all other mitigation measures set forth in the EIR and accompanying Mitigation Monitoring Program. (c) Town-Wide Tax and Assessment Districts. Owner agrees that it will voluntarily annex the Property into the Belvedere-Tiburon Library Assessment District and any other Town-wide tax and assessment districts that may exist as of the date of recordation of the first final map for Easton Point. (d) , No Affordable Housing Mitigations and Fees. Without limiting the generality of the foregoing Section 5.4(b), no requirements or fees with respect to affordable or inclusionary housing may be imposed on either the Project or on any future lot owner as a condition of developing any Subdivision or Remainder Lot, the County having agreed to assume responsibility for compliance with all ordinances, codes, and regulations governing affordable or inclusionary housing. In the event Town annexes the Property and assumes this Agreement, County shall retain all obligations, if any, with respect to affordable and inclusionary housing, and Town shall have no obligations with respect thereto. (e) No Parks & Recreation / Quimby Act Fees. Without limiting the generality of the foregoing Section 5.4(b), no requirements or fees with respect to parks and recreation may be imposed on the Project, and no Quimby Act fees may be imposed on any future lot owner as a condition of developing any Subdivision or Remainder Lot, the Owner having agreed to dedicate approximately fifty-nine (59) acres to open space purposes and to construct trails for public use on such property; provided, however, that all Town-wide taxes, fees, or assessments 25 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 for parks and recreation will be applicable to the Property and to the individual lots in the same fashion such taxes, fees, or assessments are applicable to other parcels. 5.5 Fees and Mitigations for Individual Home Construction. Except as set forth in Sections 5.4(d) and (e), all fees customarily imposed at the time of or following design review for an individual single-family residence may be charged to and shall be paid by the owners of the individual Subdivision and Remainder Lots at the rates then in effect, including without limitation fees for: design review; grading; building; other construction-related fees (e.g., plumbing, swimming, electrical, mechanical permits and inspections); connection fees; and impact fees (e.g., street impact fees, traffic mitigation fees, storm water run-off fees), provided that such fees shall not be applied to residences which are located within the Project in a different manner than to other similar properties within the County. The owner of the Remainder Lot shall design the Remainder Lot driveway to provide the maximum amount of widening and refuge area reasonably possible at the intersection of Paradise Drive. 5.6 Phasing of Maps Permitted. Multiple final maps for the Tentative Subdivision Map may be filed throughout the duration of this Agreement. Unless otherwise required by state law or court ruling, the rights accorded by this Agreement shall not be dependent on the timelines which would otherwise control under California's Subdivision Map Act in the absence of this Agreement. 5.7 Timing and Duration of Phased Development. The parties acknowledge that Owner cannot at this time predict when, or the rate at which, phases of the Property would be developed. Such decisions depend upon numerous factors which are not all within the control of Owner, such as market orientation and demand, interest rates, competition and other factors. It is the intent of County and Owner that - notwithstanding any future amendment to the Countywide Plan, the Zoning Ordinance or any other ordinance, policy, plan, rule or procedure of the County or the Town of Tiburon, or the adoption of any ordinance, policy, plan, rule or procedure (whether amended or adopted by the County or Town Planning Commission, the 26 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 Board of Supervisors or Tiburon Town Council, or by referendum or initiative - except as set forth in Section 4.6(c)(1) (Construction Road) and Section 4.7 (Staging and Stockpiling), supra, Owner shall have the right to develop the Project in such order and at such rate and times as Owner deems appropriate within the exercise of its sole and subjective business judgment, but subject to the expiration of this Agreement. Such right is consistent with, and necessary to, the purpose and understanding of the parties to this Agreement, and without such right, Owner's development of the Project would be subject to the uncertainties sought to be avoided by the Development Agreement Legislation and this Agreement. Nothing contained herein or in the Existing Approvals, including in the Construction Management Plan, shall be construed to limit the rights granted under this Section 5.7, the construction timelines in the Construction Management Plan being only exemplars of, and not restrictions on, how long construction might take and the phases in which it might be undertaken. Notwithstanding anything herein to the contrary, Owner shall not be exempt from (i) complying with County building code timelines (including, for example, limits on completion of construction calculated from issuance of building permits) or (ii) completing work required by any subdivision improvement agreement or similar agreement in accordance with the terms thereof. 5.8 Compliance with Other Laws. Owner, at its sole cost and expense, shall comply with the requirements of, and obtain all permits and approvals required by local, state and federal agencies having jurisdiction over the Project. Furthermore, Owner shall carry out the Project work in conformity with all applicable state and federal laws and regulations. If any governmental entity or agency other than the County or Town passes any state or federal law or regulation after the Effective Date which prevents or precludes compliance with one or more provisions of this Agreement or requires changes in plans, maps or permits approved by the County, then the provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to comply with such new law or regulation, provided, however, that in no event shall such modification or suspension have a material impact on Owner's or 27 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 County's obligations and rights hereunder without Owner's or County's, as the case may be, written consent. Immediately after enactment of any such new law or regulation, the parties shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. In addition, Owner shall have the right to challenge the new law or regulation preventing compliance with the terms of this Agreement, and, to the extent such challenge is successful, this Agreement shall remain unmodified and in full force and effect. Any such challenge shall be at the sole cost and expense of Owner and shall not involve the County in any manner without County's prior written consent. 5.9 Building Requirements. Codes, ordinances and regulations relating to construction standards or permits shall apply as of the time of issuance of each applicable construction/building permit except to the extent inconsistent with Existing Approvals. 5.10 Life, Safety Matters. Nothing herein contained shall be deemed to prevent adoption and application to the Property or to improvements upon the Property of laws, ordinances, uniform codes, rules or regulations pertaining to or imposing life-safety, fire protection, mechanical, electrical and/or building integrity requirements at the time permits for construction of such improvements are issued. 5.11 Procedural Matters. All rules and policies relating to applications, notices, hearing bodies, and other matters of procedure shall be implemented according to regulations then in effect, provided that such procedures shall not be applied to the Project in a different manner than to other similar properties within the County. 5.12 Permits and Approvals from Other Agencies. Owner and County acknowledge and agree that other public agencies not within the control of County possess authority to regulate aspects of the development of the Property separately from or jointly with County, and this Agreement does not limit the authority of such other public agencies. Owner shall, at the time required by Owner in accordance with Owner's construction schedule, apply for all such 28 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT ,0122109 other permits and approvals as may be required by other governmental or quasi-governmental entities, including , in connection with the development of, or the provision of services to, the Project. Owner shall also pay all required fees when due to such public agencies. Owner acknowledges that County does not control the amount of any such fees. The Town of Tiburon and all of its departments and agencies shall be bound to the terms of this Agreement upon annexation of the Property during the term of this Agreement. ARTICLE VI Subsequent Approvals 6.1 Subsequent Approvals. Owner and County acknowledge and agree that Owner intends to submit applications for Project approvals following the Effective Date ("Subsequent Approvals"), including both Subsequent Ministerial Approvals and Subsequent Discretionary Approvals. In connection with any Subsequent Approval, the County shall exercise its discretion in accordance with the Development Standards, the Existing Approvals and as provided by this Agreement. (a) Subsequent Ministerial Approvals. "Subsequent Ministerial Approvals" are permits or approvals that are required by the Development Standards, that are contemplated by the Existing Approvals, and that are to be issued upon compliance with uniform, objective standards and regulations. They include approval of final maps, applications for road construction permits or authorizations; certain grading and excavation permits; building permits, including electrical, plumbing and mechanical; certificates of occupancy; certain encroachment permits; water connection permits; and any other similar permits required for the development and occupancy of the homes and other structures comprising the Project. Applications for Subsequent Ministerial Approvals that are consistent with this Agreement and the Existing Approvals shall be processed and considered in a manner consistent with the Vested Rights granted by this Agreement and shall be deemed to be tools to implement those 29 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 final policy decisions, and shall be approved by County so long as they are consistent with this Agreement and the Existing Approvals. (b) Subsequent Discretionary Approvals. "Subsequent Discretionary Approvals" are permits or approvals which are either inconsistent with or not encompassed within the scope of the Existing Approvals. Design/architectural review permits for individual residences shall constitute a Subsequent Discretionary Approval. No other Subsequent Discretionary Approvals are anticipated at this time; however, if application is made for amendments to the Existing Approvals or to this Agreement, for lot line adjustments, for rezonings, or for other actions not encompassed within the Existing Approvals, the County expressly reserves its discretion with respect to all such Subsequent Discretionary Approvals. 6.2 Processing Applications for Subsequent Approvals. Owner acknowledges that County cannot begin processing applications for Subsequent Approvals until Owner submits complete applications on a timely basis. Owner shall use its best efforts to (i) provide to County in a timely manner any and all documents, applications, plans, and other information necessary for County to carry out its obligations hereunder; and (ii) cause Owner's planners, engineers, and all other consultants to provide to County in a timely manner all such documents, applications, plans and other materials required under the Development Standards. 6.3 Additional CEQA Processing. The parties understand that the EIR is intended to be used not only in connection with the Existing Approvals, but also in connection with necessary Subsequent Approvals. However, the parties acknowledge that, depending on the scope of the project described in Owner's applications, certain Subsequent Discretionary Approvals may legally require additional analysis under CEQA. Notwithstanding any other provision of this Agreement, nothing contained herein is intended to limit or restrict the discretion of the County to comply with CEQA. However, the County shall not undertake additional environmental review or impose new or additional mitigation measures on the Project, or any portion thereof, other than as required by Public Resources Code section 21166 and 30 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 CEQA Guidelines section 15162. To the extent supplemental or additional review is required in connection with Subsequent Approvals, Owner acknowledges that CEQA may require additional mitigation measures necessary to mitigate significant impacts that were not foreseen at the time this Agreement was executed. Any such supplemental or additional review that may be required under CEQA shall be at Owner's expense. ARTICLE VII Obligations of the Parties 7.1 Owner. (a) Compliance with Development Agreement. In consideration of the County entering into this Agreement, Owner has agreed that development of the Property during the term of this Agreement shall be in conformance with all of the terms, covenants and requirements of this Agreement and Existing Approvals, as they may each be hereafter amended with the, consent of County and Owner in accordance with the provisions of Section 9.5, infra. (b) Implementation of On-Site Mitigation Measures. Without limiting the generality of the foregoing Section 7.1(a), Owner will at its cost implement all of the on-site mitigation measures described in the Existing Approvals, including - to the extent consistent with the Existing Approvals - in the narrative description of the 32-Unit LDA attached hereto at Exhibit C. (c) Grant of Conservation Easement. Owner will record an easement in favor of Town over all Private Open Space for the exclusive purpose of maintaining the subject property in a natural state, with only such modification as expressly allowed by the Agreement or required by the Tiburon Fire Protection District. Such easement shall allow inspection access by Town's code enforcement employees upon reasonable advance notice to the Lot owner, and, following notice and expiration of applicable cure period, the right for Town to cure a lot owner default at the lot owner's expense. Nothing contained herein or in such easement shall 31 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 allow public access over Private Open Space The conservation easement shall be in a form reasonably acceptable to the Town Attorney. (d) Creation of HOA. Owner will form an Easton Point owners' association ("HOA"), which shall have among its responsibilities the repair and maintenance of all common improvements, including all private roads open to public use, at the HOA's sole cost, expense, and liability. The Conditions, Covenants & Restrictions for Easton Point shall conform to this Agreement and shall be presented to County Counsel for review and approval not to be unreasonably withheld, conditioned or delayed. (e) Indemnification and Defense of County. In the event of any legal action instituted by a third party other than the Town challenging the validity of this Agreement or any provision hereof, Owner hereby agrees to: (i) defend such action on behalf of Owner and County at Owner's sole expense and with counsel reasonably acceptable to County; and (ii) to indemnify and hold County harmless from and against any and all costs, attorney fees, damage awards or expenses of any kind arising in any manner out of such action. County may, in its sole discretion, participate in the defense of such action at no cost to Owner, but such participation shall not relieve Owner of its obligations under this Agreement. (f) Insurance. Owner shall procure and maintain, or cause its contractors to procure and maintain, on or before commencement of any Project work and continuing thereafter for the remaining term of this Agreement, insurance policies set forth in subsection (g) below. Such insurance shall not be construed to relieve Owner or its contractors of any liability in excess of such coverages. The required insurance coverages shall include: [TO BE NEGOTIATED, BUT SHALL GENERALLY CONFORM TO TOWN REQUIREMENTS FOR INSURANCE IN PUBLIC WORKS CONTRACTS AND SHALL REQUIRE (1) COMMERCIAL GENERAL LIABILITY ($2,000,000), AUTOMOTIVE LIABILITY ($1,000,000) AND WORKERS COMPENSATION (AND REQUIRED BY THE STATE OF CALIFORNIA; (2) ENDORSEMENTS ADDING COUNTY/TOWN AS AN ADDED INSURED ON A PRIMARY, NON-CONTRIBUTORY 32 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10122109 BASIS; AND (3) APPROVAL BY TOWN ATTORNEY/COUNTY COUNSEL] 7.2 County. (a) Certificate of Compliance. Upon application of Owner, and before recordation of the first final map for Easton Point, County shall issue a certificate of compliance for the Remainder Lot pursuant to Marin County Code § 22.84.070 evidencing the legality of such Lot for single-family home construction pursuant to the terms of ARTICLE IV, supra, but precluding its further subdivision. (b) Affordable or Inclusionary Housing Mitigations and Fees. The County of Marin itself shall assume responsibility for compliance with all ordinances, codes, and regulations governing affordable or inclusionary housing for the Project, if any, at no cost to Owner. In the event Town annexes the Property and assumes this Agreement, County shall retain all obligations, if any, with respect to affordable and inclusionary housing and Town shall have no obligations with respect thereto. (c) Relocation of Parcel C. County agrees that, so long as adequate CEQA review has occurred and adequate findings have been made as necessary to address health, safety, and other environmental issues, a final map with Parcel C relocated pursuant to Section 4.4, supra, shall be deemed to substantially conform to the Tentative Subdivision Map. (d) Good Faith in Proceedings. County agrees that it will accept, process and review in good faith and in the normal manner and within the normal time consistent with such applications, all applications related to the Project for environmental and design review, subdivision of the Property, recordation of final maps, conditional use permits (or amendments thereto), building permits or other entitlements for use of the Property, in accordance with the terms and spirit of this Agreement. The County shall not use any County custom, policy, or 33 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10122109 procedure which is not mandated by state law to delay approval and recordation of any final map. (e) Additional Approvals. County shall cooperate with Owner, at no cost to County, in Owner's endeavors to obtain any other permits and approvals as may be required from other governmental or quasi-governmental agencies having jurisdiction over the Project, including, without limitation, approval of annexation into Sanitary District 5. The cooperation contemplated by this Section 7.2(e) shall require County to provide necessary requested information and documents but shall not require County to actively participate in the application process for such permits unless to do so is customary under the circumstances. (f) No Contrary Actions. County agrees that, except to submit to a vote of the electorate any initiative or referendum required by law to be placed on a ballot and fulfill any legal responsibility to defend a ballot measure passed by its voters, it shall not support, adopt or enact any law, resolution, or ordinance, or take any other action, which would violate the express provisions or spirit and intent of this Agreement. County further agrees that it shall cooperate with Owner, at no expense to County, in any litigation instituted by a third party challenging the validity of this Agreement, or any portion hereof, and shall not settle such litigation without the consent of Owner. ARTICLE VIII Default and Remedies 8.1 Notice of Breach / Meet and Confer. Prior to the initiation of any action for relief specified in this ARTICLE VIII because of an alleged breach of this Agreement, the party claiming breach shall deliver to the other party a written notice of breach ("Notice of Breach"). The Notice of Breach shall specify with reasonable particularity the reasons for the allegation of breach and the manner in which the alleged breach may be satisfactorily cured. If, in the determination of the allegedly breaching party, such event does not constitute a breach of this Agreement, the party to which the Notice of Breach is directed, within thirty (30) days of receipt 34 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 of the Notice of Breach, shall deliver to the party giving the Notice of Breach a notice (a "Compliance Notice") which sets forth with reasonable particularity the reasons that a breach has not occurred. A defaulting party shall cure the default within thirty (30) days following receipt of the Notice of Breach, provided, however, if the nature of the alleged default is such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure, provided that if the cure is not diligently prosecuted to completion, then no additional cure period shall be provided. If the alleged failure is cured within the time provided above, then no default shall exist and the noticing party shall take no further action to exercise any remedies available hereunder. If the alleged failure is not cured, then a default shall exist under this Agreement and the non-defaulting party, subject to satisfaction of the meet and confer obligation described below, may exercise the remedies available under Section 8.3, below. County and Owner acknowledge that a central purpose of this Agreement is to resolve and avoid disputes and litigation among the parties. County and Owner therefore agree that, in the event of any alleged default arising hereunder, the parties shall meet and confer in good faith for a period not to exceed thirty (30) days following delivery of the Notice of Default, in an effort to resolve the dispute. 8.2 Request for Notice. The owner of any portion of the Property shall have the right to request copies of Notices of Breach given to the owner of any other portion of the Property. The County and any owners of other portions of the Property to whom such request has been made shall honor the same and provide such Notices of Breach in the manner and to the address specified in the request. 8.3 Remedies for Breach. County and Owner acknowledge that a central purpose of this Agreement is to resolve and avoid disputes and litigation among the parties. County and Owner therefore agree that, in the event of a breach of this Agreement, the parties exdusive Femedies shall shall pursue the following dispute resolution process:shall be: 35 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22109 (a) Remedies in General (i) Meet and Confer. In the event of any disagreement arising hereunder, the parties shall meet and confer in good faith for a period not to exceed thirty (30) days following receipt of the Compliance Notice, with the intention of providing each party the benefit of its bargain, regardless of changed or unforeseen circumstances or obstacles. (ii) Mediation. If any alleged breach is not resolved in writing within thirty (30) days of receipt of the Compliance Notice provided for in Section 8.1, the matter shall be submitted to mediation under procedures acceptable to both parties, acting in good faith. (iii) Arbitration. If an alleged breach of this Agreement has not been resolved through mediation, then the question of whether a breach has occurred shall be submitted to binding arbitration under procedures acceptable to both parties, acting in good faith. If the arbitrator(s) find that a breach has in fact occurred, the arbitrator(s) shall set a reasonable time to remedy such breach. The finding of the arbitrator(s) with respect to breach shall be conclusive in any subsequent proceeding. [ARBITRATION RULES TO BE INSERTED] (b) Remedies Pursuant to Sections 1.5 and 1.6. (i) Petition to U.S. District Court. If either party seeks to terminate this Agreement, or alleges that there has been a de facto termination, or seeks to modify or suspend this Agreement pursuant to Sections 1.5 or 1.6, supra, and the matter is not resolved by means of the procedures described in Section 8.3(a), supra, then either party may petition the United States District Court for the Northern District of California, pursuant to its continuing jurisdiction under the 2010 Judgment, for specific performance, declaratory or injunctive relief, or mandamus or special writs. These remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of these remedies shall not constitute a waiver or election with respect to any other available remedy. All other controversies will be resolved under Section 8.3(a), supra. 36 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 (ii) Termination for Cause. If a material default is continuing and unremediated despite proceedings in the United States District Court and the resultant directive of such court, as described in Sections 1.5 and 1.6, supra, then the non-breaching party may terminate for cause, as described in Section 1.4, supra. (c) Monetary Damages Unavailable. Monetary damages shall not be available, but instead the finder of fact shall craft such other relief as will best provide each party with the benefit of its bargain under this Agreement. Notwithstanding the foregoing, in the event that the finder of fact finds that one party has defaulted in the payment of monies owed under this Agreement, in addition to any other remedies the finder of fault fines appropriate, the non- defaulting party shall be entitled to an award of damages in an amount equal to the unpaid funds plus interest. (d) Attorneys' Fees and Costs. Should any action be brought by either party because of breach of this Agreement or to enforce any provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and such other costs as may be found by the court to be appropriate. (e) No Other Remedies. The remedies in this ARTICLE VIII are the exclusive remedies for breach or enforcement of this Agreement, and no other remedies shall be permitted. ARTICLE IX Annual Reviews and Amendments 9.1 Annual Review. The annual review required by California Government Code Section 65865.1 shall be conducted in accordance with the Compliance Review procedures in Article _ of the County's Development Agreement Resolution. This annual review provision supplements, and does not replace, the provisions of ARTICLE VIII, supra, whereby either County or Owner may, at any time, assert matters which either party believes have not been undertaken in accordance with this Agreement by delivering a written Notice of Breach and 37 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT ,0122109 following the procedures set forth in ARTICLE VIII, supra. In advance of such annual review, Owner shall provide County, in a form acceptable to County, with a detailed status report and analysis of its compliance with this Agreement, including evidence of having named County as an additional insured pursuant to Section 7.1(g). This Development Agreement may be terminated as a result of findings made during an annual review provided that the parties follow the procedures for termination set forth in ARTICLE VIII, supra. 9.2 Procedures to Amend. This Agreement may be amended or cancelled, in whole or in part, by the mutual consent of the parties hereto or their successors-in-interest or assigns and in accordance with the provisions of Government Code Section 65868 and the County's Development Agreement Resolution. No modification, amendment or other change to this Development Agreement or any provision hereof shall be effective for any purpose unless specifically set forth in a writing which refers expressly to this Agreement and signed by duly authorized representatives of both parties or their successors. 9.3 Insubstantial Amendments. Any amendment to this Agreement which, in the context of the overall Project, does not substantially affect the term of this Agreement, the permitted uses of the Property, provisions for reservation or dedication of land, density or intensity of use of the Property, requirements for design review approval, maximum height or size of buildings, or monetary contributions by Owner shall be deemed an "Insubstantial Amendment" and shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto. The County Administrator shall have the authority to execute an Insubstantial Amendment or may, in his or her discretion, seek approval of an Insubstantial Amendment by County resolution. 9.4 Amendments to Development Agreement Legislation. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Legislation as those provisions existed at the date of execution of this Agreement. No amendment or addition to those provisions which would materially affect the interpretation or enforceability of this 38 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 Agreement shall be applicable to this Agreement unless such application is specifically required by the California State Legislature or mandated by a court of competent jurisdiction. If such amendment or change is permissive (as opposed to mandatory), this Agreement shall not be affected by same unless the parties mutually agree in writing to amend this Agreement to permit such applicability. If the parties do not agree as to whether the statutory amendment is permissive or mandatory, the amendment will be presumed to apply to the Agreement. 9.5 Amendment of Existing Approvals. Notwithstanding any provisions in this Agreement, Owner may seek and County may review and grant, in accordance with applicable law, amendments or modifications to Existing Approvals, and such Existing Approvals as amended shall continue to be governed by this Agreement without amendment of this Agreement. However, the issuance of any land use approval or permit upon the application of Owner which approves a change in the term, permitted uses, density or intensity of use, height or size of buildings, provisions for reservation and dedication of land, conditions, terms, restrictions and requirements relating to subsequent discretionary actions, monetary contributions by Owner or any other Vested Element set forth in this Agreement, shall require an amendment to this Agreement for such change to be vested hereunder. ARTICLE X Transfers and Assignments 10.1 Town as Successor-in-Interest to County. Although not required by the terms of this Agreement, it is anticipated by the parties that the Property shall be annexed into the Town shortly after recordation of the first final map for Easton Point. Except where the context does not permit such interpretation, once annexation has occurred, the term "County" as used herein shall refer instead to the Town of Tiburon, "County Board of Supervisors" shall refer instead to "Town Council," "County Planning Commission" shall refer instead to "Town Planning Commission," "County Administrator" shall refer instead to "Town Manager," and "County Counsel" shall refer instead to "Town Attorney." Without limiting the generality of the foregoing, 39 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 the term "County of Marin" as used in Section 7.2(b), supra, shall not be construed to mean the Town. 10.2 Right to Assign. Owner shall have the right to sell, assign or transfer, in whole or in part, its rights, duties and obligations under this Agreement to any person or entity at any time during the term of this Agreement, including without limitation the right to assign or transfer such rights, duties and obligations to the HOA, provided, however, that - except in the case of an assignment or transfer of rights, duties and obligations to the HOA - the rights, duties and obligations conferred upon Owner pursuant to this Agreement shall not be at any time so transferred or assigned except through a transfer of the Property and the assumption by the transferee of the Owner's duties and obligations under this Development Agreement in so far as such duties and obligations pertain to the portion of the Property transferred (if less than all of the Property is so transferred). Any such transfer and assignment shall be pursuant to an assignment and assumption agreement in a form reasonably acceptable to County Counsel. In the event of a transfer of a portion of the Property, Owner shall have the right to transfer its rights, duties and obligations under this Agreement which are applicable to the transferred portion, and to retain all rights, duties and obligations applicable to the retained portions of the Property. . All costs incurred by County, including attorneys fees and costs, in connection with review and approval of the transfer and assignment documentation, including assignment and assumption agreement, shall be borne by Owner. 10.3 Release Upon Transfer. Upon the sale, transfer or assignment of Owner's rights and interests under this Agreement pursuant to Section 10.2, Owner shall be released from its obligations under this Agreement with respect to that portion of the Property sold, transferred or assigned, and any default or breach with respect to the transferred or assigned rights and/or obligations shall not constitute a default or breach with respect to the remaining rights and/or obligations under this Agreement, provided that: (a) Owner is not then in material default under this Agreement; (b) Owner has provided to County notice of such transfer; and (c) the transferee 40 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 executes and delivers to County a written agreement, in form reasonably acceptable to County Counsel, in which (i) the name and address of the transferee is set forth and (ii) the transferee expressly and unconditionally assumes all of the obligations of Owner under this Agreement with respect to that portion of the Property sold, transferred or assigned. Failure to deliver a written assignment and assumption agreement hereunder shall not affect the running of any covenants herein with the land, as provided in Section 10.4, infra, nor shall such failure negate, modify or otherwise affect the liability of any transferee pursuant to the provisions of this Agreement. 10.4 Covenants Run with the Land. All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors (by annexation, merger, consolidation, or otherwise) and assigns, devises, administrators, representatives, lessees, and all of the persons or entities acquiring the Property or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors (by annexation, merger, consolidation or otherwise) and assigns. All of the provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law, including but not limited to Section 1468 of the Civil Code of the State of California. Each covenant to do or to refrain from doing some act on the Property hereunder, or with respect to any County-owned property: (a) is for the benefit of such properties and is a burden upon such property; (b) runs with such properties; and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and each person or entity having any interest therein derived in any manner through any owner of such properties, or any portion thereof, and shall benefit each property hereunder, and each other person or entity succeeding to an interest in such properties. 41 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 10.5 Future Lot Owners and HOA as Third-Party Beneficiaries. The individual entities which purchase Subdivision or Remainder Lots, as well as the HOA, are third-party beneficiaries of this Agreement, with the right to enforce the Permitted Uses described in ARTICLE IV, supra, provided, however, that the enforcement of such rights is limited to the procedures and remedies set forth in ARTICLE VIII, supra. ARTICLE XI Mortgage Protection, Certain Rights of Cure 11.1 Mortgage Protection. This Agreement shall be superior and senior to any lien placed upon the Property or any portion thereof after the date of recording this Agreement, including the lien of any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 11.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 11.1 above, no Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of improvements, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by this Agreement, or otherwise under Existing Approvals. 11.3 Notice of Default to Mortgagee. If County receives a notice from a Mortgagee requesting a copy of any notice of default given Owner hereunder and specifying the address for service thereof, then the County shall deliver to such Mortgagee at the address given by such Mortgagee, concurrently with service thereon to Owner, any Notice of Breach given to Owner with respect to any claim by the County that Owner has committed an event of default, 42 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 and if the County makes a determination of noncompliance hereunder, the County shall likewise serve notice of such noncompliance on such Mortgagee concurrently with service thereon on Owner. Each Mortgagee shall have the right during the same period available to Owner to cure or remedy, or to commence to cure or remedy, the event of default claimed or the areas of noncompliance set forth in the County's Notice of Breach. County's obligation under this Section 11.3 shall not arise nor shall it continue unless and until Owner or the Mortgagee has provided (and, upon any change of name, address or telephone number, continued to provide) County the current name, address and telephone number of the Mortgagee. Such notice shall be given in accordance with the notice provision of this Agreement. ARTICLE XII General Provisions 12.1 Common Sense Interpretation. It is impossible to anticipate or set forth every contingency which might arise during the term of this Agreement; therefore, this Agreement shall be interpreted in a common-sense manner which gives effect to its intent, even when applied to unanticipated circumstances. The parties shall cooperate in good faith to implement the terms and spirit of this Agreement. This Agreement has been reviewed and revised by legal counsel for both parties, and no presumption shall apply that ambiguities are to be construed against the drafting party. 12.2 Private Undertaking; Indemnification. It is specifically understood and agreed by the parties that the development contemplated by this Agreement is a private development, that County has no interest in or responsibility for or duty to third persons concerning any of said improvements, and that Owner shall have full power over and exclusive control of the Property herein described, subject only to the limitations and obligations of Owner under this Agreement. Owner hereby agrees to indemnify, defend and hold County and its elected and appointed representatives, officers, agents and employees harmless from any liability for damage or claims for damage for personal or bodily injury, including death, as well as from claims for 43 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 property damage which may arise from the acts, omissions, negligence or willful misconduct of Owner or its employees, contractors, subcontractors, agents, or representatives, excepting suits and actions brought by Owner for default of this Agreement by County or arising from the sole negligence or willful misconduct of County or its elected and appointed representatives, officers, agents and employees. Without limiting the generality of the foregoing, Owner shall be obligated under this Section 12.2 to defend, save and/or hold County harmless from any and all claims, costs and liability for any damage, personal injury or death, which may arise, directly or indirectly, from Owner or Owner's contractors, subcontractors, agents, representatives, or employees' operation in connection with any improvements constructed to the County's standards. 12.3 No Joint Venture or Partnership. Nothing contained in this Agreement or in any document executed in connection with this Agreement shall be construed as making County and Owner joint venturers or partners. 12.4 Notices, Demands and Communications between the Parties. Formal written notices, demands, correspondence and communications between County and Owner will be sufficiently given if dispatched by first-class mail, postage prepaid, to the offices of County and Owner indicated below. Such written notices, demands, correspondence and communications may be sent in the same manner to such persons and addresses as either party may from time to time designate by mail as provided in this Section: County: Community Development Agency County of Marin 3501 Civic Center Drive #308 San Rafael, CA 94903-4157 Attn: Community Development Agency Director 44 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10122109 with copies to: Community Development Department Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 Attn: Community Development Director and: Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 Attn: Town Attorney and: Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 Attn: Town Manager Owner: Martha Co. c/o John W. Reed 405 Via Del Norte, Suite D La Jolla, California 92037 with a copy to: Hanson Bridgett LLP 80 E. Sir Francis Drake Blvd., Suite 3E Larkspur, California 94939 Attn: Mary K. McEachron Notices delivered by deposit in the United States mail as provided above shall be deemed to have been served forty-eight (48) hours after the date of deposit; notices delivered by overnight courier shall be deemed to have been served on the next business day. Copies of notices to Owner shall also be sent to other parties owning a portion of the Property who request to receive copies of such notice in accordance with the provisions of Section 8.2, supra. 12.5 Waivers. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of County and Owner. 12.6 County Approvals and Actions. Whenever reference is made in this Agreement to an action or approval to be undertaken by County, the County Administrator or the Administrator's designee is authorized to act on behalf of County, unless specifically provided otherwise or the context requires otherwise. 45 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 12.7 Severability. Except as otherwise provided herein, if any provision(s) of this Agreement is (are) held invalid, the remainder of this Agreement shall not be affected and shall remain in full force and effect unless amended or modified by mutual consent of the parties. 12.8 Section Headings. Article and section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants, or conditions of this Agreement. 12.9 Entire Agreement. This Agreement is executed in multiple counterparts, each of which is deemed to be an original. This Agreement consists of forty- (4_) pages - including the Recitals but excluding the cover sheet and table of contents - and seven (7) exhibits, attached hereto and incorporated by reference herein, which together with the Existing Approvals constitute the entire understanding and agreement of the parties. The exhibits, shown with the section numbers at which they are described, are as follows: Exhibit A Legal Description of Property Recital B Exhibit B Location Map for Easton Point Property Recital B Exhibit C 32-Unit Lower Density Alternative Plan and Narrative Recital E Exhibit D 2010 Judgment Section 1.1 Exhibit E Representation of Town of Tiburon re Health and Safety Review Section 1.7 Exhibit F Agreement of Town of Tiburon re Term of Agreement Section 2.2(d). 12.10 Estoppel Certificate. Either party may, at any time and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party: (a) this Agreement is in full force and effect and a binding obligation of the parties; (b) this Agreement has not been amended or modified orally or in writing, or if so amended, identifying the amendments; and (c) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, describing therein the nature and amount of any such defaults. The party receiving a request hereunder shall execute and return such certificate or give a written, detailed response explaining why it will not do so within thirty (30) days following the receipt thereof. Either the County Administrator or the Community Development Agency Director of the County shall have the right to execute any 46 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 certificate requested by Owner hereunder. The County acknowledges that a certificate hereunder may be relied upon by transferees and Mortgagees. 12.11 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California without reference to its choice of laws provisions. 12.12 Consistency with County Ordinance. The County warrants that each and every provision of this Agreement is consistent with, and not in conflict with, the County's Development Agreement Resolution. 12.13 Recordation. Within ten (10) days after the Effective Date, the County Clerk shall cause this Agreement to be recorded with the Marin County Recorder. If the parties to this Agreement or their successors-in-interest amend or cancel this Agreement as hereinabove provided, the County Clerk shall have notice of such action recorded with the Marin County Recorder. 12.14 Definitions. The following defined terms are defined in the Recital or Section indicated below: 32-Unit LDA Recital E 1976 Judgment Recital C 2007 Judgment Recital C 2010 Judgment Section 1.1 Agreement Introduction at p.1 Building & Landscape Envelope Section 4.2(h) CEQA Recital D Compliance Notice Section 8.1 County Introduction at p.1 Development Agreement Legislation Recital A Development Agreement Resolution Recital K(5) Development Standards Section 5.3 Effective Date Recital N EIR Recital D Exceptions to Subdivision Standards Recital M(5) Existing Approvals Recital M Existing Approvals and Tiburon Development Standards Section 5.3 HOA Section 7.1(d) Insubstantial Amendment Section 8.3 Master Plan Recital M(2) 47 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 Mortgage Section 11.1 Mortgagee Section 11.1 MOU Recital F Notice of Breach Section 8.1 Owner Introduction at p.1 Precise Development Plan Recital M(4) Private Open Space Section 4.20) Project Recital E Property Recital B Remainder Lot Section 2.4(b) Residential Building Envelope Section 4.2(i) Rezoning Recital M(1) Subdivision Lots Section 2.4(a) Subsequent Approvals Section 6.1 Subsequent Discretionary Approvals Section 6.1(b) Subsequent Ministerial Approvals Section 6.1(a) Tentative Subdivision Map Recital M(3) Town Recital E Uncontrollable Event Section 2.3(b) Vested Elements Section 5.2. The term "County" as defined herein shall not be interpreted to include or reference the Marin County Open Space District, which is a separate governmental entity. IN WITNESS WHEREOF, this Agreement has been entered into by and between County and Owner as of its Effective Date. OWNER: MARTHA CO., a California corporation By: COUNTY: COUNTY OF MARIN, a governmental entity duly organized and existing under the laws of the State of California By: Attest: APPROVED AS TO FORM: 48 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10/22/09 By: Mary K. McEachron Attorney for the Martha Company APPROVED AS TO FORM: By: Patrick K. Faulkner, County Counsel 49 EXHIBIT A TO MEMORANDUM OF UNDERSTANDING STAFF REPORT DRAFT 10122109 RESOLUTION NO. XX-2009 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON APPROVING A MEMORANDUM OF UNDERSTANDING RELATED TO THE MARTHA COMPANY PROPERTY AND TAKING RELATED ACTIONS WHEREAS, the Town of Tiburon ("Town") and the Martha Company (Martha"), in an effort to settle litigation regarding prezoning actions of the Town that have been challenged in Marin Superior Court by Martha, have proposed resolution by means of a Memorandum of Understanding (MOU) regarding certain aspects of Martha's current development applications pending before the County of Marin; and WHEREAS, said MOU would establish a 32-unit Lower Density Alternative (LDA) project as a potential solution to current litigation and decades of uncertainty as to development rights for Martha's 110-acre property located on the Tiburon peninsula; and WHEREAS, the Town Council has held public meetings on this matter on September 16, October 7, and October 21, 2009 and has heard and considered testimony received; and WHEREAS, the Town Council finds that adoption of this resolution and the MOU does not constitute a "project" as defined by the California Environmental Quality Act (CEQA) and is therefore exempt ftom the requirements of CEQA. NOW, THEREFORE BE IT RESOLVED that the Town Council of the Town of Tiburon does hereby approve the MOU, attached hereto as Exhibit A, authorizes the Town Manager to complete any final minor negotiations on details of the MOU terms in consultation with the ad- hoc subcommittee, and authorizes the Town Manager to execute the MOU as appropriate. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on , 2009, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: Tiburon Town Council Resolution No. XX-2009 --1--12009 EXHIBIT 8 ALICE FREDERICKS, MAYOR ATTEST: DIANE CRANE IACOPI, TOWN CLERK S: UdministrationlTown CoundhStafj'Reports 1200910ctober 26 specialWartha MOU Resolution 10-26doc Tiburon Town Council Resolution No. XX-2009 --1--12009 NOTE: Exhibit A (the MOU and its attachment Form of Development Agreement) are contained elsewhere in the Town Council packet and are not reproduced here RESOLUTION NO. XX-2009 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON URGING THE MARIN COUNTY BOARD OF SUPERVISORS TO TAKE CERTAIN ACTIONS WITH RESPECT TO THE EASTON POINT (MARTHA COMPANY) DEVELOPMENT APPLICATIONS WHEREAS, the Town of Tiburon ("Town") and the Martha Company have entered into a Memorandum of Understanding (MOU) regarding certain aspects of the Martha Company's current development applications pending before the County of Marin; and WHEREAS, said MOU establishes a 32-unit Lower Density Alternative (LDA) project as a potential solution to current litigation and decades of uncertainty as to development rights for the Martha Company's 110-acre property located on the Tiburon peninsula; and WHEREAS, said MOU contains a provision that the Town will adopt a resolution urging the Board of Supervisors of the County of Marin to take certain actions with respect to the Martha Company's development applications currently on file and being processed by the County of Marin; and WHEREAS, the Town Council finds that adoption of this resolution does not constitute a "project" as defined by the California Environmental Quality Act (CEQA) and is therefore exempt from the requirements of CEQA. NOW, THEREFORE BE IT RESOLVED that the Town Council, in accordance with provision of the Memorandum of Understanding reached with the Martha Company, hereby urges the Board of Supervisors of the County of Marin to take the following actions with respect to the Easton Point (Martha Company) development applications pending before it: a. Evaluate the Lower Density Alternative (LDA) as a project alternative in the Draft Environmental Impact Report prepared for the project. b. If the LDA is found environmentally equal or superior to the 43 Unit Project, approve the master plan, tentative subdivision map, and precise development plan applications based on the LDA project alternative and enter into the LDA Development Agreement with Martha Company based on the LDA project. C. Require as a condition of the LDA Development Agreement the entry of a substitute judgment ("Substitute Judgment") by the federal court under its continuing jurisdiction, said Substitute Judgment to supersede the current Martha Company judgments, and to incorporate: Project; (i) the terms of the LDA Development Agreement for the LDA Tiburon Town Council Resolution No. XX-2009 --1--12009 EXHIBIT C (11) Martha Company's acknowledgment that the current Martha Judgments are superseded and that Substitute Judgment will subsequently control future development rights and obligations with respect to the Property; (iii) County's acknowledgement that Martha Company's rights under LDA Development Agreement create no health or safety issues; and (iv) Martha Company's dismissal with prejudice of the Writ of Mandate concurrent with full execution of the LDA Development Agreement. (v) provisions to ensure clarity and enforcement so that the Town and Martha Company receive the benefit of the MOU upon which they have agreed, and the Town, Martha Company, and County receive the benefit of the Substitute Judgment and the LDA Development Agreement. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on , 2009, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ALICE FREDERICKS, MAYOR ATTEST: DIANE CRANE IACOPI, TOWN CLERK S: I4dministrationITown CouncibStaff Reports 12009Vctoher 26 speciaABoard of Supervisors Reso on Martha 10-26doc Tiburon Town Council Resolution No. XX-2009 --1--12009 2