**Exhibit 10.22**

** **

**MEMORANDUMOF AGREEMENT**

 

**BETWEEN**

 

**THE DRYCREEK RANCHERIA BAND OF POMO INDIANS**

 

**AND**

 

**COUNTYOF SONOMA**

 

**MARCH 18,2008**

 

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**TABLE OF CONTENTS**

 
| ** ** | ** **                                                                  | **Page No.** |
|------------|-----------------------------------------------------------------------------|-------------------|
|       |                                                                        |              |
| I.         | PURPOSE OF AGREEMENT                                                        | 2                 |
| II.        | ISSUES IN DISPUTE                                                           | 2                 |
| III.       | DEFINITIONS                                                                 | 3                 |
| IV.        | DECLARATIONS REGARDING THE ONGOING  PROJECTS AND THE PETALUMA PROPERTY      | 9                 |
| V.         | ENVIRONMENTAL REVIEW                                                        | 9                 |
| VI.        | ONGOING PROJECT MITIGATION  MEASURES                                        | 16                |
| VII.       | ALCOHOL LICENSE AND EMERGENCY  ACCESS ROAD                                  | 18                |
| VIII.      | LAW ENFORCEMENT SERVICES                                                    | 21                |
| IX.        | PROSECUTION                                                                 | 23                |
| X.         | FIRE AND EMERGENCY SERVICES                                                 | 24                |
| XI.        | SOCIOECONOMIC CONDITIONS                                                    | 28                |
| XII.       | DUGAN PROPERTY                                                              | 28                |
| XIII.      | PETALUMA PROPERTY                                                           | 31                |
| XIV.       | FUTURE TRUST ACQUISITIONS AND  TRIBAL DEVELOPMENT                           | 32                |
| XV.        | MITIGATION  MONITORING AND REPORTING                                        | 33                |
| XVI.       | REVENUE AND MITIGATION COSTS                                                | 33                |
| XVII.      | RE-OPENER PROVISIONS                                                        | 36                |
| XVIII.     | INDEMNIFICATION                                                             | 38                |
| XIX.       | CONFIDENTIALITY                                                             | 39                |
| XX.        | DISPUTE RESOLUTION                                                          | 40                |
| XXI.       | JUDICIAL REVIEW AND ENFORCEMENT                                             | 43                |
| XXII.      | NOTICES                                                                     | 44                |
| XXIII.     | MUTUAL LIMITED WAIVER OF SOVEREIGN IMMUNITY                                 | 45                |
| XXIV.      | CEQA REVIEW                                                                 | 46                |
| XXV.       | REVIEW BY THE DEPARTMENT OF INTERIOR AND OTHER  ACTIONS FOLLOWING EXECUTION | 46                |
| XXVI.      | MISCELLANEOUS PROVISIONS                                                    | 47                |

 

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**MEMORANDUM OF AGREEMENT**

 

This Memorandum ofAgreement (“Agreement”) is effective as of March 18, 2008, by and betweenthe County of Sonoma (the “County”) and the Dry Creek Rancheria Band of PomoIndians (the “Tribe”) (referred to herein collectively as “the Parties” and asto each as a “Party”).  The terms “County”and “Tribe” as used herein shall include the Parties’ governmental entities,departments and officials unless otherwise stated.

 

**RECITALS**

 

WHEREAS, the Tribe is afederally-recognized Indian Tribe located on federal Trust Lands known as theDry Creek Rancheria (“Rancheria”), which lands are connected to State Route 128(“SR 128”) by BIA Reservation Road S-93 (“BIA 93”), and which lands and roadsare within the geographic boundaries of the County; and

 

WHEREAS, under the IndianGaming Regulatory Act, 25 U.S.C. § 2701, *etseq*. (“IGRA”), the Tribe may engage in gaming as a means ofpromoting Tribal economic development, self-sufficiency and strong Tribalgovernment; and

 

WHEREAS, IGRA generallyrequires that Class III gaming be conducted pursuant to a Tribal-State Class IIIgaming compact; and

 

WHEREAS, on or about September 10,1999, and effective in May, 2000, the Tribe entered into a compact with theState of California (“Compact”), as contemplated under IGRA; and

 

WHEREAS, the Tribedesires to operate Tribal economic development projects in a manner thatbenefits the Tribe, its members, and the community as a whole, and the Countyrecognizes the mutual benefit that can be derived if those goals are achieved;and

 

WHEREAS, the Tribe andthe County have participated in a series of joint meetings to address potentialoff-Reservation environmental impacts and possible additional mitigationmeasures that might be taken with respect to proposed economic developmentprojects on the Reservation and other lands owned in fee by the Tribe,consistent with the Tribe’s sovereignty, applicable law, and the Compact; and

 

WHEREAS, proposed andfuture Tribal development are not County projects and are not subject to thediscretionary approval of the County and absent this Agreement the County haslimited opportunity to influence mitigation measures or seek compensation foradverse environmental impacts; and

 

WHEREAS, the Partiesacknowledge that given the scope of the proposed Tribal economic developmentprojects, specific impacts are not always subject to precise measurement andthat the mitigation measures agreed upon below are intended as good faithapproximate mitigation of identified impacts; and

 

WHEREAS, the Partiesrecognize that this Agreement is an important step in furthering agovernment-to-government relationship and building trust, mutual respect and 

 

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cooperation thatis intended to benefit the Tribe, its members and the entire Sonoma Countycommunity;

 

NOW, THEREFORE, theParties agree as follows:

 

**AGREEMENT**

 

# **I.**                      PURPOSE OFAGREEMENT

#  

## 1.1           The purpose of thisAgreement is to:

##  

### 1.1.1        Memorialize understandingsthat are intended to resolve and settle a range of disputes between the Tribeand the County;

###  

### 1.1.2        Assure the implementationof measures for mitigating the off-Reservation impacts of the Existing Casino,the Dugan Projects, and the Resort Project;

###  

### 1.1.3        Establish a mutuallyagreeable process to identify and mitigate potential off-Reservationenvironmental impacts of future Tribal economic development projects,including, with respect to those which are on-Reservation gaming Projects, aprocess that meets or exceeds the processes required under the Compact;

###  

### 1.1.4        Create a process toresolve future disputes that may arise between the County and the Tribe underthis Agreement;

###  

### 1.1.5        Create a framework forbuilding and maintaining a mutually beneficial government-to-governmentrelationship between the Tribe and the County; and

###  

### 1.1.6        Identify ways for theTribe and the County to work together to provide services and benefits to theTribal community and Sonoma County residents.

###  

# **II.**                    ISSUES INDISPUTE

#  

## 2.1           The Tribe and Countyare involved in a number of legal disputes which are summarized below.  This Agreement is intended to settle thesedisputes and to provide a mechanism to resolve other controversies that mayarise under this Agreement in the future. The disputed issues include:

##  

### 2.1.1        Alcohol License:  *In theMatter of the Protest of Sheriff Bill Cogbill, et al. Against the Person toPerson and Premises to Premises Transfer of a General Public Eating PlaceAlcohol License* - The County Sheriff, Fire Chief, Board ofSupervisors and the Alexander Valley Association (“AVA”) each protested to theDepartment of Alcoholic Beverage Control (“ABC”) that the River Rock Casinoshould not be granted a liquor license. The Tribe contends it is qualified to obtain the applied forlicense.  The protests are pending beforean ABC administrative law judge.

###  

### 2.1.2        Dugan Property TrustApplication:  *California Department of Conservation, et al. v.Acting Pacific Regional Director, Bureau of Indian Affairs* - TheState of 

 

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### California, County and AVA each are appealing a Bureau of IndianAffairs (“BIA”) decision to take 18 acres of land (the “Dugan Property”),adjacent to the Rancheria, into trust for the Tribe.  The matter is pending before the Departmentof the Interior Board of Indian Appeals (“IBIA”).

###  

### 2.1.3        Fire Safety Inspections:  *In theMatter of the Sonoma County Fire Chief’s Application for an Inspection Warrant*- This case involves the County Fire Chief’s application for a State civiladministrative inspection warrant for the Rancheria.  The United States District Court for theNorthern District of California determined that the County does not have firecode enforcement jurisdiction on the Reservation and the Ninth Circuit Court ofAppeals, in a final judgment, affirmed the District Court’s determination.  A petition for *certiorari* to the United States Supreme Court of the NinthCircuit judgment has not yet been filed by the County.

###  

### 2.1.4        Wastewater Discharge:  *In re: DryCreek Rancheria NPDES Permit* – On April 30, 2007, the UnitedStates Environmental Protection Agency (“USEPA”) issued a National PollutantDischarge Elimination System (“NPDES”) permit to allow the Tribe to dischargetreated wastewater into a tributary of the Russian River.  The County and AVA filed petitions foradministrative review of the permit alleging concerns over potential environmentalimpacts.  The Tribe contends that thepermit was appropriately granted and is environmentally sound. The petitionsare pending before the USEPA Environmental Appeals Board and the permit hasbeen stayed.

###  

### 2.1.5        Gaming Facilities’Potential Off-Reservation Impacts: County’s Dispute Regarding Mitigation of Gaming Facilities’Environmental Impacts - The County and Tribe dispute whether significantoff-Reservation impacts of its existing and planned Rancheria gaming Projectshave been adequately mitigated.

###  

### 2.1.6        Tribe’s Petaluma TrustApplication:  County Opposition toPetaluma Gaming Trust Application - The County opposes the Tribe’s applicationto take 277 acres of land into trust for gaming purposes near Petaluma.  The Tribe contends that its pendingapplication satisfies all applicable standards for transfer of the land intotrust for gaming purposes.

###  

# **III.**                   DEFINITIONS

#  

The following terms shallbe defined in this Agreement as set forth in this subdivision.

 

## 3.1           “Alternative Road Site”means a site for an Emergency Access Road other than only through the DuganProperty provided such a road is completed in the same timeframe, serve thesame function, and be as effective for such purposes as the Emergency AccessRoad through the Dugan Property except as may be agreed to by the Parties.

##  

## 3.2           “Base Year” means theprior year as calculated in Section 16.5.

##  

## 3.3           “Binding ArbitrationProvisions” means the arbitration process set forth in Section 20.2.

 

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## 3.4           “Bond” means theperformance and payment bond described in Section 7.8 below, provided thatin lieu of providing such bond the Parties may agree on the establishment andfunding of a Construction Completion Account as defined herein and described inSection 7.8.  The Bond andConstruction Completion Account are referred to interchangeably as the “ConstructionAssurance Device.”

##  

## 3.5           “Conservation Easement”means an easement over a portion of the Petaluma Property as further describedin Section 12.3.

##  

## 3.6           “Construction AssuranceDevice” means a performance and/or payment bond or Construction CompletionAccount, either of which contains sufficient resources to build or complete theEmergency Access Road and Intersection Improvements and can be accessed by theCounty for such purposes.

##  

## 3.7           “Compact” means theTribal-State Compact entered into pursuant to IGRA between the Tribe and theState of California, effective May, 2000, any amendments or revisions thereto,or any new compact related to Gaming on the Rancheria entered into during theTerm.

##  

## 3.8           “ConstructionCompletion Account” means an account at a bank to be mutually agreed upon bythe Parties, which agreement shall not be unreasonably withheld, to serve inlieu of a Bond in accordance with Section 7.8.5 below.  The Construction Completion Account would bean account into which the Tribe would deposit, or cause to be deposited,sufficient cash to cover the costs of completing the Tribe’s requiredconstruction of the Emergency Access Road and of the Intersection Improvement,as well as an additional 7%****thereofto cover contingencies such as potential cost overruns.  Withdrawals and expenditures from theConstruction Completion Account will be in accordance with Section 7.8 and 7.9 below.

##  

## 3.9           “CumulativelySignificant Impacts” means the possible impacts on the off-Reservationenvironment of a Tribal Commercial Development Project that may be individuallylimited but cumulatively significant if the incremental impacts of anindividual project are considerable when viewed in connection with the impactsof past projects, other current projects, and reasonably foreseeable futureprojects.

##  

## 3.10         “Cultural Center” meansthe Tribe’s proposed cultural center located on the Rancheria.

##  

## 3.11         “Dugan Projects” meansthe Projects shown on Exhibit B and as may be otherwise described in theFinal Environmental Assessment dated August 2005 and prepared for theDugan fee-to-trust application.

##  

## 3.12         “Dugan Property” meansthe real property parcel contiguous to the Rancheria that is commonly referredto as such and is the subject of a pending fee-to-trust application to theDepartment of the Interior.

##  

## 3.13         “Effective Date” meansthe latter date upon which this Agreement is formally approved by the CountyBoard of Supervisors and the Tribe’s Board of Directors, which is anticipatedto be on March 18,****2008.

 

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## 3.14         “Emergency Access Road”means the road described in Section 7.3 that provides emergency accessconnecting the Rancheria to Highway 128, either through the Dugan Property orby way of the Alternative Road Site.

##  

## 3.15         “Emergency Access RoadPlans” means the plans reviewed and accepted by the County as described in Section 7.3 below, or the Alternative Roadplans reviewed and accepted by the County as described in Section 7.7.

##  

## 3.16         “Environmental Assessment”means the August 2005 Final Dry Creek Rancheria Fee-to-Trust ProjectEnvironmental Assessment document drafted for the Dugan Property fee-to-trustapplication prepared for the Tribe by Environmental Science Associates (ESA).

##  

## 3.17         “Environmental Ordinance”means the Dry Creek Ordinance that was adopted on October 14, 2000 byResolution No. 00-10-14-005, which amended an earlier version adopted on April 29,2000.  Both ordinances were enactedpursuant to Section 10.8 of the Compact.

##  

## 3.18         “Environmental Study”means the Final Dry Creek Rancheria Economic Development Master PlanEnvironmental Study for the Resort Development dated January 2008, whichwas prepared for the Tribe by ESA with respect to the Resort Project.

##  

## 3.19         “Existing Casino” meansthe casino known as the “River Rock Casino” as described in Section 4.1below, including the parking lots, parking structures, buildings, roads,utilities and other Infrastructure.

##  

## 3.20         “Financing” means thereceipt by the Tribe or by another entity or financial institution on itsbehalf, of the first draw of funds derived from the major financing commitmentsthat are part of the effort to undertake development of the Resort Project.

##  

## 3.21         “Gaming” or “GamingActivities” means Class II and Class III gambling activities asdefined under IGRA and as, with respect to Class III gaming, is allowedunder the Compact.

##  

## 3.22         “Gaming Authority” meansthe Dry Creek Tribal Gaming Commission, the Tribal governmental agency createdunder Tribal law pursuant to IGRA to regulate gaming on Tribal Trust Land.

##  

## 3.23         “Gaming Facility” means abuilding in which Gaming is taking place and as is otherwise defined in theCompact.

##  

## 3.24         “Gaming Operations” meansthe conduct of Gaming and the operation of the Gaming Facility, including theadministration and other necessary services.

##  

## 3.25         “IGRA” means the IndianGaming Regulatory Act of 1988 and any amendments or regulations issued pursuantto the Act.

##  

## 3.26         “Infrastructure” meansthe utilities, utility facilities, and wastewater treatment plant, allcurrently existing on the Rancheria and Dugan Property; the wastewater storage 

 

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## facilities, above-ground detention facilities, natural gas lines,electrical sub-station, and roads (including the Acorn Road) constructed or tobe constructed on the Rancheria or the Dugan Property and made available to theExisting Casino, the Resort Project or the Dugan Projects, as discussed in theEnvironmental Assessment or Environmental Study; Exhibit B (relating tothe Dugan Projects); the Emergency Access Road; the Intersection Improvements;and the existing wells.

##  

## 3.27         “In Lieu Fee” means thefee determined in accordance with Section 16.9.

##  

## 3.28         “Interested Persons”means (i) the County; (ii) any city that has boundaries which arecontiguous to the boundaries of the trust land on which a proposed TribalCommercial Development Project is to be constructed; (iii) any stateand/or federal agency which, if a project were not taking place on Indianlands, would have responsibility for approving a Tribal Commercial DevelopmentProject or would lawfully exercise authority over the natural resources thatmay be impacted by a Tribal Commercial Development Project; and (iv) anyperson, group, political subdivision, or agency that submits a timely requestto the Tribe in writing to receive a Notice of Preparation or Completion of adraft TEIR, or has timely commented on a Tribal Commercial Development Projectin a writing received by the Tribe in accordance with the applicable processfor considering such comments.  Nothingin this Section shall be deemed to confer any rights on an InterestedPerson.

##  

## 3.29         “IntergovernmentalMitigation Agreement” means an agreement between the Parties with respect tooff-reservation mitigation measures in connection with a Tribal CommercialDevelopment Project that is subject to the environmental review provisions ofthis Agreement.  To the extent anyprovision herein requires or refers to an Intergovernmental MitigationAgreement, this Agreement shall satisfy all such requirements with respect tothe Ongoing Projects. This Agreement, including but not limited to itsenvironmental and dispute resolution processes, is intended by the Parties toserve as any intergovernmental mitigation agreement with respect to futureconstruction related to Tribal Gaming Operations or Activities that may berequired in any Compact entered into during the Term of this Agreement.

##  

## 3.30         “IntersectionImprovements” means the improvements at the intersections of SR 128 and BIA 93,and at SR 128 and the Emergency Access Road, as provided in Section 16.4and Exhibit A.

##  

## 3.31         “Master Plan” means theTribe’s economic development master plan described in the Environmental Study.

##  

## 3.32         “Non-Commercial TribalProject” means any Project undertaken by the Tribe on trust lands involving anyconstruction, improvement, or expansion related to an intended or existingnon-commercial activity or purpose, including, but not limited to, thoseprojects and activities described in Section 3.43.5 and excludingCommercial Tribal Development Projects.

##  

## 3.33         “Ongoing Projects” meansthe Existing Casino, the Dugan Projects, and the Resort Project, including theInfrastructure.

 

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## 3.34         “Petaluma Property” meansthe approximately 277 acres owned by the Tribe within an unincorporated portionof the County along U.S. Highway 101 near the City of Petaluma and shown in Exhibit C.

##  

## 3.35         “Project” means anyproject undertaken by the Tribe on Trust Lands that involves any substantialconstruction, improvement, or expansion that is likely to cause a SignificantAdverse Impact.

##  

## 3.36         “Rancheria” means theapproximately 75 acres of Trust Land presently accessed by State Highway 128,including BIA 93.

##  

## 3.37         “Reservation” means theRancheria and any other land held in trust for the Tribe by the federalgovernment that is located within Sonoma County.

##  

## 3.38         “Resort Project” meansPhase I and Phase II of the Gaming and hospitality Project and theInfrastructure discussed in the Environmental Study.

##  

## 3.39         “Sheriff’s Department”means the Sonoma County Sheriff’s Department.

##  

## 3.40         “Significant AdverseImpact(s)” means a substantial or potentially substantial adverse change in theoff-Reservation environment as a result of a Project as determined, to theextent possible, on scientific and factual data.  Possible differences of expert opinions shallnot alone require that the Tribe make a finding of Significant Adverse Impact.

##  

## 3.41         “TEIR” means a TribalEnvironmental Impact Report, as described in Section V below.

##  

## 3.42         “Term” means the term ofthis Agreement which shall commence on the Effective Date and terminate whenthe Compact, including any amendment, revision, or modifications theretoexpires but in any event no earlier than Midnight, December 31, 2020.  The Agreement Term therefore includes, and isautomatically extended by, the term of any extension(s), modifications(s) and/oramendment(s) of the Compact. Specific provisions may also be extended by operation of Section 26.8.  The Term is similarly extended by any newcompact unless there has been at least a two year lapse since termination ofthe Compact and, during any such two year period, no Gaming Activities occurredon the Reservation.

##  

## 3.43         “Tribal CommercialDevelopment Project” means a Project which may result in a Significant AdverseImpact and consists of the following:

##  

### 3.43.1          Any Project on TrustLand (including the Petaluma Property if it becomes Trust Land) that isprimarily undertaken for or in connection with a commercial purpose orenterprise, but excluding the Ongoing Projects or any part thereof; or

###  

### 3.43.2          Any expansion orsignificant renovation or modification of the Existing Casino or anysignificant excavation, construction or development of a new Gaming Facility orproposed Gaming Facility on Trust Lands after the Effective Date for whichthere is a Significant Adverse Impact, other than in connection with theOngoing Projects or those Projects described in Section 3.43.5 below,which are excluded; or

 

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### 3.43.3          Each expansion in theoperation of slot machines above 2,000 on the Rancheria, including inconnection with the Ongoing Projects, but only as to the Significant AdverseImpacts, if any, of the increase in machines over 2,000; or

###  

### 3.43.4          Any Non-CommercialTribal Projects that include the construction of more than six single familyhouses, six or more residential units in one building, or any building that ismore than three stories in height.

###  

### 3.43.5          Notwithstanding anyother provision of this Agreement, the term “Tribal Commercial DevelopmentProject” does not include:

###  

#### a.             The Resort Project,including but not limited to all Infrastructure improvements, or anyrenovations or demolition of all or part of the Existing Casino prior to or inconnection with the development, construction or operation of the ResortProject;

####  

#### b.             The Dugan Projects,including but not limited to all Infrastructure improvements;

####  

#### c.             The Cultural Center;

####  

#### d.             Any expansion ofGaming Activities or the entering into, finalization, or effectuation of aCompact, new Compact, or Compact amendment during the Agreement Term whichpermits the Tribe to operate, or the actual operation of less than, 2,001slotmachines;

####  

#### e.             Any Project whichwould be exempt under Articles 18 and 19 of the California EnvironmentalQuality Act (“CEQA”) Guidelines; or

####  

#### f.              Non-commerciallybased development and construction activities or Projects on Trust Lands,including but not limited to activities or Projects relating to housing,education, culture, religion, government, recreation, fire and public safetyservices, roads, utilities, and the maintenance of Tribal lands.  In this context, non-commercially based meansdevelopment or Projects and the related construction activities that areintended primarily for the Tribe and the Tribal government and all Tribalinfrastructure owned and run by the Tribal government that is not substantiallyrelated to a Tribal Commercial Development Project.  Notwithstanding the above, roads thatpredominantly serve Reservation purposes other than a Tribal CommercialDevelopment Project, and development and construction activities or Projectsrelated to water resources, drinking water and wastewater facilities, includingall equipment and facilities related to water wells, water treatment plants,wastewater treatment plants, treated wastewater irrigation and discharge, shallnot be deemed to be Tribal Commercial Development Projects,

####  

## 3.44         “Trust Land” means lands located within thegeographic borders of Sonoma County and held by the federal government for thebenefit of the Tribe.

 

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# **IV.**                   DECLARATIONS REGARDING THE ONGOING PROJECTS AND THE PETALUMA PROPERTY

#  

## 4.1           TheExisting Casino.  The Tribe has operated the Existing Casinosince September 2002.  It currentlyhouses approximately 1,600 slot machines within approximately 60,000 squarefeet of SprungTM brand domed facilities. It is served by a multi-section parking garage on the Rancheria whichcontains approximately 1,179 spaces. Certain modifications, not including expansion of the facility, may bemade to the Existing Casino as part of the first phase of constructing anddeveloping the Resort Project.

##  

## 4.2           The Resort Project.  The Resort Project involves theconstruction of new resort and casino facilities, including the eventualaddition, through phases, of a total of an approximately 600 room hotel andrelated restaurant, retail and hospitality facilities.  Approximately 260 rooms are scheduled forcompletion during the first phase of development. The Tribe released itsEnvironmental Study, prepared pursuant to its Environmental Ordinance, whichoutlined a two-phase build-out of the Resort Project.  The Environmental Study contains informationthat would be required in a draft TEIR for future Tribal Commercial DevelopmentProjects.  As part of the Resort Project’sconstruction and development, the Existing Casino may undergo certainmodifications or renovations.  Suchmodifications and renovations are included within the meaning of the term “ResortProject” in this Agreement.

##  

## 4.3           The Dugan Project.  In August, 2006, the BIA approvedthe Tribe’s application to place the approximately 18 acre Dugan Property,which is presently owned by the Tribe in fee, into trust for the benefit of theTribe.  The development plan contained inthe fee-to-trust application included the creation of single family homes for Tribalhousing, vineyards, a winery with offices (that can be used as a Tribalcommunity room), a fire station, and a paved access road.  The environmental review process requiredunder the National Environmental Policy Act (NEPA) with respect to placing theDugan Property into trust, including drafting of the Environmental Assessmentand meetings with the County and the public, has been completed.  The Dugan Project includes those projectsshown on Exhibit B.

##  

## 4.4           The PetalumaProperty.  In April 2006, the Tribefiled a fee-to-trust application that sought to have the Petaluma Propertyplaced into federal trust for the Tribe’s benefit.  The trust application was filed under federalprovisions for acquiring land into trust for Tribal governmental gaming purposes.  Pursuant to Section 13, the Tribe hasagreed to suspend the Gaming purposes of the application, which application mayremain pending to serve other uses, including non-Gaming commercial uses andthe development of a mitigation bank.  Ifcertain conditions specified in this Agreement are satisfied, the Tribe hasagreed to permanently forego Gaming on the Petaluma Property.

##  

# **V.**                    ENVIRONMENTAL REVIEW

#  

## 5.1           The Tribe and Countyagree on the importance of conducting an appropriate environmental analysis ofTribal development projects to determine potential off-Reservation adverseenvironmental impacts and, if necessary, appropriate mitigation.  Toward this end, and pursuant to Section 10.8of the Compact, the Tribe enacted the Environmental Ordinance to provide aprocess for determining off-reservation environmental impacts of Tribaldevelopment 

 

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## projects that relate to Gaming Facilities and whether or not they arelikely to cause a Significant Adverse Impact outside the Reservation, and toprovide procedures with respect to such determinations and the possible needfor mitigation.

##  

## 5.2           The environmentalreview process under the Environmental Ordinance has been completed for theExisting Casino and for the Resort Project. In addition, the NEPA process applicable to the Tribe’s application totake the Dugan Property into trust has been completed.  The environmental processes and reports withrespect to the Existing Casino, Resort Project, and Dugan Project (collectively,the “Ongoing Projects”) have been reviewed and commented upon by the County andothers.  Those comments have beenconsidered by the Tribe in accordance with the Environmental Ordinance and thecomment periods in connection with those Projects are now closed.  The Parties agree that any and all furtheractions, if any, to be taken by the Tribe with respect to any environmentalprocesses applicable to the Ongoing Projects are set forth in this Agreement.

##  

## 5.3           Future TribalCommercial Development Projects undertaken by the Tribe on Trust Lands shall besubject, to the off-reservation environmental impact processes set forth inthis Section 5.3, including all subdivisions thereof and the BindingArbitration process set forth in Section 20.2.

##  

### 5.3.1            Future Non-CommercialTribal Projects are not subject to this Agreement.  If the Tribe, in its sole discretion, electsto adopt or follow some or all of the environmental processes set forth in thisAgreement for a Non-Commercial Tribal Project(s), the County shall cooperate ingood faith in timely reviewing and commenting on submissions of reports andstudies to it by the Tribe, and meeting and conferring with the Tribe onmitigation measures at the Tribe’s request. The Tribe’s participation in environmental processes with the Countyunder such circumstances shall not be deemed to be a waiver of the Tribe’ssovereign jurisdiction or immunity unless expressly provided in writing, norshall participation in any process in this Agreement be deemed to constitutesuch a waiver except as expressly set forth and limited in Section 23below.

###  

### 5.3.2            As to TribalCommercial Development Projects, the Tribe shall consider and determine whethersuch projects may potentially cause Significant Adverse Impacts, including in thoseareas identified in Section 5.3.10 c and, if so, shall issue either aTribal Negative Declaration or a Tribal Environmental Impact Report (“TEIR”).

###  

### 5.3.3            The NegativeDeclaration, TEIR and Intergovernmental Mitigation Agreement processes setforth below shall not be applicable to any of the Ongoing Projects.  The negotiations leading to this Agreementand the provisions hereof shall be deemed to satisfy any requirement forenvironmental review, studies, reporting, notice, consultation, mitigation (ifrequired) and other environmental actions that may be required by law oragreement with respect to the Ongoing Projects.

###  

### 5.3.4            The Tribe agrees toincorporate the environmental review provisions applicable to this Agreementinto its Environmental Ordinance with respect to Tribal Commercial DevelopmentProjects that relate to Gaming.  Theenvironmental review provisions of this Agreement applicable to non-gamingTribal Commercial Development Projects shall be 

 

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### included in one or more separate Tribal Ordinances which shall beprovided to the County immediately following enactment.  Notwithstanding such incorporation intoTribal ordinances, the environmental review and dispute resolution proceduresprovided for in this Agreement shall be applicable independently of any suchOrdinance.

###  

### 5.3.5            Except as may beexpressly provided herein, nothing in this Agreement shall be construed to:

###  

#### a.             Supplant or limit theapplication of any otherwise applicable federal law or regulation, includingbut not limited to NEPA; or

####  

#### b.             Confer jurisdictionon the County or the State, or diminish the Tribe’s sovereign powers andjurisdiction, over any Trust Lands; or

####  

#### c.             Supplant or limit thejurisdiction of any federal or State agency.

####  

### 5.3.6            For any TribalCommercial Development Project, the Tribe shall either issue a Notice ofCompletion of a Draft TEIR or a Tribal Negative Declaration.  The Tribe shall consult with the County atthe earliest practicable date, consistent with Section 5.3.7 below, and inany event at least 30 days prior to the issuance of a Tribal NegativeDeclaration or a Notice of Completion of a Draft TEIR.

###  

### 5.3.7            A purpose of theconsultation process is to permit the County to have input into designconsiderations and mitigation measures with respect to Projects and to raiseissues that may be appropriate for an Intergovernmental MitigationAgreement.  Such consultations shall beconfidential to the extent permitted by law and shall be subject to theprovisions of Section 19 of this Agreement.  Nothing in this Section shall eitherlimit the Tribe’s jurisdiction or grant to the County jurisdiction or authorityregarding the design of a Tribal Commercial Development Project orNon-Commercial Tribal Development Project.

###  

### 5.3.8            Tribal NegativeDeclaration Process.

###  

#### a.             If, followingcompletion of an initial study, the Tribe determines that a Tribal CommercialDevelopment Project is not likely to have a Significant Adverse Impact in thoseareas identified in Section 5.3.10(c), the Tribe may prepare a TribalNegative Declaration in lieu of conducting the studies and preparing thematerials required for a TEIR under this Agreement.  The initial study may consist of anenvironmental checklist.  The TribalNegative Declaration shall be circulated for comment to the public, InterestedParties, the County and the State Clearinghouse for thirty (30) days.

####  

#### b.             The Tribe shallconsider any comments received during the 30-day review process and may adoptthe proposed Negative Declaration or a mitigated Negative Declaration if itfinds that, based on the record as a whole, there is no substantial evidencethat the Project will have a Significant Adverse Impact.  The County may request an additional fifteen(15) day extension for further technical review or to prepare and obtainauthorization to issue comments, and such request shall not be unreasonablydenied by the Tribe.  Nothing in this Section 5.3.8(b) shallpreclude the Parties from agreeing to a longer period of time in which to 

 

11

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#### submit comments if such an extension is warranted.  The Tribe shall provide the record and theappropriate environmental document to the County within ten (10) days ofits adoption.

####  

#### c.             The Parties agreethat activities or Projects, such as interior remodeling, redecorating,refurbishment, maintenance or other changes to a facility that do not alter theoverall footprint of the facility, and that adds less than 10% to the totalsquare footage of an interior gaming area, and does not materially change thelook of the facility as seen from off-reservation locations, and any activitiesor Projects that would be exempt under Articles 18 and 19 of the CEQAGuidelines, would not have a Significant Adverse Impact.

####  

#### d.             During the commentperiod for the Negative Declaration, or within such additional time period asthe Parties may agree, the County may, for reasonable cause, initiate theIntergovernmental Mitigation Agreement provisions set forth in Section 5.3.18,and if no agreement can be reached, initiate the dispute resolution processesherein, including the Binding Arbitration provisions.  “Reasonable cause” means that the County hassubstantial evidence that the Tribal Commercial Development Project would resultin a Significant Adverse Impact that will not be mitigated to an impact level,if any, that is less than significant.

####  

### 5.3.9            TribalEnvironmental Impact Report (TEIR). For Tribal Commercial Development Projects that the Tribe has determinedwill have a Significant Adverse Impact, the Tribe shall cause a TEIR to beprepared which analyzes potentially Significant Adverse Impacts, as providedbelow.  The Tribe shall consult with theCounty regarding the scope of the environmental review and consider any recommendationfrom the County concerning the person or entity to prepare the TEIR.

###  

### 5.3.10          The Tribe shallundertake good faith efforts to identify and disclose in the TEIR anySignificant Adverse Impacts that will be caused by the Project.  The TEIR also shall identify ways in whichSignificant Adverse Impacts can be avoided or mitigated to less thansignificant and, where such a result cannot be reasonably obtained, analyze howimpacts can be reasonably minimized, if possible, and shall include a statementsetting forth all of the following:

###  

#### a.             All SignificantAdverse Impacts of the proposed Project;

####  

#### b.             Any SignificantAdverse Impacts that cannot be avoided or mitigated to less than significant ifthe Project is implemented;

####  

#### c.             Mitigation measuresproposed to minimize or avoid Significant Adverse Impacts, including but notlimited to those having an effect on aesthetics, agricultural resources, airquality, biological resources, cultural resources, geology and soils, hazardsand hazardous materials, hydrology and water quality, land use, mineralresources, noise, population and housing, public services, recreation,transportation/traffic, utilities, and service systems;

####  

#### d.             Alternatives to theProject, provided that the Tribe need not address alternatives that would causeit to forego its right to engage in Gaming Activities, or preclude it fromimplementing activities or Projects that have been proposed in a trustapplication approved by the BIA;

 

12

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#### e.             Any CumulativelySignificant Impacts; and

####  

#### f.              Whether the proposedmitigation would be effective to reduce the potential Significant AdverseImpacts to a level of less than significant.

####  

### 5.3.11          In addition to theinformation required pursuant to Section 5.3.10, the TEIR shall alsocontain a statement briefly indicating the reasons for determining, if such isthe case, that the impacts of the Project on the off-reservation environmentare not significant and consequently have not been discussed in detail in theTEIR.  Such a statement can be containedin an environmental checklist and attached as an exhibit to the TEIR.  Any Significant Adverse Impacts shall beclearly identified and described in the TEIR, giving due consideration to boththe short-term and long-term impacts. The discussion of mitigation measures shall describe feasible measureswhich could minimize or avoid the Significant Adverse Impacts.  If a mitigation measure is infeasible, theTEIR must demonstrate the specific economic, technological, legal, or otherconsiderations which make the identified mitigation measure infeasible.  The TEIR must analyze the proposed project asa whole, including activities that the Tribe determines are reasonablyforeseeable.

###  

### 5.3.12          The TEIR shall alsocontain an index or table of contents and a summary, which shall identify eachSignificant Adverse Impact on the off-Reservation environment together withproposed measures that would reduce or avoid that impact.

###  

### 5.3.13          Notice of Preparationand Determination of Scope of TEIR. If it is determined by the Tribe that a TEIR is required for a TribalCommercial Development Project, the Tribe shall issue a Notice of Preparationto the State Clearinghouse in the State Office of Planning and Research (“StateClearinghouse”) and to the County.  TheTribe shall also provide Notice to all Interested Persons.

###  

#### a.             The Notice shallinclude all of the following information:

####  

##### (i)            A description of theProject;

#####  

##### (ii)           The location of theProject shown on a detailed, preferably topographical, map, and on a regionalmap; and

#####  

##### (iii)          The probableoff-Reservation Significant Adverse Impacts of the Project.

#####  

#### b.             The Notice shall alsoinform all Interested Persons of the opportunity to provide comments to theTribe, within thirty (30) days of the receipt of the Notice of Preparation bythe State Clearinghouse and the County, of significant environmental issues,reasonable alternatives, and/or mitigation measures that such persons maycontend should be explored in a draft TEIR.

####  

### 5.3.14          In addition, the Tribeshall meet with the County to assist the Tribe in determining the scope andcontent of the TEIR within fifteen (15) days of such a request by the Countyand such request shall be made within fifteen (15) days of receipt of theNotice.  

 

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### Such scoping meeting between the Parties shall take place within thethirty (30) day comment period unless another date is mutually agreed upon inwriting between the Parties.

###  

### 5.3.15          In addition, the Tribe shall conduct a scopinghearing for Projects of statewide, regional, or area wide significance andprovide public notice of the hearing including written notification toInterested Persons.

###  

### 5.3.16          Notice of Completionof the Draft TEIR.  Upon completionof the Draft TEIR, the Tribe shall submit a copy of the draft TEIR and a Noticeof Completion to the State Clearinghouse and the County.

###  

#### a.             The Notice ofCompletion shall include all of the following information:

####  

##### (i)            A brief description ofthe Project;

#####  

##### (ii)           The proposed locationof the Project;

#####  

##### (iii)          An address where copiesof the draft TEIR are available; and

#####  

##### (iv)          Notice of a commentperiod of at least forty-five (45) days during which the Tribe may receivecomments on the draft TEIR.

#####  

#### b.             The Notice shall alsoinform Interested Persons of the preparation of the draft TEIR and of theopportunity to provide comments to the Tribe within forty-five (45) days of theNotice.  The County may request anadditional fifteen (15) day extension, if such additional time is required forfurther technical review or to prepare and obtain approval of comments, andsuch an extension request shall not be unreasonably denied by the Tribe.  Nothing in this Section shall precludethe Parties from agreeing to a longer extension of time to submit comments ifsuch an extension is warranted.

####  

#### c.             The Tribe shallsubmit seven (7) copies of the draft TEIR and Notice of Completion to theCounty, and the Tribe will serve, in a timely manner, a Notice of Completion toall Interested Persons and to the Healdsburg Public Library.  The Tribe shall concurrently make anelectronic version of the draft TEIR available to the public on itswebsite.  In addition, the Tribe willprovide public notice by at least one of the procedures specified below:

####  

##### (i)            Publication, at leastone time, by the Tribe in a newspaper of general circulation in the areaaffected by the Project.  If more thanone area is affected, the notice shall be published in the newspaper of largestcirculation from among the newspapers of general circulation in those areas; or

#####  

##### (ii)           Direct mailing by theTribe to the owners and occupants of property adjacent to, but outside, theTribal Lands (or proposed Tribal lands) on which the Project is to belocated.  Owners of such property shallbe identified as shown on the latest County assessment roll.

 

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### 5.3.17          Issuance of FinalTEIR.  The Tribe shall prepare andmake available to the County, State Clearinghouse and the public for thirty(30) days a Final TEIR, which shall consist of:

###  

#### a.             The draft TEIR or arevision of the draft;

####  

#### b.             Comments and recommendationsreceived on the draft TEIR either verbatim or in summary;

####  

#### c.             A list of persons,organizations, and public agencies commenting on the draft TEIR;

####  

#### d.             The Tribe’s responseto comments and recommendations from the review and consultation process; and

####  

#### e.             Any other informationadded by the Tribe.

####  

### 5.3.18          Meet and Confer toNegotiate Intergovernmental Mitigation Agreement.  Not later than fifteen (15) days followingthe publication of the Notice of Completion of the Draft TEIR, the Partiesshall commence diligent and good faith negotiations and shall otherwise usetheir respective best efforts, including meeting and conferring, to finalize,approve, execute and deliver an Intergovernmental Mitigation Agreement for theProject.  The primary objective of anIntergovernmental Mitigation Agreement is to provide for binding and mutuallyenforceable agreements which insure the timely mitigation of SignificantAdverse Impacts, where such impacts:

###  

#### a.             Are primarilyattributable to the Project being proposed;

####  

#### b.             Occur outside of thegeographic boundaries of the Tribe’s existing or proposed Trust Lands andwithin the geographic boundaries of the County; and

####  

#### c.             Are within thejurisdiction or responsibility of the County.

####  

### 5.3.19          Binding Arbitration.  If the Parties, after meeting and conferringconsistent with Section 5.3.18 above, have not approved, executed anddelivered an Intergovernmental Mitigation Agreement for a Tribal CommercialDevelopment Project consistent with this Section within thirty (30) daysafter the date of the publication of the Final TEIR, or such other date as theParties may mutually agree in writing, either party may initiate the bindingarbitration dispute resolution processes contained in Section 20.2.

###  

### 5.3.20          As to Non-CommercialTribal Projects, the requirement to enter into a final IntergovernmentalMitigation Agreement or to submit to binding arbitration or a court imposedremedy if an impasse is reached, or otherwise shall not be imposed on theTribe.  If agreement is not reached on anIntergovernmental Mitigation Agreement regarding a Non-Commercial TribalProject, the Tribe retains the right and jurisdiction to proceed with theProject and the County retains the right to oppose the Project.

 

15

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### 5.3.21          Notwithstanding anyprovision to the contrary, the Parties acknowledge that the Tribe is subject tofederal laws and regulations regarding the environment and health and safety,including but not limited to the Clean Water Act, Safe Drinking Water Act,Endangered Species Act, Indian Gaming Regulatory Act, and Occupational Safetyand Health Act, and permit conditions including but not limited to conditionsin any NPDES permits.  The Parties agreethat the matters regulated by these laws, regulations, and permits shall bematters that are solely between the Tribe and the federal agency havingjurisdiction over such statutes, regulations, and permits, and a violation ofsuch statutes, regulations, and permits shall not be considered a violation ofthis Agreement or a required part of an Intergovernmental MitigationAgreement.  Consistent with the above,disputes between the Parties over matters covered by such federal processesshall be resolved, to the extent a process for doing so is provided by law,solely before the federal agency conducting the proceedings and in accordancewith its rules and regulations.  Anydispute or disagreement the County has with the process or its outcome shallnot be subject to the dispute resolution or Binding Arbitration Provisions ofthis Agreement.  Nothing herein shall beconstrued as limiting the Parties’ respective rights to reach agreement on avoluntary basis with each other over such matters outside such federal process,subject to applicable law and the sole discretion of each party as to whetheror not to negotiate or agree on such matters outside the context of the federalprocess itself.

###  

# **VI.**                   ONGOING PROJECT MITIGATION MEASURES

#  

## 6.1           The County and Tribereviewed the Environmental Study prepared by the Tribe for the Resort Projectand the Environmental Assessment prepared by the Tribe regarding the DuganProjects.  The Parties participated in ameet and confer process and utilized those documents to identify measures tomitigate the Significant Adverse Impacts of the Existing Casino, ResortProject, and Dugan Projects which measures are set forth in this Agreement.

##  

## 6.2           The Tribe agrees toimplement the mitigation measures set forth in this Agreement, including Exhibit Aand, pursuant to Section 15, inform the County of the status of theimplementation of such measures. Mitigation reports shall include the information required by thisAgreement and be in a form substantially similar to Exhibit A.

##  

## 6.3           NPDES Permits.

##  

### 6.3.1            Based upon thewastewater mitigation measures contained in Exhibit A, and otherprovisions of this Agreement, the County shall dismiss with prejudice itspetition for review of the Tribe’s NPDES permit issued on April 30, 2007.

###  

### 6.3.2            The County furtheragrees that it shall not file suit or otherwise seek to challenge a futureNPDES permit application by the Tribe for the Resort Project if all of thefollowing conditions are satisfied:

###  

#### a.             The Tribe hassubmitted a discharge plan prepared by a registered engineer during thepermitting process that the EPA has accepted by approving the NPDES permit andthat such a plan is feasible.  As usedherein, “feasible” shall mean that during the time period for considering suchcomments by the EPA, the Tribe has provided a discharge plan that includes:

 

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##### (i)            An operational historyof the existing facility that documents the rated disposal capacity of theon-site storage and disposal system;

#####  

##### (ii)           For internal reuse oftreated wastewater (in cooling towers, toilets/urinals, etc.), a reasonableestimate of potential internal reuse and documentation supporting thatestimate;

#####  

##### (iii)          For discharges to StreamP1, an estimate based upon accepted professional standards of the amount ofwater the stream can accommodate without resulting in a significant increase inerosion, and documentation supporting that estimate;

#####  

##### (iv)          For discharges tovegetation:

#####  

###### (1)           the location, size in acres, and slope ofeach potential discharge area;

######  

###### (2)           the plant species in each potentialdischarge area;

######  

###### (3)           an estimate of the irrigation needs of eachpotential discharge area;

######  

###### (4)           documentation supporting that estimate,including calculations based on the California Department of Water Resources’ *Guide to Estimating Irrigation Water Needs of Landscape Plantings inCalifornia* or similarly accepted scientific literature; and

######  

###### (5)           the location and design of runoff controlstructures.

######  

##### (v)           For storage of treatedwastewater, a water balance calculation, based upon accepted professionalstandards, that identifies the volume of storage and discharges to irrigationand surface water on a monthly basis and documentation supporting thatcalculation;

#####  

#### b.             The permit is notopposed by any federal agency;

####  

#### c.             The permit is notopposed by the State Regional Water Quality Control Board and it has notdetermined that such a permit violates the Water Quality Control Plan for theNorth Coast Region (the “Basin Plan”);

####  

#### d.             The plant treatmentcapacity does not exceed 500,000 gallons per day;

####  

#### e.             The EnvironmentalProtection Agency determines that the proposed permit is in compliance with theClean Water Act; and

####  

#### f.              The proposedwastewater treatment plant will meet Title 22 of the California Code ofRegulations for disinfected tertiary recycled water.

 

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# **VII.**                 ALCOHOL LICENSE AND EMERGENCY ACCESS ROAD

 

## 7.1           The Parties agree to stipulate that the licenseconditions contained in Exhibit D shall be incorporated into the alcohollicense for the Existing Casino, to the extent approved by the CaliforniaDepartment of Alcoholic Beverage Control (“ABC”).  The Parties further agree that each of theconditions contained in Exhibit D are separately enforceable by theParties as to the Existing Casino under the dispute resolution terms of thisAgreement, including Section 20, whether or not any such specificcondition is included as part of an ABC license as to the Existing Casino.  The Parties further acknowledge that thefinancial and other commitments made by the Tribe are based upon the likelihoodthat, if the Protests are withdrawn, an ABC license will issue to the Tribe.

##  

## 7.2           Based upon thisAgreement, including the conditions set forth in Exhibit D, within five (5) daysof the Effective Date and/or County’s written acceptance of the EmergencyAccess Road Plans, whichever last occurs, the County shall withdraw itsprotests to the Tribe’s pending alcohol license application, and make goodfaith efforts to persuade others to withdraw their protests.  If the ABC does not grant the Tribe analcohol license, including interim or temporary license, on or before July 30,2008, if the delay is due to factors beyond the Tribe’s control, the meet andconfer and arbitration provision of Section 26.5 of this Agreement shallapply without the requirement that there be a determination of invalidity ormaterial change.  Notwithstanding theabove, the payments due under Section 16.4.3 shall not be affected.

##  

## 7.3           The Emergency AccessRoad Plans shall provide that the Emergency Access Road shall be a pavedsecondary emergency vehicle access road connecting SR 128 to the Rancheriacontaining a 15% or less grade throughout its length.  The required plans shall include an approvedfloating construction schedule, with significant construction milestones,demonstrating the amount of time needed to complete the road, from theinitiation of construction, along with a cost estimate based upon industrystandards.  Acknowledgement that theconditions of this Section have been satisfied shall be reflected in awriting by the County, which shall not be unreasonably denied or delayed.  The Emergency Access Road Plans may beamended pursuant to a written agreement of the Parties.

##  

## 7.4           The Tribe agrees tocommence construction of the Emergency Access Road pursuant to the EmergencyAccess Road Plans accepted by the County within sixty (60) days of the DuganProperty going into trust, or upon a time mutually agreed to by the Parties inwriting, and to complete construction within 365 days (“Road Completion Date”).  If the date to start such construction fallswithin the rainy season as determined by NOAA Fisheries, the date to startconstruction shall be extended to 30 days following the end of the rainy seasonas determined by that agency, and the Road Completion Date shall be extended bya like amount.  The time frame tocomplete construction also shall be extended for a reasonable period, uponnotice to the County, due to any other delays not within the control of theTribe, but the County may invoke the dispute resolution process if it disagreeswith the need for such extension.

##  

## 7.5           The Tribe shall beresponsible for complying with the accepted Emergency Access Road Plans.  If the Tribe requests technical assistance orotherwise consults with County regarding the construction of the EmergencyAccess Road, it shall pay standard fees typically imposed by the County forinspection-related services.

 

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## 7.6           The County shallperform a final inspection of the Emergency Access Road improvements to verifythat the construction is materially consistent with the agreed upon EmergencyAccess Road Plans, and the Tribe hereby grants the County permission to enterthe Rancheria and any Tribal Trust Lands or other lands upon which theEmergency Access Road is to be constructed, to perform any necessaryinspections authorized under this Section.

##  

## 7.7           This Agreement and thepreceding subsections assume that the Emergency Access Road will be constructedon the Dugan Property, but that the County shall not unreasonably withhold itsapproval of a request by the Tribe to construct the Emergency Access Road atthe Alternative Road Site, provided that a set of completed plans are submittedto and accepted by the County, which acceptance shall not be unreasonablywithheld, and that the Emergency Access Road can be constructed on theAlternative Road Site by the Road Completion Date, or such other date to whichthe Parties may agree.  If the land isnot in trust, the Tribe shall apply for appropriate permits which the Countyagrees to process on a reasonable basis. The County shall cooperate with theTribe in the processing of such permits.

##  

## 7.8           The Tribe agrees toconstruct the Emergency Access Road at its sole expense.  No later than sixty (60) days followingFinancing or 15 days prior to commencing construction, whichever comes first,the Tribe shall create a “Construction Assurance Device,” either in the form ofa completion bond or a cash deposit into an escrow account as provided below,to guarantee construction of the Emergency Access Road in accordance with theaccepted Emergency Access Plans.  TheTribe shall be responsible for any costs associated with the ConstructionAssurance Device.  The purpose of theConstruction Assurance Device shall be to assure the availability of funds tothe County to build or complete the road or to remediate any material deviationfrom the agreed upon Emergency Access Road Plans.  If the County determines that the Tribe hasdefaulted or is about to default on its Emergency Access Road constructionobligations under this Agreement, it shall notify the Tribe in writing of thatfact and provide the Tribe with a reasonable opportunity to cure the allegeddefault.  If the matter has not beencured, or the Tribe disputes the need to cure or otherwise take correctiveaction within such reasonable time, the County may notify the Tribe of theCounty’s intent to utilize the Construction Assurance Device.  If the Tribe objects, it shall notify theCounty within seven (7) business days and initiate the dispute resolutionprocess of this Agreement, which process shall be completed prior to a demandon the Construction Assurance Device.

##  

### 7.8.1            The Tribe warrantsthat it has conducted a construction estimate of the road consistent withindustry standards and that a reasonable estimated cost of the Emergency AccessRoad is Thirteen Million Five Hundred Thousand dollars ($13,500,000) ifconstructed in the location now designated on the Dugan Property, and suchamount, plus 7%, shall be the principal amount of funding the ConstructionAssurance Device, provided that such estimated cost may be revised upwards ordownwards in accordance with Section 7.8.5 below.

###  

### 7.8.2            The Tribe agrees toexpeditiously take all necessary steps to work with the County and BIA to havethe Dugan Property taken into trust at the earliest possible date so thatconstruction work on the Road can begin as soon as possible following theEffective Date and Financing, or, if applicable, to expedite the submission andapproval from the County of plans for an Emergency Access Road on theAlternative Road Site.

 

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### 7.8.3            County approval of theEmergency Access Road on the Alternative Road Site shall be based on asufficient Construction Assurance Device being provided by the Tribe withrespect to the completion costs for constructing the road and appropriateassurances as to its equivalency in terms of safety and time for constructioncompletion as compared to the Emergency Access Road proposed for the DuganProperty.

###  

### 7.8.4            Within thirty (30)days following acceptance of the Dugan Property into trust, an escrow accountshall be set up pursuant to the Form of Escrow Instructions attachedhereto as Exhibit E or a Bond substantially in the form of the Bondattached hereto as Exhibit F.  TheTribe shall be responsible for any cost associated with the setting up ofeither Construction Assurance Device. Within such a time period the Tribe and the County shall agree upon alicensed and independent escrow agent and shall execute and deposit theinstructions into escrow or with a licensed and independent surety.  Within ten (10) days after opening ofthe escrow or within ten (10) days of the agreement on the surety, theTribe will deliver to the County a written budget setting forth in reasonabledetail the anticipated costs of constructing the Emergency Access Road (“Budget”)which shall include a description of costs by construction milestones.  The County shall have ten (10) days fromreceipt of the Budget to reasonably approve or reject the Budget.  The Budget amount, as finally approved (ornot disputed) by the County shall be the final estimated cost of the EmergencyAccess Road, and such amount shall constitute the principal amount to bedeposited into the escrow account for release to contractors and materialmen inaccordance with the Escrow Instructions or the principal amount of thecompletion bond.

###  

### 7.8.5            In addition to theBudget amount, a contingency reserve of 7% of the final Budget amount shall bedetermined as the required contingency amount, subject to adjustment asnecessary as provided below and in Exhibit E,, unless a Bond is providedas set forth in Section 7.8.6 below. The contingency reserve shall be deposited into the escrow account alongwith the Budget amount.  The total amountdeposited in escrow shall be termed the Construction Completion Account”.  If either party determines a need to readjustthe amount of the Bond or the Construction Completion Account in material partat some later date, it shall submit a proposal to do so to the other party,together with the reasons therefore, and the other party shall have ten (10) daysin which to approve such revision, which approval shall not be unreasonablywithheld.  Substantial progress inconstruction, or in savings from the original approved Budget, thereby loweringthe remaining cost of completion, may be reasons for seeking a reduction of theBond or Construction Completion Account. Similarly, cost overruns or increased costs of construction materials orlabor may be reasons for seeking an increase in the Bond or ConstructionCompletion Account.  If the Budget isreduced or increased, the portion of the Account or of the Bond representingsuch contingency amount shall be reduced or increased pro rata to such change.

###  

### 7.8.6            The principal amountof the Construction Assurance Device shall either be secured by a Bond, or inlieu thereof deposited into the Construction Completion Account.  The Escrow Instructions (Exhibit E),direct the escrow agent to disburse amounts from the Construction CompletionAccount to the Tribe or its designated contractors, vendors or consultants, totimely meet payments due in connection with the construction of the EmergencyAccess Road.  The Escrow Instructionsalso shall provide that the Construction Completion Account shall be availableto the County, if the Tribe defaults or otherwise does not meet its 

 

20

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### construction obligations, so that the County can obtain the funds asnecessary to complete the work either by its own forces or through the use ofcontractors.  The Tribe shall ensure thatthe account balance, until construction is completed, shall be no less thanthat necessary to complete the Emergency Access Road plus not less than 7%above such amount to cover any cost overruns or contingencies, provided thatuntil the County has inspected and approved the final construction as being inaccordance with this Agreement, the balance in the account shall not be lessthan 7% of the overall budget for construction. The County shall be permittedto monitor and audit the account at any time during construction to ensurecompliance with the goals of this paragraph.

###  

### 7.8.7            The ConstructionCompletion Account shall remain on deposit, or in lieu thereof, the Bond shallremain in effect, until the Emergency Access Road has been completed andapproved in writing by the County, which approval shall not be unreasonablywithheld, immediately following which all remaining funds on deposit in theAccount after paying final amounts due to contractors shall be returned to theTribe, and if there is a Bond in place, all necessary steps shall be taken toterminate the Bond.

###  

## 7.9           In the event that theEmergency Access Road improvements are not substantially completed within theapproved time frames and in conformance with the plans and specificationssubmitted to and accepted by the County, or there is otherwise a default inthese construction obligations under this Agreement, and the County makes ademand on the Construction Assurance Device after conclusion of the disputeresolution process (if instituted), in addition to any other remedy availableby law or equity, the Tribe expressly authorizes the County and/or its or itsor the surety’s contractors to enter the Dugan Property or any other sitedesignated for construction of the approved Emergency Access Road for thepurpose of constructing said road and completing such work.  In the event of such a default by the Tribeand the County’s or surety’s subsequent conduct of such construction, the Tribeshall fully reimburse the County for all costs incurred in connection with anyremedy of the default including but not limited to materials, labor costs,engineer costs, expenses, attorney fees, expert fees, and other reasonablecosts and expenses not covered by the Construction Assurance Device’sproceeds.  If provided for under theterms of the Construction Assurance Device, any excess proceeds from theConstruction Assurance Device may be used to reimburse the Tribe for anyEmergency Access Road construction expenses it incurred.

##  

# **VIII.**                LAW ENFORCEMENT SERVICES

 

## 8.1           Sonoma County Sheriff’s Department Service.

##  

### 8.1.1            The Sheriff’sDepartment (“Sheriff”) shall continue to provide general law enforcementservices to the Reservation, particularly with respect to Gaming Operations andGaming Facilities, and recognizes the need for possible increased services inthe future.  These Sheriff Departmentservices include, but are not limited to, deputy availability for crimeprevention and the prompt investigation, detention, interrogation, removal andpossible prosecution of individuals suspected of committing crimes, includingbut not limited to offenses related to Gaming Operations on the Reservation, aswell as other services to protect the safety of the public as provided forpursuant to Public Law 280.

 

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### 8.1.2            The Sheriff’sDepartment shall not provide gaming security, or enforcement of Tribal laws,provided that nothing herein is intended to diminish, and in fact is intendedto reinforce, the prosecution of anyone engaged in criminal conduct, such astheft, embezzlement and fraud, or any criminal activity generally that mayoccur in, near or related to a Tribal Gaming Facility or on the Reservation.

###  

### 8.1.3            Nothing in thisAgreement, or other contract with the Sheriff, is intended or shall beconstrued to expand or limit the jurisdiction of the County and Sheriff beyondthat which would be exercised pursuant to Public Law 280.  Nothing in this Agreement or other contractwith the Sheriff is intended, or shall be construed, to expand or limit thejurisdiction of any Tribal law enforcement agency beyond that which would beexercised pursuant to applicable law.

###  

## 8.2           Tribe Provided Services.

 

### 8.2.1            The Tribe agrees toprovide an adequate level of security personnel at the Gaming Facilities, whoshall be on duty during all hours of operations.  The Tribe shall seek input and will consultwith the Sheriff’s Department in determining the reasonable level of securitystaffing for all Tribal Gaming Facilities. Nothing in this Agreement or other contract with the Sheriff is intendedor shall be construed to give the County or Sheriff the right to decide theadequate level of Tribal security personnel. Nothing in this Section, however, is intended to conflict or supersedethe provisions of Exhibit D related to minimum levels of securitystaffing.

###  

### 8.2.2            The Tribe shall providespace of reasonably adequate size to allow Tribal Security and Sheriff’sDepartment personnel to conduct necessary law enforcement activities ascontemplated herein in connection with the investigation, detention,interrogation, report writing, file storage, secure computer access, andremoval of suspected offenders and processing of evidence.  The Sheriff and Tribal authority, including,but not limited to, the Gaming Commission and Tribal Security, shall mutuallycooperate on a government-to-government basis, as set forth below, inconducting law enforcement activities.

###  

### 8.2.3            The Tribe shallprovide for any additional radio communications equipment that may bereasonably needed for public safety purposes (e.g., signal repeaters), asjointly determined by the Tribe and the Sheriff, consistent with the Tribe’sgaming security requirements and applicable law.  The Tribe shall also work with the Sheriff toprovide a suitable location for emergency helicopter landings on theReservation in connection with the Sheriff’s services.  The Sheriff will cooperate with the Tribe tohelp obtain any necessary permits or other qualifications for the emergencylanding zone.

###  

## 8.3           County Services.

 

### 8.3.1            Pursuant to thisAgreement, the County agrees to provide an adequate level of law enforcementservice to the Reservation, as determined by the Sheriff in consultation withthe Tribe, including timely response to security needs.  The Tribe shall not be liable for the directpayment of any salaries, wages, or other compensation to any County personnelperforming services for the County except for the reimbursement of specialevent services provided under separate contract or fee schedule.

 

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### 8.3.2            The Parties shalldevelop procedures addressing the interface between the Tribe, Sheriff, and theSonoma County District Attorney’s Office (“District Attorney”) to aid in theprovision of law enforcement services under Public Law 280, includingprocedures regarding interaction between the Sheriff’s Department and Tribalsecurity personnel, the proper handling and preservation of evidence(particularly with respect to the preparation and protection of surveillancetapes), service of process in criminal proceedings, preparation of incidentreports, witness statements, and patrol and arrest procedures.

###  

### 8.3.3            The Sheriff and Tribeshall cooperate in good faith to resolve any conflict between the Sheriff’s andTribe’s procedures; however, the Sheriff retains the final authority to determinehow any procedural conflicts pertaining to matters strictly within its criminaljurisdiction under Public Law 280 shall be resolved.  Such resolution shall serve the purposes andpolicies of Public Law 280 and this Agreement. Similarly, the Tribe retains the final authority to resolve any internalprocedural conflicts pertaining to matters strictly within itsjurisdiction.  Such resolution shallserve the purposes and policies of applicable laws and this Agreement.

###  

### 8.3.4            If requested by theSheriff or Tribe, a Memorandum of Understanding (MOU) may be entered into byand between the Sheriff and Tribe to establish a protocol addressing theprovision of services under this Agreement. No such MOU shall have the effect of amending this Agreement unless an amendmentto this Agreement is approved in writing by the Tribe and the County Board ofSupervisors.  In the event of anyinconsistency between the terms of such an MOU and the terms of this Agreement,the terms of this Agreement shall prevail.

###  

## 8.4           Supplemental Security Services.

 

### 8.4.1            At the Tribe’s request, the Sheriff may agreeto provide extra law enforcement services for special events andfunctions.  The County shall bill theTribe under separate contract for the cost of such services.  All Sheriff services provided for specialevents shall be billed at rates established by the County for special securityservices and paid within thirty (30) days of receipt of any invoice.

###  

### 8.4.2            Should the Sheriffincur extraordinary expenses in connection with a response to a significant andunplanned incident relating to the Resort Project or other Gaming Operations onthe Rancheria that involves criminal activity and requires efforts that arebeyond the range of typical emergency law enforcement response, the Tribe andthe Sheriff shall negotiate in good faith for reimbursement of Sheriff’sreasonable and necessary extraordinary expenses incurred in connection withsuch incident.  Such reimbursement shallnot include payment of any claims for personal injury associated with theincident.

###  

# **IX.**                   PROSECUTION

 

## 9.1           The District Attorney will prosecute violations ofcriminal law on Tribal Lands to the extent consistent with Public Law 280,except for prosecutions under the jurisdiction of the federal Department ofJustice or a tribal court, provided that concurrent jurisdiction therewithshall not lessen the District Attorney’s authority or duties with respect to 

 

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## such prosecutions. Nothing in this Agreement is intended or shall be construed to expand orlimit the jurisdiction of the County and/or District Attorney beyond that whichwould otherwise be exercised pursuant to Public Law 280.

##  

## 9.2           The Tribe shall identify the Tribal officials withwhom the District Attorney shall coordinate all such prosecutions so that theymay be carried out as effectively as possible. The District Attorney shall review all complaints referred by the Tribe,but all prosecutorial decisions and strategies as to County prosecutions shallbe exclusively within the discretion of the District Attorney.  Subject to applicable federal and Tribal law,the Tribe shall cooperate with District Attorney investigators in thecollection of evidence, service of process, obtaining of witness statements,and providing assistance to investigators to facilitate the prosecution of allcriminal cases that are within the District Attorney’s jurisdiction that mayoccur in, near or related to a Tribal Gaming Facility or on the Reservation.

##  

# **X.**                    FIRE AND EMERGENCY SERVICES

 

## 10.1         Cooperation Agreement.

 

### 10.1.1          The Parties acknowledgethat the Tribe’s development, construction, operation and maintenance ofProjects on Tribal lands, including Ongoing Projects and Tribal CommercialDevelopment Projects, require fire protection and emergency response services.

###  

### 10.1.2          The Tribe and the SonomaCounty Department of Emergency Services (“County Fire”) shall cooperate on agovernment-to-government basis to promote public safety and to provide theTribe with the opportunity to benefit, on a voluntary, non-jurisdictionalbasis, from the constructive suggestions County personnel may have with respectto fire issues, and to share expertise to maximize public and emergencypersonnel safety.  Such cooperation shallinclude the Tribe allowing fire safety inspections (and re-inspections),building plan review, and emergency services by County Fire for ReservationProjects.  These activities shall occursubject to and in accordance with the County/Tribe Fire Protocol (“FireProtocol”) attached as Exhibit G.

###  

## 10.2         County Fire also will be informed of, and mayparticipate in, Tribal inspections as allowed for the State under Compact Section 6.4.2.

##  

## 10.3         The inspections and plan review contemplated in thisAgreement shall be conducted subject to the Fire Protocol.  Nothing in the Agreement shall be construedto give any non-Tribal entity, including County or County Fire, jurisdictionover the Tribe or Tribal Commercial Development Projects on Tribal Trust Land,or over building and safety code application, interpretation, inspections anddeterminations by the Tribe (subject to oversight by the State of Californiaand National Indian Gaming Commission as to the Tribe’s Gaming Facility).

##  

## 10.4         Building and Fire Safety Standards.

 

### 10.4.1          The Tribe shall complywith the most current adopted editions of building and fire codes in effect atthe time of construction of a Tribal Commercial Development Project, as adoptedby the Tribe as Tribal law, which for Phase I of the Resort Project include 

 

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### California Building Code 2001 (CBC), Dry Creek Rancheria High-riseBuilding and Breathing Air Standards, California Fire Code 2001 (CFC),California Mechanical Code 2001(CMC), California Plumbing Code 2001 (CPC),California Electrical Code 2001 (CEC), California Disabled AccessibilityGuidebook (CALDAG) 2003, California Elevator Code 2001, NFPA 13 (Standard forthe Installation of Sprinkler Systems) 1999 Edition, NFPA 14 (Standard for theInstallation of Standpipe Systems and Hose Systems) 2000 Edition, NFPA 20(Standard for the Installation of Stationary Pipes for Fire Protection) 1999Edition, NFPA 22 (Standard for Water Tanks for Private Fire Protection) 1998Edition, NFPA 72 (National Fire Alarm Code) 1999 Edition, CBC Standard No. 10-1(Selection, Installation, Inspection, Maintenance and Testing of Portable FireExtinguishers) 2001 Edition, CBC Standard No. 10-2 (StairwayIdentification) 2001 Edition, California Code of Regulations, Title 19, PublicSafety and California Code of Regulations, Title 24 (California ReferencedCode) 2001 Edition, unless inconsistent with applicable law, including the 1999Uniform Building Codes and related uniform codes as provided in theCompact.  In addition, the Tribe shallgive good faith consideration to voluntary adoption of such reasonable, andeconomically feasible, County amendments or supplements to said codes as Countymay reasonably propose.  Notwithstandingthe foregoing, the Tribe need not give good-faith consideration to any Countystandard that solely applies, in name or fact, to Tribal facilities or todevelopment on Tribal land.  Nothing inthis Section shall be construed to grant to the County, or to limit theTribe’s, authority or jurisdiction with respect to such codes or any matterrelated directly or indirectly thereto.

###  

### 10.4.2          The Parties acknowledgethat recent court decisions have confirmed that the County does not have firecode enforcement authority on the Reservation or BIA 93 under Public Law 280,or any other applicable law, and nothing in this Agreement, including the FireProtocol, is intended to or may be interpreted as effecting any change in thisarea.  Nonetheless, as part ofgovernment-to-government consultations, and subject to the background checkingand protection of documents and proprietary information regarding secure areasof any Gaming Facility set forth in the Fire Protocol or above, the Countyshall be permitted by the Tribe to inspect and review Tribal CommercialDevelopment Projects and review plans consistent with and pursuant to the termsspecified in this Agreement, including the Fire Protocol, provided that Countyinspection or review of residential Tribal Commercial Development Projectsshall not take place following occupancy.

###  

### 10.4.3          Prior to the occupancyof any building of the Resort Project or any future proposed Tribal CommercialDevelopment Project, the Tribe shall provide to the County a certificate issuedby a qualified Tribal Building Official attesting that the subject improvementscomply with the applicable codes.  TheTribe will consider, on a voluntary but not jurisdictional basis, reasonableand feasible suggestions, as determined by the Tribe in its sole discretion,made by County Fire personnel intended to increase fire safety at and aroundTribal Commercial Development Projects. However, pursuant to applicable law, the Compact and recent courtdecisions, the County does not have jurisdiction or authority over the design,development and/or construction of improvements on trust land or to make codedeterminations or undertake enforcement actions of any potential code violationrelated to such improvements.

###  

### 10.4.4          The activities and theterms of this Section 10 and the Fire Protocol are subject to the meet andconfer process set forth in Section 20.1 of this Agreement but are notsubject to binding arbitration, except for, (1) an alleged failure by theTribe to permit the 

 

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### inspections of facilities or review of Tribal building plans inaccordance with this Agreement and the Fire Protocol, (2) a disagreementbetween the Tribe and County regarding whether a consultant has a conflict ofinterest under Section I.D. of the Fire Protocol, and/or (3) analleged failure by County Fire to adhere to the terms and conditions of thisAgreement and the Fire Protocol, which are subject to the dispute resolutionprocess. provided in Section 20.2 below. In any such proceedings an arbitrator’s remedies include the award ofmonetary damages or equitable relief. The Tribe’s compliance with the applicable building and safety codes,regulations, guidelines, or Compact provisions and any safety concernsdiscussed in this Section 10 and the Fire Protocol shall not be subject tobinding arbitration under 20.2.

###  

### 10.4.5          Any disagreementsarising out of or in connection with any inspection or plan review contemplatedin this Agreement shall be addressed through the good faith meet and conferprocess outlined in the Fire Protocol. Given the Tribe’s exclusive jurisdiction under the recent courtdecisions, applicable law and Compact in this area (and which is subject toState and Federal oversight and dispute resolution mechanisms), suchdisagreements are not subject to the arbitration provisions of this Agreement.

###  

## 10.5         Tribe’s Pre-ExistingAgreement with Geyserville Fire Protection District.  The Tribe has provided for essential fire andemergency service needs, including first response services, and has mitigatedfire-related off-Reservation impacts related to the Casino, in part throughseparate agreement with the Geyserville Fire Protection District.  Nothing in this Agreement, including the FireProtocol, is intended to or may be interpreted as altering or effectingGeyserville Fire Protection District’s agreement with or services to the Tribe.

##  

## 10.6         Future On-ReservationTribal Fire Station. The Tribe’s fee-to-trust application for the DuganProperty includes a plan for a fire station. If, at the Tribe’s sole discretion, such a station is built on the DuganProperty, Reservation, or any other Tribal Trust Land, the Tribe shalldetermine whether County Fire services differing from those contemplated inthis Agreement are desirable and, if so, shall consult with County Fireregarding the provision of fire services for such a facility.

##  

## 10.7         General Fire ServiceProvisions.

##  

### 10.7.1          Roads and DevelopedAreas.  Subject to applicable law,including IGRA and the Compact, the Tribe agrees to comply with its fire safestandards with respect to all roads and developed areas covered by suchstandards as a matter of Tribal law.

###  

### 10.7.2          Other Aid Agreements.  The Parties recognize that there areautomatic aid and mutual aid agreements for fire and emergency services inSonoma County, under which the County provides hazardous material response tothe Reservation, and is responsible for central dispatch services, as well asother command/support and disaster preparedness functions.  The increased need for fire protection andemergency services required for the Resort Project may have an impact on thoseagreements and services and may require additional training and/or services.

###  

### 10.7.3          EmergencyPreparedness Plan.  The Tribe has inplace an emergency preparedness plan that addresses evacuation and accessissues.  The Plan and any updates shall 

 

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### be made available to the County for informational purposes and theCounty and Tribe shall consult and coordinate services to further develop thePlan and to prepare to respond to any emergency at the Casino.

###  

### 10.7.4          Hazardous Materials.  The Tribe shall consult with the SonomaCounty Department of Emergency Services regarding the use, storage, disposal,and transportation of any and all hazardous materials to be used by any OngoingProject or Tribal Commercial Development Project.  Nothing in this Agreement shall expand theCounty’s jurisdiction regarding regulation of hazardous materials.

###  

## 10.8         Based upon thecommitments made by the Parties in the Fire Protocol, and the other terms ofthis Agreement, the County shall not file a writ of certiorari or take anyother additional appeals or actions with respect to the litigation of In thematter of the Sonoma County Fire Chief’s Application for an Inspection Warrant.

##  

## 10.9         Public Health.  The Tribe shall continue its duty to enforceenvironmental health standards under applicable law and its Compact,specifically including Compact Sections:

##  

### 10.9.1          10.1 (public health,safety and welfare);

###  

### 10.9.2          10.2(a) (publichealth standards for food and beverage handling);

###  

### 10.9.3          10.2(b) (waterquality and safe drinking water standards);

###  

### 10.9.4          10.2(e) (workplaceand occupational health and safety standards);

###  

### 10.9.5          10.2(f) (publichealth and safety);

###  

### 10.9.6          10.4 (emergency fire,medical, disaster services); and

###  

### 10.9.7          10.6 (prohibitionagainst firearms).

###  

## 10.10       Pursuant to and consistentwith the Compact, the Tribe shall provide for inspection by federal or stateinspectors of all commercial food and beverage operations and swimming poolsand spas in connection with the Existing Casino and Resort Project on a regularbasis.  The Tribe shall provide theCounty copies of all such inspection reports. In lieu of federal or state inspections, the Tribe may, in its solediscretion, elect to contract with the County to provide such services, forstandard and reasonable fees, and the County shall provide such services.  If the Tribe elects to continue to obtainfederal or state inspections, but they are not conducted on a regular basis,then following notice and an opportunity to have any dispute with regard tosuch matter determined through the dispute resolution provisions herein, theCounty may seek to have such inspections conducted by County Health Departmentinspectors, who shall apply the standards set forth under applicable law.  The Tribe shall pay standard and reasonableCounty Health Department fees to the County for such inspection services.  Inspections shall take place during normalhours of operation.  The Tribe shallconsider any recommendations by the County regarding such matters.  Notwithstanding such County inspections, andregardless of whether conducted at the Tribe’s request or through disputeresolution provisions, nothing in this Agreement gives or shall be construed togive the County 

 

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## jurisdiction over food and beverage operations or swimming pools andspas, or to alter the Compact’s jurisdictional allocation on these issues.

##  

# **XI.**                   SOCIOECONOMIC CONDITIONS

 

## 11.1         The Sonoma County HumanServices Department (“Department”) and the Tribe shall work together to helpidentify and refer potential qualified applicants for employment at the Tribe’sgaming related facilities.  The Tribeshall transmit copies of job postings and announcements for its gaming andother facilities to the Department, and the Department will cause the same tobe posted and distributed in the same manner as job postings and announcementssubmitted by other outside employers. The Tribe also shall work in good faith with the Department to employqualified participants in the County’s welfare program at the Tribe’s gamingrelated facilities.  Such qualificationsmay, at the Tribe’s discretion, include passing any necessary background checksand the ability to obtain any required gaming licenses.  Notwithstanding anything herein to thecontrary, the County acknowledges that an important congressional goal underIGRA is to encourage Tribal member and Indian job training and employment, andthat the Tribe maintains the right to enforce its Tribal Employment RightsOrdinance (TERO) and exercise Tribal and Indian preferences to the extentpermitted by law.

##  

## 11.2         The Department shall workwith the Tribe to identify job and other relevant training to eligible Tribalmembers attempting to make the transition from unemployment to employment.

##  

## 11.3         The Tribe shall make goodfaith efforts to assist Gaming Facility employees in meeting their child careneeds while working at the Gaming Facility, either through on-site or off-sitecare, direct employee benefits, or providing assistance to expand capacity oflocal childcare center(s).

##  

## 11.4         The Tribe shall adopt andcomply with standards that are no less stringent than state laws prohibiting agaming enterprise from cashing any checks drawn against Social Security,unemployment insurance, disability benefits, or public assistance payments.

##  

# **XII.**                 DUGAN PROPERTY

 

## 12.1         The County and State ofCalifornia Department of Conservation (“DOC”) have appealed a decision by theBIA to take the Dugan Property into trust for the Tribe, based in part uponCalifornia Government Code Section 51256, et seq., and the contention thatthe Tribe’s proposed uses would conflict with the Williamson Act contract onthe land, which requires agricultural related use of the property.  The BIA and Tribe contend that the contractis invalid when the land goes into trust.

##  

## 12.2         The Tribe agrees that itwill not construct any Gaming Facilities or conduct Gaming Activities(including Class II or III gaming under IGRA), or provide parking forGaming Facilities, on the Dugan Property. Construction or use of the Emergency Access Road on the Dugan Propertyshall not be deemed to be a violation of this Section.

 

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## 12.3         Williamson ActRescission and Creation of Conservation Easement.

##  

### 12.3.1          To resolve theWilliamson Act contract dispute the Tribe shall request that the County andState approve rescission of the Dugan Property Williamson Act contract in favorof an easement exchange and other public benefits pursuant to Government Code Section 51256.  The Tribe will also submit a request fornon-renewal of the Williamson Act contract. The Tribe shall proceed in good faith to submit, in a timely manner, allappropriate environmental documents and appraisals necessary for considerationof such an easement exchange by the Board of Supervisors or shall pay theCounty to contract for such documents to be prepared.  The Tribe will take all necessary steps forthe rescission request to be considered in a timely manner.

###  

### 12.3.2          Immediately followingthe Tribe’s submission of its requests to rescind and not renew the DuganProperty Williamson Act contract and the submission of this Agreement to theDOI as provided for in Section 25, the County and the DOC shall withdrawtheir IBIA appeal, with prejudice, of the BIA decision to take the DuganProperty into trust.

###  

### 12.3.3          The withdrawal by theCounty and the DOC of their appeals, and forbearance in making any furtherobjections regarding the Dugan Property Williamson Act contract, shall bewithout prejudice to the County or the DOC, or either, from being able to takea contrary position as to any other property.

###  

### 12.3.4          The public benefits tobe provided by the Tribe in connection with a Williamson Act rescission includebut are not limited to the following:

###  

#### a.             Providing theEmergency Access Road to the Rancheria at the Tribe’s sole expense; and

####  

#### b.             Resolution oflitigation with the County and the DOC in which the validity of a WilliamsonAct contract following the acceptance of the land into trust was at issue.

####  

### 12.3.5          Pursuant to GovernmentCode Section 51256 and this Agreement (but without subjecting the Tribe tothe jurisdiction or application of such Code as to any other property), theTribe has agreed to dedicate a perpetual agricultural and open space easementon at least 90 acres of the Petaluma Property (“Conservation Easement”), asdescribed in Exhibit H, or in another location approved by County,limiting uses of the land to agricultural, open space, and/or wetlandrestoration purposes.  Consistent withapplicable law, the County will cooperate with the Tribe in reviewing andprocessing any application which seeks to divide the Conservation Easement areainto a separate parcel(s) from the remaining Petaluma Property.

###  

### 12.3.6          The County, through theSonoma County Agricultural Preservation and Open Space District or otherorganization approved by the County that conforms with the California LandConservation Program Act as provided pursuant to Public Resources Code Section 10200,et seq., and without subjecting the Tribe to the jurisdiction thereof withrespect to any other property, shall have the power to hold, enforce andmaintain the character of the Conservation Easement on the PetalumaProperty.  The Conservation Easementshall allow for the agricultural use of the property, the development,restoration and/or enhancement of wetlands 

 

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### to provide for native vegetation and wildlife and for use as amitigation bank and shall be in a form substantially similar to Exhibit H.

###  

### 12.3.7          The Parties understandthat the proposed easement, is part of a Williamson Act contract easementexchange program, and must further meet the requirements set forth inGovernment Code Section 51256 (d), but that such requirements shall notdelay withdrawal of the IBIA appeal.  Tothe extent such requirements or any other provision of law in connection withthe rescission, termination or cancellation of a Williamson Act contractrequires the payment of fees, costs, taxes, fines, penalties or other charges,including but not limited to the repayment or recoupment of taxes, such chargesshall be entirely satisfied through the value of the easement exchange providedfor in this Agreement.  If the Tribe issubject to a judgment that requires it to pay any fees, costs, taxes, fines orother charges in connection with the cancellation or rescission of the DuganProperty Williamson Act contract that are payable to or for the direct benefitof the County, any local or County governmental or public agency or entity, orany beneficiary or holder of the Easement, the County, to the full extentauthorized by law, shall waive the collection and judgment, including any indebtednessor lien that might arise as a result thereof, of any such amounts.  Notwithstandingthe foregoing, in the event the rescission penalty (12.5% of the rescissionvaluation of the Dugan Property) as appraised by the Sonoma County Assessor’sOffice is greater than the appraised value of the 20 acres of ConservationEasement dedicated to unrestricted agricultural production, the Tribe agrees toone of the following: (1) pay the difference between the rescissionpenalty and the appraised value of the portion Conservation Easement dedicatedto unrestricted agricultural production to the California State Controller fordeposit in the Soil Conservation Fund; or (2) increase the size of theConservation Easement area dedicated to unrestricted agricultural production sothat its appraised value is equal to the rescission penalty; or (3) somecombination thereof.  As a resultof this uncertainty, should the Conservation Easement be terminated, in wholeor in part, either by eminent domain or judicial termination, the DOC isentitled to a portion of any proceeds awarded in connection with suchtermination pursuant to the terms of Paragraph 17 of the Conservation Easement(Exhibit H) as provided as follows. Such a portion shall be an amount equal to the percentage of theappraised value of that portion of the Conservation Easement dedicated tounrestricted agricultural conservation in relation to the appraised value ofthe entire Conservation Easement, as of the date of the final Williamson Actcontract rescission.  This percentage,once determined, shall be reflected in Paragraph 17 of the ConservationEasement.

###  

### 12.3.8          Nothing in thisAgreement shall prevent the Tribe from developing a mitigation bank on landsthat will be subject to the Conservation Easement, and to collect fees for suchuse, nor shall the County’s right to preserve such easement interfere with theTribe’s ability to market such mitigation bank rights on such an easement, in amanner in compliance with the Conservation Easement, provided that the Tribetakes no action that would impair such easement or alter its use without thewritten consent of the County as provided for in the Conservation Easementattached as Exhibit H.

###  

## 12.4         If the County determinesthat a CEQA environmental review is required to cancel or rescind the DuganProperty Williamson Act contract or establish the Conservation Easement, theTribe shall act as the applicant for such project and hire a consultant toprepare any necessary environmental review studies or reports and a qualifiedindependent appraiser at its own cost. The Tribe and County shall agree on the consultants.  County costs for 

 

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## environmental review and processing shall be paid by the Tribe pursuantto a PRMD “at cost project” recovery schedule and procedure.  The County shall hire an appropriateconsultant, at the Tribe’s expense, if the Tribe does not timely initiate therequired environmental review.  Paymentby the Tribe for any consultant and/or qualified appraiser hired shall bethrough the County, unless the Parties agree on an alternativearrangement.  Notwithstanding anythingherein to the contrary, any decision of whether or not to rescind theWilliamson Act contract will be independently determined by the Board ofSupervisors based upon the available evidence and in accordance with applicablelaw.

##  

## 12.5         The County further agreesthat the Conservation Easement will be held in an escrow account and shall notbecome effective unless the County approves the Tribe’s request to rescind theDugan Property Williamson Act contract and the Dugan Property goes intotrust.  Notwithstanding the above, if theDugan Property is placed into trust without rescission of the Williamson Act contract,the Conservation Easement shall be recorded and become effective.  However, if the Tribe is unable to completethe Dugan Project due to interference related to the Williamson Act contract,such interference shall be grounds to cancel or void the ConservationEasement.  If the County disputes theTribe’s claim that the Williamson Act contract was the basis for the Tribe’sinability to complete the Dugan Project, the issue will be subject to theAgreement’s dispute resolution provisions and a decision on the cancellationmade by an arbitrator unless otherwise resolved by the Parties.

##  

# **XIII.**                PETALUMA PROPERTY

 

## 13.1         In April 2006, theTribe submitted an application to the BIA to take approximately 277 acres intotrust for gaming purposes near the City of Petaluma located between U.S. Highway101 and the Petaluma River (the “Petaluma Property”).  The Tribe agrees that it will not conductGaming Activities or operate Gaming Facilities (including Class II or IIIGaming as defined under IGRA) on the Petaluma Property for a period of at leasteight (8) years from the Effective Date of this Agreement.

##  

## 13.2         Within ten (10) daysof the Effective Date, the Tribe will take all steps necessary to suspend andotherwise stay its fee-to-trust application for gaming purposes during sucheight (8) year period, including but not limited to communicating to theBIA through a duly passed Tribal resolution that the BIA is not authorized tofurther process any fee-to-trust application for gaming purposes on thePetaluma Property or to take any steps inconsistent with this Agreement.  The resolution to the BIA will besubstantially identical to Exhibit I.

##  

## 13.3         If sewer and waterutilities become reasonably available to the Petaluma Property within eightyears from this Agreement’s effective date, the Tribe agrees never to conduct Class IIor Class III Gaming Activities (as defined under IGRA) on the PetalumaProperty without the written consent of the County.  Such agreement is based on an understandingby the Tribe that the City of Petaluma and the County Board of Supervisorscurrently oppose such use for that land. For purposes of this Section, “reasonably available” with respect to theutilities means that water and sewer connections become legally and physicallyavailable to the Tribe for development on the Petaluma Property without theTribe’s having to bring such utilities across, either above or below ground,U.S. Highway 101, or the Petaluma River, and without the Tribe’s having toacquire easements or other property rights 

 

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## over private or public property at a prohibitive fee.  The Tribe may, however, take such steps atits sole discretion.  The Tribe shallbear the sole cost of obtaining such utilities once a connection is reasonablyavailable within 1,000 feet of the Petaluma Property.  The Tribe shall be relieved of its obligationto perpetually forgo Gaming Activities on the Petaluma Property under thisAgreement, if another Tribal casino opens for operation in Sonoma County alongthe U.S. Highway 101 corridor between Cotati and the southern Sonoma Countyboundary.

##  

## 13.4         The County shall consultwith the Tribe and the community to explore potential non-gaming economicdevelopment Projects on the Petaluma Property that would be of substantialbenefit to both the Tribe and the community. In addition, the County agrees that, where permissible under applicablelaw, planning actions on projects submitted by the Tribe on the PetalumaProperty, if such property is not in trust, the Board of Supervisors will exerciseits original jurisdiction to directly review the matter.

##  

## 13.5         The Tribe agrees that ifthe Petaluma Property is taken into trust, in addition to a restriction not toconduct Gaming Activities, as specified herein, it will be subject toenforcement of the Conservation Easement (if it has not been cancelled pursuantto Section 12.5) or any other agricultural or other easement(s) orconditions placed on the land pursuant to this Agreement and shall seekapproval of these encumbrances from the Department of the Interior, providedthat such approval shall not be a condition of this Agreement.

##  

# **XIV.**                FUTURE TRUST ACQUISITIONS AND TRIBAL DEVELOPMENT

 

## 14.1         The Tribe shall consultwith the County prior to filing or modifying any application by the Tribe to theUnited States to take additional land into trust within Sonoma County.  The Tribe further recognizes that the CountyGeneral Plan is an important and valued exercise of County authority andagrees, as a separate jurisdictional government, to give meaningfulconsideration to the County’s General Plan in trust applications and otherTribal planning activities.  The Tribefurther recognizes that the County has taken the position that economicdevelopment proposals on future Trust Lands should meet the following criteriafor County support:  1) the Tribe hassignificant ties to the land that is subject to the trust proposal; 2) theeconomic proposal is, consistent with this Agreement, subject to an appropriateenvironmental review process; and 3) the Tribe and County have entered into anIntergovernmental Mitigation Agreement to insure mitigation of any adverseenvironmental impacts of the proposal. Nothing in this Agreement, however, shall be construed to subject or otherwisebind the Tribe to the County General Plan for development on Trust Land orrequire that the County support any specific trust application or Project.

##  

## 14.2         The County recognizesthat the Tribe is not bound by the General Plan on Trust Lands.  The Parties agree to work together on a government-to-governmentbasis to maximize consistency with the General Plan for Tribal CommercialDevelopment Projects, to the extent possible consistent with Tribal goals, andto minimize off-Reservation adverse environmental impacts.

 

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# **XV.**                 MITIGATION MONITORING AND REPORTING

 

## 15.1         Consistent with Compact Section 10.8.2and this Agreement, the Tribe shall periodically apprise the County Board ofSupervisors of the progress and status of all Ongoing Projects and TribalCommercial Development Projects.

##  

## 15.2         During the constructionof any Ongoing Project and/or Tribal Commercial Development Project, andcontinuing until all agreed to mitigation measures are implemented, the Tribeshall prepare and provide the County a mitigation monitoring report on at leasta quarterly basis that summarizes the implementation of all agreed tomitigation measures and their effectiveness in reducing the relatedimpact.  During periods of constructionsuch reports shall be provided on a monthly basis.  This mitigation report shall be prepared in aform substantially similar to that contained in Exhibit A.

##  

## 15.3         The mitigation reportsshall be prepared by an independent qualified consulting firm, hired andcompensated by the Tribe and provided to the County.  The County may review the qualifications ofany consulting firm the Tribe intends to hire and object to such firm’sengagement based upon lack of qualifications or bias.  The County may seek resolution of any disputewith respect to the engagement of a consultant, or the mitigation monitoring,pursuant to the dispute resolution process in this Agreement.  The consultant(s) engaged by the Tribeshall have a contractual independent duty to provide current and accurateunbiased timely reports to the County. The contract shall further specify that the monitoring reports to beproduced will be relied upon by the Parties who are depending upon theobjective nature of the mitigation reports, provided that, if the consultantsare unwilling to so specify, they (or an alternative consultant if the Countyand Tribe cannot agree to jointly engage them) shall become engaged by theTribe and the County jointly, or alternate consultants shall be soengaged.  The consultants engaged in themonitoring shall have the necessary engineering degrees and/or other expertisenecessary to monitor the mitigation measures contained in this Agreement.

##  

# **XVI.**                REVENUE ANDMITIGATION COSTS

 

## 16.1         In addition to the promises and covenants otherwise contained inthis Agreement, the Parties acknowledge that Tribal Commercial DevelopmentProjects and the Ongoing Projects may create a certain increased demand forpublic services and may, in some cases, result in lost revenues and/or fees tothe County.

##  

## 16.2         The Parties agree thatthe County does not have permitting authority over development on Trust Landsand that the payments made under this agreement do not constitute taxes,exactions or fees.

##  

## 16.3         The payments agreed tobelow are approximate off-sets to the potential losses and impacts to the Countyof the Ongoing Projects and are intended to support an appropriate level ofCounty services to the Reservation and affected communities.

##  

## 16.4         In addition to the othermitigation measures the Tribe has and will implement, including but not limitedto the construction of the Emergency Access Road, intersection improvements atboth HWY 128 and BIA 93 and at HWY 128 and the Emergency Access Road (ifapplicable approvals and rights are obtained), and donations to the localcommunity and 

 

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## government, the Tribe shall pay the County Seventy Five Million dollars($75,000,000) over the term of this Agreement (“Mitigation Fee”), formitigation of tangible and intangible Ongoing Projects impacts, payable on theterms stated below.  The IntersectionImprovements shall be guaranteed through a Construction Assurance Device tocover the budgeted costs that will be in substantially the same form as Exhibit Eor F.  The payment terms are as follows:

##  

### 16.4.1          Upon the later of thirty(30) days after the date that the Tribe obtains Financing for the ResortProject or within seven (7) business days following approval of thisAgreement by the Board of Supervisors and the Tribe, whichever last occurs, theTribe shall pay the County an installment of Seven Million Five HundredThousand dollars ($7,500,000) (“Initial Installment”).

###  

### 16.4.2          Notwithstanding theprevious paragraph, in the event that the Tribe receives a license from the ABCauthorizing the Tribe to sell alcoholic beverages at the Existing Casino or atthe casino, hotel or restaurants at the Resort Project prior to the date thatthe Tribe obtains Financing, the Tribe shall pay the County Three Milliondollars ($3,000,000) of said $7.5 million installment within seven (7) businessdays following issuance of the license, and the remaining Four Million FiveHundred Thousand dollars ($4,500,000) of said installment within thirty days(30) days after the date that the Tribe obtains Financing.

###  

### 16.4.3          Notwithstanding theabove, if the above triggering events have not occurred at least $3 million ofthe Initial Installment shall be paid to the County on or before June 30,2008.  The entire remaining balance ofthe $7.5 million Initial Installment shall be paid in full on the schedule ofthe triggering events stated in Section 16.4.2, but in no event shall theentire balance be paid later than September 30, 2008.

###  

### 16.4.4          No later than June 30,2009, the Tribe shall pay the County an additional installment in the amount ofTwo Million Eight Hundred Thousand dollars ($2,800,000).

###  

### 16.4.5          Upon the earlier ofthree (3) years from the Effective Date of this Agreement or the openingof Phase One of the Resort Project, as defined by availability of hotel roomsto the public or opening of the Phase I casino floor to gaming, the Tribe shallpay an installment of Five Million dollars ($5,000,000) to the County.

###  

### 16.4.6          On July 1 of eachcalendar year following the year in which the payment in the immediatelypreceding subparagraph is due, but regardless of whether such payment was paid,beginning no later than July 1, 2011, the Tribe shall make annualinstallments toward payment of the Mitigation Fee in the amount of Five Milliondollars ($5,000,000) each year, adjusted as provided below.

###  

### 16.4.7          Beginning no later thanthe installment due on July 1, 2011, the annual installment payments dueto the County shall be increased by 4% from the installment payment made in theprevious year, provided that if the July 1, 2011 installment is the firstof the Five Million dollar ($5,000,000) annual installment payments, it shallbe increased by 4% to Five Million Two Hundred Thousand dollars($5,200,000).  For example if the $5million dollar installment payment required above was made in 2010, thesubsequent payments would be $5.2 

 

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### million dollars in 2011 and $5.408 million dollars in 2012, and so onuntil the entire $75 million has been paid.

###  

### 16.4.8          No later than July 1,2020, the Tribe shall pay to the County any unpaid balance of the MitigationFee in full so that the total Mitigation Fee paid under this Agreement (withoutregard to the in lieu Transient Occupancy Tax equivalent payments describedbelow) shall equal no more and no less than $75 million dollars plus anyinterest for which the Tribe may become obligated under Section 16.12.

###  

## 16.5         Notwithstanding theforegoing payment schedule, except for payment of the Initial Installment andpayment in year 2020, in the event that the annual gross revenues of the Tribe’sCasino and Resort Project in any calendar year are 20% less than the annualgross revenue of the prior calendar year (the “Base Year”), then the Tribe mayreduce the annual installment due in proportion to the percentage amount of thetotal reduction.  For example, if thegross revenue is 20% below the Base Year, the $5 million dollar installmentwould be reduced by $1 million to $4 million dollars.  The reduction shall continue in effect foreach consecutive year in which the gross revenues remains 20% or more below theBase Year.

##  

### 16.5.1          Any and all reductionsshall be treated as deferrals only and shall not reduce the balance payment duein full on or before July 1, 2020.

###  

### 16.5.2          The Tribe shall bear theburden of demonstrating that such reduction in gross revenues has in factoccurred, and shall support such claim by making available to the County, on aconfidential and proprietary basis, fully audited Casino and Resort Projectfinancial statements certified by an independent qualified accounting firm forthe relevant year(s).

###  

### 16.5.3          Notwithstanding theabove, in no event shall payment in any year fall below a minimum payment of$2.8 million dollars other than for a suspension of this Agreement under theforce majeur provisions of Section 26.6 or the permanent cessation ofGaming Activities, hotel operations, and the service of alcohol by the Tribe onthe Rancheria, in which case the Tribe shall have no further financialobligations under this Section.

###  

## 16.6         Annual payments shallreturn to the payment schedule described in Section 16.4 as soon as thegross revenue increases to more than 80% of the Base Year’s amount.  Payment of deferred amounts shall be fullyamortized, without interest, over the remaining term of the Agreement and paidaccordingly.  However, deferred amountsdo not need to be paid in years where gross revenue is 20% or more below theBase Year.

##  

## 16.7         Any interest due underthis Agreement shall be limited to interest imposed due to the failure totimely make payments as provided for above in Sections 16.4 and 16.6, and shallaccrue as provided for in Section 16.12.

##  

## 16.8         Notwithstanding any otherprovision of this Agreement, the entire Mitigation Fee and any accrued interestshall all be paid on or before July 1, 2020.

##  

## 16.9         In addition to the $75million dollars in Mitigation Fee payments described above, the Tribe shall payto the County a fee in lieu of the County’s Transient Occupancy Tax (“In LieuFee”) in the amount of 9% of the rental collected on occupied hotel rooms.  The In 

 

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## Lieu Fee shall be paid on a quarterly basis to the County.  The first payment shall be due following thecompletion of the first quarter immediately after the hotel opens.  Notwithstanding any other provision of thisAgreement, unless a longer period is agreed to by the Parties, the In Lieu Feepayments shall be paid through the later of the fifth (5th) year following theend of the Term of this Agreement, including any extension thereof, or the 5thyear following the termination of the Compact, whichever is longer.  The County shall apply such In Lieu Fees toprograms and services that serve to promote tourism in the County as determinedby the Board of Supervisors, provided that the Resort Project shall be promotedon at least as comparable a basis as any other casino and/or resort is promotedby the County.  If there is a dispute asto TOT In Lieu Fee payments and supporting computations, the Tribe will providethe information/receipts to verify payment and the supporting basis for thecomputation.  Any disputes regarding thepayment amount shall be subject to the dispute resolution provisions of theAgreement.

##  

## 16.10       As a separate matter fromthe foregoing, the Tribe is encouraged but not required to pay, along with allother hotels in the unincorporated areas of the County which gross more than$350,000 per year, an additional voluntary in lieu fee in the amount of 2% ofthe amounts collected from the rental of hotel rooms, to be paid to the SonomaCounty Tourism Improvement Area Assessment. If paid, this voluntary in lieu fee also shall be calculated and paid inthe same manner as the Sonoma County Transit Occupancy Tax.

##  

## 16.11       Any funds received by theCounty from the Tribe pursuant to this Agreement are subject to the solediscretion of the County Board of Supervisors with the exception of In Lieu Feepayments which shall be applied as set forth in Section 16.9.

##  

## 16.12       On the later of the 31stday after the due date of any payment under this Agreement or ten (10) daysafter receipt of written notice from the County following such due date, anyamounts due from the Tribe shall bear interest from the scheduled payment dateat a rate equal to the prime rate of interest announced by the Wall StreetJournal plus 2% per annum.

##  

# **XVII.**              RE-OPENERPROVISIONS

 

## 17.1         The Parties recognizethat additional impacts or events, not foreseen or compensated for in thisAgreement, may occur and that the projected income from which the Tribe intendsto pay the County fees may be negatively impacted in the future, including thepossible inability to open the Resort Project as planned.  Balancing this recognition against theParties’ need for certainty and stability with respect to this Agreement, theParties agree that upon the occurrence of any of the following, either partymay request the reopening of this Agreement for the purpose of negotiatingamendments to it:

##  

### 17.1.1          The Compact is amended,or a new compact entered into within the Agreement Term, to permit the Tribe tooperate more Class III slot machines than the 2,000 machines allowed underthe Tribe’s current Compact, and the operation by the Tribe of such additionalmachines, provided that with regard to such Compact amendment or new compact,the County shall join with the Tribe in urging the State and the Governor thatthis Agreement be deemed to meet the requirements of any IntergovernmentalAgreement required in any such compact;

 

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### 17.1.2          Phase I is not openedwithin three years from the Effective Date;

###  

### 17.1.3          More than seven yearshas elapsed from the Effective Date;

###  

### 17.1.4          The Tribe’s grossrevenues declined by at least 20% over a previous year and remained at or belowthat Base Year revenue level for a consecutive three-year period;

###  

### 17.1.5          A significant portion ofthe Tribe’s Gaming Facility ceased operations for a continuous period of atleast seven (7) consecutive days, due to forces entirely beyond the Tribe’scontrol, and the Tribe’s annual gross revenues during the year in which thatoccurred declined by more than 20% from the preceding year;

###  

### 17.1.6          Prior to the opening ofPhase I, the Tribe’s annual net revenue from casino and related operations(including but not limited to alcohol sales) for the twelve (12) month periodfollowing June 30, 2008, the issuance of an alcohol license, or the dateof Financing, whichever is later, decreased more than 20% from that of theimmediately preceding 12 month period;

###  

### 17.1.7          The ABC alcohol licenseis not issued for the Existing Casino or is issued with conditionssignificantly more restrictive than those contained in Exhibit D, and thatany such additional restrictions have a demonstrated material negative effecton Tribal Gaming gross revenues;

###  

### 17.1.8          The Resort Project doesnot have an alcohol license following the completion of Phase I;

###  

### 17.1.9          The Dugan Property isnot taken into trust by the BIA for the Tribe;

###  

### 17.1.10        The Williamson Actcontract on the Dugan Property is not rescinded by the County and the Tribe hassuffered a material detriment as a result;

###  

### 17.1.11        The Tribe undertakesOngoing Project development beyond the projects and Infrastructure discussed inthe Environmental Study, Environmental Assessment, or Exhibit B (relatingto the Dugan Projects); or

###  

### 17.1.12        There is a SignificantAdverse Impact of an Ongoing Project beyond that discussed by the Tribe in theEnvironmental Study or Environmental Assessment or which was anticipated orshould have been anticipated by the County, including but not limited to thoseeffects which were anticipated and described in its written comments to theTribe in reply to those documents.

###  

## 17.2         Upon written request by aParty with respect to matters arising under Section 17.1, the Partiesshall meet and confer in good faith to discuss such matters.

##  

## 17.3         The Tribe and GamingAuthority shall make relevant audited financial statements prepared by anindependent accounting firm available if the Tribe makes a request to reopennegotiations based upon any of the financial events listed above.

 

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## 17.4         Any request torenegotiate one or more terms of this Agreement shall be made in writing,addressed to the other party.  Therequest shall specify the basis and provide documentation to support reopeningthe Agreement.

##  

## 17.5         If the request meets therequirements for renegotiation pursuant to this Section, the Parties shall meetwithin 30 days from the receipt of the request and will commence to renegotiatein good faith.  If agreement regardingamendment of this Agreement or the right to reopen is not reached after areasonable period of time following a request to reopen, the other party mayinvoke the Section 20 dispute resolution provisions.  If the matter goes to arbitration, thearbitrator shall determine only whether a party was acting in good faith in thenegotiations under the dispute resolution and reopener provisions.  If the arbitrator found that a party wasacting in bad faith, the Parties shall be ordered back into negotiations.

##  

## 17.6         The sole purpose of therenegotiation will be to determine if, due to the circumstances set forth aboveunder which the re-opener may be invoked, there are alternate terms providingfor mitigation measures, payments or other benefits that are consistent withthe requirements of IGRA, the Compact, and this Agreement and that, following anegotiation, would retain essentially the same rights, level of mitigation,intent of the Parties, their positions relative to each other, and theaggregate economic benefits anticipated at the time of execution of thisAgreement.  Based on the above, theParties will determine whether or not there is good cause and a reasonablebasis for amending this Agreement to provide for such alternate terms.  A measure of any proposed mitigationamendment shall be the basis of mitigation that was used by the Parties inreaching this Agreement.

##  

# **XVIII.**             INDEMNIFICATION

 

## 18.1         The Tribe agrees, underthe terms and conditions set forth in Sections 18.2 and 18.3 below, toindemnify and defend the County with respect to claims made by third Partiesthat are related to or arise from the following County activities:

##  

### 18.1.1          Work undertaken or fundsdisbursed related to completion of the Emergency Access Road under theConstruction Assurance Device;

###  

### 18.1.2          Actions of Countypersonnel responding to fire, criminal activity or other Reservationemergencies;

###  

### 18.1.3          Any action challengingthe County’s approval of this Agreement; or

###  

### 18.1.4          Any action challengingthe County’s cancellation or rescission of the Dugan Property Williamson Actcontract including but not limited to creation of the Conservation Easement orentering into the easement exchange (the claims set forth in Sections 18.1.1 –18.1.4 are referred to collectively as the (“Indemnification Claims”).

###  

## 18.2         The scope of the indemnity with respect to the Indemnification Claimsis as follows: the Tribe agrees to provide defense costs only, with respect tomatters arising under Section 18.1.1 and 18.1.2 above, and, as to Sections18.1.3 and 18.1.4, to defend, indemnify, hold harmless, and reimburse theCounty, including its officers, agents, and employees, from and against any andall actions, claims, damages, disabilities, liabilities, and expense, includingbut 

 

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## not limited to attorneys’ fees and the cost of litigation incurred inthe defense, arising out of the Indemnification Claims, whether arising frompersonal injury, property damage or economic loss of any type (but excludingeconomic losses based on alleged lost taxes, revenues or lost economicopportunity to the County, State, or any person, business or entity, claimsthat such actions lowered the use or market value of any property or business,or claims in the nature of an alleged taking) that may be asserted by any thirdparty, but to the extent required or permitted by law, excluding liability dueto the primary negligence, willful misconduct, or contractual liability orbreach of the County, or any claims for punitive damages against the County orany entity insuring it against such claims that may have subrogation rightsagainst the Tribe.  If there is areasonably possible obligation to indemnify or defend under Sections18.1.1-18.1.4, the Tribe’s duty to defend exists regardless of whether it isultimately determined that there is not a duty to defend or indemnify.

##  

## 18.3         The County shallvigorously defend any such actions and shall have the right to select its ownlegal counsel at local prevailing rates at the expense of the Tribe, but theTribe shall have the right to review counsel fees and costs to be incurred, andto be informed regarding the progress in the litigation and of any and allsettlement proposals.

##  

## 18.4         The Tribe will obtain andmaintain a policy of commercial general liability insurance with limits notless than Ten Million dollars ($10,000,000) per occurrence and in the aggregatecovering bodily injury and property damage, including excess medical coverage.  The policy shall contain endorsements forcoverage, which includes but is not limited to: premises liability, general liability, personal injury, blanketcontractual coverage and contractual indemnity. The policy shall be endorsed to name the County of Sonoma, its officers,officials, employees and volunteers as an additional insured.  The County shall cooperate in providing anyinformation reasonably required to obtain such insurance.  The Tribe shall provide a copy of the policyto the County for review and approval and timely provide proof of suchinsurance on an annual basis.  Anydispute over the existence of a duty to indemnify or defend shall be resolvedthrough the dispute resolution process set forth below in this Agreement.

##  

# **XIX.**                CONFIDENTIALITY

 

## 19.1         Any information or documentsobtained, observations made, or conclusions drawn directly or indirectly underthis Agreement, including without limitation, where the source or informationcomes from inspections, plan reviews, examinations of financial information,negotiations, consultations, disputes or other activities under this Agreement,shall be deemed confidential to the extent allowed under law and shall not beshared with any third party.  The Countyshall promptly provide the Tribe notice of any Public Records Act requestrelated to this Agreement and afford the Tribe, within the time limits allowedunder the Act, an opportunity to seek an injunction by the Court against anysuch disclosure.  Notwithstanding thisconfidentiality agreement, County Fire retains the right to communicate suchconfidential information obtained pursuant to the terms of this Agreement tothe State Fire Marshall and/or other appropriate State and/or Federalgovernment agencies following exhaustion of all procedural provisions of theFire Protocol.

 

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# **XX.**                 DISPUTERESOLUTION

 

## 20.1         Meet and ConferProcess.

##  

### 20.1.1          In recognition of thegovernment-to-government relationship between the Tribe and County, the Partiesshall make their best efforts to resolve disputes that occur under thisAgreement by good faith negotiations whenever possible.  Therefore, the Parties hereby establish athreshold requirement that disputes arising under this Agreement shall first besubject to a good faith meet and confer procedure to give the Parties anopportunity to work together to solve identified issues.

###  

### 20.1.2          Disputes arising betweenthe Parties regarding a party’s alleged failure to meet its obligations imposedby this Agreement, including a refusal to meet and confer or, in the case of aTribal Commercial Development Project, to enter into an IntergovernmentalMitigation Agreement, shall be addressed through the following process:

###  

#### a.             The Parties may meetand confer informally to discuss their concerns.  This stage may include an informal exchangeof views among Tribal and County personnel and may remain confidential inaccordance with applicable law.

####  

#### b.             A party desirous ofinvoking the meet and confer provisions of this Agreement shall provideconfidential written notice to the other party, identifying with specificitythe alleged issue or issues and the actions requested to resolve thedispute.  Within seven (7) daysafter receipt of the notice, the recipient shall provide a written responseagreeing or disagreeing with the complaint. If the party agrees it will set forth detailed steps to address thealleged breach of the Agreement or the unreasonable refusal to enter into anIntergovernmental Mitigation Agreement. If the Parties disagree, they shall proceed in accordance with the nextsubsection.

####  

#### c.             The Parties shallformally meet and confer in good faith within ten (10) business days ofreceipt of such notice, or at such other time as the Parties may agree inwriting, to attempt to resolve the dispute. If both Parties agree, a mediator may be used to help resolve thedispute at this stage.  The Parties andmediator, if any, shall ensure that any disputed issues are clearly anddirectly communicated according to any agreed upon process and timeline.  Multiple meetings under this step may bereasonably required depending upon the nature of the dispute, provided that themeet and confer process shall be completed within thirty (30) days of thenotice provided pursuant to subsection (b) above, unless extended in writingby mutual agreement of the Parties. Failure to substantially comply with the procedures and timelinescontained in this Section with respect to a Tribal Commercial DevelopmentProject shall entitle the complaining party to proceed directly to arbitration.  If a dispute has not been resolved throughthe meet and confer process, and the issue is subject to dispute resolution asprovided for in this Agreement, the Parties shall proceed pursuant to Section 20.2below.

####  

## 20.2         Binding ArbitrationProcedure.

##  

### 20.2.1          Subject to compliancewith the meet and confer process stated above, either party may initiatebinding arbitration to resolve any dispute regarding a term of this Agreementexcept for those disputes expressly excluded from arbitration, such as those so

 

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### designated in Exhibit A, and any dispute regarding a TribalCommercial Development Project arising out of a party’s alleged failure to meetits obligations under this Agreement, including the duty to enter into anIntergovernmental Mitigation Agreement where required, unless expresslyexempted from arbitration by the terms of this Agreement.

###  

### 20.2.2          The arbitration shall beconducted by a single arbitrator in accordance with the JAMS Streamlined ArbitrationRules and shall take place in Santa Rosa or another location mutuallyagreed upon by the Parties.  Thearbitrator shall be an attorney or retired judge selected pursuant to thefollowing terms:

###  

#### a.             The arbitrator shallbe from the list of prior approved arbitrators attached as Exhibit J.  The list of arbitrators shall be reviewed andrevised, if necessary, through good faith negotiations of the Parties at leastonce every five (5) years during the Term. If the Parties are unable to agree to a new list or upon the selectionof a single arbitrator, then each Party shall name one arbitrator and the twoarbitrators thus selected shall select a third arbitrator who shall be aretired United States District Court or California Superior Court judge; provided,however, if either Party fails to select an arbitrator within fourteen (14)days of delivery of the request for arbitration, or if the two arbitrators failto select a third arbitrator within fourteen (14) days after the appointment ofthe second arbitrator, then in each such instance, a proper court, on petitionof any Party, shall select the necessary arbitrator(s), in accordance withCalifornia Code of Civil Procedure Sections 1280, et seq., or any successorstatutes then in effect.

####  

#### b.             Arbitrators shall becontacted in the order their names appear on the list and the person highest onthe list whom is available within sixty (60) days to conduct the arbitrationshall be selected, unless another arbitrator is mutually agreed upon by theParties in writing.

####  

#### c.             Once an arbitratorhas been passed on the list, the selection process shall continue to movethrough the list in order as to the remaining arbitrators on the list,following which the selection process from the top of the list, in order, shallbe repeated.  If no arbitrator isavailable during the sixty day time frame, the first available arbitrator onthe list shall be selected.  If anarbitrator on the list is not available within a reasonable time frame anarbitrator shall be selected as provided for in Subsection (a) above.  Notwithstanding the foregoing, a person shallnot be eligible to serve as an arbitrator under this Agreement if the personhas an interest in, or is related to, affiliated with, or has represented in alegal capacity, either Party without a written waiver from the other party.

####  

### 20.2.3          The issue of whether theCounty has jurisdiction to make determinations regarding the enforcement of anylaw or ordinance on trust property shall be deemed to be a question of law andshall not be the subject of any arbitration process, except where the Countyhas expressly agreed not to assert such jurisdiction and the claim is that theCounty is violating that agreement.  Thearbitrator shall have jurisdiction to interpret and apply this Agreement’sterms, but shall lack jurisdiction to modify the Agreement or relieve a partyof its obligations, or add to those obligations under the Agreement, except inthe event that a material term(s) of this Agreement is determined to bevoid.  In such an instance the arbitratormay order the Agreement modified, terminated or rescinded to maintain therelative positions of the Parties at the time the Agreement was entered.  Notwithstanding the above, but subject to the

 

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### limitations in the preceding sentence and in Sections 20.2.4 - 20.2.8below, an arbitrator may determine appropriate mitigation for Tribal CommercialDevelopment Projects when the Parties have been unable to complete anIntergovernmental Mitigation Agreement. This Agreement does not provide for, and the arbitrator shall not havejurisdiction to:

###  

#### a.             Enforce or orderremedies with respect to federal, state, Tribal or County laws, regulations,ordinances, codes or other laws against the Tribe, including its governmententities, officials, members or employees or its Trust Lands, and shall onlyconsider or evaluate such laws as expressly permitted under this Agreement;

####  

#### b.             Make determinationsas to fire, building and safety and related code compliance, inspections, orplan review determinations by Tribal officials with jurisdiction over suchmatters; or

####  

#### c.             Limit the Tribe’sauthority to pursue non-gaming trust applications with the United Statesgovernment.

####  

### 20.2.4          Arbitration judgmentsmay include monetary awards, specific performance, declaratory relief, and/orinjunctive relief, provided that monetary awards shall be limited to reasonableamounts as may be necessary to cure a breach within the terms of thisAgreement, or to mitigate a Significant Adverse Impact on a practical basis,taking all circumstances, including federal law and policy into account, andsubject to the limitations in this Section. No punitive or consequential damages shall be awarded.  Equitable relief shall be limited tocompelling some actual performance that is described in this Agreement orpreventing a party from failing to take such action.

###  

### 20.2.5          Any controversyregarding whether an issue is subject to arbitration shall be determined by thearbitrator, but the arbitrator’s jurisdiction shall be limited to orderingforms of relief agreed to in this Agreement.

###  

### 20.2.6          In arbitrating disputesunder this Agreement, the arbitrator shall apply applicable law, includingwhere appropriate, IGRA and federal laws and policies regarding Tribal economicdevelopment.

###  

### 20.2.7          In making a decisionwith respect to the failure to enter into an Intergovernmental MitigationAgreement when required under this Agreement, or in determining appropriatemitigation measures, the arbitrator only has jurisdiction to impose reasonablemeasures to mitigate the Significant Adverse Impacts of the proposed TribalCommercial Development Project and may not off-set or compensate for impact ofother Project(s), including but not limited to the Resort Project, the DuganProjects, or the Cultural Center. Reasonable mitigation measures are those that would be or have beenundertaken in other comparable projects within Northern California to mitigatesimilar adverse environmental impacts. Nothing herein shall limit either Parties’ ability to request thatreimbursement of actual and reasonable out of pocket costs be considered aspart of such an Agreement but the Tribe shall not be subject to any County feesor exactions for Projects on Trust Lands Since the arbitrator only hasauthority to impose reasonable mitigation measures, the Parties recognize thatsome Significant Adverse Impacts may not be mitigated to less than significantand that such fact does not prevent the 

 

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### Parties from entering into an Intergovernmental Mitigation Agreement,or the Tribe from developing such Tribal Commercial Development Project, or thearbitrator from imposing reasonable mitigation measures that would decrease orminimize the Significant Adverse Impact. Accordingly, the arbitrator does not have authority to determine thatsuch Tribal Commercial Development Project shall not be built; that authorityremaining solely with the Tribe.

###  

### 20.2.8          In making a decisionregarding satisfaction of the Tribe’s obligation for the Emergency Access Road,the arbitrator may award all reasonable costs related to curing the defectincluding but not limited to labor costs, material costs, professionalconsulting and engineering costs, and all costs and reasonable expenses andfees, including reasonable attorneys’ fees, incurred by County in enforcing theTribe’s obligations under the Construction Assurance Device and thisAgreement.  The County is not entitled toattorneys’ fees if the Tribe prevails in the legal dispute decided under thisSection.

###  

### 20.2.9          The arbitrator shallprovide a written award and a reasoned decision supporting the basis of theaward within thirty (30) days of submission of the dispute followinghearing.  The provisions of CaliforniaCode of Civil Procedure, Section 1283.05 are incorporated into thisAgreement, provided, however, that no such discovery may be conducted withoutleave of the arbitrator.  Any discoveryconducted shall be subject to the Confidentiality provisions of this Agreement,and the arbitrator shall make such orders as are necessary to enforce suchprovisions.

###  

## 20.3         Notwithstanding anythingto the contrary in this Agreement, disputes related to compliance with federallaws and regulations, and permit conditions in connection therewith, orregarding whether or not the Compact (including any amendments) has beencomplied with, shall not be subject to the dispute resolution provisions inSections 20.1 and 20.2 and shall be resolved, in the case of federal laws,regulations and permits, through the dispute resolution provisions applicableto such laws, regulations and permits, and in the case of the Compact(including any obligations to abide by it in this Agreement), through thedispute resolution provisions between the Tribe and the State containedtherein.

##  

# **XXI.**                JUDICIALREVIEW AND ENFORCEMENT

 

## 21.1         The award of anarbitrator shall be final and binding. Jurisdiction to take any action necessary to enforce an arbitrator’saward, or to take any other action provided for under this Agreement, shall bein the United States District Court for the Northern District of California aswell as any appellate courts with jurisdiction over relevant proceedings.  The Parties hereby agree that interpretationof this Agreement may involve questions of federal law, including withoutlimitation IGRA and federal regulations promulgated thereunder, theTribal-State Gaming Compact, and the federal common law of Indian affairs.  The Parties hereby agree to not raise orchallenge the jurisdiction of said federal court to adjudicate matters asprovided under this Agreement.  In theevent that the federal court declines or lacks jurisdiction, the Parties agreeto submit the matter, including the enforcement of an arbitrator’s award, tothe Sonoma County Superior Court and any related appellate proceedings.

##  

## 21.2         Except for mattersexpressly exempted from arbitration under this Agreement, the Parties agree notto assert, and will waive any defense alleging any governmental immunities, 

 

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## indispensable party, exhaustion of tribal or administrative remedies(except for the procedures required under this Agreement), improper venue orforum non-conveniens as to any federal court action brought pursuant to thisAgreement in the United States District Court for the Northern District ofCalifornia, or, if the federal court declines or lacks jurisdiction, in theSonoma County Superior Court, including related appellate proceedings.

##  

## 21.3         In any proceeding broughtpursuant to this Agreement and as to which sovereign immunity has been waived,the Parties consent to service of process made in accordance with the noticeprovisions of this Agreement or the Federal Rules of Civil Procedure.

##  

## 21.4         Except as provided in Section 20.2.8,each party shall bear its own costs and attorneys’ fees in any court action orarbitration proceeding brought pursuant to this Agreement.

##  

## 21.5         Nothing in this Agreementshall preclude or restrict the ability of Parties to voluntarily pursue, bymutual agreement, any other method of dispute resolution.

##  

# **XXII.**              NOTICES

 

## 22.1         Notices and service ofprocess shall be sent to the contacts listed below or to such other person oraddress as shall be provided in writing by the party.  Service of process in any judicial orarbitration proceeding is waived in favor of delivery of documents by CertifiedMail – Return Receipt Requested to the following:

##  

For the Tribe:

 

Tribal Chairperson

Dry Creek Rancheria Band of Pomo Indians

190 Foss Creek Circle, Suite A

Healdsburg, CA 95548

Tel: 707 473 2106

 

With a copy simultaneously delivered to:

 

Jerome L. Levine

Holland & Knight, LLP

633 W. 5th Street, Suite 2100

Los Angeles, CA 90071

Tel: 213 896 2565

 

Counsel for the Tribe

 

For the County:

Sonoma County Administrator

575 Administration Dr.

Santa Rosa, CA 95403

Tel: 707 565 2431

 

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With copy simultaneously delivered to:

 

County Counsel

575 Administration Dr.

Santa Rosa, CA 95403

Tel:  707 565 2421

 

# **XXIII.**             MUTUALLIMITED WAIVER OF SOVEREIGN IMMUNITY

 

## 23.1         The Parties agree thatthe Parties’ waiver of immunity from arbitration or suit, or the enforcement ofany order or judgment related thereto, is limited to the express provisions ofthis Section 23, and neither the agreement to arbitrate nor any otherprovision of this Agreement shall be construed as creating any implied waiverof such immunity.

##  

## 23.2         The Parties eachexpressly covenant and agree that they may each sue and be sued, including theresolution of disputes in arbitration and the judicial enforcement thereof, asprovided herein and pursuant to the Dispute Resolution procedure above, toresolve any controversy arising from this Agreement or to enforce or interpretthe terms and conditions of this Agreement, as provided for in thisAgreement.  The Parties, their officersand agents expressly agree to waive governmental immunities, includingsovereign immunity, in connection with any claims arising from this Agreement,as provided for herein for the enforcement of any arbitration award, orjudgment to enforce such an award, or enforcement of any easement created as aresult of this Agreement.  The Partiesfurther consent to the jurisdiction of an arbitrator and/or specified courtunder this Agreement including the consent to be sued and bound by a lawfulorder or judgment, to the extent provided for herein.  Each of the Parties represent that itsagreement to such dispute resolution processes and waivers have beeneffectively and lawfully granted and that nothing further needs to be done toeffectuate those processes.

##  

## 23.3         With respect to anyaction arising out of the Agreement for which there is a waiver of sovereignimmunity, the Tribe and County expressly consent to the jurisdiction of the UnitedStates District Court for the Northern District of California and, as limitedherein to, the Sonoma County Superior Court and all related appellate courts,and/or an arbitrator selected pursuant to this Agreement and specifically waivesovereign immunity for that purpose.  TheParties specifically agree that the applicable court shall have jurisdiction toenter judgments enforcing rights and remedies provided for in this Agreementthat shall include, but not be limited to injunctive relief, declaratory judgment,specific performance, and/or the awarding of monetary damages, which shall bebinding and enforceable on the Parties, subject to the limitations set forth inthis Agreement.  No party to thisAgreement shall contest jurisdiction or venue of the above-referenced courts,provided their jurisdiction and venue are invoked in the order specified, butonly for disputes or claims arising out of this Agreement.  Neither the Tribe nor the County shall pleador invoke the doctrine of exhaustion of Tribal or other administrativeremedies, defenses of immunity or indispensable Parties beyond thosecontemplated in this Agreement.

##  

## 23.4         The County and the Tribemay not join or consent to the joinder of any third party to any action(including but not limited to any arbitration) contemplated herein, unlessfailure to join such party would deprive the court or arbitration tribunal ofjurisdiction; provided 

 

45

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## that nothing in this Agreement shall be construed to constitute awaiver of the sovereign immunity or other protection from lawsuit (or otherdispute resolution process), or the effect, orders or judgments thereof, ofeither the Tribe or the County with respect to any claim of any kind by anysuch third party.  In the event ofintervention by any third party into any such action without the consent of theTribe and the County, nothing herein shall be construed to constitute a waiverof any immunity with respect to such third party, and no arbitrator or courtshall have jurisdiction to award any relief or issue any order as against theCounty or Tribe with respect to such third party in that or any otherproceeding.

##  

## 23.5         Authorization.

 

### 23.5.1          The County and Tribeeach represent and warrant that each has performed all acts precedent toadoption of this Agreement, including but not limited to matters of procedureand notice and each has the full power and authority to execute this Agreementand perform its obligations in accordance with the above terms and conditions,and that the representative(s) executing this Agreement on behalf of eachparty is duly authorized to so execute and deliver the Agreement.

###  

### 23.5.2          In evidence of theabove, each governing body shall execute formal resolutions indicating approvalof this Agreement and these resolutions are attached in Exhibits K and L.

###  

# **XXIV.**             CEQA REVIEW

 

## 24.1         The Tribe’s Trust Landactivities and the Parties’ approving, executing and performing this Agreement,currently and in the future, are not activities that, within the meaning ofCEQA; (a) are directly undertaken by the County or surroundingcommunities, (b) are supported, in whole or in part, through contracts,grants, subsidies loans or other forms of assistance by the County, or (c) involve the issuance of a lease, permit, license, certificate or otherentitlement for use by the County.

##  

## 24.2         By approving, executingand performing this Agreement the County has not, and is not, making anycommitment to (a) issue a lease, permit, license, certificate or otherentitlement for use, or (b) develop, construct or improve any facilitiesor cause any other physical changes in the environment.

##  

## 24.3         This Agreement should beconstrued to be a government payment and funding mechanism that does not committhe County to make any specific physical changes in the environment.

##  

## 24.4         If the County determinesthat it is required to comply with CEQA with respect to any activities relatedto this Agreement, the County shall comply with CEQA at such time.

##  

# **XXV.**              REVIEW BYTHE DEPARTMENT OF INTERIOR AND OTHER ACTIONS FOLLOWING EXECUTION

 

## 25.1         The Tribe shall submitthis Agreement to the United States Department of the Interior for either (a) approvalpursuant to 25 U.S.C. § 81, or (b) a written response that this 

 

46

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## Agreement does not require approval under 25 U.S.C. § 81.  A response from the Department of theInterior shall not be a condition to the County’s obligations under Section 25.3below.

##  

## 25.2         The County, at its solediscretion, has the right to withdraw its support for the Agreement if it isnot submitted to the Department of the Interior pursuant to this Section withinten (10) days following the Effective Date.

##  

## 25.3         Upon the Tribe’ssubmission both of this Agreement to the DOI and of the Williamson Act contractrescission and non-renewal requests to the County, and regardless of theoutcome as to either, and following acceptance of the Emergency Access Roadplans, which acceptance shall not be unreasonably withheld, the County shallwithdraw its opposition to the Dugan Property fee to trust application,consider the Tribe’s request to rescind the Williamson Act contract on theterms provided for in this Agreement, withdraw its and its officials’ proteststo the Tribe’s application for an ABC license, support an expedited conclusionof the ABC hearing consistent with this Agreement, and join the Tribe inactively advocating that the ABC issue a temporary license.

##  

## 25.4         If the Department ofInterior determines that portions of this Agreement violate 25 U.S.C. § 81 orare otherwise invalid, the severability provisions set forth below at Section 26.5of this Agreement shall govern.

##  

# **XXVI.**             MISCELLANEOUSPROVISIONS

 

## 26.1         Authority Over TribalActivities.  Nothing in thisAgreement is intended to confer or expand the jurisdiction of any local, stateor federal agency or other governmental body, nor is this Agreement intended toinfringe or otherwise usurp the authority of any regulatory body includinglocal, state, federal or Tribal agencies that may have jurisdiction over orrelated to Tribal activities, development or Projects.  Further, nothing in this Agreement shall beconstrued to relieve the BIA’s or Tribe’s obligation to comply with theNational Environmental Policy Act (NEPA) as may be required as part of anytrust application or any other Project requirement.  The County acknowledges that to the extentrequired by applicable law, activities that normally require County permittingare exempt from such requirements when they take place on the Reservation orTribal Trust Land due to Tribal sovereignty and preemptive, plenary federalpower over Indian affairs.  The Tribesimilarly acknowledges and agrees that its development projects located on feelands located within the County’s geographical boundaries shall conform toCounty permitting and other regulatory requirements.

##  

## 26.2         Third PartyBeneficiaries.  This Agreement is notintended to, and shall not be construed to, create any right on the part of athird party including, without limitation, no rights in any Interested Persons,nor does it create any private right of action for any third party nor permitany third party to bring an action to enforce any of its terms.

##  

## 26.3         Amendments.  This Agreement may be modified or amendedonly by mutual and written agreement of the Parties.

##  

## 26.4         Final Agreement.  This Agreement contains the entire agreementof the Parties as to the subject matter herein and supersedes any otheragreements of the Parties to the contrary. The Agreement is intended both as the final expression of the agreementbetween the Parties 

 

47

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## with respect to the included terms and as a complete and exclusivestatement of the terms of the Agreement consistent with California Code ofCivil Procedure Section 1856.  Nomodification of this Agreement shall be effective unless and until suchmodification is evidenced by a writing approved and signed by the Parties.

##  

## 26.5         Severability ofProvisions.  The invalidity of anyprovisions or portion of this Agreement as determined by a court of competentjurisdiction or the United States Department of the Interior shall not affectthe validity of any other provisions of this Agreement or the remainingportions of the applicable provisions, unless such provision is material to thereasonable expectation of the Parties. Without limiting the foregoing, if the Agreement or any provisionthereof is declared invalid by a court of competent jurisdiction or theDepartment of Interior, then the Parties shall use their best efforts torenegotiate the terms of the invalid provisions.  In the event that the Parties are unable tosuccessfully renegotiate the invalid terms, they shall resolve the matters atissue through the dispute resolution provisions of this Agreement which shallallow an arbitrator to modify, terminate or rescind, this Agreement in theevent that material terms of this Agreement are determined to be void or arematerially changed and shall apply the standards and limitations set forth in Section 20.2.

##  

## 26.6         Force Majeur.  The Parties shall not be liable for anyfailure to perform, or for delay in performance of a party’s obligations, andsuch performance shall be excused for the period of the delay and the period ofthe performance shall be extended when a force majeur event occurs; providedhowever that the party whose performance is prevented or delayed by such eventof force majeur shall give prompt written notice (i.e., within 72 hours of theevent) of such event to the other party. For purposes of this Section, the term “force majeur” shall include,without limitation, war, epidemic, rebellion, riot, civil disturbance,earthquake, fire, flood, acts of governmental authorities, acts of God, acts ofterrorism (whether actual or threatened), acts of the public enemy and ingeneral, any other severe causes or conditions beyond the reasonable control ofthe Parties, the consequences of which in each case, by exercise of dueforesight such party could not reasonably have been expected to avoid, andwhich by the exercise of due diligence it would not have been able to overcome,when such an event prevents the Tribe from meeting its obligations under thisAgreement due to Gaming Activities ceasing operations for an extended period orprevents the County from meeting its obligations under this Agreement due to aninterruption of County government operations. An interruption of performance, or the delayed occurrence of any event,under this Agreement caused by an event of force majeur shall as far aspractical be remedied with all reasonable dispatch.  During any period in which a party is excusedfrom performance by reason of the occurrence of an event of force majeur, theparty so excused shall promptly, diligently, and in good faith take allreasonable action required in order for it to be able to commence or resumeperformance of its obligations under this Agreement.

##  

## 26.7         Governing Law.  This Agreement shall be construed accordingto applicable federal and California substantive law to the extent notinconsistent with the express provisions of this Agreement, unless federal lawas to the Tribe or the County, or California law as to the County, prohibitssuch Parties from abiding by such express provision, in which case theprovision will be deemed to be invalid and resolved, if possible, under theseverability provisions in Section 26.5. Notwithstanding the foregoing, California rules of constructionshall be applied in interpreting this Agreement. This Agreement shall be deemedto have been drafted jointly by 

 

48

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## the Parties and shall not be construed as having been drafted by, orconstrued against, one party against another.

##  

## 26.8         Obligations toContinue.  Unless specificallydesignated otherwise, all of the Parties’ obligations under this Agreementshall continue through the Term, including any extensions thereof.  Notwithstanding the end of the Term, anycovenant, term or provision of this Agreement which, in order to be effective,or is necessary to enforce an unfulfilled material term of this Agreement orobligation that may continue beyond the end of the Term shall survivetermination.

##  

## 26.9         Payments.  Unless otherwise indicated, all payments madepursuant to this Agreement shall be made payable to the County of Sonoma andsent to the Office of the Auditor, County of Sonoma, on the schedule set outabove.

##  

## 26.10       Representations.  By entering into this Agreement eachsignatory represents that, as of the execution date, the undersigned has theauthority to execute this Agreement on behalf of their respective governingbodies.  Each signatory will providewritten proof of such authority and ratification of the Agreement by therespective governing body as provided above.

##  

## 26.11       Duplicate Originals.  At least two copies of this Agreement shallbe signed and exchanged by the Parties each of which shall be considered anoriginal document.

##  

## 26.12       Approval. Each Party’sexecution, delivery and performance of this Agreement shall be approved by resolutionof each party’s respective governing body, which shall provide that the partyshall not enact a law impairing the rights and obligations under thisAgreement.

##  

## 26.13       Obligation on RelatedEntities.  This Agreement binds theParties and their departments, affiliates, agents, representatives, successors,contractors, officials and related entities, which such Agreement shall also bereflected in a resolution of each Party’s respective governing body approvingthe Agreement.

##  

INWITNESS WHEREOF, the Parties hereby execute and enter into this Agreement withthe intent to be bound thereby through their authorized representatives whosesignatures are affixed below.

 

 
| Dated: |   | DRY CREEK RANCHERIA BAND OF POMO |
|--------|--------|----------------------------------|
|   |   | INDIANS                          |
|   |   |                             |
|   |   |                             |
|   |   | BY:                              |   | /s/ Harvey Hopkins |
|   |   |                             |   | Harvey Hopkins, Tribal Chairperson |
|   |   |                             |   | Dry Creek Rancheria Band of Pomo  Indians |

 

49

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| ATTEST:                                       |   |                            |
|-----------------------------------------------|--------|---------------------------------|
|                                          |   |                            |
| Dated:                                        |   |                            |
|                                          |   |                            |
| /s/ Marjie Rojes                              |   |                            |
| MARJIE ROJES,                                 |   |                            |
| Tribal Secretary                              |   |                            |
|                                          |   |                            |
|                                          |   |                            |
| Dated:                                        |   | COUNTY OF SONOMA                |
|                                          |   |                            |
|                                          |   |                            |
|                                          |   | BY:                             |   | /s/ Mike Kerns |
|                                          |   |                            |   | Mike Kerns, Chairperson |
|                                          |   |                            |   | Sonoma County Board of Supervisors |
|                                          |   |                            |
| ATTEST:                                       |   |                            |
|                                          |   |                            |
| Dated:                                        |   |                            |
|                                          |   |                            |
| /s/ Bob Deis                                  |   |                            |
| BOB DEIS,                                     |   |                            |
| ex-officio Clerk of the Board of  Supervisors |   |                            |
|                                          |   |                            |
|                                          |   |                            |
| APPROVED AS TO FORM:                          |   |                            |
|                                          |   |                            |
| Date:                                         |   | HOLLAND & KNIGHT LLP   |
|                                          |   |                            |
|                                          |   |                            |
|                                          |   | BY:                             |   | /s/ Jerome L. Levine |
|                                          |   |                            |   | JEROME L. LEVINE, Counsel |
|                                          |   |                            |   | For Dry Creek Rancheria |
|                                          |   |                            |   |   |
| Dated:                                        |   | OFFICE OF THE COUNTY COUNSEL    |
|                                          |   | STEVEN WOODSIDE, County Counsel |
|                                          |   |                            |
|                                          |   |                            |
|                                          |   | BY:                             |   | /s/ Bruce D. Goldstein |
|                                          |   |                            |   | BRUCE D. GOLDSTEIN, |
|                                          |   |                            |   | Assistant County Counsel |

 

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**EXHIBIT A**

** **

**MITIGATION MEASURESAND MONITORING PROGRAM**

** **

Thefollowing is a chart of the mitigation measures agreed to as part of theMemorandum of Agreement (“MOA”) between the Dry Creek Rancheria Band of PomoIndians (“Tribe”) and the County of Sonoma (“County”) with respect to theResort Project and Dugan Property development. This Exhibit A is a part of the MOA and is to be interpreted inaccordance with its provisions.  Nothingin this Exhibit shall be deemed or shall be construed to conferjurisdiction on the County over the Tribe, the Rancheria or the activitiesconducted on the Rancheria, including the Resort and Dugan projects.  Disputes under Exhibit A shall beresolved based on the contractual terms of the MOA through the mechanismindicated in the Dispute Resolution Forum or Process category.  As used in Exhibit A, “feasible” meanscapable of being accomplished in a successful manner within a reasonable periodof time, taking into account economic, environmental, legal, social, andtechnological factors.  Further, as usedin this Exhibit in the Dispute Resolution Forum or Process section,reference to “Meet and Confer” means the term is subject to the meet and conferprocess of MOA Section 20.1 only and reference to “MOA Dispute ResolutionProcess” means the term is subject to the binding arbitration process containedin MOA Sections 20.2 and Fire Protocol refers to the Fire Protocol attached as Exhibit G.

** **
| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       | ** ** | **Dispute  Resolution Forum  or Process**                                                  | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|------------------------------------------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        | ** ** | ** **                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| **Part A**         | ** ** | **Resort Project Mitigation. These mitigation  measures are applicable to the Resort Project only.**                                                                                                                                                                                                                                                                                                                                                                                                                                                                              | ** ** | ** **                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        | ** ** | ** **                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **LEED  Certification**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** ** | ** **                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        | ** ** | ** **                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.1                     |       | The  Tribe will apply for Leadership in Energy and Environmental Design (LEED)  certification from the U.S. Green Building Council for the hotel portion of  the Resort Project. The granting of such application is not a requirement of  the MOA and is not subject to the dispute resolution provisions of the MOA.                                                                                                                                                                                                                                                            |       | MOA  Dispute Resolution process as to the submittal of the application for LEED  certification only. | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                                                                                                 | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Fire  Suppression**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             | ** ** | ** **                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        | ** ** | ** **                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.2                     |       | During  construction, staging areas, welding areas, and other areas slated for  development using spark-producing equipment will be cleared of dried  vegetation and combustible materials that could serve as fire fuel to the  extent reasonable. The Tribe will prepare a vegetation management plan for  the Resort Project after construction. Such plan, during and after  construction, will include, where feasible, the removal of extremely  flammable non-landscaping vegetation around structures to create a defensible  space of up to 100 feet from the structure. |       | Meet  and confer only. (*See*also Fire  Protocol)                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                                                                                                 | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Aesthetics**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | ** ** | ** **                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        | ** ** | ** **                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.3.a                   |       | When the Tribe’s preliminary design plans for  building, lighting, and landscaping become available, the Tribe will                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       | MOA  Dispute Resolution process as                                                                   | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 1 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               | ** ** | **Dispute  Resolution Forum  or Process**                                                                 | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------------------------------------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                | ** ** | ** **                                                                                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       | transmit such plans to the County for review  and comment.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       | to  the transmission of such plans only.                                                                            | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.3.b                   |       | The  preliminary design plans will include the colors and materials of proposed  buildings, as well as lighting and landscaping details.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |       | Meet  and confer only.                                                                                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.3.c                   |       | Before  the Tribe makes final building, landscaping, and lighting decisions, the  County, Tribe, and Tribe’s building, landscaping, and lighting consultants  will meet and confer to discuss the preliminary design plans. The Tribe will  seriously consider any recommendations by the County, particularly those  which are in keeping with the Tribe’s plan on adopting Tuscan themes and  architectural suggestions and colors, but will retain sole discretion  regarding final color, lighting, landscaping and other aesthetic decisions.  Such design plans will include the provisions of A.3, A.4, and A.5.a.                       |       | MOA  Dispute Resolution process as to the holding a meet and confer only.

 

Remainder  meet and confer only. | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.3.d                   |       | Groupings  of large 48-72” box evergreen trees and other appropriate trees and shrubs  will be planted to screen, to the extent feasible, the northern parking  garage exposed to valley views from County roadways, in keeping with the  Tribe’s design aesthetic.                                                                                                                                                                                                                                                                                                                                                                             |       | Meet  and confer only.                                                                                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.3.e                   |       | To  the extent practicable, berms or other earthen mounds, and Evergreen trees  and shrubs, including large trees and plantings for large walls and  buildings, will be employed to help blend or screen lower building levels,  foundations, sheer walls, parking garages, retaining walls, water tanks, and  utility structures. Where feasible and in keeping with the Tribe’s design  aesthetics, such trees and shrubs shall be placed in natural groupings to  break up linear rows of plantings. The kind, style, variety, size and shape  of any berms, mounds, trees or vegetation shall be determined by the Tribe in  its sole discretion |       | Meet  and confer only.                                                                                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.3.f                   |       | Where  feasible, as determined by the Tribe, new power and communication utilities  that require above ground wiring that is visible from off-Reservation valley  views will be placed underground. Such undergrounding of utilities will not  be required where placement would result in significant adverse environmental  effects. Where undergrounding is not feasible, utilities will be  substantially screened from valley views.                                                                                                                                                                                                                 |       | Meet  and confer only.                                                                                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 2 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   | ** ** | **Dispute  Resolution Forum  or Process**                                                                                       | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       |                                                                                                                                      | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.3.g                   |       | If  the Tribe locates the temporary office trailers on top of the existing  parking garages, the Tribe will lessen the aesthetic impact of temporary  office trailers from valley views through potted trees and other landscaping,  exterior paint colors that are non-reflective and are neutral colors that  complement the adjacent environment. The Tribe will remove all temporary  office trailers from the top of the existing parking garages upon completion  of Phase I unless otherwise agreed to by the parties. The Tribe may reinstall  temporary office trailers on top of the existing parking garages if necessary  for construction of Phase II, but will remove them upon completion of Phase  II. Upon the Tribe’s request, the County will meet and confer regarding  moving the location of such temporary office trailers to the Dugan Property. |       | MOA  Dispute Resolution process.                                                                                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       |                                                                                                                                      | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Night  Lighting – Interior**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** ** | ** **                                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | ** ** | ** **                                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.4.a                   |       | Interior  lighting plans will be designed to meet or exceed Title 24 energy efficiency  standards.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |       | MOA  Dispute Resolution process.                                                                                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       |                                                                                                                                      | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.4.b                   |       | Light  fixtures in the existing parking garages will be replaced within a time  period no longer than that specified by LEED regulations. Such replacement  will reduce the energy and light output to a minimum level necessary for  security cameras and public safety and commercial needs and in keeping with  all applicable laws and regulations and insurance requirements. Light bulbs  visible from valley views will be shielded to the maximum extent feasible.                                                                                                                                                                                                                                                                                                                                                                                                    |       | MOA  Dispute Resolution process.                                                                                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       |                                                                                                                                      | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.4.c                   |       | The  Tribe is committed to minimizing night light pollution from the Resort  Project, including light emanating from hotel guest room windows. As part of  this effort, all hotel guest rooms facing the valley floor will have  low-emissivity (Low-E) glazing where feasible and in keeping with the Tribe’s  design aesthetic. The Tribe also agrees to shield or shade light bulbs in  those rooms whose light is visible to the valley floor.                                                                                                                                                                                                                                                                                                                                                                                                                       |       | MOA  Dispute Resolution process.                                                                                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       |                                                                                                                                      | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Night  Lighting – Exterior**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** ** | ** **                                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | ** ** | ** **                                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.5.a                   |       | As  set forth in Section A.3.a above, the Tribe will submit a preliminary  lighting plan to the County, meet and confer with the County regarding the  preliminary plan, and seriously consider any recommendations by the County.  Unless otherwise agreed to by the parties, the Tribe will incorporate the  following design criteria as part of designing such plan for the Resort  Project:                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       | MOA  Dispute Resolution process as to the submission of the preliminary lighting  plan only.

 

Meet  and Confer for the remainder. | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 3 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               | ** ** | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       | i.      The  Tribe will use the least amount of lighting equipment possible to achieve the  goals of the project, while balancing the quantity of equipment used with the  need to provide for glare control and uniform lighting, safety and commerce  and in keeping with all applicable laws and regulations and insurance  requirements.

 

ii.     Exterior  lighting plans will be designed to meet or exceed Title 24 LZ2 energy  efficiency standards for rural areas.

 

iii.    Where  feasible and in keeping with Tribe’s design aesthetics, luminaire locations  will be selected to minimize glare and contain light within the design area  and shield light sources from valley views.

 

iv.    All  new outdoor roadway and parking area lighting will consist of high-pressure  sodium or low-wattage metal halide or comparable sources in full cutoff  shielded luminaries, unless necessary to meet applicable laws and regulations  or insurance requirements. The intensity of all outdoor lights will be kept  to a minimum necessary for safety and commerce and in keeping with all  applicable laws and regulations and insurance requirements.

 

v.     All  permanent exterior decorative lighting with transparent or translucent shades  will utilize an integral lamp shield. These fixtures will be for decorative  purposes only, and not used for general site lighting. Lighting under  building canopies or rooftops not visible from the valley floor (e.g. port  cochere, arcades, porticos etc.) or otherwise not visible from the valley  floor will be exempt from this requirement. Lighting under building canopies  or rooftops that is visible from the valley floor will be fully shielded from  valley views.

 

vi.    All  permanent exterior site lighting visible to the valley will utilize shielded  luminaries with horizontal cutoff optics to minimize or eliminate all light  directed above the horizontal. All permanent exterior site lighting visible  to the valley will use high efficacy sources, such as Compact Fluorescent or  Ceramic (metal halide). In such locations, high wattage incandescents will  not be utilized for site lighting. Maximum wattage of any permanent lamp used  for exterior site lighting will be 100 watts unless required for roadway  (street) or security lighting. |       |                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 4 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  | ** ** | **Dispute  Resolution Forum  or Process**                  | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|----------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       |                                                                 | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.5.b                   |       | Holiday  lighting (“Christmas Lights,” or festoon string lights) may be used during  holidays for not more than 60 days at a time. Nothing herein is intended to  limit the use of low-level, decorative “twinkle”– type lights (whether or not  actually twinkling) however, where feasible, such lights will be placed so as  not to create a significant visual impact to the valley floor.                                                                                                                                                                                                                                                                                                                                      |       | MOA  Dispute Resolution process.                                     | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       |                                                                 | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.5.c                   |       | Outdoor  on-Reservation signs that contain neon, readerboard or are internally lit, if  any, will not be visible from valley views or beyond the Reservation  boundaries, except at the intersection of BIA 93 and State Route 128 and any  additional access road where such sign(s) will not  contain neon but may be internally or externally lit and will be no larger  than legally permitted entrance signs for commercial ventures in rural areas  within an eight mile radius of the Rancheria. The Tribe will provide a design  plan for such sign(s) to the County for review and comment and will  seriously consider any recommendations that the County has regarding such  sign(s).                                                  |       | MOA  Dispute Resolution process.                                     | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       |                                                                 | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Air  Quality – Construction**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         | ** ** | ** **                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   | ** ** | ** **                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.6.a                   |       | The  Tribe will adopt a law that regulates construction air quality emissions at least  as strictly as the Chapter 4, Rules 410 and 430 of the District  Rules of the Northern Sonoma County Air Pollution Control District  (“NSCAPCD”) in effect at the time of the effective date of this Agreement.  Nothing herein is intended or shall be deemed to confer jurisdiction on the  NSCAPCD for enforcement or any other purposes.                                                                                                                                                                                                                                                                                                     |       | MOA  Dispute Resolution process as to the adoption of such law only. | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       |                                                                 | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.6.b                   |       | The  Tribe will require its construction contractors to implement an appropriate  dust abatement program during construction, including, but not limited to,  the following measures:

 

i.      Water  all active construction areas daily to the extent necessary. Increase  watering as necessary when wind speeds exceed 15 mph during dry conditions.

 

ii.     Apply  asphalt, oil, water or suitable chemicals on unpaved roads, parking areas,  staging areas, materials stockpiles, and other surfaces at construction sites  that can give rise to airborne dust.

 

iii.    Sweep  all paved construction site areas so as to maintain them in a clean  condition. |       | Meet  and confer only.                                               | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 5 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               | ** ** | **Dispute  Resolution Forum  or Process**                                                              | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|------------------------------------------------------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       | iv.    Sweep  streets if visible soil material is carried onto adjacent public streets so  as to maintain them in a clean condition.

 

v.     Hydroseed  or apply (non-toxic) soil stabilizers or otherwise cover or stabilize exposed  disturbed soils that have remained inactive for ten days or more during  October 15th to April 15th.

 

vi.    Limit  traffic speeds on unpaved roads and circulation areas to 15 mph, install  sandbags or other erosion-control measures to prevent silt runoff to public  roadways.

 

vii.   Replant  vegetation in disturbed areas as quickly as possible.

 

viii.  Designate  a person or persons to monitor the dust control program and order increased  watering if necessary to prevent offsite transport of dust. |       |                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Air  Quality – Operations**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        | ** ** | ** **                                                                                                       | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                | ** ** | ** **                                                                                                       | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.7.a                   |       | Any  generators purchased or leased after the effective date of this Agreement  will comply with the requirements and standards set by the California Air  Quality Board (“CARB”), including those articulated in the California Code of  Regulations, title 17, sections 93115-93115.5 and 93116-93116.5, in effect at  the time of such purchase or lease. Nothing herein is intended or shall be  deemed to confer jurisdiction on CARB for enforcement or any other purposes.                                                                                                                                                                                                                                                                                                                                                                               |       | MOA  Dispute Resolution process.                                                                                 | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.7.b                   |       | Preference  will be given in contract negotiations, which take place after the effective  date of this Agreement, to bus transportation companies providing buses  powered by natural gas or other low emission alternative fuel, provided that  the pricing and rates of such companies are comparable to other bus companies  not using such fuel.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       | MOA  Dispute Resolution process.

 

                                                                  | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.7.c                   |       | The  Tribe will adopt and enforce a law prohibiting the open burning of refuse  from Resort Project operations.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |       | MOA  Dispute Resolution process as to the adoption of the law only.

 

Meet  and Confer for the remainder. | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.7.d                   |       | A  non-smoking area will be provided in the casino area and a ventilation system  will be utilized throughout the gaming                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |       | MOA  Dispute Resolution process.                                                                                 | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 6 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  | ** ** | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       |                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       | facility  that exhausts tobacco smoke.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       |                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       |                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.7.e                   |       | The  Tribe will implement the measures specified in the serpentine soils hazard  dust mitigation plan required for the Dugan Project, as stated in the Final  Environmental Assessment, if serpentine soils are found on the Resort Project  site.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |       | Meet  and confer only.                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       |                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.7.f                   |       | The  Tribe will, where it determines it is feasible and practical, implement the  following control measures to reduce emissions of CO2 and other greenhouse  gases:

 

i.      Install  temporary electrical service installation to avoid the need for independently  powered equipment (e.g., compressors) where reasonable.

 

ii.     Restrict  idling of non-construction diesel equipment (other than for emergency  purposes) and commercial vehicles, including delivery vehicles but excluding  buses, to no more than 20 minutes.

 

iii.    Promote  ride-sharing programs, including but not limited to a trip reduction program  for employees. The Tribe may accomplish these programs by designating parking  spaces for high-occupancy vehicles, providing preferred parking for employee  carpools, providing larger parking spaces to accommodate vans used for  ride-sharing, and designating adequate passenger loading and unloading and  waiting areas. |       | MOA  Dispute Resolution process.                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       |                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Biological  Resources**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.8.a                   |       | Underground  placement of utilities will be designed to minimize tree damage and removal.  Any trees removed shall be replaced at a 3-to-1 ratio and maintained for  three years after the planting.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       | MOA  Dispute Resolution process.                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       |                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.8.b                   |       | With  regard to road improvements along State Route 128 that requires construction  in waters of the United States, the Tribe shall make a good faith effort to  work with Caltrans and/or other permitting authorities to develop mitigation  measures to reduce or eliminate impacts to aquatic species during the removal  and replacement of the culvert at State Route 128 if that action is required  for roadway improvements. These measures may include limiting construction  activities to the dry season as determined by NOAA Fisheries, implementing construction  BMPs and onsite restoration of temporarily impacted areas.                                                                                                                                                                                                                                                                                                                                                                                                                  |       | Meet  and confer only.

 

** **          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 7 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               | ** ** | **Dispute  Resolution Forum  or Process**               | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Water  Quality**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        | ** ** | ** **                                                        | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                | ** ** | ** **                                                        | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.9.a                   |       | The  Tribe will concurrently provide the County a copy of its annual Consumer  Confidence Report prepared by the Tribe after the effective date of this  Agreement when it sends its report to the Environmental Protection Agency.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       | MOA  Dispute Resolution process as to providing such copy only.   | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.9.b                   |       | The  Tribe will use a California State certified lab to test samples taken under  the sampling plan.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       | MOA  Dispute Resolution process.                                  | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.9.c                   |       | The  Tribe will concurrently provide the County a copy of its sampling plan  prepared by the Tribe when it sends its plan to the Environmental Protection  Agency, and will meet and consult with the County regarding such sampling  plan.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       | MOA  Dispute Resolution process as to provision of the plan only. | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.9.d                   |       | The  Tribe will comply with drinking water quality standards no less stringent  than the federal Safe Drinking Water Act.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       | Meet  and confer only.                                            | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       |                                                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Surface  Water Quality**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                | ** ** | ** **                                                        | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                | ** ** | ** **                                                        | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.10.a                  |       | The  Tribe will take reasonable measures to prevent petroleum-related pollutants  from being carried from roadway surfaces into Rancheria Creek, including, but  not limited to, the following measures:

 

i.      “Fossil  Filters” or an equivalent product will be installed at the drainage  structures that collect roadway runoff. The filters will be regularly  inspected and replaced as necessary during the rainy season to maintain  effectiveness. The used filters will be handled and disposed of in accordance  with all applicable laws.

 

ii.     “Stormcepter”  grease and sediment traps or an equivalent product will be installed in the  storm drain lines just upstream of the discharge points into the creek. The  traps will be periodically cleaned out and the trapped material disposed of  in a proper manner.

 

iii.    In  lieu of the combined “Fossil Filters” and “Stormceptor” grease and sediment  traps, a stormwater treatment method from “Guidelines for the Standard Urban  Stormwater Mitigation Plan Stormwater Best Management Practices for New  Development and Redevelopment for the Santa Rosa Area and Unincorporated  Areas around Petaluma and Sonoma,” dated June 3, 2005, may be utilized. |       | Meet  and confer only.                                            | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 8 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      | ** ** | **Dispute  Resolution Forum  or Process**                                                                                   | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |       |                                                                                                                                  | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Drainage  and Stormwater**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     | ** ** | ** **                                                                                                                            | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       | ** ** | ** **                                                                                                                            | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.11.a                  |       | Drainage  improvements will be designed by a registered Civil Engineer and will comply  with the Tribe’s Ordinance requirements on post construction stormwater  runoff control. The Tribe’s Ordinance will adopt standards that are no less  stringent then the EPA’s current regulations on post construction stormwater  run off control.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       | Meet  and confer only.                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |       |                                                                                                                                  | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.11.b                  |       | The  Tribe will provide the County with a copy of its current construction  Stormwater Pollution Prevention Plan (“SWPPP”), including any final  amendments (but excluding daily inspection and adjustment documentation), for  both the existing Casino and all future Gaming Facility construction SWPPPs.  The Tribe will consult with the County in good faith regarding the adequacy  of any SWPPP component and will seriously consider any feasible and  reasonable comments and recommendations. Nothing herein is intended or shall  be deemed to confer jurisdiction on the County for enforcement or any other  purposes.                                                                                                                                                                                                                                                                                                                                                                                   |       | MOA  Dispute Resolution process for providing copy of SWPPP only.

 

Meet  and confer only for remainder of mitigation measure. | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |       |                                                                                                                                  | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.11.c                  |       | The  Tribe will prepare a construction SWPPP for the construction of the Resort  Project. The Tribe will implement the Best Management Practices (BMPs) set  forth in its SWPPP to avoid downstream impacts, including channel erosion and  sedimentation in Stream P1 (as such term is identified in the Tribe’s NPDES  permit application). The BMPs will be based on the latest editions of the  following publications:

 

i.      California  Stormwater BMP Handbook (www.cabmphandbooks.com), by the California  Stormwater Quality Association;

 

ii.     Erosion  and Sediment Control Field Manual, by the San Francisco Bay Regional Water  Quality Control Board;

 

iii.    Manual  of Standards for Erosion & Sediment Control, by the Association of  Bay Area Governments; and

 

iv.    Construction  Site Best Management Practices Manual, by the California Department of  Transportation. |       | Meet  and confer only.                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |       |                                                                                                                                  | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.11.d                  |       | The  SWPPP will include schedules for construction, maintenance, and inspection of  proposed BMPs.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       | Meet  and confer only.                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |       |                                                                                                                                  | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.11.e                  |       | The  Tribe will inspect its erosion prevention and sediment control measures  before forecasted storm events and after actual storm events to ensure that  measures are functioning properly. “Storm events” are events that produce at  least                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       | Meet  and confer only.                                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 9 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          | ** ** | **Dispute  Resolution Forum  or Process**                                                                                                                                                                          | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       |                                                                                                                                                                                                                         | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       | one  (1) inch of precipitation in a 24-hour period. The Tribe will promptly  replace erosion prevention and sediment control measures that have failed or  are no longer effective.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |       |                                                                                                                                                                                                                         | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       |                                                                                                                                                                                                                         | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Wastewater**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       | ** ** | ** **                                                                                                                                                                                                                   | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** ** | ** **                                                                                                                                                                                                                   | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.12.a                  |       | The  Tribe will make a good-faith effort at all times to employ a lead wastewater  plant operator that is a certified Grade II operator or higher classification  or equivalent experience.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       | Meet  and confer only.                                                                                                                                                                                                       | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       |                                                                                                                                                                                                                         | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.12.b                  |       | Treated  wastewater storage ponds will be double lined and include both electronic  monitoring devices to detect leakage and a leachate collection and removal  system between the two liners constructed in accordance with applicable  federal and Tribal regulations.                                                                                                                                                                                                                                                                                                                                                                                                                                                             |       | Meet  and confer only.                                                                                                                                                                                                       | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       |                                                                                                                                                                                                                         | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.12.c                  |       | The  Tribe will maintain equipment that automatically shuts off treated wastewater  used for irrigation if a significant leak occurs in the irrigation system  equipment.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |       | MOA  Dispute Resolution process.                                                                                                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       |                                                                                                                                                                                                                         | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.12.d                  |       | To  the extent feasible, the Tribe will significantly reduce the aesthetic impact  of storage tanks over 30,000 gallons from valley views through exterior paint  colors that are non-reflective and are neutral colors that complement the  adjacent environment, vegetative screening, and other practical measures. The  Tribe will provide the County with a sample of such colors and any proposed  vegetative screening and other practical measures and will meaningfully  consider any input the County may have regarding such color choice and any  proposed vegetative screening and other practical measures.                                                                                                            |       | MOA  Dispute Resolution process.                                                                                                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       |                                                                                                                                                                                                                         | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.12.e                  |       | The  Tribe agrees to share with the County its engineering design report with  supporting computations, construction drawings, specifications, and operating  plans for effluent storage and irrigation facilities pursuant to its existing  NPDES permit. The Parties will make good-faith efforts to resolve any  concerns regarding the design, rated disposal capacity, or proposed operation  of the effluent storage and irrigation facilities. Such discussions, and any  information obtained therefrom, are subject to the confidentiality provisions  set forth in Section 19 of the MOA. Nothing herein is intended or shall  be deemed to confer jurisdiction on the County for enforcement or any other  purposes. |       | MOA  Dispute Resolution process regarding sharing of information and compliance  with confidentiality provisions only.

 

Meet  and confer regarding the remainder, including good-faith efforts to resolve  concerns. | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       |                                                                                                                                                                                                                         | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.12.f                  |       | In  recognition of the government-to-government relationship between the Tribe  and County, the Tribe agrees to meet and confer with the County regarding its  wastewater                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |       | MOA  Dispute Resolution process regarding participation                                                                                                                                                                      | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 10 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | ** ** | **Dispute  Resolution Forum  or Process**                                                                                                                                              | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |       |                                                                                                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       | operations  and to provide a tour for the County upon reasonable request by the County.  Such discussions, tour and any information obtained during such discussions  are subject to the confidentiality provisions set forth in Section 19 of  the MOA. The Parties will make good-faith efforts to resolve any concerns  regarding the Tribe’s wastewater operations subject to the limitations set  forth in Section 5.3.21 of the MOA.                                                                                                                                                                                                                                                                                                                                                                                      |       | in  meet and confer and provision of tour and compliance with confidentiality  provisions.

 

Meet  and confer regarding the remainder, including good-faith efforts to resolve  concerns. | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |       |                                                                                                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.12.g                  |       | The  Tribe agrees to contact and meet and confer with the County before deciding  to apply for a new NPDES permit or any major modification of its existing  NPDES permit for the discharge of treated wastewater on the Rancheria. The  Tribe agrees to share with the County its engineering design report with  supporting calculations, construction drawings, specifications, and operating  plans for the potential new or modified wastewater treatment facility. Such  discussions, and any information obtained there from, are subject to the  confidentiality provisions set forth in Section 19 of the MOA. The Parties  will make good-faith efforts to resolve any concerns regarding potential  changes to the Tribe’s wastewater operations subject to the limitations set  forth in Section 5.3.21 of the MOA. |       | Meet  and confer only.                                                                                                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |       |                                                                                                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.12.h                  |       | The  Tribe will notify the County within 24 hours of notifying the EPA of any  unlawful discharge of wastewater effluent.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       | MOA  Dispute Resolution process as to notification only.                                                                                                                                         | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |       |                                                                                                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.12.i                  |       | The  County and Tribe will work cooperatively to explore the possibility of having  the Tribe’s wastewater treated off-site or the Tribe providing Title 22 water  for off-Reservation irrigation use.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |       | MOA  Dispute Resolution.                                                                                                                                                                         | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |       |                                                                                                                                                                                             | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Solid  Waste Management**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | ** ** | ** **                                                                                                                                                                                       | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     | ** ** | ** **                                                                                                                                                                                       | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.13.a                  |       | The Tribe will adopt a recycling plan for the  Resort Project and provide a copy of the plan to the County.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |       | MOA  Dispute Resolution process as to the adoption and provision to the County of  such plan only.                                                                                               | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 11 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       | ** ** | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    |       | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |       |                                                |       |                      |       |       |       |                                                                                                               |
|                    |       | **Noise**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       |                                                |       |                      |       |       |       |                                                                                                               |
| A.14.a                  |       | All  generators purchased after the effective date of this Agreement will be  operated with mufflers that meet the applicable requirements of the State  Resources Code and the Vehicle Code at the time of such purchase.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |       | MOA  Dispute Resolution process.                    |       |                      |       |       |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| A.14.b                  |       | The  Tribe will implement a Noise Complaint System.  The Tribe will respond to complaints about  outdoor live music or outdoor amplified sound from the Resort Project  submitted to the Tribe by off-reservation homes  existing at the time of the execution of  the MOA.  The Tribe will investigate  such complaints.  If a complaint cannot  be resolved between the Tribe and the homeowner within a reasonable time, the  Tribe will take noise measurements to document the levels of the outdoor live  music or outdoor amplified sound from the Resort Project at such  off-Reservation residences.  The sound  measurement will measure the L02, which is the sound level exceeded one  minute in any hour.  If measured levels  from such outdoor live music or outdoor amplified sound at the exterior of  the off-Reservation residence exceed a LO2 of 65 dBA before 10 p.m. or  60 dBA after 10 p.m., the Tribe will provide windows rated for a 10 dBA  exterior to interior noise reduction for all habitable rooms on the side of  the residence facing the Rancheria.   The Tribe will set up a procedure for taking and responding to such  complaints, which will include a hotline.   The Tribe will provide specifications for the windows to the  homeowner.  The homeowner will then be  responsible for receiving three (3) bids from qualified contractors to  purchase and install the windows.  The  Tribe will promptly pay the homeowner for the cost of the lowest bid after  the windows are installed and accepted by the homeowner.  The Tribe will pay for normal installation  of the windows but will not pay for any additional work necessary to allow  installation, such as repair of dry rot or termite damage. |       | MOA  Dispute Resolution process.                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                                                |       |                      |       |       |       |                                                                                                               |
| A.14.c                  |       | Construction  contractors will be required to implement “quiet” pile-driving technology  (such as sonic or vibratory pile-driver use; pre-drilling of piles; and  jetted pile-driving), where reasonable, with consideration of geotechnical  and structural requirements and conditions.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       | MOA  Dispute Resolution process.                    |       |                      |       |       |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                                                |       |                      |       |       |       |                                                                                                               |
| A.14.d                  |       | Except  as to any exception agreed to by the parties, following a meet and confer  process, construction activities during nighttime hours (10:00 p.m. to  7:00 a.m.) shall be limited to those related to interior work and  exterior work that                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |       | MOA  Dispute Resolution process.                    |       |                      |       |       |       |                                                                                                               |

 

Exhibit A to MOA

Page 12 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** ** | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       | does  not produce significant noise or require the use of significant noise  producing equipment.  The Tribe will  provide a hotline for nearby residences to call to complain about noise from  construction activities during the nighttime hours of 10:00 p.m. to  7:00 a.m. and will respond to such complaints.  Unresolved complaints shall be subject to  the Noise Complaint System and remediation procedure described in  Section A.14.b. In such circumstances, Section A.14.b shall be read  to require the Tribe to respond to complaints regarding noise from  construction activities on the Rancheria during the nighttime hours of  10:00 p.m. and 7:00 a.m. from residents in existence at the  execution of the MOA and that sound measurements will be taken of noise from  such construction activities at the complaining residence if such complaint  is not resolved between the Tribe and the homeowner within a reasonable  time.  Construction of the Emergency  Access Road, as that term is defined in the MOA, shall meet the provision of  this Section A.14.d and not the provisions set forth in B.8.a.                                                                                                                                                                                                                                                                             |       |                                                |       |                      |       |       |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |       |                                                |       |                      |       |       |       |                                                                                                               |
| A.14.e                  |       | Construction  contractors will be required to implement the following measures to reduce  noise levels due to construction: 

 

i.                  Equipment  and trucks used for project construction will use the industry standard noise  control techniques (e.g., improved mufflers, equipment redesign, use of  intake silencers, ducts, engine enclosures, and acoustically-attenuating  shields or shrouds) wherever reasonable. 

 

ii.               Impact  tools (e.g., jack hammers, pavement breakers, and rock drills) used for  project construction will be hydraulically or electrically powered wherever  reasonable to avoid noise associated with compressed air exhaust from  pneumatically powered tools.  External  jackets on the tools themselves will be used where reasonable.  Quieter procedures, such as use of drills  rather than impact tools, will be used whenever reasonable. 

 

iii.            To  the extent reasonable, stationary noise sources that could affect off-Reservation  residences will be located as far as possible from adjacent receptors, will  be muffled and enclosed within temporary sheds, and will incorporate  insulation barriers or other measures. |       | MOA  Dispute Resolution process.                    |       |                      |       |       |       |                                                                                                               |

 

Exhibit A to MOA

Page 13 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       | ** ** | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| ** **              | ** ** | **Traffic  and Transportation**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                                                |       |                      |       |       |       |                                                                                                               |
| A.15.a                  |       | The  Tribe will install improvements to the intersections of State Route 128 at  BIA 93, and State Route 128 at the Dugan Property entrance in conformance  with Caltrans construction standards (“Intersection Improvement”), if the  rights and approvals necessary to make such improvements are obtained.  Improvements will include acceleration  lanes, deceleration lanes, and a left-turn pocket into BIA 93 and the Dugan  Property.  These improvements will be  installed at the earliest feasible date, subject to Caltrans approval, and  the Tribe will make good faith efforts to obtain all approvals, permits, and  easements necessary for the construction of such improvements.  The cost of such improvements, which will  be constructed at the Tribe’s sole expense, is approximately $4 million for  the Dugan Property intersection and $4 million for the BIA 93 intersection,  exclusive of any land acquisition(s).   The Tribe will not be required to make the improvements where State  Route 128 intersects the Dugan Property entrance if the Tribe obtains another  emergency access road to the existing Reservation.  However, any emergency vehicle access  point, if other than on the Dugan Property, will have an equivalent level of  intersection improvements as agreed above. |       | MOA  Dispute Resolution process.                    |       |                      |       |       |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                                                |       |                      |       |       |       |                                                                                                               |
| A.15.b                  |       | The  Tribe shall provide a Construction Assurance Device, as that term is used in  the MOA, to guarantee construction of the Intersection Improvements in  accordance with accepted plans for the intersection.  The device shall be provided to the County  no later than sixty (60) days following approval of the intersection by  Caltrans.  The purpose of the  Construction Assurance Device shall be to assure the availability of funds to  the County to build or complete the road or to remediate any material  deviation from the agreed upon Intersection Improvement plans approved by  Caltrans, and shall be in substantially the form or method contained in the  MOA.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       | MOA  Dispute Resolution process.                    |       |                      |       |       |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                                                |       |                      |       |       |       |                                                                                                               |
| A.15.c                  |       | The  County will communicate to Caltrans its support of the improvements and  timely provide all available information requested to attempt to expedite  construction.  County acknowledges that  such improvements may require acquisition of certain easements or land  parcel(s), as well as, other permitting matters that may be out of the  Tribe’s control.  Prior to any  construction within a California state right-of-way, the Tribe will submit a  copy of the Caltrans approved Encroachment Permit to the County                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |       | MOA  Dispute Resolution process.                    |       |                      |       |       |       |                                                                                                               |

 

Exhibit A to MOA

Page 14 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        | ** ** | **Dispute  Resolution Forum  or Process**                                                                                                                                                                                                 | ** ** | **Completion  Signature** | ** ** | **Date** | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------|------------|----------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       |                                                                                                                                                                                                                                                |       |                      |       |     |       |                                                                                                               |
|                    |       | Transportation  Department.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |       |                                                                                                                                                                                                                                                |       |                      |       |     |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       |                                                                                                                                                                                                                                                |       |                      |       |     |       |                                                                                                               |
| A.15.d                  |       | The  Tribe will obtain a Construction Assurance Device in connection with the  Intersection Improvements on the same terms and conditions set forth in  Section 7.8 of the MOA.  The Tribe  will expeditiously take all feasible steps to procure any property necessary  to improve the intersection.  If the  required property proves unavailable, the Tribe will make a good-faith effort  to obtain approvals for and implement the following improvements prior to the  opening of any Resort Project:

                                                                                                                                                                                                                                                                                                                                 |       | MOA  Dispute Resolution process.                                                                                                                                                                                                                    |       |                      |       |     |       |                                                                                                               |
|                    |       | i.                  One  combination through-right turn lane on Northbound State Route 128 will be  installed.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                                                                                                                                                                                                                                |       |                      |       |     |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       |                                                                                                                                                                                                                                                |       |                      |       |     |       |                                                                                                               |
|                    |       | ii.               One  combination left-through lane on Southbound State Route 128 will be  installed.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       |                                                                                                                                                                                                                                                |       |                      |       |     |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       |                                                                                                                                                                                                                                                |       |                      |       |     |       |                                                                                                               |
|                    |       | iii.            One  left-turn lane and one right-turn lane (with overlapping phasing) on  Westbound BIA 93 will be installed.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       |                                                                                                                                                                                                                                                |       |                      |       |     |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       |                                                                                                                                                                                                                                                |       |                      |       |     |       |                                                                                                               |
|                    |       | iv.           A  signalized control at the intersection of State Route 128/BIA 93 will be  installed that will operate under “Split” phasing for all three turning  movements.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |       |                                                                                                                                                                                                                                                |       |                      |       |     |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       |                                                                                                                                                                                                                                                |       |                      |       |     |       |                                                                                                               |
| A.15.e                  |       | The  Tribe will make good faith efforts to provide, to the extent permissible,  adequate traffic control on State Route 128, so that vehicles do not queue  beyond the planned turn lanes on State Route 128 as patrons wait for entrance  to the Reservation when parking or other facilities are full or access  otherwise restricted.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |       | MOA  Dispute Resolution process.                                                                                                                                                                                                                    |       |                      |       |     |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       |                                                                                                                                                                                                                                                |       |                      |       |     |       |                                                                                                               |
| A.15.f                  |       | The  traffic mitigation measures of Section 19 of the Conditional Permit for  License attached as Exhibit D of the MOA is hereby incorporated by  reference.  Section 19 provides as  follows:

 

“19      Petitioner  shall make good faith efforts to minimize traffic congestion on Highway 128  caused by activities on the Premises, including construction activities and  Special Events (as defined in this Section 19),  and in the case of a Special Event shall  undertake the following measures:

 

(a)          Petitioner  shall provide to County of Sonoma, the California Highway Patrol and the AVA  at least two weeks’ notice in writing of all Special Events, which notice  will describe the specific mitigation |       | MOA  Dispute Resolution process between the County and the Tribe only.  The terms of this Section A.15.f are  only subject to enforcement as long as such terms are in effect as a  condition of a liquor license for the Resort Project. |       |                      |       |     |       |                                                                                                               |

 

Exhibit A to MOA

Page 15 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  | ** ** | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |              measures  to be taken to minimize congestion from the event.

 

(b)         If  any of the parties entitled to notice pursuant to subparagraph (a) above  has reasonable concerns that the proposed mitigation measures will not be  effective, or if following the Special   Event, a party entitled to notice believes that there was traffic  congestion that could have been mitigated, then at that party’s request,  Petitioner will meet and confer with the authorized representatives of the  parties to discuss possible further mitigation measures to minimize traffic  congestion for the planned occasion or any future similar occasion. 

 

(c)          Petitioner  will make best efforts to secure and utilize offsite parking facilities that  are near Highway 101 but which are not located either on Hwy 128 between the  Geyserville Bridge and the NAPA County line or on Alexander Valley Road  between the intersection of Hwy 128 and the intersection of Healdsburg  Avenue, and will take measures to direct traffic to such parking facilities,  from which transportation by bus or van will be furnished to and from the  Premises.    This parking provision can  be satisfied by the Tribe or another person or entity making such parking  available to the Tribe’s patrons, and may include a privately or publicly  owned park and ride facility.

 

(d)         For  the purposes of this Section 19, a Special Event shall mean an  advertised special drawing or giveaway of a prize worth more than $30,000 or  of an automobile, but does not include any pre-drawing or giveaway qualifying  days or events leading up to such drawing or giveaway.  Except as otherwise agreed by the AVA and  the Tribe, the Tribe agrees not to schedule a special event, as defined  above, during the activities set forth in subparagraphs i) through iii) below  in which the AVA has an interest (“AVA Events”), unless such AVA Events fall  on a Holiday (as defined in paragraph 7 above) or on Valentine’s Day, St.  Patrick’s Day, Cinco de Mayo, Mother’s Day, Father’s Day or Indian Days: 

 

i.                  “Taste  of the Valley” which is held on the first full weekend in June |       |                                                |       |                      |       |       |       |                                                                                                               |

 

Exhibit A to MOA

Page 16 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 | ** ** | **Dispute  Resolution Forum  or Process**                                                                                                                               | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  | ** ** | ** **                                                                                                                                                                        | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       | between  the hours of 10:00 am to 5:00 pm; 

 

ii.               “Alexander  Valley School Annual Spaghetti Dinner & Auction” which isheld on the  first Saturday in March between the hours of 6:00 pm to 11:30 p.m.;  and 

 

iii.            “AVA  Wine Barrel Tasting” which is  held on  the first and second full  weekends in  March between the hours of 10:00 am to 5:00 pm.

 

The  Petitioner and the AVA will meet each January to discuss any potential  conflicting activities so that Petitioner, if at all possible, can avoid  scheduling Special Events on such dates.   If this is not possible, the Petitioner will present a plan for  handling the increase in traffic flow.”

 

The  above terms are subject to amendment and termination.  Tribe is only subject to the above terms as  long as such terms are in effect as a condition of a liquor license for the  Resort Project. |       |                                                                                                                                                                              |       |                      |       |       |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |       |                                                                                                                                                                              |       |                      |       |       |       |                                                                                                               |
| A.15.g                  |       | In  addition to the foregoing, the Tribe will place “no parking” signs on BIA 93  and, if approval is obtained from Caltrans, on SR 128.  The Tribe will make good faith efforts to  obtain all approvals, permits, and easements necessary to install the signs  and will coordinate with applicable law enforcement authorities to reasonably  ensure enforcement of these provisions.   The County will communicate to Caltrans its support of the signage and  timely provide all available information requested to attempt to expedite the  installation of such signs.  The Tribe  will also contract with the California Highway Patrol and/or the County  Sheriff to assist in traffic control for large special events at the  Reservation.  The need for contracted  assistance from the CHP or County Sheriff will be determined by the Tribe.                                                                                                                                                                                                                                                    |       | MOA  Dispute Resolution process.                                                                                                                                                  |       |                      |       |       |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |       |                                                                                                                                                                              |       |                      |       |       |       |                                                                                                               |
| A.15.h                  |       | The  Tribe will monitor Casino related traffic, including special event use, and  share such monitoring information on a quarterly basis with the County for  the purposes of identifying and remedying congestion problems without  affecting the commercial performance, viability and feasibility of the Casino  and Resort Project.  The Tribe and  County will thereafter meet and confer regarding traffic issues, if any.  The information provided to the County will  be subject to the confidentiality provisions contained in Section 19 of  the MOA.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |       | MOA  Dispute Resolution process as to the provision of monitoring, the sharing of  such monitoring, the participation in meet and confer and the compliance with  confidentiality |       |                      |       |       |       |                                                                                                               |

 

Exhibit A to MOA

Page 17 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             | ** ** | **Dispute  Resolution Forum  or Process**                                                                                                                  | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              | ** ** | ** **                                                                                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              | ** ** | provisions.

 

Meet  and confer only regarding the remainder, including the type of monitoring and  any identification and remediation of congestion problems. | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              | ** ** | ** **                                                                                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| **Part B**         | ** ** | **Dugan  Projects. ****These mitigation measures are  applicable to the Dugan Projects only.**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     | ** ** | ** **                                                                                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              | ** ** | ** **                                                                                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| ** **              | ** ** | **Land  Resources**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     | ** ** | ** **                                                                                                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |       |                                                                                                                                                                 |       |                      |       |       |       |                                                                                                               |
| B.1.a                   |       | The  Tribe will have an expanded Geotechnical Study completed to evaluate the  location and placement of the proposed residential units, emergency service  building and vineyard(s).  The study  should evaluate areas of deeper colluvium or on steeper slopes (excess of 25  feet vertical height).  Permanent cut  or fill slopes shall be constructed at inclinations of 2:1 (horizontal:  vertical) or less, as recommended in the project geotechnical report.  Steeper slopes (both cut and fill) may be  achieved if specific design measures demonstrate a satisfactorily level of  safety (i.e., reinforced earth for steeper fill slopes and shotcrete and/or  soil nailing).                                                |       | Meet  and confer only.                                                                                                                                               |       |                      |       |       |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |       |                                                                                                                                                                 |       |                      |       |       |       |                                                                                                               |
| B.1.b                   |       | Mitigation  for lurching and ground cracking will consist of special foundation design,  use of structural retaining walls, and/or moderate set backs from channel  banks depending on the channel depth and location.  In addition, surface and subsurface  drainage improvements shall be designed by a Civil Engineer to include paved  V-ditches, swales, or other methods to collect surface runoff water from the  above planned roads and other improvements to help mitigate lurching and  ground cracking hazard potential.  At a  minimum, surface drainage should be directed to the project storm drainage  system with retaining walls incorporated into the project design to support  excavations into any unstable/wet areas. |       | Meet  and confer only.                                                                                                                                               |       |                      |       |       |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |       |                                                                                                                                                                 |       |                      |       |       |       |                                                                                                               |
| B.1.c                   |       | At  a minimum, mitigation for seismic shaking will include designing the improvements  and structures in accordance with the provisions of the most recent Uniform  Building Code (1997 UBC) or California Building Code (2001 CBC).  UBC/CBC seismic design criteria for the  roadway and infrastructure design as summarized in Table 4-1of the                                                                                                                                                                                                                                                                                                                                                                                                  |       | Meet  and confer only.                                                                                                                                               |       |                      |       |       |       |                                                                                                               |

 

Exhibit A to MOA

Page 18 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** ** | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| ** **              | ** ** | August 2005  Final Environmental Assessment for the Dry Creek Rancheria Fee to Trust  Project.  Subsequent engineering will  address overall site grading, staging and drainage (particularly sub-surface  drainage) to promote long-term stability of site slopes.  This will include the use of retaining  walls along portions of the new road alignment to promote both short term  (during construction) and long term stability of permanent excavations (i.e.,  cut slopes).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| ** **              | ** ** | **Water  Resources**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |       |                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.2.a                   |       | All  construction stormwater pollution prevention plans will include BMPs to  provide effective erosion and sediment control.  These BMPs will be selected to achieve  maximum sediment removal and represent the best available technology that is  economically achievable.  Performance  and effectiveness of these BMPs will be determined either by visual means  where applicable (i.e., observation of above-normal sediment release), or by  actual water sampling in cases where verification of contaminant reduction or  elimination (inadvertent petroleum release) is required to determine adequacy  of the measure.  BMPs to be implemented  as part of this mitigation measure will include, but are not limited to, the  following measures:

 

i.                  BMPs  for temporary erosion control (such as silt fences, staked straw  bales/wattles, silt/sediment basins and traps, check dams, geofabric, sandbag  dikes, and temporary revegetation or other ground cover) will be employed for  disturbed areas, stockpiled soil, and along culverts and drainage ditches on  the site and in downstream off-site areas that may be affected by  construction activities.  Requirements  for the placement and monitoring of the BMPs will become part of the  contractor’s project specifications. Performance and adequacy of the measures  will be determined visually by site construction management and verified by  the Tribe as appropriate. 

 

ii.               Construction  contractors will prepare Standard Operating Procedures for the transportation,  handling and storage of hazardous and other materials (e.g., paints, stucco,  concrete, oils, etc.) on the construction site to prevent discharge of these  materials to surface waters.

 

iii.            Grass  or other vegetative cover will be established on the construction site as  soon as possible after |       | Meet  and confer only.                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 19 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         | ** ** | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                         disturbance.  If grass is chosen, a native seed mix will  be used.  At minimum, vegetative  application will be completed by September 15th to allow for plant  establishment.  No disturbed surfaces  or stockpile areas will be left without erosion control measures in place  during the period of October 1st to April 30th.  Application, schedule, and maintenance of  the vegetative cover will be the responsibility of the contractor and  requirements to establish a vegetative cover will be included in the  construction contractor’s project specifications. 

 

iv.           The  Tribe will ensure, through the enforcement of contractual obligations, that  the construction site will be monitored at least once per week for compliance  with the SWPPP.  Such information shall  be provided to the Tribe’s mitigation monitor.  Quantitative performance standards for  receiving water quality during construction will be consistent with the  Regional Board’s adopted Basin Plan objectives for the Russian River,  applicable TMDL plans and/or CCR Title 22.

 

v.              If  discharges of sediment or hazardous substances to drainage ways are observed,  construction will be halted until the source of contamination is identified  and remediated. Visual indications of such contamination include an oily  sheen or coating on water, and noticeable turbidity (lack of clarity) in the  water. |       |                                                |       |                      |       |       |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                                |       |                      |       |       |       |                                                                                                               |
| B.2.b                   |       | The  Tribe will have a Master Drainage Plan prepared for the project site by a  registered Civil Engineer. The Drainage Plan will incorporate measures to  maintain runoff during peak conditions to pre-construction discharge levels.  The Plan will include the following items:

 

i.                  An  accurate calculation of pre-development runoff conditions and  post-development runoff scenarios will be conducted using appropriate  engineering methods.  This analysis  will more accurately evaluate potential changes to runoff through specific  design criteria.  The model will  account for increased surface runoff.

 

ii.               An  assessment of existing drainage facilities within the project vicinity, and  an inventory of necessary upgrades, replacements, redesigns, and/or  rehabilitation.

 

iii.            Design  specifications for additional retention basins if needed to attenuate peak  flows.  Retention basins will                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |       | Meet  and confer only.                              |       |                      |       |       |       |                                                                                                               |

 

Exhibit A to MOA

Page 20 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     | ** ** | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                         be  sized to result in no net increase in peak stormwater discharge from the  site.

 

iv.           A  description of the proposed maintenance program for the on-site drainage  system. 

 

v.              Standards  for drainage systems to be installed on a project-specific basis.

 

vi.           The  Drainage Plan will include, and the Tribe will implement, a schedule for  identified drainage improvements.  This  approach will ensure that drainage improvements are installed concurrently  with each proposed use (e.g., residential) to avoid exceeding the capacity of  on-site drainage systems and maintaining peak stormwater discharge rates at  pre-project levels.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       |                                                |       |                      |       |       |       |                                                                                                               |   |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |       |                                                |       |                      |       |       |       |                                                                                                               |   |
| B.2.c                   |       | The  Drainage Plan described above in Mitigation Measure B.2.b will include BMPs  to maximize stormwater quality.  The  Drainage Plan will include both BMPs that will address the project site as a  whole, as well as guidance for BMPs to be implemented for specific  future-tenets.  These BMPs will be selected  to achieve maximum contaminant removal and represent the best available  technology that is economically achievable.   The BMPs will include a combination of source control, structural  improvements, and treatment systems.   BMPs may include but not be limited to the following:

 

i.                  A  wet retention basin(s), which holds a volume of stormwater until it is  displaced by the next storm event, designed to provide effective water  quality control. Wet retention basins have been shown to be more effective at  contaminant removal than dry detention basins. Basin features will include  the following: 

 

(A)      Maximize  retention time for settling of fine particles. 

 

(B)        Establish  maintenance schedules for periodic removal of sedimentation, excessive  vegetation, and debris that may clog basin inlets and outlets. 

 

(C)        Maximize  the retention basin elevation to allow the highest amount of infiltration and  settling prior to discharge.  Wet  retention basins are expected to remove, at a minimum, 50 percent of  suspended solids and metals, 30 percent of nitrogen and phosphorus, and up to  30 percent of pathogens.

 

ii.               Grass  strips, high infiltration substrates, and grassy |       | Meet  and confer only.                              |       |                      |       |       |       |                                                                                                               |   |

 

Exhibit A to MOA

Page 21 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                | ** ** | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
| ** **              | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    |       |                         swales  will be used where reasonable throughout the project site to reduce runoff  and provide initial stormwater treatment.   This type of treatment would apply particularly to parking lots. 

 

iii.            Small  settling, treatment, and/or infiltration devices may be installed beneath  large parking areas to provide initial filtration prior to discharge into  flood control basins.  This may include  the use of oil and grease separators.

 

iv.           Roof  drains will drain to natural surfaces or swales where possible to avoid  excessive concentration and channelization of stormwater.  Roof drains may be directly connected to  the storm drain system, if treatment control measures are provided  downstream. 

 

v.              To  minimize the amount of pollutants entering the storm drain system, project  roadways and parking areas will be cleaned regularly using street sweeping  equipment.  Additionally, litter and  debris that may accumulate on the project site will be regularly collected  and properly disposed.  These  activities will be the responsibility of the Tribe.

 

vi.           The  Tribe will develop and implement a pesticide and fertilizer management plan  for landscaped areas with the goal of reducing potential discharge of such  chemical, chlorpyrifos and diazinon in particular, to on-site waterways. |       |                                                |       |                      |       |       |       |                                                                                                               |   |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       |                                                |       |                      |       |       |       |                                                                                                               |   |
| B.2.d                   |       | To  reduce the impacts of erosion and sedimentation from the vineyard site the  Tribe will implement the following operational BMPs, similar to those  required by Sonoma County, during vineyard planting and/or replanting  activities:

 

i.                  All  initial vineyard planting work will be carried out between February 1  and October 15. 

 

ii.               Appropriate  best management practices will be implemented to protect all disturbed areas  on the vineyard site from the effects of storm runoff.  Use of both temporary and permanent  measures that incorporate natural systems are encouraged and will consist of  seeding, mulching, cover cropping, revegetation, and/or other recognized  surface stabilization measures.

 

iii.            A  stormwater management system designed for an average storm recurrence  interval of not less than                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |       | Meet  and confer only.                              |       |                      |       |       |       |                                                                                                               |   |

 

Exhibit A to MOA

Page 22 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         | ** ** | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date** | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------|------------|---------------------------|------------|----------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                                |       |                      |       |     |       |                                                                                                               |
|                    |       | twenty-five (25) years will be installed on the  vineyard site. The system will allow excess stormwater runoff to be carried  through the vineyard site with minimum erosion and consistent with the  overall drainage patterns present in the area.

 

iv.           An erosion and sediment control plan will be prepared  by a qualified civil engineer or qualified professional, will include the  following requirements:

 

(A)      Location of all soil protection measures, including but  not limited to, mulching, cover cropping, netting, revegetation, and other  surface stabilization measures;

 

(B)        Location of all stormwater management and sediment  control measures, including, but not limited to, drainage swales, interceptor  and diversion ditches, pipes and culverts, berms, energy absorbing  structures, vegetative filter strips, sediment buffers, sediment basins,  channels, and drop inlets; and

 

(C)        Design calculations for storage capacities of any  sediment basins.                           |       |                                                |       |                      |       |     |       |                                                                                                               |
|                    |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                                |       |                      |       |     |       |                                                                                                               |
| B.2.e                   |       | With regard to the application of recycled water for  vineyard irrigation:

 

i.                  Application rates of  recycled water shall be restricted to the agronomic rate of the  crop(s) under irrigation (e.g., grape vines), such that no surface  runoff or groundwater contamination will result. To calculate the appropriate  irrigation rate, the Tribe may utilize resources such as Wateright (ATIN and  CIT, 2000; http://www.wateright.org) or another such tool for irrigation  scheduling.

 

ii.               The Tribe shall adhere to  all Title 22 requirements, as well as DHS’s Guidelines for the Preparation of  an Engineering Report for the Production, Distribution and Use of Recycled  Water.

 

iii.            In addition, the Tribe  shall not approve irrigation with recycled water within 50 feet of a domestic  well, or surface impoundments of reclaimed water within 100 feet of a  domestic well, consistent with Title 22 standards. |       | Meet  and confer only.                              |       |                      |       |     |       |                                                                                                               |

 

Exhibit A to MOA

Page 23 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                            | ** **                                                                                                                                                                                                                            | **Dispute  Resolution Forum  or Process**                                                       | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
| ** **              | ** ** | ** **                                                                                                                                                                                             | ** **                                                                                                                                                                                                                            | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| ** **              | ** ** | **Air  Quality**                                                                                                                                                                                       | ** **                                                                                                                                                                                                                            | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| ** **              | ** ** | ** **                                                                                                                                                                                             | ** **                                                                                                                                                                                                                            | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.3.a                   | ** ** | To  reduce construction emissions of PM10, the Tribe will:                                                                                                                                             | ** **                                                                                                                                                                                                                            | Meet  and confer only.                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                             | ** **                                                                                                                                                                                                                            | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | i.                                                                                                                                                                                                     | Water all active construction areas at least  twice daily;

** **                                                                                                                                                                | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    |       | ii.                                                                                                                                                                                                    | Cover all trucks hauling soil, sand, and other  loose materials or require all trucks to maintain at least two feet of  freeboard (i.e., the minimum required space between the top of the load and  the top of the trailer);

  |                                                                                                      |       | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | iii.                                                                                                                                                                                                   | Pave, apply water three times daily, or apply  (non-toxic) soil stabilizers on all unpaved access roads, parking areas and  staging areas at construction sites;

** **                                                          | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | iv.                                                                                                                                                                                                    | Sweep daily (preferably with water sweepers)  all paved access roads, parking areas and staging areas at construction  sites;

                                                                                                  | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | v.                                                                                                                                                                                                     | Sweep streets daily (preferably with water  sweepers) if visible soil material is carried onto adjacent public streets.

                                                                                                        | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | vi.                                                                                                                                                                                                    | Hydroseed or apply (non-toxic) soil  stabilizers to inactive construction areas (previously graded areas inactive  for ten days or more);

                                                                                      | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | vii.                                                                                                                                                                                                   | Enclose, cover, water twice daily, or apply  (non-toxic) soil stabilizers to exposed stockpiles (dirt, sand, etc.);

                                                                                                            | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | viii.                                                                                                                                                                                                  | Limit traffic speeds on unpaved roads to 15  miles per hour;

                                                                                                                                                                   | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | ix.                                                                                                                                                                                                    | Install  sandbags or other erosion control measures to prevent silt runoff to public roadways;  and

                                                                                                                            | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | x.                                                                                                                                                                                                     | Replant  vegetation  in disturbed areas as quickly as possible.

                                                                                                                                                                | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** |                                                                                                                                                                                                   | ** **                                                                                                                                                                                                                            | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.3.b                   | ** ** | The  Tribe shall adopt and enforce a law that prohibits open burning as strict as  NSCAPCD Regulation II (Open Burning). Nothing in this provision shall be  deemed to confer jurisdiction on NSCAPCD. | ** **                                                                                                                                                                                                                            | MOA  Dispute resolution process as to the adoption of such law only.   Meet and Confer for the remainder. | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** |                                                                                                                                                                                                   | ** **                                                                                                                                                                                                                            | ** **                                                                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.3.c                   | ** ** | Before  start of construction or operations involving ground disturbance, the project  proponent shall prepare a serpentine soils hazard dust mitigation plan in the  event                            | ** **                                                                                                                                                                                                                            | Meet  and confer only.                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 24 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                         | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    | ** ** |                                                                                                                                                | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | serpentine  soils are found during construction and/or excavation activities on the Dugan  Property. The plan shall contain the following measures: | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** |                                                                                                                                                | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | i.                                                                                                                                                  | During  grading activities, the contractor shall implement dust control measures,  such as wetting down exposed serpentine and covering areas exposed to vehicle  traffic with non-asbestos material. Employees must be notified of the  potential health risk of airborne asbestos, and the contractor and  construction workers shall take every precaution possible to reduce the  exposure to potential airborne asbestos, such as wearing appropriate clothing  and respiratory devices. | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** |                                                                                                                                                |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | ii.                                                                                                                                                 | Vehicle  access and speed shall be limited and reduced to the least feasible number of  vehicles in construction areas containing serpentine rock. Areas along  vehicle travel routes that consist of exposed serpentine shall be covered  with non-asbestos material.                                                                                                                                                                                                                        | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** |                                                                                                                                                |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | iii.                                                                                                                                                | During  construction activities, construction vehicles shall be rinsed before leaving  the construction sites to reduce the dispersion of asbestos dust.                                                                                                                                                                                                                                                                                                                                      | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** |                                                                                                                                                |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | iv.                                                                                                                                                 | During  construction, any excavated material containing serpentine rock shall be  covered to reduce wind erosion and particulate dispersion. Disturbed surfaces  and stockpiles shall be maintained with high-moisture conditions or applied  with a binder to seal fibers.                                                                                                                                                                                                                   | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** |                                                                                                                                                |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | v.                                                                                                                                                  | Any  exposed serpentine soils along the corridor shall be covered with clean soils  to reduce potential health hazards.                                                                                                                                                                                                                                                                                                                                                                       | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** |                                                                                                                                                |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | vi.                                                                                                                                                 | Vegetation  shall be planted to reclaim disturbed serpentine rock areas where feasible.                                                                                                                                                                                                                                                                                                                                                                                                       | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |

 

Exhibit A to MOA

Page 25 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          | ** ** | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Biological  Resources**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.4.a                   | ** ** | If  construction activities take place during the migratory bird and raptor  breeding season (March 1 through August 15), a pre-construction  survey for nesting migratory birds shall be conducted by a qualified  biologist within the 30 days prior to construction activities to establish  the status of these species on the project site. If ground-disturbing  activities are delayed or suspended for more than 30 days after the pre-construction  survey, the site shall be resurveyed. If active nests are observed within 500  feet of proposed construction areas, a limited operating period shall be  implemented to restrict construction activities within 500 feet of the nest  site until young have fledged. Should this buffer distance become infeasible,  the USFWS shall be consulted to develop measures to avoid or reduce  disturbance to viable nests within 500 feet of an active nest site. | ** ** | Meet  and confer only.                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.4.b                   | ** ** | Prior  to construction, all wetlands and drainage channels in the study area shall  be identified in the field and protected with temporary fencing if within 50  feet of construction activities. Temporary fencing shall consist of silt  fencing and temporary construction fencing. A qualified biologist shall  direct the placement of fencing in the field using pin flags or similar field  identifiers. The fencing shall be placed between the wetland or aquatic  feature and the construction area. During construction, fencing shall be  maintained and inspected daily by the construction manager. No construction  activities or spoils shall be allowed within protected areas.                                                                                                                                                                                                                                    | ** ** | Meet  and confer only.                              | ** ** | ** **                | ** ** | ** ** | ** ** | Army  Corps has verified wetlands delineation for the Dugan Property.                                              |
|                    | ** ** |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 | ** ** | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.4.c                   | ** ** | Prior  to construction, the Tribe shall purchase credits of wetland and riparian  habitats from a local mitigation bank to compensate for the permanent loss of  these habitats on the Dugan Property. Based on the Environmental Assessment  evaluation conducted, up to 0.13 acre of riparian and wetland habitat would  be impacted by the Proposed Action. Mitigation shares will be purchased by  the Tribe at a 1:1 ratio in direct proportion to the acreage of wetland and  riparian habitats eliminated by construction activities, in accordance with  the San Francisco District’s Mitigation and Monitoring Proposal Guidelines  (December 30, 2004).                                                                                                                                                                                                                                                          | ** ** | Meet  and confer only.                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 26 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                              | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    | ** ** |                                                                                                                                                                                                                                                                     | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |                                                | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.4.d                   | ** ** | Only  the minimum amount of vegetation will be pruned that is necessary to construct  the project. Where feasible, riparian vegetation that is removed should be  cut at or just below grade to facilitate plant re-growth.                                              | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | Meet  and confer only.                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** |                                                                                                                                                                                                                                                                     | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.4.e                   | ** ** | Following  construction, appropriate erosion control measures will be used on all  disturbed areas to minimize the potential for erosion, and may include  hydroseeding, erosion control blankets, and revegetation with native plant  species.                          | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | Meet  and confer only.                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** |                                                                                                                                                                                                                                                                     | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.4.f                   | ** ** | All  oak trees that are removed with a diameter at breast height of five inches or  greater will be replanted within suitable habitat at a rate of 3:1 and  maintained for three years after the planting.                                                               | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | Meet  and confer only.                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** |                                                                                                                                                                                                                                                                     | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Cultural  Resources**                                                                                                                                                                                                                                                  | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** |                                                                                                                                                                                                                                                                     | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.5.a                   | ** ** | Any  cultural resources, such as chipped or ground stone, historic debris or bone,  or paleontologic resources that are inadvertently unearthed during ground  disturbing activities, will be handled under Tribal law and processes.                                    | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | Meet  and confer only.                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** |                                                                                                                                                                                                                                                                     | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.5.b                   | ** ** | If human remains are discovered or recognized  in any location on the Project site other than in a dedicated cemetery, there  will be no further excavation or disturbance of the site or any nearby area  reasonably suspected to overlie adjacent human remains until: | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | Meet  and confer only.                              | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** |                                                                                                                                                                                                                                                                     | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | i.                                                                                                                                                                                                                                                                       | The Sonoma County coroner has been informed  and has determined that no investigation of the cause of death is required; and,                                                                                                                                                                                                                                                                                                                                                                                                                        | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** |                                                                                                                                                                                                                                                                     |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | ii.                                                                                                                                                                                                                                                                      | If the remains are of Native American origin,  the Tribe shall dispose of such remains and any grave goods associated  therewith in accordance with its laws, customs and traditions, preserving the  dignity of the decedent and with appropriate efforts to determine his or her  descendants. In addition, the Bureau of Indian Affairs will be requested to  comply with the Native American Graves Protection and Repatriation Act  (NAGPRA) regulations relating to the discovery of human remains of Native  American origin on federal land. | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |

 

Exhibit A to MOA

Page 27 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           | ** **                                                                                                                                                                                                                         | **Dispute  Resolution Forum  or Process**                                                                           | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** **                                                                                                                                                                                                                         | ** **                                                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Public  Services**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  | ** **                                                                                                                                                                                                                         | ** **                                                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** **                                                                                                                                                                                                                         | ** **                                                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.6.a                   | ** ** | Any  construction equipment that normally includes a spark arrester shall be  equipped with an arrester in good working order. This includes, but is not  limited to, vehicles, heavy equipment, and chainsaws.                                                                                                                                                                                                                                                                                                                                                                                                                       | ** **                                                                                                                                                                                                                         | Meet  and confer only. (*See also*Fire  Protocol.)                                                                            | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** **                                                                                                                                                                                                                         | ** **                                                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.6.b                   | ** ** | During  construction, staging areas, welding areas, or areas slated for development  using spark-producing equipment shall be cleared of dried vegetation or other  materials that could serve as fire fuel. To the extent feasible, the  contractor shall keep these areas clear of combustible materials in order to  maintain a firebreak.                                                                                                                                                                                                                                                                                         | ** **                                                                                                                                                                                                                         | Meet  and confer only. (*See also* Fire  Protocol.)                                                                           | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** **                                                                                                                                                                                                                         | ** **                                                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.6.c                   | ** ** | A  defensible space of no less than 30 feet from proposed residential structures  shall be maintained to reduce the intensity of a wildfire. Extremely  flammable vegetation and other material shall be removed as much as possible  to provide a firebreak around the residences. This buffer will reduce the volume  and density of fuels to provide increased safety for fire equipment and  evacuating individuals and residents as well as a point of attack or defense  from a wildfire. This buffer will also provide possible containment should a  fire occur within or near any of the proposed developments.              | ** **                                                                                                                                                                                                                         | Meet  and confer only. (*See also*Fire  Protocol.)                                                                            | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** **                                                                                                                                                                                                                         | ** **                                                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Public  Health/Hazardous Materials**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                | ** **                                                                                                                                                                                                                         | ** **                                                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** **                                                                                                                                                                                                                         | ** **                                                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.7.a                   | ** ** | An  asbestos survey and a lead based paint survey, to include conclusions and  recommendations, should be completed on all existing structures on the Dugan  Property prior to any renovation or demolition activities. All asbestos and  lead-based paint work will comply with California OSHA regulations, Northern  Sonoma County Air Pollution Control District and/or California Air Resources  Board regulations, as well as any local ordinances. The recommendations in  the asbestos and lead based paint survey report(s) will be followed to  ensure proper handling and disposal of the above identified materials. | ** **                                                                                                                                                                                                                         | MOA  Dispute Resolution process as to the completion of the surveys only.

 

Meet  and confer only as to the remainder. | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** **                                                                                                                                                                                                                         | ** **                                                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.7.b                   | ** ** | The  Tribe shall develop a cross-connection control program for the recycled water  that will include, but not be limited to, the following elements:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 | ** **                                                                                                                                                                                                                         | Meet  and confer only.                                                                                                        | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** **                                                                                                                                                                                                                         | ** **                                                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | i.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | All  piping, valves and outlets should be color-coded and marked to differentiate  recycled water from domestic water, and all reclaimed water controllers and  valves should  be affixed with reclaimed water notification signs. | ** **                                                                                                                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                         |            |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |                                                                                                                                                                                                                                    |                                                                                                                               |            |                           |            |            |            |                                                                                                                    |  |

 

Exhibit A to MOA

Page 28 of 29

 

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| **MOA  Exhibit A** | ** ** | **Mitigation Measure**                                                                                                                                                                                                                                                                                                                                                   | ** **                                                                                                                                                                                                                                                                                                                              | **Dispute  Resolution Forum  or Process** | ** ** | **Completion  Signature** | ** ** | **Date**   | ** ** | **Notes: status and degree of measure  implementation and other comments** |
|-------------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------|------------|---------------------------|------------|------------|------------|--------------------------------------------------------------------------------------------------------------------|
|                    | ** ** |                                                                                                                                                                                                                                                                                                                                                                          |                                                                                                                                                                                                                                                                                                                                    | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | ii.                                                                                                                                                                                                                                                                                                                                                                           | Recycled  water lines shall be separated from potable water lines by 10 feet in a  horizontal direction  and 1 foot in a vertical direction, with the potable line at the higher elevation.                                                                                                                                             | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                    | ** **                                                                                                                                                                                                                                                                                                                              | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | iii.                                                                                                                                                                                                                                                                                                                                                                          | Maintain  buffer zones  between irrigated areas and domestic wells.                                                                                                                                                                                                                                                                     | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** |                                                                                                                                                                                                                                                                                                                                                                          |                                                                                                                                                                                                                                                                                                                                    | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | iv.                                                                                                                                                                                                                                                                                                                                                                           | Maintain  a 50-foot distance between  drinking water wells and wastewater pipelines and impoundment areas.                                                                                                                                                                                                                              | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** |                                                                                                                                                                                                                                                                                                                                                                          |                                                                                                                                                                                                                                                                                                                                    | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | v.                                                                                                                                                                                                                                                                                                                                                                            | Monitor  nitrate levels in recycled  water and adjust application rates.                                                                                                                                                                                                                                                                | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** |                                                                                                                                                                                                                                                                                                                                                                          |                                                                                                                                                                                                                                                                                                                                    | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | vi.                                                                                                                                                                                                                                                                                                                                                                           | Recycled  water will be monitored  quarterly for nitrate levels by the Tribe.                                                                                                                                                                                                                                                           | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** |                                                                                                                                                                                                                                                                                                                                                                          |                                                                                                                                                                                                                                                                                                                                    | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** | vii.                                                                                                                                                                                                                                                                                                                                                                          | The  drinking water wells on the Dugan Property will be monitored quarterly for  nitrate levels to assure that drinking water standards are maintained in accordance  with domestic water quality and monitoring requirements in Title 22, Chapter  15. Nothing in this provision shall be deemed to confer jurisdiction on the  State. | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         | ** ** |
|                    | ** ** |                                                                                                                                                                                                                                                                                                                                                                          | ** **                                                                                                                                                                                                                                                                                                                              | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** | **Noise**                                                                                                                                                                                                                                                                                                                                                                     | ** **                                                                                                                                                                                                                                                                                                                              | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** |                                                                                                                                                                                                                                                                                                                                                                          | ** **                                                                                                                                                                                                                                                                                                                              | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.8.a                   | ** ** | Except  as to any exception agreed to by the parties, following a meet and confer  process, the Tribe will restrict the hours of exterior construction at the  project site to 7:00 a.m. to 7:00 p.m., Monday through Saturday,  and prohibit exterior construction on Sundays and Holidays.                                                                        | ** **                                                                                                                                                                                                                                                                                                                              | MOA  Dispute Resolution process.                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
|                    | ** ** |                                                                                                                                                                                                                                                                                                                                                                          | ** **                                                                                                                                                                                                                                                                                                                              | ** **                                          | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |
| B.8.b                   | ** ** | Use  of the helicopter landing pad discussed in the Final Environmental Study  shall be limited to medical, fire, or law enforcement emergencies only. The  Tribe will conduct a TEIR and utilize the process for a Tribal Commercial  Development Project as those terms are defined in the MOA if the Tribe  intends to use such helicopter landing pad for other purposes. | ** **                                                                                                                                                                                                                                                                                                                              | MOA  Dispute Resolution process.                    | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                                                                                                         |

 

Exhibit A to MOA

Page 29 of 29

 

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**DUGAN PROPERTY PROJECTS**

**APN 140-260-003**

**EXHIBIT B TO MOA**

 

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**BEFORE THE**

**DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL**

**OF THE STATE OF CALIFORNIA**

 
| **In the Matter of the Application of:** | )                                    |      |
|------------------------------------------|--------------------------------------|-----------|
|                                     | )                                    | **File:** | 47-396835 |
|                                     | )                                    | **Reg:**  |   |
|                                     | Dry  Creek Rancheria of Pomo Indians | )         |   |
|                                     | 3250  Hwy 128 East                   | )         | **PETITION FOR CONDITIONAL  LICENSE** |
|                                     | Geyserville,  CA 95441               | )         |   |
|                                     |                                 | )         |   |

 

Forissuance of an On Sale General Eating Place License

 

Underthe Alcoholic Beverage Control Act

 

**WHEREAS**, Dry Creek Rancheria of Pomo Indians (“Petitioner”) has filed anapplication for the issuance of an On Sale General Eating Place License (“License”)for the River Rock Casino, located at 3250 Highway 128 East, Geyserville,California 95441 (the “Premises”); and,

 

**WHEREAS**, sixty-eight (68) protests have been filed against the issuance of theapplied-for License; and,

 

**WHEREAS**, the protests deal with the proposed operation of the applied-forPremises; and,

 

**WHEREAS**, Petitioner has entered into a Tribal – State Gaming Compact with theState of California; and,

 

**WHEREAS**, Petitioner is operating Class III gaming as defined by 25 U.S.C.§ 2703(8) on the applied-for Premises; and,

 

**WHEREAS**, Petitioner wishes to permit consumption of alcoholic beverages in thepremises;

 

**WHEREAS**, Petitioner wishes to respect community concerns and work to minimizeany potential impacts of the License by limiting alcohol beverage weekday,daytime services to beer and wine only; and

 

**WHEREAS**, there is not presently a hotel on Petitioner’s reservation andPetitioner intends to build a hotel on such reservation.

 

**NOW THEREFORE**, the undersigned Petitioner does hereby petition for a License withthe following conditions, to-wit:

 

1.               The Departmentshall issue the License to Petitioner upon the withdrawal of the protests.

 

2.               Persons under theage of 21 years old shall not be permitted to loiter in any room in which Class IIIgaming activities are being conducted unless the person is en route to anon-gaming

 

Exhibit D to MOA

Page 1 of 5

 

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area of the Premises, except that employees under the age of 21 yearsold shall be permitted to be in such areas in the performance of their dutiesas employees.

 

3.               Petitioner shallreport to the Department and the County of Sonoma in writing any change inmembership of the elected tribal Board of Directors.  This report shall be made within 30 days ofsaid changes.

 

4.               There shall be nolive entertainment of any type at the Premises requiring the payment of aseparate entrance, admission or other entertainment fee.  In no case shall there be any fightingevents, nude or semi-nude entertainment, or adult entertainment as defined in 4California Code of Regulations § 143.3 at the Premises.

 

5.               Petitioner shallnot allow amplified music or amplified sound in the exterior area of thePremises, with the exception of the patio areas and entrances.  Outside amplified music and amplified soundshall only be permitted from 10 a.m. to 10 p.m. except for softbackground music that cannot be heard by persons located off the reservation.

 

6.               Petitioner shallregularly police the area under its control in an effort to prevent loiteringof persons about the Premises.

 

7.               The sale, service,and consumption of alcoholic beverages at the Premises shall be permitted onlyduring the following hours:

 

Sundays.  The sale,service, and consumption of alcoholic beverages shall be permitted only betweenthe hours of 10:00 a.m. and midnight (12:00 a.m.), withoutrestriction as to the type of alcoholic beverages that may be sold, served andconsumed (the “Sunday Schedule”).

 

Mondays, Tuesdays, Wednesdays, and Thursdays (“Weekdays”).  Except as provided below for a Weekday thatfalls on a Holiday (as defined below) or on the day before a Holiday, the sale,service, and consumption of alcoholic beverages on Weekdays shall be permittedonly between the hours of 11:00 a.m. and midnight (12:00 a.m.), andshall be limited to beer and/or wine between the hours of 11:00 a.m. and5:00 p.m.

 

Fridays.  Except asprovided below for a Friday that falls on a Holiday, on Fridays the sale,service, and consumption of alcoholic beverages shall be permitted only betweenthe hours of 11:00 a.m. and 1:00 a.m. , and shall be limited to beer and/or wine between the hours of 11:00 a.m.and 5:00 p.m. (the “Friday Schedule”).

 

Saturdays.  The sale,service, and consumption of alcoholic beverages on Saturdays shall be permittedonly between the hours of 10:00 a.m. and 1:00 a.m., withoutrestriction as to the type of alcoholic beverage that may be sold, served andconsumed (the “Saturday Schedule”).

 

Holidays.  On the daysthat are observed (“Holiday(s)”) for the following federal holidays: New Year’sDay, Birthday of Martin Luther King, Jr., Presidents’ Day, Memorial Day,Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, andChristmas Day, the sale, service, and consumption of alcoholic beverages shallbe subject to the Sunday Schedule, except that if the day before the Holiday isa Weekday, the sale, service, and consumption of alcoholic beverages on thatWeekday before the Holiday shall be

 

Exhibit D to MOA

Page 2 of 5

 

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permittedon the Friday Schedule, and if the Holiday falls on a Friday or Saturday, or ifthe day before the Holiday is a Sunday, the sale, service and consumption ofalcoholic beverages on that Holiday Friday or Saturday, or on the Sunday beforethe Holiday, shall be permitted on the Saturday Schedule.

 

8.               Petitioner shall beresponsible for litter control on the Premises and roads adjacent to thePremises, including B1A 93 and State Highway 128 from the intersection onAlexander Valley Road north to the Geyserville Bridge.

 

9.               No “Happy Hour” orother type of reduced price or free alcoholic beverage promotion or discountsshall be allowed at the Premises.

 

10.         The sale of alcoholicbeverages for consumption off the Premises is strictly prohibited.

 

11.         The parking lot of thePremises shall be equipped with lighting of sufficient power to illuminate andmake easily discernible the appearance and conduct of all persons on or aboutthe parking lot.  Consistent withsecurity requirements, however, steps shall be taken to minimize anyoff-reservation effects of any outdoor lighting.

 

12.         Petitioner shall providea minimum of eight (8) uniformed security guards during the hours of salesof alcoholic beverages, two (2) of whom shall be specifically assigned tothe parking lot area of the Premises.

 

13.         At all times, the saleand service of alcoholic beverages shall be made only in the Premises’restaurants or bars.  There shall be nosale or service of alcohol on the casino gaming floor.  No person shall be permitted to purchase morethan one alcoholic beverage at a time except for the sale of bottles of wineserved in a restaurant with a meal.

 

14.         At all times whilePetitioner is selling or serving alcohol, food service shall be available.  In addition, at all times while Petitioner isselling or serving alcohol, Petitioner shall provide free food in all areas ofthe Premises where alcohol is sold except that free food shall not be requiredin the Premises’ restaurants.

 

15.         There shall be no minimumdrink requirement at the Premises.

 

16.         Petitioner shall providea 24-hour “hot line” phone number for the receipt of any complaints from thecommunity regarding the issues set forth in this License.  Petitioner shall keep a log of suchcomplaints received on the hot line, the date and time received, the specificsubstance of the concern, and Petitioner’s response to such complaints.  The log shall be retained for a minimum ofone year.  On written request by the Department,the County of Sonoma, or the Alexander Valley Association (“AVA”), the logshall be made available for inspection at the Premises within seven (7) daysof the request.

 

17.         Signs prohibiting theremoval of alcoholic beverages shall remain posted at all points of exit fromthe Premises.  These signs shall be ofsufficient size so as to be easily seen and read by patrons exiting thePremises.

 

Exhibit D to MOA

Page 3 of 5

 

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18.         The Tribe acknowledges thatit is required to abide by the County of Sonoma’s and the State of California’ssign regulations and requirements when erecting signs on off-reservation landwithin such entities’ jurisdiction.

 

19.         Petitioner shall makegood faith efforts to minimize traffic congestion on Highway 128 caused byactivities on the Premises, including construction activities and SpecialEvents (as defined in this Section 19), and in the case of a Special Eventshall undertake the following measures:

 

(a)                                  Petitionershall provide to County of Sonoma, the California Highway Patrol and the AVA atleast two weeks’ notice in writing of all Special Events, which notice willdescribe the specific mitigation measures to be taken to minimize congestionfrom the event.

 

(b)                                 Ifany of the parties entitled to notice pursuant to subparagraph (a) abovehas reasonable concerns that the proposed mitigation measures will not beeffective, or if following the Special Event, a party entitled to notice believes that there was trafficcongestion that could have been mitigated, then at that party’s request,Petitioner will meet and confer with the authorized representatives of theparties to discuss possible further mitigation measures to minimize trafficcongestion for the planned occasion or any future similar occasion.

 

(c)                                  Petitionerwill make best efforts to secure and utilize offsite parking facilities thatare near Highway 101 but which are not located either on Hwy 128 between theGeyserville Bridge and the NAPA County line or on Alexander Valley Road betweenthe intersection of Hwy 128 and the intersection of Healdsburg Avenue, and willtake measures to direct traffic to such parking facilities, from whichtransportation by bus or van will be furnished to and from the Premises.    This parking provision can be satisfied bythe Tribe or another person or entity making such parking available to theTribe’s patrons, and may include a privately or publicly owned park and ridefacility.

 

(d)                                 Forthe purposes of this Section 19, a Special Event shall mean an advertisedspecial drawing or giveaway of a prize worth more than $30,000 or of anautomobile, but does not include any pre-drawing or giveaway qualifying days orevents leading up to such drawing or giveaway. Except as otherwise agreed by the AVA and the Tribe, the Tribe agreesnot to schedule a special event, as defined above, during the activities setforth in subparagraphs i) through iii) below in which the AVA has an interest (“AVAEvents”), unless such AVA Events fall on a Holiday (as defined in paragraph 7above) or on Valentine’s Day, St. Patrick’s Day, Cinco de Mayo, Mother’s Day,Father’s Day or Indian Days:

 

i.                                          “Taste of theValley” which is held on the first full weekend in June between the hoursof 10:00 am to 5:00 pm;

 

ii.                                       “AlexanderValley School Annual Spaghetti Dinner & Auction” which is held on thefirst Saturday in March between the hours of 6:00 pm to 11:30 p.m.;and

 

Exhibit D to MOA

Page 4 of 5

 

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iii.                                    “AVA Wine BarrelTasting” which is  held on the first andsecond full weekends in March between the hours of 10:00 am to 5:00 pm.

 

The Petitioner and the AVA will meet each January to discuss anypotential conflicting activities so that Petitioner, if at all possible, canavoid scheduling Special Events on such dates. If this is not possible, the Petitioner will present a plan for handlingthe increase in traffic flow.

 

20.         Except as otherwiseagreed by the County of Sonoma and the AVA, Petitioner shall not apply to theDepartment for any modification or removal of the conditions of this Licenseset forth herein that would go into effect prior to (1) three years fromthe date issuance of a license to Petitioner by the Department, or (2) theopening of a hotel on the reservation, whichever first occurs.  The County of Sonoma, AVA and Petitioneragree that this condition does not prevent the Petitioner from applying for themodification or removal of the conditions of this License set forth hereinprior to the expiration of such time period so long as the change, if granted,is not to become effective until the expiration of the time period describedabove. Furthermore, the County of Sonoma and those parties represented by Keker &Van Nest, LLP in connection with the application for this License, includingthe AVA, and Keker & Van Nest as to others it may represent, agree notto oppose the transfer and/or modification of this License, if the conditionsset forth herein remain the same.  Beforeapplying to the Department for modification or removal of any conditions ofthis License set forth herein, Petitioner agrees to notify and, if requested todo so within ten (10) days after such notice, meet within twenty (20) daysin good faith with the authorized representatives of, the County of Sonoma andthe AVA to discuss the proposal.

 

Petitionerunderstands that any material violation of the foregoing conditions and failureto correct after written notice and a reasonable opportunity to do so shallconstitute grounds for the suspension or revocation of the License.

 
| DATED  THIS          |   |   | DAY  OF |   | ,  2008. |
|----------------------|--------|--------|---------|--------|----------|
|                 |   |
| Applicant/Petitioner |

 

Exhibit D to MOA

Page 5 of 5

 

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**EXHIBIT E**

 

**ESCROW INSTRUCTIONS**

**RE EMERGENCY ACCESS ROAD**

**CONSTRUCTION COMPLETION ACCOUNT DISBURSEMENTS**

 

ThisExhibit E, (the “Escrow Instructions”) to the Memorandum of Agreement (“MOA”)between the Dry Creek Rancheria Band of Pomo Indians (“Tribe”) and the Countyof Sonoma (“County”) (individually the “Party” and collectively the “Parties”)is intended to serve as the basis for Instructions to be jointly provided bythe Parties to an escrow holder (“Escrow Holder”) under Section 7.8, etseq. of the MOA for the Emergency Access Road Construction Completion Accountdisbursements.  Capitalized terms shallhave the same meaning as they do within the MOA unless indicated otherwise. TheParties shall enter into final Instructions that meet the criteria and purposesset forth in this Exhibit and the MOA, provided that if, in connectionwith the Financing, different requirements must be met for constructiondisbursements, such requirements shall be adopted in lieu of those set forthbelow, except that in no event shall the County’s rights; to notices,disbursements, or to take over construction as provided herein and in the MOAbe diminished.  Nothing herein shallprohibit the Parties from revising or modifying the Escrow Instructions bymutual agreement.

 

1.                                       Budget and Funding of Emergency Access RoadConstruction Costs.

 

1.1                                 An escrow account has been created at                                        pursuant to Section 7.8.4 of the MOA. In accordance with the MOA, within ten (10) days after opening ofthe escrow, the Tribe will deliver to the County an updated written budget,which shall include a breakdown of costs by project milestones and set forth inreasonable detail the anticipated costs of constructing the Emergency AccessRoad (“Budget”).  The County shall haveten (10) days from receipt of the Budget to reasonably approve or rejectthe Budget.  The Budget amount, asfinally approved (or not disputed) by the County shall be the final estimatedcost of the Emergency Access Road (subject to such later adjustments as the MOAor the Escrow Instructions permit), and such amount shall constitute the principalamount to be deposited into the escrow account for release to contractors andmaterialmen in accordance with the Escrow Instructions.  If the Parties are unable to agree on theBudget, the Parties shall proceed to engage in the dispute resolution processset forth in Section 20 of the MOA.

 

1.2                                 In addition to the Budget amount, acontingency reserve of 7% of the final Budget amount shall be determined as therequired contingency amount, subject to adjustment as necessary based uponadjustments to the Budget and shall be deposited into the escrow account alongwith the Budget amount.  The total amountdeposited in escrow shall be termed the Construction Completion AccountFund.  In no event shall the ConstructionCompletion Account Fund be deposited later than five (5) days from thestart of construction related to the Emergency Access Road.

 

Exhibit E to MOA

Page 1 of 8

 

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1.3                                 If either party determines a need to readjustthe amount of the Construction Completion Account Fund in material part at somelater date, it shall submit a proposal to do so to the other party, togetherwith the reasons therefore, and the other party shall have ten (10) daysin which to approve such revision, which approval shall not be unreasonablywithheld.  Substantial progress inconstruction, or in savings from the original approved Budget, thereby loweringthe remaining cost of completion, may be reasons for seeking a reduction of theConstruction Completion Account Fund. Similarly, cost overruns or increased costs of construction materials orlabor may be reasons for seeking an increase in the Construction CompletionAccount Fund.  If the Budget is reducedor increased, the portion of the Account representing such contingency amountshall be reduced or increased pro rata to such change.

 

1.4                                 These Escrow Instructions hereby direct theescrow agent to disburse amounts from the Construction Completion Account tothe Tribe or its designated contractors, vendors or consultants, or to theCounty, to timely meet payments due in connection with the construction of theEmergency Access Road, in accordance with Section 2 below.  These Escrow Instructions also hereby requirethat the Construction Completion Account shall be available to the County, ifthe Tribe defaults or otherwise does not meet its construction obligations, sothat the County can obtain the funds as necessary to complete the work eitherby its own forces or through the use of contractors.

 

1.5                                 The Tribe shall ensure that the accountbalance, until construction is completed, shall be no less than that necessaryto complete the Emergency Access Road plus not less than 7% above such amountto cover any cost overruns or contingencies, provided that until the County hasinspected and approved the final construction as being in accordance with this Exhibit andthe MOA, the balance in the account shall not be less than 7% of the overallbudget for construction. The County shall be permitted to monitor and audit theaccount at any time during construction to ensure compliance with the goals ofthis Section 1.

 

1.6                                 The Construction Completion Account Fundshall remain on deposit until the Emergency Access Road has been completed andapproved in writing by the County, which approval shall not be unreasonablywithheld, immediately following which all remaining funds on deposit in theAccount, after paying final amounts due to contractors, shall be returned tothe Tribe.

 

2.                                       ConditionsPrecedent to Disbursement of Escrow Funds.

 

2.1                                 All disbursements of Escrow Funds shall befor the purpose of paying, at the direction of the Tribe (or the Countypursuant to Section 8 below) contractors, materialmen, consultants,architects, and others entitled to payment under contracts relating to the constructionof the Emergency Access Road (individually or collectively, “ConstructionContractor(s)”), for services rendered or goods and materials delivered to saidproject, and in connection with the termination of the Instructions andliquidation of the Escrow Fund as provided in the Instructions.

 

Exhibit E to MOA

Page 2 of 8

 

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2.2                                 These Instructions hereby direct the EscrowHolder to disburse such amounts as may be necessary to pay the ConstructionContractors as and when due, provided:

 

a.                                       a written directive for such payment (“DisbursementRequest”) has been issued in writing to the Escrow Holder by the Tribe (or theCounty pursuant to Section 8 below) with a simultaneous copy to the otherParty, which is in the form and is accompanied by the documents required under Section 3below, certifying that payment is due, and identifying the name and addresswhere payment should be made, provided that nothing herein shall prohibit theTribe (or the County pursuant to Section 8 below) from requesting paymentto it for direct disbursement to the Contractor;

 

b.                                      the balance in the Escrow Fund prior to therequested disbursement is in excess of the Contingency Reserve and sufficientto make such payment and the Escrow Holder has determined that making suchdisbursement will not reduce the balance in the Escrow Fund to below suchreserve amount;

 

c.                                       within five (5) business days of receiptof the Disbursement Request the County has not notified the Escrow Holder andthe Tribe in writing that it protests such disbursement, and the specificreasons supporting such protest, provided that if either of the Partiesdisagree with respect to the protest and the reasons for delaying the EscrowHolder’s authority to disburse such funds, such Party may demand that theParties proceed to engage in the dispute resolution process set forth in Section 20of the MOA, and provided further that in such event the dispute resolutionprocess shall be conducted on an expedited basis in which all meet and conferrequirements have been reduced to five (5) business days or waived bymutual agreement of the Parties, and an arbitration if required shall be heldas soon as practicable after an impasse has been reached.  The Escrow Holder shall follow the jointdirections of the Parties, or of an arbitrator if an arbitration on that issueis held, with respect to any disbursements that are disputed in accordance withthis subparagraph c.  Similarly, if theTribe (or the County pursuant to Section 8) has not requested, or hasotherwise delayed payment to a Contractor under circumstances that the otherParty believes may unreasonably delay completion of the Project or isunjustified, said expedited dispute resolution process shall be commenced toresolve those issues; and

 

d.                                      the disbursement is in accordance with theBudget and project milestones.  Noamendment of the Budget shall be made without County’s prior written consent,provided that the Tribe may reallocate line items within the Budget if the Tribecan demonstrate to the County’s satisfaction, which shall not be unreasonablywithheld, that (i) sufficient funds remain in the line item from which theamount is to be reallocated to pay all remaining costs which are required to bepaid from that line item;  (ii) noline items in the Budget (other than the line item to which the reallocation issought) are required to be increased without a deposit by the Tribe of suchadditional amount; and (iii) there are sufficient funds remaining in thebudget to meet the future construction milestones.

 

Exhibit E to MOA

Page 3 of 8

 

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e.                                       This Section, other than subparagraph (a),shall not apply to payments made to County pursuant to Section 8.

 

3.                                       Documents Requiredfor Each Construction Disbursement.

 

3.1                                 Prior to, and as a condition of, eachdisbursement by the Escrow Holder, the Tribe (or the County pursuant to Section 8)shall furnish to the Escrow Holder and to the County a disbursement request.

 

3.2                                 The Tribe’s Disbursement Request, shall,among other things, specify the amount of the requested disbursement (exclusiveof interest), direct Escrow Holder to disburse such funds in accordance withthis Agreement and certify to Escrow Holder, as of the date of the applicableDisbursement Request, that:

 

a.                                       the amount of the Disbursement Requestrepresents the actual amount payable (exclusive of contractual retainage) tothe Contractor(s) and indicating what payment requests, if any, have beenreceived by Tribe from the Contractor(s) but have not yet been approved byTribe for payment;

 

b.                                      all amounts shown as previous payments on thecurrent Disbursement Request have been paid to the parties entitled to suchpayment;

 

c.                                       approval by Tribe (or by the Contractorpursuant to Section 8) of all work and materials for which a payment isthen due and for which disbursement of the Construction Budget is beingrequested;

 

d.                                      all work and materials theretofore furnishedfor the Project conform with the Plans and Specifications;

 

e.                                       copies of all Construction Contracts, as thenin effect, have been delivered to Escrow Holder;

 

f.                                         following disbursement, the Escrow Funds willbe sufficient to meet future Budget disbursements and the maintenance of theContingency Reserve;

 

g.                                      a certificate is provided properly executedby the Contractor waiving liens for all work for which disbursement has beenmade (including the disbursement that will be made pursuant to the DisbursementRequest) to a date specified therein and included within the DisbursementRequest, less any contractual retainages, together with such invoices,contracts or other supporting data as Escrow Holder or the other Party mayrequire; and

 

h.                                      disclaimers from suppliers of fixtures andequipment of any vendor’s lien or purchase money security interest therein havebeen provided together with evidence satisfactory to Tribe that all fixturesand equipment are and will remain free of security interests of all kinds otherthan security interests of any lender of the Financing.

 

Exhibit E to MOA

Page 4 of 8

 

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3.3                                 Insufficient Escrow Fund Balance.  Tribe agrees that if for any reason the Escrow Fund, exclusive of theContingency Reserve, is insufficient to complete the Project, Tribe, within ten(10) days after request by the County, will deposit with Escrow Holdercash in an amount which will place the Escrow Fund back in balance with theBudget, which deposit shall first be exhausted before any further disbursementof the proceeds of the Escrow Fund shall be made.  If the Tribe fails to make the requiredpayment it shall be liable to pay directly to the County any amounts requiredto fully fund the completion of the Emergency Access Road.

 

4.                                       Escrow Holder’sVerification of Contracts.  At any time after deposit of the ConstructionCompletion Account Fund, the Tribe may request, and the Escrow Holder shalldemand, that any Contractor verify the terms and amounts due under itscontract, and the work to be completed. If the Tribe determines that there is any discrepancy between the termsand amounts as shown by the Contractor, the Tribe may require, as a conditionto seeking further disbursements, that such discrepancies be eliminated to itssatisfaction.

 

5.                                       Payments Directlyto Contractor.  Escrow Holder, at the direction of the Tribe(or the County pursuant to Section ) may direct that payments for the costof construction of the Project be made directly to any Contractor and/orsubcontractor or to any vendor of fixtures and equipment, jointly to Tribe andany of such parties, or directly to Tribe (or County) for subsequent payment tosuch contractor.

 

6.                                       Retainages. Disbursement from the Construction Completion Account Fund shall belimited to an amount equal to the percentage thereof required by the terms ofany contract related to the payee’s goods or services**,**but in no event shall Escrow Holder be obligated in respect of any contract,until final disbursement of that particular contract, to disburse in excess ofninety percent (90%) of the value of the materials and labor incorporated inthe Project from time to time pursuant to such contract.

 

7.                                       Final Disbursement. Escrow Holder will release to Tribe, withaccrued interest thereon and less any accrued but unpaid escrow fees and costs,the full amount of the Escrow Funds not theretofore disbursed (“Final Disbursement”) when:

 

7.1                                 the Tribe has certified to the Escrow Holderand the County in writing that the Project has been fully and satisfactorilycompleted in substantial accordance with the Plans and Specifications; and

 

7.2                                 all Subcontractors and the Contractor havesupplied Escrow Holder and the Title Insurance Company with final swornstatements and full and complete final, unconditional lien waivers and releasesof all mechanics’ and materialmens’ lien claims, complying with therequirements of California Civil Code Section 3262; and

 

7.3                                 the County has performed its final inspectionof the Emergency Access Road Improvements, as set forth in Section 7.6of the MOA, and has verified in writing to the Escrow Holder and Tribe that theconstruction is materially consistent with the Emergency Access Road Plans.

 

Exhibit E to MOA

Page 5 of 8

 

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8.                                       Recognition ofCounty as Substitute for Tribe.

 

8.1                                 In the event the County contends that theTribe is in default of its obligation to build the Emergency Access Road inaccordance with the MOA it will notify Tribe of such claim and the issue willbe resolved in accordance with the MOA.

 

8.2                                 If resolution of such claim results in theCounty being granted, through the provisions of the MOA, of the right to takeover the Tribe’s rights and responsibilities (but through the use of theConstruction Completion Account Fund and not through any requirement that theCounty fund the completion of the project), the Escrow Holder will be sonotified and shall thereafter recognize the County in the place and stead ofthe Tribe with respect to the control and completion of the Emergency AccessRoad, including directions for disbursing the Construction Completion AccountFund through the issuance of Disbursement Requests.    Under such circumstances the County willhave the option to: (i) keep any contracts in full force and effect andpromptly notify Escrow Holder and each other of any default thereunder of whichthe Party becomes aware. Tribe will continue to execute all documents necessaryfor the consummation of the transactions contemplated thereby; or (ii) useits own forces or contractors to complete the Emergency Access Road.

 

8.3                                 Notwithstanding anything to the contraryherein, if the Tribe shall fail to perform any of its covenants or agreementsherein or in any of the other MOA provisions with respect to completion of theEmergency Access Road, County may (but shall not be required to) perform any ofsuch covenants and agreements.  Anyamounts expended by County in so doing shall be deemed advanced by EscrowHolder under an obligation to do so, and County shall be reimbursed thereforfrom the Escrow Funds, provided that County shall not expend any monies on itsown account unless it is in accordance with the Budget and the Escrow Holder,after being duly provided with a Disbursement Request by the County inaccordance with the substitute rights of the County, refuses to honor suchrequest.

 

9.                                       Escrow Holder’sDetermination of Facts.  Escrow Holder at all times shall be free toestablish independently to its satisfaction and in its sole and absolutediscretion the existence or nonexistence of any fact or facts, the existence ornonexistence of which is a condition of this Agreement.

 

10.                                 Disclaimer byEscrow Holder.  Escrow Holder shall not be liable to anycontractor, subcontractor, architect, supplier, laborer, engineer or any otherparty for services performed or materials supplied in connection withconstruction of the Project. Escrow Holder shall not be liable for any debts orclaims accruing in favor of any such parties against Tribe or against thePremises.  Neither Tribe nor County isand shall not be deemed to be an agent of Escrow Holder for any purposes, andEscrow Holder is not a venture partner with Tribe or County in any mannerwhatsoever.  Escrow Holder shall not bedeemed to be in privity of contract with any contractor, subcontractor,architect or provider of services on or to the Premises, nor shall any paymentof funds directly to a Contractor or other provider of goods or services bedeemed to create any third party beneficiary status or recognition of same byEscrow Holder or any other person or entity.

 

Exhibit E to MOA

Page 6 of 8

 

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Nocontractor, subcontractor, architect, supplier, laborer, architect, engineer orother party shall be deemed to be a third party beneficiary of this Agreementor of the MOA.  Approvals granted byEscrow Holder for any matters covered under this Agreement shall be narrowlyconstrued to cover only the parties and facts identified in any writtenapproval or, if not in writing, such approvals shall be solely for the benefitof Tribe.

 

11.                                 Notices.  Escrow Holder and the partiesshall direct all notices to the Parties as set forth in connection with thesignatures below.  The Parties herebyexecute and agree to the Escrow Instructions through their authorizedrepresentatives whose signatures are affixed below.

 
| ** ** | ** ** | **ESCROW HOLDER**:  By:   Name:  Title:Address: |
|------------|------------|-------------------------------------------------|
| ** ** | ** ** | ** **                                      |
| ** ** | ** ** | ** **                                      |
| Dated:     | ** ** | DRY  CREEK RANCHERIA BAND OF POMO   INDIANS     |
| ** ** | ** ** | ** **                                      |
| ** ** | ** ** | ** **                                      |
| ** ** | ** ** | BY:                                             | ** ** |
| ** ** | ** ** | ** **                                      | Harvey  Hopkins, Tribal Chairperson |
| ** ** | ** ** | ** **                                      | Dry  Creek Rancheria Band of Pomo Indians |
| ** ** | ** ** |                                            | 190  Foss Creek Circle, Suite A |
| ** ** | ** ** |                                            | Healdsburg,  CA 95548 |
| ** ** | ** ** |                                            |
| Dated:     | ** ** | COUNTY  OF SONOMA                               |
|       | ** ** |                                            |
|       | ** ** |                                            |
|       | ** ** | BY:                                             |   |
|       | ** ** |                                            | County  Administrator |
| ** ** | ** ** |                                            | 575  Administration Dr. |
| ** ** | ** ** |                                            | Santa  Rosa, CA 95403 |
|            |            |                                                 |  |  |

 

Exhibit E to MOA

Page 7 of 8

 

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APPROVED AS TO FORM:

 
| ** ** | ** ** | HOLLAND &  KNIGHT LLP   |
|------------|------------|----------------------------------|
| ** ** | ** ** | ** **                       |
| ** ** | ** ** | ** **                       |
| Date:      | ** ** | BY:                              | ** ** |
| ** ** | ** ** | ** **                       | JEROME  L. LEVINE, |
| ** ** | ** ** | ** **                       | Counsel  For Dry Creek Rancheria |
| ** ** | ** ** |                             | 633  W. 5th Street, Suite 2100 |
| ** ** | ** ** |                             | Los  Angeles, CA 90071 |
| ** ** | ** ** |                             |
| Dated:     | ** ** | OFFICE  OF THE COUNTY COUNSEL    |
|       | ** ** | STEVEN  WOODSIDE, County Counsel |
|       | ** ** |                             |
|       | ** ** | BY:                              |   |
|       | ** ** |                             | BRUCE  D. GOLDSTEIN, |
|       | ** ** |                             | Assistant  County Counsel |
|       | ** ** |                             | For  the County of Sonoma |
|       | ** ** |                             | 575  Administration Dr. |
|       | ** ** |                             | Santa  Rosa, CA 95403 |
|            |            |                                  |  |  |

 

Exhibit E to MOA

Page 8 of 8

 

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**Bond Number:              **

**Contract Number:                     **

 

**PERFORMANCE AND PAYMENT BOND**

**(California)**

 

WHEREAS,the County of Sonoma, California a political subdivision of the State ofCalifornia (“Obligee”) and Dry Creek Rancheria Band of Pomo Indians, afederally recognized Indian tribe (“Principal”) have entered into a Memorandumof Agreement effective                    ,2008 (“MOA”), approved by the County Board of Supervisors and Tribe’s Board ofDirectors, pursuant to which Principal agrees to install and complete certaindesignated road improvements (the “Emergency Access Road”).  The MOA is hereby incorporated as part ofthis Performance and Payment Bond (“Bond”); and

 

WHEREAS,the design and construction specifications for the Emergency Access Road (“Designand Construction Specifications”) have been reviewed and accepted by theObligee, and the Principal is contractually required to construct the EmergencyAccess Road according to the design, specifications, and timeline contained inthe MOA and the specifications which are attached hereto as Exhibit A; and

 

WHEREAS,under the terms of the MOA, Principal also is required to file a good andsufficient Bond with the Obligee to secure the claims to which reference ismade in the MOA, including but not limited to the construction of the EmergencyAccess Road according to the Design and Construction Specifications providedfor in Exhibit A and the terms of the MOA; and

 

WHEREAS,Tribe hereby agrees to a limited waiver of sovereign immunity for the purposesof enforcing the Bond and consents to jurisdiction in the Sonoma County Courtsor other court of competent jurisdiction for the limited purposes of enforcingthe Bond, and specifically agrees that such a court shall have jurisdiction toenter judgments enforcing rights and remedies expressly provided for in theBond, including but not limited to monetary damages, injunctive relief,declaratory judgment, and specific performance.

 

1.             NOW, THEREFORE,Principal and                         (“Surety”),are held firmly bound unto the Obligee for the construction of the EmergencyAccess Road as provided for in Exhibit A and the MOA (as either shall beamended by agreement of the Obligee and Principal from time to time), and thepayment of all sums incurred in such performance, in the penal sum of ThirteenMillion Dollars ($13,000,000) (“Construction Sum”), for materials furnished,services provided, or labor thereon of any kind, that said Surety will pay thesame in an amount not exceeding the amount set forth above and so binds allheirs, executors, administrators, successors, and assigns, jointly andseverally, firmly by these covenants and agreement.

 

2.             It is expressly stipulated andagreed that the Bond shall inure to the benefit of Obligee only and no otherperson or entity.

 

3.             Should the condition of this Bondbe fully performed, then this obligation shall become null and void; otherwiseit shall be and remain in full force and effect.

 

Exhibit F to MOA

Page 1 of 3

 

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4.             The Surety, for value received,hereby stipulates and agrees that no change, extension of time, alteration,addition, omission and/or any other modification to the MOA, or to any of thework to be performed thereunder with respect to the Emergency Access Road norany forbearance on the part of either the Principal or the Obligee shall in anyway impair or affect its obligations under this Bond and hereby waives noticeof any and all such changes, extensions of time, alterations, additions,omissions and/or any other modifications or any forbearance on the part ofeither the Principal or the Obligee.

 

5.             The condition of this obligation issuch, that Principal, or its heirs, executors, administrators, successors, orassigns approved by Obligee, shall promptly and faithfully perform thecovenants, conditions, and agreements of the MOA in constructing the EmergencyAccess Road according to the Design and Construction Specifications during theapproved MOA terms and any extensions thereof as may be granted by Obligee,with or without notice to Surety, and shall also promptly and faithfullyperform all the covenants, conditions, and agreements of any alteration of theEmergency Access Road, notice of which alteration to Surety being hereby waived,on Principal’s part to be kept and performed at the time and in the mannertherein specified, and in all respects according to their true intent andmeaning, and shall indemnify, defend, protect, and hold harmless Obligee.

 

6.             The Surety hereby stipulates thatno extension of time, change, alteration, modification, or addition to the MOAor accepted Design and Construction Specifications (Exhibit A), or of thework required thereunder, shall release or exonerate Surety on this bond or inany way affect the obligation of this bond; and Surety does hereby waive noticeof any such extension of time, change, alteration, modification, or addition.

 

7.             Whenever Principalshall be and declared by Obligee in default under the MOA with respect toconstruction of the Emergency Access Road, Surety shall, promptly (within 30days) remedy the default and shall promptly, at the election of the Obligee:

 

a.                                       Undertakethrough its agents or independent contractors, reasonably acceptable toObligee, to complete the Emergency Access Road in accordance with its terms andconditions and to pay and perform all obligations of Principal under the MOA,including without limitation, all obligations with respect to warranties,guarantees, indemnities, and the payment of liquidated damages; or

 

b.                                      Obtain a bid orbids for completing the Emergency Access Road in accordance with the Design andConstruction Specifications, and, upon determination by Obligee of the lowestresponsible bidder, arrange for a contract between such bidder and Obligee andmake available as work progresses (even though there should be a default or asuccession of defaults under the contract or contracts of completion arrangedunder this paragraph) sufficient funds to pay the cost of completion less thebalance of the Construction Sum, and to pay and perform all obligations ofPrincipal, including, without limitation, all obligations with respect towarranties, guarantees, and the payment of liquidated damages not to exceed theConstruction Sum.

 

8.             Surety’s obligations hereunder areindependent of the obligations of any other surety for performance, and suitmay be brought against Surety and such other sureties, jointly

 

Exhibit F to MOA

Page 2 of 3

 

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andseverally, or against any one or more of them, or against less than all of themwithout impairing Obligee’s rights against the others.  Surety may not use Principal, its heirs,assigns, administrators or successors to complete the Emergency Access Roadabsent Obligee’s consent.

 

9.             No right of action shall accrue onthis Bond to or for the use of any person or corporation other than Obligee orits successors or assigns.

 

10.           If Surety does not proceed asprovided in paragraph 7, above, then Surety shall be deemed to be in default onthis Bond ten (10) days after receipt of an additional written notice fromObligee to Surety demanding that Surety perform its obligations under thisBond.  At all times Obligee shall beentitled to enforce any remedy available to Obligee at law including, withoutlimitation, and by way of example only, rights to perform work, protect work,mitigate damages, advance critical work to mitigate schedule delay, orcoordinate work with other consultants or contractors.

 

11.           Surety’s monetary obligation underthis Bond is limited by the amount of this Bond identified herein as theConstruction Sum.  Subject to theselimits, Surety’s obligations under this Bond are commensurate with theobligations of Principal under the MOA to construct the Emergency Access RoadConstruction Contract.  Surety’sobligations shall include, but are not limited to:  additional legal, design professional and/ordelay costs resulting from Principal’s default or resulting from the actions orfailure to act of the Surety under paragraph 7, above (but excluding attorney’sfees incurred to enforce this Bond); and

 

12.           The Parties agree that anyproceeding, legal or equitable, under this Bond shall be instituted in thecourts of the County of Sonoma, or in a court of competent jurisdiction if theSonoma County courts are without jurisdiction.

 

13.           All notices to Surety or Contractorshall be mailed or delivered (at the address set forth on the signature page ofthis Bond), and all notices to Obligee shall be mailed or delivered as providedin the MOA.  Actual receipt of notice bySurety, Obligee or Contractor, however accomplished, shall be sufficientcompliance as of the date received at the foregoing addresses.

 

14.           Any provision in this Bondconflicting with any statutory or regulatory requirement shall be deemeddeleted here from and provisions conforming to such statutory requirement shallbe deemed incorporated herein.

 

INWITNESS WHEREOF, this instrument has been duly executed by the Principal andSurety on the                day of                                ,2008.

 
| PRINCIPAL        |          | SURETY |
|------------------|---------------|--------|
| Company:         | (Corp.  Seal) |   | Company: | (Corp.  Seal) |
| Signature:       |          |   | Signature: |   |
| Name  and Title: |          |   | Name  and Title: |   |
| Address:         |          |   | Address: |   |
|             |          |   |
|             |          |   |
|                  |               |        |  |  |  |  |  |  |  |  |

 

Exhibit F to MOA

Page 3 of 3

 

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Exhibit G

 

**DRY CREEKRANCHERIA-SONOMA COUNTY**

**DEPARTMENTOF EMERGENCY SERVICES**

**FIREPROTOCOL**

 

**I.****                                      ****GENERAL**

 

**A.****                                 ****Background:**The Dry Creek Rancheria Band of Porno Indians of California (“Tribe”)is a federally recognized Indian Tribe, with federal trust reservation lands (“Rancheria”)located within the boarders of Sonoma County. The Tribe retains sovereigngovernmental authority over its reservation lands and its tribal members. TheTribe has exclusive jurisdiction over building, safety and fire code matterspertaining to its Rancheria. To that end, the Tribe, its Board of Directors andits Gaming Commission retain the services of qualified specialists in thefields of Fire Safety and Building Codes Administration (collectively, theBoard of Directors, Gaming Commission, Tribal Certified Building Official andTribal Fire Marshal are referred to herein as “Tribal Officials”), to overseeFire Life Safety elements of operating the existing Rancheria and River RockCasino (“Casino”), and review and approval of future projects, including arecently proposed Resort Project encompassing a proposed casino and hotel onthe Rancheria, as well as non-gaming Tribal projects.

 

In addition to its own resources, the Tribecurrently relies in part upon Geyserville Fire Protection District (“GFPD”) toprovide first response fire and emergency medical services on the Rancheria.The Tribe also is the beneficiary of wildland fire fighting services providedby the Bureau of Indian Affairs and California Department of Forestry and FireProtection. In addition, through mutual aid agreements, the Tribe may benefitfrom services from other local public agencies, including the Sonoma CountyDepartment of Emergency Services (“County Fire”), which may individually and/orcollectively be called upon by GFPD and/or the Tribe to provide emergencyresponse services to the Rancheria, including mutual aid and hazardousmaterials response services (collectively first response, mutual aid, andhazardous materials are hereinafter referred to as “Emergency Response Services”).The Tribe, Tribal Officials and County Fire shall collectively be referred toin this Fire Protocol as “the Parties.”

 

**B.****                                 ****Purpose:**The purpose of this Fire Protocol is to provide fora process by which County Fire will be allowed access by the Tribe to reviewbuilding and safety plans and to participate in inspections of tribal buildingsand areas which may receive Emergency Response Services from GFPD, other localpublic agencies, and/or County Fire. The Protocol is exclusively technical innature, focusing only on life/safety issues related to patrons, employees,Tribal members, and the First Responders to the Rancheria under codes madeapplicable under Tribal law. Nothing in this Protocol is intended to, or may beinterpreted to, alter the Tribe’s exclusive jurisdiction over the subjects ofthis Fire Protocol and the Tribal Officials’ authority to make final, bindingcode determinations.

 

**C.****                                 ****Geyserville Fire Protection District:**The Tribe currently is partyto a Memorandum of Agreement with the Geyserville Fire Protection District (“GFPD”)to alleviate impacts resulting from providing EMS and Fire Suppression Servicesto the Rancheria. This Protocol does not modify said Memorandum of Agreement.As such, GFPD will continue to be invited to participate in future discussions,meetings and inspections related to fire/life safety

 

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issues pertaining to theRancheria.

 

**D.****                                ****Retention of Consultants:**County Fire may retainconsultants to assist County Fire in plan review and/or inspections. Anyconsultants retained by County Fire shall be subject to the sameconfidentiality requirements that are applicable to County Fire, as set forthherein below. With respect to any Gaming Facility plan review or inspection,such County Fire consultants shall be subject to conflict-of-interestclearance, background investigation and licensing by the Dry Creek GamingCommission. With respect to non-gaming project plan review or inspections, suchCounty Fire consultants shall be subject to a conflict-of-interest check by theTribal Officials which will review a consultant’s resume and other informationas requested to insure the consultant does not have a divergent financial orother potentially relevant conflict with the Tribe. If such a gaming ornon-gaming conflict is found, the Tribal Officials will inform County Firewithin seven (7) days of submission of a complete application for a gaminglicense, or for a non-gaming project, submittal of the consultant’s name andresume to the Tribe. If the Tribal Officials determine there is a conflictCounty Fire shall select a different consultant, any dispute over whether aconflict of interest exists shall be resolved through the MOA disputeresolution process.

 

**II.****                                 ****FIRE PLANREVIEW PROTOCOL**

 

**A.****                                 ****Notification/Response:**When the Tribal Officialsreceive a proposed building plan relevant to the design, development orconstruction of a proposed project(s) which may receive Emergency ResponseServices, Tribal Officials shall provide timely notice via e-mail of receipt ofsuch plan to County Fire. County Fire shall respond promptly via e-mail to theTribal Officials to propose dates and times to review the proposed plan. Suchreview shall take place within five (5) business days from notice.Alternatively, County Fire may decline review, again via e-mail notification.

 

**B.****                                 ****Comment Format/Feedback:**County Fire shall providecomments regarding potential fire/life safety concerns at the time of viewingof plans, and shall provide written comments, if any, within two (2) businessdays of such plan review to the Tribal Officials as designated below. The Tribe’sBuilding Official is generally required to process plan check review within 10days. As a result, the initial plan review process as provided for in this FireProtocol shall not exceed a total of 10 business days. Any recheck ofcorrections to the initial plan review shall not exceed 5 business days.

 

**C.****                                 ****Location for Site Plan Reviews:**All plan review shall occurat the Gaming Commission office unless the Parties agree **otherwise** in writing prior to the planreview. Custody of all plans shall remain exclusively with Tribal Officials atall times.

 

**D.****                                 ****Review of As Built Plans:**For projects that havealready been completed, the Tribe shall allow County Fire an opportunity toreview the as built drawings upon reasonable notice. Said plan review shalloccur at the Gaming Commission office unless the Parties agree otherwise inwriting prior to the plan review:

 

**E.****                                   ****Notices:**Notices under this protocol will be sent to thefollowing:

 

Dry Creek Fire Marshall Vernon Brown & Associates, Inc. 6060 Sunrise Vista Dr.Ste 1425 Citrus Heights, CA 95610

Phone: 916-726-0404 Fax: 916-726-0464 Cell:916-995-7650 Email: vernoa@vbi2.com

 

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Dry Creek Building Official

Lowell Brown

190 Foss Creek Circle, Suite B

Phone 707-473-2188

Fax (707) 473-2172

Email: lowell.brown@us.bureauveritas.com

 

Dry Creek Gaming Commission 190 Foss Creek Circle, Suite B

Phone(707)473-2100

Fax (707) 473-2172

Email: vwattles@dcgc.net;ljohnson@dcgc.net; kadams@dcgc.nct;

dcastaneda@dcgc.net

 

Dry Creek Board of Directors

190 Foss Creek Circle, Suite A

Healdsburg, CA 95448

Phone(707)473-2106

Fax (707) 473-2197

Email:HarveyH@DryCreekRancheria.com; DCRBOD@DryCrcekRanchcria.com;

LynnL@DryCreekRancheria.com

 

Department Director

Sonoma County

Department of Emergency Services

2300 County Center Drive #221A

Santa Rosa, CA 95403

Phone-707.565.1152

Fax-707.565.1172

Email: vlosh@sonoma-county.org

 

County Administrator

County of Sonoma

575 Administration Drive.

Santa Rosa, CA  95403

Phone:707-565-2431

Fax: 707-565-3778

Email: cthomas@sonoma-counry.org

 

Any party may designate in writing, to all of theabove persons, alternate designated contact(s).

 

**III.**                            **FIRE INSPECTION PROTOCOL**

 

**A.****                                ****Inspections per Fire Code:**The Tribe’s fire inspectionsare performed as required by Tribal law. County Fire’s participation in the Tribe’s fire inspections shall beperformed as outlined

 

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in this Fire Protocol and subject to theterms and conditions of the Memorandum of Agreement (“MOA”) by and between theCounty and Tribe, to which this Protocol is appended. Inspections are to bescheduled as the work progresses on an area-of-work basis, an example of whichwould be: installation of underground fire piping included placement and thrustblocks, and hydrostatic and flush testing. The Parties anticipate that theseinspections may be repeated in several areas of a site, depending onconstruction requirements, schedules and other variables. The Partiesanticipate a similar routine occurring for interior sprinkler pipinginspections and fire alarm systems. Annual fire code inspections of trust landsand the Rancheria improvements, including any proposed projects, shall beconducted to the extent mandated by the Tribe’s Fire Code, and County Fire willbe given two (2) business days advance notice via e-mail and shall have anopportunity to attend such inspections. If County Fire is unable to participatein inspections it may review, in the Tribal Gaming Commission Office, or otherlocation mutually agreed upon by the Parties, documents showing the results ofthe inspection(s) or other certifications related to the project.

 

**B.****                                  ****Notification of Inspections:**When a contractor notifiesthe Tribal Officials of the need to have a fire code inspection, a Tribal Officialrepresentative shall notify County Fire of the inspection request via e-mail.Should County Fire desire to participate in the inspection, it shall respondvia e-mail within two (2) business days of notice to the Tribal Officials,and shall view the work at the same time the normal inspection occurs.

 

**C.****                                  ****No Delay:**Under no circumstance will construction inspectionsbe delayed or performed at a time outside the normal business schedule toaccommodate peer viewing by County Fire.

 

**D.****                                  ****Comment Format/Feedback:**Potential concerns orsuggestions discussed in the field shall be based upon good faithinterpretations of the Tribe’s Fire Code. The Parties recognize that such codeinterpretations may vary among reasonable, qualified code officials, dependingupon, among other things, individual understandings of the applicable code andindividual professional experiences. Thus, the Parties acknowledge that CountyFire may have a code interpretation as to a specific matter that may differfrom the Tribal Official constituting the Authority Having Jurisdiction (“AHJ”defined as the officer or other designated Authority charged with theadministration and enforcement of the Tribe’s code, or duly authorizedrepresentative). Under such circumstances, County Fire shall have anopportunity to express its concerns to the Tribal Officials within two (2) businessdays of the relevant inspection. Nothing in the foregoing may be deemed toalter or modify the Tribe’s exclusive jurisdiction over building and firesafety issues and code interpretations.

 

**IV.****                              ****MEET &****CONFER PROCEDURE**

 

**A.****                                  ****Informal Discussion:**If as a result of planreview, inspections, or other information, County Fire transmits fire or otherlife safety concerns to the Tribe’s Fire Marshal and/or Building Official, theyshall meet or teleconference within two (2) business days on an informalbasis with County Fire to discuss the issue. The Parties shall use good faith,best efforts to resolve the issue informally.

 

**B.****                                  ****Meet and Confer:**If informal discussions outlined above do notresolve an issue, County Fire shall prepare and deliver to all TribalOfficials, in accordance with the notice

 

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designations above, a written explanation ofthe factual basis and/or code interpretation underlying its view of the issue(hereinafter “County Fire’s Position Paper”). The Tribe’s Fire Marshal and/orBuilding Official shall provide a written response (the “Determination”) toCounty Fire within two (2) business days after receipt of County Fire’sPosition Paper. County Fire’s Position Paper and the Tribe’s Fire Marshalland/or Building Official’s Determination shall be discussed at a meeting to bescheduled within one week after the Determination in response to County Fire’sPosition Paper is provided, unless the Parties mutually agree to a differentschedule. The meeting may be in person or via teleconference and may involve aninspection if the Tribe determines that it would be useful in resolving thedispute.

 

**C.****                                  ****Tribal Board/Gaming Commission Decision:**Should the above efforts notresult in satisfactory resolution of a concern, County Fire may request ameeting with the Tribal Board of Directors with respect to non-Gaming Facilityprojects, or alternatively the Gaming Commission with respect to GamingFacility projects. The meeting is subject to Tribal and Gaming Commission lawsand procedures but, notwithstanding the foregoing, shall be scheduled within 10days of County Fire’s express written request under this section and the noticeprovisions contained herein. The Board is the final authority for suchdecisions with respect to non-Gaming Facility projects, and the GamingCommission is the final authority for such appeals with respect to GamingFacility projects, and their respective determinations shall not be subject toreversal or modification by any person or entity. Unless a revised writtenDetermination is made by Tribal Officials within seven (7) business daysof the meeting, pursuant to the Tribe’s exclusive jurisdiction in this area,the prior Determinations by the Tribal Fire Marshal and/or Building Officialshall be final.

 

**D.****                                  ****State Fire Marshall Notification:**Upon conclusion of the Meetand Confer and Dispute Resolution procedures provided for in this FireProtocol, including review by the Tribal Board/Gaming Commission, County Firemay notify the State Fire Marshal, Bureau of Indian Affairs (“BIA”) (as tonon-gaming related issues) and/or the National Indian Gaming Commission (as togaming related issues) of its concerns, provided County Fire simultaneouslyprovides the Tribal Officials with a copy of its comments to the State FireMarshall, BIA and/or National Indian Gaming Commission.

 

**E.****                                    ****Timelines:**The timelines contained in this Protocol may only berevised by the written mutual agreement of the Parties.

 

**V.****                                  ****SCOPE OFFIRE REVIEWS**

 

**A.****                                 ****Areas of Site and Building Improvements:**The scope of County Fire’sreview of plans and inspections of buildings and areas shall include all areaswhich may receive Emergency Response Services.

 

**B.****                                 ****Gaming Facility Projects:**Existing Casino &Parking Garage, proposed Gaming Facility project, and future Gaming Facilityprojects are subject to the Tribe’s Fire Code, conditions of the MOA and FireProtocol, Compact, and other applicable Tribal laws.

 

**C.****                                 ****Non-Gaming Facility Projects on Trust Lands:**Othernon-Gaming Facility projects which may receive Emergency Response Services fromCounty Fire on Tribal trust lands shall be subject to the Tribe’s Fire Code,the MOA and Fire Protocol, and other applicable Tribal laws.

 

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Examples include, but arenot necessarily limited to, the Rancheria Emergency Response Plan, ProposedRoadway Improvements, Dugan Projects,, and tribal housing.

 

**D.****                                 ****Emergency Plan Review:**With respect to theRancheria Emergency Response Plan, and any amendments thereto, Tribal Officialsshall consult with County Fire for the purpose of improving coordination andresponse to any emergencies or disasters. Notwithstanding the consultation,nothing in this Protocol or the MOA shall give County Fire jurisdiction overthe Tribe’s Emergency Response Plan.

 

**E.****                                   ****Fee Lands:**Projects on fee lands located within Sonoma Countyare subject to applicable law and are not governed by this Fire Protocol.

 

**VI.****                              ****CONFIDENTIALITY**

 

The Parties agree that the subjects addressed in the Protocol,including plan review and fire code inspections, encompass matters that involvesignificant governmental, proprietary and security concerns. The Partiesfurther acknowledge that the MOA by and between the County and Tribe, to whichthis Protocol is appended, includes significant confidentiality provisions andthat those confidentiality provisions are essential components of thisProtocol. County Fire expressly recognizes the importance of maintaining theconfidentiality information obtained under or related to this Fire Protocol andthe MOA, and expressly agrees to do so. Any breach of the confidentialityprovisions of this Fire Protocol or MOA shall be subject to the disputeresolution provisions of the MOA, including possible damages.

 

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**EXHIBIT H**

 

**RECORDING REQUESTED BY AND**

**WHEN RECORDED RETURN TO:**

 

SonomaCounty Agricultural

Preservationand Open Space District

575Administration Drive, Room 100A

SantaRosa, CA  95403

 

**DEED ANDAGREEMENT BY AND BETWEEN**

**ALEXANDERVALLEY VENTURES, LLC, AND THE SONOMA COUNTY AGRICULTURAL PRESERVATION AND OPEN SPACE DISTRICT CONVEYING AN AGRICULTURAL AND OPEN SPACE CONSERVATION EASEMENT AND ASSIGNING DEVELOPMENT RIGHTS**

 

AlexanderValley Ventures, LLC, (“**GRANTOR**”), and the Sonoma County AgriculturalPreservation and Open Space District, a public agency formed pursuant to theprovisions of Public Resources Code sections 5500 et seq. (“**DISTRICT**”)(**GRANTOR** and **DISTRICT**are hereinafter referred to as Parties or separately as Party), hereby enterthis Conservation Easement and Assignment of Development Rights (“Easement”)and agree as follows:

 

**RECITALS**

 

**A.****           ****GRANTOR** is the owner in fee simple of that certain realproperty located in the unincorporated area of the County of Sonoma (“**COUNTY**”)****moreparticularly described in Exhibit “A”, attached hereto and incorporatedherein by this reference (“the Property”).

 

**B.****           **The Propertyincludes prime agricultural land located within the Petaluma River area ofSonoma County.  Portions of the Propertyare currently in active commercial agricultural production and the Propertyincludes significant open space values. The Property has the soil quality, growing season, and moisture supplyneeded for sustained agricultural production.

 

**C.****           **Anotherproperty owned by an affiliate of **GRANTOR**, TheDry Creek Rancheria Band of Pomo Indians, a federally recognized Tribe, (“**TRIBE**”), which property is located at 2970 Highway 128,Geyserville, CA 95441 (the “Dugan Property”), is currently subject to a LandConservation Contract pursuant to Government Code sections 51200, et seq., (“theWilliamson Act contract”).  In connectionwith certain other agreements, **GRANTOR**and the**TRIBE** have jointly requested that the **COUNTY** rescind the Williamson Act contract in favor of aperpetual easement providing agricultural conservation and open spaceprotection over an approximately 90 acre portion of the Property as moreparticularly described in Exhibit B, attached hereto and incorporatedherein by this reference (“the Easement Area”). Such rescission and entering into this easement is requested pursuant tosection 51256 of the California Government Code.  **GRANTOR**and**TRIBE** have each determined that it is in its and their bestinterests to seek rescission of the Williamson Act contract on the DuganProperty and to enter 

 

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intothis agreement.

 

**D**.            Sections 10251and 10252 of the Public Resources Code govern the findings that must be made inorder for the California Department of Conservation (“**DEPARTMENT**”)to approve the rescission of the Williamson Act contract.  The **DEPARTMENT** hasdetermined, in accordance with section 51256.1 of the Government Code, that thefindings of **COUNTY**, in approving therescission of the Williamson Act contract and the execution of this Easementare supported by substantial evidence, that the Easement is consistent with theeligibility criteria set forth in section 10251 of the Public Resources Codeand that the Easement will make a beneficial contribution to the conservationof agricultural land in the area.

 

**E.**             The **COUNTY** has determined that the EasementArea possesses agricultural, scenic, and openness values of importance to thepeople of Sonoma County which deserve to be protected through a perpetual agriculturaland open space conservation easement. Accordingly, **COUNTY**, hasaccepted **GRANTOR’s** and **TRIBE’s**offer and required **GRANTOR**to enter into this Deed and AgreementBy and Between Alexander Valley Ventures, LLC and the Sonoma CountyAgricultural Preservation and Open Space District Conveying an Agricultural andOpen Space Conservation Easement and Assigning Development Rights****(“Easement”) as a condition ofrescission of the Williamson Act contract on the Dugan Property.

 

**F.**             **DISTRICT** was formed in 1990 by **COUNTY**votersto preserve agriculture and open space, and to meet the mandatory requirementsimposed on **COUNTY** and each of itscities by Government Code sections 65560 et seq. and the open space elements oftheir respective general plans.  It isthe policy of **COUNTY** thatnon-possessory interests in open space lands acquired pursuant to **COUNTY’s** land use regulatory policies orotherwise by gift, devise, or purchase shall be taken in the name and for thebenefit of **DISTRICT**.  Consistent with that policy, this Easement isgranted to **DISTRICT**.  At the time **DISTRICT**accepted this Easement, **DISTRICT**confirmed the agricultural and open space values of the Easement Area and theimportance of preserving those values through this Easement.

 

**G.**            **DISTRICT** has the authority to acquire this Easement byvirtue of Public Resources Code section 5540 and possesses the ability andintent to enforce the terms of this Easement.

 

**H.**            **GRANTOR** acknowledges that this Easement is granted pursuantto Public Resources Code section 5540 and is in consideration of **COUNTY’s** approval of the Dugan PropertyWilliamson Act contract rescission.

 

**EASEMENT**

 

**1.****            ****Grant andAcceptance of Agricultural and Open Space Conservation Easement and Assignmentof Development Rights****.**  Pursuant to the common and statutory law ofthe State of California, **GRANTOR**hereby grants to **DISTRICT** and **DISTRICT** accepts an agricultural and openspace conservation easement over the Easement Area in perpetuity and **GRANTOR** hereby irrevocably assigns to **DISTRICT** all development rights associatedwith the Easement Area, except those rights which are specifically reserved by **GRANTOR** through this Easement and describedin the exhibits hereto.  Reservedownership rights include 

butare 

 

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notlimited to, the right to sell, lease, or otherwise transfer the Easement Areaand/or the Property to anyone the **GRANTOR**chooses, as well as the right to privacy, the right to exclude any member ofthe public from trespassing on the Easement Area and/or the Property, the rightto the use and quiet enjoyment of the Easement Area and/or the Property and anyother rights found to be consistent with the terms and purpose of thisEasement.  The Easement does not grant **DISTRICT** or any other party any rights in or over theportion of the Property outside of the Easement Area.

 

**2.****            ****Purpose****.**  It is the purpose of this Easement topreserve and conserve the Easement Area’s agricultural productive capacity, itssoils and its agricultural character, as well as to preserve, enhance, protectand maintain the scenic and openness values, including wetland and specieshabitats and natural values, of the Easement Area for the benefit of the publicgenerally (collectively “the agricultural and open space values of the EasementArea”).  It is further the purpose ofthis Easement to prevent any uses of the Easement Area that will significantlyimpair or interfere with those agricultural and open space values.  These purposes shall hereinafter be referredto collectively as “the purpose of this Easement”.

 

**3.****            ****Affirmative Rights of DISTRICT****.**  **DISTRICT**shall have the following affirmative rights under this Easement:

 

(a)           **DISTRICT** shall have theright to preserve and protect in perpetuity the agricultural and open spacevalues of the Easement Area in keeping with the terms of this Easement and **GRANTOR’s** reserved rights, including **GRANTOR’s**rights to the use and quiet enjoyment of the Property.

 

(b)           **DISTRICT** shall have theright to hold, use, enjoy, dispose of, and otherwise benefit from the interestsin real property conveyed to it by this Easement in accordance with applicablelaw, including, but not limited to, Public Resources Code section 5540 or anysuccessor statute then in effect, and in keeping with the terms of thisEasement and **GRANTOR’s** reserved rights,including **GRANTOR’s** rights to the use and quietenjoyment of the Property.

 

(c)           **DISTRICT** shall have theright to enter upon the Easement Area and to inspect, observe, and study theEasement Area for the purposes of (i) identifying the current activitiesand uses thereon and the condition thereof, (ii) monitoring the activitiesand uses thereon to determine whether they are consistent with the terms andpurpose of this Easement, (iii) enforcing the terms of this Easement, and (iv) exercisingits other rights under this Easement. Such entry shall be permitted at least once a year at reasonable times,upon twenty-four hours’ prior written notice to **GRANTOR**, and shall be made in a manner that will notunreasonably interfere with **GRANTOR’s**useand quiet enjoyment of the Property consistent with the terms of thisEasement.  Each entry shall be for onlyso long a duration as is reasonably necessary to achieve the purposes of thisParagraph 3, but shall not be necessarily limited to a single physical entryduring a single twenty-four hour period. Notwithstanding the foregoing, should **DISTRICT’s**General Manager have a reasonable belief that **GRANTOR**is in breach of this Easement, **DISTRICT**shall have the right at any time, upon twenty-four hours’ prior written noticeto **GRANTOR**, to enter upon theEasement Area for the purpose of determining whether such breach hasoccurred.  Such entry shall be made in amanner that will not unreasonably 

 

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interferewith **GRANTOR’s**use and quiet enjoyment ofthe Property consistent with the terms of this Easement.  The rights of entry provided by thisParagraph 3(c) shall extend to the officers, agents, and consultants of **DISTRICT**.

 

(d)           **DISTRICT** shall have theright to enforce the rights herein granted and to prevent or stop, by any legalmeans, any activity or use on the Easement Area that is inconsistent with theterms or purpose of this Easement and to require restoration of such areas orfeatures as may be damaged by such activities or uses.  Nothing in this Easement, however, shallrequire **GRANTOR** to take any action to restorethe condition of the Property, including the Easement Area, after any Act ofGod, terrorism, war, or any other natural event over which **GRANTOR**had no control.

 

(e)           In the event **DISTRICT** fails to enforce any term, condition, covenant orpurpose of this Easement, as determined by Director of **DEPARTMENT**,Director of **DEPARTMENT** and his or hersuccessors and assigns shall have the right to enforce this Easement by anymeans available to District under this Easement after giving notice to **GRANTOR** and **DISTRICT** andproviding a reasonable opportunity under the circumstances for **DISTRICT** to enforce any term, condition, covenant or purposeof the Easement.  In the event thatDirector of **DEPARTMENT** determines that **DISTRICT**has failed to enforce any of the terms, conditions,covenants or purposes of the Easement, Director of **DEPARTMENT**andhis or her successors and assigns shall be entitled to exercise the right toenter the Easement Area granted to **DISTRICT**including right of immediate entry where Director of **DEPARTMENT**or his or her successor or assign determines that immediate entry is requiredin the event of an emergency circumstance or prevention of a threatened breachof this Easement.

 

**4.****            ****GRANTOR’s****Use of the Easement Area****.**  **GRANTOR** shall confine the use of the Easement Area toactivities and uses that are consistent with the purpose of this Easement.  **GRANTOR** shallnot perform, nor knowingly allow others to perform, any act on or affecting theEasement Area that is inconsistent with the purpose of this Easement.  Without limiting the generality of theforegoing, **GRANTOR** and **DISTRICT** agree that the activities and usesdescribed in Exhibit “C”, attached hereto and incorporated herein by thisreference, are expressly permitted, prohibited or restricted as set forththerein.  Nothing in this Easement requires GRANTOR to conduct agricultural orwetland and species mitigation banking on any part of the Easement Area.

 

**5.****            ****Notice andApproval Procedures****.**  Certain provisions of this Easement requirethat prior written notice be given by **GRANTOR**to **DISTRICT**or vice versa, while other provisions requirethat **GRANTOR**obtain prior writtenapproval of **DISTRICT**.  Any required prior written approval shall notbe unreasonably delayed or withheld. Copies of any written notice or approval shall be provided to the **DEPARTMENT**.  Unlessand until notice is given or approval is obtained in accordance with thisParagraph, any use that requires such notice or approval shall be deemed to beprohibited on the Easement Area.  Theprocedure for giving such notices and obtaining such approvals are as follows:

 

(a)           For any activity or use thatrequires prior written notice to **DISTRICT**,**GRANTOR**shall deliver such notice to **DISTRICT**atleast 45 days prior to the commencement of such activity or use unless suchactivity or use is in response to an emergency in which case 

 

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theParties will meet and confer so as to allow any necessary activity or use totake place in a reasonable amount of time. The notice shall inform the **DISTRICT** of allrelevant aspects of the proposed activity or use, including, but not limitedto, a description of the nature, siting, size, capacity, uses, and/orenterprises.

 

(b)           For any activity or use thatrequires prior written approval from **DISTRICT**, **GRANTOR** shall file a written request for such approval (“**GRANTOR’s** request”) with **DISTRICT**at least 45 days prior to the commencement of such activity or use unless suchactivity or use is in response to an emergency in which case the Parties willmeet and confer so as to allow any necessary activity or use to take place in areasonable amount of time.  The requestshall inform **DISTRICT** of all relevant aspectsof the proposed activity or use, including, but not limited to, a descriptionof the nature, siting, size, capacity, uses, and/or enterprises.  

Unlesssuch activity or use is the result of an emergency, **DISTRICT**shall have forty-five (45) days from the receipt of **GRANTOR’s**requestto review and to approve, conditionally approve, disapprove or notify **GRANTOR** of any objection thereto.  Disapproval or objection, if any, shall bebased on **DISTRICT**’s good faith determination that the proposed activity or use isinconsistent with the terms or purpose of this Easement or that the request isincomplete or inaccurate.  If, in **DISTRICT’s** judgment, the proposed activity or use would notbe consistent with the terms or purpose of this Easement or the request isincomplete or inaccurate, the **DISTRICT’s**notice to **GRANTOR** of any disapproval or objectionshall inform **GRANTOR** of thereasons for **DISTRICT’s** disapprovalor objection. Only upon **DISTRICT’s**express written approval may the proposed activity or use be commenced, andthen only in accordance with the terms and conditions of the approval.

 

(c)           Should **DISTRICT**fail to respond to **GRANTOR’s**request within the 45-day time period, **GRANTOR** shallfile a second written request with **DISTRICT** byregistered or certified mail.  Should **DISTRICT** fail to respond to the secondrequest within ten (10) days after receipt of the request, **GRANTOR** may commence an action in a court of competentjurisdiction to compel **DISTRICT** torespond to the request.  In thealternative, **GRANTOR** may commence a proceedingin arbitration under Paragraph 16 of this Easement.

 

(d)           For written notice to **GRANTOR**, the **DISTRICT**shall deliver such notice to the **GRANTOR**pursuant to the time lines provided for such notice in this Easement.  As to the notice under Paragraph 3(c), suchnotice shall provide the date and time of such entry.

 

**6.****            ****Costs andLiabilities Related to the Easement Area****.**

 

(a)           **GRANTOR** agrees to bearall costs and liabilities of any kind related to the operation, upkeep, andmaintenance of the Easement Area and does hereby indemnify and hold **DISTRICT** and **DEPARTMENT**harmless therefrom.  Without limiting theforegoing, **GRANTOR** agrees to payany and all real property taxes, fees, exactions and assessments levied orimposed by local, state or federal authorities on the Easement Area.  **GRANTOR**shall be solely responsible for any costs related to the maintenance of generalliability insurance covering acts on the Easement Area.  Except as specifically set forth in Paragraph7(b) below,**DISTRICT** and **DEPARTMENT**shall have no responsibility whatever for theoperation, upkeep or maintenance of the Easement Area, the monitoring ofhazardous conditions thereon, or the protection of **GRANTOR**, the public, or any third parties from risks relatingto conditions on the 

 

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EasementArea. ** GRANTOR** does hereby agree toindemnify and hold **DISTRICT** and **DEPARTMENT**harmless from and against any damage, liability,claim, or expense, including attorneys’ fees, relating to such matters.  Without limiting the foregoing, **DISTRICT** and **DEPARTMENT**shallnot be liable to **GRANTOR** or anyother person or entity in connection with approvals given or withheldhereunder, or in connection with any entry upon the Easement Area occurringpursuant to this Easement, or on account of any claim, liability, damage, orexpense suffered or incurred by or threatened against **GRANTOR** or any other person or entityrelated to this Easement, except to the extent that such claim, liability,damage, or expense is the result of **DISTRICT’s**or **DEPARTMENT’S** respective negligence,gross negligence or intentional misconduct.

 

(b)           (1)           Notwithstanding any otherprovision of this Easement to the contrary, the parties do not intend and thisEasement shall not be construed such that it creates in **DISTRICT**or**DEPARTMENT**:

 

(A) The obligations or liabilities of an “owner” or “operator”  as those words are defined and used inenvironmental laws, as defined below, including, but not limited to, theComprehensive Environmental Response, Compensation and Liability Act of 1980,as amended (42 United States Code, sections 9601, et seq.) (“CERCLA”);

 

(B) The obligations or liabilities of a person described in 42 United States Codesection 9607(a)(3) or any successor statute then in effect;

 

(C) The right to investigate and remediate any hazardous materials, as definedbelow, associated with the Easement Area; or

 

(D) Any control over **GRANTOR’s** abilityto investigate and remediate any hazardous materials, as defined below,associated with the Easement Area.

 

(2)           **GRANTOR** represents,warrants, and covenants to **DISTRICT**that **GRANTOR’s** use of the EasementArea shall comply with all environmental laws, as defined below.

 

(3)           For the purposes of thisEasement:

 

(A) The term “hazardous materials” includes, but is not limited to, any flammableexplosives, radioactive materials, hazardous materials, hazardous wastes,hazardous or toxic substances, or related materials defined in CERCLA, theHazardous Materials Transportation Act, as amended (49 United States Codesections 1801, et seq.), the Resource Conservation and Recovery Act of 1976, asamended (42 United States Code sections 6901, et seq.), sections 25117 and25316 of the California Health & Safety Code and in the regulationsadopted and publications promulgated pursuant to them, or any other federal,state, or local environmental laws, ordinances, rules, or regulationsconcerning the environment, industrial hygiene, or public health or safety nowin effect or enacted after the effective date of this Easement.

 

(B) The term “environmental laws” includes, but is not limited to, any applicablefederal, state, local, or administrative agency statute, ordinance, regulation,rule, 

 

Exhibit H to MOA

Page 6 of 28

 

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order,or requirement relating to environmental conditions or hazardous materials.

 

**7.****            ****Indemnification****.**

 

(a)           **GRANTOR** shall holdharmless, indemnify, and defend **DISTRICT**  and **DEPARTMENT** fromand against damages, liabilities, claims and expenses, including reasonableattorneys’ fees, arising from or in any way connected with (i) injury toor the death of any person, or physical damage to property resulting from anyact or omission, condition or other matter related to or occurring on or aboutthe Easement Area, except to the extent that such damage, liability, claim, orexpense is the result of the respective negligence, gross negligence orintentional misconduct of **DISTRICT**or **DEPARTMENT** (it being the intent of thisprovision to limit **GRANTOR’s**indemnity to the proportionate part of **DISTRICT’****s** and **DEPARTMENT’S**damage, liability, claim or expense for which **GRANTOR**is responsible); and (ii) the obligations specified in Paragraph 6.  In the event of any claim, demand, or legalcomplaint against **DISTRICT** or **DEPARTMENT**,the right to the indemnification provided by this Paragraph 7(a) shall notapply to any cost, expense, penalty, settlement payment, or judgment, includingattorneys’ fees, incurred prior to **DISTRICT’s**or **DEPARTMENT’s**written notice of suchclaim, demand, or legal complaint to **GRANTOR**,unless **GRANTOR** has acquired knowledgeof the matter by other means, nor to any costs, expenses, or settlementpayment, including attorneys’ fees, incurred subsequent to that notice unlesssuch cost, expense, or settlement payment shall be approved in writing by **GRANTOR**, which approval shall not beunreasonably withheld.

 

(b)           **DISTRICT** shall holdharmless, indemnify, and defend **GRANTOR,**  its heirs, devisees, successors and assigns,and **DEPARTMENT** from and against alldamages, liabilities, claims and expenses, including reasonable attorneys’fees, arising from or in any way connected with injury to or the death of anyperson, or physical damage to any property, resulting from any act, omission,condition, or other matter related to or occurring on or about the EasementArea and attributable to **DISTRICT**,except to the extent that such damage, liability, claim or expense is theresult of the respective negligence, gross negligence or intentional misconductof **GRANTOR** or **DEPARTMENT**(itbeing the intent of this provision to limit **DISTRICT****’s** indemnity to the proportionate part of **GRANTOR’s** and **DEPARTMENT’s**damage, liability, claim or expense for which **DISTRICT** is responsible).  In the event of any claim, demand, or legalcomplaint against **GRANTOR** or **DEPARTMENT**,the right to the indemnification provided by this Paragraph 7(b) shall notapply to any cost, expense, penalty, settlement payment, or judgment, includingattorneys’ fees, incurred prior to **GRANTOR’s**or **DEPARTMENT’s**written notice of suchclaim, demand, or legal complaint to **DISTRICT**,nor to any costs, expenses, or settlement payment, including attorneys’ fees,incurred subsequent to that notice unless such cost, expense, or settlementpayment shall be approved in writing by **DISTRICT**,which approval shall be in **DISTRICT’s**sole discretion.

 

**8.****            ****No PublicAccess****.**  Nothing contained in this Easement shall beconstrued as granting, permitting, or affording the public access to anyportion of the Property, including the Easement Area, or limiting or precluding**GRANTOR’s** right to exclude thepublic from all or any portion of the Property. Nothing in this Easement shall be construed to preclude **GRANTOR’s** right to grant access to thirdparties across the Easement Area, provided that such access is allowed in areasonable manner and is consistent with the purpose of this Easement and 

 

Exhibit H to MOA

Page 7 of 28

 

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solong as such activity is undertaken subject to the terms and conditions of thisEasement.

 

**9.****            ****Compliancewith Governmental Regulations****.**  The activities and uses permitted on theEasement Area pursuant to this Easement shall be subject to and undertaken inaccordance with all applicable federal, state, and local statutes, ordinances,rules, and regulations.

 

**10.****         ****No FurtherDivision of the Easement Area****.**  **GRANTOR**shall not divide the Easement Area into separate parcels by subdivision, lotline adjustment, partitions or other means, including, but not limited togaining recognition, by certificate of compliance or otherwise, of parcelswhich may have previously been created on the Easement Area by prior patent ordeed conveyances, subdivisions, or surveys except as provided in this Paragraphand Paragraph 5 of Exhibit C.  Thisprohibition against division of the Easement Area shall be inapplicable to (a) divisionsnecessary for public acquisition, (b) divisions necessary for thevoluntary conveyance of all or a portion of the Easement Area to a governmentor non-profit entity exclusively for conservation, mitigation banking or publicaccess purposes, provided however that no acreage set aside for agriculturalconservation pursuant to Paragraph 11 shall be included in such voluntaryconveyance, and (c) leases for agricultural purposes.  As used in this Paragraph 10, “agriculturalpurposes” means the cultivation of food or fiber, or the grazing or pasturingof livestock.  Nothing in this Easementshall prevent the **TRIBE** fromseeking to have the federal government take the Property or a portion of theProperty into trust as long as this Easement or an equivalent easement of equalor greater restriction remains in force on the Easement Area.  Nothing in this Easement shall prevent the **GRANTOR**and/or **TRIBE** fromseeking to separate the Easement Area into a separate parcel from the remainderof the Property.

 

**11.****         ****PermittedUse of Easement Area as Mitigation Bank****.**   Notwithstanding any otherprovisions of this Easement to the contrary, **GRANTOR**shall retain the right to dedicate, use and permit others to use the EasementArea or any portion thereof as part of a mitigation bank and to receiveconsideration therefore.   No part of anysuch consideration shall be payable to **DISTRICT**,and **DISTRICT** shall not claim tohave any interests in said mitigation bank. Notwithstanding the above, a minimum of 20 acres of the 90 acre EasementArea will be set aside for agricultural conservation.

 

**12.****         ****Interpretation,Construction and Severability****.**  To the extent that this Easement may beuncertain or ambiguous such that it requires interpretation or construction,then it shall be interpreted and construed in such a way that meets the purposeof this Easement.  It is the intention ofthe Parties that any interpretation or construction shall promote the purposeof this Easement.  If any provision ofthis Easement is found by appropriate court to be invalid or unenforceable, allremaining provisions of this Easement shall remain valid and binding.  If the application of any provision of thisEasement is found to be invalid or unenforceable as to any particular person orcircumstance, the application of such provisions to persons or circumstances,other than those as to which it is found to be invalid, shall not be affectedthereby.

 

**13.****         ****BaselineDocumentation for Enforcement****.**   **GRANTOR**shallprepare documentation acceptable to **DISTRICT**establishing the physical condition of the Easement Area and the activities anduses thereon as of the effective date of this Easement; provided, however, **DISTRICT** reserves the right, in its solediscretion, to prepare all or part of such documentation if it deemsappropriate.  This documentation shall bemaintained on file with 

 

Exhibit H to MOA

Page 8 of 28

 

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**DISTRICT** and shall serve as anobjective information baseline for monitoring compliance with thisEasement.  Any monitoring report preparedby **DISTRICT** shall be provided to **DEPARTMENT**.

 

**14.****         ****Remediesfor Breach****.**

 

(a)           In the event of a violationor threatened violation by **GRANTOR**of any term, condition or restriction contained in this Easement, **DISTRICT** may, following notice to **GRANTOR,**institute a suit to enjoin and/orrecover damages for such violation and/or to require the restoration of theEasement Area to the condition that existed prior to such violation.  The **DISTRICT****’s** notice to **GRANTOR**shallcontain a general description of the condition claimed by **DISTRICT** to be a violation and shallcontain a reasonable and specific cure period during which the violation is tocease and the Easement Area is to be restored to the condition that existedprior to the violation.  Such cure periodshall be for a minimum of thirty (30) days. The notice shall be mailed or otherwise delivered by **DISTRICT** to **GRANTOR.**  If **DISTRICT** reasonably determines thatcircumstances require immediate action to prevent or mitigate significantdamage to the agricultural and open space values protected by this Easement, **DISTRICT** may pursue any and all remediesavailable under law without waiting for the cure period to expire, and shallhave the right, upon the giving of 24 hours notice, to enter the Easement Areafor the purpose of assessing damage or threat to the agricultural and openspace values protected by this Easement and determining the nature of curativeor mitigation actions that should be taken. **DISTRICT’s** rights under thisParagraph 14 shall apply equally in the event of either actual or threatenedviolations of the terms of this Easement. **GRANTOR** agrees that **DISTRICT’s** remedies at law for anyviolation of the terms of this Easement are inadequate and that **DISTRICT** shall be entitled to theinjunctive relief described herein, both prohibitive and mandatory, in additionto such other relief, including damages, to which **DISTRICT** may be entitled, including specific performance ofthe terms of this Easement, without the necessity of proving either actualdamages or the inadequacy of otherwise available legal remedies.

 

(b)           Enforcement of the terms ofthis Easement shall be at the sole discretion of **DISTRICT**, and any forbearance by **DISTRICT** to exercise its rights under this Easement in theevent of any violation or threatened violation by **GRANTOR** of any term of this Easement shall not be deemed orconstrued to be a waiver by **DISTRICT**of such term or of any subsequent violation or threatened violation of the sameor any other terms of this Easement.  Anyfailure by **DISTRICT** to act shallnot be deemed a waiver or forfeiture of **DISTRICT’s**right to enforce any and all of the terms of this Easement in the future.

 

(c)           Inasmuch as the monetaryvalue of the loss or deprivation of the agricultural and open space values ofthe Easement Area caused by a violation by **GRANTOR** of theterms of this Easement are uncertain and would be impractical or extremelydifficult to measure, **GRANTOR** and **DISTRICT** agree that if a loss of agricultural and open spacevalues occurs, the damages for such loss allowed by Civil Code § 815.7 (c) shallbe measured as follows:

 

(1)           For an improvementprohibited by this Easement, an amount equal to ten percent of the market valueof the improvement for each month, or portion thereof, that the improvementremains on the Easement Area after the **DISTRICT**provides notice to the 

 

Exhibit H to MOA

Page 9 of 28

 

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**GRANTOR** that suchimprovement is prohibited; and

 

(2)           For an activity or useprohibited by this Easement, an amount equal to any economic gain realized by **GRANTOR** as a result of the activity or use after the **DISTRICT** gives notice to the **GRANTOR**that such an activity or use is prohibited; and

 

(3)           For an activity or use prohibitedby this Easement, where there is no measurable economic gain realized by **GRANTOR**, an amount equal to $100 a day for each day that theuse or activity continues, adjusted annually for inflation in accordance withConsumer Price Index calculated, after the **DISTRICT** givesnotice to the **GRANTOR** that such an activity oruse is prohibited by this Easement.

 

(4)           The damages provided for inthis Paragraph 14( c)(1)-(3) shall not accrue during any cure periodprovided pursuant to Paragraph 14(a).

 

(5)           The damages calculated inthis Paragraph 14(c)(1)-(3) are in addition to any direct costs incurredby **DISTRICT** for enforcement of thisEasement and restoration of the Easement Area. The damages calculated in this Paragraph 4(c)(1)-(3) shall not exceed the appraised value of thisEasement.  Nothing in this Paragraphprevents **DISTRICT** from exercising its right toenjoin the prohibited use or activity and to seek restoration of the EasementArea.

 

(d)           If **DISTRICT**, in the notice to **GRANTOR**, demands that **GRANTOR**remove an improvement, discontinuea use, or both and claims damages from such improvement and/or use, then **GRANTOR**may avoid all damages by fullycomplying with **DISTRICT’s** noticewithin the cure period provided therein. In the event of litigation arising out of the notice, brought either by **GRANTOR**or **DISTRICT**, in which **GRANTOR**prevails,then **GRANTOR**shall be entitled toeconomic damages; provided, however, that neither **DISTRICT**nor **GRANTOR**shall be entitled to damages where **DISTRICT**has not claimed damages in its notice.

 

(e)           The remedies set forth inthis Paragraph 14 are not intended to displace and are in addition to any otherremedy available to either Party or the **COUNTY** asprovided by this Easement or any applicable Memorandum of Agreement, local, stateor federal law.

 

**15.****         ****Acts BeyondGRANTOR’s Control****.**  Nothing contained in this Easement shall beconstrued to entitle **DISTRICT**tobring any action against **GRANTOR**for any injury to or change in the Easement Area resulting from causes beyond**GRANTOR’s** control, including, but notlimited to, fire, flood, storm, and earth movement, or from any prudent actiontaken by **GRANTOR** under emergencyconditions to prevent, abate, or mitigate significant injury to the EasementArea resulting from such causes so long as such action, to the extent that **GRANTOR** has control, is designed andcarried out in such a way as to further the purpose of this Easement.

 

#### **16.****         ****Arbitration****.**

####  

(a)           If a dispute arises betweenthe Parties concerning the consistency of any proposed activity or use with theterms or purpose of this Easement, or any other matter arising under or inconnection with this Easement or its interpretation, either Party, with thewritten 

 

Exhibit H to MOA

Page 10 of 28

 

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consentof the other, may refer the dispute to arbitration by a request made in writingupon the other, provided that **GRANTOR**agrees not to proceed with any activity or use that is the subject of thedispute pending resolution of the dispute, and further provided that theParties agree to proceed to arbitration within sixty (60) days of the deliveryof such request for arbitration, or such other date as is mutually agreeable.

 

(b)           The written notice of therequest to arbitrate shall identify with specificity the alleged issue orissues and the actions requested to resolve the dispute.  Within seven (7) business days afterreceipt of the notice, the recipient shall provide a written response agreeingor disagreeing with the complaint.  Ifthe Party agrees it will set forth detailed steps to address the complaint oralleged easement breach.  If the Partiesdisagree, they shall proceed in accordance with the next subsection.

 

(c)           The Parties shall formallymeet and confer in good faith within ten (10) business days of receipt ofsuch notice, or at such other time as the Parties may agree in writing, toattempt to resolve the dispute.  If bothParties agree, a mediator may be used to help resolve the dispute at thisstage.  The Parties and mediator, if any,shall ensure that any disputed issues are clearly and directly communicatedaccording to any agreed upon process and timeline.  Multiple meetings under this step may bereasonably required depending upon the nature of the dispute, provided that themeet and confer process shall be completed within thirty (30) days of theinitial notice unless extended in writing by mutual agreement of the Parties.

 

(d)           If the **GRANTOR**and**DISTRICT** agree to arbitration, the arbitration shall beconducted by a single arbitrator from the list contained in Exhibit “D” tothis Easement and shall be conducted in accordance with the JAMS StreamlinedArbitration Rules or AAA Arbitration Rules or successor rules thenin effect and shall take place in Santa Rosa or another location mutuallyagreed upon by the Parties.  The list ofarbitrators contained in Exhibit “D” shall be reviewed and revised, ifnecessary, every five (5) years.  Ifnot revised the prior list shall remain in effect.   If no such list is created or thearbitrators contained on any agreed upon list are not available within areasonable time period, an arbitrator shall be selected as provided byParagraph 16(e), below.  Arbitratorsshall be contacted in the order their names appear on the agreed upon list andthe person highest on the list, whom is available within sixty (60) days fromthe date of the original notice to conduct the arbitration, shall be selectedunless another arbitrator is mutually agreed upon by the Parties inwriting.  If no arbitrator is availableduring the sixty (60) day time frame, the first available arbitrator on thelist, available within a reasonable period, shall be selected.

 

(e)           If an arbitrator on the listis not available within a reasonable time frame or if the Parties are unable toagree to a new list or upon the selection of a single arbitrator, then eachParty shall name one arbitrator and the two arbitrators thus selected shallselect a third arbitrator who shall be a retired United States District Courtor California Superior Court judge; provided, however, if either Party fails toselect an arbitrator within fourteen (14) days of delivery of the request forarbitration, or if the two arbitrators fail to select a third arbitrator withinfourteen (14) days after the appointment of the second arbitrator, then in eachsuch instance, a proper court, on petition of any Party, shall appoint thesecond or third arbitrator or both, as the case may be, in accordance withCalifornia Code of Civil Procedure sections 1280, et seq., or any successor statutesthen in effect.

 

Exhibit H to MOA

Page 11 of 28

 

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(f)            The provisions of CaliforniaCode of Civil Procedure, Section 1283.05 are incorporated into thisAgreement, provided, however, that no such discovery may be conducted withoutleave of the arbitrator.  Except asotherwise expressly provided in this Paragraph 16, the arbitration shall bedetermined in accordance with California Code of Civil Procedure sections 1280,et seq., the purpose of this Easement, the terms of this Easement, and theapplicable laws of the State of California, as the basis for determination andresolution, and a judgment of the arbitration award may be entered in any courthaving jurisdiction thereof. The prevailing Party shall be entitled, inaddition to such other relief as may be granted, to a reasonable sum as and forall its costs and expenses related to such arbitration, including, but notlimited to, the fees and expenses of the arbitrators, but excluding attorneys’fees, which sum shall be determined by the arbitrators and any court ofcompetent jurisdiction that may be called upon to enforce or review the award.The arbitrator shall provide a written award and a reasoned decision supportingthe basis of the award within thirty (30) days of submission of the disputefollowing hearing.

 

(g)           Notwithstanding theforegoing, a person shall not be eligible to serve as an arbitrator if theperson has an interest in, or is related to, affiliated with, or hasrepresented in a legal capacity, a Party to this Easement, without a writtenwaiver from the other Party.

 

**17.****         ****Terminationof Easement****.**

 

(a)           If the Easement Area istaken, in whole or in part, by exercise of the power of eminent domain, **GRANTOR** or **DISTRICT** orboth may commence appropriate action to recover the full value of the portionof the Easement Area so taken.  Anyexpenses incurred by **GRANTOR** or **DISTRICT**, or both, in connection with any such action, shallbe reimbursed out of the recovered proceeds prior to any division of suchproceeds between **DEPARTMENT**, **GRANTOR**and **DISTRICT**.  After reimbursement of all expenses incurredby **GRANTOR**and **DISTRICT**,        % of the remainder of theproceeds shall be paid to **DEPARTMENT**.  After payment to**DEPARTMENT,** the remaining proceeds shallbe divided between **GRANTOR** and **DISTRICT** as agreed upon by them in writing or, in theabsence of such an agreement, as ordered by the court in the action recoveringthe proceeds.  If **DISTRICT**determines that the portion of the Easement Area to be taken is being soughtfor a use incompatible with this Easement, **DISTRICT** mayassert the presumptions contained in California Code of Civil Procedure section1240.680 and California Public Resources Code section 5542.5, or any successorstatutes then in effect, to protect **DISTRICT’s**interest in the Easement Area and to preserve the agricultural and open spacevalues thereof.  The terms of thisEasement shall terminate as to the portion of the Easement Area taken, butshall remain in effect relative to all other portions of the Easement Area.

 

(b)           In the event that theEasement, in whole or in part, is terminated by judicial termination andproceeds are awarded by the Court, any and all such proceeds shall bedistributed as follows.  Before anypayments are made, GRANTOR and DISTRICT shall be reimbursed for any expensesincurred in connection with such action.  After reimbursement of all expenses incurred by GRANTOR and DISTRICT,        % of the remainder of theproceeds shall be paid to DEPARTMENT. After payment to DEPARTMENT, theremaining proceeds shall be divided between GRANTOR and DISTRICT as agreed uponby them in writing or, in the absence of such an agreement, as ordered by thecourt in the action awarding the proceeds.

 

Exhibit H to MOA

Page 12 of 28

 

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**18.****         ****Easement toBind Successors****.**  The agricultural and open space conservationeasement granted and the assignment of development rights provided herein shallbe a burden upon and shall continue as a restrictive covenant and equitableservitude running in perpetuity with the Easement Area and shall bind **GRANTOR**, its heirs, personalrepresentatives, lessees, executors, successors, including, but not limited to,purchasers at tax sales, assigns and all persons claiming under them.  The Parties intend that this Easement shallbenefit and burden, as the case may be, their respective successors, assigns,heirs, executors, administrators, agents, employees, and all other persons claimingby or through them pursuant to the common and statutory law of the State ofCalifornia.  Further, the Parties agreeand intend that this Easement creates an easement encompassed within themeaning of the phrase “easements constituting servitudes upon or burdens to theproperty”, as that phrase is used in California Revenue & TaxationCode section 3712(d), or any successor statute then in effect, such that apurchaser at a tax sale will take title to the Easement Area subject to thisEasement.

 

**19.****         ****SubsequentTransfers****.**  **GRANTOR**agrees that a clear reference to this Easement will be made in any subsequentdeed or other legal instrument by means of which any interest in the EasementArea, including, but not limited to, a leasehold interest, is conveyed and that**GRANTOR** will attach a copy of thisEasement to any such instrument. **GRANTOR**further agrees to give written notice to **DISTRICT**of the conveyance of any interest in the Easement Area at least ten (10) daysprior to the date of such conveyance. These obligations of **GRANTOR**shall not be construed as a waiver or relinquishment by **DISTRICT** of the rights created in favor of**DISTRICT** by Paragraph 18 of thisEasement.  The failure of **GRANTOR** to perform any act required by thisParagraph 19 shall not impair the validity of this Easement or limit itsenforceability in any way.

 

**20.****         ****Warranty ofOwnership****.**  **GRANTOR**warrants that it is the owner in fee simple of the Easement Area, and that onthe date it executed this Easement the Easement Area is not subject to anydeeds of trust other than the deeds of trust identified in Exhibit “D,”attached hereto and incorporated herein by this reference, whose trust deedbeneficiaries have therein consented to this Easement, agreed to subordinatetheir respective interests in the Easement Area to this Easement, andcovenanted that any sale made under the provisions of the respective deeds oftrust shall be subject to this Easement.

 

**21.****         ****Notices****.**  Except as otherwise expresslyprovided herein, any notice, demand, request, approval, disapproval, or othercommunication that either Party desires or is required to give to the othershall be in writing and either served personally or sent by first class mail,postage prepaid, private courier or delivery service, or telecopy addressed asfollows:

 

**To GRANTOR:**

 

TribalChairperson

DryCreek Rancheria Band of Pomo Indians

190Foss Creek Circle, Suite A

Healdsburg,CA 95548

Telephone:(707) 473-2106

Telecopier:                                         

 

Exhibit H to MOA

Page 13 of 28

 

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Witha copy simultaneously delivered to:

 

JeromeL. Levine

Holland &Knight, LLP

633W. 5th Street, Suite 2100

LosAngeles, CA 90071

Telephone:(213) 896-2565

Telecopier:(213) 896-2450

 

**To DISTRICT:**

GeneralManager

SonomaCounty Agricultural Preservation and Open Space District

747 Mendocino Avenue

Santa Rosa, CA 95401

Telephone:(707) 565-7360

Telecopier:(707) 565-7370

 

Withcopy simultaneously delivered to:

 

CountyCounsel

575Administration Dr.

SantaRosa, CA 95403

Telephone:  (707) 565-2421

Telecopier:  (707) 565-2624

 

**To DEPARTMENT:**

 

Anynotices required by this Easement to be sent to the **DEPARTMENT**shall be in writing and shall be personally delivered or sent by first classmail, at the following address, unless a Party has been notified by the **DEPARTMENT** of a change of address.

 

Director

Departmentof Conservation

801K Street, MS 18-01

Sacramento,CA 95814

Attn:  Williamson Act Program

 

or to such other address as either Party from time to time shalldesignate by written notice to the other. Notice, if mailed, shall be deemed given upon the day following the dateshown on the postmark of the envelope in which such notice is mailed or, in theevent there is no such date shown, then the day following the date of mailingshown on the Party’s written declaration of mailing, which declaration shallhave been executed by a an officer or employee of the Party.  In all other instances, notice shall bedeemed given at the time of actual delivery. Changes may be made in the names and addressees of the persons to whomnotices, demands, requests, approvals, disapprovals, or other communicationsare to be given by giving notice pursuant to this Paragraph 21.

 

Exhibit H to MOA

Page 14 of 28

 

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**22.****         ****Amendment****.**  If circumstancesarise under which an amendment or modification of this Easement would beappropriate, **GRANTOR** and **DISTRICT** shall be free to jointly amendthis Easement, provided that any amendment (a) shall be consistent withthe purpose of this Easement, (b) shall ensure protection of theagricultural and open space values of the Easement Area, (c) shall notaffect the Easement’s perpetual duration and (d) shall maintain the termset forth in Paragraph 11 of this Easement requiring that a minimum of 20 acresof the Easement Area be set aside for agricultural conservation.  Any such amendment shall be in writing,executed by **GRANTOR** and **DISTRICT**, and recorded in the Office of theSonoma County Recorder.  A copy of suchamendment shall be provided to the **DEPARTMENT**forapproval, which approval shall not be unreasonably withheld.

 

**23.****         ****No Forfeiture****.** Nothing contained in this Easement shall result in a forfeiture orreversion of **GRANTOR’s** title inany respect.

 

**24.****         ****Termination of Rights andObligations****.**  A Party’s rights and obligations under thisEasement shall terminate upon transfer of the Party’s interest in the EasementArea, except that liability for acts or omissions occurring prior to transfershall survive transfer.

 

**25.****         ****Third Party Beneficiary****.** **GRANTOR** and **DISTRICT** agreethat **COUNTY** shall be a third partybeneficiary of this Easement within the meaning of Civil Code section 1559 orany successor statute then in effect, and that **COUNTY**shall have all rights attendant thereto. Such rights shall include, but not be limited to, the right, but not theobligation, to enforce the terms of this Easement.  Should **COUNTY** elect toexercise its right to enforce the terms of this Easement, it shall be entitledto recover from **GRANTOR** any costs and expenses itincurs in so doing.

 

**26.****         ****Limited Waiver of SovereignImmunity****.**

 

(a)**          ****GRANTOR** and **DISTRICT**eachexpressly covenant and agree that, subject to the procedural provisions of thisEasement, they may each sue and be sued to resolve any controversy arising fromthis Easement or to enforce or interpret the terms and conditions of thisEasement.  **GRANTOR**further hereby agrees to a limited waiver of sovereign immunity, in accordancewith its Memorandum of Agreement with the **COUNTY**enteredinto in March, 2008, in connection with any claims arising from this Easementand for the enforcement of any arbitration award, or judgment to enforce suchan award resulting from any claims arising from this Easement only.  The Parties further consent to thejurisdiction of an arbitrator and/or specified court under this Easementincluding the consent to be sued and bound by a lawful order or judgment, tothe extent provided for herein.

 

(b)           With respect to any action arising out of the Easement, **GRANTOR** and **DISTRICT**expresslyconsent to the jurisdiction of an arbitrator selected pursuant to thisEasement, to the Sonoma County Superior Court and all related appellate courts,and, if that court is without jurisdiction, to the United States District Courtfor the Northern District of California, and specifically agree to a limitedwaiver of sovereign immunity for those purposes only.  The Parties specifically agree that the abovereferenced courts shall have jurisdiction to

 

Exhibit H to MOA

Page 15 of 28

 

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enterjudgments enforcing rights and remedies provided for in this Easement.  No Party to this Easement shall contestjurisdiction or venue of the above-referenced courts, for disputes or claimsarising out of this Easement.  Neither **GRANTOR**nor**DISTRICT** shallplead or invoke the doctrine of exhaustion of Tribal or other administrativeremedies or the defenses of immunity or failure to name indispensable party fordisputes or claims arising out of this Easement.

 

(c)           In the event that **DEPARTMENT** takesany action to enforce the provisions of this Easement pursuant to Paragraph3(e), all covenants, agreements and waivers set forth in this Paragraph 26shall apply to such action and may be invoked and enforced by **DEPARTMENT**

 

**27.****         ****Enforceable Restriction****.**  ThisEasement and each and every term contained herein is intended for the benefitof the public and constitutes an enforceable restriction pursuant to theprovisions of Article XIII, section 8 of the California Constitution,California Public Resources Code section 5540, and California Revenue andTaxation Code section 420 et seq., or any successor constitutional provisionsor statutes then in effect.

 

**28.****         ****Applicable Law and Forum****.**  ThisEasement shall be construed and interpreted according to the substantive law ofCalifornia, excluding the law of conflicts. Any action to enforce the provisions of this Easement or for the breachthereof shall be brought and tried as provided for in Paragraphs 16 and 26

 

**29.****         ****Pronoun Number and Gender****.** Wherever used herein, unless the provision or context otherwiserequires, the singular number shall include the plural and the plural thesingular, and the masculine gender shall include the feminine and neuter.

 

**30.****         ****GRANTOR and DISTRICT****.** Wherever used herein, the terms **GRANTOR**and **DISTRICT**, and any pronounsused in place thereof, shall mean and include the above-named **GRANTOR** and its heirs, devisees, personalrepresentatives, lessees, executors, successors, and assigns, including anypersons claiming under them, and the above-named **DISTRICT** and its agents, officers, employees, successors andassigns, respectively.

 

**31.****         ****DISTRICT’s General Manager****.** Wherever used herein, the term **DISTRICT’s**General Manager, and any pronoun used in place thereof, shall mean and includethe General Manager of **DISTRICT**and duly authorized representatives.

 

**32.****         ****Director of DEPARTMENT****.** Wherever used herein, the term Director of **DEPARTMENT**,and any pronoun used in place thereof, shall mean and include the Director of **DEPARTMENT** and duly authorized representatives.

 

**33.****         ****Fees and Charges****.**  **DISTRICT** shall have the right to establishand impose reasonable fees and charges on **GRANTOR**for inspections, approvals, and other services performed by **DISTRICT**pursuant to this Easement.

 

**34.****         ****Entire Agreement****.**  Thisinstrument sets forth the entire agreement of the Parties with respect to theEasement and supersedes all prior discussions, negotiations, and understandingsrelating to the Easement, all of which are merged herein.  No alteration or variation of this instrumentshall be valid or binding unless contained in a written amendment

 

Exhibit H to MOA

Page 16 of 28

 

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prepared, executed and recorded in accordance with Paragraph 22.

 

**35.****         ****Authorization****.**  **GRANTOR**and**DISTRICT** eachrepresent and warrant that each has performed all acts precedent to adoption ofthis Easement, including but not limited to matters of procedure and notice andeach has the full power and authority to execute this Easement and perform itsobligations in accordance with the above terms and conditions, and that therepresentative executing this Easement on behalf of each Party is dulyauthorized to so execute and deliver the Easement.

 

**36.****         ****Estoppel Certificates****.**  **DISTRICT** shall at any time during theexistence of this Easement, upon not less than thirty (30) days prior writtennotice from **GRANTOR**, execute anddeliver to **GRANTOR** a statement inwriting certifying that this Easement is unmodified and in full force andeffect (or, if modified, stating the nature of such modification) andacknowledging that there is not, to**DISTRICT’s**knowledge, any default by **GRANTOR**hereunder, or, if **DISTRICT** allegesa default by **GRANTOR**, specifyingsuch default.  **DISTRICT****’s** obligationto deliver the statement of certification is conditioned on **GRANTOR** reimbursing **DISTRICT** for all costs and expensesreasonably and necessarily incurred in its preparation as determined by **DISTRICT****’s**General Manager.

 

**37.****         ****Execution****.**  **GRANTOR** shall execute this Easement, causethe same to be acknowledged, and deliver said executed and acknowledgedinstrument to **DISTRICT** in suchform as to permit its acceptance by **DISTRICT**and recordation in the Office of the Sonoma County Recorder.

 

**38.****         ****No Liens, Encumbrances, orConveyances****.**  **GRANTOR**warrants that after it has executed this Easement, it will not record any lien,encumbrance, or otherwise convey any right, title, or interest in and to theEasement Area until such time as this Easement has been accepted and recordedby **DISTRICT**.

 

**39.****         ****Effective Date****.**  ThisEasement shall be effective as of the date of its acceptance by **DISTRICT** pursuant to California PublicResources Code sections 5500, et seq.

 

**40.****         ****Captions****.**  Thecaptions in this Easement have been included solely for convenience of reference.  They are not a part of this Easement andshall have no effect upon its construction or interpretation.

 

**IN WITNESS WHEREOF,** the Parties hereto have executed thisEasement as set forth below.

 
|   | **GRANTOR**:                    |
|--------|---------------------------------|
|   | Alexander  Valley Ventures, LLC |
|   |                            |
| Dated: |                            |   | By: |   |
|   |                            |
|   |                            |
|        |                                 |  |  |  |

 

Exhibit H to MOA

Page 17 of 28

 

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|                                                            | **DISTRICT**:                  |
|-----------------------------------------------------------------|--------------------------------|
|                                                            | SONOMA  COUNTY AGRICULTURAL    |
|                                                            | PRESERVATION  AND OPEN SPACE   |
|                                                            | DISTRICT                       |
|                                                            |                           |
| Dated:                                                          |                           |   | By: |   |
|                                                            | President,  Board of Directors |
|                                                            |                           |
| ATTEST:                                                         |                           |
|                                                            |                           |
|                                                            |                           |
| By:                                                             |                           |   |   |
| BOB  DEIS,                                                      |                           |
| ex-officio  Clerk of the Board of Directors                     |                           |
|                                                            |                           |
|                                                            |                           |
| **NOTE: ACKNOWLEDGMENTS MUST BE ATTACHED FOR ALL SIGNATORIES.** |
|                                                            |                           |
|                                                            |                           |
|                                                            | **APPROVED AS TO SUBSTANCE:**  |
|                                                            |                           |
| Dated:                                                          |                           |   | By: |   |   |   |
|                                                            | General Manager                |
|                                                            |                           |
|                                                            |                           |
|                                                            | **APPROVED AS TO FORM:**       |
|                                                            | ** **                     |
|                                                            | ** **                     |
| Dated:                                                          |                           |   | By: |   |
|                                                            |                           |   | ** ** | Deputy  County Counsel |
|                                                            |                           |   | ** ** | ** ** |
|                                                            |                           |   | ** ** | ** ** |
| Dated:                                                          |                           |   | By: |   |
|                                                            |                           |   | ** ** | Jerome  L. Levine, Counsel |
|                                                            |                           |   | ** ** | For  Alexander Valley Ventures, LLC |
|                                                                 |                                |  |  |  |  |  |  |  |  |  |  |  |

 

Exhibit H to MOA

Page 18 of 28

 

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| **EXHIBIT** |   |   |
|-------------|--------|--------|

 

**CONSENT ANDSUBORDINATION OF LIEN HOLDER**

**(BENEFICIARY)**

 

____________,a __________, beneficiary under that certain Deed ofTrust recorded on _________, asDocument No. ____________, Official Records of Sonoma County, affecting thetitle to the real property described in Exhibit “B” of this Easement,hereby consents to this Easement, agrees to subordinate the lien of said Deedof Trust to this Easement, and covenants that any sale made under theprovisions of said Deed of Trust shall be subject to this Easement.

 

 
| Dated: |   |   | By: |   |
|--------|--------|--------|-----|--------|

 

 

**NOTE: ACKNOWLEDGMENTS MUST BE ATTACHED FOR ALL SIGNATURES.**

 

Exhibit H to MOA

Page 19 of 28

 

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| **EXHIBIT** |   |   |
|-------------|--------|--------|

 

**CONSENT ANDSUBORDINATION OF LIEN HOLDER**

**(ASSIGNEEBENEFICIARY)**

 

____________, a ______________, assignee beneficiary (Document No. _____,Official Records of Sonoma County) under that certain Deed of Trust recorded on____________, as Document No._____, Official Records of Sonoma County,affecting the title to the real property described in Exhibit “B” of thisEasement, hereby consents to this Easement, agrees to subordinate the lien ofsaid Deed of Trust to this Easement, and covenants that any sale made under theprovisions of said Deed of Trust shall be subject to this Easement.

 

 
| Dated: |   |   | By: |   |
|--------|--------|--------|-----|--------|

 

 

**NOTE: ACKNOWLEDGMENTS MUST BE ATTACHED FOR ALL SIGNATURES.**

 

Exhibit H to MOA

Page 20 of 28

 

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**Exhibit C**

**Use of theEasement Area**

 

Use of the Easement Area shall be confined to activities and uses thatare consistent with the purpose of this Easement.  Any activity or use of the Easement Area thatis inconsistent with the purpose of this Easement is prohibited.  Without limiting the generality of theforegoing, the activities and uses set forth below are expressly permitted,restricted or prohibited on the Easement Area as follows:

 

1.             **Agricultural Use**.  **GRANTOR** reserves the right to engage in agricultural uses ofthe Easement Area, as defined below, in accordance with sound, generallyaccepted agricultural and soil conservation practices, so long as such use isundertaken in a manner consistent with the purpose of this Easement.

 

1.1.          Livestock for the Production of Food andFiber.  **GRANTOR** maybreed, raise, pasture, and graze livestock of every nature and description forthe production of food and fiber, but in no event shall commercial feedlots bepermitted on the Easement Area.  Forpurposes of this Easement, “commercial feedlot” is defined as a permanentlyconstructed confined area or facility which is used and maintained for purposesof engaging in the business of feeding livestock and which is not grazed orcropped annually.  For purposes of thisEasement, a “commercial feedlot” shall not include the establishment, use ormaintenance of corrals, holding pens or pastures.  Nothing in this Easement shall prevent **GRANTOR** from confining livestock for discretionary seasonalfeeding or from leasing grazing rights for livestock owned by others.

 

1.2.          Bees.  **GRANTOR**may breed and raise bees.

 

1.3.          Crops.  **GRANTOR**may plant, raise, and harvest agricultural, aquacultural, horticultural, andforestry crops and products of every nature and description.

 

1.4.          Sale of Harvested Crops and Products.  **GRANTOR** may store and sell, including direct retail sale tothe public, agricultural crops and products grown, harvested and producedprimarily on the Property.

 

1.5.          Use of Agrichemicals.  Inconnection with permitted agricultural uses, **GRANTOR**reserves the right to use government approved agrichemicals, including but notlimited to, fertilizers and biocides, in those amounts and with that frequencyof application necessary to accomplish reasonable agricultural purposes withinfederal, state and local government regulations and guidelines.

 

1.6.          Removal of Non-Native Plant Species andAnimal Control.  In connection with permitted uses, **GRANTOR** reserves the right to remove non-native plantspecies and to control predatory and problem animals by the use of selectivecontrol techniques consistent with the policies of the Sonoma CountyAgricultural Commissioner.

 

Exhibit H to MOA

Page 21 of 28

 

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2.             **Commercial and IndustrialUses****.**  Otherthan the agricultural use set forth in Paragraph 1 of this Exhibit C,commercial or industrial use of or activity on the Easement Area is prohibited,except as follows:

 

2.1.          Mitigation Banking.  **GRANTOR** reserves the right to and to permit others tocreate, operate and maintain a wetlands and/or species mitigation bank.  In connection with such permitted use, **GRANTOR** may develop, restore, enhance, and maintain wetlandsand other natural habitats.

 

3.             **Structures and Improvements****. **No residences, buildings or other structural improvements, shall beplaced, constructed or reconstructed on the Easement Area except as provided inthis Paragraph 3.

 

3.1.          Roads.  Construction of new roads andthe reconstruction or expansion of existing roads in the Easement Area shall besubject to the **DISTRICT’s** prior writtenapproval.  Roads shall be restricted tothose roads directly required for uses and activities permitted herein.  Road construction, expansion orreconstruction shall be undertaken in a manner consistent with the purpose,terms and conditions of this Easement. Roads shall be constructed and maintained so as to minimize erosion andsedimentation and ensure proper drainage, utilizing Best Management Practicesas recommended by the U.S. Natural Resources Conservation Service or othersimilar or successor entity.

 

3.2.          Fences.  Construction of new fences isrestricted to fencing necessary for furthering the purpose of thisEasement.  Such fencing must be theminimum necessary for such uses.   In theevent of destruction or deterioration of any fences, whether existing at thedate hereof or constructed subsequently pursuant to the provisions of this Easement,**GRANTOR** may replace such fencing with afence of similar size (i.e., no greater in height or length), function,capacity and location, without prior notice to or approval by **DISTRICT**, provided, it meets the terms of thisParagraph.  All fencing, whether new orreplacement, shall be placed in a manner that: (i) is consistent with the purpose of this Easement, including thepreservation of the agricultural and open space values of the Easement Area; (ii) doesnot impede wildlife movement except in cases where necessary to protect thepermitted uses described in this Easement; and (iii) complies with the **DISTRICT’s** standards for fences on conservation lands.  In the event any fence, or portion thereof,becomes unnecessary for the uses described in this Paragraph, **GRANTOR** shall remove such fencing from the Easement Area.

 

3.3.          Maintenance, Repair and Replacement ofExisting Structures and Improvements.  All structures andimprovements existing at the date hereof or constructed subsequently inaccordance with the provisions of this Easement, may be maintained, repaired orreplaced at the same location, with a structure or 

 

Exhibit H to MOA

Page 22 of 28

 

----

 

improvement of the same size, character and function,  without notice to or approval of **DISTRICT**.

 

3.4.          Agricultural Structures and Improvements. Subject to the prior written approval of **DISTRICT,GRANTOR** may place or construct, structures and improvementsreasonably necessary for permitted agricultural uses, including, but notlimited to, barns, farm worker housing, and corrals, provided that all suchstructures and improvements shall be sited and designed, to the maximum extentpracticable, so as not to negatively impact the aesthetics of the Easement Area.

 

3.5.          Mitigation Bank Structures and Improvements. After written notice to **DISTRICT** inaccordance with this Easement, including Paragraph 7 of this Exhibit C, **GRANTOR** may place or construct structures and improvementsreasonably necessary for creation, operation and maintenance of permittedwetland and species conservation mitigation banks, provided that all suchstructures and improvements shall be sited and designed to the extentpracticable, so as not to negatively impact the aesthetics of the EasementArea.

 

3.6.          Utilities.   **GRANTOR**may construct, place and maintain underground utilities, including, but notlimited to, electric power, septic or sewer, stormwater, communication lines,and water delivery systems necessary for permitted uses of the Property.

 

3.7.          Signs.  No signs shall be placed onthe Easement Area except such informational and cautionary signs necessary toensure its protection consistent with the purpose of this Easement.

 

3.8.          Improvements shall not refer to trees, vines,or other living improvements planted nor to irrigation improvements which areundertaken in connection with permitted uses and in a manner consistent withthe purpose of this Easement, all of which may be made without prior notice toor approval by **DISTRICT**.

 

4.             **Water Resources****.**  **GRANTOR** shall retain and reserve all ground water, and allappropriative, prescriptive, contractual or other water rights appurtenant tothe Property at the time this Easement becomes effective. Draining, filling,dredging, diking, damming or other alteration, development or manipulation ofwatercourses, springs and wetlands on the Easement Area is prohibited, exceptas necessary to preserve farmland and as provided in Paragraphs 2.1 and 7 ofthis Exhibit C for the development, restoration, enhancement andmaintenance of wetlands and other natural habitats.

 

5.             **Existing and****Subsequent****Easements****.**

 

5.1.          Use of existing easements of record grantedprior to this Easement may continue.

 

5.2.          Existing easements of record may be amendedand new temporary or permanent easements granted only with prior writtenapproval of **DISTRICT**and only if 

 

Exhibit H to MOA

Page 23 of 28

 

----

 

such amendment or easement is consistent with the terms and purpose ofthis Easement**. **Inno case shall any amendment to any existing easement or any new temporary orpermanent easement be granted that might in any way diminish or impair theagricultural productive capacity or open space character of the Property.  Notwithstanding the foregoing,  **GRANTOR** may,with **DISTRICT** approval, grant subsequentconservation easements or use restrictions designed for natural resourcepreservation or enhancement on the Property provided that such easements or userestrictions do not restrict agricultural husbandry practices on the 20 acreportion dedicated to agricultural conservation as set forth in Paragraph 11, orotherwise interfere with any of the terms of this Easement as determined by **DISTRICT**.  **DISTRICT**and**DEPARTMENT**findand****agree that the grant of easement(s) tocreate a mitigation bank as set forth in Paragraph 11 of this Easement andParagraphs 2.1 and 7 of this Exhibit C is consistent with the purpose ofthis Easement and does not interfere with any of the terms this Easement.  “Husbandry practices” means agriculturalactivities, such as those specified in section 3482.5(e) of the CaliforniaCivil Code, conducted or maintained for commercial purposes in a mannerconsistent with proper and accepted customs and standards, as established andfollowed by similar agricultural operations in the same locality.

 

5.3.          **DISTRICT’S** written approval under this Paragraph 5shall be obtained at least thirty (30) days in advance of executing anyproposed amendment to an existing easement, new easement or use restriction onthe Property, and such subsequent amendments, easements and use restrictionsshall make reference to this Easement and be subordinate to this Easement.  **DISTRICT’s**approval shall not be unreasonably withheld and shall be based upon a findingthat such new or modified easements are consistent with the provisions of thisParagraph 5.

 

5.4.          The DISTRICT shall notify the DEPARTMENTimmediately upon receipt of request by the GRANTOR to grant a subsequenteasement, easement amendment, interest in land, or use restriction on theProperty.  The DISTRICT shall promptlynotify the DEPARTMENT in the event that it approves the grant of any subsequenteasement, easement amendment, interest in land, or use restriction on theProperty

 

5.5.          It is the duty of **GRANTOR**to prevent the use of the Easement Area by third parties which may result inthe creation of prescriptive rights.

 

6.             **Recreational Use****.**  **GRANTOR** reserves the right to use the Easement Area forprivate non-commercial recreational, social and or educational purposesprovided that no significant surface alteration, significant impact to naturalor agricultural resources, or other development of the land occurs inconnection with such use. Such uses may include, but are not limited to,non-commercial/private hiking, trails, horseback riding, fishing, and naturestudy and other such uses similar in nature and intensity.

 

Exhibit H to MOA

Page 24 of 28

 

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7.             **Natural Resource Management****.**

 

7.1.          General Natural Resource ConservationActivities.  **GRANTOR**reserves the right to undertake natural resource conservation and restorationactivities including, but not limited to, bank and soil stabilization,practices to reduce erosion, enhancement of plant and wildlife habitat; andactivities which promote biodiversity in accordance with sound, generallyaccepted practices and all applicable laws, ordinances and regulations.

 

7.2.          Wetland and Species Conservation MitigationBanks.  **GRANTOR** furtherreserves the right to develop, restore, enhance and maintain wetlands and othernatural habitats on the Easement Area to provide protection or preservation ofnative vegetation and wildlife and for use as a mitigation bank, provided thatsuch development, restoration, enhancement and maintenance of wetland or otherhabitat is undertaken in accordance with sound, generally accepted practicesand all applicable laws, ordinances and regulations.  **GRANTOR** shallprovide **DISTRICT** with written notice of **GRANTOR’s** intention to undertake development, restoration orenhancement of wetland or other habitat on the Easement Area no less thanforty-five (45) days prior to commencement. The written notice shall include grading and development plans, managementagreements and a full description of the nature, scope and location of allproposed work.  **GRANTOR**reserves the right to receive consideration in connection with the sale ofmitigation credits.  No part of any suchconsideration shall be payable to **DISTRICT**and **DISTRICT** shall not claim to have any financial interest insaid mitigation bank.

 

8.             **Fire Management****.**  **GRANTOR** reservesthe right to undertake fire management plans for the purpose of fire controland/or natural resource management.  Suchmethods may include prescriptive burning, limited brush removal, and limitedgrazing of the Easement Area.  **DISTRICT** shall receive prior notification of such planswhich shall be acceptable to the California Department of Forestry and FireProtection and appropriate local fire protection agencies.

 

9.             **Motorized Vehicles****.** Motorized vehicles shall not be used off roads, except in an emergency,or directly in connection with permitted agriculture, conservation or wildlifemanagement activities, and then only in a manner consistent with the terms and purposeof this Easement.

 

10.           **Soil Degradation****.**  Anyuse or activity that causes soil degradation, loss of productivity, or erosion,or contributes to the pollution of any surface or sub-surface waters isprohibited with the exception of what is considered to be consistent with soundgenerally accepted farm practices or what is the minimum necessary to constructthe structures and improvements expressly permitted in this Easement.

 

Exhibit H to MOA

Page 25 of 28

 

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11.           **Mineral Exploration****.**  Theexploration for, or development and extraction of, geothermal resources,minerals and hydrocarbons by any surface or sub-surface mining or any othermethod is prohibited.

 

12.           **Storage/Dumping****.**  Thedumping, release, burning, permanent storage, or other disposal of wastes,refuse, debris, motorized vehicles or hazardous substances is prohibited.

 

13.           **Surface Alteration orExcavation****.**The significantalteration of the surface of the land, including, but not limited to, the excavationor removal of soil, sand, gravel, rock, or sod, is prohibited except (a) gradingnecessary in connection with the development, restoration, enhancement ormaintenance of wetland or other habitat in accordance with Paragraph 11 of theEasement and Paragraphs 2.1 and 7 of this Exhibit C, or (b) removalof soil, sand, gravel or rock as may be reasonably required for the repair ofthe roads and levees on the Easement Area. **GRANTOR**shall give notice of suchsurface alteration or excavation to **DISTRICT**.

 

14.           **Tree Removal****. **The harvesting,cutting, removal, or destruction of any native trees is prohibited, provided,however, that **GRANTOR** reserves the right to cutor remove trees as reasonably necessary (a) to control insects anddisease, (b) to prevent personal injury and property damage, (c) toallow construction or repair of structures and improvements expressly permittedunder this Easement, and (d) the minimum necessary for the purpose ofnatural resource management, fire management or agricultural or mitigation bankactivities expressly permitted under this Easement.

 

Exhibit H to MOA

Page 26 of 28

 

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**EXHIBIT “D”**

** **

**AGREED UPON LIST OF ARBITRATORS**

** **
| 1.     | Hon. Raul A. Ramirez (Ret.)ADR Services 50 Fremont Street, Suite 2110 San Francisco, CA 94105 Telephone: (415) 772-0900 Fax: (415) 772-0960 E-mail: Not Available                 | 5.     | Hon. Charles A. Legge (Ret.)JAMS  2 Embarcadero Center, Suite 1500  San Francisco, CA 94111  Telephone: (415) 982-5267  Fax: (415) 982-5287  E-mail: Not Available   |
|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                   |   |                                                                                                                                                                      |
| 2.     | Hon.  Fern M. Smith (Ret.)  JAMS  2 Embarcadero Center, Suite 1500  San Francisco, CA 94111  Telephone: (415) 982-5267  Fax: (415) 982-5287  E-mail: Not Available                | 6.     | Hon.  Eugene F. Lynch (Ret.)  JAMS  2 Embarcadero Center, Suite 1500  San Francisco, CA 94111  Telephone: (415) 982-5267  Fax: (415) 982-5287  E-mail: Not Available |
|   |                                                                                                                                                                                   |   |                                                                                                                                                                      |
| 3.     | Frederick  S. Wyle  3 Embarcadero Center, 7th Fl.  San Francisco, CA 94111  Telephone: (415) 788-0781  Fax: (408) 788-3410  E-mail: Not Available                                      | 7.     | Hon.  Edward Panelli  JAMS  160 West Santa Clara Street, Suite 1150  San Jose, CA 95113  Telephone: (408) 288-2240  Fax: (408) 288-2240  E-mail: Not Available       |
|   |                                                                                                                                                                                   |   |                                                                                                                                                                      |
| 4.     | Palmer  B. Madden  ADR Services  3000 Danville Blvd., Suite 543  Alamo, CA 94507  Telephone: (925) 838-8593  Fax: (925) 831-209      E-mail: pbm@netvista.net |   |                                                                                                                                                                      |

 

The above list may be modified or supplemented bymutual written agreement of the Parties. The Parties shall contact the arbitrators to determine theiravailability to conduct arbitration consistent with the timelines andprocedures set forth in Paragraph 16 of this Easement.

 

Exhibit H to MOA

Page 27 of 28

 

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**Exhibit B**

 

**Easement Area Description**

 

Exhibit H to MOA

Page 28 of 28

 

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**EXHIBIT I**

 
|   |   |  | DRY  CREEK RANCHERIA  BAND OF POMO INDIANS |
|--------|--------|--|--------------------------------------------|

 

**RESOLUTIONOF DRY CREEK BOARD OF DIRECTORS APPROVING**

**DEVELOPMENTRESTRICTIONS ON PROPERTY AND PROHIBITING GAMING ACTIVITIES ON THE PETALUMA PROPERTY**

 

**RESOLUTION No. [08-month-day-PETALUMA-00  [**

 

**WHEREAS,**the Dry Creek Rancheria Band of Pomo Indians (“Tribe”) is a federallyrecognized Indian tribe organized under Articles of Association adopted on September 13,1972, approved by the Deputy Assistant Secretary of the Interior on April 16,1973, and amended effective September 22, 1979 (“Articles”), by virtue ofthe powers inherent in tribal sovereignty and those delegated by the UnitedStates of America; and

 

**WHEREAS,**pursuant to Article IV of the Articles, all powers andresponsibilities of the Tribe are vested in the Tribal Council, which maydelegate powers to the Tribal Board of Directors (“Board”); and

 

**WHEREAS,**pursuant to Article VII of the Articles, the Board shall take suchactions as are necessary to carry into effect the ordinances, resolutions, orother directions of the Tribal Council and represent the community in allnegotiations with local, state, and federal governments; and

 

**WHEREAS,**the Tribe has filed a gaming application with the Secretary of theInterior to take into trust for the Tribe’s benefit an approximately 277 acreparcel of land south of the City of Petaluma owned in fee by the Tribe andcommonly known as the “Petaluma Property;” and

 

**WHEREAS,**pursuant to a Memorandum of Agreement (“MOA”) approved in concept andmaterial terms by the Tribal Council and, pursuant to a delegation by theTribal Council to the Board in accordance with the Tribe’s Articles ofAssociation, the Board has finalized the MOA, which includes certaincommitments to create a permanent conservation easement and preclude gamingactivities on the Petaluma Property for at least an eight (8) year period;and

 

**NOW, THEREFORE, BE IT RESOLVED,**that the Dry Creek Board of Directors herebyapproves the conservation easement on the Petaluma Property and, consistent withthe terms of the MOA and, in accordance with the Articles and the delegation toit by the Tribal Council, directs the Tribal Chairman to take all stepsnecessary to implement the conservation easement, and to execute all documentsnecessary to carry out this provision of the MOA; and

 

**BE IT FURTHER RESOLVED,**that the Dry Creek Board of Directors, inaccordance with the Articles and the delegation to it by the Tribal Council,hereby agrees, pursuant to the MOA, that Gaming Activities shall not be conductedon the Petaluma Property for at least an eight (8) year period and shallpermanently forgo Gaming Activities on the Petaluma Property if the conditionscontained in Section 13.3 of the MOA are satisfied; and

 

Exhibit I to MOA

Page 1 of 2

 

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**BE IT FURTHER RESOLVED,**that the Dry Creek Board of Directors shallnotify the Bureau of Indian Affairs of the agreed upon use restrictions on thePetaluma Property and its withdrawal and/or suspension of its current gamingapplication which action it hereby takes in accordance with its delegation fromthe Tribal Council and the terms of the MOA.

 

**CERTIFICATION**

 

The undersigned, being the Secretary-Treasurer ofthe Dry Creek Rancheria Band of Pomo Indians, a federally recognized Indiantribe (“Tribe”), and acting pursuant to subsection C of Article XI of theTribe’s Articles of Association, hereby attests to the enactment of theforegoing Board Resolution, which was presented at a duly held meeting of theDry Creek Tribal Board of Directors on ___________, 2008 with a quorum present,and approved by a vote of _______ “for,”_______“against,” and ________ “abstentions,”and that such Resolution has not been rescinded or amended in any way.

 
|                |   |   |   |   |   |
|---------------------|--------|--------|--------|--------|--------|
| Harvey  Hopkins     |   |   | Date   |   |   |
| Chairman            |   |   |   |   |   |
|                |   |   |   |   |   |
|                |   |   |   |   |   |
|                |   |   |   |   |   |
| Margie  Rojes       |   |   |   |   |   |
| Secretary/Treasurer |   |   | Date   |   |   |

 

Resolution No. 08-xx-xx-Dugan-003

 

Exhibit I to MOA

Page 2 of 2

 

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**EXHIBIT JAGREED UPON LIST OF ARBITRATORS**

 

 
| 1.     | Hon. Raul A. Ramirez (Ret.)ADR Services 50 Fremont Street, Suite 2110  San  Francisco, CA 94105 Telephone: (415)  772-0900 Fax:(415)772-0960 E-mail: Not Available   | 5.     | Hon. Charles A. Legge (Ret.)  JAMS2 Embarcadero Center, Suite 1500  San Francisco, CA 94111  Telephone: (415)982-5267 Fax:  (415)982-5287

E-mail:  Not Available |
|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                      |   |                                                                                                                                                                   |
| 2.     | Hon.  Fern M. Smith (Ret.)  JAMS2 Embarcadero Center, Suite 1500  San Francisco, CA 94111  Telephone: (415)982-5267 Fax: (415)982-5287 E-mail: Not Available         | 6.     | Hon.  Eugene F. Lynch (Ret.)  JAMS2 Embarcadero Center, Suite 1500  San Francisco, CA 94111  Telephone: (415)982-5267 Fax:  (415)982-5287 E-mail: Not Available   |
|   |                                                                                                                                                                      |   |                                                                                                                                                                   |
| 3.     | Frederick  S. Wyle3 Embarcadero Center, 7l Fl.  San Francisco, CA 94111  Telephone: (415)788-0781  Fax: (408)788-3410  E-mail: Not Available                         | 7.     | Hon.  Edward Panelli  JAMS60 West Santa Clara Street, Suite 1150  San Jose, CA 95113 Telephone: (408) 288-2240 Fax: (408) 288-2240 E-mail: Not Available          |
|   |                                                                                                                                                                      |   |                                                                                                                                                                   |
| 4.     | Palmer B. Madden  ADR Services

3000  Danville Blvd., Suite 543 Alamo, CA  94507 Telephone: (925) 838-8593 Fax:  (925)831-209  

E-mail:  pbm@netvista.net |   |                                                                                                                                                                   |

 

Theabove list may be modified or supplemented by mutual written agreement of theParties.  The Parties shall contact thearbitrators to determine their availability to conduct an arbitrationconsistent with the timelines and procedures set forth in the Agreement at Section 20.

 

Exhibit J to MOA

Page 1 of 1

 

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|   |   |  | DRY  CREEK RANCHERIA BAND  OF POMO INDIANS |
|--------|--------|--|--------------------------------------------|

 

**RESOLUTIONOF DRY CREEK BOARD OF DIRECTORS APPROVING MEMORANDUM OF AGREEMENT WITH THE COUNTY OF SONOMA INCLUDING A WAIVER OF SOVEREIGN IMMUNITY**

 

**RESOLUTION No. [08-month-day-MOA-OOl]**

 

**WHEREAS,**the Dry Creek Rancheria Band of Pomo Indians(“Tribe”) is a federally recognized Indian tribe organized under Articles ofAssociation adopted on September 13, 1972, approved by the DeputyAssistant Secretary of the Interior on April 16, 1973, and amendedeffective September 22, 1979 (“Articles”), by virtue of the powersinherent in tribal sovereignty and those delegated by the United States ofAmerica; and

 

**WHEREAS,**pursuant to Article IV of the Articles, all powers andresponsibilities of the Tribe are vested in the Tribal Council, which maydelegate powers to the Tribal Board of Directors (“Board”); and

 

**WHEREAS,**pursuant to Article VII of the Articles,the Board shall take such actions as are necessary to carry into effect theordinances, resolutions, or other directions of the Tribal Council andrepresent the Tribal community in all negotiations with local, state, andfederal governments; and

 

**WHEREAS,**on September 15, 2007, at a duly heldmeeting of the Tribal Council, with a quorum present, the Tribal Counciladopted Resolution No. 07-09-15 approving the concept and terms of a draftMemorandum of Agreement (“MOA”) between the Tribe and the County of Sonomawhich was presented at said meeting, and, pursuant to Article VII of theArticles, delegated to the Board the authority to finalize the documentation ofthe MOA terms and to execute the final MOA upon substantially identical terms,which included a limited waiver of sovereign immunity of the Tribe in enforcingthe MOA including the Performance and Payment Bond; and

 

**WHEREAS,**pursuant to the powers and duties delegatedto it under Tribal Council Resolution, including No. 07-09-15, the Boardhas engaged in discussions and negotiations with the County of Sonoma and hasnow reached final agreement on said MOA; and

 

**WHEREAS,**the agreement reached with the County ofSonoma, as contained in the negotiated MOA are consistent with the terms andconcepts of the draft MOA presented to the Tribal Council at its September 15,2007 meeting and approved by the Tribal Council; and

 

**WHEREAS,**it is now the intent and desire of the Tribal Council and Board: (i) toexecute and deliver the MOA, and to perform its obligations; (ii) to adoptthe applicable law, waivers of sovereign immunity and other consents set forththerein for the sole and exclusive purpose of providing a mechanism for theestablishment of the validity, legality and enforceability of the MOU inaccordance with its terms; and (iii) to declare and confirm the legality,validity and enforceability and binding nature of the MOA in accordance withits terms at such time as it is fully executed; and

 

Exhibit K to MOA

Page 1 of 3

 

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**WHEREAS,**the MOA negotiated by the Tribe with theCounty of Sonoma (“County”), includes numerous benefits for the Tribe, as wellas a dispute resolution provision for the binding arbitration of certaindisputes between the Tribe and the County in accordance with the MOA terms;

 

**NOW,THEREFORE, BE IT RESOLVED,**that the Dry Creek Board of Directors exercises its delegated authorityto approve and hereby does approve the Memorandum of Agreement, which isattached hereto as **Exhibit ****A**, and is incorporated herein by this reference, between theDry Creek Rancheria Band of Pomo Indians and the County of Sonoma andauthorizes the Tribal Chairman to execute and deliver said MOA to the County,and to take such other steps as may be necessary to finalize such agreement andcarry out its terms; and

 

**BE ITFURTHER RESOLVED**thatthe Tribe, through the Board acting through its delegated powers, herebyexpressly approves and authorizes the limited waiver of the sovereign immunityof the Dry Creek Rancheria Band of Pomo Indians to the full extent provided forin the MOA and the Performance and Payment Bond and the incorporation ofapplicable and choice of law and judicial forums, as set forth therein; and

 

**BE ITFURTHER RESOLVED**thatthe Tribe, through the Board acting through its delegated powers, herebyexpressly approves and authorizes binding arbitration as a mechanism to resolvedisputes and insure the enforceability of the agreement as specified in the MOAand the enforcement of arbitration awards in court, as provided in the MOA; and

 

**BE ITFURTHER RESOLVED**thatthe Tribe, through the Board acting through its delegated powers, approves theform of the MOA. The Chairperson is hereby authorized, empowered and directedto execute and deliver the MOA on behalf of the Tribe, and to execute anddeliver such other instruments, agreements and certifications as may becontemplated by the MOA or as may be required to implement the terms of the MOAor give effect to the transactions therein contemplated, and to take such otheractions as may hereafter be necessary and appropriate to carry out theobligations of the Tribe thereunder; and

 

**BE ITFURTHER RESOLVED**thatthe Tribe, through the Board hereby declares that upon due execution of the MOAby the Tribal Board of Directors and the Board of Supervisors, it shall be andbecome a legal and valid obligation of the Tribe, enforceable in accordancewith its terms. Except as expressly set forth in or expressly contemplated bythe MOA, no physical delivery, filing or other act need be performed tovalidate the interests of the parties thereunder; and

 

**BE ITFURTHER RESOLVED**thatthe Tribe, through the Board hereby determines that no laws, ordinances,resolutions or other actions of the Tribe, Tribal Council, Board, or any of theagencies or instrumentalities of the Tribe, either written or established bycustom or tradition, prohibit the Board from approving the execution ordelivery of the MOA or undertaking any of the foregoing approved action; and

 

**BE ITFURTHER RESOLVED,**thatthe Board shall not pass or adopt any resolutions or approve or allow any otheraction of the Tribe, or any of its officers, employees, agents, subdivisions,agencies or instrumentalities, or any nature that shall impair the contractualrights of any party under the MOA or the obligations of the Tribe under theMOA; and

 

Resolution No. 08-xx-xx-MOA-OOl

 

Exhibit K to MOA

Page 2 of 3

 

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**BE IT FURTHER RESOLVED,**that this Resolution shall become effectiveas of the date and time of its passage and approval by the Board.

 

**CERTIFICATION**

 

The undersigned, being theSecretary-Treasurer of the Dry Creek Rancheria Band of Pomo Indians, afederally recognized Indian tribe (“Tribe”), and acting pursuant to subsectionC of Article XI of the Tribe’s Articles of Association, hereby attests tothe enactment of the foregoing Board Resolution, which was presented at a dulyheld meeting of the Dry Creek Board of Directors held on    ,2008, with a quorum present, and approved by a vote of _______ “for,” _______ “against,”and ________ “abstentions,” and that such Resolution has not been rescinded oramended in any way.

 
|                |   |   |   |   |   |
|---------------------|--------|--------|--------|--------|--------|
| Harvey  Hopkins     |   |   | Date   |   |   |
| Chairman            |   |   |   |   |   |
|                |   |   |   |   |   |
|                |   |   |   |   |   |
|                |   |   |   |   |   |
| Margie  Rojes       |   |   |   |   |   |
| Secretary/Treasurer |   |   | Date   |   |   |

 

Exhibit K to MOA

Page 3 of 3

 

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EXHIBIT L

 
|   | Resolution  No.                      |   |
|--------|--------------------------------------|--------|
|   |                                 |
|   | Sonoma  County Administration Center |
|   | Santa  Rosa, CA 95403                |
|   |                                 |
|   | Date:                                |   |
|        |                                      |        |  |

 

**RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OFSONOMA APPROVING THE MEMORANDUM OF AGREEMENT BETWEEN THE COUNTY OF SONOMA ANDTHE DRY CREEK RANCHERIA BAND OF POMO INDIANS**

 

**WHEREAS,**the County of Sonoma (herein referred to as “County”) has worked on agovernment to government basis with the Dry Creek Rancheria Band of PomoIndians (herein referred to as “Tribe”) to establish a mutually agreeableprocess to identify and mitigate off-Reservation environmental impacts ofTribal development projects; and

 

**WHEREAS,**the Tribe desires to operate Tribaldevelopment projects in a manner that benefits the Tribe, its members, and thecommunity as a whole, and the County recognizes the mutual benefit that can bederived if those goals are achieved; and

 

**WHEREAS,**proposed and future Tribal development projects are not County projectsand are not subject to discretionary approval of the County and, absent anagreement, the County has limited opportunity to influence mitigation measuresor seek compensation on behalf of its citizens for adverse environmentalimpacts caused by such projects; and

 

**WHEREAS,**given the scope of Tribal developmentprojects, the limited County jurisdiction over such projects, and the inabilityto always precisely measure such off-reservation environmental impacts,enforceable mitigation commitments are critical to minimize the off-reservationimpacts of Tribal projects; and

 

**WHEREAS,**the County has been involved in a number oflegal disputes against the Tribe including: *Inthe Matter of the Protest of Bill Cogbill et al. to transfer an Alcohol Licenseto the River Rock Casino; County of Sonoma v. Bureau of Indian Affairs;*and*In the Matter of the Sonoma County FireChief’s Application for an Inspection Warrant*and the parties wishto settle those disputes, as well as disagreements over appropriate mitigationregarding Tribal development projects, through a Memorandum of Agreement(hereinafter referred to as “Agreement”); and

 

**WHEREAS,**the proposed Agreement with the Tribereflects a good faith effort to resolve these disputes and to address theimpacts of the River Rock Casino (“Casino”) and the future tribal developmentproject described in the Dry Creek Rancheria Economic Development Master PlanEnvironmental Study dated January 2008, including payment of mitigationfees to the County during the remaining years of the Tribe’s gaming Compactwith the State and, for a period beyond the

 

Exhibit L to MOA

Page 1 of 2

 

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Agreementterm with respect to the hotel project, to off-set impacts on public servicesas well as implementation of specific mitigation measures to reduceoff-reservation impacts; and

 

**WHEREAS,**the proposed Agreement provides a CEQA typeenvironmental review process for future identified Tribal development projects,including for commercial non-gaming development, and creates a binding processfor resolving disputes over appropriate mitigation of off-reservationenvironmental impacts; and

 

**WHEREAS,**the proposed Agreement places importantrestrictions on the operations of any alcohol license the Tribe may obtain fromthe ABC for the Existing Casino; and

 

**WHEREAS,**the proposed Agreement provides for the construction of an emergencyaccess road to allow emergency vehicles to access the Casino in an emergency;and

 

**WHEREAS,**as part of the Agreement the Tribe has agreed to stay its applicationto conduct gaming on its Petaluma property for at least eight years and toplace 90 acres of that property into a perpetual open space easement; and

 

**WHEREAS,**the proposed Agreement is an important step in furthering a governmentto government relationship and building trust, mutual respect and cooperationto benefit both the Tribe and the County;

 

**NOW, THEREFORE, BE IT RESOLVED,**that the Board of Supervisors approves theAgreement between the County of Sonoma and the Dry Creek Rancheria Band of PomoIndians and that the Chair of the Board of Supervisors is fully authorized, onbehalf of the County, to execute the Agreement, including any minor amendmentsthereto approved by County Counsel, and to execute any other instruments orwritings as may be required to implement the terms of the Agreement; and

 

**BE IT FURTHER RESOLVED,**that the Board of Supervisors specificallyapproves the dispute resolution process identified in the Agreement whichincludes binding arbitration and consents to enforcement of such awards asdescribed in the Agreement.

 

SUPERVISORS:

 

Kerns ______ Reilly ______ Brown ______ Kelley ______ Smith ______

 

Ayes: ______ Noes: ______ Abstain: ______ Absent: ______ 

 

**SO ORDERED**.

 

Exhibit L to MOA

Page 2 of 2

 

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