HomeMy WebLinkAboutReso 2016-084 RESOLUTION N0. 2016-084
RESOLUTION OF THE CITY COUf�'CIL OF THE CITY OF
CHULA VISTA ADOPTII�TG A4ITIGATED I�'EGATIVE
DECLARATION (IS-1�-006) AND APPROVII�'G A WETLAI�'D
RESTORATION AGREEMENT BETR'EEN HOMEFED
CORPORATIOt�' AND THE CITY OF CHULA VISTA. AND
AUTHORiZING THE MAYOR TO EXECUTE SAID
AGREEMENT
VJI-IEREAS, HomeFed desires to provide ���etland mitigation necessarv to complete grading
operations for Villases 3 and 8 West in the short term and the rest of its villages (Villages 8 East, 9
and 10) in tt�e lone term; and
WHEREAS, wetland mitieation credits ���ithin existine mitisation banks are extremeh�
limited at this time:and � �
V�'I-IEREAS, HomeFed proposes to restore existing disturbed «�etlands to mitigate for its
w�etland impacts, but lacks propem�in a suitable location to do so; and
WI IEREAS. the Ciri�owms approximatel}� 300 acres of land in the LoN�er Otay River Valley
Watershed that is ideal for restoration due to iu location at the top of the river neaz the dam and iu
high level of disturbance from previous sand and gravel minine; and
WHEREAS. HomeFed proposes to restore approximately ]00 acres of wetland and upland
habitat w�ithin the City`s 300 acre parcel (the "Restoration Site ') in accordance ��th the subject
Wetland Restoration A�eement: and
WHEREAS, HomeFed proposes to address Resource Asency permittine requiremenu
through tbe approval of a Habitat Mitieation and Monitoring Plan (HMb�IP) that N�ould mitigate for
impacts for Villages 3 and 8 V�'est in the short term and establish a mitieation bank H�th the
remainder of the wetlands���ithin the propem; and
�1'IIEREAS, the City is desuous of completine the portion of Heritage Road ben+�een
Oh�npic Parkti�av and Main Street which is part of Village 3 and also requires mitigation of
associated��=etland 'unpacu; and
V�'I-IEREAS, the City ���ould like to implement the City`s Greenbelt trail s}�stem and Ota��
Valle�� Reeional Pazk trails svstem thoush the Restoration Site at no cost to the Cin�: and
A'HEREAS, the City u�ll secure mitigation area sufficient to mitigate wetland impacu for
its Uni��ersit�� and Inno��ation District project, at no cost to the City. in accordance ���th the subject
�1'etland Restoration Aereement.
Resolution No. 2016-084
Page No. 2
NOW; THEREFORE, BE IT RESOLVED that the City Council of the Ciry of Chula Vista
does hereby find and determine, as follows:
I ENVIRONMENTAL DETERMINATION
The Director of Development Services has reviewed the proposed project for compliance
ti�ith the Califomia Environmental Quality Act and has conducted an Initial Study, IS-15-
006 in accordance with the California Environmental Quality Act Based upon the results
of the Initial Study, the Director of Development Services has determined that the project
could result in significant efFects on the environment. However, revisions to the project
made by or agreed to by the applicant would avoid the effects or mitigate the effects to a
point where clearly no significant effects would occur therefore, the Director of
Development Sen�ices has prepared a Mitigated Negative Declaration, IS-15-006.
II. CERTIFICATION OF COMPLIANCE WITH CEQA
The City Council does hereby find that the Mitigated Negative Declaration and
Mitigation Monitoring and Reporting Program (IS-15-006) has been prepared in
accordance with requirements of the California Environmental Quality Act, the State
California Environmental Quality Act Guidelines, and the Environmental Review
Procedures of the City of Chula Vista. The Mitigated Negative Declaration and
MiYigation Monitoring and Reporting Program (IS-IS-006) are available for public
review in the Development Services Department.
III. INllEPENUENT JUDGEMENT OF CITY COUNCIL
The City Council does hereby find on the basis of the whole record before it, including
the initial st'udy and comments received for the Mitigated Negative Declaration and
Mitigation Monitoring and Reporting Program (IS-15-006), that there is no substantial
evidence that the project will have a significant effect on the environment and that the
Mitigated Negative Declaration reflects the lead agency's independent judgment and
analysis.
BE IT FURTHER RESOLVED; that the City Council of the City of Chula Vista does
hereby adopt Mitieated Negative Declazation No. IS-15-006 and approve the Ageement
Regarding Otay River Valley Restoration, attached hereto and made part hereof as Exhibit l,
between the City of Chula Vista and HomeFed for restoration of wetland and upland habitat on
City-o��med land in the Otay Ri��er Valley.
BE IT FURTHER RESOLVED, that the Ma}�or of the City of City of Chula Vista is
hereby authorized and directed to execute said Agreement on behalf of the City of Chula Vista.
Resolution No. 2016-084
Paee No. 3
Presented b�� Appro��ed as to form b��
.
Kelly . Broughton, FASLA en R. Go�gins �
Director of Development Sen ices City Attom '�
PASSED. APPROVED. and ADOPTED b� the Cin� Council of the Citv of Chula Vista
Califomia. this 17th da�� of Ma�� 2016 bv the follo���ine vote:
AYES: Councilmembers: Aeuilar. Bensoussan. A9cCann. I�4iesen. and Salas
NAYS: Couneilmembers: I�'one
ABSEI`'T: Councilmembers: None
Marv las. Mavor
ATTEST:
�� �.. �, ,✓'�
Donna R. Norris. 4C. Cirv Clerk
STATE OF CALIFORI�'IA )
COUt�'TY OF SAI�' DIEGO )
CITY OF CHULA VISTA )
I. Donna R. Norris. Cin� Clerk of Chula Vista. California, do herebvi certifi� that the foreeoine
Resolution I�'o. 2016-084 was duly passed, appro��ed, and adopted by the Cit�� Council at a
regular meeting of the Chula Vista Cit�� Council held on the 17th da�� of Ma}� 2016.
Executed this 17th da�= of Mav 2016.
�
Donna R. Noms. CA4C. Cit�� Clerk
Resolution No. 2016-08�
Paee No. A
AGREEMENT REGARDING OTA1' RI�'ER VALLE}`RESTORATION
THIS AGREEMENT REGARDING OT.4Y RIVER VALLEY RESTORATION
(":lereement") is entered into and effective as of 2016 (the "Effective Date"), by
and between the CITY OF CHiiLA VISTA, a poliu 1 subdi�ision of the State of Califomia
("Cih�")and HOD4EFED CORPC;v'+T;^vN, a DelaHare corporation("HomeFed"). The City and
HomeFed may be referred to individually as a"Pam-"and collectively as the"Parties"throughout
this Aereement.
RECIT.4LS :
A. HomeFed, through its subsidiaries, including uithout limitation (i)Otay Land
Company, LLC, a Delawaze ]imited liabilin� company, (ii)HomeFed Otay Land II, LLC, a
Delaware limited liability company, (iii)HomeFed Village 2 West; LLC, a Delaware limited
liability company; and(iv)Flat Rock Lai�d Company, LLC; a Delaw•are limited liability company
owns or controls undeveloped land in the azea of the City of Chula Vista I:nown as Otay Ranch,
generally depicted on Exhibit A anached hereto ("HomeFed Undeveloped Property").
B. The City owms unde��eloped land, and through recorded Irre�•ocable Offers of
Dedication; has the right to acquire title to addilional undeveloped land in Otay Ranch within the
University/RTP Planning Area, depicted on Exhibit A attached hereto ("Universiq• Property").
C. In connection x�ith the development of the HomeFed Undeveloped Property and
Universin� Property, the Parties anticipate unavoidable impacu to jurisdictional waters and
wetlands necessitatine the issuance of permits and approvals from various govemment agencies
w�ith jurisdiction over such resources, includine without ]imitation the U.S. Army Corps of
Engineers ("USACE"), ihe Califomia Department of Fish & R'ildlife ("CDF�Y") and the San
Diego Regional �'ater Quality Control Boazd ("RR'QCB") (collectively the "Resource
Agencies"). Such permits and approvals collectively shall be referred to herein az "Resource
Agency Permits."
D. In order to satisfi� anticipated compensatory mitigation requirements imposed
pursuant to HomeFed Undeveloped Property and University Propert}•Resource.Aeency Permits,
tLe Parties desire to �3•ork cooperatively (subject to the City's full land use discretion and police
power authority) in the creation, processine and implementavon of a habitat mitigauon and
monitoring plan and associated pe;mit<_and appro��als(collectively"H�1711P")necessary to restore
nati��e habitat within the Otay Ri��er Valle��on land owned by the City and depicted on Exhibit B
attached hereto ("Rcstoration Area"). A draft HMMP; dated Apri12016, prepared by 1CF
Intemational, which ihe Paries acknowledge is preliminarv in nature and subject to further
re��ision includine as stated herein, is attached hereto as Exhibit C.
E. In order to satisfy mitigation requirements to be imposed in conjunction �i�i[h the
Cih's future pursuit of Universit�� Propem Resource Agenc�� Permiu and HomeFed's
undeveloped Property Resource Aeency Pe;mi�s, .he Parties shall establish a mitieation bank
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Resolution No. 2016-084
Page No. 5
based on lhe HD4MP to provide advanced mitigation credits within an agency-approved service
area. The Parties desire to work cooperatively (subjcct to the City's £ull land use discretion and
potice power authority) in the creation,processing and implementation of said mitigation bank.
F. The Restoration Area is designated open space under the City General Plan, Otay
Ranch Resourcc Management Plan, and is within the City's Multiple Species Consen�ation Plan
(MSCP)hardline preserve area. The Restoration Area is unique river channel land located below
Savage Dam for Lower Otay Lake. The proposed HMMP (to be processed and implemented at
HomeFed's sole cost) would restore over i v0 acres of primary and secondary river channels, low
and high flood plain terraces, seasona] ponds, including transitional upland habitat, which wil]
improve the hydrological function of this portion of the Otay River Valley channel. Restoration
of this portion of the Otay River Valley is also essential to the effective restoration and
enhancement of downstream azeas and will provide overall aesthetic and em�ironmental
e�hancement of the river channe] area by creating habitat for target sensitive species in the region
including least Bell's vireo, southwestem willow flycatcher, and anoyo load.
G. The Restoration Area is publicly owned land intended for open space and habitat
preservation; although it is currently in a disturbed state. Restoration of the subject property will
enable the City to satisfy anticipated Resource Agency Permit mitigation requirements for the
future development of the University Property, at no public expense. Implementation of the
HMMP will also allow HomeFed to proceed with the development of the HomeFed Undeveloped
Property, a portion of which development includes segments of Heritage Road tha[ are important
to the City's transportation system network in the area. The Otay River Valley habitat restoration
contemplated by this Agreement,and fully fu�ded by HomeFed,will provide significant aesthetic
and environmental benefits through the restoration of a critical upstream segment of the Otay River �
Valley. Moreover, as mitigation for impacts within the developable portions the HomeFed
Undeveloped Property,the University Proper[y and potentially other poRions of Otay Ranch, the
HMMP will enable the public and private improvements to proceed as contemplated by the City's
General Plan,Otay Ranch General Development Plan,and vazious Sectional Planning Area Plans,
as well as foster the development of the planned four-year university within Otay Ranch.
NOW, THEREFORE, in consideration of the above Recitals and of the mutual covenants
hereinafrer contained and for other good and valuable consideration,the receipt and sufficiency of
which is hereby acl:nowledged,the Parties agree as follows:
AGREEr4E7� T :
l. Resource A2ency ProcessinQ. HomeFed, at its sole expense, shall process
Resource Agency Permits, required to obtain approval of the HndMP for the Restoration Area in
satisfaction of Resource Agency Permit requirements for the HomeFed Undeveloped Property
(which includes satisfaction of Resource Agency mitieation requirements for se�ments of Heritage
Road to be const;ucted within the boundaries of Village 3 of the U�developed Property) and
Uni��ersity Property. HomeFed shal] submit the draft HMMP to the City for review and comment
prior to its formal approval from any other Qovenunent aQency,and shall obtain the consent of the
City for any material modifcations of the HMMP thereafier. The City agrecs to cooperate ���ith
HomeFed in the HMn4P approva] process; including w�ithout limitation the execution of pemiit
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Resolution No. 2016-084
Paee I�'o. 6
applications and consent forms necessary as the owmer of the Resto:ation.4rea. The Parties a¢ree
to cooperate and act in good faith to achieve the prompt and cost-effective approva] ofthe HMMP
from the Resource Agencies. If and when issues arise, the Panies agree to meet and confer to
resolve anr such issues in a timely manner.
2. Citv Processine. The Parties acknowledge that the restoration work contemplated
by the HA4MP to occur w�thin the Restoration Area requires environmental re��iew by the Cit��
under the California En��ironmenta] Quality Act("CEQA"),as well as the issuance of one or more
discretionary City permi[s. The Ciry agrees(subject to the Cin's full land use discretion and police
power authority) to expeditiously process such applications. It is undentood that HomeFed wil]
cause to be prepazed, ac its expense, all of the required technical srudies and exhibiu(by qualified
experts) that tbe Ciq� deems necessary; as well as prepare the drafr and final ��enions of the
Environmental Document HomeFed understands and agrees that the Ciry reserves the rig6t to
exercise its discretion as to all matters which the Cih� is bp law enticled or required to exercise iu
discretion��th respect to the HMMP, includine but not limited to CEQ.4 and similaz laws.
3. I-I�4I�4P Imnlementation. Provided that the HMA4P is approvcd b}� all govemment
a2encies w�th jurisdiction over the restoration activities contemplated therein on terms and
conditions acceptable to HomeFed and the Ciq�, HomeFed agrees to fund the implementation of
the ILViMP, including long-term maintenance costs, and the City agrees to atlow the use of
Restoration Area for said purposes. Since the Restoration.Area is within the boundazies of the
O[ay Ranch Resource Manaeement Plan(RR4P)area,and thereby subject ro the conduct of select,
periodic maintenance and management activities by the Preserve Steward, as warranted under the
RA4P and the Steward's appro��ed Annual �l%ork Plans, those activities would, foregoing any
unforeseen cucumstances, continue to be the responsibility of the City/County Preserve OHmer-
Manacer (POM) and the Stewazd, and funded through the Otay Ranch Preserve Community
Facilities District (CFD). Any costs, including near- or long-term maintenance cosu associated
w�th implementation of the HA4MP's components and features will remain the responsibility of
HomeFed.
4. Access to Restoration Area. The City hereby agrees to grant necessary right of
entq•for and access to the Restoration Area to HomeFed and its consultants and agents to conduct
scudies, surveys and undertake such activities as are reasonably necessary to process and
implement the HMMP. HomeFed will timely provide to the City, to the City's reasonable
satisfaction, the scope of work and estimated constructio❑ schedule documentation regazding
implementation of the HMA4P. Terms regarding HomeFed's indemnification, hold hamiless,
defense of any related claims; and insurance obligations to implement the HD41�4P in the
Restoration Area are as follows:
41. Indemnification.
_.. . .
4.1.1 HomeFed shall fully protect, indemnify, defend (with counsel
reasonably acceptable to Cip�) and hold the City and the Ciry's officers; affiliates, employees,
representatives, and agents free and harmless from and againsi any and all claims, damages;
judsments, liens; stop notices, ]iabilities, losses, costs and eapenses, includine reasonable
attomeys' fees and court cosu, of tihatever charaaer, aamre aad kind, �+�hether directly or
indirecdv arising from or connected with this .4grecment and/or resulting from HomeFed's
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Resolution No. 2016-084
Pa�e No. 7
processing and implementation of the HMMP or related inspections,testing or studies. HomeFed's
indemnification obligations set forth herein shall survive the completion and /or certification of
the activities to implement the HMMP, and shall sun�ive the termination of this Agreement. This
indcmnity obligation stated in section 4.1.1 does not include any claims, damages, liability, costs
and expenses (including w�thout limitations, attomeys' fees) arising from the willful misconduct
or gross negligence of the City; its officers, employees, or agents.
4.1.2 The City shall not have any obligation to protect, indemnify, hold
harmless or defend HomeFed, inciuding its officers, members, directors, shazeholders,
participants, partners, affiliates, employees, representatives, invitees, agents and contractors
against any claims, damages,judgments, liens, stop notices,liabilities, losses, costs and expenses,
including reasonable attomeys' fees and court costs, resulting from HomeFed's processing and
implementation of the HMMP or related inspections,testing or studies.
4.1.3 HomeFed's obligation to protect, indemnify, hold harmless or
defend as stated in this Section 4.1 shall not be restricted to insurance proceeds, if any, received
by the City, its directors, officials, officers; employees, agents,and/or representatives, or received
by HomeFed its directors, officials, officers,employees,agents, and/or representatives.
4.2. Insurance Coveraee.
4.2.1 Prior to any enUy upon the Restoration Area, HomeFed and iu
contractors; subcontractors, consultants, agents, representatives or employees shall deliver to the
City certificates of insurance as evidence that HomeFed and its contractors, subcontractors,
consultants, agents, representatives or employees aze carrying the insurance described in this
Section 4.2 below.
4.2.2 Commercial General Liabilitv Insurance. A policy of commercial
general liability insurance having a combined single limit of not ]ess than Two Million Dollars
($2,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate providing
coverage for, among other things, blanket contractual liability, premises, products/completed
operations and personal and ad��ertising injury coverage.
4.23 Automobile Liabiliri Insurance. Business automobile liabiliry
insurance having a combined single limit of not less than Two Million Dollars ($2;000,000) per
occurrence and in the aggregate and insuring against ]iability for claims arising out of ownership,
maintenance or use of any oHmed,hired or non-owned automobiles.
42.4 VJorkers' Comuensation a�id Einulo��ers Liabilitv ]nsurance.
V,'orkers' compensation insurance having limits not less than those required by state statute and
- federal statute, if applicable; and covering all persons employed by the insured in the conduct of
iu operations on the Restoration Area together��,�ith employer's liability insurance coverage in the
amount of at least One Million Dollars($I,OOQ000).
425 General.
A.2.51 Insurance Companies. lnsurance required lo bc maintained
shall be v,Ticten b} companies authorized to do busi�ess in Califomia and San Diego County and
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Resolution No. 2016-084
Pase No. 8
havine a "Gene;al Policti�holders Racing" of at least "A-\%II" as set fonh in the most current issue
of"Best's Ke}�Rating Guide."
4.25.2 Certificates of Insurance. HomeFed shall deli��er to the Citv
certificates of insurance, including applicable endorsemenu (e.g., Additional Insured
Endorsement), for all insurance required to be maintained by HomeFed and its coniractors,
subcontractors, consultanu, agenrs, representatives or employees in the form of the ACORD
standazd ceni5cate of insurance (or in a form acceptable to the City in its sole discretion)prior to
entry onto the Restoration.Area. HomeFed shall,prior to ezpiration of any policy; fumish the Cirv
w�th certificates of renewal or "binden" thereof. If HomeFed and iu contractors; subcontractors,
consultants; agents, representati��es or employees fail to maintain am� insurance required in this
Agreement, the HomeFed shall be liable 1'or all losses and costs suffered or incurred by the City
(including litieation cosrs and attome��s' fees and ezpenses) resulting from said failure, and the
City may terminare this Agreement.
A.253 Additional Insureds. The City shall be named as an
additional insured under all of the policies requued by chis Section 42 (other than ��orkers'
compensation),and all such policies shall provide for severability of interest. Each certificate shall
expressly pro��ide that such policies shall not be cancelable or otherw�se subject to modification
except afrer thirty (30) Calendaz Days' prior Nrinen notice to the City (except in the case of
cancellation for nonpayment of premium in�vhich case cancellation shali not take effect until at
least ten (]0) Calendaz Days' notice has been given to the City). Liability Additional Insured
coverage benefitting the City (including its elecied officials; representatives, agents and
employees)shall not exclude products or completed operations.
4.25.4 Primarv Coveraee. The general liabilin� insurance
maintained herein shall be primarv to, and receive no contribution from insurance of the City, to
the extent HomeFed has agreed to indemnifq, defend and hold the City harmless pursuant to
Section 4.1 above. The limits of insurance maintained by HomeFed shall not limit HomeFed's
liability under this Agreement.
4.25.5 Revisions to Covera¢e Amounts. City, at its discretion,may
require the revision of amounu and coverage as to any insurance stated above at any time during
the term of this .4ereement by ei��ing HomeFed sixiy (60) days prior wntten notice. City's
requirements shall be designed ro assure protection from and against the kind and extent of risk
existine on the Restoration Area.HomeFed also agrees to obtain any additional insurance required
by City for new improvemenu; in order to meet the requirements of this Agreement
4.25.6 t�'otification of Incidents. HomeFed shall notiCv the Cirv
w•ithin twenrv-four(24)hours after the occurrence of any accidents or incidents at the Restoration
Area which could Qive rise to a claim under anv of the insurance policies required herein.
4.25.7 Wai��ers of Subroeatioa HomeFed's insurer(s)will provide
Waiver of Sebroeation Endorsemeau in favo; of the Cih� for each required polic}� providine
co��erage for the term required by this Aereemznt, escept for Worker's Compensation coveraee.
In additioq HomeFed H�aives any riohts it ma}� have or may obiain to subrogation for a claim
against the Cit}'.
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Resolution No. 2016-084
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5. Mitication Bank Establishment and Administration. The preliminary analysis
contained in the drafr HMMP indicates that the Restoration Area, following implementation of
restoration activities, will yield habitat in excess of the anticipated mitigation requirements of the
Resource Agencq Permits for the HomeFed Undeveloped Property and University Property
("Excess Mitigation Acreage"). The Parties agree that folloti�ing the issuance of Resource
Agency Peanits necessary to develop Villages 3 and 8 West, and in no instance later than 90 days
from the execution of this Agreement, HomeFed wil] submit a drafr Mitigation Bank Prospectus
to the interagency review team("IRT")and thereafrer process the required documents and permits
to establish a mitigation bank,at its sole cost,ti�hich would allow the sale of mitigation credits for
the Excess Mitigation Acreage. HomeFed wil] diligently process the mitigation bank documents
resulting in a final appro��ed banking enabling instrument ("BEP') from the IRT no later than 36
months from the date the application is submitted,subject to delay caused by circumstances outside
the reasonable control of the Pazties.
The City, HomeFed or a third-party mumally acceptable to the Parties shall be named as
the mitigation banker in the IRT submittals. The Parties acknowledge and agree that the mitigation
banker shall actively market the mitigation bank credits and act in good faith in the expeditious
sale of Cxcess Mitigation Acreage credits to reimburse HomeFed, as set forth below, and to
generate revenues for the City as soon as reasonably practicable. In the event HomeFed objects to
the performance of the mitigation banker or sale of Excess Mitigation Acreage credits, the Parties
agree to meet and confer in good faith to resolve such objections. City must approve the final sales
terms of any transaction im�olving Excess Mitigation Acreage credits.
HomeFed shall submi[ the mitigation bank documenta[ion to the City for review and
acceptance pnor to its formal approval from any other govemment agency, and shall obtain the -
consent of the City for any material modifications of the mitigation bank thereafrer. The City shall
retain fee title to the real property relating to the sale of any and all mitigation credits for the Excess
Mitigation Acreage.
The application to the IRT for the mitigation bank will include a resen�ation for credits to
be used by the City and HomeFed, in a quantity mutually agreed by the Parties, sufficient to
mitigate unavoidable impacts to jurisdictional waters and wetlands within the_University Property
and the HomeFed Undeveloped Property (with the exception of Village 3 and S West, which will
be covered by Phase 1 and 2 of the HMMP pnor to establishment of the mitigation bank) at no
cost to the City.
The proceeds from future Excess Mitigation Acreage credit sales; if any,would be applied
first to reimburse HomeFed for all of its reasonable costs incurred in creating, processing and
implementing the HMMP and mitigation bank (which reasonable costs will be a�eed to by the
City afrer a review of adequate documentation provided by HomeFed regarding such costs)for the
portioo of the site that applies to Excess Mitigation Acreage ciedit sales(i.e. those credits that are
not utilized for the satisfaction of Resource Agency Permits issued in connection with the
University Property and HomeFed Undeveloped Property) (hereafier "Reimbursable Costs").
Reaso�able Costs to be reimbursed to HomeFed for creating, processin� and implementi�g the
HMA4P and mitigation bank shall not include those proportional costs or expcnses that HomeFed
incurs or pays to(i)prepare,process and implement the HMMP, aad(iS)create the mitigation bank
acreage; for that poRion of the Restoration Area to be used to satisfy the Resource Agency
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Resolution No. 2016-08�
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mi:igation requirements relatine to the Undeveloped Property and the University Property.
Mitigation credit sales proceeds in excess of said reasonable cosi reimbursement amounts to
HomeFed, if any, �+�ll be retained solely by the City. The City w�ill reimburse HomeFed the
Reimbursable Costs only as proceeds from the final salec of Excess Mitigadon Acreage aze
received and funds from such sales have bee� deposited with the City uithout restriction on the
City's use of such funds. Only the proceeds from the fina] sales of Excess Mitigation Acreage
shall be used to reunburse the Reimbursable Costs. No other Ciry funds or morves shall be used
to reimburse ihe Reunbursable Cosu.
VJithin sixty(60) da��s of Resource Agency confirmation that HomeFed has satisfied a
condirion of a Resource Age�cy Pemvt approcal through the use of mitieation land vrithin the
Restoration Area;HomeFed shall record an irrevocable offer of dedication("IOD")in favor or the
City in a form aceeptable to the Parties. The IOD shall offer to the City at no expense fee title to
jurisdictional waters oHmed by HomeFed,or an affiliate,immediately west of the Restoration Area
in the Otay River Valley,the location of which shall be mutually aereed upon by the Parties;in an
amount equal to the acreage approved by the Resource Agencies within the Restoration Area as
mitigation satisfying Resource Agency Permits for HomeFed Undeveloped Properry. The Parties
anticipate multiple IOD's will be recorded over time to reflect the phased narure of the permittine
and devclopment of HomeFed's Undeveloped Propem�.
6. Access and Trails R'ithin and Throueh the Restoration Area. The Panies
acknowledge that the Restoration Area is within the boundaries of the Otay Valley Regional Pazk
Concept Plan which anticipates trail routes and connections through and adjacent to the
Restoration Area, and that vazious enuties and agencies use access routes and informal Vails that
currendy traverse the Restoration Area. HomeFed agrees to coordinate�vith invoh�ed and affected
agencies and parties (including but not necessarily ]imited to the City of Chula Vista, County of
San Diego, Ciry of San Dieeo, US Border Pauoi, SDG&E; the Resource Agencies, and the Otay
R'ater District)to review; desien and incorporate in ihe HD4MP necessarv trails and access routes
N�thin and through the Restoration Area to meet the reasonable needs of those agencies and parties,
and ensure appropriate connections co related off-site routes, as permitted by the Resource
Agencies. Exhibit D depicts the proposed access routes and trai]corridors within and immediately
adjacent to the Restoration Area that aze to be included within the HA4MP, now and u revised in
the future, and therein accordingly authorized via appro��al of the HMMP by the Resource
Aeencies.
The Parties further acttnow•ledee that certain components of the access and trail alignme�ts
are not fully finalized in terms of specific, final detailed alignments, andlor associated physical
construction details related to actua] surfacing, drainage and other attendant unprovements, in a
manner sufficient and necessary to construct said access and trail improvements w�ithin the HMI�4P
azea. Accordingly, HomeFed agrees to process and accomplish at its sole expense, any and all
necessary endtlement,plan and environmental updates,revisions or a,-nendments and applications
required to obtain all appro��als for said final alignmenu and surfacine, drainace and other
attendant improvement details at a level sut"�'icienc to permit their construction ("Trail
Approvals"). IlomeFed further aerees to diligentl�• process said applications in order to obtain
Trail Approvals pnor to the commencement of construction for I-IA4b4P phase 2, subject to delav
caused bv circumstances outside the reasonable cont:ol of HomeFed. The Cin� aerees to
expeditioush�process an� applications for Trail .Approvals submitted bv I�omcFcd in accordance
- �;�>r
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Resolution No. 2016-084
Page No. 11
with City regulations and policies. HomeFed agrees to construct at its sole expense all of said fina]
access and trail improeements within the HMMP Area in conjunction with its otherwise phased
construction v.�thin the HMMP. The parties acknowledge that HomeFed has no obligation for
funding trail maintenance.
7. Phased Implementation. The Parties acknowledge the significant capital outlay
required to achieve the approval and implementation of the HMMP. Therefore, the Parties agree
to work cooperatively with Resource Agencies to accomplish a phased HNIMP implementation
consistent with the anticipated long-term buildout of the HomeFed Undeveloped Property and
University Property. HomeFed ti�ll diligently pursue the approva] and implementation of the
initial phase of the HMMP(Phases 1 and 2),which includes restoration acreage sufficient to satisfy
solely: (a) the mitigation needs of Villages 3 and 8 West. Phases 1 and 2 are anticipated to be
completed by Februazy 2017 consistent with the phasing schedule stated in Chapters 5 and 8 of
the fina] HMMP. Within 12 months of approval of the mitigation banl:,HomeFed will commence
construction of, and diligently pursue to completion, the first restoration phase within the
mitigation bank; provided that the commencement of construction may be delayed beyond 12
months due to the limitations imposed by applicable regulations including but not limited to the
Migratory Bird Treaty Act. However, in 1he event University Property is approved for
development by the Ciry and has applied for Resource Agency Permits prior to approval of che
mitigation ba�};, the City may so notify HomeFed and in such event HomeFed shall commence
construction of mitigation necessary to satisfy the Resource Agency Permit within 6 months of the
later of issuu�ce of said Resource Agency Permit or receipt of said notice,or as otherwise mutually
agreed upon by the Parties. The size and scope of the first phase within the mitigarion bank shall
be in HomePed's discretion, provided that such first phase at a minimum shall include credits
sufficient to satisPy the anticipated Universit}• Property Resource Agency Permit requirements.
Thereafrer, the mitigation bank shall reserve such credits solely for the University Property and
such credits may not be sold. The Parties aoree that the mitigation bank documentation and
structure shall provide chat the mitigation credits for the University Property will be reserved for
utilization by the City as part of the up to forty perceni (40%) of the total mitigation credits for
jurisdictional waters that can be released for use as mitigation credits between the cime that the
mitigation bank is established and approved by the IRT and the as-built construcaon plans for the
I3MMP portion related to ttie mitigation bank are submitted to the Califomia Depaztment of Fish
and Wildlife. The Parties acknowledge that the City has not made application with the Resource
Agencies in connection with the University Property, and therefore the precise mitigation
requirements are unknown.
8. I�4iscellaneous Provisions.
8.1. Entire Aereement. This Agreement contains the entire understanding and
agreement of the Parties, and there are no oral or written representations, understandings or
ancillazy covenants, undertakings or agreements which are not contained or expressly referred to
as an exhibit herein. I��o testimony or evidence of any such representations, understandings or
covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the
terms or conditions of this Agreement.
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2ibS'i3-OU!!J'_�5-10.151jec:m:o 'S'
Resolution No. 2016-08�
Pase No. 12
8.2. Severabilin�. If ac�y term.prorision,covenant or condition of this Agreement
shall be detemrined invalid, void or unenforceable, then this .4geement shall terminate in its
entirerv, unless Lhe Parties otherw�se a¢ree in writine.
83. Interoretation and Govemiae La�v. This Agreement and any dispute arisine
hereunder shall be governed and interpreted in accordance with the laK�s of the State of Califomia
This.Aereement shall be construed as a wttole acco*dine to iu fair langua�e and common meaning
to achieve the objectives and purposes of the Parties, and the rule of conswction to the effect that
arnbiguities are to be resoh•ed against Lhe drafvne Party shall not be employed in interpreting this
Agreement; both Parties having been represented bv counsel in the negotiation and preparation
hereof.
8.4. Pazaeraoh Headings. .All paragraph headings and subheadings aze inserted
for convenience only and shall not afFect an} construction or interpretadon of this.4greement.
8.5. Sineulaz and Plural. As used herein, the sineular of any word includes the
plural.
8.6. Time of Essence. Time is of the essence in the performance of the provisions
of this Agreement as to which time is an element.
8.7. ��Iaiver. Failure of a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon
the default of the other Party,shall not constirute a waiver of such Party's right to insist and demand
svict compliance by the other Party with the terms ofthis Agreement thereafrer.
8.8. No Third Partv Beneficiaries. This Agreement is made and entered into for
the sole protection and benefit for the Parties and their successors and assigns. No other person
shall have any right of action based upon any provisions of this A2seement.
8.9. Counteroarts. The Parties may execute this Aereement in counterpans,
which counterparts shall be construed together and have the same effect as if boih Parties had
executed the same instrument. —
5.10. Jurisdicuon and Venue. Any action or law or inequity azising under this
Agreement or brought by either Party for the purpose of enforcing; construing or determining the
validity.of any provision of this Agreement shall be filed and tried in [he Superior Court of the
County of San Diego; State of California, and both Parties hereby w•aive all provisions of law
providing for the filing, removal or change of venue to any other cour[.
8.11. Funher Actions and Insvuments. Each Party shall cooperate �vith and
provide reasonable assistance to the other to the ex[ent contempla[ed;�ereunder in the performance
of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either Party at an}� time, the other Par�y shall promptl}' eaecute, ti7th
acl:nowledgment or affidavit if reasonabl}' required; and file or record such required instruments
and H�itings reasoaably acceptable to such Pam� and take anv accions as ma�� be reasonably
necessar}• under the terms of this Agreement to cam• out the intent and to tulfill the provisions of
this Agreement including���ithout limitation actions necessarv to remoee this Ageement from the
��;?.:oase
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Resolution No. 2016-084
Paee No. 13 �:
chain of title as to all or a portion of the Property when authorized by this Agreement_provided that
neither Party ti�ll be obligated to modify any rights or accept any additional obligations or liabilities
in connection therewith.
8.12. Amendments in Writin¢/Cooperation. This Agreement may be amended
only by written consent of the Parties specifically appro«ng the amendment.
8.13. Notices. Any notice called for in this Agreement shall be sent by hand
delivery, ovemight courier service, or by registered or certified mail as follows:
If to Ciry:
City of Chula Vista
276 Fourth Avenue
Chula Vista. CA 91910
Anention: Development Services Director
Telephone:
Facsimile:
With a Copy to:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Attomey
Telephone: (619) 691-5037
Facsimile: (619)409-5823
If to HomeFed:
HomeFed Corporation
1903 Wright Place, Ste. 220
Carlsbad,CA 92008 -- --
Attention: Erin Ruhe
Telephone: (760) 918-8200
Facsimile: (760)918-8205
With a Copy to:
Allen b4atkins Leck Gamble Mallory&Natsis, LLP
501 W. Broadway, 1S"' Floor
San Diego; CA 9210]
Attention: )effrey A. Chine
Telephone: (619)233-1155
Facsimile: (619)233-1158
or such other address as a Party may inform the others of from time to timc. Any such notices sent
by registered or certified mail, retum receipt reqaested, shall be deemed to have been duly eive❑
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Resolution No. 2016-084
Paee No. 14
and received [hree (3) business dzqs after the same is so addressed and mailed with postage
prepaid. Novices delivered by ovemieht service shall be deemed to bave been given upon delivery,
charges prepaid to the U.S. Postal Sennce or private courier. .Any notice o:other document sent
bq anv other matte;shall be effective onl}•upon actual receipt thereo£
814. 1�'o Joint Venture or Partnershio. It is specificall�• understood by City and
HomeFed that the HLL�4P and mitieation banl:is not a joint venture or partnership between the Citp
and HomeFed.
8.1�. Authorih• to Execute. Each Pany hereby warrants and represenis that the
person or persons executing this Ageement on behalf of such Pam� has the authority to execute
this Aereement, attest to the representations sei fort6 herein and make the w�arranties contained
herein on behalf of the entity for H•hich he or she is acting and has been dul}•authorized to do so.
8.16. E�ibits and Attachments. All Exhibits referenced v.ithin the.Agreement are
incorporated herein and made a part of this Agreement.
8.17. Successors and Assiens.This Aereement shall be binding on and enforceable
against and by any successors, assiens; and transferees of HomeFed and the Cip�.
(REMAIz1'DER OF PAGE IA`TENTIO/1'ALLY BLANK—
SIGAATGRES APPEAR ON FOLLO Ti'I�1'C PAGEJ
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Resolution No. 20]6-084
Page No. 15
IN WITNESS R'HEREOF, the parties have caused this Agreement to be executed as of
the Effective Date.
HOMEFED:
HOMEFED CORPORATION,
a Delaware corporation
��
. By: /� ' / �
Narne:
Title: . r
CITY:
CITY OF CHULA VISTA,
a political subdivision of the State of Califomia
Bv:
Name: Mary Casillas Salas
Title: Ma��or
ATTEST:
Bv:
Ivame: Donna Noms
Title: City Clerk
APPROVED AS TO FORM:
By: _ _
Name: Glen R. Googins
Title: City Attorney
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Resolucion No. 2016-084
Pase No. 16
EXHIBIT A
UNDEVELOPED PROPERTY AND UNIVERSITY PROPERTY
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Resolution No. 2016-084
Page No. l 7
EXHIBIT A �
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AND UNIVERSITY PROPERTY
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Resolution No. 2016-084
Page No. 18
E�ITIBI'C B
RESTORATION.4REA
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EXHIBIT B
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Resolution No. 2016-084
Page No. 19
EXHIBIT B
RESTORATION AREA
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RESTORATION A EA PARCEL
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Resolution Tio. 2016-084
Pa�e No. 20
EXHIBIT C
DRAFT H�1MP
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Resolution No. 2016-084
Page No. 21 �
E�IIBIT D
PROPOSED ACCESS ROUTES AND TRAIL CORRIDORS
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Resolution No. 2016-084
Paee No. 22
" Fu;ure OVRP antl C.ry of
Chula�/sta 6reenbel;Master
Plan T2il by others on County
oE SD Pmperty
Future OV.•2P and -� .
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GreenbelMaster ' .
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o Plan Troil by o;ners � � �
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: i��������� Ciry of Chula Vsta Green�ett Trail Corridor o 500 t,DOO .
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- Sovt'e' IC%C Ciry of Clula usa(2J1E). Peet .
Exhibit D
� Proposed Access Routes and Trail Cooridors
Otay River Restoration Projecf