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HomeMy WebLinkAbout24 - Newport Coast Annexation and Development Agreement Extension (PA2015-165) - Newport Coast and Newport Ridge - Staff memoQ SEW Pp�T CITY OF O NEWPORT BEACH �q<.Fop. City Council Staff Report November 22, 2016 Agenda Item No. 24 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Kimberly Brandt, Community Development Director - 949-644-3232, kbrandt@newportbeachca.gov PREPARED BY: Gregg Ramirez, Senior Planner, gram irez(a)-newportbeachca.gov PHONE: 949-644-3219 TITLE: Newport Coast Annexation and Development Agreement Extension (PA2016-165) Newport Coast and Newport Ridge SUPPLEMENTAL INFORMATION Staff has noted incorrect dates on the adopting ordinance for this agenda item and has corrected the dates on the attached ordinance. Also staff has revised the ordinance to reference the original development agreement as being on file at County of Orange. Attachment A: Clean version of Revised Ordinance Attachment B: Redlined version of Revised Ordinance Attachment A Revised Ordinance- Clean Version ORDINANCE NO. 2016 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT NO, DA2016-002 AMENDING THE ANNEXATION AND DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH, THE IRVINE COMPANY, AND IRVINE COMMUNITY DEVELOPMENT COMPANY CONCERNING THE NEWPORT COAST AND ADJACENT PROPERTIES (PA2016-165) WHEREAS, an application was filed by The Irvine Company (TIC), with respect to property commonly referred to as Newport Coast and Newport Ridge as legally described in the Annexation and Development Agreement Between the City of Newport Beach, California (City), and Irvine Company and Irvine Community Development Company Concerning the Newport Coast and Adjacent Properties (Agreement), which is incorporated by reference herein and was recorded in the Official Records of the County of Orange as No. 20010800494 on November 8, 2001; WHEREAS, in 2001, the City, TIC, and Irvine Community Development Company entered into the Agreement for the annexation and development of approximately 7,799 acres alone Newport Coast (Property); WHEREAS, the Property was annexed into the City on January 1, 2002; WHEREAS, TIC requests to extend the term of the Agreement as specified in Section 10.1 of the Agreement from January 1, 2017 to January 1, 2032 (Amendment); WHEREAS, no land use changes, including changes to commercial and residential development capacity are proposed by City or TIC in this Amendment,- WHEREAS, mendment; WHEREAS, the Property includes the following General Plan Land Use Categories: Single -Unit Residential Detached (RS -D), Multiple Residential (RM), Multiple Residential Detached (RM -D), Neighborhood Commercial (CN), Visitor Serving Commercial (CV), Open Space (OS), Parks and Recreation (PR), Private Institutions (PI), and Public Facilities (PF); WHEREAS, the Property is located in the Newport Coast Planned Community (PC 52) and Newport 'Ridge Planned Community (PC 53) Zoning Districts; WHEREAS, the portion of the Property, located within the boundaries of the Newport Coast Local Coastal Program (LCP) and Newport Coast Planned Community (PC 52), is located within the coastal zone; Ordinance No. 2016 - Page 2 of WHEREAS, the portion of the Property located within the boundaries of the Newport Ridge Planned Community (PC 53) is not located within the coastal zone; WHEREAS, the Property is subject to the Cooperative Agreement between the County of Orange (County) and the City, dated October 9, 2001 (the Cooperative Agreement). Pursuant to the Cooperative Agreement, the County shall retain land use authority for the Property until: (1 ) the development of the Property is complete; or (2) the City agrees to assume municipal land use authority; WHEREAS, the Cooperative Agreement between the County and the City remains in full force and effect until all entitlement granted by the Development Agreement has been completed, or unless the conditions for expiration specified in Section 51302 of the Government Code are satisfied; WHEREAS, unless otherwise provided by the Agreement, the ordinances, rules, pians and policies of the City which govern permitted uses of land, the density of development, and the design, improvement and construction standards and specifications, applicable to development of the Property, shall be those ordinance rules, plans and policies in force at the time of execution of the Agreement; WHEREAS, the Agreement shall not prevent the City in subsequent actions applicable to the Property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the Property as set forth in the Agreement, nor shall the Agreement prevent the City from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations, and policies; WHEREAS, the Amendment will continue to allow the development of a residential community, containing a mix of housing types, supporting retail and active parklands, consistent with the land uses, densities and intensities of the Newport Coast Planned Community (PC 52) and Newport Ridge Planned Community (PC 53) Zoning Districts, Newport Coast LCP and City's General Plan; WHEREAS, the Amendment does not add any lots, units, building sites or structures to the Property and does not change the approved design or uses allowed by Newport Coast Planned Community (PC 52) and Newport Ridge Planned Community (PC 53) Zoning Districts, Newport Coast LCP and the City's General Plan; WHEREAS, the portion of the Property located within the coastal zone is governed by the previously certified and currently effective Newport Coast segment of the Orange County LCP Second Amendment,- WHEREAS, mendment; WHEREAS, because the Property is governed by the certified LCP, this Amendment is effective upon approval by the City Council and no further approval need Ordinance No. 2016 - Page 3 of be obtained from the California Coastal Commission under California Government Code Section 65869 or Newport Beach Municipal Code Section (NBMC) 15.45.090; WHEREAS, the proposed project is consistent with the goals and policies of the City's General Plan; WHEREAS, this Amendment is intended to be an amendment pursuant to California Government Code Section 65868 and NBMC Chapter 15.45, This Amendment has been considered and approved in the same manner as the Agreement with public hearings pursuant to California Government Code Section 65867 and NEMC Chapter 15.45; WHEREAS, this Amendment includes a public benefit consisting of a Public Benefit Fee in the sum of seventy-one thousand and one -hundred dollars ($71,100) per hotel unit that is converted into a residential dwelling unit and the sum of ten thousand dollars ($10,000) per hotel unit that is constructed; WHEREAS, this Amendment includes a public benefit consisting of a one (1) time renewal fee in the amount of five million dollars ($5,000,000) (Renewal Fee), which shall be due and payable to City upon the Effective Date of this Amendment; WHEREAS, this Renewal Fee shall be credited against the Public Benefit Fee paid by TIC to City; WHEREAS, a public hearing was held on October 6, 2016, in the Council Chambers located at 100 Civic Center Drive, Newport Beach; a notice of time, place and purpose of the public hearing was given in accordance with the NBMC, and evidence,. bath written and oral, was presented to, and considered by, the Planning Commission at this public hearing; WHEREAS, the Planning Commission voted 6-0 to recommend approval of the requested Amendment with the added provision that the length of the extension be commensurate with the public benefit provided to the City by TIC; WHEREAS, on November 7, 2016,.in the Council Chambers located at 100 Civic Center Drive, Newport Beach; a notice of time, place and purpose of the public hearing was given in accordance with the NBMC, and the City Council voted to continue the public hearing to November 22, 2016; and WHEREAS, a public hearing was held on November 22, 2016, in the Council Chambers located at 100 Civic Center Drive, Newport Beach; a notice of time, place and purpose of the pubiic hearing was given in accordance with the NBMC, and evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing.. Ordinance No. 2016 - Page 4 of NOW, THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council of the City of Newport Beach hereby approves Development Agreement No. DA2016-002, as set forth in Exhibit "A " which is attached hereto and incorporated herein by reference. Section 2: The recitals provided in this ordinance are true and correct and are incorporated into the operative part of this ordinance; Section 3: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional; Section 4: All significant environmental concerns for the proposed project have been addressed in the previously prepared environmental documents certified by the County and described in Exhibit "C" of the Agreement, which is attached hereto and incorporated by reference herein, and the City intends to use said documents for the Amendment, and the City Council further finds that there are no additional reasonable alternative or mitigation measures that should be considered in conjunction with this Amendment_ Section 5: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 22nd day of November 2016, and adopted on the 29th day of November„ 2016, by the following vote, to -wit; AYES, COUNCILMEMBERS NOES„ COUNCILMEMBERS ABSENT COUNCILMEMBERS Ordinance No. 2016 - Page 5 of DIANE B. DIXON, MAYOR ATTEST: LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY TTORNEY'S OFFICE z�� (L � AARON C. 'HARP, CITY ATTORNEY Exhibit A: Amendment to Development Agreement Ordinance No. 2016 - Page 6 of EXHIBIT "A" Amendment to Development Agreement RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Attn: Citv Clerk (Space Above This Line Is for Recorder's Use Only) This Amendment is recorded at the request and for the benefit of the City of Newport Beach and is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. FIRST AMENDMENT TO ANNEXATION AND DEVELOPMENT AGREEMENT between THE CITY OF NEWPORT BEACH, THE IRVINE COMPANY, and IRVINE COMMUNITY DEVELOPMENT COMPANY CONCERNING THE NEWPORT COAST AND ADJACENT PROPERTIES FIRST AMENDMENT TO DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ("Amendment") is executed this day of , 2016, by and between: (1) the City of Newport Beach, a municipal corporation and charter city ("City"), (2) The Irvine Company, a Delaware limited liability company licensed to do business in California ("TIC"), and PH Finance, LLC, an affiliate of TIC ("Affiliate"). The City, TIC, and the Affiliate shall individually be referred to as "Party" and shall collectively be referred to as the "Parties." RF(-ITAI 4 1. In 2001, the City, TIC, and Irvine Community Development Company entered into the Annexation and Development Agreement Between The City of Newport Beach and The Irvine Company and Irvine Community Development Company Concerning the Newport Coast and Adjacent Properties ("Development Agreement") for the annexation and development of approximately 7,799 acres along Newport Coast ("Property"). The Property is described on Exhibit A to the Development Agreement and is depicted on Exhibit B to the Development Agreement. 2. The Property was annexed into the City on January 1, 2002. Unless otherwise amended, the Development Agreement will expire on January 1, 2017. 3. Since 2001, TIC and/or the Affiliate have developed a portion of the Property. However, other portions of the Property remain undeveloped, or developed to an extent that is less than permitted by the Property's entitlements, due to current market conditions. The Parties wish to ensure that certain development regulations contained in the Development Agreement that are in effect through January 1, 2017, continue to govern these portions of the Property. Therefore, the Parties wish to extend the term of the Development Agreement by an additional fifteen (15) years. 4. This Amendment is intended to be an amendment pursuant to California Government Code Section 65868 and Newport Beach Municipal Code ("NBMC") Chapter 15.45. This Amendment has been considered and approved in the same manner as the Development Agreement with public hearings pursuant to California Government Code Section 65867 and NBMC Chapter 15.45. 5. The Property is governed by the previously certified and currently effective Newport Coast segment of the Orange County Local Coastal Program ("LCP") Second Amendment. Because the Property is governed by the certified LCP, this Amendment is effective upon approval by the City Council and no further approval need be obtained from the California Coastal Commission. 6. The Property is subject to the Cooperative Agreement between the County of Orange ("County") and the City, dated October 9, 2001 ("Cooperative Agreement"). Pursuant to the Cooperative Agreement, the County shall retain land use authority for the Property until: (1) the development of the Property is complete; or (2) the City agrees to assume municipal land use authority. The Cooperative Agreement between the County and the City remains in full force and effect until all entitlement granted by the Development Agreement has been completed, or unless the conditions for expiration specified in Section 51302 of the Government Code are satisfied. 7. The City Council has evaluated the potential environmental impacts of this Amendment and has determined that any potential impacts have been analyzed pursuant to the environmental documents listed in Exhibit C to the Development Agreement, which were prepared in accordance with the California Environmental Quality Act ("CEQA"). There are no circumstances present that would require a new, subsequent or supplemental environmental impact report for this Amendment, under the provisions of CEQA. 8. On October 6, 2016, City's Planning Commission held a public hearing on this Amendment, made findings and determinations with respect to this Amendment, and recommended to the City Council that the City Council approve this Amendment. 9. On November 22, 2016, the City Council also held a public hearing on this Amendment and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, TIC, Affiliate, and members of the public and introduced the ordinance approving this Amendment. 10. On November 29, 2016, pursuant to the applicable state law (California Government Code sections 65864-65869.5) and local law (NBMC Chapter 15.45), the City Council adopted its Ordinance No. 2016-_ finding this Amendment to be consistent with the City of Newport Beach General Plan and approving this Amendment. AGREEMENT NOW, THEREFORE, City and TIC agree as follows: 1. Property. As set forth in Sections 2.2 and 2.3 of the Development Agreement, the Development Agreement has been extinguished as to properties that are no longer owned by TIC or a TIC affiliate. 2. Effective Date. This Amendment shall not become effective and no Party shall have any rights or obligations hereunder until the "Effective Date," which for purposes of this Amendment shall mean the thirty-first (31st) day following the approval or adoption of this Amendment by the City Council and signature by the City. 3. Term. Section 10.1 of the Development Agreement is amended to read as follows: "This Agreement shall continue in full force and effect until the earlier of the following: (i) January 1, 2032; or (ii) the date this Agreement is terminated pursuant to Section 7.3 of this Agreement." 4. Land Use Regulations. The rules, regulations, and official policies governing the permitted uses of land, density, design, and improvement of the remaining portions of the Property (the "Land Use Regulations") shall continue to be those defined in Section 1.1.9 of the Development Agreement. These Land Use Regulations shall not be changed during the Term of this Amendment except upon the written consent of the Parties. 5. Public Benefits. 5.1 Public Benefit Fee. As consideration for City's approval and performance of its obligations set forth in this Amendment, TIC shall pay to City a fee that shall be in addition to any other fee or charge to which the Property would otherwise be subject (herein, the "Public Benefit Fee") in the sum of seventy-one thousand and one -hundred dollars ($71,100) per hotel unit that is converted into a residential dwelling unit and the sum of ten thousand dollars ($10,000) per hotel unit that is constructed. The Public Benefit Fee shall be paid by TIC to City at the time of building permit issuance for the residential dwelling unit and/or hotel unit. The Public Benefit Fee shall increase beginning on January 1 st following the first anniversary of the Effective Date by the percentage increase in the CPI Index between the Effective Date and said January 1st date (the first "Adjustment Date") and thereafter the Public Benefit Fee shall increase on each subsequent January 1st during the Term of this Amendment (each, an "Adjustment Date") by the percentage increase in the CPI Index in the year prior to the applicable Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the Effective Date of this Amendment falls on July 1 and the most recently available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6 -month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date. 5.2 Renewal Fee. As further consideration for City's approval and performance of its obligations set forth in this Amendment, TIC shall pay to City a one (1) time renewal fee in the amount of five million dollars ($5,000,000) ("Renewal Fee"), which shall be due and payable to City upon the Effective Date of this Amendment. This Renewal Fee shall be credited against the Public Benefit Fee paid by TIC to City under Section 5.1 above. 5.3 Voluntary Payment of Fees. The City has not designated a specific project or purpose for the Public Benefit Fee or Renewal Fee. TIC and Affiliate acknowledge by their approval and execution of this Amendment that TIC is voluntarily agreeing to pay the Public Benefit Fee and Renewal Fee, that TIC's obligation to pay the Public Benefit Fee and Renewal Fee is an essential term of this Amendment and is not severable from City's obligations and TIC's and Affiliate's vested rights to be acquired hereunder, and that TIC and Affiliate expressly waive any constitutional, statutory, or common law right they might have in the absence of this Amendment to protest or challenge the payment of the Public Benefit Fee or Renewal Fee on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this Amendment for TIC's or Affiliate's default, if TIC shall fail to timely pay any portion of the Public Benefit Fee or Renewal Fee when due, City shall have the right to withhold issuance of any building permits, occupancy permits, or other development or building permits for the Property. 6. Future Amendments. TIC and the Affiliate may, with the approval of the City, separately amend the Development Agreement as to each entity's own parcel(s) located within the Property. 7. No Third Party Beneficiaries. The only parties to this Agreement are the City, TIC, and the Affiliate. This Amendment does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity. 8. Notice of Intention to Amend. In enacting this Amendment, the City has provided for public notice and hearing in the manner provided by California Government Code Section 65867. 9. Compliance with NBMC Chapter 15.45 and California Government Code Section 65867.5. NBMC Chapter 15.45 and California Government Code Section 65867.5 provides that a development agreement is a legislative act that shall be approved by ordinance and subject to referendum. A development agreement shall not be approved unless the City Council finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan. These requirements of NBMC Chapter 15.45 and California Government Code Section 65867.5 have been satisfied by the City's finding that this Amendment is consistent with the City's General Plan, and the City's approval of this Amendment by ordinance. 10. Compliance with NBMC Title 19 and California Government Code Section 66473.7. The area subject to the Amendment may include a future subdivision, and the City may, in its sole and absolute discretion, approve certain tentative maps for such subdivision. Any such subdivision will comply with all applicable provisions of NBMC Title 19 and the Subdivision Map Act including, but not limited to, California Government Code Section 65867.5 in that any tentative maps will be approved by the City in compliance with California Government Code Section 66473.7. 11. Section Headings. All section headings are inserted for convenience only and shall not affect construction or interpretation of this Agreement. 12.Authority to Execute. The persons executing this Amendment warrant and represent that they have the authority to execute this Amendment on behalf of the party for which they are executing this Amendment. They further warrant and represent that they have the authority to bind their respective party to the performance of its obligations under this Amendment. The City Manager or his/her designee has the authority to implement the terms of this Amendment and execute any documents in furtherance of the terms of this Amendment and the Development Agreement so long as they have been reviewed and approved as to form by the City Attorney. 13. Recordation. This Amendment and any amendment, modification, or cancellation to it shall be recorded in the Office of the County Recorder of the County of Orange, by the City of Newport Beach City Clerk in the period required by California Government Code section 65868.5 and NBMC Section 15.45.090. 14. Counterparts. This Amendment may be executed in two (2) or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one (1) and the same Amendment. 15. Indemnity. Indemnity Obligations of TIC. 15.1 Indemnity Arising From Acts or Omissions of TIC. Except to the extent caused by the intentional misconduct or gross active negligence of City or one (1) or more of City's officials, employees, agents, attorneys, and contractors (collectively, the "City's Affiliated Parties") , TIC shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to reasonable attorneys' fees and costs) (collectively, a "Claim") that may arise, directly or indirectly, from the acts, omissions, or operations of TIC or TIC's agents, affiliates, contractors, subcontractors, agents, or employees in the course of development of the project or any other activities of TIC relating to the Property or pursuant to this Amendment. City shall have the right to select and retain counsel to defend any Claim filed against City and/or any of City's Affiliated Parties, and TIC shall pay the cost for defense of any Claim. The indemnity provisions in this Section 15.1 shall commence on the date of the adopting ordinance and shall survive the termination of the Development Agreement. 15.2 Third Party Litigation. In addition to its indemnity obligations set forth in Section 15.1, TIC shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Amendment, the Development Agreement, any of the development regulations for the project (including without limitation any actions taken pursuant to CEQA with respect thereto), any subsequent development approval, or the approval of any permit granted pursuant to this Amendment. Said indemnity obligation shall include payment of reasonable attorney's fees, expert witness fees, and court costs. City shall promptly notify TIC of any such Claim and City shall cooperate with TIC in the defense of such Claim. City shall be entitled to retain separate counsel to represent City against the Claim and the City's defense costs for its separate counsel shall be included in TIC's indemnity obligation, provided that such counsel shall reasonably cooperate with TIC in an effort to minimize the total litigation expenses incurred by TIC. In the event either City or TIC recovers any attorney's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, TIC shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). The indemnity provisions in this Section 15.2 shall commence on the date of the adopting ordinance and shall survive the termination of the Development Agreement. 16. No Attorneys' Fees. In the event of any legal action or dispute between the Parties arising under this Amendment, the prevailing Party shall not be entitled to attorneys' fees. [SIGNATURE PAGE FOLLOWS] SIGNATURE PAGE TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT "TIC" THE IRVINE COMPANY LLC By: Its: By: Its: "AFFILIATE" PH FINANCE LLC By: Its: By: Its: "CITY" ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: Aaron C. Harp City Attorney CITY OF NEWPORT BEACH By: Diane B. Dixon Mayor A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ss COUNTY OF ) On 2016, before me, a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Signature of Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ss COUNTY OF ) On , 2016, before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Signature of Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ss COUNTY OF ) On , 2016, before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Signature of Notary Public Attachment B Redline Ordinance ORDINANCE NO. 2016 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT NO. DA2016-002 AMENDING THE ANNEXATION AND DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH, THE IRVINE COMPANY, AND IRVINE COMMUNITY DEVELOPMENT COMPANY CONCERNING THE NEWPORT COAST AND ADJACENT PROPERTIES (PA2016-165) WHEREAS, an application was filed by The Irvine Company (TIC), with respect to property commonly referred to as Newport Coast and Newport Ridge as legally described in the Annexation and Development Agreement Between the City of Newport Beach, California (City), and Irvine Company and Irvine Community Development Company Concerning the Newport Coast and Adjacent Properties (Agreement), which is attached hereto ^n`s incorporated by reference herein and was recorded in the Official Records of the County of Orange as No. 20010800494 on November 8, 2001; WHEREAS, in 2001, the City, TIC, and Irvine Community Development Company entered into the Agreement for the annexation and development of approximately 7,799 acres along Newport Coast (Property); WHEREAS, the Property was annexed into the City on January 1, 2002; WHEREAS, TIC requests to extend the term of the Agreement as specified in Section 10.1 of the Agreement from January 1, 2017 to January 1, 2032 (Amendment); WHEREAS, no land use changes, including changes to commercial and residential development capacity are proposed by City or TIC in this Amendment; WHEREAS, the Property includes the following General Plan Land Use Categories: Single -Unit Residential Detached (RS -D), Multiple Residential (RM), Multiple Residential Detached (RM -D), Neighborhood Commercial (CN), Visitor Serving Commercial (CV), Open Space (OS), Parks and Recreation (PR), Private Institutions (PI), and Public Facilities (PF); WHEREAS, the Property is located in the Newport Coast Planned Community (PC 52) and Newport Ridge Planned Community (PC 53) Zoning Districts; WHEREAS, the portion of the Property, located within the boundaries of the Newport Coast Local Coastal Program (LCP) and Newport Coast Planned Community (PC 52), is located within the coastal zone; Ordinance No. 2016 - Page 2 of WHEREAS, the portion of the Property located within the boundaries of the Newport Ridge Planned Community (PC 53) is not located within the coastal zone; WHEREAS, the Property is subject to the Cooperative Agreement between the County of Orange (County) and the City, dated October 9, 2001 (the Cooperative Agreement). Pursuant to the Cooperative Agreement, the County shall retain land use authority for the Property until: (1) the development of the Property is complete; or (2) the City agrees to assume municipal land use authority; WHEREAS, the Cooperative Agreement between the County and the City remains in full force and effect until all entitlement granted by the Development Agreement has been completed, or unless the conditions for expiration specified in Section 51302 of the Government Code are satisfied; WHEREAS, unless otherwise provided by the Agreement, the ordinances, rules, plans and policies of the City which govern permitted uses of land, the density of development, and the design, improvement and construction standards and specifications, applicable to development of the Property, shall be those ordinance rules, plans and policies in force at the time of execution of the Agreement; WHEREAS, the Agreement shall not prevent the City in subsequent actions applicable to the Property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the Property as set forth in the Agreement, nor shall the Agreement prevent the City from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations, and policies; WHEREAS, the Amendment will continue to allow the development of a residential community, containing a mix of housing types, supporting retail and active parklands, consistent with the land uses, densities and intensities of the Newport Coast Planned Community (PC 52) and Newport Ridge Planned Community (PC 53) Zoning Districts, Newport Coast LCP and City's General Plan; WHEREAS, the Amendment does not add any lots, units, building sites or structures to the Property and does not change the approved design or uses allowed by Newport Coast Planned Community (PC 52) and Newport Ridge Planned Community (PC 53) Zoning Districts, Newport Coast LCP and the City's General Plan; WHEREAS, the portion of the Property located within the coastal zone is governed by the previously certified and currently effective Newport Coast segment of the Orange County LCP Second Amendment; WHEREAS, because the Property is governed by the certified LCP, this Amendment is effective upon approval by the City Council and no further approval need Ordinance No. 2016 - Page 3 of be obtained from the California Coastal Commission under California Government Code Section 65869 or Newport Beach Municipal Code Section (NBMC) 15.45.090; WHEREAS, the proposed project is consistent with the goals and policies of the City's General Plan; WHEREAS, this Amendment is intended to be an amendment pursuant to California Government Code Section 65868 and NBMC Chapter 15.45. This Amendment has been considered and approved in the same manner as the Agreement with public hearings pursuant to California Government Code Section 65867 and NBMC Chapter 15.45; WHEREAS, this Amendment includes a public benefit consisting of a Public Benefit Fee in the sum of seventy-one thousand and one -hundred dollars ($71,100) per hotel unit that is converted into a residential dwelling unit and the sum of ten thousand dollars ($10,000) per hotel unit that is constructed; WHEREAS, this Amendment includes a public benefit consisting of a one (1) time renewal fee in the amount of five million dollars ($5,000,000) (Renewal Fee), which shall be due and payable to City upon the Effective Date of this Amendment; WHEREAS, this Renewal Fee shall be credited against the Public Benefit Fee paid by TIC to City; WHEREAS, a public hearing was held on September 270ctober 6, 2016, in the Council Chambers located at 100 Civic Center Drive, Newport Beach; a notice of time, place and purpose of the public hearing was given in accordance with the NBMC, and evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing; WHEREAS, the Planning Commission voted 6-0 to recommend approval of the requested Amendment with the added provision that the length of the extension be commensurate with the public benefit provided to the City by TIC; WHEREAS, on November 7, 2016, in the Council Chambers located at 100 Civic Center Drive, Newport Beach; a notice of time, place and purpose of the public hearing was given in accordance with the NBMC, and the City Council voted to continue the public hearing to November 22, 2016; WHEREAS, a public hearing was held on November 22, 2016, in the Council Chambers located at 100 Civic Center Drive, Newport Beach; a notice of time, place and purpose of the public hearing was given in accordance with the NBMC, and evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing.; Ordinance No. 2016 - Page 4 of NOW, THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council of the City of Newport Beach hereby approves Development Agreement No. DA2016-002, as set forth in Exhibit "A," which is attached hereto and incorporated herein by reference. Section 2: The recitals provided in this ordinance are true and correct and are incorporated into the operative part of this ordinance; Section 3: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional; Section 4: All significant environmental concerns for the proposed project have been addressed in the previously prepared environmental documents certified by the County and described in Exhibit "C" of the Agreement, which is attached hereto and incorporated by reference herein, and the City intends to use said documents for the Amendment, and the City Council further finds that there are no additional reasonable alternative or mitigation measures that should be considered in conjunction with this Amendment. Section 5: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 22nd day of November 2016, and adopted on the 29th day of November, 2016, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS Ordinance No. 2016 - Page 5 of DIANE B. DIXON, MAYOR ATTEST: LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE AARON C. HARP, CITY ATTORNEY Exhibit A: Amendment to Development Agreement Evicting Development Agreement (InGluding Exhibits Ordinance No. 2016 - Page 6 of I WA:I I M 11 iV_Iw Amendment to Development Agreement Ordinance No. 2016 - Page 7 of RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Attn: Citv Clerk (Space Above This Line Is for Recorder's Use Only) This Amendment is recorded at the request and for the benefit of the City of Newport Beach and is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. FIRST AMENDMENT TO ANNEXATION AND DEVELOPMENT AGREEMENT between THE CITY OF NEWPORT BEACH, THE IRVINE COMPANY, and IRVINE COMMUNITY DEVELOPMENT COMPANY CONCERNING THE NEWPORT COAST AND ADJACENT PROPERTIES FIRST AMENDMENT TO DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ("Amendment") is executed this day of , 2016, by and between: (1) the City of Newport Beach, a municipal corporation and charter city ("City"), (2) The Irvine Company, a Delaware limited liability company licensed to do business in California ("TIC"), and PH Finance, LLC, an affiliate of TIC ("Affiliate"). The City, TIC, and the Affiliate shall individually be referred to as "Party" and shall collectively be referred to as the "Parties." RF(-ITAI 4 1. In 2001, the City, TIC, and Irvine Community Development Company entered into the Annexation and Development Agreement Between The City of Newport Beach and The Irvine Company and Irvine Community Development Company Concerning the Newport Coast and Adjacent Properties ("Development Agreement") for the annexation and development of approximately 7,799 acres along Newport Coast ("Property"). The Property is described on Exhibit A to the Development Agreement and is depicted on Exhibit B to the Development Agreement. 2. The Property was annexed into the City on January 1, 2002. Unless otherwise amended, the Development Agreement will expire on January 1, 2017. 3. Since 2001, TIC and/or the Affiliate have developed a portion of the Property. However, other portions of the Property remain undeveloped, or developed to an extent that is less than permitted by the Property's entitlements, due to current market conditions. The Parties wish to ensure that certain development regulations contained in the Development Agreement that are in effect through January 1, 2017, continue to govern these portions of the Property. Therefore, the Parties wish to extend the term of the Development Agreement by an additional fifteen (15) years. 4. This Amendment is intended to be an amendment pursuant to California Government Code Section 65868 and Newport Beach Municipal Code ("NBMC") Chapter 15.45. This Amendment has been considered and approved in the same manner as the Development Agreement with public hearings pursuant to California Government Code Section 65867 and NBMC Chapter 15.45. 5. The Property is governed by the previously certified and currently effective Newport Coast segment of the Orange County Local Coastal Program ("LCP") Second Amendment. Because the Property is governed by the certified LCP, this Amendment is effective upon approval by the City Council and no further approval need be obtained from the California Coastal Commission. 6. The Property is subject to the Cooperative Agreement between the County of Orange ("County") and the City, dated October 9, 2001 ("Cooperative Agreement"). Pursuant to the Cooperative Agreement, the County shall retain land use authority for the Property until: (1) the development of the Property is complete; or (2) the City agrees to assume municipal land use authority. The Cooperative Agreement between the County and the City remains in full force and effect until all entitlement granted by the Development Agreement has been completed, or unless the conditions for expiration specified in Section 51302 of the Government Code are satisfied. 7. The City Council has evaluated the potential environmental impacts of this Amendment and has determined that any potential impacts have been analyzed pursuant to the environmental documents listed in Exhibit C to the Development Agreement, which were prepared in accordance with the California Environmental Quality Act ("CEQA"). There are no circumstances present that would require a new, subsequent or supplemental environmental impact report for this Amendment, under the provisions of CEQA. 8. On October 6, 2016, City's Planning Commission held a public hearing on this Amendment, made findings and determinations with respect to this Amendment, and recommended to the City Council that the City Council approve this Amendment. 9. On November 8 22, 2016, the City Council also held a public hearing on this Amendment and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, TIC, Affiliate, and members of the public and introduced the ordinance approving this Amendment. 10. On November 29, 2016, pursuant to the applicable state law (California Government Code sections 65864-65869.5) and local law (NBMC Chapter 15.45), the City Council adopted its Ordinance No. 2016-_ finding this Amendment to be consistent with the City of Newport Beach General Plan and approving this Amendment. AGREEMENT NOW, THEREFORE, City and TIC agree as follows: 1. Property. As set forth in Sections 2.2 and 2.3 of the Development Agreement, the Development Agreement has been extinguished as to properties that are no longer owned by TIC or a TIC affiliate. 2. Effective Date. This Amendment shall not become effective and no Party shall have any rights or obligations hereunder until the "Effective Date," which for purposes of this Amendment shall mean the thirty-first (31st) day following the approval or adoption of this Amendment by the City Council and signature by the City. 3. Term. Section 10.1 of the Development Agreement is amended to read as follows: "This Agreement shall continue in full force and effect until the earlier of the following: (i) January 1, 2032; or (ii) the date this Agreement is terminated pursuant to Section 7.3 of this Agreement." 4. Land Use Regulations. The rules, regulations, and official policies governing the permitted uses of land, density, design, and improvement of the remaining portions of the Property (the "Land Use Regulations") shall continue to be those defined in Section 1.1.9 of the Development Agreement. These Land Use Regulations shall not be changed during the Term of this Amendment except upon the written consent of the Parties. 5. Public Benefits. 5.1 Public Benefit Fee. As consideration for City's approval and performance of its obligations set forth in this Amendment, TIC shall pay to City a fee that shall be in addition to any other fee or charge to which the Property would otherwise be subject (herein, the "Public Benefit Fee") in the sum of seventy-one thousand and one -hundred dollars ($71,100) per hotel unit that is converted into a residential dwelling unit and the sum of ten thousand dollars ($10,000) per hotel unit that is constructed. The Public Benefit Fee shall be paid by TIC to City at the time of building permit issuance for the residential dwelling unit and/or hotel unit. The Public Benefit Fee shall increase beginning on January 1 st following the first anniversary of the Effective Date by the percentage increase in the CPI Index between the Effective Date and said January 1st date (the first "Adjustment Date") and thereafter the Public Benefit Fee shall increase on each subsequent January 1st during the Term of this Amendment (each, an "Adjustment Date") by the percentage increase in the CPI Index in the year prior to the applicable Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the Effective Date of this Amendment falls on July 1 and the most recently available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6 -month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date. 5.2 Renewal Fee. As further consideration for City's approval and performance of its obligations set forth in this Amendment, TIC shall pay to City a one (1) time renewal fee in the amount of five million dollars ($5,000,000) ("Renewal Fee"), which shall be due and payable to City upon the Effective Date of this Amendment. This Renewal Fee shall be credited against the Public Benefit Fee paid by TIC to City under Section 5.1 above. 5.3 Voluntary Payment of Fees. The City has not designated a specific project or purpose for the Public Benefit Fee or Renewal Fee. TIC and Affiliate acknowledge by their approval and execution of this Amendment that TIC is voluntarily agreeing to pay the Public Benefit Fee and Renewal Fee, that TIC's obligation to pay the Public Benefit Fee and Renewal Fee is an essential term of this Amendment and is not severable from City's obligations and TIC's and Affiliate's vested rights to be acquired hereunder, and that TIC and Affiliate expressly waive any constitutional, statutory, or common law right they might have in the absence of this Amendment to protest or challenge the payment of the Public Benefit Fee or Renewal Fee on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this Amendment for TIC's or Affiliate's default, if TIC shall fail to timely pay any portion of the Public Benefit Fee or Renewal Fee when due, City shall have the right to withhold issuance of any building permits, occupancy permits, or other development or building permits for the Property. 6. Future Amendments. TIC and the Affiliate may, with the approval of the City, separately amend the Development Agreement as to each entity's own parcel(s) located within the Property. 7. No Third Party Beneficiaries. The only parties to this Agreement are the City, TIC, and the Affiliate. This Amendment does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity. 8. Notice of Intention to Amend. In enacting this Amendment, the City has provided for public notice and hearing in the manner provided by California Government Code Section 65867. 9. Compliance with NBMC Chapter 15.45 and California Government Code Section 65867.5. NBMC Chapter 15.45 and California Government Code Section 65867.5 provides that a development agreement is a legislative act that shall be approved by ordinance and subject to referendum. A development agreement shall not be approved unless the City Council finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan. These requirements of NBMC Chapter 15.45 and California Government Code Section 65867.5 have been satisfied by the City's finding that this Amendment is consistent with the City's General Plan, and the City's approval of this Amendment by ordinance. 10. Compliance with NBMC Title 19 and California Government Code Section 66473.7. The area subject to the Amendment may include a future subdivision, and the City may, in its sole and absolute discretion, approve certain tentative maps for such subdivision. Any such subdivision will comply with all applicable provisions of NBMC Title 19 and the Subdivision Map Act including, but not limited to, California Government Code Section 65867.5 in that any tentative maps will be approved by the City in compliance with California Government Code Section 66473.7. 11. Section Headings. All section headings are inserted for convenience only and shall not affect construction or interpretation of this Agreement. 12.Authority to Execute. The persons executing this Amendment warrant and represent that they have the authority to execute this Amendment on behalf of the party for which they are executing this Amendment. They further warrant and represent that they have the authority to bind their respective party to the performance of its obligations under this Amendment. The City Manager or his/her designee has the authority to implement the terms of this Amendment and execute any documents in furtherance of the terms of this Amendment and the Development Agreement so long as they have been reviewed and approved as to form by the City Attorney. 13. Recordation. This Amendment and any amendment, modification, or cancellation to it shall be recorded in the Office of the County Recorder of the County of Orange, by the City of Newport Beach City Clerk in the period required by California Government Code section 65868.5 and NBMC Section 15.45.090. 14. Counterparts. This Amendment may be executed in two (2) or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one (1) and the same Amendment. 15. Indemnity. Indemnity Obligations of TIC. 15.1 Indemnity Arising From Acts or Omissions of TIC. Except to the extent caused by the intentional misconduct or gross active negligence of City or one (1) or more of City's officials, employees, agents, attorneys, and contractors (collectively, the "City's Affiliated Parties") , TIC shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to reasonable attorneys' fees and costs) (collectively, a "Claim") that may arise, directly or indirectly, from the acts, omissions, or operations of TIC or TIC's agents, affiliates, contractors, subcontractors, agents, or employees in the course of development of the project or any other activities of TIC relating to the Property or pursuant to this Amendment. City shall have the right to select and retain counsel to defend any Claim filed against City and/or any of City's Affiliated Parties, and TIC shall pay the cost for defense of any Claim. The indemnity provisions in this Section 15.1 shall commence on the date of the adopting ordinance and shall survive the termination of the Development Agreement. 15.2 Third Party Litigation. In addition to its indemnity obligations set forth in Section 15.1, TIC shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Amendment, the Development Agreement, any of the development regulations for the project (including without limitation any actions taken pursuant to CEQA with respect thereto), any subsequent development approval, or the approval of any permit granted pursuant to this Amendment. Said indemnity obligation shall include payment of reasonable attorney's fees, expert witness fees, and court costs. City shall promptly notify TIC of any such Claim and City shall cooperate with TIC in the defense of such Claim. City shall be entitled to retain separate counsel to represent City against the Claim and the City's defense costs for its separate counsel shall be included in TIC's indemnity obligation, provided that such counsel shall reasonably cooperate with TIC in an effort to minimize the total litigation expenses incurred by TIC. In the event either City or TIC recovers any attorney's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, TIC shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). The indemnity provisions in this Section 15.2 shall commence on the date of the adopting ordinance and shall survive the termination of the Development Agreement. 16. No Attorneys' Fees. In the event of any legal action or dispute between the Parties arising under this Amendment, the prevailing Party shall not be entitled to attorneys' fees. [SIGNATURE PAGE FOLLOWS] SIGNATURE PAGE TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT "TIC" THE IRVINE COMPANY LLC By: Its: By: Its: "AFFILIATE" PH FINANCE LLC By: Its: By: Its: "CITY" ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: Aaron C. Harp City Attorney CITY OF NEWPORT BEACH By: Diane B. Dixon Mayor A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ss COUNTY OF ) On 2016, before me, a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Signature of Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ss COUNTY OF ) On , 2016, before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Signature of Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ss COUNTY OF ) On , 2016, before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Signature of Notary Public