ORDINANCE 1603
AN ORDINANCE OF THE CITY OF BANNING, CALIFORNIA, ADDING A NEW CHAPTER 9.09 TO TITLE 9 (PUBLIC PEACE, MORALS AND WELFARE) OF
THE BANNING MUNICIPAL CODE TO PROVIDE FOR REGULATIONS
GOVERNING CAMPING AND RELATED ACTIVITIES WITHIN THE CITY OF
BANNING, AND MAKING A DETERMINATION OF EXEMPTION FROM THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT
The City Council of the City of Banning does hereby ordain as follows:
SECTION 1. Environmental Findings. The City Council has independently reviewed and considered the requirements of the California Environmental Quality Act (“CEQA”), and has determined that the Municipal Code amendments contained in Section 2 of this Ordinance are exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines because it can be seen with certainty that there is no possibility that these amendments may have significant effect on the environment.
SECTION 2. A new Chapter 9.09 is hereby added to Title 9 of the Banning Municipal Code to read as follows:
“Chapter 9.09 – CAMPING AND RELATED ACTIVITY
9.09.010 - Unlawful camping in public places.
A. Findings and purpose.
1. The streets, parks, public buildings and grounds, and other public areas in the city should be readily accessible and available to residents and the public at large. Public property within the city is not specifically designed for the purposes of camping and so does not have the facilities necessary to protect the property from overuse and unsanitary conditions potentially injurious to public health.
2. Public streets, sidewalks, and walkways are created and maintained for the primary purposes of enabling pedestrians and vehicles to safely and efficiently move about from place to place, facilitating deliveries of goods and services and providing all potential customers and visitors with convenient access to goods and services, as well as a place to recreate and engage in free public speech in shared civic space.
3. The use of public property for camping purposes interferes with the rights of others to use the areas for the purposes for which they were intended, such as transportation, municipal operations, recreation, and open space.
4. Camping activities may constitute a public health and safety hazard when conducted without the property security, sanitary facilities and precautions. The necessity to clean up, repair, or remediate public property that has been used for unlawful camping may result in substantial costs to the public.
5. Pedestrians, particularly elderly, disabled, and vision-impaired, are put at increased risk when they must see and navigate around individuals sitting or lying upon the public sidewalk.
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6. There is no specific site or sites that should be designated for camping because it is the experience of the city and other municipalities that sites where camping is continuous or camping populations are numerous become public health, environmental degradation, and policing problems.
7. Designated open space contains ecologically sensitive habitats, including many protected plant and wildlife species, as well as fresh water supplies. Except as provided for in this section, human presence in open space other than on designated trails can seriously damage or destroy these habitats as well as increase the risk of wildfire danger.
8. Certain public lands within the city’s geographical boundaries pose significant health and safety hazards to people who make shelter or stay overnight in these areas.
9. It is the obligation of the city to keep its public property and public rights-of-way clean and available for public use, and to protect the public health, safety, and access by city constituents.
10. The city is committed to protecting the life, health, and safety of its residents and all people within the city’s geographical boundaries.
11. The purpose of this section is to maintain public places within the city in a clean and accessible condition, to prevent the accumulation of trash and debris and to reduce the risk of both structural and brush fires.
12. This section shall not be interpreted to criminalize any person based on their status as a homeless individual. To that end, whenever an issue of interpretation arises, this section shall be interpreted in a manner consistent with the holding in Martin v.
City of Boise (9th Cir. 2019) 920 F.3d 584.
13. The city council is committed to protecting the rights of individuals who cannot obtain shelter and to treating their personal property with respect and consideration and therefore updates this code to conform to and address the impacts of the Ninth Circuit Court of Appeal’s decision in Martin v. City of Boise.
14. The city currently provides more than 50 shelter beds for people experiencing homelessness, which offer a place to sleep and supportive services, including job programs, housing support, treatment for mental health conditions or substance abuse, and security.
15. The city engages in significant outreach work to build relationships with people experiencing homelessness, using a person-centered, compassionate approach to provide services tailored to each person’s specific needs.
16. The city and the county provide housing stability support, eviction protection, transitional housing, and supportive and permanent housing solutions to assist people with ending their homelessness.
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B. Definitions. As used in this section:
1. “Camp” means to pitch or occupy camp facilities; or to use camp paraphernalia, for the purpose of occupancy, habitation, or sheltering for survival in an outdoor area, and in such a way as will facilitate sleeping or storage of personal belongings, carrying on cooking activities, taking measures to keep protected from the elements including heat and cold, or any of these activities in combination with one another or in combination with either sleeping or making preparations to sleep. The act of sleeping on its own does not constitute camping.
2. “Camp facilities” include, without limitation, tents, huts, lean-tos, vehicle camping outfits, unapproved shacks or temporary shelters, cook stoves or fire pits, however constructed.
3. “Camp paraphernalia” includes, without limitation, tents or tent-like structures, cots, hammocks, sleeping bags, bedrolls, blankets, personal cooking facilities, and similar equipment.
4. “Open space” means any parcel or area of land or water that is essentially unimproved and devoted to an open space use, and which is designated on the local open space plan as any of the following: (a) for the preservation of natural resources; (b) for the managed production of resources; (c) for outdoor recreation; (d) or public health and safety.
5. “Public place” means property owned, held, or leased by a public entity or agency, improved or unimproved, and includes, without limitation, open space, parks, plazas, parking lots, highways, streets, bridges, alleys, driveways, sidewalks, walkways, or other public rights-of-way.
6. “Prohibited area” means each of the following locations:
a. All city parks;
b. The area seventy-five feet from the centerline of any officially-designated recreational or multi-use trail that is open to the general public; c. Gilman Historic Ranch and its surrounding property, located at 1901 Wilson Street, Banning, CA 92220;
d. Open space; and
e. Public places located within the following zoning districts, as shown on the Official Zoning Map of the city, as the same may be amended from time-to-time by the city council:
i. Residential Single-Family: Ranch/ Agriculture (R/A), Ranch/ Agriculture Residential — Hillside (RAR-H), Rural Residential (RR), Rural Residential - Hillside (RR-H), Very Low Density Residential (VLDR), Low Density Residential (LDR), and Mobile Home Park (MHP) districts. 284
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ii. Residential Multifamily: Medium Density Residential (MDR), High Density Residential (HDR), and Very High-Density Residential (VHDR) districts. iii. Commercial: Downtown Commercial (DC), General Commercial (GC), Highway Serving Commercial (HSC), and Professional Office (PO) districts.
7. “Prohibited time” means, for each calendar day, the time beginning at 6:00 A.M. and concluding at 10:00 P.M.
8. “Store” means to put aside or accumulate for use when needed, to put for safekeeping, to place or leave in a location.
C. Camping in a public place.
1. Unlawful camping in prohibited area. It shall be unlawful and a public nuisance for any person to camp, occupy camp facilities, or use camp paraphernalia in, on, or under any public place in a prohibited area, as defined in subsection (B)(6) of this section, regardless of the time of day, except as otherwise provided in this chapter.
This subsection shall not apply when an individual lacks access to permanent or safe shelter, or is otherwise involuntarily homeless.
2. Unlawful camping during prohibited times in a public place. It shall be unlawful and a public nuisance for any person to camp, occupy camp facilities or use camp paraphernalia in or under any public place in the city during the prohibited time, as defined in subsection (B)(7) of this section, except as otherwise provide in this chapter.
D. Unlawful storage of personal property in a public place. It shall be unlawful and a public nuisance for any person to store personal property, including camp facilities and camp paraphernalia, in any public place, except as otherwise provided by this code, or except by permission of the property owner. Nothing herein shall be construed to allow storage where otherwise prohibited by this code.
E. Property removal. Designated city employees may remove personal property unlawfully stored or found on public places as outlined in subsection (D) of this section or found in an unlawful encampment as follows:
1. The location of any personal property including camp facilities and paraphernalia shall be noticed as follows:
“It is illegal to store personal property on a public place such as public open space, parks and parking lots. If this personal property is not removed within 72 hours of the date of this posting, THE PERSONAL PROPERTY SHALL BE DEEMED
INTENTIONALLY ABANDONED AND SUBJECT TO REMOVAL AND POSSIBLE DESTRUCTION.”
2. City personnel may remove any personal property unlawfully stored or remaining in a public place after the posting period has expired.
3. Personal property which has been clearly abandoned, poses an imminent threat to public health or safety, may result in pollutants entering storm drains or other discharge into water in violation of Section 13.24.090 of this code, is contraband, or 285
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which is evidence of a crime shall not be subject to the above notice requirements and shall be removed immediately by city personnel or police and stored or destroyed according to the provisions below.
F. Personal effects.
1. “Personal effects” for purposes of this section, means personal property consisting of the following items.
a. Medication, medical devices, eyeglasses, or other prescription lenses; b. Sleeping bag or bed roll that is sanitary and non-verminous; c. Tents in usable and reasonably good condition;
d. Clothes stored in a manner protecting them from the elements, which are not unsanitary, soiled, or verminous;
e. Non-perishable food items; and
f. Personal property with an estimated individual fair market value of at least fifty dollars.
2. At the time of removal of unlawfully stored or remaining personal effects, city personnel shall conspicuously post and date a notice either at the exact location from which the personal effects were removed or at another nearby location giving the following information.
a. A list of personal effects removed;
b. A telephone number for information on retrieving personal effects; c. An address where the personal effects are temporarily stored; and d. The length of time during which the personal effects may be claimed.
3. Following removal of unlawfully stored or remaining personal effects, city personnel shall do the following:
a. Maintain an inventory identifying the personal effects, where the personal effects were approximately located and the reasonable value of each item; b. Place the removed personal effects in containers labeled in a manner facilitating identification by city personnel and owner, which reasonably protects such property from damage or theft; and
c. Store removed personal effects in an area designated by the city for a period of ninety days.
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4. Personal property stored by the city, which is claimed within ninety days from removal, shall be released to the person claiming ownership provided the person identifies the property and the approximate location where the property was left.
5. Disposition of property.
a. Property that remains unclaimed after ninety days may be dedicated for public use or may be given to a local nonprofit agency for charitable use. b. All other unlawfully store or found personal property which remains unclaimed after ninety days is deemed intentionally abandoned and may be abated and destroyed.
9.09.020 - Sitting, lying, sleeping in public places.
A. Findings and purpose.
1. Public streets, sidewalks, and walkways are created and maintained for the primary purposes of enabling pedestrians and vehicles to safely and efficiently move about from place to place, facilitating deliveries of goods and services and providing all potential customers and visitors with convenient access to goods and services, as well as a place to recreate and engage in free public speech in shared civic space.
2. Except as provided for in this section, sitting or lying on public streets, sidewalks, or walkways interferes with the primary purposes of the public street, sidewalk, or walkway, threatens public safety, and damages the public welfare.
3. Pedestrians, particularly the elderly, disabled, and vision-impaired, are put at increased risk when they must see and navigate around individuals sitting or lying upon the public sidewalk.
4. In some circumstances, people sitting or lying on sidewalks deter many members of the public from frequenting those areas. This, in turn, contributes to an erosion of the essential economic viability of those areas. Business failures and relocations can cause vacant storefronts contributing to a spiral of deterioration and blight, which harms the public health, safety, and welfare.
5. There are numerous other places within the city where sitting can be accommodated without unduly interfering with the safe flow of pedestrian traffic, impairing commercial activity, threatening public safety, or harming the public welfare. These other places include city parks, numerous public benches and other seating facilities, plazas, portions of sidewalks not intensively used by pedestrians, common areas open to the public and private property with the permission of the property owner.
6. The city recognizes that there is a fundamental need to sleep and desires to accommodate that need while also satisfying the needs of the general public to travel freely and safely throughout the city.
7. The limited regulation of sitting or lying down on sidewalks is both reasonably necessary and appropriately balances the public interest and individual rights. 287
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8. Designated open space contains ecologically sensitive habitats, including many protected plant and wildlife species, as well as fresh water supplies. Except as provided for in this section, human presence in open space, other than on designated trails, can seriously damage or destroy these habitats as well as increase the risk of wildfire danger.
B. Definitions. As used in this section:
1. “Obstruct pedestrians or vehicular traffic” means to obstruct or impede passage by another person or a vehicle, or to require another person or a driver of a vehicle to take evasive action to avoid physical contact.
2. “Public place” means public property, including, without limitation, publicly owned parking lots and driveways, highways, streets, bridges, alleys, sidewalks, walkways, and city-owned areas generally accessible to the public.
C. Prohibited conduct.
1. No person shall obstruct pedestrian or vehicular traffic by sitting or lying in a public place or in doorways or entrances or exits to buildings.
2. No person shall be permitted to sleep in a public place between the hours of 6:00 A.M. to 10:00 P.M. daily.
3. No person shall be permitted to sleep in a public place between the hours of 10:00 P.M. to 6:00 A.M., unless there are no sleeping spaces practically available in any shelter or if there does not exist any viable alternative to sleeping in a public place.
4. No person shall be permitted to sleep in any open space, as defined in subsection (B)(4) of Section 9.09.010.
5. Except as otherwise permitted under Title 17 of this code, it is unlawful for any person to sleep between 6:00 A.M. and 10:00 P.M. in any vehicle parked in or upon any public place or in or upon any privately owned parking area used for parking of customers of any business enterprise without the written consent of the owner of such business enterprise.
D. Exceptions. The prohibitions set forth in subsection (C) of this section shall not apply to:
1. Persons operating or patronizing a commercial establishment conducted on the public sidewalk pursuant to an applicable, valid permit; or person participating in or attending a parade, festival, performance, rally, demonstration, meeting or similar event conducted in a public place;
2. Any conduct that is in conformity with the terms of any permit granted pursuant to this code; or
3. Persons patronizing dining establishments with seating areas in the public right-ofway, who have been permitted pursuant to this code.
E. Picketing or protesting. It is not the intent of this section to prohibit protesting, picketing, demonstrating, signature gathering, voter registration, leafleting, or any other lawful 288
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activity permitted under the laws of the United States of America, State of California, or by the National Labor Relations Act in connection with a labor dispute.
9.09.030 - Camping on private property.
A. Except as otherwise provided in this section, it shall be unlawful and a public nuisance for any person to camp, occupy camp facilities, or use camp paraphernalia in, on, or under any private property within the city or to start or maintain an open fire on private property in violation of the Fire Code.
B. Except as otherwise provided in this subsection, this section shall not apply to persons camping upon their own land or to persons camping with the written consent of the owner of the land; provided, that such written consent is in their possession at the time and is shown upon demand of any peace officer and is not otherwise prohibited by Title 17 of this code. Irrespective of any written consent provided by the owner of the land, no person shall camp, or permit to camp, on private property for a period of time exceeding seven consecutive days without an interruption of at least five consecutive non-camping days. For purposes of this section camping for any portion of a day shall count as a full camping day.
C. This section shall not apply to persons lawfully camping within campgrounds or trailer parks approved pursuant to Title 17 of this code nor shall it be construed to waive or preempt any requirement or authorization provided under Title 17 of this code.” SECTION 2. If any section, subsection, paragraph, clause or phrase of this Ordinance, or any part thereof, is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections or portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, paragraph, clause or phrase of this Ordinance, irrespective of any one or more sections, subsections, sudivisions, paragraphs, sentences, clauses or phrases subsequently declared invalid or unconstitutional.
SECTION 3. The City Clerk is directed to certify the passage and adoption of this Ordinance; cause it to be entered into the City of Banning’s book of original ordinances; make a note of the passage and adoption in the records of this meeting; and, within fifteen (15) days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law.
SECTION 4. This Ordinance will become effective on the thirty-first (31st) day following its passage and adoption.
PASSED, APPROVED AND ADOPTED this 23rd day of April 2024.
Alberto Sanchez, Mayor
City of Banning
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ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:
Serita Young, City Attorney
Richards, Watson & Gershon
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CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that Ordinance 1603 was duly introduced at a regular meeting of the City Council of the City of Banning, held on the 9th day of April 2024, and was duly adopted at a regular meeting of said City Council on the 23rd day of April 2024, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
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292
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Lincoln Bogard, Administrative Services Director Lincoln Bogard, Administrative Services Director
MEETING DATE: April 23, 2024
SUBJECT: Consideration of Resolution 2024-57, Authorizing the Closure and Transfer of Fund 690 - Refuse Fund to Fund 001 - General Fund and to Classify $3,825,000 as Unearned Revenue that will be Amortized into Revenue Evenly Over the Next 17 Years, and Directing Staff to Use a One-Time Annual SB 939 Support Fee to Assist in Funding the City's Solid Waste Program Coordinator Position and Related Activities RECOMMENDATION:
Adopt Resolution 2024-57.
BACKGROUND:
During the April 27, 2021 City Council Meeting, the Council adopted Resolution 2021-27 to enter into a new twenty (20) year agreement with Waste Management to perform solid waste collection services and to take over the billing and collection functions that had previously been performed by the City of Banning Utility Billing group in the Department of Finance. The term of the agreement with Waste Management began on July 1, 2021, and will expire on June 30, 2041. As a part of the agreement, Waste Management provided a one-time lump sum Franchise Fee payment of $4.5 million. That onetime Franchise Fee is refundable within 180 days if the agreement is canceled on a pro-rata basis. Due to that, the City is allowed to claim only $225,000 in revenue per year for the 20-year term of the contract. Until the revenue is recognized, the amount is required to be recorded as Unearned Revenue. Waste Management also agreed to the payment of a $300,000 Annual AB 939 Support Fee to the City to cover City costs associated with that legislation.
Due to the fact that the City no longer performs any functions that would allow this operation to continue as an enterprise fund (collection, billing, and collections) and the fund does not meet the criteria for classification as any other type of fund, it must be moved within General Fund operations. That is where franchise fees are normally accounted.
JUSTIFICATION:
Staff brought an item to Council on March 12, 2024, to discuss the closure of Fund 690 - Refuse Fund and the transfer of its accounts to Fund 001 - General Fund and the classification of the One Time Franchise Fee of $4.5 million as either Assigned or Committed Fund Balance. Council direction was to make the $4.5 million an Assigned Fund Balance. Upon the realization that the $4.5 million is refundable on a pro-rata basis, staff determined that the monies do not qualify for classification as fund balance of any type and must be classified as Unearned Revenue until the revenue is earned ($225,000 per year for 20-year term).
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Staff is proposing this resolution to approve closing Fund 690 - Refuse Fund and transferring ongoing accounting and budget to Fund 001 - General Fund and to classify the $4.5 million One Time Franchise Fee as an Unearned Revenue (liability account), which will be amortized to Revenue in an annual amount of $225,000 per year. That means that as of June 30, 2024, the Unearned Revenue will be $3,825,000 and seventeen (17) years will be remaining on the contract and amortization period.
Therefore, $450,000 of the $.5 million is being classified into Unassigned Fund Balance and $225,000 is being recorded as Revenue in FY 2023-24.
This resolution also includes the requirement that the $300,000 Annual SB 939 Support Fee be dedicated to assisting in the funding of the City's Solid Waste Program Coordinator position and related activities such as compliance monitoring through administrative and field audits; education and outreach programs; program tracking software and account maintenance; consultant support services; analysis and studies; planning and monitoring of legislation; and other related functions. These efforts and the General Fund Transfer to Streets for the annual Maintenance of Effort (MOE) are also supported by revenues collected from the franchise fee payments.
FISCAL IMPACT:
There is no overall fiscal impact to the City. However, this transfer of refuse fund operations to the General Fund will increase the General Fund cash and Unassigned Fund Balance. It will also have a one-time multimillion dollar Net Transfer In that will increase the General Fund Net Income for this fiscal year (FY 2023-24).
ALTERNATIVES:
1. Adopt Resolution 2024-57, as presented.
2. Adopt Resolution 2024-57, with modifications.
3. Do not adopt Resolution 2024-57 and provide direction to staff.
ATTACHMENTS:
1. Resolution 2024-57, Transfer Refuse Fund Balance.docx 294
Resolution 2024-57
RESOLUTION 2024-57
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, AUTHORIZING THE CLOSURE AND TRANSFER OF FUND 690 – REFUSE FUND TO FUND 001 – GENERAL FUND AND TO CLASSIFY $3,825,000 AS UNEARNED REVENUE THAT WILL BE AMORTIZED INTO REVENUE EVENLY OVER THE NEXT 17 YEARS, AND DIRECTING STAFF TO USE A ONE-TIME ANNUAL SB 939 SUPPORT FEE TO ASSIST IN FUNDING THE CITY’S SOLID WASTE PROGRAM COORDINATOR POSITION AND
RELATED ACTIVITIES
WHEREAS, on April 27, 2021, the City Council adopted Resolution 2021-27, approving that certain Collection Services Agreement for the Provision of Residential and Commercial Garbage, Recyclable Materials and Organic Waste Collection, Transportation, Recycling, and Disposal Services (“Franchise Agreement”) with USA Waste of California, Inc., dba Waste Management of the Inland Empire (“Waste Management”) for Waste Management to perform solid waste collection services and providing for Waste Management to take over the solid waste billing and collection functions that had previously been performed by the City of Banning Utility Billing group in the Department of Finance; and
WHEREAS, the term of the Franchise Agreement began on July 1, 2021, and will expire on June 30, 2041. The terms of the Franchise Agreement require that Waste Management provide a one-time lump sum franchise fee payment of $4.5 million to the City as well as the payment of a $300,000 Annual AB 939 Support Fee to the City to cover City costs associated with that legislation; and
WHEREAS, due to the fact that the City no longer performs any functions that would allow this operation to continue as an enterprise fund (collection, billing, and collections) and the fund does not meet the criteria for classification as any other type of fund, it must be moved within General Fund operations; and
WHEREAS, on March 12, 2024, the City Council, by minute order, directed City staff to close Fund 690 - Refuse Fund and transfer of its accounts to Fund 001 - General Fund, and classify the one-time franchise fee of $4.5 million as an Assigned Fund Balance; and WHEREAS, subsequent to the City Council’s action on March 12, 2024, staff determined that the one-time franchise fee of $4.5 million is refundable on a pro-rata basis in the event that the Franchise Agreement is canceled and, as a result, it would be inappropriate to classify the fee as an Assigned Fund Balance, and staff is recommending that the fee be classified as Unearned Revenue until earned.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council approves the closure of Fund 690 - Refuse Fund and the transfer of ongoing accounting to Fund 001 - General Fund, and the classification of the $4.5 million onetime franchise fee as Unearned Revenue, which will be amortized to Revenue in an annual amount of $225,000 per year, which means that as of June 30, 2024, the Unearned Revenue Balance will be $3,825,000 and seventeen (17) years will be remaining on the Franchise Agreement and amortization period and $450,000 will be recognized as Unassigned Fund Balance and $225,000 as revenue in FY 2023-24.
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SECTION 2. The City Council directs staff to use the $300,000 Annual SB 939 Support Fee to assist in the funding of the City's Solid Waste Program Coordinator position and related activities such as compliance monitoring through administrative and field audits, education and outreach programs, program tracking software and account maintenance, consultant support services, analysis and studies, planning and monitoring of legislation, and other related functions, understanding these efforts and the General Fund Transfer to Streets for the annual Maintenance of Effort (MOE) are also supported by revenues collected from the franchise fee payments.
SECTION 3. The City Council authorizes the City Manager, or designee, to make necessary budget adjustments, appropriations, and transfers related to this resolution.
SECTION 4. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions.
PASSED, APPROVED AND ADOPTED this 23rd day of April 2024.
Alberto Sanchez, Mayor
City of Banning
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:
Serita R. Young, City Attorney
Richards, Watson & Gershon
296
Resolution 2024-57
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-57, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 23rd day of April 2024 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
297
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Art Vela, Public Works Director
MEETING DATE: April 23, 2024
SUBJECT: Consideration of Resolution 2023-59, Approving, and Authorizing the City Manager to Execute, and Agreement for Purchase and Sale and Escrow Instructions between the City of Banning and Coast to Coast Enterprises, Inc. for the Purchase of Real Property Located at 786 John Street (APN 541-232-013)
RECOMMENDATION:
Adopt Resolution 2024-59.
BACKGROUND:
Hargrave Street is an existing north/south arterial road that crosses under the elevated I-10 and crosses the Union Pacific Railroad (UPRR) tracks at-grade. The UPRR trains and truck traffic hauling goods from the ports through the Banning Pass area have increased and vehicle wait time at the crossing is a growing concern. Approximately 34 trains pass through the crossing every 24 hours. New passenger rail routes between Los Angeles and the Coachella Valley will increase that number, with a higher surge during events like the world-renowned Coachella Valley Music Festival. With each train crossing, traffic stops for several minutes, backs up into the local neighborhood and stacks back from the crossing onto the off ramps and at times back onto the I-10.
The City has identified a need to mitigate the impacts of the at-grade crossing by constructing a grade separation similar to the one built at Sunset Avenue. The City was recently awarded grant funds to move the environmental and design phases forward.
During preliminary planning of the project, staff recognized that there will likely be the need to acquire properties to accommodate the grade separation project. Real property located at 786 John Street (APN 541-232-013) is a vacant lot and available for purchase. This lot, which is the closest of all lots to the atgrade crossing would be significantly impacted by the grade separation project and would likely have to be acquired by the City. It is staff's recommendation to purchase the property now as it is vacant and available.
City staff had an appraisal conducted on the property, resulting in a fee simple estate value estimate of $45,000.
The owner has agreed to sell the property to the City for a sale price of $45,000.
JUSTIFICATION:
The purchase of the real property located at 786 John Street (APN 541-232-013), which is currently vacant and for sale, will accommodate the future Hargrave Street Grade Separation project. 298
FISCAL IMPACT:
The owner of the real property located at 786 John Street (APN 541-232-013) has agreed to sell the property to the City for $45,000. The purchase will be funded by Fund 420 (Traffic Control Facility Fund), Account No. 420-4900-431.90-10. The Fund has a current balance of $4,096,318.85.
ALTERNATIVES:
1. Adopt Resolution 2024-59, as recommended.
2. Adopt Resolution 2024-59, with modifications.
3. Do not adopt Resolution 2024-59 and provide additional direction to staff. The acquisition of the real property located at 786 John Street will be required by the City in the future to accommodate the Hargrave Street Grade Separation project.
ATTACHMENTS:
1. Resolution 2024-59, 786 John Street Acquisition.docx
2. Exhibit A - Purchase and Sale Agreement (786 John St.).docx
3. 786 John Street Appraisal.pdf
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Resolution 2024-59
RESOLUTION 2024-59
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,
APPROVING, AND AUTHORIZING THE CITY MANAGER TO EXECUTE, AN AGREEMENT
FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS BETWEEN THE CITY OF BANNING AND COAST TO COAST ENTERPRISES, INC. FOR THE PURCHASE OF REAL PROPERTY LOCATED AT 786 JOHN STREET (APN 541-232-013)
WHEREAS, Hargrave Street is an existing north/south arterial road that crosses under the elevated I-10 and crosses the Union Pacific Railroad (UPRR) tracks at-grade. The City of Banning plans to construct a new grade separation project (“Project”) to mitigate the impacts related to traffic delays caused by trains; and
WHEREAS, during preliminary planning of the Project, staff recognized that there will likely be the need to acquire properties to accommodate the Project. Real property located at 786 John Street (APN 541-232-013) (“Lot”) is a vacant lot and available for purchase. The Lot is the closest of all lots to the at-grade crossing and it would be significantly impacted by the Project and would likely have to be acquired by the City; and
WHEREAS, the property owner of the Lot has agreed to sell the property to the City for the appraised value of $45,000; and
WHEREAS, the purchase will be funded by Fund 420 (Traffic Control Facility Fund), Account No. 420-4900-431.90-10, which has a balance of $4,096,318.85.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council approves, and authorizes the City Manager to execute on its behalf, the Agreement for Purchase and Sale and Escrow Instructions between the City of Banning and Coast to Coast Enterprises, Inc., attached hereto as Exhibit A, for the purchase of real property located at 786 John Street (APN 541-232-013).
SECTION 2. The City Council authorizes the City Manager, or designee, to make necessary budget adjustments, appropriations, and transfers related to this resolution.
SECTION 3. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions.
PASSED, APPROVED AND ADOPTED this 23rd day of April 2024.
Alberto Sanchez, Mayor
City of Banning
300
Resolution 2024-59
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:
Serita R. Young, City Attorney
Richards, Watson & Gershon
301
Resolution 2024-59
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-59, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 23rd day of April 2024 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
302
Resolution 2024-59
Exhibit A
Agreement for Purchase and Sale and Escrow Instructions 303
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AGREEMENT FOR PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS (this “Agreement”) is dated as of ___________, 2024, and is entered into by and between the CITY OF BANNING (“Buyer”), and COAST TO COAST ENTERPRISES, INC., a California corporation (dba “ELITE MORTGAGE & FINANCIAL SERVICES”) (“Seller”).
This Agreement is to be executed and delivered by the Seller to the Buyer, then upon the approval and execution of this Agreement by Buyer, Buyer shall promptly deliver a copy of this executed Agreement to Seller.
RECITALS
A. Seller is the owner of the land described on Exhibit “A”, and the improvements and fixtures thereon, if any (collectively, the “Property”). Seller took title to the Property using its fictitious business name of “Elite Mortgage & Financial Services.” The Property has an address of 786 John Street, Banning, California and has an Assessor’s Parcel Number (“APN”) of 541-232-013.
B. Buyer desires to purchase the Property from Seller to facilitate the Buyer’s Hargrave Street Grade Separation Project (and mitigate forecast increases in impacts of an atgrade railroad crossing), and Seller desires to sell the Property to Buyer.
NOW, THEREFORE, in consideration of the Independent Consideration set forth in Section 1.2.2 below, and for other consideration, the sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as follows:
1. SALE AND PURCHASE PRICE.
1.1 Sale and Purchase. Seller agrees to sell the Property to Buyer and Buyer agrees to purchase the Property upon the terms and conditions hereafter set forth.
1.2 Purchase Price; Consideration for Agreement.
1.2.1 The purchase price (“Purchase Price”) for the Property shall be Forty-Five Thousand and No/100 Dollars ($45,000.00).
1.2.2 Notwithstanding anything in this Agreement to the contrary, upon execution of this Agreement by Buyer, Ten and No/100 Dollars ($10.00) shall be delivered by Buyer to Escrow Agent for delivery to Seller as non-refundable independent contract consideration (the “Independent Consideration”), which is in addition to the Purchase Price, and which amount has been bargained for and agreed to as consideration for Seller’s execution and delivery of this Agreement and for the rights and privileges granted to Buyer herein, including, without limitation, any and all rights granted to Buyer to terminate this Agreement during certain periods hereunder. If Buyer elects to terminate this Agreement for any reason other than Seller’s default, Seller shall retain the Independent Consideration. The Independent Consideration shall not be applicable towards the Purchase Price.
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2. TITLE.
2.1 General. Title to the Property shall be conveyed by a grant deed in the form attached hereto as Exhibit “B” and shall be evidenced by a CLTA Standard Coverage Form of Owner’s Policy of Title Insurance (or an ALTA Extended Coverage Form Policy, if Buyer elects such coverage) (“Title Policy”), and the cost of the Title Policy shall be borne by Seller as described in Section 4.8 below. The Title Policy shall be issued by First American Title Company, 3400 Central Avenue, Suite 100, Riverside, CA 92506 (“Title Company”), with liability in the full amount of the Purchase Price, insuring title to the Property as vested in Buyer, free and clear of all liens and encumbrances and other matters affecting title to the Property (including liens for property taxes as Buyer is exempt from property taxes), except the lien for assessments not yet due, and title exceptions which Buyer has approved in writing (which shall constitute “Approved Title Exceptions”).
2.1.1 Upon the execution hereof, Seller shall promptly deliver to Buyer, by email to [email protected] and [email protected], a Preliminary Report for the Property (with hyperlinks to the title exception documents) issued by the Title Company.
Buyer shall have thirty (30) days from receipt of the Preliminary Report to review the Preliminary report and exceptions, and to approve or disapprove the matters in the Preliminary Report (but Buyer shall also have the right to do an ALTA survey based on the preliminary report, during the Inspection Period under Section 3.1 below and may disapprove any survey matters by written notice under Section 3.1). If Buyer disapproves any matter affecting title, and Seller does not commit in writing to remove the pronlematic matter/exception, then Buyer may terminate this Agreement by written notice to Seller.
2.1.2 Seller agrees to reasonably cooperate with the Title Company in providing such information and completing, executing and returning such Title Company forms and statements as the Title Company typically requires in order to issue an owner’s title insurance policy to Buyer.
2.2 Acts After Date of Agreement. During the period from the date of this Agreement through the Close of Escrow, Seller shall not record or permit to be recorded any document or instrument relating to the Property or physically alter the Property or permit or cause to be altered without the prior written consent of the Buyer, which consent may be withheld in Buyer’s sole and absolute discretion.
2.3 Possession; Removal of Personal Property. Possession of the Property shall be delivered to Buyer upon the Close of Escrow. Seller shall remove all personal property (if any) prior to the Close of Escrow. Buyer shall have no obligations to Seller with respect to any personal property not removed, and Seller shall defend, indemnify, and hold Buyer harmless from all claims, liabilities, losses, damages, costs, and expenses incurred or suffered by Buyer in connection with or relating directly or indirectly to Buyer’s retention, destruction, or disposal of any such personal property (and the foregoing shall survive the Close of Escrow). 305
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3. LIMITED REPRESENTATIONS BY SELLER (“AS IS” SALE);
INSPECTIONS.
3.1 Limited Representations by Seller. Buyer acknowledges that except as provided in Section 16 below, Seller is making no representations or warranties about the Property; provided, however, that Buyer does not waive Seller’s obligations under applicable law to promptly disclose to Buyer all material facts known to Seller about the Property.
3.2 Inspection Period. Buyer may, until the date that is ninety (90) days after the date of this Agreement (“Inspection Period”), conduct, at Buyer’s sole expense, such inspections and testing of the Property, including any improvements thereon, soils and ground water, as Buyer may desire or deem appropriate, in Buyer’s sole discretion, to determine the suitability of the Property for Buyer’s intended use, and may obtain an ALTA survey of the Property if desired by Buyer. In conducting such inspections and testing, the Buyer shall endeavor to minimize damage to the Property, and any improvements thereon, and shall, in the event escrow fails to close, return the Property, including the improvements thereon, if any, to its condition prior to Buyer’s inspections and testing. Seller hereby grants to Buyer and its authorized employees, representatives, agents, and contractors, permission and a license to enter upon the Property at all reasonable times prior to the end of the Inspection Period for the purpose of conducting such inspections and testing. In the event the Property is occupied by any person(s) other than Seller, Seller shall make arrangements with such person(s) to ensure access by Buyer and its authorized employees, representatives, agents and contractors in order to conduct the inspections and testing pursuant to this section. Buyer shall indemnify, protect, defend (with legal counsel reasonably acceptable to Seller), and hold Seller harmless from and against any and all claims, liabilities, losses, damages, costs and expenses arising from, related to or caused by, Buyer’s entry upon the Property or the performance of any inspection or test conducted by or at the request of Buyer or its contractors or agents (but not the results thereof).
3.2.1 In the event Buyer determines the Property is not suitable, then Buyer may terminate this Agreement by written notice to Seller given prior to the end of the Inspection Period.
4. ESCROW.
4.1 Escrow Holder. The escrow shall be opened with First American Title Company (“Escrow Holder”), within five (5) business days after the execution of this Agreement by Buyer and Seller depositing an executed copy or executed counterparts of this Agreement with the Escrow Holder. This document shall be considered as the initial escrow instructions between the parties, with such further instructions as the Escrow Holder requires in order to clarify the duties and responsibilities of the Escrow Holder.
4.2 Close of Escrow. For the purposes of this Agreement, “Close of Escrow” shall be the date on which a grant deed for the Property in favor of Buyer is recorded in the Official Records of the Riverside County Recorder’s Office. Provided all of Seller’s and Buyer’s obligations to be performed on or before Close of Escrow have been performed and all the conditions to the Close of Escrow set forth in this Agreement have been satisfied, escrow 306
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shall close on or before ten (10) business days after the end of the Inspection Period (but may close earlier if so desired by Buyer and Seller). All risk of loss or damage with respect to the Property shall pass from Seller to Buyer at the Close of Escrow. Possession of the Property shall be delivered to Buyer upon the Close of Escrow.
4.3 Seller Required to Deliver. Before the Close of Escrow, Seller shall deposit into escrow the following:
4.3.1 A grant deed conveying the Property to Buyer, in the form attached hereto as Exhibit “B”, duly executed by Seller and acknowledged (the “Grant Deed”);
4.3.2 A California 593 certificate and federal non-foreign affidavit (with respect to Seller); and
4.3.3 Any other documents reasonably required by the Escrow Holder or the Title Company to be deposited by Buyer to carry out this escrow.
4.4 Buyer Required to Deliver. On or before the Close of Escrow, Buyer shall deposit into escrow the following (properly executed and acknowledged, if applicable):
4.4.1 An executed and acknowledged “Certificate of Acceptance” in the form attached to the Grant Deed (attached hereto as Exhibit ”B”);
4.4.2 The Purchase Price; and
4.4.3 Any other documents reasonably required by the Escrow Holder to be deposited by Buyer to carry out this escrow.
4.5 Conditions to the Close of Escrow. Escrow shall not close unless and until both parties have deposited with the Escrow Holder all sums and documents required to be deposited as provided in this Agreement. Additionally, Buyer’s obligation to proceed with the transaction contemplated by this Agreement is subject to the satisfaction of all of the following conditions precedent, which are for Buyer’s benefit and may be waived only by Buyer:
4.5.1 Seller shall have performed all agreements to be performed by Seller hereunder.
4.5.2 Title Company shall have issued or shall have committed to issue the Title Policy to Buyer, for the amount of the Purchase Price, showing fee title to the Property to be vested in Buyer subject only to the Approved Title Exceptions.
If any of the conditions to Close of Escrow are not timely satisfied for a reason other than a default of Buyer or Seller under this Agreement, and this Agreement is terminated, then upon termination of this Agreement, the Escrow Holder shall promptly return to Buyer all funds (and all interest accrued thereon) and documents deposited by Buyer in escrow and to return to Seller all funds and documents deposited by Seller in escrow and that are held by the Escrow Holder on the date of the termination (less, in the case of the party otherwise entitled to 307
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such funds, however, the amount of any cancellation charges required to be paid by such party under Section 4.10 below).
4.6 Recordation of Grant Deed; Delivery of Funds and Possession. Upon receipt of the funds and instruments described in this Section 4, the Escrow Holder shall cause the Grant Deed to be recorded in the office of the County Recorder of Riverside County, California. Thereafter, the Escrow Holder shall deliver the proceeds of this escrow (less appropriate charges as shown on a preliminary Settlement Statement executed by Buyer and Seller) to Seller, and Seller shall deliver possession of the Property to Buyer free and clear of all occupants.
4.7 Prorations. Property taxes shall not be prorated as Buyer is exempt from property taxes; Seller shall pay all property taxes for the six month property tax billing period in which the Close of Escrow occurs, and then may apply for a refund of the property taxes that are allocable to the period after the Close of Escrow, and Buyer shall reasonably cooperate therewith. All assessments shall be prorated between Buyer and Seller as of the Close of Escrow based on the latest available tax information. All prorations shall be determined on the basis of a 360-day year.
4.8 Costs. Seller shall pay the premium for the Title Policy, half of all escrow fees and charges, all documentary transfer taxes (if any) and all recording costs (if any); Buyer shall pay for the cost of extended title coverage and any survey, half of the costs of the escrow. (Transaction should be exempt from transfer taxes and recording fees because Buyer is a municipal corporation/public entity.)
4.9 Brokers. Buyer and Seller represent to one another that no broker or finder has been engaged by it in connection with the transaction contemplated by this Agreement, or to its knowledge is in any way connected with such transaction. Each party covenants and agrees that any broker fee or commission, which may be due or payable in connection with the closing of the transaction contemplated by this Agreement through its dealings with that party, shall be borne solely by that party. Each party agrees to defend, indemnify, and hold harmless the other party and its respective employees, agents, representatives, council members, attorneys, successors, and assigns, from and against all claims of any agent, broker, finder, or other similar party arising from or in connection with its activities relating to the sale of the Property to Buyer.
4.10 Escrow Cancellation Charges. In the event that this escrow shall fail to close by reason of the default of either party hereunder, the defaulting party shall be liable for all escrow and title cancellation charges. In the event that the escrow shall fail to close for any other reason, each party shall pay one-half (l/2) of all escrow and title cancellation charges.
5. ATTORNEYS’ FEES. In any action between Buyer and Seller seeking enforcement of any of the terms and provisions of this Agreement, the prevailing party in such action shall be awarded, in addition to damages, injunctive, or other relief, its reasonable costs and expenses, not limited to taxable costs, reasonable attorneys’ fees, and reasonable fees of expert witnesses.
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6. NOTICES. All notices, requests, demands and other communication given or required to be given hereunder shall be in writing and sent by first class United States registered or certified mail, postage prepaid, return receipt requested, or sent by a nationally recognized courier service such as Federal Express, duly addressed to the parties as follows:
To Seller: Coast to Coast Enterprises, Inc.
(Elite Mortgage & Financial Services)
215 W. Fallbrook Avenue, #102
Fresno, California 93711
To Buyer: City of Banning
99 E. Ramsey Street
Banning, California 92220
Attn: City Manager
Delivery of any notice or other communication hereunder shall be deemed made on the date indicated in the return receipt or courier’s records as the date of delivery or as the date of first attempted delivery, if sent by mail or courier service. Any party may change its address for purposes of this Section by giving notice to the other party as herein provided.
7. ASSIGNMENT. Neither this Agreement nor any interest herein may be assigned by either party without the prior written consent of the other party.
8. ENTIRE AGREEMENT. This Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein, and all prior or contemporaneous agreements or understandings, oral or written, pertaining to any such matters are merged herein and shall not be effective for any purpose. No provision of this Agreement may be amended, supplemented or in any way modified except by an agreement in writing signed by the parties hereto or their respective successors in interest and expressly stating that it is an amendment of this Agreement.
9. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument.
10. EMAIL DELIVERY. This executed Agreement (and executed counterparts of this Agreement), may be delivered by email.
11. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
12. THIRD PARTIES. Nothing contained in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement.
13. SEVERABILITY. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or 309
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unenforceable provision had never been contained herein, unless such invalidity, illegality or unenforceability materially affects the economic terms of the transactions contemplated by this Agreement or the ability of either party to perform its obligations under this Agreement. In such case, either party may terminate this Agreement and the escrow upon written notice to the other party given no later than ten (10) business days after the party giving such notice becomes aware of such invalidity, illegality, or unenforceability. In the event of such termination, all funds deposited with the Escrow Holder by Buyer and any interest accrued thereon shall be returned to Buyer.
14. ADDITIONAL DOCUMENTS. Each party hereto agrees to perform any further acts and to execute, acknowledge, and deliver any further documents that may be reasonably necessary to carry out the provisions of this Agreement.
15. AUTHORITY OF CITY MANAGER. The City Manager of Buyer may give any and all notices, consents, and terminations hereunder on behalf of Buyer provided they are in writing.
16. LIMITED HAZMAT REPRESENTATION BY SELLER. Seller hereby represents and warrants that Seller has not received any notices regarding hazardous materials or substances on the Property, and to the knowledge of Seller, the Property does not contain any hazardous materials or substances. The foregoing representation and warranty shall survive the Close of Escrow.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
SELLER:
COAST TO COAST ENTERPRISES, INC.
(AKA/DBA “ELITE MORTGAGE &
FINANCIAL SERVICES”)
By: _____________________
Print Name: ________________
Title: ______________________
BUYER:
CITY OF BANNING
By:
Doug Schulze
City Manager
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Attest:
Caroline Patton, Administrative City Clerk
APPROVED AS TO FORM:
Serita Young, City Attorney
311
Exhibit “A”
11303-0001\2933845v2.doc
EXHIBIT “A”
LEGAL DESCRIPTION OF THE LAND
Lot 13 of Ellis subdivision, as shown by map on file in book 16, page 75 of maps, Records of Riverside County.
APN: 541-232-013
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EXHIBIT “B”
FORM OF GRANT DEED
(Attached.)
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RECORDING REQUESTED BY,
AND WHEN RECORDED RETURN TO:
City of Banning
99 E. Ramsey Street
Banning, California 92220
Attention: City Clerk
APN: 541-232-013
[SPACE ABOVE FOR RECORDER’S USE ONLY]
THE UNDERSIGNED GRANTOR DECLARES AS FOLLOWS:
This Grant Deed is exempt from Recording Fees pursuant to California Government Code Section 27383.
Documentary Transfer Tax is $0 (exempt; conveyance to a public entity).
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, COAST TO COAST ENTERPRISES, INC., a California corporation (AKA “ELITE MORTGAGE & FINANCE SERVICES”, which is the fictitious business name of the grantor), hereby grants to the CITY OF BANNING (“Grantee”), the land located in the City of Banning, County of Riverside, State of California, more particularly described on Exhibit “A” attached hereto and incorporated herein by reference and all improvements thereon (collectively, the “Property”).
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the date set forth below.
Dated: , 2024
GRANTOR:
COAST TO COAST ENTERPRISES, INC.
(DBA/AKA “ELITE MORTGAGE &
FINANCIAL SERVICES”)
By: _____________________
Print Name: ________________
Title: ______________________
314
11303-0001\2933845v2.doc
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 the document.
STATE OF CALIFORNIA
COUNTY OF ________________
On ________________ ____, 20____ before me,____________________________, 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.
Signature: ______________________
(affix seal in above space)
315
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Exhibit “A”
to Grant Deed
LEGAL DESCRIPTION
Lot 13 of Ellis subdivision, as shown by map on file in book 16, page 75 of maps, Records of Riverside County.
APN: 541-232-013
316
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CERTIFICATE OF ACCEPTANCE
(California Government Code Section 27281)
This is to certify that the interest in real property conveyed by that certain Grant Deed dated __________, 2024, from COAST TO COAST ENTERPRISES, INC. (AKA/DBA “ELITE MORTGAGE & FINANCIAL SERVICES”), to the City of Banning, a political corporation, is hereby accepted by the undersigned officer on behalf of the City Council of the City of Banning pursuant to the authority conferred by resolution of the City Council of the City of Banning adopted on ____________ ___, 2024, and the grantee consents to recordation thereof by its duly authorized officer.
Dated: ______________, 2024
_________________________________
Doug Schulze, City Manager
State of California )
County of ________________ )
On _________________________, before me, ,
(insert name and title of the officer)
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.
Signature (Seal)
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.
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CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Doug Schulze, City Manager
Doug Schulze, City Manager
MEETING DATE: April 23, 2024
SUBJECT: Consider Resolution 2024-58, Adopting a Budget and Finance Committee Policy
RECOMMENDATION:
Adopt Resolution 2024-58.
BACKGROUND:
At the January 10, 2023 regular City Council meeting, the City Council directed the City Manager to develop policies for the standing committees of the City Council. During the April 25, 2023 regular City Council meeting, a request for policies specific to the Budget and Finance Committee was submitted by then Mayor Pro Tem Wallace. The City Council considered Resolution 2023-81 at the May 9, 2023 regular City Council meeting, which would have approved policies for all Council Standing Committees.
The City Council approved a motion to add the topic to the Council's June 17, 2023 retreat meeting agenda and continue the item to a later date. Unfortunately, the Council's retreat meeting agenda was modified due to scheduling conflicts for a majority of the Councilmembers, and the City Council was not able to discuss the proposed standing committee policies. However, Councilmember Wallace requested a future meeting agenda item to consider policies for the Budget and Finance Committee.
The City of Banning has not traditionally used policy committees very extensively. However, the Budget and Finance Committee has been consistently active. The role of the Budget and Finance Committee has frequently been questioned and operates without policy direction from the full City Council.
JUSTIFICATION:
Policy direction will provide staff and members of the Budget and Finance Committee with clear understanding of the Committee's role, authority, and relationship to the City Council. Staff workloads related to the support of the Budget and Finance Committee have noticeably increased in the past 18 months.
FISCAL IMPACT:
Not applicable.
ALTERNATIVES:
1. Adopt Resolution 2024-58, as presented.
2. Adopt Resolution 2024-58, with modifications.
3. Do not adopt Resolution 2024-58 and provide direction to the City Manager to modify the proposed Budget and Finance Committee Policy.
345
ATTACHMENTS:
1. Resolution 2024-58, Budget and Finance Committee Policy.docx
2. Exhibit A - Budget and Finance Committee Policy.pdf
346
Resolution 2024-58
RESOLUTION 2024-58
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,
ADOPTING A BUDGET AND FINANCE COMMITTEE POLICY
WHEREAS, the City Council has established a Budget and Finance Committee, which is a standing committee subject to the Brown Act and serves in an advisory capacity to the City Council and City Manager; and
WHEREAS, guidance and direction regarding policies and procedures applicable to the Budget and Finance Committee has not been provided; and WHEREAS, the City Council directed the City Manager to develop a policy for the Budget and Finance Committee to ensure appropriate guidance is provided.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council adopts the Budget and Finance Committee Policy, attached hereto as “Exhibit A.”
SECTION 2. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions.
PASSED, APPROVED AND ADOPTED this 23rd day of April 2024.
Alberto Sanchez, Mayor
City of Banning
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:
Serita R. Young, City Attorney
Richards, Watson & Gershon
347
Resolution 2024-58
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-58, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 23rd day of April 2024 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
348
Resolution 2024-58
EXHIBIT A
Budget and Finance Committee Policy
349
Budget and Finance Committee Policy
General Committee Procedures
Standing committees of the City Council play a crucial role in researching and making recommendations to the full City Council as well as the City Manager on important policy matters and other issues. Committees are advisory and do not have authority to direct staff, adopt policies, or obligate the City in any matter. This Policy is intended to make the administrative process for the Budget and Finance Committee’s workflow easier.
1. The Budget and Finance Committee (“Committee”) will work only on matters that have been assigned to it by the City Council in a public meeting of the City Council. The Committee Chair shall work with the Mayor and the City Manager to ensure ongoing alignment between the Committee’s activities and the City Council’s objectives.
2. The City Manager should ensure that Committee members’ names and contact information are correctly posted on the City’s website. Any changes should be sent to the Administrative City Clerk for update.
3. The Committee shall determine proposed meeting dates and times in conjunction with the assigned support staff and the Administrative City Clerk.
4. At least eight (8) business days prior to the Committee’s meeting date, the assigned staff will provide the Administrative City Clerk with the meeting agenda to be posted on the City’s website not less than seventy-two (72) hours in advance of the meeting.
5. The assigned support staff will send the agenda and supporting documentation to Committee members not less than 72 hours in advance of the meeting.
6. The Committee’s meetings are subject to the requirements of the Ralph M. Brown Act (Gov. Code, § 54950 et seq.). The Committee Chair is responsible for ensuring that all aspects of the Committee’s meetings are conducted in compliance with the Brown Act.
7. Prior to making a formal recommendation to the City Manager and/or the City Council, the Committee Chair will ensure that:
a. The recommendation was subject to a properly noticed vote. b. The City Council is provided with the exact wording of the motion, and when time allows, are provided with approved minutes that confirm the Committee’s vote well in advance of the City Council meeting to discuss the recommendation. c. The recommendations and report should be forwarded to the Mayor and the City Manager two (2) weeks prior to the City Council meeting at which the recommendation will be considered, except in the case where this timeframe is unreasonable, and the matter is critical and time sensitive.
8. Minutes that are generated from the Committee’s meetings, as well as sign in sheets or other relevant materials, should be forwarded to the Administrative City Clerk for posting in a timely manner, consistent with Brown Act requirements. Once the Committee’s 350
minutes are approved by Committee vote, the assigned support staff will forward the minutes to the Administrative City Clerk and copy the City Manager.
Committee Focus
The focus of the Committee shall be to assist the City Manager and City Council in areas of City budget and finance planning and oversight and coordinate with the City Manager and Finance Staff. The Committee assists, advises, and makes recommendations to the City Council regarding the fulfillment of the City Council's oversight responsibilities relative to City financial reporting, external audit requirements, asset management, internal controls, and compliance with financial regulations and policies.
The Committee provides a forum for communication between the City Council, the external auditor and management, and facilitates in an impartial, objective, and independent review of financial management practices.
Committee Responsibilities
As further detailed below, key responsibilities of the Committee include participation in the external audit function, assisting in the development of key financial policies, review of budget documents prior to presentation to the City Council, review of periodic budget and other financial reports, and participation in the review and coordination of the City’s Asset Management function, implementation, and compliance with regulatory reports and studies as necessary.
The Committee is responsible for engaging in the following financial functions and making recommendations to Council as required:
Budget:
• Determining the annual schedule for Capital and Operating Budget preparation and presentation and making a recommendation to the City Council for approval. • Reviewing the draft Operating and Capital Budget documents prior to preparation of the applicable meeting agenda package for the City Council. • Reviewing capital projects on a bi-monthly basis, meeting with department staff as necessary, and making recommendations to the City Council with respect to capital project funding, status, and closure, as necessary.
• Reviewing comparative Operating Budget reports on a bi-monthly basis and meeting with department staff, as required.
Compliance:
• Monitoring the integrity of the City’s financial reporting process and system of internal controls regarding financial reporting and accounting compliance. • Reviewing financial and fiscal policies, practices, and procedures (e.g., the Purchasing Policy, the budget and financial controls policy, the travel and expense claims policy, policies for establishing reserves, reserve funds) and conducting periodic reviews. • Reviewing consultant reports prepared to address financial compliance issues, including development fees, actuarial valuations, and contaminated sites. 351
• As directed by the City Council, reviewing amendments to Purchase Orders where the Purchase Order amendments exceed twenty-percent (20%) of the original amount that would be applicable to Purchase Order where the total cost of goods and services authorized exceeds $50,000.
External Audit:
• Reviewing the performance evaluation process for the external auditor. • Reviewing the external auditor’s proposed terms of engagement and audit scope and approach, including coordination of the audit effort with City staff. • Participation in the selection of an external audit firm by reviewing the Request for Proposals and bids received, interviewing potential auditing firms, and preparing a recommendation to the City Council.
• Reviewing the results of the audit, including the Report to the Audit Finance Committee and the letter to Management, with the external auditors and management ensuring the City’s financial reporting practices are assessed objectively, financial statements are properly audited, any problems identified in the audit are satisfactorily resolved, and any external auditor recommendations to management are addressed. • Resolving any disagreements between City management and the external auditors regarding financial reporting.
• Reviewing significant accounting and reporting issues, including complex or unusual transactions and recent professional and regulatory pronouncements to understand their impact on the financial statements.
• Reviewing the draft annual financial statements of the City prior to presentation to the City Council.
• At the end of the audit, consulting with the external auditors, without the presence of City management, regarding financial compliance and the accuracy of the City’s financial statements.
Asset Management:
• Reviewing the Strategic Asset Management Policy on an annual basis. • Reviewing the Asset Management Plan and make recommendations to the City Council. • Providing recommendations on strategy, policy, and procedural development surrounding asset management.
• Acting in an advisory capacity to the City Council on issues specific to asset management.
• Providing asset management planning resource recommendations to the City Council, as needed.
• Providing recommendations for stakeholder engagement strategies to the City Council, as needed.
• Working with the City Manager and department staff to coordinate the update of the Asset Management Plan.
Oversight:
• Regularly monitoring performance versus budget, providing early warnings of potential City budget concerns to the City Manager and the City Council. 352
• Assisting the City Manager and Finance Department staff with review of, and developing recommendations regarding, rate studies and rate setting process (e.g., water, wastewater, and electric).
• Monitoring receipt, disbursements, and fund balance reporting. • Reviewing the Financial Statement issuance process.
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