June 24, 2025
5:00 p.m.
In Chambers
Council Chambers
99 E. Ramsey Street
Banning, CA 92220
1. CALL TO ORDER
AGENDA
CITY COUNCIL - REGULAR MEETING
CITY OF BANNING, CALIFORNIA
The following information comprises the agenda for the regular meeting of the Banning City Council, a joint meeting of the City Council and Banning Utility Authority, and the Banning City Council sitting in its capacity as the Banning Successor Agency Board.
This meeting is being held via Zoom so that members of the public may observe and participate in this meeting electronically. If you participate in this meeting via Zoom, you are agreeing to abide by the City's Zoom Community Standards for Public Meetings (provided in full on the last page of the agenda). Esta reunión se lleva a cabo en la Cámara y a través de Video/Teleconferencia en Zoom para que los miembros del público puedan observar y participar en esta reunión de manera electrónica. Si elige participar en esta reunión a través de Zoom, acepta cumplir con los Estándares comunitarios de Zoom para reuniones públicas de la ciudad (que se proporcionan en su totalidad en la última página de la agenda).
To observe and participate in the online video portion of the meeting through your personal computer or device, follow this link:
https://us02web.zoom.us/j/82012644588?pwd=RwqtJC8xehLDKZvr3LEKOf9u8uP2pt.1 Dial in: +1 669 900 9128
Meeting ID: 820 1264 4588
Password: 92220
Per the City of Banning Manual of Procedural Guidelines, matters taken up by the Council before 10 p.m. may be concluded, but no new matters shall be taken up except upon a majority vote of the council members present and voting. Such an extension shall only be valid for one hour and each hour thereafter shall require a renewed action for the meeting to continue.
TELECOMMUTING LOCATION
Mayor Pro Tem Royce will be participating from a remote location where the public is invite to attend:
Norwegian Joy Cruise Ship in Stateroom 14218.
1.1 INVOCATION
Performed by Pastor Preston Norman of Praise Tabernacle Church
1.2 PLEDGE OF ALLEGIANCE
1.3 ROLL CALL
City Council - Regular Meeting Agenda
June 24, 2025
1 2. AGENDA APPROVAL
3. PRESENTATIONS
3.1 Proclamation - Parks and Recreation Month
4. REPORT ON CLOSED SESSION
5. PUBLIC COMMENTS, CORRESPONDENCE, APPOINTMENTS, AND REPORTS
6. CONSENT ITEMS
6.1 Receive and File Police Department Statistics for the Month of May 2025
6.2 Receive and File Fire Protection Services Statistics for the Month of May 2025
6.3 Public Works Capital Improvement Project Tracking List
6.4 Receive and File Code Enforcement Statistics for the Month of May 2025
6.5 Receive and File Contracts Approved Under the City Manager's Signature Authority and Inventory Reports for May 2025
6.6 City Council Travel and Conference Expense Report Year to Date Through May 2025
6.7 Receive and File Animal Control Statistics for the Month of May 2025
2.1 AGENDA APPROVAL
Recommendation: Proclaim July 2024 as Parks and Recreation Month John Pinkney, Interim City Attorney
5.1 PUBLIC COMMENTS
5.2 CORRESPONDENCE
5.3 APPOINTMENTS
5.4 CITY COUNCIL COMMITTEE REPORTS
5.5 ANNOUNCEMENTS FROM CITY COUNCIL MEMBERS
5.6 CITY MANAGER'S REPORT
5.7 CITY ATTORNEY'S REPORT
5.8 CITY TREASURER'S REPORT
The following items have been recommended for approval and will be acted upon simultaneously, unless a member of the City Council/Banning Utility Authority/Successor Agency Board wishes to remove an item for separate consideration.
Recommendation: Receive and file.
Recommendation: Receive and file.
Recommendation: Receive and file.
Recommendation: Receive and file.
Recommendation: Receive and file.
Recommendation: Receive and file.
City Council - Regular Meeting Agenda
June 24, 2025
2 6.8 Accept as Complete Various Improvements Related to the Atwell Specific Plan Development and Authorize 90% Reduction of the Improvement Bonds
6.9 Consideration of Second Reading and Adoption of Ordinance 1609, Approving a Development Agreement By and Between the City of Banning and JDJN Enterprises, LLC, a Missouri Limited Liability Corporation
6.10Consideration of Resolution 2025-89, Approving Final Parcel Map 38497 and Release the Map for Recordation
6.11Consideration of Resolution 2025-90, Authorizing Staff to Sign the Subdivision Improvement Agreement and Accept Faithful Performance and Labor and Material Bonds for Public Improvements for Street, Sewer, and Water Improvements at the Wilson Street Crossing of Smith Creek adjacent to Final Map 37389-1
6.12Consideration of Resolution 2025-91, Approving Amendment No. 2 to the Professional Services Agreement with Woodard and Curran in the Amount of $49,005 for Grant Management Services for the Proposition 1-Round 2 Integrated Regional Water Management Implementation Grant
6.13Consideration of Resolution 2025-93, Adopting the City of Banning Electric Utility 2024 Wildfire Mitigation Plan
6.14Consideration of Resolution 2025-94, Approving Amendment No.1 to the Professional Services Agreement with Innovative Federal Strategies, LLC to Provide Federal Legislative Advocacy and Governmental Affair Services for Two (2) Years Ending on June 30, 2027
7. PUBLIC HEARINGS
7.1 Consideration of Resolution 2025-95, Approving a Report in Connection with the Proposed Collection on the 2025/2026 Riverside County Property Tax Roll of Delinquent Solid Waste Service Charges for Single-Family and Multi-Family Dwelling Accounts and Making a Determination of Exemption under CEQA
7.2 Consideration of Introduction and First Reading of Ordinance 1610, Adopting the Fire Hazard Severity Zones within the City of Banning Based on Maps Provided by the California Department of Forestry and Fire Protection by Amending the Banning Municipal Code Section 8.16.020 and Chapter 15.28
8. REPORTS OF OFFICERS
8.1 Consideration of Resolution 2025-96, Approving a Budget Change Request related to Opportunity Village
Recommendation: Receive and file.
Recommendation: Accept as Complete Various Improvements Related to the Atwell Specific Plan Development and Authorize 90% Reduction of the Improvement Bonds Recommendation: Waive the second reading of text in its entirety, read by title only, and adopt Ordinance 1609.
Recommendation: Adopt Resolution 2025-89.
Recommendation: Adopt Resolution 2025-90.
Recommendation: Adopt Resolution 2025-91.
Recommendation: Adopt Resolution 2025-93.
Recommendation: Adopt Resolution 2025-94.
Recommendation: Hold the public hearing and adopt Resolution 2025-95.
Recommendation: Introduce by title only and waive further reading of Ordinance 1610.
City Council - Regular Meeting Agenda
June 24, 2025
3 9. DISCUSSION ITEMS
9.1 Review and Discussion of Travel Authorization for Leroy Miller and Travel Authorization for Colleen Wallace to League of California Cities Annual Conference in Long Beach, CA.
10. ITEMS FOR FUTURE AGENDAS
11. ADJOURNMENT
Recommendation: Adopt Resolution 2025-96.
Recommendation: Direct Staff to process the Travel Authorization for Leroy Miller and Travel Authorization for Colleen Wallace to League of California Cities Annual Conference in Long Beach, CA in the amount of $1,692.32 each.
11.1 NEW ITEMS
11.2 EXISTING ITEMS
1. Update on Community Garden (Flynn)
2. Contracting Animal Services (Flynn)
3. Emergency Preparedness (Barrington)
4. Contractor(s) to do Citywide Cleanup (Flynn)
5. RFP for City Manager (Wallace)
6. Update on Electric Billing (Miller)
7. Review and Update Council Travel Policy (Flynn)
8. Acting City Manager Evaluation (Miller)
Next Regular Meeting – July 8, 2025
Zoom Community Standards for Public Meetings
By participating in this meeting on Zoom, you are agreeing to abide by the City of Banning’s Community Standards for Public Meetings. Zoom attendees that fail to adhere to these standards may be removed from the meeting room.
Your microphone must remain on mute, and you may only unmute your microphone when/if you are recognized by the Mayor.
Your camera must be turned off unless/until you are recognized by the Mayor.
To indicate a desire to make Public Comment, you must use the Raise Hand function. The Mayor will not recognize those who have not used the Raise Hand function.
Public Comment from Zoom attendees will immediately follow in-person comment from members of the public in Council Chambers.
If you fail to adhere to these community guidelines, you may be removed for disrupting the meeting occurring in Council Chambers. You may rejoin the meeting but may be removed for each violation of these community standards.
The chat function will be disabled for all City Council meetings on Zoom.
Estándares comunitarios de Zoom para Reuniones Públicas Al participar en esta reunión en Zoom, usted acepta cumplir con los Estándares Comunitarios para Reuniones Públicas de la ciudad de Banning. Los que atienden por Zoom que no cumplan con estos estándares pueden ser retirados de la sala de reuniones.
Su micrófono debe permanecer en silencio, y solo puede reactivar su micrófono cuando / si es reconocido por el alcalde.
Su cámara debe estar apagada a menos que sea reconocido por el alcalde.
Para indicar el deseo de hacer un Comentario Público, debe utilizar la función Levantar la mano. El alcalde no reconocerá a quienes no hayan utilizado la función Levantar la mano.
Los comentarios públicos de lo que atienden por Zoom seguirán inmediatamente los comentarios en persona de los miembros del público en las Cámaras del Consejo.
City Council - Regular Meeting Agenda
June 24, 2025
4 Si no cumple con estas pautas de la comunidad, es posible que lo destituyan por interrumpir la reunión que tiene lugar en las Cámaras del Consejo. Puede volver a unirse a la reunión, pero es posible que lo eliminen por cada violación de estos estándares de la comunidad.
La función de chat estará deshabilitada para todas las Reuniones del Ayuntamiento en Zoom.
AFFIDAVIT • DECLARACIÓN JURADA
IT IS HEREBY CERTIFIED under the laws of the State of California that the above agenda was posted on the City's website (www.banningca.gov) as well as the Bulletin Board at Banning City Hall, located at 99 E Ramsey Street, Banning, CA 92220, at least 72 hours in advance of the meeting.
_________________________
Vickie Sellers, Elected City Clerk
Secretaria Municipal Electa
PUBLIC NOTICE • NOTICIA PÚBLICA
Meeting Agendas and Notices
Interested in receiving email and/or text notifications of upcoming City Council meetings? Sign up for meeting notifications through the City's website. Pursuant to amended Government Code §54957.5(b), staff reports and other public records related to open session agenda items are available on the City's website (www.banningca.gov/).
Public Comment
Agenda Items
Any member of the public may address this meeting of the City Council on any item appearing on the agenda. A five-minute limitation shall apply to each member of the public and no member of the public shall be permitted to share their time with any other person.
Non-Agenda Items
Any member of the public may address this meeting of the City Council on any item which does not appear on the regular meeting agenda but is of interest to the general public and is an item upon which the City Council may act. A three-minute limitation shall apply to each member of the public and no member shall be permitted to share their time with any other person. No action shall be taken, nor discussion held by the City Council, on any item which does not appear on the agenda, unless the action is otherwise authorized in accordance with the provisions of subdivision (b) of §54954.2 of the Government Code.
Special Assistance/Accessibility Requests
In compliance with the Americans with Disabilities Act, any member of the public may request that the agenda and agenda packet be mailed to them. If you need special assistance to participate in this meeting (such as translation services), please contact the City Clerk's Office. Advanced notification of at least 48 hours prior to the meeting will allow the city to make arrangements to ensure your accessibility.
¿Necesita servicios de traducción para participar? Contacto Oficina del Secretario de la Ciudad.
CONTACT • CONTACTO
City Clerk's Office | 951-922-3102 | [email protected] 99 East Ramsey Street, Banning, California 92220
City Council - Regular Meeting Agenda
June 24, 2025
5 CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Ralph Wright, Parks and Recreation Director MEETING DATE: June 24, 2025
SUBJECT: Proclamation - Parks and Recreation Month
RECOMMENDATION:
Proclaim July 2024 as Parks and Recreation Month
BACKGROUND:
July of 2025 is the 40th year of marking July as Parks and Recreation Month. It is an opportunity to celebrate all things Parks and Recreation and the value it provides to a community, State and Country.
Staff will give a quick presentation on Parks and Recreation Activities scheduled in Banning in the month of July.
Council to Proclaim July 2025 as Parks and Recreation Month JUSTIFICATION:
N/A
FISCAL IMPACT:
None
ALTERNATIVES:
N/A
BUDGETED?:
No
CONTRACT/AGREEMENT:
No
ATTACHMENTS:
1. Proclamation - Parks and Recreation Month.pdf
6 CITY OF BANNING
OFFICE OF THE MAYOR
WHEREAS parks and recreation programs are an integral part of communities throughout this country, including the City of Banning; and
WHEREAS parks and recreation services are vitally important to establishing and maintaining the quality of life in our communities, ensuring the health of all citizens, and contributing to the economic and environmental well-being of a community and region; and WHEREAS parks and recreation programs build healthy, active communities that aid in the prevention of chronic disease, provide therapeutic recreation services for those who are mentally or physically disabled, and also improve the mental and emotional health of all citizens; and WHEREAS parks and recreation programs increase a community’s economic prosperity through increased property values, expansion of the local tax base, increased tourism, the attraction and retention of businesses, and crime reduction; and
WHEREAS parks and recreation areas are fundamental to the environmental well-being of our community and the City of Banning offers a variety of parks and recreation opportunities designed for all ages and interests, including popular special events, recreation, athletic programs, and Senior Services; and
WHEREAS the City of Banning Parks and Recreation has planned activities in July such as a July 4th Celebration, Day Camps, Learn to Swim programs, Dive in Movies, a Youth Soccer Clinic, Classes and much more; and
WHEREAS the U.S. House of Representatives has designated July as Parks and Recreation Month; and
WHEREAS the City of Banning recognizes the benefits derived from parks and recreation resources.
NOW THEREFORE, the City of Banning City Council do hereby proclaim:
Parks and Recreation Month
July 2025
in the City of Banning and encourage the
citizens of our community to join us in this
special observance.
BE IT PROCLAIMED this 24th day of June, 2025.
Sheri Flynn, Mayor
7 CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Brandon Smith, Lieutenant
Vincent Avila, Chief of Police
MEETING DATE: June 24, 2025
SUBJECT: Receive and File Police Department Statistics for the Month of May 2025 RECOMMENDATION:
Receive and file.
BACKGROUND:
The Banning Police Department provides statistics to the public and City Council upon request.
JUSTIFICATION:
Statistics tell a city how many police officers need to be on the street, what crimes are being committed, and reveal increases and decreases in specific crimes. Also, cities get funding in part on their crime rates. If a federal crime bill passed, the Government needs to know which cities could benefit the most from those funds, and some cities have been rewarded financially for drastically lowering rates of crime.
FISCAL IMPACT:
None.
ALTERNATIVES:
Providing statistics keeps the Council, staff, and residents apprised of current police activities. If the statistics are not presented to the Council on a regular basis, then they should be provided on another platform.
BUDGETED?:
No
CONTRACT/AGREEMENT:
No
ATTACHMENTS:
1. Group A Offense Report May 2025.pdf
2. Police Stats May 2025.pdf
8 Offense Reported
in 2025
Reported
in 2024
Percent
Change
Offenses
Cleared
Percent
Cleared
Percent Of
Category
Rate Per
100,000*
Murder 0 2 -100.00% 0 0.00% 0.00% 0.00
Negligent Manslaughter 0 0 NA 0 0.00% 0.00% 0.00
Justifiable Homicide 0 0 NA 0 0.00% 0.00% 0.00
Non-consensual Sex Offenses:
Rape 2 1 100.00% 0 0.00% 11.11% 6.25
Sodomy 0 0 NA 0 0.00% 0.00% 0.00
Sexual Assault with Object 0 1 -100.00% 0 0.00% 0.00% 0.00 Fondling 0 0 NA 0 0.00% 0.00% 0.00
Aggravated Assault 2 13 -84.62% 2 100.00% 11.11% 6.25
Simple Assault 13 5 160.00% 9 69.23% 72.22% 40.63
Intimidation 0 0 NA 0 0.00% 0.00% 0.00
Kidnapping/Abduction 1 1 0.00% 0 0.00% 5.56% 3.13
Consensual Sex Offenses:
Incest 0 0 NA 0 0.00% 0.00% 0.00
Statutory Rape 0 0 NA 0 0.00% 0.00% 0.00
Human Trafficking, Commercial
Sex Acts
0 0 NA 0 0.00% 0.00% 0.00
Human Trafficking, Involuntary
Servitude
0 0 NA 0 0.00% 0.00% 0.00
Crimes Against Persons Total 18 23 -21.74% 11 61.11% 32.73% 56.25 Robbery 0 0 NA 0 0.00% 0.00% 0.00
Burglary/Breaking & Entering 4 2 100.00% 1 25.00% 15.38% 12.50 Larceny/Theft Offenses 9 10 -10.00% 2 22.22% 34.62% 28.13 Motor Vehicle Theft 5 2 150.00% 0 0.00% 19.23% 15.63
Arson 0 0 NA 0 0.00% 0.00% 0.00
Destruction Of Property 5 7 -28.57% 1 20.00% 19.23% 15.63 Counterfeiting/Forgery 1 0 NA 1 100.00% 3.85% 3.13
Fraud Offense 1 1 0.00% 1 100.00% 3.85% 3.13
Embezzlement 0 1 -100.00% 0 0.00% 0.00% 0.00
Extortion/Blackmail 0 0 NA 0 0.00% 0.00% 0.00
Bribery 0 0 NA 0 0.00% 0.00% 0.00
Stolen Property Offenses 1 0 NA 0 0.00% 3.85% 3.13
Crimes Against Property Total 26 23 13.04% 6 23.08% 47.27% 81.25 Drug/Narcotic Violations 6 2 200.00% 6 100.00% 54.55% 18.75 Drug Equipment Violations 4 1 300.00% 4 100.00% 36.36% 12.50 Gambling Offenses 0 0 NA 0 0.00% 0.00% 0.00
Pornography/Obscene Material 0 0 NA 0 0.00% 0.00% 0.00
Prostitution 0 0 NA 0 0.00% 0.00% 0.00
Weapons Law Violation 1 5 -80.00% 1 100.00% 9.09% 3.13
Animal Cruelty 0 0 NA 0 0.00% 0.00% 0.00
Crimes Against Society Total 11 8 37.5% 11 100% 20% 34.38 Agency: BANNING PD
Total Group "A" Offenses 55 54 1.85% 28 50.91% 100% 171.88 Statewide Crime Profile * Adjusted population base: 32,000 2025 Crime in California
Note: The Rate per 100,000 will be 'NA' when the Adjusted Population Base is Zero.
Group A Offense Report
Beginning Date: 05/01/2025 Ending Date: 05/31/2025
Printed On: 06/11/2025
9 CRIME May-25 May-24 % CHGE YTD-25 YTD-24 % CHGE
PART 1 CRIMES
Homicide 0 2 -100% 1 3 -67%
Rape 2 1 100% 3 3 0%
Robbery 0 0 0% 4 1 300%
Assaults Agg/Simp 15 18 -17% 71 96 -26%
Burglary 4 2 100% 13 56 -77%
Vehicle Theft 5 2 150% 29 30 -3%
Larceny 9 10 -10% 47 99 -53%
OTHER
Narcotics 2 2 0% 26 29 -10%
DUI 2 2 0% 12 8 50%
T/C Non-Injury 4 4 0% 60 66 -9%
T/C Injury 4 4 0% 21 24 -13%
T/C Fatal 0 0 0% 0 0 0%
Transient Calls 212 166 28% 268 228 18%
Unattended Death 3 3 0% 19 14 36%
Battery 242 PC 5 3 67% 14 11 27%
Shooting 246 PC 0 0 0% 4 1 300%
Citations 186 115 62% 525 350 50%
Total Incidents 3330 3172 5% 14612 14293 2%
BANNING POLICE DEPARTMENT
MAY, 2025
10 CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Caroline Patton, Administrative City Clerk Todd Hopkins, CalFire Division Chief
MEETING DATE: June 24, 2025
SUBJECT: Receive and File Fire Protection Services Statistics for the Month of May 2025
RECOMMENDATION:
Receive and file.
BACKGROUND:
City Council has requested CalFire’s Riverside County Division, which provides fire protection services in the City of Banning, provide specific reports to the public and City Council on a monthly basis.
JUSTIFICATION:
Many fire and EMS departments store and analyze statistical data, which can provide a detailed analysis of the types of responses their organization is called to assist. This information is critical to elevating the level of service provided by the fire department
FISCAL IMPACT:
None
ALTERNATIVES:
Providing statistics keeps the Council, staff, and residents apprised of current fire and paramedic activities. If the statistics are not presented to the Council on a regular basis, then they should be provided on another platform.
BUDGETED?:
No
CONTRACT/AGREEMENT:
No
ATTACHMENTS:
1. jurisreport_banning.pdf
11 Bill Weiser
Jurisdiction Summary for City of Banning
Fire Chief
Riverside County Fire Department/ CAL FIRE
5/1/2025 to 5/31/2025
Incident Response Activity
*At least 1 Resource Dispatched
Incident Type #
False Alarm 29
Medical 418
Other Fire 2
Other Misc 2
Public Service Assist 28
Res Fire 1
Standby 4
Traffic Collision 17
Vehicle Fire 1
Wildland Fire 3
Incident Total 505
Average Enroute to On-Scene Time
*Units Responding Charlie, Delta, Bravo, Echo, Code 3
4 273 72
3 4.35 77.56
<5 Minutes +5 Minutes
+10 Minutes +20 Minutes
Average Min % 0 to 5 Min
Enroute Time: Unit has been acknowledged as responding.
On-Scene Time: Unit has been acknowledged as being On-Scene.
Transport
*Based on Units with a Transport time
0 Total: 0
Mutual Aid
*Unit responses
Jurisdiction Units Responses
Engine 351
Total: 351
Mutual Aid Given
Engine 190
Total: 190
Mutual Aid Received
25 Brush 11
Chief 14
Engine 211
Patrol 16
PIO 4
Squad 33
Truck/Quint 9
Water Tender 1
Total: 324
6/1/2025 1:41:30PM Page 1 of 212
Truck Report
MRFT1 recorded 9 responses in City of Banning from 5/1/2025 1:40:09 PM to 5/31/2025 1:40:09 PM
Significant Incidents
CAL FIRE / Riverside County Fire Department responded to multiple reports of a structure fire at Repplier Park in the City of Banning. The first arriving Chief Officer reported a single-story abandoned structure well involved with fire. The building which was formerly the Banning Boy Scouts Club sustained major damage, and the fire was brought under control within approximately one hour. There were no reported injuries to civilians or firefighters. 25CARRU074290
5/9/2025 1:15:00AM
CALFIRE/Riverside County Fire Department responded to a report of smoke along the south side of the railroad tracks, East of Highland Springs on-ramp. First arriving engine company found a 100ft x 100ft spot, south of the tracks in the wash. The crew also noticed a number of homeless persons leaving the area of the fire. Crews were able to quickly stop the forward progress of the fire, keeping it to the original 100'x100'. Crew remaining on scene for one hour to provide 100% mop-up.
25CARRU083459
5/25/2025 3:18:00PM
6/1/2025 1:41:30PM Page 2 of 213
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Art Vela, Public Works Director
MEETING DATE: June 24, 2025
SUBJECT: Public Works Capital Improvement Project Tracking List RECOMMENDATION:
Receive and file.
BACKGROUND:
To keep the City Council and the public informed of the progress and status of various capital improvement projects, staff has prepared the attached Public Works CIP Tracking List, which will be updated and presented on a monthly basis.
The tracking list includes planning, environmental, design, and construction contracts previously approved by the City Council and/or the City Manager’s Office and currently managed by the Public Works Department.
JUSTIFICATION:
This recurring item is provided to keep the City Council and the public apprised of progress on certain projects.
FISCAL IMPACT:
Not applicable.
ALTERNATIVES:
Not applicable.
BUDGETED?:
No
CONTRACT/AGREEMENT:
No
ATTACHMENTS:
1. CIP Tracking June 2025.pdf
14 Category Project # Project Name Phase % Completed Tasks Completed Current Tasks Future Tasks Tentative Completion Date Project Budget Streets 2023-17 Hargrave Grade Separation PA&ED 3% Contract execution; project kickoff, grant reporting.
Agreements with Caltrans and UPRR;
Basis of Design document sent to all
stakeholders for approval.
Caltrans DEER exception.
Environmental work.
12/30/27 $ 8,300,000
Streets - Highland Springs Avenue
Interchange
PA&ED 35% Highway Safety Manual segmentation existing
condition; aerial topo mapping; traffic volume
report; Environmental Purpose/Need Statement;
Air/Noise memos; VMT Methodology Memo; DDI
Exclusion Memo; ROW Data Sheets;
Geometric development; utility agency data
collection; Traffic Operations Analysis
Report; Enviro. Technical Reports; HSM
Analysis Memo; Geotech Reports; Prelim
Drainage Reports;
Design Standard Risk Assessment;
Value Analysis Report; Geometric
Approval Document; R/W Data Sheets;
Transp. Management Plan
8/1/25 $ 2,900,000
Streets 2020-04 Sun Lakes Blvd Extension CEQA, PS&E 92% Council has approved a redesign in order to comply with Kinder Morgan's requirements.
Webb to submit signed 100% Plans.
Finalize Easement Documents and
Environmental Permitting
Prepare Bid Documents 12/1/26 $ 1,248,026
Streets - Traffic Signalization of 8th
Street/I-10 Interchange
Design/Permits 90% Design well underway. Submittal of
encroachment permit application to Caltrans.
Caltrans approval on TOAR and concepts.
Design drawings have been resubmitted to
Caltrans and awaiting a response.
Negotiations with private owners for ROW
acquisition.
Resubmitted to Caltrans if needed.
Caltrans encroachment permit
issuance. Property acquisition (private
party task)
12/1/25 $ 1,081,000
Streets 2022-05 HSIP Cycle 10 Omar/Ramsey
Intersection Improvements
Construction 0% Project Approved for Funding by the State.
Proposal solicitation. Contract award.
Schedule pre-construction meeting for end
of June
Start construction 7/30/25 $ 59,698
Streets 2023-04 HSIP Cycle 10 Ramsey Street
Pedestrian Safety Improvements
Construction 0% Project Approved for Funding by the State.
Project Awarded.
Project needs to rebid. Bids came in higher
than Engineer's Cost Estimate
Award Contract 7/30/25 $ 64,780
Streets 2023-09 HSIP Upgrade 17 Traffic Signals
Hardware
PS&E 85% Project approved for funding by Caltrans STC Traffic Working on 90% Plans Submittal and Caltrans Approval
100% Plans Submittal and Approval 12/1/25 $ 433,900
Streets 2023-10 HSIP Pedestrian Crossings
Upgrades at 19 Intersection
PS&E 5% Project approved for funding by Caltrans RFP Sent to Purchasing for Advertising Award Contract 12/1/25 $ 585,000 Streets 2023-11 HSIP Wilson St & 12 St
Intersection Upgrade
PS&E 2% Project approved for funding by Caltrans Preparing RFP Documents for Design Services
Send to purchasing for advertising 12/1/25 $ 277,000
Streets 2023-05 San Gorgonio/UPRR Pedestrian
Crossing
Design 95% Amendment 2 CC Approval. 65% Plans
complete
Final Plans approved by UPRR, CUPC and
Caltrans. GO 88-B approved
Approve C&M Agreement. Prepare Bid
Documents
12/1/25 $ 230,000
Facility 2021-06 CNG Station Design-Build 50% Grading, wall footing, equipment pads and some underground piping. Underground utility
installation; coordination with Gas Co., concrete
pads, block wall, time fill posts.
Gas company service work, finalizing
concrete work, installation of equipment.
Installation of electrical equipment, gas
meter set, generator installation,
compressor installation
11/1/25 $ 4,888,261
Facility City Hall Roof Repairs - Phase 2 Design/Bid 10% Scope identification - Roof/leak repairs on flat roof section over remainder of City Hall
Preparation of RFP Award, Construction 6/30/25 $ 275,000 Facility 2024-02 City Hall West Side Workspace
Reconfiguration
Construction 100% Removal of cubicles, removal of flooring, close off existing hallway door, installation of flooring
and new office spaces and furniture
Completed. Notices of Completion
recorded. Issue retention in 35 days
Complete punch list and close out
project.
2/28/25 $ 300,000
Facility 2023-16 Opportunity Village Sound Wall Design 95% Project kicked off. 100% Plans approved by City. Waiting on Caltrans approval and Encroachment
Final Plans. 12/1/25 $ 103,486
Water 2018-02W2 New Domestic Water Well C8 (Phase 2: Well Equipping and Site Development)
Construction 10% Project was awarded, an NTP was issued followed by pre-con meeting and submittal
reviews.
Along with material submittal reviews and
procurement, grading and underground
piping installation remains work-inprogress.
Continue site grading and installation of
underground piping/structures.
9/30/25 $ 3,774,100
Water 2023-15W Ramsey Street Water Line Construction 99% 16" DIP for the actual mainline alignment has been completed and tested. Services installed.
Construction completed. CO negotiations
completed. Issue final payment
CC Notice of Completion 5/24/25 $ 1,199,106
Water 2022-07W Well M12A (Phase 2: Well
Equipping an Site Development)
Construction 5% Project was awarded, a NTP was issued
followed by pre-con meeting and submittal
reviews.
Along with material submittal reviews and
procurement, site surveying and clearig
and grubbing has begun.
Site grading and installation of
underground piping/structures.
9/30/25 $ 2,684,990
Water 20254-08W Banning Canyon Stormwater
Repairs
Construction 40% Held pre-con and issued a NTP to Weaver Grading.
Grading (dredging) of the percolation ponds
is underway.
Grading/restoration 7/31/25 $ 563,310
Wastewater 2022-
01WW
Wastewater Treatment Plant and
Recycled Water Improvements
Phase 1
(Design)
10% Executed DBIA Agreement (545) and General
Conditions (535). Phase 1 (design) kick-off
meeting was held on 4.21.2025.
Technical design workshops are being held
roughly every 3-weeks. All requested data
e.g., as-builts, shop drawings of the
existing plant's equipment etc., and
sanitary sewer strength (influent/effluent)
samples are being tested for design
purposes.
Data collection, field surveys,
preliminary design report and
continuation of technical workshops
with the City.
4/30/26 $ 4,398,490
PUBLIC WORKS CAPITAL IMPROVEMENT PROJECTS (CIP) TRACKING SHEET 15 Wastewater 2020-
08WW
WWTP Equalization Basin Design/CEQA 90% Completed 60% drawings, 90% drawings are in reviewed.
Development of 100% drawings; working
with EPA on grant funding.
Submittal of 100% drawings; Approval
to proceed with grant expenditures;
Invitation for Bids
8/1/25 $ 362,866
Recycled
Water
2024-1RW Charles Street and Lincoln Street
Booster Station and Reservoirs
Construction 10% Project was awarded, a NTP was issued
followed by pre-con meeting and submittal
reviews.
Mass Grading of both sites is complete.
Contractor working on Storm Drain and
Staking for buildings. Long lead materials
submittals have been approved.
Underground piping followed by forebay tanks and building improvements. 2/1/26 $ 10,160,200 Recycled
Water
2023-
06RW
Lions Park Non-Potable Water
Conversion
Design 100% Project Awarded. Kick Off Meeting. Surveying and utility research
Bid package being reviewed by PW for
advertising
Award project 12/1/25 $ 98,500
Electric Sun Lakes Blvd Extension PS&E 90% Full redesign completed and in review Development of 100% drawings and prepare bid package to include with larger
Public Works project.
Prepare bid documents, construction
cost estimate and invitation for bid.
12/1/26 $ 75,700
Electric Robertson's Ready Mix Pole
Relocation
Construction 0% Line Extension Agreement approved by City Council. Additional comments provided by
Robertson's Ready Mix
Update agreement and resubmit for City
Council approval
Collect deposits from Robertson's
Ready Mix and order materials for
construction and schedule installation
3/30/26 $ 425,000
Electric 12kV Reconductor on Barbour St
at Hathaway
PS&E 90% Design has been completed for the project Plan in review with management Include project in budget cycle for 2025/26; Order materials for
construction and schedule installation
12/30/25 $ 100,000
16 CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Kristine Gutierrez, Community Development Operations Manager Vincent Avila, Chief of Police
MEETING DATE: June 24, 2025
SUBJECT: Receive and File Code Enforcement Statistics for the Month of May 2025 RECOMMENDATION:
Receive and file.
BACKGROUND:
The City’s Code Enforcement Division (“Code”) is responsible for enforcement of the Banning Municipal Code and state and federal laws, as applicable. Typical code enforcement duties and responsibilities include pursuing the abatement of unsafe buildings, unpermitted land use, business without a license, construction without permit, and unregistered food vendors. Additionally, Code is responsible for compliance with weed abatement, which involves patrol, investigation, noticing, enforcement, and remediation of vacant lots.
Code is currently overseeing 398 open cases, including 49 cases opened during the month of May 2025. Below is a summary of cases during the month of May 2025.
Month YTD
New Cases Opened 49 160
Total Cases Open (includes previous years) 398 N/A
Notice of Violations issued 119 491
Violations Resolved 113 553
Citations Issued 7 37
Field Inspections completed 97 477
Fee's Collected (Citations) $ 0.00 $ 1,946.67
Red Tagged Properties 3 15
Abandoned Vehicles Abated (AVA Program) 0 0
Weed Abatement Cost Recovery Received $ 0.00 $ 90,935.03 72 Hour Parking Notice of Violation (CVC 22651 (K)) 0 3 Unhoused Encampments (Tagged- Notice to Vacate) PC 602 3 8 Unhoused Encampments (Removed/Cleaned) 3 8
JUSTIFICATION:
17 Monthly activity reports are provided for informational purposes.
FISCAL IMPACT:
Not applicable.
ALTERNATIVES:
Direct staff to provide additional information on the case data.
BUDGETED?:
Yes
CONTRACT/AGREEMENT:
No
18 CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Barbara Mason, Chief Procurement Officer
Barbara Mason, Chief Procurement Officer
MEETING DATE: June 24, 2025
SUBJECT: Receive and File Contracts Approved Under the City Manager's Signature Authority and Inventory Reports for May 2025
RECOMMENDATION:
Receive and file.
BACKGROUND:
Per Purchasing Policy B-30, 3-105(5), written notification by the Purchasing Officer of all City Manager approved contracts will be provided quarterly to the City Council for review, and 16-107(3), The City Manager, or his designated representative, shall make a monthly written report to the City Council as to all Change Orders approved by the City Manager during the month, and of all possible future Change Orders that may appear probable prior to the next monthly report. At a minimum, the City Manager shall provide the Council with the name and nature of the contract, all Change Orders approved during that month, the reason for the Change Orders, the cumulative amount of the Change Orders for that contract, and any additional information the Council requests.
JUSTIFICATION:
While the policy requires contracts signed under the City Manager’s signature authority to be submitted to City Council on a quarterly basis, it is staff’s intent to submit these reports on a monthly basis to provide continuity with other monthly reports submitted to Council.
FISCAL IMPACT:
None
ALTERNATIVES:
Failure to provide this report to the City Council would result in the City being out of compliance with Purchasing Policy B-30,3-105(5).
BUDGETED?:
No
CONTRACT/AGREEMENT:
No
ATTACHMENTS:
1. 2025-06 June 2025 Executed Contract Below $25K for May 2025.pdf 19 City Manager
Approval Date Vendor Name Description of Item/Service Contact Award Total Department/ Division Comments
5/2/2025 Vector Resources, Inc. dba VectorusRepplier Park Light Pole Camera Repair 8,500.00 CS - Parks CUPCCAA Contract 5/5/2025 H & L Charter Co., Inc La Brea Tar Pits OEP Trip 1,600.00 CS - Parks Outdoor Grant 5/6/2025 H & L Charter Co., Inc Palm Springs Aerial Tram Trip 2,386.25 CS - Parks Outdoor Grant 5/15/2025 H & L Charter Co., Inc Aquarium of the Pacific Trip 2,480.00 CS - Parks Outdoor Grant 5/19/2025 Renov8ion Inc Repairs-Slide stairs and Posts - Reapplier Aquatic 16,765.00 CS - Parks CUPCCAA Contract Date Vendor Name Description of Item/Service Contact Award Total Change Order Comments
5/21/2025 Bell Roof Company City Hall Roof Repair $90,545.00 2,725.00 CUPCCAA Contract Date Vendor Name Description of Item/Service Amount Department Comments 5/7/2025 OneSource Distributors Transformers - Padmount 50 & 75kVA - Restock for Tri-Point Homes
57,756.16 PW - Electric Reso 2024-101
5/14/2025 OneSource Distributors 1/0 AL 220 MIL Cable 1,358.09 PW - Electric Increase to original order
Contracts Approved Within City Manager Signature Authority FOR MONTH OF JUNE 2025
Change Orders Approved Within City Manager Signature Authority FOR MONTH OF JUNE 2025
INVENTORY PURCHASES OVER $25K
FOR MONTH OF JUNE 2025
20 CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Barbara Mason, Chief Procurement Officer
Barbara Mason, Chief Procurement Officer
MEETING DATE: June 24, 2025
SUBJECT: City Council Travel and Conference Expense Report Year to Date Through May 2025
RECOMMENDATION:
Receive and file.
BACKGROUND:
The City Council attends many events, conferences, and training sessions while serving the City of Banning. The rules for these events and expenses are enforced by the Reimbursement Policy for Elected and Appointed Officials as well as by Policy E-3 Travel and Meeting Policy.
JUSTIFICATION:
As part of the Reimbursements Policy for Elected and Appointed Officials each official must briefly report on outside meetings, and all City reimbursement expenditures are subject to disclosure under the Public Records Act and other applicable laws. This monthly report will enable the City to comply with this requirement.
FISCAL IMPACT:
All expenditures under this category are from account 001-1000-411.23-05. As of May 31, 2025, the total charges expensed to this account is $17,535.12.
ALTERNATIVES:
Providing statistics keeps the Council, staff, and residents apprised of current council activities. If the statistics are not presented to the Council on a regular basis, then they should be provided on another platform.
BUDGETED?:
Yes
CONTRACT/AGREEMENT:
No
ATTACHMENTS:
1. CC Travel Expenses
21 22
23 24
25 26
27 28
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Brandon Smith, Lieutenant
Vincent Avila, Chief of Police
MEETING DATE: June 24, 2025
SUBJECT: Receive and File Animal Control Statistics for the Month of May 2025 RECOMMENDATION:
Receive and file.
BACKGROUND:
The Banning Police Department provides Animal Control Services statistics to the public and City Council upon request.
JUSTIFICATION:
Statistics tell a city how many Animal Control Officers need to be on the street, the types of calls they handle, and the need for additional services. Statistics show increases and decreases in particular areas of Animal Control Services over time.
FISCAL IMPACT:
None.
ALTERNATIVES:
Providing statistics keeps the Council, staff, and residents apprised of current Animal Control Services activities. If the statistics are not presented to the Council on a regular basis, then they should be provided on another platform.
BUDGETED?:
No
CONTRACT/AGREEMENT:
No
ATTACHMENTS:
1. Animal Control Stats Workbook MAY 2025.pdf
29 CATEGORY May-25 May-24 % CHGE YTD-25 YTD-24 % CHGE
Calls for Service 120 121 -1% 488 550 -11%
Animals Impounded 3 5 -40% 27 45 -40%
Animals Euthanized 0 1 -100% 6 22 -73%
Bite Reports 5 2 150% 14 14 0%
Released to Rescue 10 4 150% 41 10 310%
Collected Deceased 16 4 300% 49 38 29%
Citations Issued 0 0 0% 0 0 0%
Fees/Bills/Outside Costs 0 4241.48 -100% 0 8039.86 -100%
BANNING POLICE DEPARTMENT
MAY, 2025
30 CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Nate Smith, Deputy Director of Public Works/City Engineer Art Vela, Deputy Director of Public Works
MEETING DATE: June 24, 2025
SUBJECT: Accept as Complete Various Improvements Related to the Atwell Specific Plan Development and Authorize 90% Reduction of the Improvement Bonds
RECOMMENDATION:
Accept as Complete Various Improvements Related to the Atwell Specific Plan Development and Authorize 90% Reduction of the Improvement Bonds
BACKGROUND:
City Council adopted Resolution 2024-29 on February 27, 2024 that approved Final Tract Map 37388-2 for recordation, authorized staff to sign the Subdivision Improvement Agreement, and accept Labor and Material Bonds for public improvements. These improvements were required under project conditions of approval. The improvements are related to the Atwell Development Phase 15B. This planning area has been fully developed in accordance with the approved Final Map.
JUSTIFICATION:
Staff has verified through inspections that the required public improvements were completed per City standards and specifications and recommends that City Council accept the improvements as complete and authorize the 90% bond exoneration for the following bonds:
BOND NUMBER IMPROVEMENT
30204790 PA15B Sewer
30202739 PA15B Water and Non-Potable Water
30200449 PA15B Street
30202732 PH. 2B-1 Storm Drain
The remaining 10% of the bond amounts will remain for a period of 12 months (maintenance period) at which point the 10% balance will be released and the improvements will become City owned and maintained improvements.
Additionally, staff has verified though inspections that the required monumentation was completed per City standards and specifications and recommends that City Council accept the monumentation as complete and authorize the full 100% exoneration of the following bonds:
BOND NUMBER IMPROVEMENT
31 30204793 PA15B Monumentation
FISCAL IMPACT:
After the 1-year warranty period, the City of Banning will fully assume ownership and maintenance of the public facilities constructed.
ALTERNATIVES:
Do not accept the improvement and provide direction to staff.
BUDGETED?:
No
CONTRACT/AGREEMENT:
No
ATTACHMENTS:
1. Bond Release Exhibit.pdf
32 HIGHLAND HOME ROAD SCE CORRIDOR MEADOWLINE WAY PA 37 PA 36 PA 35B PA 15B PA32 PA33 PA 15A PA 21(A) PA 21(B) PA 16B-1 PA 16A-2 PA 48B PA 14-1 PA 9C PA 10 PA 13 PA 7PA 6 PA 11 PA 16B-2 PA 16A-1 PA 14-2 LEGEND:PA 15B SEWER, WATER, NON-POTABLE TEA PLACE ACACIA LANE
MAGNOLIA PLACE
OLEANDER PLACE TOYON PL. CAMPHOR LN. FRASER PLACE PHASE 2B-1 STORM DRAIN WATER, STREET & MONUMENTATION PHASE 2B-1, PA 15B EXHIBIT
33 CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: David Newell, Community Development Director MEETING DATE: June 24, 2025
SUBJECT: Consideration of Second Reading and Adoption of Ordinance 1609, Approving a Development Agreement By and Between the City of Banning and JDJN Enterprises, LLC, a Missouri Limited Liability Corporation
RECOMMENDATION:
Waive the second reading of text in its entirety, read by title only, and adopt Ordinance 1609.
BACKGROUND:
At its regular meeting of May 13, 2025, the City Council held a public hearing and considered three applications (Case DR21-7017, TPM 38756 and a Development Agreement) for the Banning Commerce Center Project, which is a proposed industrial warehouse development of 1,320,284 square feet on 131.28-acre site located north of the I-10 freeway/E. Ramsey Street, east of N. Hathaway Street and bisected by Wilson Street. After closing the public hearing and deliberating, the Council continued the applications to its next regular meeting of May 27, 2025, when the Council voted 5-0 to approve the Project as follows:
1. Adopt Resolution 2025-59. This resolution approved the Design Review and Tentative Parcel Map applications for the Banning Commerce Center Project.
2. Adopt Resolution 2025-60. This resolution certified Banning Commerce Center Project's EIR, adopted statements of overriding considerations and established the Mitigation Monitoring and Reporting Program.
3. Introduce and conduct first reading of, by title only, Ordinance 1609: AN ORDINANCE OF THE CITY
COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF BANNING AND JDNJ ENTERPRISES, LLC, A MISSOURI LIMITED
LIABILITY CORPORATION
This report provides for the City Council to waive further reading and adopt Ordinance 1609 for approving the Development Agreement. The ordinance shall be effective 30-days from adoption.
JUSTIFICATION:
In order to approve the Development Agreement application, the City Council is required to make findings pursuant to BZO Section 17.60.030(C) (Development Agreement). The Planning Commission recommended approval of these applications pursuant to the findings in Planning Commission Resolution 2025-04. The Council conducted a hearing on May 13, 2025 and May 27, 2025 and adopted the required findings included in the draft ordinance attached to this report.
Environmental Determination:
Second reading of Ordinance 1609 remains consistent with the Council's action to certify the EIR under 34 Resolution 2025-60.
FISCAL IMPACT:
Fiscal impacts will be offset by fees and improvement costs paid by the developer, including permit applications, impact fees, and roadway and other public improvements. In addition, the City will receive directly benefit financially by the following negotiated items, which are beyond the typical fees paid by a development application if the development agreement is approved:
1. $9,000,000 in payments to the City for funding transportation-related costs toward roadways/interchanges
2. $357,000 payment for per megavolt-amperes (MVA), based on the requested electrical load
3. $0.10 per sq. ft. annually (with annual CPI escalator) as part of a community facilities district to pay for on-going maintenance costs of public streets, public facilities and parks, and other related improvements and maintenance in the District; this would amount to over $132,000 in annual revenue to offset maintenance costs and other city services as specified in the CFD once established.
As noted in the fiscal impact analysis report, it is anticipated that the project would result in a net increase of recurring revenues amounting to $505,215 annually. The report cites total recurring revenues of $869,954 annually and total recurring expenditures of $364,739 annually, which results in the net increase of $505,215 to the City's annual revenues. The CFD would augment the annual revenue generated by the Project and provide an additional $132,000 annually toward maintenance and services within the boundary of the CFD once established, which further reduces impacts to the City's finances.
ALTERNATIVES:
Provide alternative direction to staff.
BUDGETED?:
No
CONTRACT/AGREEMENT:
Yes
ATTACHMENTS:
1. Ordinance 1609, Development Agreement with JDNJ Enterprises.docx
2. Draft Development Agreement
3. Aerial and Vicinity Maps
4. 05-27-2025 CC Staff Report
35 Ordinance 1609
ORDINANCE 1609
AN ORDINANCE OF THE CITY OF BANNING, CALIFORNIA, APPROVING A
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF BANNING
AND JDNJ ENTERPRISES, LLC, A MISSOURI LIMITED LIABILITY
CORPORATION
WHEREAS, the City of Banning, California, (“City”) is a general law city and a municipal corporation of the State of California; and
WHEREAS, Article 2.5 of Chapter 4 of Division 1 of Title 7 of the California Government Code (“Development Agreement Statute”) and Chapter 17.60 of the Banning Municipal Code authorize City to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property; and WHEREAS, JDNJ Enterprises, LLC, a Missouri Limited Liability Corporation (“Owner”) is proposing to develop an approximately 1,320,284 square-foot tilt-up industrial building with onand off-sit related improvements on approximately 131.28-acres of real property located entirely within the City of Banning, comprised of three parcels having seven Assessor’s Parcel Number (Assessor’s Parcel Numbers (APNs): 532-030-008, 532-030-009, 532-080-008, 532-080-010, 532-090-026, 532-090-028, 532-090-030, 532-110-015.), and more specifically depicted and described in Exhibit A (hereinafter the “Property”); and WHEREAS, the Subject Property is, or will be made, subject to the following entitlements:
Resolution No. 2025-59 approving Tentative Parcel Map No. 38756 to reconsolidate all existing parcels on the Site into two (3) parcels and Design Review No. 21-7017 for construction of one concrete tilt-up industrial building; and Resolution No. 2025-60 certifying an Environmental Impact Report (EIR), SCH Number 2022090102, Adopting Findings and a Statement of Overriding Considerations, and Adopting a Mitigation Monitoring and Reporting Program (collectively the "Entitlements"); and
WHEREAS, the Project will provide jobs and industry in the City; and WHEREAS, the Project will provide a community benefit to the residents of the City; and WHEREAS, the Developer is not requesting from the City, nor is the City providing, any form of financial assistance to locate, develop, construct and/or operate the Project in the City of Banning, and Developer agrees to comply with all conditions of approval; and WHEREAS, to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Sections 65864 et seq. of the California Government Code, (the "Development Agreement Statute") which authorizes cities to enter into property development agreements with any person(s) or entity(ies) having a legal or equitable interest in real property for the development of such real property in order to establish certain development rights in the real property; and
WHEREAS, the Development Agreement is intended to provide assurances to Developer that an approved Project may proceed subject to the specified policies, rules, regulations, and conditions of approval applicable to the Project at the time of approval, regardless of any changes to City policies, rules, and regulations after project approval; and 36 Ordinance 1609
WHEREAS, this Agreement will eliminate uncertainty in planning for and securing orderly development and occupancy of the Property, assure installation of necessary improvements, and ensure attainment of the maximum effective utilization of resources within the City at the least economic cost to its citizens; and
WHEREAS, the City Planning Commission held a public hearing on the Project on March 5, 2025 and passed a resolution recommending approval subject to certain specific recommendations; and
WHEREAS, the City prepared the Final Revised EIR (the "FEIR") and, pursuant to Public Resources Code section 21092.5, the City provided copies of the FEIR to all commenting agencies and persons requesting copies of the responses; and WHEREAS, the City Council of the City of Banning (the "City Council"), at its regularly scheduled public meeting on May 13, 2025, held a public hearing on the Project; and WHEREAS, based on the foregoing recitals, City has determined that this Agreement is appropriate under the Development Agreement Statute and Chapter 17.60 of the Banning Municipal Code and consistent with the policies and programs of the City of Banning General Plan, any applicable specific plan and the zoning ordinances; and WHEREAS, this Agreement is voluntarily entered into in consideration of the benefits to and the rights created in favor of each of the parties hereto and in reliance upon the various representations and warranties contained herein; and
WHEREAS, City, as "Lead Agency" under the California Environmental Quality Act ("CEQA") and the CEQA Guidelines, has determined that the "Project," as more fully described in this Agreement, has been fully analyzed per CEQA under the FEIR for the Project dated October 2024 and all other legal prerequisites to the adoption of this Ordinance have occurred.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BANNING DOES ORDAIN AS FOLLOWS:
SECTION 1. RECITALS
That the above Recitals are true and correct and are incorporated as though fully set forth herein.
SECTION 2. APPROVAL OF DEVELOPMENT AGREEMENT
That the City Council hereby approves the Development Agreement by and between the City of Banning and JDNJ ENTERPRISES, LLC, A MISSOURI LIMITED LIABILITY CORPORATION ("Development Agreement"), a copy of which is attached hereto as Exhibit "B" and incorporated herein by this reference, subject to the terms and conditions stated therein.
SECTION 3. SEVERABILITY
The City Council declares that, should any provision, section, paragraph, sentence or word of this Ordinance be rendered or declared invalid by any final action in a court of competent jurisdiction or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences or words of this Ordinance as hereby adopted shall remain in full force and effect.
SECTION 4. EFFECTIVE DATE OF ORDINANCE
That this Ordinance shall take effect thirty (30) days after its second reading by the City Council. 37 Ordinance 1609
SECTION 5. EFFECTIVE DATE OF DEVELOPMENT AGREEMENT
The Development Agreement shall not be executed by the City until on or after the effective date of the Ordinance.
SECTION 6. RECORDATION OF DEVELOPMENT AGREEMENT
The City Clerk is hereby directed to record the fully executed Development Agreement with the Riverside County Recorder no later than ten (10) days after its execution.
SECTION 7. CERTIFICATION
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.
PASSED, APPROVED AND ADOPTED this 24th day of June, 2025.
Sheri Flynn, Mayor
City of Banning
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:
John Pinkney, Interim City Attorney
Slovak, Baron, Empey, Murphy & Pinkney,
LLP
38 Ordinance 1609
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that Ordinance 1609 was duly introduced at a regular meeting of the City Council of the City of Banning, held on the 27th day of May, 2025, and was duly adopted at a regular meeting of said City Council on the 24th day of June, 2025, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
39 Ordinance 1609
EXHIBIT A
Legal Description
40 Ordinance 1609
EXHIBIT B
Development Agreement
41 4924-7261-4673.13/
393342.00002/6-3-25/jcc/kp
RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
CITY OF BANNING
99 E. RAMSEY STREET
BANNING, CA 92220
BANNING, CALIFORNIA
ATTN: CITY CLERK
SPACE ABOVE THIS LINE FOR RECORDER’S USE
EXEMPT FROM RECORDING FEE PER GOVERNMENT CODE SECTION 6103
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF BANNING
AND
JDNJ ENTERPRISES, LLC
CONCERNING
BANNING COMMERCE CENTER
42 4924-7261-4673.13/
393342.00002/6-3-25/jcc/kp
{This Page Left Intentionally Blank}
43 4924-7261-4673.13/
393342.00002/6-3-25/jcc/kp
THIS DEVELOPMENT AGREEMENT (the “Development Agreement”) is made and entered into this {DATE OF AGREEMENT}, by and between the City of Banning, a California municipal corporation (the “City”), and JDNJ Enterprises, LLC, a Missouri limited liability corporation qualified to do business in the state of California (“Developer”).
City and Developer may be referred to in this Development Agreement collectively as the “Parties” or each individually as a “Party.”
RECITALS
1. Article 2.5 of Chapter 4 of Division 1 of Title 7 of the California Government Code (“Development Agreement Statute”) and Chapter 17.60 of the Banning Municipal Code authorizes City to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property.
2. Developer is proposing to develop an approximately 1,320,000 square-foot tilt-up industrial building consisting of 39,600 square feet of office space and 1,280,400 square feet of warehousing, and trailer parking on approximately 131.33 acres of real property located entirely within the City of Banning, comprised of three parcels having seven Assessor’s Parcel Number (Assessor’s Parcel Numbers (APNs):
532-030-008, 532-030-009, 532-080-008, 532-080-010, 532-090-026, 532-090- 028, 532-090-030, 532-110-015.), and more specifically depicted and described in Exhibit A (hereinafter the “Site”).
3. City and Developer mutually desire to enter into this Development Agreement pursuant to the Development Agreement Statute in order to implement the Project.
4. On ______, 2025, the City Council adopted Resolution No. ______ approving Tentative Parcel Map No. 38576 to reconsolidate all existing parcels on the Site into two (2) parcels; and Design Review No. 21-7017 for construction of one concrete tilt-up industrial building as described in the preceding recitals.
Resolution No. ______ and any attachments and exhibits thereto is hereby incorporated by this reference.
5. For purposes of this Development Agreement, the approvals granted by Resolution No. ______ are referred to herein as the “Project Approvals.”
6. On ______, 2025, the City Council adopted Ordinance No. ______ approving this Development Agreement between the City and Developer and finding this Development Agreement to be consistent with the City’s General Plan and Zoning Code.
7. The terms and conditions of this Development Agreement have undergone extensive review by City staff and the City Council and have been found to be fair, just and reasonable. By electing to enter into this Development Agreement, the City agrees to bind future City Councils by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of the City; and 44 4924-7261-4673.13/
393342.00002/6-3-25/jcc/kp -2-
further finds that the best interests of the citizens of the City and the public health, safety and welfare will be served by entering into this Development Agreement.
8. As set forth in the Project Approvals and this Development Agreement, development of the Site in accordance with this Development Agreement will further important policies and goals of the City, eliminate uncertainty in planning, provide for the orderly development of the Site, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Project, and provide substantial community benefits.
9. Developer has incurred and will in the future incur substantial costs in order to assure development of the Site in accordance with this Development Agreement, and has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Site in accordance with this Development Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged, the Parties do hereby agree as follows:
AGREEMENT
SECTION 1. RECITALS
The Recitals are part of this Development Agreement and shall be enforceable as any other provision.
SECTION 2. DEFINITIONS
The following defined terms shall have the meanings set forth in this Section 2 unless a different meaning is clearly intended by the context in they are used.
A. “Development Agreement” means this Development Agreement.
B. “City” means the City of Banning.
C. “City Council” means the City Council of the City of Banning.
D. “City Manager” means the City Manager of the City of Banning.
E. “Developer” means JDN Enterprises, LLC, a Missouri limited liability corporation.
F. “Development Impact Fee Program” or “DIF Program” means City’s program of collection and use of development impact fees, including fees for Police Facilities, Fire Facilities, Parkland and Park Facilities, General City Facilities, Transportation Facilities, Wastewater Facilities, and Water Facilities (collectively “DIF”) as set forth in Banning City Council Resolutions 2019-112, as it may be amended or superseded, City’s Update of Traffic Fee Component of the Development Fee 45 4924-7261-4673.13/
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Program dated May 2019 and Development Impact Fee Update Study, dated August 7, 2019.
G. “Effective Date” shall mean the date that Ordinance No. ______ approving this Development Agreement becomes effective.
H. “Existing Development Regulations,” subject to the exclusions and reservations set forth in Section 7, means all ordinances, resolutions, codes, rules, regulations and official policies of the City in force as of the Effective Date and governing the development of the Project and use of the Site; including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications.
I. “Municipal Code” means the Banning Municipal Code, as amended from time to time.
J. “Project” means the proposed development of the Site with 1,320,284 square-foot tilt-up industrial building consisting of 39,600 square feet of office space and 1,312,284 square feet of warehousing and trailer parking in a manner consistent with the Project Approvals and the terms and conditions of this Development Agreement.
K. “Project Approvals” means EIR (XXXX), SCH Number XXXX, Tentative Parcel Map No. 38576 and Design Review No. 21-7017.
L. “Second Transportation Payment” shall have the meaning ascribed to it in Section 9(B) below.
M. “Site” means the real property that is the subject of the Project Approvals and as legally described in Exhibit A to this Development Agreement.
N. “Term” shall have the meaning ascribed to it in Section 6 below.
O. “Transfer” means any sale, lease, encumbrance, or other transfer of all or any portion of the Project or any interest therein.
P. “Transferee” means any person, partnership, limited liability company, joint venture, firm, or corporation who acquires an interest in the Site pursuant to a Transfer and assumes, or is deemed to assume, Developer’s obligations hereunder with respect to such interest.
Q. “Transportation Public Benefit Fee” shall have the meaning ascribed to it in Section 9(B) below.
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SECTION 3. DEVELOPER’S REAL PROPERTY INTEREST
Developer warrants and represents that, as of the Effective Date, it has or will have legal title to or an equitable interest in the Site; that it has full legal right to enter into this Development Agreement; and that the persons executing this Development Agreement on behalf of each Developer have been duly authorized to do so.
SECTION 4. RELATIONSHIP OF THE PARTIES
It is hereby specifically understood and acknowledged that the Project is a private development and that neither the City nor Developer will be deemed to be the agent of the other for any purposes whatsoever.
SECTION 5. BINDING EFFECT OF DEVELOPMENT AGREEMENT
A. Covenants, Reservations, and Restrictions. Developer hereby subjects the Project and the Property to the covenants, reservations, and restrictions as set forth in this Development Agreement. The City and Developer hereby declare their specific intent that the covenants, reservations and restrictions as set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon each of Developer’s successors and assigns in title or interest to the Site.
The Parties hereby further declare their understanding and intent that the benefit of such covenants, reservations, and restrictions touch and concern the land by enhancing and increasing the enjoyment and use of the Site by Developer and the future occupants of the Site, the intended beneficiaries of such covenants, reservations, and restrictions, and by furthering the public purposes for which this Development Agreement is adopted. Each and every contract, deed, or other instrument hereinafter executed, covering, or conveying the Site or any portion thereof shall conclusively be held to have been executed, delivered, and accepted subject to the covenants, reservations, and restrictions expressed in this Development Agreement, regardless of whether such covenants, reservations, and restrictions are set forth in such contract, deed, or other instrument.
B. Recordation. The City Clerk shall record this Development Agreement in the Official Records of the County Recorder of the County of Riverside within ten (10) days following the Effective Date. Upon the expiration or termination of this Development Agreement and the request of Developer, the City will execute and deliver, in recordable form, an instrument confirming that this Development Agreement is of no further force or effect.
SECTION 6. TERM
The Term of this Development Agreement shall commence on the Effective Date and shall expire fifteen (15) years thereafter (the “Initial Term”) unless terminated sooner as provided in this Development Agreement. Unless Developer is in default under this Agreement, the Term shall automatically be extended for an additional five (5) years if prior to the expiration of the Initial Term, the Developer has provided City with the initial Transportation Public Benefit Fee in the amount of Two Million Five Hundred Thousand Dollars ($2,500,000) as specified in Section 9.B. Unless otherwise specified in this 47 4924-7261-4673.13/
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Development Agreement, the respective rights and obligations of the Parties hereto shall remain in full force and effect throughout the Term. Notwithstanding any provision to the contrary herein, in the event that, for any reason whatsoever, Developer fails to acquire fee simple title to the Property ("Fee Title") within 180 days following the Effective Date ("Fee Title Deadline"), Developer may elect, in its sole and absolute discretion, with the written approval of the fee title owner, and upon written notice to the City within sixty (60) days following the Fee Title Deadline, to terminate this Agreement and the Project Approvals. Effective upon such termination by Developer and fee title owner, this Agreement and the Project Approvals shall be of no further force or effect. After the Fee Title Deadline, if Developer has failed to acquire Fee Title and the fee title owner does not issue written approval of termination of this Agreement within five (5) days after the Fee Title Deadline, Developer shall no longer be subject to any of the obligations created in this Agreement or in the Project Approvals.
SECTION 7. VESTING OF DEVELOPMENT RIGHTS
A. General Statement. As a material inducement to Developer and its lenders to continue with diligent efforts to promote the development of the Property, Developer shall have the vested right to develop the Project on the Site in accordance with the terms and conditions of the Project Approvals, this Development Agreement, and the Existing Development Regulations, and City shall have the right to control development of the Site in accordance with the provisions of the Project Approvals, this Development Agreement, and the Existing Development Regulations.
B. Existing Development Regulations. In accordance with the terms of Gov. Code, § 65866, City and Developer agree the development of the Project on the Site shall be subject to all ordinances, resolutions, codes, rules, regulations and official policies of the City in force as of the Effective Date and governing the development and of the Site, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Site (collectively “Existing Development Regulations”) except as otherwise provided in this Development Agreement.
C. Exclusions and Reservations.
1. “Existing Development Regulations” excludes, and nothing in this Development Agreement shall preclude the application of, any municipal ordinance, resolution, code, rule, regulation or official policy, laws, and regulations that do not conflict with Developer’s vested rights to develop and use the Property in accordance with this Development Agreement.
Developer shall comply with such nonconflicting laws and regulations as may from time to time be enacted or amended hereafter.
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2. Without limitation to the foregoing exclusions or any nonconflicting law, City hereby expressly reserves its right with regarding to the Project and the Site to apply and enforce any municipal ordinance, resolution, code, rule, regulation or official policy, laws, or regulations regarding: (i) the conduct of businesses, professions, and occupations; (ii) taxes, fees, charges, and assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of similar rights and interests that provide for the use of or the entry upon public property; (v) the exercise of the power of eminent domain; (vi) any and all new health and safety regulations (e.g., fire, building, and seismic, plumbing, and electric codes) made applicable in the City, inclusive of any similar such codes based upon uniform codes and incorporated by reference into the Banning Municipal Code; and (vii) procedural rules of general city-wide application, provided that City agrees to nevertheless process any Minor Modifications to Tentative Parcel Map No. 38576 or Design Review No. 21-7017 pursuant to the Chapter 17.84 of the Banning Municipal Code as that Chapter reads as of the Effective Date regardless of any later Municipal Code amendment.
Such Minor Modifications may include modifications which do not: (a) alter the permitted uses of the Site; (b) increase the maximum height and size of permitted buildings or structures in excess of the originally approved Project; or constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Public Resources Code § 21166.
D. Superior Law. Nothing in this Development Agreement shall preclude the application to the Project and the Site of those changes in City ordinances, regulations, plans, or specifications that are: (i) specifically mandated and required by changes in state or federal laws or regulations as provided in Government Code § 65869.5 or any successor provision or provisions; (ii) required to ensure public safety and are made applicable throughout the City; or (iii) required to ensure access under the Americans with Disabilities Act. In the event such changes prevent or preclude compliance with one or more of the provisions of this Development Agreement, such provisions of this Development Agreement shall be modified or suspended or performance thereof delayed, to the extent necessary to comply with such changes in the law.
SECTION 8. DEVELOPMENT TIMING; PERMIT PROCESSING
A. Developer’s Discretion. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that failure to provide for the timing of development resulted in a later adopted initiative restricting the timing of development, it is the Parties’ intent to avoid that deficiency by acknowledging and providing that Developer shall have the right (without obligation), subject to the provisions of this Development Agreement, to complete the Project in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. 49 4924-7261-4673.13/
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B. Permit Processing. The City and its officers, agencies and departments shall not unreasonably delay the processing of any application for any permit or approval necessary to commence or complete the Project.
C. Provision of Real Property Interests by City. In any instance where Developer is required to construct any public improvement on land not owned by Developer, Developer shall at its sole cost and expense provide or cause to be provided, the real property interests necessary for the construction of such public improvements.
In the event Developer is unable, after exercising reasonable efforts over a period of at least 180 days to acquire the real property interests necessary for the construction of such public improvements (“Offsite Interests”), and if so requested by Developer and upon Developer’s provision of adequate security for costs City may reasonably incur as determined by City in its discretion, City may negotiate to attempt to purchase the Offsite Interests in order to allow Developer to construct the public improvements as required by the Project Approvals or this Development Agreement. If City is unable to acquire the Offsite Interests through a voluntary transaction, City shall consider acquiring the Offsite Interests through using its power of eminent domain to acquire such required real property interests. If City does elect in its discretion to exercise its power of Eminent domain, Developer shall pay all reasonable costs associated with such acquisition or condemnation proceedings as determined by City in its discretion and shall enter into a land acquisition agreement (“LAA”) with City in a form approved by the City Attorney.
The LAA shall provide among other things, that the Developer shall provide a deposit in an amount determined by the City to cover the City’s staff, legal and other expenses associated with the condemnation proceedings. This Section is not intended by the Parties to impose upon the Developer an enforceable duty to acquire land or construct any public improvements on land not owned by Developer, except to the extent that the Developer elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by City upon the development of the Project under the Subdivision Map Act or other legal authority. If after using good faith efforts to acquire the Offsite Interests, Developer is unable to acquire the Offsite Interests, and City, in its reasonable discretion, refuses to use its power of eminent domain to acquire the Offsite Interests, City shall waive the requirement for Developer to acquire the Offsite Interests, or if development of the Project cannot proceed without acquisition of the Offsite Interests, the Parties shall meet and confer in good faith to attempt to devise alternatives to allow the Project to proceed without acquisition of the Offsite Interests.
D. Subdivision Map Extension and Other Development Approvals. As permitted by Government Code § 66452.6, each subdivision or parcel map, heretofore or hereafter approved in connection with development of the Site or the Project shall be extended and shall remain in effect for the term provided by this Agreement. If Developer, in its sole and absolute discretion, chooses to process vesting tentative maps, City shall process such vesting maps subject to and in accordance with the Existing Land Use Regulations, the Subdivision Map Act. Subject to and in accordance with the Existing Land Use Regulations, and the Subdivision Map Act any tentative map, either vesting or non-vesting, may be processed in phases. In 50 4924-7261-4673.13/
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addition, Design Review No. 21-7017 and all subsequently adopted discretionary project approvals shall remain in effect for the term provided by this Development Agreement.
E. Development Impact Fees. Development Impact Fees (“DIF”) currently imposed are identified in Ordinance No. ___ adopted by the City Council on _____, 20 __.
A schedule showing the DIF in place as of the Effective Date is attached as Exhibit “B”. DIF and sewer and water connection and capacity fees shall be those in effect at the time of the issuance of a building permit and due and payable by Developer prior to the issuance of the building permit for the building in question. For the sake of clarity, as a condition to building permit issuance for each building, Developer shall pay the development impact fees listed on Exhibit “B” for such building in the amount in effect at the time the building permit for such building is issued, as well as any new or increased DIF authorized by this Agreement. The City may apply subsequently adopted new categories of DIF to the Project if the same are applied uniformly to development either throughout the City or with a defined area of benefit that includes the Property if the subsequently adopted DIF is not applied on an ad hoc basis solely to the Project and the subsequently adopted fee does not physically prevent development of the Property for the uses and to the density and intensity of development set forth in this Agreement. Notwithstanding the foregoing, if Developer is not in default under this Agreement and has made the initial Transportation Public Benefit Fee of Two Million Five Hundred Thousand Dollars ($2,500,000) as specified below, prior to first anniversary of the Effective Date, the City agrees not impose any new category of DIF on the Project for a period of Five Years after the Effective Date.
SECTION 9. PUBLIC BENEFITS
A. Intent. This Section sets forth the terms and conditions under which Developer agrees to provide public benefits in consideration of the of the benefits conferred on Developer and the Site by this Development Agreement.
B. Transportation Public Benefit Fee. Developer shall pay City a Transportation Public Benefit Fee in the amount of Nine Million Dollars ($9,000,000) (“Transportation Public Benefit Fee”).Two Million Five Hundred Thousand Dollars ($2,500,000) of the Transportation Public Benefit Fee will be paid no later than one (1) year from the Effective Date and the remaining amount of Six Million Five Hundred Thousand Dollars ($6,500,000) (“Second Transportation Payment”) prior to the issuance of the Project’s first building permit. If the Second Transportation Payment is not paid prior to the second anniversary of the Effective Date, the amount of the Second Transportation Payment will increase annually equal to the annual percentage change in the Consumer Price Index published by the U.S.
Bureau of Labor Statistics for “All Urban Consumers” in the Riverside-San Bernardino-Ontario Area, measured as of the month of April in the previous Fiscal Year, but not less than one percent (1%) and not greater than five percent (5%) .
The City shall solely use the Ramsey Interchange Fee for the design and construction of the Ramsey-Interstate 10 interchange and or the Hargrave Street interchange. The City acknowledges and agrees that the City shall not impose 51 4924-7261-4673.13/
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any other fee or exaction upon Developer for the Ramsey-Interstate 10 interchange.
C. Electrical Facilities Fee. Developer shall pay City an Electrical Facilities Fee equal to Three Hundred and Fifty-Seven Thousand Dollars ($357,000) per megavoltamperes (MVA) of requested electrical load due and payable pro rata prior to issuance of any building permit (“Electric Facilities Fee”). City shall use the proceeds of the Electrical Facilities Fee solely for the design or construction of new or expanded electrical facilities, which can include reimbursement to the City for part of the cost of an existing electrical facility substation which the City has funded.
D. Electrical Substation Land Dedication. Developer shall reserve and offer to dedicate to City lettered-lot “C” on the proposed Tentative Parcel Map No. 38576 for the Banning Electrical Utility to have the option to construct a new electrical substation (“Substation Property”). Such offer of dedication shall occur at the time final Parcel Map No. 38576 is recorded. If the City accepts the offer of dedication and undertakes construction of the electrical substation on the Substation Property, construction of the electrical substation shall be undertaken by the City at no cost to Developer. If the City accepts the offer of dedication for the Substation Property, City or its successors shall not use the Substation Property for any purpose other than a substation and related uses. If the City accepts the offer of dedication for the Substation Property, within thirty (30) days of City’s acceptance of the dedication, City shall pay the amount of the fair market value (“FMV”) of the Substation Property to the Developer, with the amount of the payment capped at the amount of the Electric Facilities Fee Acquisition of the Substation Property shall be at the sole discretion of the City and the City may in its sole discretion elect not to acquire the Substation Property.
E. Prior to the issuance of the first certificate of occupancy within the Project, the Developer shall be required to take all actions required to improve Hathaway Street, as depicted in Exhibit “C”.
F. The Developer shall use reasonable efforts to hire residents of the City of Banning.
Developer will hold at least one local job fair with the City for the purpose of recruiting workers from the City.
G. Sanitary Lift Station Land Construction and Dedication. Developer shall construct a sanitary lift station (“Lift Station”) on lettered lot “D” on the proposed Tentative Parcel Map No. 38576 (“Lift Station Property”) subject to plans and specifications approved by the Public Works Director and as contemplated by the Sewer Master Plan dated ___-. City shall issue DIF credits against the wastewater DIF which includes the Lift Station and Lift Station Property in the amounts of (i) the cost of designing and constructing the Lift Station, and (ii) the FMV of the Lift Station Property (collectively, “Lift Station Costs”) in an amount not to exceed the Developer’s wastewater DIF obligation. Developer shall complete construction of the Lift Station prior to the issuance of the first certificate of occupancy for the Project. Developer is aware that the sewer force main near the Project running to Nicolet was installed by a previous developer on its property, and Developer must 52 4924-7261-4673.13/
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obtain the consent of the property owner to use this sewer force main for the Project and to undertake any additional improvements to the sewer force main at its sole cost and expense.
H. FMV Process. In order to determine the FMV of the Substation Property and the Lift Station Property, City shall commission an appraisal for each property, which shall be addressed to City and Developer, at Developer’s sole expense, prepared by a licensed appraiser holding a MAI designation from the Appraisal Institute (“Developer’s Appraiser”) with at least 15 years’ experience in appraising similar properties in the same geographical region. The FMV shall be based upon the the assumption the Property has in place all needed discretionary approvals to develop a project similar in nature to the Project. The appraiser shall use a date of valuation which is the current date of the appraisal. Developer’s Appraiser shall deliver a written report as to their opinion of FMV for each property within sixty (60) days after such appraiser has been retained by Developer. Upon receipt of Developer’s appraisal, the City shall have thirty (30) days to review the appraisal and agree or dispute the determination of FMV. In the event that the City disputes the FMV determined by Developer’s appraisal, the City shall be entitled to commission a second appraisal, at the City’s own expense, prepared by a licensed appraiser having the qualifications provided above (“City’s Appraiser”). The City’s Appraiser shall deliver a written report as to their opinion of FMV for the property within sixty (60) days after such appraiser has been retained by the City. If the higher appraisal is equal to or less than 120% of the lower appraisal, the two appraisals will be added together and their total divided by two; the resulting quotient will be the FMV of the property in question. If the higher appraisal is greater than 120% of the lower appraisal, the Parties shall have sixty (60) days after Developer’s receipt of the City’s appraisal to reach a negotiated resolution. If the Parties are unable to reach a negotiation resolution, the Parties shall reasonably cooperate to select a third licensed appraiser having the qualifications provided above(“Review Appraiser”) to make a final determination of FMV. If the Parties are unable to agree on the selection of the Review Appraiser, the Parties shall jointly petition the Riverside County Superior Court to select a Review Appraiser. The Parties will equally share the fees and expenses associated with the Review Appraiser, including but not limited to, the Parties’ joint petition to select a Review Appraiser and the Review Appraiser’s fees. The Review Appraiser shall review the two appraisals and then make a determination of FMV, which shall be no less than the value of the lower appraisal and no greater than the value of the higher appraisal. The Review Appraiser’s determination of FMV shall be binding on all Parties.
I. Community Facilities Districts.
1. Service CFD. Developer agrees, pursuant to the Mello Roos Act, to petition the City or, alternatively, California Statewide Communities Development Authority (“CSCDA”) to form a community facilities district, the boundaries of which shall be coextensive with those of the Site (the “Service CFD”) for the purpose of financing City services and ongoing maintenance of public improvements provided by the City to the parcels within the boundaries of 53 4924-7261-4673.13/
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the Service CFD the cost of which shall be solely borne by the Developer, provided such services qualify as authorized services under the Mello Roos Act (collectively, “Authorized Services”). The Service CFD shall be a condition to the City’s issuance of the first certificate of occupancy for the Project.
2. If City sponsors the formation of the Service CFD, City shall initiate the process promptly following submission of Developer’s petition and compliance with Section 53318(d) of the Mello-Roos Act and shall use good faith, diligent efforts to form the Service CFD, including the scheduling of necessary public hearings at the cost of Developer. If requested, Developer will execute a reimbursement agreement providing for the advance deposit of monies to reimburse City for the cost of its implementing the CFD.
Developer agrees to cooperate in the formation and agrees that it will not contest and will exercise all of its voting power in favor of the formation of the Service CFD. Should Developer request CSCDA to sponsor the formation of the Service CFD, City shall cooperate in process and agrees to use good faith efforts to take all necessary and appropriate actions to assist Developer and CSCDA in the formation of the Service CFD in accordance with Section 9.H.1, including the issuance of necessary consents in the formation process.
3. Developer and City shall reasonably cooperate in developing the rate and method of apportionment of special taxes for the Service CFD (“Service RMA”), which the Parties agree shall provide, in part: (a) the maximum Service Special Tax rate in the first year that there is a levy of the Service Special Tax shall be at a rate of $0.10 per building square foot, which amount shall be subject to an “Annual Escalation Factor” equal to the annual percentage change in the Consumer Price Index published by the U.S. Bureau of Labor Statistics for “All Urban Consumers” in the RiversideSan Bernardino-Ontario Area, measured as of the month of April in the previous Fiscal Year, but not less than three percent (3%) and not greater than five percent (5%); (b) the levying of the Service Special Tax shall commence in the first fiscal year following the issuance of a certificate of occupancy by May 1 of the preceding Fiscal Year, (c) the adoption of an annual budgeting process to establish the annual actual Service Special Tax rate, and (d) the Service Special Tax cannot be prepaid.
4. Facilities CFD At the discretion of the Developer, Developer may, pursuant to the Mello Roos Act, petition the City or, alternatively, pursue other financing alternatives, including requesting CSCDA to form a community facilities district, the boundaries of which shall be coextensive with those of the Site (“Facilities CFD,” collectively with Service CFD, the “CFDs”) for the purpose of financing (i) public infrastructure required under the Development Agreement, including without exception, public streets, highways, and bridges, and other related improvements such as grading, paving, curbs and gutters, sidewalks, street signalization and signage, street lights and parkway landscaping related thereto, water facilities, storm 54 4924-7261-4673.13/
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drain facilities, sewer facilities, public parks, landscaping, electrical facilities, (collectively, “Facilities”), and (ii) Development Impact Fees, including, without exception, the Public Benefit Fees described in Section B and C above (“Fees,” collectively with Facilities, “Authorized Facilities and Fees”).
If City agrees to sponsor the formation of the Facilities CFD, City shall initiate the process promptly following submission of Developer’s petition and compliance with Section 53318(d) of the Mello-Roos Act, and shall use good faith, diligent efforts to form the Facilities CFD and timely issue bonds (“CFD Bonds”), including the scheduling of necessary public hearings related to formation and issuance of CFD Bonds. Any costs incurrent in establishing the Facilities CFD and issuing the CFD Bonds shall be paid from the CFD Bond proceeds, or failing that by the Developer. Developer agrees to cooperate in the formation and agrees that it will not contest and will exercise all of its voting power in favor of the formation of the Facilities CFD and issuance of CFD Bonds. Should Developer request CSCDA to sponsor the formation of the Facilities CFD and be the issuer of the CFD Bonds, City shall cooperate in process and agrees to use good faith efforts to take cooperate with Developer and CSCDA in the formation of the Facilities CFD and the issuance of the CFD Bonds, including the issuance of necessary consents in the formation and bond issuance processes.
Developer and City shall reasonably cooperate in developing the rate and method of apportionment of special taxes for the Facilities CFD (“Facilities RMA”).
5. In the event Developer conveys or grants an easement to any portion of the Site to City or any other government agency and the property so conveyed is subject to payment of special taxes under the Facilities CFD formed pursuant to this Development Agreement and CFD Bonds have been issued and are outstanding, Developer shall prepay the special taxes pursuant to the terms of the Facilities RMA with respect to the portion of the Site subject to an easement or being conveyed prior to completion of any such conveyance or easement. Upon completion of the conveyance or grant of easement, Developer’s obligation to pay special taxes pursuant to the Facilities RMA and the Services RMA for the conveyed property shall terminate. Alternatively, the RMA may exclude the forgoing conveyance or grant of easement from the imposition of the special taxes to accomplish the goals of this paragraph.
6. Notwithstanding the foregoing, it is acknowledged and agreed by the Parties that nothing contained in this Development Agreement shall be construed as committing or requiring the City Council to authorize and approve the formation of the CFDs and/or the issuance of the CFD Bonds. Further, City and Developer agree that the practical ability to issue CFD bonds is subject to marketability and therefore, Developer and City will first consult with a mutually agreed upon public finance consultant, at Developer’s cost prior to forming a Facilities CFD.
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7. Except as expressly set forth or reserved in this Development Agreement, City shall not, without the prior written consent of Developer, initiate the formation of any new financing district or assessment district involving the levy of special taxes or assessments for facilities or services applicable to the Project or any portion thereof during the term of this Agreement or prior to the substantial completion of the Project.
SECTION 10. COMPLIANCE REVIEW
Within ten (10) days of each anniversary of the Effective Date, Developer shall file a report with City containing sufficient evidence to demonstrate Developer’s good faith compliance with this Development Agreement, and City will review Developer’s report in good faith.
Pursuant to Gov. Code § 65865.1, if City finds and determines, as a result of its review, that there is substantial evidence that Developer has not complied in good faith with terms or conditions of this Development Agreement, City may terminate or modify the agreement. City does not waive any claim of defect in performance by Developer if after any annual review, City does not enforce this Development Agreement.
SECTION 11. TRANSFERS AND ASSIGNMENTS
A. Transfers. Developer shall have the right to sell, transfer or assign the Site in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code § 66410 et seq.) to any person, partnership, limited liability company, joint venture, firm or corporation at any time during the Term of this Development Agreement without the prior consent of City. City acknowledges and agrees it is likely in the future that Developer may transfer its interest in the Site to an affiliated entity. Developer and Transferee shall execute and record an Assignment and Assumption Agreement whereby the assignee agrees to perform all of the obligations of the Developer under this Development Agreement, a copy of which shall be delivered to the City contemporaneously upon the closing of such sale, transfer or assignment. Upon recordation of the Assignment and Assumption Agreement, Developer shall be released from its obligations with respect to such portion of, or interest in, the Project that was the subject of such Transfer.
B. Conditions Applicable to Transfers. Notwithstanding whether a Transferee has executed an Assignment and Assumption Agreement, a Transferee shall be deemed upon transfer or assignment to have assumed all Developer’s obligations and to have been assigned all of Developer’s rights under this Development Agreement, and will be deemed the Developer hereunder. This Development Agreement may only be transferred to a person or entity who acquires fee title to the Site or any portion of the Site. Notwithstanding anything herein to the contrary, in no event shall any Lender (as defined in Section 12 below) have any obligation under this Development Agreement unless and until such Lender purchases at a foreclosure sale, or accepts a deed in lieu of foreclosure, the portion of the Site that was subject to a mortgage.
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the full satisfaction by such transferring Developer of the following conditions and upon such satisfaction shall be released from the obligations under this Development Agreement: (i) Developer no longer has a legal or equitable interest in all or any part of the Site; (ii) Developer is not then in default under this Development Agreement; and (iii) Developer has provided City with the notice and executed agreement required under Section 11(A) above. If requested by transferring Developer, the City shall promptly memorialize such release in writing upon satisfaction of the foregoing conditions. A default under this Development Agreement by Developer shall not be considered or acted upon by the City as a default by the transferee and shall not affect the transferee’s rights or obligations hereunder,. Likewise, a default by a transferee relating to the transferred portion(s) of the Site shall not be considered or acted upon by the City as a default by Developer and shall not affect Developer’s rights and obligations hereunder.
Notwithstanding the forgoing, if a default of this Development Agreement is of a continuing nature that affects continued development of the Project including, but not limited to a failure to complete public improvements in accordance with the Project Approvals as needed to provide service to the Project or the payment of any tax, fee or assessment such default shall be the continuing responsibility of the transferee, if the transferee has accepted the obligation to complete public improvements.
SECTION 12. LENDERS
A. Rights of Lender. Should Developer place or cause to be placed any encumbrance or lien on the Project, or any part thereof, the beneficiary (“Lender”) of such encumbrance or lien shall have the right at any time during the Term of this Development Agreement and the existence of such encumbrance or lien to: (i) do any act or thing required of Developer under this Development Agreement, or cure any default of Developer under this Development Agreement within the time limits set forth in this Development Agreement, and any such act or thing done or performed by Lender or cure shall be as effective as if done by Developer; (ii) realize on the security afforded by the encumbrance or lien by exercising foreclosure proceedings or power of sale or other remedy afforded in law or in equity or by the security document evidencing the encumbrance or lien (hereinafter referred to as “a trust deed”); (iii) transfer, convey or assign the title of Developer to the Site to any purchaser at any foreclosure sale, whether the foreclosure sale be conducted pursuant to court order or pursuant to a power of sale contained in a trust deed; and (iv) acquire and succeed to the interest of Developer by virtue of any foreclosure sale, whether the foreclosure sale is conducted pursuant to a court order or pursuant to a power of sale contained in a trust deed. Should any Lender request an amendment of this Development Agreement in respect of the rights and remedies granted to a Lender, the City shall consider such an amendment in good faith and in accordance with state and local law so long as the proposed amendment does not materially and adversely affect the rights, powers, and remedies of the City in respect of a default by Developer hereunder.
B. Notice to Lender. City shall give written notice of any default or breach under this Development Agreement by Developer to Lender (if known by the City) 57 4924-7261-4673.13/
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simultaneously with such notice of default the City gives to Developer and afford Lender the opportunity after receipt of service of the notice to: (i) cure the breach or default within thirty (30) days after service of such notice, where the default can be cured by the payment of money; (ii) cure the breach or default within thirty (30) days after service of such notice where the breach or default can be cured by something other than the payment of money and can be cured within that time; or (iii) cure the breach or default in such reasonable time as may be required where something other than payment of money is required to cure the breach or default and cannot be performed within thirty (30) days after such notice, provided that acts to cure the breach or default are commenced within a thirty (30) day period after service of such notice of default on Lender by the City and are thereafter diligently completed by Lender.
C. Action by Lender. Notwithstanding any other provision of this Development Agreement, a Lender may forestall any action by the City for a breach or default under the terms of this Development Agreement by Developer by commencing proceedings to foreclose its encumbrance or lien on the Site. The proceedings so commenced may be for foreclosure of the encumbrance by order of court or for foreclosure of the encumbrance under a power of sale contained in the instrument creating the encumbrance or lien. The proceedings shall not, however, forestall any such action by the City for the default or breach by Developer unless: (i) they are commenced within thirty (30) days after service on Developer (and on Lender if Lender’s address is provided by notice to the City pursuant this Development Agreement) of the notice described hereinabove; (ii) they are, after having been commenced, diligently pursued in the manner required by law to completion within one year; and (iii) lender keeps and performs all of the terms, covenants, and conditions of this Development Agreement requiring the payment or expenditure of money by Developer until the foreclosure proceedings are complete or are discharged by redemption, satisfaction, or payment.
SECTION 13. NOTICES
Any notice or instrument permitted or required under this Development Agreement shall be deemed made when personally delivered or when mailed 72 hours after deposit in the United States Mail, certified mail postage prepaid and addressed to the party at the following addresses:
If to City: City of Banning
99 E. Ramsey Street
Banning, CA 92220
Attn: City Manager
If to Developer JDNJ ENTERPRISES, LLC
120 South Central Avenue, Suite 500
St. Louis. MO 63105
Attn: John C. Condas
Allen Matkins Leck Gamble Mallory & Natsis LLP
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2010 Main Street, Suite 800
Irvine, CA 92614
Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
SECTION 14. EVENT OF DEFAULT
Developer is in default under this Development Agreement upon the occurrence of one or more of the following events or conditions:
A. A material warranty, representation, or statement made or furnished by Developer to City set forth herein or in any document incorporated by reference herein is false or proved to have been false in any material respect when it was made.
B. City finds and determines upon the basis of substantial evidence following an annual review pursuant to this Development Agreement, that Developer has not complied in good faith with any material term and/or condition of this Development Agreement, subject to notice and opportunity to cure as provided by this Development Agreement.
C. Developer breaches any of the terms or conditions of this Development Agreement, after notice and opportunity to cure as provided in this Development Agreement.
SECTION 15. ENFORCEMENT
A. Notice; Cure. In the event of a default under the provisions of this Development Agreement by Developer or City, the non-breaching party shall give written notice to the defaulting party (or its successor) by registered or certified mail addressed at the address stated in this Development Agreement, and if such violation is not corrected to the reasonable satisfaction of the non-breaching party within thirty (30) days after such notice is served on the defaulting party, or if such breach or default cannot be cured within such thirty (30) days (excluding monetary defaults) and provided that acts to cure the breach or default must be commenced within such thirty (30) days and must thereafter be diligently pursued to completion by the defaulting party, then the non-breaching party may, without further notice, declare a default under this Development Agreement and, upon any such declaration of default, if the City is the defaulting party, Developer may bring any action necessary to specifically enforce the obligations of City. If Developer is the defaulting party, then City may give notice to Developer of its intent to terminate or modify this Development Agreement, in which event the matter shall be scheduled for consideration and review by the City Council.
B. Remedies. The Parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Development Agreement and should be available to the Parties for the following reasons: due to the size, nature, and scope of the Project, it may not be practical or possible to 59 4924-7261-4673.13/
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restore the Property to its natural condition once implementation of this Development Agreement has begun. After such implementation, Developer may be foreclosed from other choices it may have had to utilize the Site or portions thereof. Developer has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Development Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Development Agreement, and it is not possible to determine the sum of money which would adequately compensate Developer for such efforts. Accordingly, it is expressly recognized that injunctive relief and specific enforcement of this Development Agreement are proper and desirable remedies, and it is agreed that in any claim by Developer against City for an alleged breach of this Development Agreement may avail itself to injunctive relief or an appropriate action for specific enforcement of this Development Agreement. It is agreed that specific performance is not available to City against Developer, although City can seek the remedy of injunctive relief, declaratory relief or any other appropriate remedy against Developer.
C. Nonperformance by Developer. Nonperformance by Developer shall not be excused because performance by Developer of the obligations herein contained would be unprofitable, difficult, or expensive, or because of a failure of any third party or entity, other than City.
SECTION 16. PARTIES NOT LIABLE FOR DAMAGES
It is acknowledged by the Parties that the City and Developer would not have entered into this Development Agreement if either could be held liable in damages under or with respect to this Development Agreement or the application thereof. Consequently, and except for the payment of attorneys’ fees in accordance with this Development Agreement, the City shall not be liable in damages to Developer, or to any assignee, transferee, or any other person, and Developer shall not be liable in damages to City.
Developer and City jointly covenant on behalf of itself and its successors in interest not to sue for or claim any damages: (i) for any breach of this Development Agreement; (ii) for the taking, impairment or restriction of any right or interest conveyed or provided hereunder or pursuant hereto; (iii) arising out of or connected with any dispute, controversy, or issue regarding the application or interpretation or effect of the provisions of this Development Agreement; or (iv) for any injury to or interference with the rights of Developer, allegedly or actually arising out of, or incurred in connection with, the Parties entering this Development Agreement, or their exercise of any rights under this Development Agreement. Notwithstanding the forgoing, City shall not be excluded from seeking money damages for non-payment of the Electric Facilities Fee or the Transportation Public Benefit Fee, including attorney fees. In addition, Developer shall not be excluded from seeking its attorneys fees in the case of a breach of this Agreement by City.
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SECTION 17. INDEMNIFICATION AND LEGAL CHALLENGE
A. Claims For Damage For Personal Injuries. To the maximum extent permitted by law, Developer must defend, indemnify, and hold the City and its elected officials, officers, contractors serving as City officials, agents, and employees (“Indemnitees”) harmless from liability for damage and/or claims for damage for personal injuries, including death, and claims for property damage, and with respect to all other actions and liabilities for damages caused or alleged to have been caused by reason of Developer’s activities in connection with the development and/or construction of the Project, and which may arise from the direct or indirect operations of Developer or those of Developer’s contractors, agents, tenants, employees, or any other persons acting on Developer’s behalf, which relate to the development and/or construction of the Project. This indemnity provision applies to all damages and claims for damage, as described above, regardless of whether or not the City prepared, supplied, or approved the plans, specifications, or other documents for the Project, including any associated public or private improvements.
B. Prevailing Wages. Without limiting the generality of the preceding paragraph (A), Developer shall defend, indemnify, and hold the Indemnitees harmless from and against any and all claims, liabilities, losses, damages, costs, and expenses arising from or related to any claims that Developer or Developer’s contractors are required to pay prevailing wages pursuant to Labor Code Section 1720 et seq., in connection with the development of the Project or any public improvements.
C. Third Party Legal Challenge. Without limiting the generality of preceding paragraph A, in the event of any legal action challenging the validity, applicability, or interpretation of any provision of this Development Agreement, any of the entitlement documents pertaining to the Project including, without limitation, the City’s General Plan, Zoning Code, or any other supporting document relating to the Project, Developer shall also indemnify, defend, and hold harmless the Indemnitees with respect to all liability, costs, and expenses incurred by, and/or awarded against, the City or any of the Indemnitees in relation to such action.
D. Legal Counsel; Cash Deposit. With respect to any legal action or claim falling within Developer’s defense, indemnity, and hold harmless obligations, the City shall have the right to select counsel of its choice and the Parties shall cooperate in the defense. The City’s separate counsel billing rates shall be identical to the rates City pays for its typical municipal litigation rates for legal challenges of the variety being defended. Developer shall provide, and maintain for the duration of such action or claim, a cash deposit to City in an amount or amounts determined by the City Attorney to be reasonably necessary to cover the City’s legal fees, costs, and expenses. Developer shall not be entitled to a refund of funds expended from the deposit regardless of the outcome of the action or claim. The City shall refund to Developer any unexpended funds from the deposit within thirty (30) days of any final disposition or full and complete settlement of the action or claim. 61 4924-7261-4673.13/
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E. Continued Effect of Development Agreement. In the event of any litigation challenging the effectiveness of this Development Agreement, or any portion hereof, this Development Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending, unless otherwise ordered by the court. Absent issuance of an injunction, Developer may elect to continue development of the Project under this Development Agreement pending completion of the litigation but it shall do so at its sole risk, and the City shall not be liable for any loss suffered as a result thereof. City shall perform all obligations under this Development Agreement, including the timely processing of all applications submitted by Developer in connection with the Project.
F. Survival. This Section shall survive this the expiration or earlier termination of this Development Agreement. Notwithstanding the foregoing, Developer’s obligation to indemnify any Indemnitee due to personal injury or property injury suffered in connection with Developer’s design and construction of any public facility, shall terminate one (1) year after City accepts Developer’s dedication of such public facility.
SECTION 18. ENTIRE AGREEMENT
This Development Agreement and the Exhibits therein contain the entire agreement between the Parties, and is intended by the Parties to completely state the Development Agreement in full. Any agreement or representation respecting the matters dealt with herein or the duties of any Party in relation thereto, not expressly set forth in this Development Agreement, is null and void.
SECTION 19. AMENDMENT OR CANCELLATION
Except as otherwise provided for herein, this Development Agreement may be amended or canceled in whole or in part only by mutual consent of the Parties, or their successors in interest, and in the manner provided in Gov. Code, §§ 65865.1, 65867, 65867.5.
SECTION 20. OPERATING MEMORANDA
The provisions of this Development Agreement require a close degree of cooperation between the City and the Developer. It is anticipated due to the term of this Development Agreement that non-substantive interpretation of the Development Approvals may be appropriate with respect to the details of performance of the City and the Developer. To the extent allowable by law and this Development Agreement, the City and Developer shall retain a certain degree of flexibility with respect to all matters, items and provisions covered in general under this Development Agreement. The Developer may request minor changes, adjustments or clarifications under this Agreement and the City and Developer may effectuate such changes, adjustments or clarifications through operating memoranda (“Operating Memoranda”) approved by the Parties in writing, which reference this Section of the Development Agreement. Operating Memoranda shall not constitute an amendment to this Development Agreement but mere ministerial interpretations or clarifications; therefore, public notices and hearings shall not be required. The City Attorney shall be authorized, upon consultation with the Developer, to determine whether 62 4924-7261-4673.13/
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a requested interpretation or clarification may be effectuated pursuant to this Section or whether the requested clarification is of such character to constitute an amendment to the Development Agreement which requires compliance with the provisions of this Development Agreement pertaining to amendments. The authority to enter into such Operating Memoranda is hereby delegated to the City Manager, and the City Manager is hereby authorized in his or her discretion to execute any Operating Memoranda permitted hereunder without Planning Commission or City Council action and without public hearing.
SECTION 21. MISCELLANEOUS PROVISIONS
A. Binding Effect. This Development Agreement shall bind, and the benefits and burdens hereof shall inure to, the respective Parties hereto and their legal representatives, executors, administrators, successors and assigns, wherever the context requires or admits.
B. Headings. Headings used in this Development Agreement are for reference purposes only and shall not be deemed a part of this Development Agreement.
C. Exhibits. Each exhibit referenced in this Development Agreement is hereby incorporated into the Development Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Development Agreement, the terms of this Development Agreement shall control.
D. Time of Essence. Time is of the essence in every provision hereof in which time is a factor.
E. Force Majeure. In the event that any party hereto shall be delayed or hindered or prevented from performance of any act required hereunder by reason of acts of God, strikes, lockouts, labor troubles, riots, insurrection, terrorism, war, pandemics, epidemics or other reason of similar nature not the fault of the party delayed in performing the work or doing the acts required under the terms of this Development Agreement, then the performance of such act shall be excused for the period of the delay caused by the foregoing. Financial inability shall not be deemed an excuse for delay under this Section.
F. Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise.
G. Cooperation. Each of the Parties shall cooperate with and provided reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Development Agreement and the satisfaction of the conditions of this Development Agreement.
H. City Manager Authority. Any consent, approved or other instrument described in this Development Agreement may be granted, given or executed on behalf of the 63 4924-7261-4673.13/
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City by the City Manager or their written designee without the need for further authorization from the City Council; provided, however that, notwithstanding the foregoing, the City Manager or their designee may, in their sole discretion, refer to the City Council any item for which the City Manager has authority to act hereunder.
I. Conflicts of Interest; Prohibited Interests. Developer warrants and maintains as of the Effective Date of this Development Agreement that it has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of Developer. If any information regarding an officer of employee of the City having an interest in this transaction or in the business of Developer as of the Effective Date of this Development Agreement comes to the knowledge of Developer at any time during the Term of this Development Agreement, Developer shall immediately make a complete, written disclosure of such interest to the City, even if such interest would not be deemed a prohibited “conflict of interest” under applicable laws. If the City subsequently is provided information that Developer had knowledge but failed to disclose knowledge of any such interest, and Developer fails to acknowledge such interest within 14 days of notification by the City, Developer’s failure shall constitute a breach of the Development Agreement subject to the provisions of Section 14 of this Development Agreement.
J. Applicable Law and Venue. This Development Agreement shall be construed in accordance with and governed by the laws of the State of California. Venue for any action or litigation brought for breach or to enforce any provision of this Development Agreement shall be the County of Riverside, California.
K. Partial Invalidity. If any provisions of this Development Agreement shall be deemed to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
L. Attorneys’ Fees. In any proceedings arising from the enforcement of this Development Agreement or because of an alleged breach or default hereunder, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees and experts’ fees incurred during the proceeding (including appeals) as may be fixed within the discretion of the court.
M. Corporate Authority. Each person executing this Development Agreement on behalf of Developer warrants that he or she is duly authorized to execute this Development Agreement on behalf of Developer and that by his or her execution, Consultant is formally bound to the provisions of this Development Agreement.
N. Counterparts. This Development Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument. 64 4924-7261-4673.13/
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O. No Third-Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Development Agreement.
P. Legally Binding Contract; Enforceability. It is the intent of City and Developer that this Development Agreement is a legally binding contract which shall prevail over the provisions of any subsequently enacted moratoria, statutes, ordinances, limitations, or other measures, enacted by City, or under the authority of City by voter initiative or referendum, and which initiative, moratorium, referendum, statute, ordinance, limitation, or other measure relates, in whole or in part, to the rate, timing, sequence, or phasing of the development or construction of all or part of the Project or the improvements or affecting parcel or subdivision maps, building permits, occupancy certificates, or other entitlement to use the Site which are issued by City, subject only to the rights and powers reserved to City under the terms of this Development Agreement and the requirements of California law IN WITNESS WHEREOF, the undersigned have executed this Development Agreement as of the day and year first above-written.
CITY
CITY OF BANNING,
a California municipal corporation
By: _________________________
Mayor
ATTEST:
By: _________________________
Marie Calderon
City Clerk
APPROVED AS TO FORM:
By: _________________________
City Attorney
DEVELOPER
JDN ENTERPRISES, LLC,
a Missouri limited liability corporation
By: __________________________
{Name}
{Title}
By: __________________________
{Name}
{Title}
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{This Page Left Intentionally Blank}
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EXHIBIT A
-1-
EXHIBIT A
SITE LEGAL DESCRIPTION
{INSERT LEGAL DESCRIPTION}
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EXHIBIT B
-2-
EXHIBIT B
DIF SCHEDULE AS OF EFFECTIVE DATE
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EXHIBIT C
-3-
EXHIBIT C
HATHAWAY IMPROVEMENTS
The following shall be completed to the satisfaction of the City Engineer:
Along the west side of N Hathway Street between E Williams Street and E George Street, install City standard sidewalk behind curb and gutter, and install city standard curb ramps at intersections. Install new residential driveways as necessary to maintain access to existing driveway locations. Within the existing right-of-way and pavement along the west side of N Hathway Street between E Williams Street and future Wilson Street, install striping for a new 6 ft. bike lane.
Within the existing right-of-way and pavement along the east side of N Hathway Street between E Williams Street and existing Nicolet Street, install striping for a new 6 ft. bike lane.
At the intersection of E Jacinto View Road and N Hathway Street, provide traffic measure to restrict Project traffic from access to E Jacinto View Rd At the intersection of E Nicolet Street and N Hathway Street, provide traffic measure to restrict Project traffic from access to E Nicolet Street At the intersection of E George Street and N Hathway Street, provide traffic measure to restrict Project traffic from access to E George Street 69 §¨¦10
HATHAWAY ST
GILMAN
ST
THEODORE ST
HOFFER ST
REPPLIER RD
WILSON ST
WILLIAMS
ST
CHRISTIE
ST
HARLOW
ST
JUAREZ
ST
MORONGO RD
HATHAWAY ST
N EVANS ST
ALMOND ST
BLANCHARD
ST
SULLIVAN RD
COTTONWOOD RD
ALLEN ST
NICOLET ST
RAMSEY ST
PHILLIPS
ST
LINCOLN ST
PHILLIPS ST
CHERRY
ST CHERRY ST
EVANS
ST
HARLOW
ST
CHERRY
ST
BLANCHARD ST
EVANS
ST
ALMOND WAY
GARCIA RD
JOHN ST
SERANO RD
DAILY RD
SANTIAGO RD
LAWS RD
KELSO ST
County of San Bernardino, Maxar
PROJECT
LOCATION
PROJECT NUMBER: DR 21-7017
VICINITY MAP
APN: 532-030-008,532-030-009,532-080-008,
532-080-010,532-090-026, 532-090-028,
532-090-030,532-110-015
ZONE:Business Park (BP)
0 :250 500 750 1,000
Feet
70 UNION PACIFIC RAILROAD
HATHAWAY ST
THEODORE ST
GILMAN ST
WILSON ST
GEORGE ST
WILLIAMS ST
HATHAWAY ST
HARLOW ST
HOFFER ST
NICOLET ST N EVANS ST JACINTO
VIEW RD
RAMSEY ST
EVANS ST
HARLOW ST
EVANS ST
KELSO ST
MORONGO RD
County of San Bernardino, Maxar
PROJECT
LOCATION
PROJECT NUMBER: DR 21-7017
AERIAL BASE MAP
APN: 532-030-008,532-030-009,532-080-008,
532-080-010,532-090-026, 532-090-028,
532-090-030,532-110-015
ZONE:Business Park (BP)
0 :250 500 750 1,000
Feet
71 PROJECT
LOCATION
PROJECT NUMBER: DR 21-7017
DEVELOPMENT OPPORTUNITIES
APN: 532-030-008,532-030-009,532-080-008,
532-080-010,532-090-026, 532-090-028,
532-090-030,532-110-015
ZONE:Business Park (BP)
0 :250 500 750 1,000
Feet
§¨¦10
HATHAWAY ST
HOFFER ST
VAL MONTE ST
THEODORE ST
GILMAN ST
WILSON ST
GEORGE ST
CHRISTIE
ST
HATHAWAY ST
LAWS
RD
DAILY
RD
HARLOW ST
NICOLET ST
WILLIAMS ST
N EVANS ST
CHERRY ST
ALLEN ST
JACINTO
VIEW RD
RAMSEY ST
JUAREZ ST
JOHN ST
LINCOLN ST
PHILLIPS ST PHILLIPS ST
CHERRY
ST
EVANS ST
HARLOW
ST
CHERRY ST
EVANS ST
SULLIVAN RD
KELSO ST
MORONGO RD
County of San Bernardino, Maxar
CalFire Fire Hazard Severity Zones
California Geological Survey Liquefaction Hazard Zone
FEMA 1% (100-Year) Annual Chance Flood Hazard Zone
FEMA 0.2% (500-Year) Annual Chance Flood Hazard Zone
MSHCP Criteria Cells
USGS Blue Line Streams
Banning Airport Influence Area
Legend
Fault Zones
PROJECT
LOCATION
PROJECT NUMBER: DR 21-7017
DEVELOPMENT OPPORTUNITIES
APN: 532-030-008,532-030-009,532-080-008,
532-080-010,532-090-026, 532-090-028,
532-090-030,532-110-015
ZONE:Business Park (BP)
0 :250 500 750 1,000
Feet
72 §¨¦10
532-090-030
532-030-008 532-030-009
532-090-028
532-080-010
532-110-015
532-080-008
532-090-026
UNION PACIFIC RAILROAD
Maxar
PROJECT
LOCATION
PROJECT NUMBER: DR 21-7017
GENERAL PLAN/ZONING MAP
APN: 532-030-008,532-030-009,532-080-008,
532-080-010,532-090-026, 532-090-028,
532-090-030,532-110-015
ZONE:Business Park (BP)
0 :250 500 750 1,000
Feet
Business
Park
Medium
Density
Residential
Business
Park
Very High
Density
Residential
Public Facilities - Airport
Open Space - Parks
Airport Industrial
Low Density
Residential
Industrial -
Mineral
Resources
Open Space -
Resources
Open Space - Parks
Airport Industrial
Airport Industrial
Industrial 73
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: David Newell, Community Development Director MEETING DATE: May 27, 2025
SUBJECT: Consideration of (1) Resolution 2025-59, Approving the Banning Commerce Center Project by Sansone Group, Including a Design Review Application, Case DR 21-7017, for the Construction of a 1,320,284-Square Foot Industrial Warehouse Building on 131.28-acres of Land Generally Located North of the I-10 Freeway/E. Ramsey Street, East of N. Hathaway Street and Bisected by Wilson Street ("Project Site") and a Tentative Parcel Map Application, Case TPM 38756, for the Subdivision of the 131- 28-acre Project Site into Three Numbered Lots for Private Development Improvements and Four Lettered Lots for Right-of-Way and Other Improvements; (2) Resolution 2025-60, Certifying the Environmental Impact Report (SCH No. 2022090102), Adopting Findings and a Statement of Overriding Considerations, and Adopting a Mitigation Monitoring and Reporting Program for the Banning Commerce Center Project Consisting of a 1,320,284-Square Foot Industrial Warehouse Building on 131.28-acres of Land Located on the Project Site; and (3) Introduction and First Reading of Ordinance 1609, Approving a Development Agreement By and Between the City of Banning and JDJN Enterprises, LLC, a Missouri Limited Liability Corporation RECOMMENDATION:
1. Adopt Resolution 2025-59.
2. Adopt Resolution 2025-60.
3. Introduce and conduct first reading of, by title only, Ordinance 1609: AN ORDINANCE OF THE
CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING A DEVELOPMENT
AGREEMENT BY AND BETWEEN THE CITY OF BANNING AND JDNJ ENTERPRISES, LLC, A
MISSOURI LIMITED LIABILITY CORPORATION
BACKGROUND:
At its regular meeting of May 13, 2025, the City Council held a public hearing and considered the subject applications. After closing the public hearing and deliberating, the Council continued the applications to its next regular meeting of May 27, 2025, with the following direction:
1. Include the EIR Findings/Statement of Overriding Considerations as an attachment to Resolution 2025-60 (rather than as a reference document held in the Clerk's office)
2. Provide additional clarifying information on Planning Commission concerns
3. Provide additional information on the Community Facilities District (CFD) fee ($.10 per sq. ft.) in the Development Agreement
As a result, staff has revised and included attachments to this report as follows:
74 Revised Resolution 2025-60 to include Exhibit 2 (Findings of Fact and Statements of Overriding Considerations) and Exhibit 3 (Mitigation Monitoring and Reporting Program) Included the March 5, 2025 Planning Commission meeting minutes as an attachment Revised Exhibit B (Public Works Conditions) of Resolution 2025-59 to include conditions on improvements to Hathaway Street under Condition of Approval, PW.Street 42.
Included a fiscal analysis report provided by the Applicant as an attachment As noted in the fiscal impact analysis report, it is anticipated that the project would result in a net increase of recurring revenues amounting to $505,215 annually. The report cites total recurring revenues of $869,954 annually and total recurring expenditures of $364,739 annually, which results in the net increase of $505,215 to the City's annual revenues. The CFD would augment the annual revenue generated by the Project and provide an additional $132,000 annually toward maintenance and services within the boundary of the CFD once established, which further reduces impacts to the City's finances.
Further, the developer will be paying $9-million toward transportation improvements and $357,000 per megavolt amperes based on the user's electrical load.
As shown in the attached meeting minutes, the Planning Commission had a majority support for the approval of the project. The Commission included conditions to require revisions to the development agreement to address City Attorney requests, improve Hathaway to minimize and reduce transportation/traffic safety impacts, and require local hiring. All of these items were addressed prior to City Council review on May 13th, as part of the revisions to the draft development agreement, and staff has further incorporated traffic improvements in the Public Works Conditions to further ensure Hathaway improvements are addressed prior to occupancy of the building. The Commissioners opposing the motion identified concerns with the Multiple Species Habitat Conservation Plan (MSHCP) compliance, Airport Land Use Commission (ALUC) review status, and the analysis of cumulative impacts traffic impacts. The Applicant has identified the steps taken to address MSHCP compliance, including meeting with various agencies having jurisdiction, providing on-site mitigation, and conducting additional mitigation as identified in the Final EIR and MMRP. Since the Planning Commission decision, the Applicant has completed the ALUC review process and the project has been found to be consistent with the County's Compatibility Plan. Lastly, the cumulative impacts analyzing traffic impacts did not include the existing warehouse south of the freeway, based on industry standards and normal practices for traffic analysis and due to the analysis accounting for future growth which would capture the increase in traffic upon occupancy of said warehouse.
JUSTIFICATION:
In order to approve the subject applications, the City Council is required to make findings pursuant to BZO Section 17.56.050 (Design Review), Section 66474 of the Subdivision Map Act (Tentative Map), and BZO Section 17.60.030(C) (Development Agreement). The Planning Commission recommended approval of these applications pursuant to the findings in Planning Commission Resolution 2025-04. The findings are included in the draft resolution and ordinance attached to this report.
Design Review:
BZO Section 17.56.050 requires that four findings be met to justify approval of a Design Review application. The Planning Commission found the following:
Finding A: The proposed use is consistent with the General Plan.
Finding of Fact: Proposed Design Review 21-7017 is consistent with the General Plan Land Use Element Policy, which states: “The land–use map shall provide for sufficient lands to provide a large range of products and services to the City and the region while carefully considering compatibility with adjacent residential lands.” The subject property is designated Business Park (BP) on the General Plan land use map. The proposed use is consistent with the BP land-use designation and is a permitted use within the zoning district. This land use designation includes industrial parks and freestanding industrial users. Examples of permitted uses include light and medium intensity manufacturing operations, warehousing and distribution, ministorage, and associated offices. Further, Design Review 21-7017 is 75 consistent with General Plan Economic Development Policy, which states: “The City shall take a proactive role in the retention of existing businesses and the recruitment of new businesses, particularly those that generate and broaden employment opportunities, increase discretionary incomes, and contribute to City General Fund revenues.” Approval of proposed Design Review 21-7017 would allow the applicant to promote business diversity, while providing an economic benefit to the City.
Finding B: The proposed use is consistent with the Zoning Ordinance, including the development standards and guidelines for the district in which it is located.
Finding of Fact: The proposed Project is an approximately 1,320,284 square-foot light industrial speculative warehouse facility and is consistent with the Zoning Ordinance and development standards. Warehousing and distribution are permitted uses in the Business Park zone and the Project will provide adequate parking and landscaping. Additionally, all setbacks, height requirements and other applicable standards and design guidelines have been satisfied.
Finding C: The design and layout of the proposed project will not unreasonably interfere with the use and enjoyment of neighboring existing or future development, and will not result in vehicular and/or pedestrian hazards.
Finding of Fact: The design and layout of the proposed Project is consistent with the development standards and design standards of the Banning Municipal Code. The proposed design and layout will not create any new interference with pedestrian or vehicular traffic paths of the neighboring properties or future development. Additionally, the Project proposes street frontage and circulation improvements with access to the street to be provided by driveways from Wilson Street and the intersection of Nicolet and O’Donnell Streets, and will not result in hazards for vehicles or pedestrians. The Project is conditioned to provide additional right-of-way fronting onto O’Donnell Street and to improve the roadway for Wilson Street into the site to its ultimate configuration.
Finding D: The design of the proposed project is compatible with the character of the surrounding neighborhood.
Finding of Fact: The Project is a new construction development with a proposed 1,320,284 square-foot light industrial speculative warehouse facility, which will be compatible with adjacent Industrial and other non-residentially zoned properties to the north, south, and east. The Project is considered an Industrial use. Landscaping is required to maintain the character of the surrounding neighborhood.
Tentative Parcel Map:
Pursuant to Section 66474 of the Subdivision Map Act, there are seven findings that must be met to justify approval of a Tentative Map application. The Planning Commission found the following:
Finding A: The proposed Tentative Tract Map or Tentative Parcel Map is consistent with all applicable general and specific plans.
Finding B: The design and improvements of the proposed Tentative Tract Map or Tentative Parcel Map is consistent with the zone in which the property is located.
Findings of Fact: The City’s General Plan land use designation and Zoning Map will continue to indicate the designation of the project site as “Business Park,” and the proposed Map provides for the accommodation of seven (7) new parcels, consisting of a variety of industrial and civic uses, lot types and sizes ranging from 1.34-acres to 89.5-acres, common open spaces, and circulation and other public improvements. The proposed map furthers the objectives and policies of the General Plan in that 89.5 acres of the project area is dedicated to industrial development, and 17.23-acres will be dedicated to new right-of-way improvements.
Finding C: The site of the proposed map is physically suitable for the type of development proposed.
Finding D: The subject site is physically suitable for the proposed density of development.
Finding of Fact: The 131.28-acre Project site is currently vacant and undeveloped. The Project site has gentle sloping and does not contain drastic elevation changes over short distances. The Project site has elevations ranging between 2,325 feet above mean sea level (amsl) on the northwest corner of the 76 Project site at the intersection of Hathaway Street and Morongo Road, and 2,152 ft amsl on the southeast corner of the Project site. There is approximately 173 ft of elevation difference across the Project site and the site gradient is approximately 3.8 percent. The existing drainage pattern for the Project site is characterized by sheet flows across the Project site to the southeasterly corner of the Project site. Runoff is captured by an existing earthen ditch on the southern boundary of the Project site and is conveyed easterly into the California Department of Transportation right-of-way. The Project site lies within the San Gorgonio River Watershed and ultimately discharges into the Salton Sea. The proposed map as conditioned, including the mitigation measures contained within the Final Environmental Impact Report and the Mitigation Monitoring Reporting Program will ensure that the Project’s development is in accordance with and will implement the public improvements and mechanisms whereby the necessary facilities and resources will be available for future uses.
Finding E: The design of the subdivision or the proposed improvements are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat.
Finding of Fact: With the exception of the significant and unavoidable environmental effects of the project identified in the FEIR and the MMRP, the design of the subdivision and proposed improvements are not expected to cause substantial environmental damage or to substantially injure fish or wildlife or their habitat. The project site is not in a linkage designated under the MSHCP that is a connection between substantial habitat blocks with adequate size, configuration, and vegetation characteristics to generally provide for “live-in” habitat and/or provide for genetic flow for identified covered species. Significant cumulative effects of the project on the MSHCP-covered plans and wildlife, wildlife movement, riparian/riverine areas and habitat connectivity are fully mitigated by the City of Banning’s signatory status under the MSHCP and the requisite measures for mitigation of project-specific impacts to the burrowing owl, Los Angeles pocket mouse and Stephens’ kangaroo rat and these species’ habitat.
Cumulative effects not specially covered under the MSHCP are nevertheless mitigated to less than significant levels by the broad range of habitats covered by the MSHCP, project design features and mitigation measures required for the proposed project, and payment of the MSHCP mitigation fee.
Finding F: The design of the proposed map, and its proposed design and improvements, is not likely to cause serious public health problems.
Finding of Fact: The design of the subdivision is in conformance with the City’s General Plan, Zoning Ordinance and Subdivision Ordinance. Moreover, the future construction of the Banning Commerce Center development project will comply with all applicable City of Banning Ordinances, codes, and standards including but not limited to the California Uniform Building Code, the City’s Ordinances relating to Stormwater runoff management and controls. The design and construction of all improvements for the subdivision will be in conformance with the City of Banning General Plan Circulation Element which establishes the general layout and design standards or the major vehicular roadways and non-vehicular paths within the project area. The proposed street improvements and internal circulation have been created based on currently accepted standards and practices for the preservation of the public health, safety and welfare, and are in compliance with the General Plan Circulation Element. By means of the project’s circulation design, the proposed street system throughout the Project area will not impede emergency vehicle access and response times throughout the neighborhoods.
Finding G: The design of the proposed map, and its proposed design and improvements, will not conflict with easements, acquired by the public at large, for access through or use of property, within the proposed subdivision.
Finding of Fact: The subdivision design with any easements acquired by the public at large for access through or use of the property. The design of the subdivision and type of improvements will maintain or reconfigure easements when necessary for public access and services, abandon those easements no longer needed for public purposes, and dedicate new easements as needed to provide for public access and services through the property within the proposed subdivision.
Development Agreement:
BZO Section 17.60.030(C) requires that two findings be met to justify approval of a Development 77 Agreement. The Planning Commission found the following:
Finding A: The proposed Development Agreement via adoption and certification of the Final Environmental Impact Report, and approval of the Design Review and Tentative Parcel Map will be consistent with the General Plan and Zoning Map.
Findings of Fact: In accordance with the Banning Municipal Code, the Development Agreement contains provisions that set forth a defined term, the specific types, density, and intensity of uses allowed, reservations or dedication of land for public purposes, a limited stay on future development fee increases; and processes for reviewing related future approvals and amending the Development Agreement. Approval of the Development Agreement would provide for the orderly development of the Project and necessary infrastructure improvements.
Finding B: The proposed Development Agreement would promote the welfare and the interest of the City.
Findings of Fact: The Development Agreement incorporates provisions for financing, acquisition, and construction of infrastructure, for the Banning Commerce Center Project, as well as acquisition and development of public street improvements. The DA would grant the applicant vested rights to development of the Project in accordance with a phasing plan and other City approvals in exchange for certain financial contributions, including a substantial public benefit fee, and other consideration to be received by the City.
FISCAL IMPACT:
Fiscal impacts will be offset by fees and improvement costs paid by the developer, including permit applications, impact fees, and roadway and other public improvements. In addition, the City will receive directly benefit financially by the following negotiated items, which are beyond the typical fees paid by a development application if the development agreement is approved:
1. $9,000,000 in payments to the City for funding transportation-related costs toward roadways/interchanges
2. $357,000 payment for per megavolt-amperes (MVA), based on the requested electrical load
3. $0.10 per sq. ft. annually (with annual CPI escalator) as part of a community facilities district to pay for on-going maintenance costs of public streets, public facilities and parks, and other related improvements and maintenance in the District; this would amount to over $132,000 in annual revenue to offset maintenance costs and other city services as specified in the CFD once established.
As noted in the fiscal impact analysis report, it is anticipated that the project would result in a net increase of recurring revenues amounting to $505,215 annually. The report cites total recurring revenues of $869,954 annually and total recurring expenditures of $364,739 annually, which results in the net increase of $505,215 to the City's annual revenues. The CFD would augment the annual revenue generated by the Project and provide an additional $132,000 annually toward maintenance and services within the boundary of the CFD once established, which further reduces impacts to the City's finances.
ALTERNATIVES:
1. Modify the conditions for approval based on evidence received during the hearing
2. Provide alternate responses to the required findings and direct staff to return with resolution ratifying a different decision
BUDGETED?:
No
CONTRACT/AGREEMENT:
Yes
ATTACHMENTS:
1. CC Resolution 2025-59 (compiled)
78 2. CC Resolution 2025-60 (compiled)
3. Ordinance 1609
4. Draft Development Agreement
5. Applicant Response to PC Concerns
6. Riverside Co ALUC Approval Ltr
7. EIR and Appendices Links
8. Preliminary Site, Grading, and Street Plans
9. Floor Plan and Elevations
10. Landscape Plan
11. Tentative Parcel Map, TPM 38576
12. Aerial and Vicinity Maps
13. Public Hearing Notice - City Council 5-13-25 Meeting
14. Notice of Continuation - City Council 5-27-2025
15. Fiscal Impact Analysis 7-1-24
16. Planning Commission Meeting Minutes 3-5-25
79 CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Nate Smith, Deputy Director of Public Works/City Engineer Art Vela, Director of Public Works
MEETING DATE: June 24, 2025
SUBJECT: Consideration of Resolution 2025-89, Approving Final Parcel Map 38497 and Release the Map for Recordation
RECOMMENDATION:
Adopt Resolution 2025-89.
BACKGROUND:
Tentative Parcel Map 38497 was adopted by City Council with Resolution 2023-86 on May 9th, 2023.
The Final Map subdivides a single 1.14 acre lot into 4 parcels of approximately 0.29 acres each for residential purposes and 1 parcel for street and utility purposes.
JUSTIFICATION:
The Final Parcel Map was checked by the City's consulting surveyor and was found to be technically correct and conform to the requirements of the Subdivision Map Act. All Conditions of Approval required to be met prior to the recording have been met. They City Engineer has verified that the final maps are in conformance with the approved Tentative Parcel Map 38497.
FISCAL IMPACT:
There is no direct fiscal impact based on the approval of final maps. However, the recordation of the maps allows for the development of the project which will increase the assessed value of the properties resulting in an increase in property tax revenue. Additionally, the project will generate development impact fee revenues. The City’s cost for processing the project will be offset by processing fees.
ALTERNATIVES:
Do not adopt Resolution 2025-89 and provide staff with additional direction.
BUDGETED?:
No
CONTRACT/AGREEMENT:
No
ATTACHMENTS:
1. Resolution 2025-89, FTM 38497.docx
2. Resolution 2025-89 - FPM 38497 Exhibit A.pdf
3. Att. 1 CC Resolution No. 2023-086.pdf
80 Resolution 2025-89
RESOLUTION 2025-89
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING FINAL PARCEL MAP NO. 38497, AUTHORIZING STAFF TO SIGN THE FINAL
PARCEL MAP, AND RELEASING THE FINAL MAP FOR RECORDATION WHEREAS, Tentative Parcel Map (TPM) No. 38497 was approved by City Council on May 9th, 2023 with Resolution 2023-86; and
WHEREAS, Final Parcel Map (PM) No. 38497 will subdivide a single 1.14 acre parcel into 4 parcels or approximately 0.29 acres each and dedication for Wilson Street to the ultimate width per the Circulation Element within the General Plan; and WHEREAS, the PM 38497 have been deemed technically correct and that they conform to the requirements of the Subdivision Map Act and the City Engineer has verified that PM 38497 are in substantial conformance with the approved TPM 38497.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council approves PM 38497, a copy of which is hereby attached as Exhibit “A” and made part of this Resolution.
SECTION 2. The City Council directs the Administrative City Clerk to transmit PM 38497 to the County Recorder of the County of Riverside for recordation.
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 24th day of June, 2025.
Sheri Flynn, Mayor
City of Banning
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
81 Resolution 2025-89
APPROVED AS TO FORM:
John Pinkney, Interim City Attorney
Slovak, Baron, Empey, Murphy & Pinkney,
LLP
82 Resolution 2025-89
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2025-89, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 24th day of June, 2025 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
83 Resolution 2025-89
EXHIBIT A
Final Parcel Map 38497
84 85
86 87
88 89
90 RESOLUTION 2023-86
A RESOLUTION OF THE CITY COUNCIL, OF THE CITY OF BANNING, CALIFORNIA,
AFFIRMING THE RECOMMENDATION OF PLANNING COMMISSION APPROVING TENTATIVE PARCEL MAP 38497 ( TPM 22-4004), A PROPOSED SUBDIVISION OF ONE ( 1) 1.14-ACRE PARCEL INTO FOUR ( 4) SINGLE- FAMILY RESIDENTIAL LOTS
WITHIN THE LOW DENSITY RESIDENTIAL DISTRICT, LOCATED ON THE SOUTH SIDE OF W. WILSON STREET, BETWEEN FOURTH STREET AND LINDA VISTA DRIVE, IN THE CITY OF BANNING, CA 92220 ( APN 540-070-006), AND MAKING A DETERMINATION OF EXEMPTION UNDER CEQA GUIDELINES SECTION 15315 WHEREAS, Roberto Robles (" Applicant") has applied for a subdivision under Tentative Parcel Map 38497 to subdivide one (1) lot in four (4) lots for the purposes of creating individual parcels for future single-family residential development (the "Project"); and
WHEREAS, Title 16 of the Banning Municipal Code and the Subdivision Map Act allow the subdivision of the 1.14-acre lot into four (4) new residential lots within the LowDensity Residential zone subject to the approval of a Tentative Parcel Map; and WHEREAS, on April 5, 2023, the Planning Commission held a noticed public hearing at which time interested persons had an opportunity to testify in support of, or opposition to, the Project and at which the Planning Commission considered the Tentative Parcel Map 38497; and
WHEREAS, on May 9, 2022, the City Council held a noticed public hearing at which time interested persons had an opportunity to testify in support of, or opposition to, the Project and at which the City Council considered the Tentative Parcel Map 38497; and
WHEREAS, in accordance with the requirements of the California Environmental Quality Act ( CEQA), the Community Development Director analyzed Tentative Parcel Map 38497 and determined that the Project is categorically exempt from the requirements of the California Environmental Quality Act (" CEQA"), pursuant to State CEQA Guidelines Section 15315 (Class 15 - Minor Land Divisions) because the Project consists of the division of property in an urbanized area zoned for residential use into four or fewer parcels; the division is in conformance with the City of Banning General Plan and zoning; no variances or exceptions are required; all services and access to the proposed parcels to local standards are available; the subject parcel was not involved in a division of a larger parcel within the previous 2 years; and the subject parcel does not have an average slope greater than 20 percent; and
WHEREAS, on April 28, 2023, the City gave public notice as required under Government Code Section 66451.3 by advertising in the Record Gazette Newspaper, and mailing notices to all property owners within 300-feet on April 25, 2023, of the project site Resolution 2023- 86
91 of the holding of a public hearing for the City Council' s review and recommendation, at which time the project would be considered; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The Planning Division staff have determined that the project is categorically exempt from the requirements of the California Environmental Quality Act ( CEQA) and the State CEQA Guidelines. The Project qualifies under the CEQA Guidelines Section 15315 ( Class 15 - Minor Land Divisions) categorical exemption because the Project:
consists of the division of property in an urbanized area zoned for residential use into four or fewer parcels; the division is in conformance with the City of Banning General Plan and zoning; no variances or exceptions are required; all services and access to the proposed parcels to local standards are available; the subject parcel was not involved in a division of a larger parcel within the previous 2 years; and the subject parcel does not have an average slope greater than 20 percent. The Planning Commission has analyzed proposed Tentative Parcel Map 38497 and reviewed the Planning Division' s determination of exemption, and based on its own independent judgement, recommends that the City Council concur in staff's determination of exemption under CEQA pursuant to CEQA Guidelines Section 15315. The Project site is currently disturbed and occupied with non-native species and residential improvements. No impact is anticipated to occur upon the Multiple Species Habitat Conservation Plan ( MSHCP).
SECTION 2. An application for a Tentative Parcel Map requires that it meet specific findings in accordance with Title 16 of the Banning Municipal Code and Government Code 66473. 5 and 66474. The Planning Commission of the City of Banning has recommended that the City Council of the City of Banning make the following findings and determinations in connection with the approval of the Project:
A. Finding: The proposed map is consistent with the General Plan. The General Plan land use designation for the site is Low Density Residential which allows housing densities from O to 5 dwelling units per acre. The applicant is requesting a subdivision of a vacant single parcel into four new Low-Density Residential ( LOR) zoned properties. Lot 1 is proposed to be 12,534 square feet in size; Lot 2 is proposed to be 12,240 square feet in size, Lot 3 is proposed to be 12,534 square feet in size, and Lot 4 is proposed to be 12,240 square feet in size. This density level is within the range permitted under the General Plan land use designation for this site.
One of the primary policies of the Land Use Element of the General Plan is that projects adjacent to existing neighborhoods shall be carefully reviewed to assure that neighborhood character is protected. The proposed Tentative Parcel Map serves to achieve this objective in that the subdivision design is consistent with existing neighborhood housing stock. The proposed Map furthers the objectives and policies of the General Plan and is compatible with the land uses districts within the general vicinity of the Project.
Resolution 2023- 86
92 B. Finding: The design or improvement of the proposed subdivision is consistent with the City's General Plan. The proposed subdivision has been designed to meet City standards which provide satisfactory pedestrian and vehicular circulation, including emergency vehicle access and on-site improvements, such as streets, utilities, and drainage facilities have been designed and are conditioned to be constructed in conformance with City standards and consistency with the General Plan.
C. Finding: The site is physically suitable for the type of development. The
1.14-acre site is relatively flat and will be subdivided into four rectangular shaped lots that will be compatible in size to other surrounding properties.
The proposed project is adjacent to existing residential development and has availability of all services including streets, water, sewer, and electricity.
Therefore, the site is physically suitable for this type of development.
D. Finding: The site is physically suitable for the density of development. The General Plan land use designation for the site Low Density Residential which allows housing densities from O to 5 dwelling units per acre. The applicant is requesting a subdivision of a vacant single parcel into four new Low-Density Residential ( LOR) zoned properties. Lot 1 is proposed to be 12,534 square feet in size; Lot 2 is proposed to be 12,240 square feet in size, Lot 3 is proposed to be 12,534 square feet in size, and Lot 4 is proposed to be 12,240 square feet in size. This density level is within the range permitted under the General Plan land use designation for this site.
The subdivision, as proposed, is suitable for the density of development.
E. Finding: The design of the subdivision or the proposed improvements are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. The site is currently developed with two existing dwelling units that does not contain any significant vegetation or habitat for wildlife. Per the Multiple Habitat Conservation Plan ( MSHCP), there is no evidence that any endangered, threatened, or listed species of plant or animal, or its habitat, is located on the site. There is no evidence that vernal pool complex, similar bodies of water, or conditions suitable for forming such bodies of water exist on the site. The Project incorporates conditions intended to comply with the recommendations of the MSHCP. In addition, this Project has been conditioned to comply with the environmental policies and regulations of the City of Banning and those of all local and regional governmental agencies having jurisdiction over the site.
F. Finding: The design of the subdivision or type of improvement is not likely to cause serious public health problems. The design of the subdivision is in conformance with the City's General Plan, Zoning Ordinance, and Subdivision Ordinance, the construction of all units on the site has been conditioned to comply with all applicable City of Banning ordinances, codes, Resolution 2023- 86
93 and standards including, but not limited to, the California Uniform Building Code, the City's Ordinances relating to Stormwater runoff management and controls. In addition, the design and construction of all improvements for the subdivision are conditioned to be in conformance with adopted city street and public works standards. The City's ordinances, codes, and standards have been created based on currently accepted standards and practices for the preservation of public health, safety, and welfare.
G. Finding : The design of the subdivision or the type of improvements will not conflict with easements , acquired by the public at large, for access through or use of property within the proposed subdivision . No easements of record or easements established by judgement of a court of competent jurisdiction for public access across the site have been disclosed in a search of the title records for the site and the City does not otherwise have any constructive or actual knowledge of any other such easements. The Map proposes a non -exclusive easement into the Project for future residential vehicular and pedestrian access and designed to accommodate emergency vehicle ingress and egress. The proposed easement shall be recorded upon Final Map recordation.
SECTION 3. Based on the findings specified above, and all other evidence in the record , the City Council approves the proposed Tentative Parcel Map 38497 , to subdivide one 1) lot into four ( 4) lots for the purpose of creating individual parcels for the future development of new single-family residences in the Low-Density Residential District , consistent with the Tentative Map attached hereto as Exhibit " A," and subject to the recommended Conditions of Approval attached hereto as Exhibit "B." 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 9th day of May 20~ 3.
ATTEST:
Caroline Patton , Dep
City of Banning
Resolution 2023- 86
Albert San
City of Ba
yor
94 APPROVED AS TO FORM AND
LEGAL CONTENT:
Seri!~~
Richards, Watson & Gershon
Resolution 2023- 86
95 CERTIFICATION:
I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2023-86 was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 9th day of May 2023 by the following vote, to wit:
AYES: Flynn, Gonzales, Minjares, Sanchez, and Wallace.
NOES:
ABSENT:
ABSTAIN:
Resolution 2023- 86
Caroline Patton, De ty City Clerk
City of Banning, California
96 Resolution 2023- 86
Exhibit A
Tentative Parcel Map 38497
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98 Resolution 2023- 86
Exhibit B
Conditions ofApproval (COAs)
99 City of Banning
Community Development Department
Conditions of Approval
PROJECT: Tentative Parcel Map 38497
SUBJECT: Conditions of Approval (City Council Resolution 2023-86) APPLICANT: Roberto Robles
LOCATION: 282 West Wilson Street (APN 540-070-006)
EXHIBIT B
To City Council Resolution 2023-86
All fair share agreements, covenant agreements and agreements subject to recordation will be subject to review and approval by the City Attorney and will include appropriate enforcement provisions by the City and be properly securitized.
Community Development Department
1. The project shall always comply with all federal, state , County and City laws , codes , regulations , and standards , including those that relate to hazardous materials .
2. The applicant shall indemnify , protect , defend , and hold harmless , the City , and/or any of its officials, officers , employees , agents , departments , agencies , and instrumentalities thereof, from any and all claims, demands , lawsuits , writs of mandamus , and other actions and proceedings ( whether legal, equitable, declaratory , administrative or adjudicatory in nature), and alternative dispute resolutions procedures ( including , but not limited to , arbitrations , mediations , and other such procedures) ( collectively "Actions "), brought against the City, and/or any of its officials, officers, employees, agents , departments , agencies , and instrumentalities thereof, that challenge, attack , or seek to modify , set aside, void , or annul , the action of, or any permit or approval issued by, the City and/or any of its officials , officers, employees , agents, departments, agencies, and instrumentalities thereof ( including actions approved by the voters of the City), for or concerning the project, whether such actions are brought under the California Environmental Quality Act (CEQA), State Planning and Zoning Law , the Subdivisions Map Act , Code of Civil Procedure Section 1085 or 1094.5 , or any other state, federal, or local statute , law , ordinance , rule , regulation , or any decision of a competent jurisdiction . It is expressly agreed that the City shall have 100
CC Resolution 2023-86frPM 38497
April 5, 2023
the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and that applicant shall reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the applicant of any Action brought and City shall cooperate with applicant in the defense of the Action.
3. Approval of this entitlement shall not waive compliance with any sections of the Banning Municipal Code (BMC), other applicable City ordinances, in effect at the time of building permit issuance.
4. Approval of Tentative Parcel Map 38497 shall be for a period of two (2) years from the date of City Council approval, or Tentative Parcel Map approval shall become null and void. Additionally, if after commencement of the project, work is discontinued for a period of one year, the Tentative Parcel Map shall become null and void. The City Council may, upon a written application being filed 30 days prior to expiration and for good cause, grant a one-time extension not to exceed 12 months. Upon granting of an extension, the Community Development Director shall ensure that the Tentative Parcel Map complies with all current Ordinance provisions.
5. A copy of the signed resolution of approval or Community Development Director's letter of approval and all conditions of approval and any applicable mitigation measures shall be reproduced in legible form on the grading plans, building and construction plans, and landscape and irrigation plans submitted for review and approval as required by the reviewing department.
6. Prior to any occupancy/use of the Project site, or business activity being commenced thereon, the Applicant shall complete all Conditions of Approval to the satisfaction of the Community Development Director.
7. Exterior lighting shall be shielded or recessed so that light is contained within the boundaries of the parcel on which the lighting is located. All lighting shall be directed downward and away from adjoining properties and public rights-of-way.
8. Pursuant to BMC 17.12.130, chain link fencing is not permitted. The applicant shall remove the existing chain link fencing and construct new perimeter and interior fencing pursuant to Section 17.08.240.L. and Section 17.24.080 of the Banning Municipal Code. The developer shall make reasonable attempts to eliminate a "double wall" scenario with adjacent properties.
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9. The design of all lots shall meet the minimum development requirements contained in the City's Zoning Ordinance for the Low-Density Residential Zoning District.
10.Applicant shall pay all development fees adopted by the City in effect at the time of issuance of any building permits, which shall include but not be limited to: TUMF, MSHCP, police and fire safety developer fees, water and sewer fees, park land dedication fees, and electric meter installation fees etc. Project proponent shall provide written evidence to the City that school mitigation fees have been paid or other arrangements acceptable to the Banning Unified School District have been met.
11.A complete landscape/ irrigation package prepared by a landscape architect licensed by the State of California shall be reviewed and approved by the Planning Division prior to issuance of building permit. The plans shall include the following elements:
a. Water conservation concept statement;
b. Calculation of maximum applied water allowance;
c. Calculation of estimated total water use;
d. Landscape design plan;
e. Irrigation design plan; and
f. Certificate of substantial completion.
NOTE: The landscape plan shall demonstrate compliance with BMC Title 17 requirements related to minimum dimensions and percentages of landscaping in parking areas, including required front yard setback landscaping.
12. Storage, use, and removal of toxic substances, solid waste, and flammable liquids shall conform to all applicable federal, state, and local regulations. The Applicant shall maintain all required licensing in good order for the duration of Project operations.
Any lapse or revocation of any required license shall result in the voiding of the Design Review and Conditional Use Permit approvals.
13. The Applicant shall develop and maintain the subject property in accordance with the site plans stamped approved by the City and on file in the Planning Division, the conditions contained herein, and the applicable BMC regulations.
14.A security fence with screening shall protect all construction sites. The fencing and screening shall be maintained at all times to protect pedestrians. All development projects shall submit a construction fencing plan with the construction design plans.
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a construction fence that is screened and show the adjusted fence locations at each phase.
15. Tentative Parcel Map 38497 shall comply with all Conditions of Approval as stated in Planning Commission Resolution No. 2023-06.
16. The permittee shall utilize an anti-graffiti coating on trash enclosures and decorative block walls.
17. Provide the following number of construction plans and documents listed below for the first review of the proposed project. The initial plan review time will take two weeks on most projects . The applicant will receive an application number at the time plans are submitted for Building & Safety's plan review. This number is needed to obtain information regarding your project:
7) Precise Grading Plans
7) Plot/Site Plans
7) Site Disabled Access Plan
7) Architectural Plans
7) Structural Plans
7) Electrical Plans
7) Electrical Load Calculations
7) Plumbing Plans/Isometrics
7) Mechanical Plans
2) Structural Calculations
2) Roof and Floor Truss Calculations
2) Title 24 Energy Calculations
2) Geology Report
2) Soils Report
2) Condition of Approval Packages
3) Temporary Fence Plan
1) Approved Health Department Plans
2) Energy Commissioning Plan
18. Electronic plan submittal can be provided by building and safety . Please email CommunityDev@banningca. gov for additional information.
19.AII structures shall be designed in accordance with the current version of the California Building Codes, including the California Green Building Standards Code . Design all structures to comply with Seismic Design Category D, basic wind speed should be 103
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site specific and determined from ATC at www.atcouncil.org/windspeed with exposure type "C", and Energy Calculations shall be designed per Climate Zone 10.
20. Prior to issuance of building permits, provide a receipt from the appropriate Unified School District stating that all school fees have been paid. ( Banning Unified School District).
21. Banning Electric does not release electric meters until final approvals are obtained from all agencies and departments.
22. Construction projects, requiring temporary electrical power, shall obtain an electrical permit from Banning Electric.
23. Identify if a new gas meter service is to be installed or connection to the existing service meter.
24. Construction projects requiring fire permits must apply and submit fire plans prior to the issuance of the building permit, including fire sprinkler submittals.
25. The Developer/Owner is responsible for the coordination of releasing any Deferral of Development Impact Fees or Bonds after such fees have been paid. The Developer/Owner should be aware, once the deferral notice is sent to the Riverside County Recorder's Office; the release process takes two to three weeks. This process will delay final Certificates of Occupancy.
26. The Developer/Owner is responsible for the coordination of the final occupancy. The Developer/Owner shall request clearances from each department and/or agency at least two weeks prior to requesting a final building inspection from Building and Safety.
Each agency may sign the Building and Safety Job Card, or provide agency approved signed documentation, and provide a copy of the signatures to Building and Safety at the time the final inspection is requested.
27. A security fence with screening shall protect all construction sites. The fencing and screening shall be maintained at all times to protect pedestrians. All development projects shall submit a construction fencing plan with the construction design plans.
Construction projects that have phased occupancy shall be completely separated by a construction fence that is screened and show the adjusted fence locations at each phase.
28. On site toilet facilities shall be provided for construction workers and such facilities shall be maintained in a sanitary condition. Construction toilet facilities of the nonsewer type shall conform to ANSI ZA .3 and on site per NPDS stormwater requirements .
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29.AII construction materials, which are not used, shall be recycled pursuant to the requirements per the California Green Building Standards Code. Receipts from the recycle company responsible for picking up the materials shall be kept in the construction office. After the construction is complete and before final occupancy, all trash receipts shall be forwarded to the City.
30. Prior to the issuance of Building Permits, on site water service shall be installed and approved by the responsible agency. On site fire hydrants shall be approved by the Riverside County Fire Department. No flammable materials will be allowed on the site until the fire hydrants are established and approved. No flammable construction materials shall be placed on the site without approvals by the Fire Department. All street and access roadways around the project shall be paved for emergency response vehicles before flammable materials are placed on the project.
31. Prior to issuance of building permits, site-grading certifications, compaction reports, and survey report shall be submitted to Building and Safety or to Public Works, as applicable.
32.AII construction projects shall comply with the NPDES Stormwater Best Management Program. Prior to building permit issuance submit copy of the Water Quality Management Program Report. ( WQMP)
33.AII deferred plan items are to be identified on the cover sheet of the drawing plans.
34. The structure's sewer is to be connected to the public sewer system when provided.
When the public system is not available, an onsite septic system is to be installed.
Obtain a septic system handout at the permit counter for requirement information.
Percolation test is required with report provided at time of septic system application.
35. Site development and grading shall be designed to provide access to all entrances and exterior ground floor exits and access to normal paths of travel. The accessible route(s} of travel shall be the most practical direct route.
36. Demolition of any onsite structures requires the following information or action:
a. Submit copies of the property title at permit submittal. b. Provide copy of the hazardous materials survey ( asbestos and lead) for each structure.
c. Contact the City of Banning Building & Safety Department for current abatement and documentation requirements prior to performing demolition.
37. For the removal of fuel storage tanks, or other excavations involving backfill, a compaction shall be filed with the Building & Safety Department. Fuel storage tank removal will require notification of Riverside County Fire, Hazardous Materials and Riverside County Environmental Health Department.
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38.AII dead and removed trees and foliage is to be properly removed from the site.
39. The City enforces the State of California provisions of the California Building Code disabled access requirements. The Federal Americans with Disabilities Act (ADA) standards may differ in some cases from the California State requirements; therefore, it is the building owner's responsibility to be aware of those differences and comply accordingly.
40. Building and Safety inspection requests must be made by 4:00 pm. on the previous City working day to receive a next day inspection. Please contact (951) 922-4820
41. Prior to final inspection, provide Building & Safety with a zip drive ofthe final approved amended plans, calculations, and documents.
42. Plan review application approval is valid for a period of 180 days after application date plan check submittal date)- if the permit is not obtained within that time period the approval expires and becomes null and void. The Building Official may extend the time for action by the applicant for a period of 90 days upon written request by the applicant showing that circumstances beyond the control of the applicant have prevented action from being taken. In order to renew action on an application after expiration the applicant shall resubmit plans and pay a new plan review fee.
Banning Electric Utility
43. The City of Banning Electric Utility ("BEU") will require adequate easements needed to service the project. An easement area will be required for underground infrastructure, such as: vaults, conduits, streetlights, pad mounted transformers and/or switches. Adequate easements will be required to serve all parcels of this project.
Easements shall be offered for dedication to the City of Banning for public utility purposes. A non-exclusive easement shall be provided to the City of Banning to include the installation of electric distribution facilities within all common areas.
44. BEU will require any existing structures and/or pads to be demolished, rebuilt, or repaired to current standards.
45. Streetlight infrastructure is to be installed by the developer and are assumed to be publicly owned and maintained by the BEU.
46. Prior to constructing BEU's electric distribution system, the developer shall submit a detailed engineering plan showing design, location, and schematics for the utility system to be approved by BEU. It will also be required that the developer follow BEU's Electric Utility Maps & Records requirement ( per attachment). This will allow the utility to assist with the completion of a distribution plan and provide a cost estimate to service the project. Design conditions and requirements to serve the project with electricity shall be discussed and reviewed following approval of TPM No. 38497. 106
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47. The Developer shall execute one or more line extension agreements with the BEU providing for the installation, construction, improvement, and dedication of the utility system following approval of tentative tract map, if needed.
48. All electric utility equipment will require to have adequate working clearances per local and state requirements, because of this some items such as trees and bushes may be eliminated. This equipment includes substructures, transformers, pad mounted switch gear and meter locations.
49. The Developer shall be responsible to obtain, read, acknowledge, and submit all plans and project information in the manner described in the Banning Electric Utility General Development Service Requirements.
50. The Developer shall obtain, complete, and return a New Service Questionnaire to Banning Electric Utility.
PUBLIC WORKS/ENGINEERING:
The Department ofPublic Works provides the Conditions ofApproval listed herein for the above- mentioned project. Unless otherwise stated, all conditions shall be completed by the applicant at no cost to any government agency. The Applicant may contact the Engineering Division at (951) 922-3130 for compliance with the following conditions.
GENERAL CONDITIONS
51. The subject property shall substantially conform to the approved tentative map and specific plan. The City Engineer may approve minor design modifications to the project plans during the plan check process, if such modifications conform to the provisions of the Banning Municipal Code. Substantial changes shall not be permitted except upon application for, and approval of modification of this entitlement in compliance with all applicable procedures and requirements.
52. Revisions to the approved Tentative Map during Final Map plan check process; including, but not limited to, lot line alignments, easements, improvement plan revisions, and similar minor changes that are in substantial compliance with the Tentative Map, or associated Conditions of Approval, shall be administratively approved through the plan check process with the mutual consent and approval of the Developer, the Community Development Director, and the City Engineer. Changes that are not administratively approved, through the process referenced above and herein shall be amended in accordance with the Subdivision Map Act, as amended and codified within the Banning Municipal Code ( BMC).
53.AII Ordinances, Policy Resolutions, and Standards of the City in effect at the time this project is approved shall be complied with as a condition of this approval. 107
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54.A Public Works Permit shall be required prior to commencement of any work within the public right-of-way. The contractor working within the public right-of-way shall submit proof of a Class " A" State Contractor' s License, City of Banning Business License, and Liability Insurance.
55. Prior to the issuance of any grading, construction, or public works permit by the City, the Applicant shall obtain any necessary clearances and/or permits from the following agencies. Permits will not be unreasonably withheld if the developer has met all typical standards for a permit and satisfied all relevant conditions of approval for the appropriate permit:
City of Banning Fire Marshall
City of Banning Community Development Department
City of Banning Public Works Department
City of Banning Water/Wastewater Department
City of Banning Electric Department
The applicant is responsible for meeting all requirements of permits and/or clearances from the agencies from the non-inclusive list above. When the requirements include approval of approved plans, the applicant shall furnish such proof of approvals when submitting improvement plans to the City. The applicant shall comply with all conditions and mitigation measures and submit copies of all correspondence with the agencies to the Engineering Division.
56.AII required plans and studies shall be prepared by a Registered Professional Engineer, Registered Professional Geologist. Registered Professional Landscape Architect or Registered Professional Surveyor in the State of California and submitted to the Public Works Department for review and approval.
57. The design of public infrastructure elements shall conform to the requirements of these Conditions of Approval, City General Plan, City/Regional Master Plans, City of Banning Grading Manual, City of Banning codes/standards, Standard Specifications for Public Works Construction ( current edition), and Caltrans Standards and Specifications at no cost to any governmental agency as required by the City Engineer.
58. The design of private grading and improvements outside of public right of way shall comply with the City of Banning Grading Manual, Title 18 of the City of Banning Municipal Code, California Building Code, State Water Resources Control Board orders, rules, and regulations, and City of Banning standards and practices.
59. The following is a non-inclusive list of items that may be required by the Public Works Department. Unless otherwise authorized in writing by the City Engineer, plans shall utilize the minimum scale specified and shall be drawn on 24"x36" Mylar film. Plans should be drawn at a larger scale if additional detail and/or clarity is desired ( Note:
The applicant may be required to prepare other improvement plans not listed here pursuant to improvement required by other agencies and utility purveyors):
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Plans:
Precise Grading Plan 1 "=20' Horizontal
o Include sidewalk improvements and driveway installation on this plan set
o Include water service laterals, meter boxes, and sewer laterals on separate utility sheet
o Include private storm drain/infiltration basins on separate drainage sheet
Retaining Wall Plan (if any) 1 "=40' Horizontal
Erosion and Sediment Control Plan 1"=100' Horizontal
Other engineered improvement plans prepared for City approval that are not listed herein shall be prepared in formats approved by the City Engineer prior to commencing plan preparation.
An index map shall be provided on the title sheet of all plan sets showing the overall view of the entire work area.
All plans shall be complete, to the satisfaction of the City Engineer, prior to final map recordation and determination of surety estimates.
Reports and Studies
Geotechnical Report
Grading and Pad Certifications and Compaction Report
Final Hydrologic and Hydraulic Report
Engineers Cost Estimates
Permits and Agreements
Permission to Grade and Construction Agreements (if applicable) City Grading Permit
City Encroachment Permit
Non-Interference Letters
Performance Bonds
Labor and Material Bond
Survey Documents
Final Map
Easement Dedications
Corner Records
Record of Survey (if necessary)
60. The applicant is responsible for resolving any conflicts with existing or proposed easements. All easement(s) of record and proposed easements shall be shown on the final map, grading plan, and improvement plans where applicable. 109
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61. Where survey monuments exist, such monuments shall be protected or shall be referenced and reset, pursuant to the Business and Professions Code, Sections 8700 to 8805 ( Land Surveyors Act).
62.AII future utility systems including gas, electric, telephone, water, sewer, and cable TV, shall be provided for underground, with easements provided as required, and designed and constructed in accordance with City codes and the utility provider.
Telephone, cable TV, and/or security systems shall be pre-wired.
63.Any existing public improvements, or public improvements not accepted by the City that are damaged during construction shall be removed and replaced as determined by the City Engineer or his/her representative.
64.AII precautions shall be taken to prevent washouts, undermining and subsurface ponding, caused by rain or runoff to all surface structures ( curbs, gutters, sidewalks, paving, etc.). The Engineering Division may order repair, removal and replacement, extra compaction tests, load tests, etc. or any combination thereof for any such structure that was damaged or appears to have been damaged. All of the additional work, testing, etc., shall be at the expense of the Applicant.
65. Prior to the release of surety and upon completion of construction, the Applicant shall furnish the City with reproducible record drawings on Mylar film of all improvement plans that were approved by the City Engineer. Each sheet shall be clearly marked As-Built" or "As-Constructed" and shall be stamped and signed by the engineer or surveyor certifying the accuracy and completeness of the drawings. The applicant shall have all AutoCAD files submitted to the City, revised to reflect the " As-Built" conditions
MAPPING AND SURVEY
66. The submittal, approval, and recordation of the map shall be in accordance with the provisions of the State Subdivision Map Act and Title 16, Subdivisions, of the Banning Municipal Code.
67. The final map shall have adequate reservations for public right ofway as well as public and/or private utility easements and abandonment of existing utility easements to the satisfaction of the City Engineer. The applicant shall be responsible for contacting all utility providers to establish appropriate easements required to provide services to each development area.
68. The applicant shall file an Environmental Constraint Sheet. An Environmental Constraint Sheet means a duplicate of the final map on which are shown the Environmental Constraint Notes. This sheet shall be filed with the County Surveyor simultaneously with the final map and labeled ENVIRONMENTAL CONSTRAINT SHEET in the top margin. Applicable items will be shown under a heading labeled Environmental Constraints Notes. The Environmental Constraint Sheet shall contain the statement
THE ENVIRONMENTAL CONSTRAINT INFORMATION SHOWN ON THIS MAP
SHEET IS FOR INFORMATIONAL PURPOSES DESCRIBING CONDITIONS AS OF 110
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THE DATE OF FILING, AND IS NOT INTENDED TO AFFECT RECORD TITLE INTEREST. THIS INFORMATION IS DERIVED FROM PUBLIC RECORDS OR
REPORTS, AND DOES NOT IMPLY THE CORRECTNESS OR SUFFICIENCY OF THOSE RECORDS OR REPORTS BY THE PREPARER OF THIS MAP SHEET.
As required by the City Engineer, the sheet shall delineate constraints involving, but not limited to, any of the following that are conditioned by the Advisory Agency:
archaeological sites, geologic mapping, grading, building, building setback lines, flood hazard zones, seismic lines and setbacks, fire protection, water availability, and sewage disposal.
69.AII public facilities including sewer, water, reclaimed water and drainage shall be located in a public right of way or public utility easement. All final maps shall include appropriate easements per the approved tentative map and as required by the City Engineer. All easements shall meet minimum width and access requirements as mandated by the City or governing agency.
70. Submit a copy of the title report, closure calculations, and any separate instruments or necessary right-of-way documents to the Engineering Division prior to final map approval.
71. The Applicant shall be responsible for research on private utility lines ( Gas, Edison, Telephone, Cable, Internet, etc.) to ensure there are no conflicts with site development. All existing on-site utility lines that conflict with this project shall be relocated, removed, or sealed to the satisfaction of the City Engineer.
Prior to Issuance of a Grading Permit, Public Works Permit, or Construction Permit
72. The applicant, at its sole expense, shall obtain all easement acquisitions necessary to implement any portion of condition of this project, including public improvements, offsite grading and construction, offsite street requirements, offsite public utility requirements, storm drain improvements, or any other requirement of these conditions.
73. The applicant shall provide an easement over, across, and which provides ingress and egress to fire department access dedicated to the City, for ingress, egress, and right to inspect otherwise directed by the City Engineer.
74. The applicant shall offer for dedication on the Final Map, within Final Map boundaries, all public street right-of-way and public utility easements in conformance with project entitlement documents. The City may reject the dedications and leave them open for future acceptance when all required public street improvements for the map are installed by the applicant in the rights of way.
75. The applicant shall offer to dedicate to the City of Banning additional Right of Way as described below if existing dedications do not meet current requirements:
West Wilson Street (30-Foot Half Width) fronting the site as a LOCAL ROAD for public street and utility purposes.
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Prior to Map Recordation
76. Security for the construction of public improvements in accordance with Government Code Section 66499 shall be as follows:
Faithful Performance Bond 100% of estimated cost
Labor and Material Bond 100% of estimated cost
Monumentation Bond - In the amount as supplied by the Record Engineer/ Land Surveyor and as approved by the City Engineer.
Securities for the public improvements shall be on file with the City Clerk prior to scheduling the final map for approval by City Council. Unit prices for bonding estimates shall be those specified or approved by the City Engineer.
The developer shall provide the City Engineer an Improvement Certificate, or other surety acceptable to the City Engineer, prior to or concurrent with the Offer(s) of Dedicated referenced above.
Prior to the Issuance of a Building Permit
77. The applicant shall verify and/or set all property corners, r/w corners, and centerline monuments. Subsequently, the applicant shall cause the surveyor to file the appropriate documents and records to the County of Riverside.
Prior to the Release of Surety
78. Public improvements shall be completed and accepted by City of Banning prior to release of Faithful Performance Bond and Labor and Material Bond for such improvements. Faithful Performance Bond for applicable public improvements shall be reduced to 10% once City accepts improvements into maintenance period. Final 10% to serve as the maintenance bond for the 1-year maintenance period.
79. The Applicant shall comply with Assembly Bill 1414, which was enacted on January 1, 1995, and amended Section 8771 of the Business and Professions Code of the Land Surveyors Act. Assembly Bill 1414 requires that two ( 2) corner records be filed when:
Monuments exist that control the location of subdivisions or tracts, streets or highways; or provides survey control. The monuments are located and referenced by a licensed Land Surveyor before any streets or highways are reconstructed or relocated. The corner record( s) of the references are filed with the County Surveyor.
Monuments are reset in the surface of the new construction and a corner record is filed with the County Surveyor before recording of a Certificate of Completion for the project.
80. Permanent survey monuments shall be set in accordance with standard survey practice. A complete set of street centerline ties shall be submitted to the Engineering Division upon completion of improvements or prior to release of the monumentation bond.
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STREETS AND TRAFFIC
81.Any public improvements damaged during the course of construction shall be replaced to the satisfaction of the City Engineer, or his/her designee.
82. The following street improvements are required:
West Wilson Street: Complete half width street improvements for LOCAL roadway per City of Banning Standard ST-100 including the following:
Sidewalk, Parkway Landscaping.
83.Access drives to the public right-of-way shall be restricted to those approved by the City Engineer as shown on the approved plans.
84. Residential driveway grades shall not exceed ten percent unless approved by the City Engineer.
Prior to Recordation of a Final Map
85. The applicant shall provide estimates to construct, improve, or finance the proposed public improvements to the City Engineer for review and approval. The estimate shall differentiate between public improvements within the property boundaries of the tentative map, improvements outside the project boundaries and public improvements which abut the boundary of the property to be subdivided.
86. Applicant shall post a bond with the City of Banning to guarantee the repair of the roads.
87. Landscape and irrigation plans for parkway improvements shall be submitted for approval and shall be subject to approval by the Community Development Director and City Engineer.
Prior to any Certificate of Occupancy (COO)
88.AII required public improvements for the project shall be completed, tested, and approved by City of Banning and/or Caltrans to the satisfaction of the City Engineer or their designee.
Prior to Release of Bonds/Surety
89.Applicant shall make pavement repairs necessary to mitigate the impacts of project construction traffic on all affected existing streets.
Landscaping
90. The applicant shall plant and maintain trees, shrubs, and ground cover placed in the parkway constructed in connection with the project in accordance with applicable City standards. This includes ensuring that irrigation systems are operating properly, the clearing of debris, and regular weed removal.
91. The Applicant shall prepare a water conservation using xeriscape principles.
Xeriscape" shall mean a combination of landscape features and techniques that in the aggregate reduce the demand for and consumption ofwater, including appropriate low water using plants, non-living ground-cover, a low percentage of turf coverage 113
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limited to 25% of the planted area), and water conserving irrigation techniques and systems. A low water-using drought tolerant plant includes species suited to our climate, requiring less water in order to grow well.
92.An automatic sprinkler system and landscaping shall be installed, prior to certificate of occupancy for the portion of the project for which certificates of occupancy are requested, within the common areas including perimeter slopes and the interior collector streets. Each system shall include a smart landscape irrigation controller including remote communication), a separate water meter and electric meter, and plantings as approved by the Community Development Director. Landscaping plans and specifications shall be reviewed and approved by the City Engineer.
GRADING AND DRAINAGE
93. The project grading shall be designed in a manner that perpetuates the existing natural drainage patterns with respect to tributary drainage areas, outlet points and outlet conditions. Otherwise, a drainage easement shall be obtained for the release of concentrated or diverted storm flows. The project shall accept and convey storm flows from the adjacent property within the property boundaries, or within drainage devices and easements obtained by the applicant.
94. The applicant shall comply with Title 18 of the Banning Municipal Code " Grading, Erosion, and Sediment Control", the City of Banning Grading Manual, California Building Code related to excavation and grading, and State Water Resources Control Board orders, rules, and regulations.
95. Grading work shall be balanced on-site, wherever possible. If export is required as a result of the final grading plan, then measures will be taken to be in compliance with the applicable City of Banning Ordinances at time of final grading plan approval.
96. Rough grading plans shall include perimeter walls with top of wall and top of footing elevations shown. All footings shall have a minimum of 1-foot of cover, and/or sufficient cover to clear any obstructions. The Applicant shall submit design calculations and obtain permits for all perimeter and retaining walls from the Building and Safety Department.
97. The applicant shall comply with Chapter 13.24 "Stormwater Management Systems" of the Banning Municipal Code.
98. The applicant shall submit a Drainage Study with hydrologic and hydraulic analysis for developed and undeveloped ( existing) conditions to the Engineering Division for review and approval. The study and analysis shall be prepared by a civil engineer licensed by the State of California. Drainage design shall be in accordance with Banning Master Drainage Plan adopted by Riverside County Flood Control and Water Conservation District ( RCFCD), RCFCD Hydrology Manual, and standard plans and specifications. The 10-year storm flow shall be contained within the street curbs, and the 100-year storm shall be contained within the street right-of-way; when this criteria is exceeded, additional drainage facilities shall be designed and constructed. 114
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99. The proposed drainage improvement plans shall be designed such that drainage facilities will maintain or reduce the 100-year peak runoff rates presently exiting all Project boundaries. The Project will use on-site infiltration basins to reduce the storm water flows to or below the existing condition flows prior to their discharge to areas located downstream of the project. The project shall be designed to retain the 100- year 3-hour storm. Detention facilities shall have a maximum draw down time of 72 hours.
Prior to Issuance of a Grading Permit
100. A grading permit shall be obtained from the Public Works Department prior to the commencement of any grading work.
101. Detailed grading plans shall be prepared and approved by the City prior to any onsite grading for the project. 102. Prepare an erosion control plan that provides the developed phases with the required flood protection. Flood protection shall be determined by the size of the undeveloped areas and the flow patterns.
103. A soils report and geotechnical study shall be submitted in conjunction with the grading plan with further analyses of on-site soil conditions and appropriate measures to control erosion and dust. Any issues or recommendations provided in the report shall be addressed to the satisfaction of the City Engineer. The responsible geotechnical engineer shall sign and stamp all grading plans indicating the plan complies with the recommendations of the comprehensive soils and geotechnical report.
Prior to the Issuance of a Building Permit
104. A precise grading plan shall be submitted to the City Engineer for review and approval. A grading permit shall be obtained prior to commencement of any grading activity.
105. The applicant shall provide a lot pad certification. The pad certification shall include an elevation and compaction certification. The elevation certification shall be stamped and signed by a licensed civil engineer or land surveyor and shall list the pad elevation as shown on the approved grading plan, the actual pad elevation and the difference between the two, if any. The compaction certification shall list the relative compaction of the pad soil and shall be certified by a licensed geotechnical engineer.
Prior to Recordation of a Final Map
106. A Grading Plan and Erosion Control Plan shall be submitted to the City Engineer for review and approval.
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POTABLE WATER IMPROVEMENTS
107. All public potable water improvements shall be constructed per City of Banning Standards and Specifications, Standard Specifications for Public Works Construction, current edition, or as otherwise approved in writing by the City Engineer. 108. All private potable water improvement shall be designed and constructed per California Building Code, California Plumbing Code, and California Fire Code, latest editions. All private improvements shall be concurrently reviewed by the Building and Safety Department.
109. All private fire suppression systems shall be reviewed and approved by the City Fire Marshall.
110. Applicant shall install facilities within public rights of way. Where public right of way is not available, applicant shall provide easement rights to the City of Banning covering existing and proposed facilities necessary for the project. 111. A water improvement plan shall be submitted, on separate sheets within the precise grading plan showing proposed water service connection sizes and locations.
Water laterals shall be installed per City of Banning Standard W-4 with dual water lines for each unity for potable and fire service.
112. Separate meters are required for each unit, and each meter requires an individual connection to the existing water main. Meter boxes shall be located outside the driveway easement for the 3 units.
Prior to Recordation of a Final Map
113. Prior to recordation of the final tract map, improvement plans for water facilities shall be prepared by a Licensed Engineer and submitted for review and approval by the City Engineer. All proposed new water laterals shall connect into the City's water supply and be designed and constructed to City Standards.
SEWER IMPROVEMENTS
114. All public sewer improvements shall be constructed per City of Banning Standards and Specifications, Standard Specifications for Public Works Construction, current edition, or as otherwise approved in writing by the City Engineer. 115. Applicant shall install facilities within public rights of way. Where public right of way is not available, applicant shall provide easement rights to the City of Banning covering existing and proposed facilities necessary for the project. 116. Submit Sewer Improvement Plans included on the Precise Grading Plan utility sheet. to the City Engineer for review and approval. The proposed new sewer laterals shall connect into the City's sewer system.
117. Each residential unit shall have its own sewer lateral and shall be PVC SOR 26. 118. A sewer check valve shall be provided for each building with a finish pad elevation lower than the rim elevation of the immediate up-stream sewer manhole. 116
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119. Any pad with an elevation lower than the nearest upstream manhole rim elevation shall require a backwater valve.
Prior to Recordation of a Final Map
120. Prior to recordation of the final tract map, associated improvement plans for sewer facilities shall be submitted to the City for review and approval and shall be substantially complete to the satisfaction of the City Engineer.
TRASH/ REFUSE/ RECYCLING/ ORGANICS
SOLID WASTE COLLECTION SERVICES
121. Effective January 1, 2022 , all residential , single-family units shall subscribe to City 's three-container ( trash , recycling, organics), Collection Services per Banning Municipal Code, Title 8.28, " Garbage Collection and Disposal". Information on the program is available on the City of Banning website and made available at the following link: https://library.municode. com/ca/banning/ codes/code of ordinances .
CONSTRUCTION & DEMOLITION PROJECTS
122. Pursuant to CAL Green Building Standards Code section code 5.408 .
Construction and demolition wastes must be recycled and or salvaged for a reuse minimum of 65% of nonhazardous construction demolition waste materials . All projects require construction waste reduction, disposal and recycling services that comply with the 2019 California Green Building Standards Code ( CALGreen) as described in the Non-Residential ( 5.408).
123. Applicants are required to use the City's exclusive franchise hauler unless otherwise approved in writing by the Public Works Department. 124 . Applicants are encouraged to review the referenced sections in the 2019 Ca lifornia Green Building Standard Code: https:// calgreenenergyservices. com/wp/wpcontent/ uploads/ 2019 california green code.pdf. 125. Applicants shall submit a Construction and Demolition Waste Diversion Plan to the City's Solid Waste Program Coordinator ( SWPC) prior to commencement of construction or demolition . Contact the SWPC at jgrunewald@banningca. gov or 951.922.3193 for further details and to obtain a plan template. 126. Applicants shall submit a Construction and Demolition Waste Diversion Reporting Form to the City's Solid Waste Program Coordinator upon completion of the project to obtain diversion approval prior to final sign-off. Contact the SWPC at jgrunewald@banningca. gov or 951.922.3193 for further details and to obtain a report form template.
FEES
127 . All fees must be paid in full at the thresholds identified below. 128. Evidence of paid fees to agencies outside the City of Banning is required prior to the issuance of any applicable permit.
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CC Resolution 2023- 86/TPM 38497
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129. Plan check fees for professional report review and all improvement plan reviews shall be paid at the time of submittal of said documents in accordance with the fee schedule in effect at the time of the submittal.
Prior to the Issuance of a Grading Permit
130. Public Works Inspection fees shall be paid prior to the issuance of any permits in accordance with the fee schedule in effect at the time of scheduling.
Prior to the Issuance of an Encroachment Permit
131. Public Works Inspection fees shall be paid prior to the issuance of any permits in accordance with the fee schedule in effect at the time of scheduling.
Prior to Issuance of Certificate of Occupancy
132. Water connection fees and water meter installation charges shall be paid in accordance with the fee schedule in effect at that time. 133. Sewer connection fees will be based on a combination of quantity and quality of sewer discharges, and paid prior to permit issuance.
134. Development Impact Fees shall be paid in accordance with the fee schedule in effect at the time that the fees are paid.
135. A plan storage fee shall be paid for any engineering plans that may be required prior to issuance of certificate of occupancy in accordance with the fee schedule in effect at the time the fee is paid.
Fire Department
With respect to the conditions of approval for the referenced project, the Fire Department requires the following fire protection measures be provided in accordance with Riverside County Ordinances and/or recognized fire protection standards:
136. Fire Hydrants and Fire Flow: Prior to the issuance of building permits, plans for the water system shall be submitted to the fire department for review and approval. The water system shall be capable of delivering the required fire flow. Fire hydrant( s) location and spacing shall comply with the fire code. An approved water supply for fire protection during construction shall be made available prior to the arrival of combustible materials on site. Reference 2019 California Fire Code ( CFC) 507 .5.1, 3312, Appendices Band C.
137. Fire Department Access: Prior to building permit issuance, provide a site plan showing the fire lanes. Access roads shall be provided to within 150 feet to all portions of the exterior building walls and shall have an unobstructed width of not less than 24 feet. The construction of the access roads shall be all weather and capable of sustaining 40,000 lbs. over two axles for areas of residential development and 60,000 118
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lbs. over two axels for commercial developments. Approved vehicle access, either permanent or temporary, shall be provided during construction Ref. CFC 503.1.1, 3310.1 and 503.2.1
138. Fire Department Access Easement: Prior to building permit issuance, the developer shall cause preparation of a Plat and Legal Description ( prepared by a licensed surveyor or civil engineer) for the common driveway as an easement for residential access and public emergency and service vehicles. Said easement shall be dedicated in favor of the future residential lots in equal share. The easement documents shall require that the access road is kept in a state of good repair in perpetuity.
Easement documents shall be submitted to the Office of the City Engineer and Office of the Fire Marshal for review and approval.
139. Requests for installation of traffic calming designs/ devices on fire apparatus access roads shall be submitted and approved by the Office of the Fire Marshal.
Ref. CFC 503.4.1
140. Grading Permit Fire Department Review: Submittal to the Office of the Fire Marshal for Precise Grading Permit will be required.
141. Construction Permits Fire Department Review: Submittal of construction plans to the Office of the Fire Marshal for development, construction, installation, and operational use permitting will be required. Final fire and life safety conditions will be addressed when the Office of the Fire Marshal reviews these plans. These conditions will be based on occupancy, use, California Building Code ( CBC), California Fire Code, and related codes, which are in effect at the time of building plan submittal. 142. Fire Sprinkler System: Approved automatic sprinkler systems shall be provided throughout all new buildings and structures. Automatic fire sprinklers shall be installed per the requirements set forth in CFC Sections 903.2.1 through 903.2.18 Exception: New non-residential occupancies, buildings or structures that do not exceed 350 square feet ofbuilding area and contain no plumbing fixtures. 143. Fire Alarm and Detection System: A water flow monitoring system and/or fire alarm system may be required and determined at time of building plan review. Ref. CFC 903.4, CFC 907.2 and NFPA 72
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144. Gate Access shall be Prohibited: No gates are allowed that may block, impede, or deny access to the common driveway, as shown on the Final Parcel Map. A note to this effect shall be placed on the Final Parcel Map.
145. Addressing: All commercial buildings shall display street numbers in a prominent location on the address side and additional locations as required. Ref. CFC 505.1 and County of Riverside Office of the Fire Marshal Standard # 07-01 146. Deferred Submittals:
Fire Suppression Systems
Fire Alarm System
CO2 Enrichment Systems
Pre-Fixed Suppression Systems
END***
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CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Nate Smith, Deputy Director of Public Works/City Engineer Art Vela, Director of Public Works
MEETING DATE: June 24, 2025
SUBJECT: Consideration of Resolution 2025-90, Authorizing Staff to Sign the Subdivision Improvement Agreement and Accept Faithful Performance and Labor and Material Bonds for Public Improvements for Street, Sewer, and Water Improvements at the Wilson Street Crossing of Smith Creek adjacent to Final Map 37389-1
RECOMMENDATION:
Adopt Resolution 2025-90.
BACKGROUND:
City Council took actions to approve the Final Maps related to Tentative Map 37389 in the Atwell project in previous actions, detailed below:
Tentative Map 37389 Approval - Resolution 2021-59 on June 22, 2021 Final Maps 37389-1, 37389-2, 37389-3 & 37389-5 - Resolution 2022-122 on September 23, 2022 The improvement plans related to the widening of Wilson Street at Smith Creek are a Condition of Approval of Tentative Map 37389. These plans have been submitted and reviewed by staff, and have since been approved, cost estimates approved, and Faithful Performance Bonds and Labor and Material Bonds as required in the Subdivision Improvement Agreement have been submitted. The developer is preparing for construction of the facilities included with these plan sets and secured with the required bonds.
JUSTIFICATION:
The street, sewer, and water improvement plans and affiliated cost estimates have been reviewed by Public Works Department staff and deemed complete and ready for execution of the Subdivision Improvement Agreement and acceptance of the required bonds.
FISCAL IMPACT:
None
ALTERNATIVES:
Do not adopt Resolution 2025-90 and provide staff with alternate direction BUDGETED?:
No
CONTRACT/AGREEMENT:
121
No
ATTACHMENTS:
1. Resolution 2025-90, Wilson and Smith Creek SIA.docx
2. Resolution 2025-90 Exhibit A.pdf
3. Att. 1 - Wilson and Smith Creek Bonds.pdf
122
Resolution 2025-90
RESOLUTION 2025-90
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,
AUTHORIZING STAFF TO SIGN THE SUBDIVISION IMPROVEMENT AGREEMENT AND
ACCEPT FAITHFUL PERFORMANCE AND LABOR AND MATERIAL BONDS FOR PUBLIC
IMPROVEMENTS FOR STREET, SEWER, AND WATER IMPROVEMENTS AT THE WILSON STREET CROSSING OF SMITH CREEK ADJACENT TO FINAL MAP 37389-1 WHEREAS, Tentative Tract Map (TTM) No. 37389 was approved by City Council on June 22, 2021. The proposed map implements the Atwell Specific Plan (also known as the Butterfield Specific Plan; “Specific Plan”) originally approved by the City Council in March of 2012, with minor modifications approved in 2017 and provides for the development as allowed by the Specific Plan; and
WHEREAS, Final Tract Map (FM) No. 37389-1 has been previously approved by City Council and subsequently recorded with the County of Riverside; and WHEREAS, the property owner has signed a Subdivision Agreement and has submitted bonds to assure that the required street, sewer, and water improvements are constructed; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council approves the execution of the Subdivision Improvement Agreement to be signed by the Mayor which is hereby attached as Exhibit “A” and made part of this resolution.
SECTION 2. The City Council accepts the performance and labor and material bonds and authorizes staff to sign the final maps.
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 24th day of June, 2025.
Sheri Flynn, Mayor
City of Banning
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
123
Resolution 2025-90
APPROVED AS TO FORM:
John Pinkney, Interim City Attorney
Slovak, Baron, Empey, Murphy & Pinkney,
LLP
124
Resolution 2025-90
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2025-90, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 24th day of June, 2025 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
125
Resolution 2025-90
EXHIBIT A
Subdivision Improvement Agreement for Final Tract Map 37389-1, Street, Sewer, and Water Improvements at Wilson Street at the Smith Creek Crossing 126
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CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Art Vela, Public Works Director
MEETING DATE: June 24, 2025
SUBJECT: Consideration of Resolution 2025-91, Approving Amendment No. 2 to the Professional Services Agreement with Woodard and Curran in the Amount of $49,005 for Grant Management Services for the Proposition 1- Round 2 Integrated Regional Water Management Implementation Grant RECOMMENDATION:
Adopt Resolution 2025-91.
BACKGROUND:
In 2016, the San Gorgonio Regional Water Management Group (RWMG) was formed to manage the development of a new Integrated Regional Water Management (IRWM) Region in the San Gorgonio Pass ("Region"). The RWMG includes the City of Banning, Banning Heights Mutual Water Company, Cabazon Water District, High Valleys Water District, Riverside County Flood Control and Water Conservation District, and the San Gorgonio Pass Water Agency. The RWMG is responsible for preparing the IRWM Plan and governing the planning process, as well as approving projects for inclusion in the Plan. The City of Banning has taken the lead role in the RWMG.
The Colorado River Basin Funding Area (“Funding Area”) was notified that the Proposition 1-Round 2 funding was available and that $8,538,265 would be made available to the Funding Area. The three IRWM Regions (i.e. Coachella Valley, Imperial and San Gorgonio Pass) that make up the Funding Area agreed on a funding split based on population, resulting in an allocation of $1,912,755 to the Region.
Shortly after, the City issued a Call for Projects to stakeholders and members of the Region.
On August 23, 2022 City Council approved Resolution 2022-110, approving a Professional Services Agreement ("Agreement") with Woodard & Curran ("W&C") for grant application preparation services for the Proposition 1-Round 2 IRWM Implementation Grant Program in the amount of $74,136. W&C assisted the City in the project selection phase; application preparation and submittal; and grant agreement and funding award support.
Resolution 2023-11 was approved by City Council on January 10, 2023, which authorized the submittal of a Proposition 1-Round 2 IRWM Implementation Grant. The grant application would fund one project for the Cabazon Water District, one for the High Valleys Water District and one for the City of Banning.
On May 18, 2023 the City received an Award Notification Letter indicating that the Region was awarded $1,912,755. Subsequently, the IRWM Grant Agreement was executed on October 23, 2023.
On September 19, 2023 Amendment No.1 to the W&C Agreement was executed. Amendment No. 1 was a no-cost amendment to extend the term of the Agreement through September 30, 2026. At this time, 180
there remained an unused budget of approximately $38,703.50 of the awarded $74,136. The unused budget was allocated to grant management services (i.e. coordination with the sub-grantees; project progress reports and invoices; and the processing of grant amendments). The Proposition 1 Round 2 Grant Agreement allocated an amount of $114,462 to grant administration/management activities, therefore the $38,703.50 was fully covered by grant funds.
JUSTIFICATION:
The approval of Amendment No. 2 with W&C will allow the Department of Public Works to continue to receive services in managing the Proposition 1-Round 2 Implementation Grant. This need is exacerbated with the current vacancies of the Grant Manager and Water/Wastewater Management Analyst.
FISCAL IMPACT:
If approved, Amendment No. 2 will increase the W&C Agreement by $49,005. There are available grant funds in the amount of $75,758 allocated to grant administration/management activities, therefore the increased amount will be fully funded by the Proposition 1-Round 2 Implementation Grant.
ALTERNATIVES:
Do not approve Resolution No. 2025-XX. This would require for current staff to be pulled away from other projects, programs and activities in order to manage the Proposition 1-Round 2 Implementation Grant.
BUDGETED?:
No
CONTRACT/AGREEMENT:
Yes
ATTACHMENTS:
1. Resolution 2025-91, Woodard and Curran.docx
2. Exhibit A Amendment No. 2 C00782 Woodard and Curran.docx
3. 8.23.22 SR Awarding Contract to W&C.pdf
4. 1.10.23 Authorizing IRWM Grant Submittal.pdf
5. 2.23.23 W&C Agreement IRWM Prop 1 Round 2.pdf
6. 5.18.23 San Gorgonio Prop. 1 Round 2 Award Notification Letter.pdf
7. 6.13.23 SR Authorizing Execution of IRWM Grant Agreement.pdf
8. 9.19.23 Amendment No.1 C00782 - W&C IRWM Grant Prop 1 Round 2.pdf
9. 10.23.23 Executed CA Dept of Water Resources Grant Agreement.pdf
10. 5.8.25 W&C Proposal Amendment 2.pdf
181
Resolution 2025-91
RESOLUTION 2025-91
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES AGREEMENT WITH WOODARD AND CURRAN IN THE AMOUNT OF $49,005 FOR GRANT MANAGEMENT SERVICES FOR THE PROPOSITION 1-ROUND 2 INTEGRATED REGIONAL WATER
MANAGEMENT IMPLEMENTATION GRANT
WHEREAS, on August 23, 2022 City Council approved Resolution 2022-110, approving a Professional Services Agreement ("Agreement") with Woodard & Curran (“W&C”) for grant application preparation services for the Proposition 1-Round 2 Integrated Regional Water Management (IRWM) Implementation Grant Program in the amount of $74,136; and WHEREAS, Resolution 2023-11 was approved by City Council on January 10, 2023, which authorized the submittal of a Proposition 1-Round 2 IRWM Implementation Grant. The grant application would fund one project for the Cabazon Water District, High Valleys Water District and the City of Banning; and
WHEREAS, on May 18, 2023 the City received an Award Notification Letter indicating that the San Gorgonio Pass IRWM Region was awarded $1,912,755. Subsequently, the IRWM Grant Agreement was executed on October 23, 2023; and
WHEREAS, on September 19, 2023 Amendment No.1 to the W&C Agreement was executed. Amendment No. 1 was a no-cost amendment to extend the term of the Agreement through September 30, 2026. The remaining unused budget of approximately $38,703.50 of the awarded $74,136 was allocated to grant management services; and WHEREAS, staff has requested for the approval of Amendment No. 2 to the Professional Services Agreement with W&C in the amount of $49,005 so that they may continue to provide needed grant management services; and
WHEREAS, to date, $38,703.50 has been spent on grant management services related to the Proposition 1-Round 2 IRWM Implementation Grant. The amount spent on said services has been reimbursed by the Proposition 1-Round 2 IRWM Implementation Grant. The additional amount of $49,005 will also be fully reimbursed.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council approves Amendment No. 2 to the Professional Services Agreement with Woodard and Curran increasing the compensation by $49,005 for a total contract amount of $123,141 for continued grant management services related to the Proposition 1-Round 2 Implementation Grant.
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. 182
Resolution 2025-91
PASSED, APPROVED AND ADOPTED this 24th day of June, 2025.
Sheri Flynn, Mayor
City of Banning
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:
John Pinkney, Interim City Attorney
Slovak, Baron, Empey, Murphy & Pinkney,
LLP
183
Resolution 2025-91
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2025-91, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 24th day of June, 2025 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
184
Resolution 2025-91
EXHIBIT A
Amendment No. 2
185
AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT
(C00782) FOR GRANT APPLICATION PREPARATION SERVICES
FOR THE PROPOSITION 1 ROUND 2 INTEGRATED REGIONAL
WATER MANAGEMENT GRANT PROGRAM BY AND BETWEEN
CITY OF BANNING AND WOOD & CURRAN, INCORPORATED
THIS AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES
AGREEMENT FOR SERVICES (“Amendment No. 2”) by and between the CITY OF BANNING (“City”) and WOODARD & CURRAN, INCORPORATED, a Maine Corporation (“Consultant”) is effective as of this day: ______________.
RECITALS
A. City and Consultant entered into that certain Contract dated February 23, 2023 for the purpose of providing Grant Application Preparation Services (“Agreement”), as approved by City Council Resolution 2022-110.
B. City and Consultant have entered into an Amendment No. 1 to the Agreement dated September 19, 2023 to extend the Term of the Agreement to September 30, 2026.
C. City and Consultant now desire to amend the Agreement to modify the Scope of Services and increase the Contract Sum to One Hundred Twenty-Three Thousand One Hundred Forty-One Dollars ($123,141.00).
The Parties therefore agree follows:
1. Amended Terms. The Agreement is hereby amended as follows:
1.1 The Scope of Services as set forth in Section 1.1 of and Exhibit A to the Agreement is hereby amended to include the Services set forth in Attachment 1, attached hereto and incorporated herein.
1.2 The maximum compensation for the Services performed pursuant to this Amendment No. 2 shall not exceed Forty-Nine Thousand Five Dollars ($49,005.00) thereby increasing the Contract Sum, as set forth in Section 2.1 of the Agreement, to One Hundred Twenty-Three Thousand One Hundred FortyOne Dollars ($123,141.00).
2. Miscellaneous Provisions
2.1 Continued Effect of Agreement. Except as amended by this Amendment No. 2, all provisions of the Agreement, as amended by Amendment No. 1, shall remain unchanged and in full force and effect. From and after the date of this Amendment No. 2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement, as amended by Amendment Nos. 1 through 2. In the event of a conflict between the provisions of this Amendment No. 2 and the 186
provisions of the Agreement or Amendments No. 1 through 2, the provisions of this Amendment No. 2 shall control.
2.2 Consideration for Amendment. The parties hereby agree that they have each received adequate and independent consideration for the modifications to the Agreement set forth in this Amendment No. 2.
2.3 Authority. The persons executing this Amendment No. 2 on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 2 on behalf of said party, (iii) by so executing this Amendment No. 2, such party is formally bound to the provisions of this Amendment No. 2, and (iv) entering into this Amendment No. 2 does not violate any provision of any other agreement to which said party is bound.
2.4 Counterparts. This Amendment No. 2 may be signed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument.
2.5 Electronic Signatures. Each Party may adopt as its signature an electronic identification consisting of a symbol or code that is affixed to or contained in each document transmitted by such Party (“electronic signature”). The Parties hereto herby agree that electronic signatures are acceptable, shall have the same force and effect under the law as original wet signatures, and shall be sufficient to verify that the Parties have executed this Agreement and such other documents transmitted by the Parties.
[SIGNATURE PAGE FOLLOWS]
187
The Parties are signing this Amendment No. 2 on the date stated in the introductory clause.
CITY OF BANNING CONSULTANT
Robert Fisher,
Acting City Manager
NAME:
TITLE:
City Council Approval: _______________ NAME:
TITLE:
ATTEST:
Caroline Patton
Administrative City Clerk
APPROVED AS TO FORM:
Slovak, Baron, Empey, Murphy & Pinkney
LLP
John O. Pinkney
Acting City Attorney
NOTE: PROOF OF AUTHORITY TO BIND CONTRACTING PARTY REQUIRED.
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE
BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
188
ATTACHMENT NO.1
189
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193
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Art Vela, Director of Public Works
MEETING DATE: August 23, 2022
SUBJECT: Consideration of Resolution 2022-110, Approving a Professional Services Agreement with Woodard & Curran for Grant
Application Preparation Services for the Proposition 1 Round 2 Integrated Regional Water Management Grant Program in the amount of $74,136
RECOMMENDATION:
Staff recommends that City Council adopt Resolution 2022-110:
1. Approving a Professional Services Agreement with Woodard & Curran of Los Angeles, CA for the preparation of the Proposition 1, Round 2, Integrated Regional Water Management Grant application in the amount of $74,136.
2. Authorizing the City Manager or designee to make necessary budget adjustments, appropriations and transfers related to the Professional Services Agreement.
3. Authorizing the City Manager or his designee to execute a Professional Services Agreement with Woodard & Curran in the amount of $74,136.
BACKGROUND:
In 2016, the San Gorgonio Integrated Regional Water Management Region (“Region”) received a Proposition 1 Planning Grant to develop its first Integrated Regional Water Management (IRWM) plan. The San Gorgonio IRWM Regional Water Management Group (RWMG) was formed and tasked with, but not limited to, developing an IRWM plan that would meet the requirements for participation in the Statewide IRWM program, which provides funding opportunities that would otherwise not be available to the Region.
The City of Banning along with Banning Heights Water District, High Valleys Water District, Cabazon Water District, Riverside County Flood Control and Water Conservation District and San Gorgonio Pass Water Agency make up the San Gorgonio RWMG. The RWMG group collaborated with key stakeholders and members of the community to develop the IRWM Plan which identifies the water needs, goals, objectives, strategies and projects that are unique to the Region.
49 194
Staff Report: Resolution 2022-110, Woodard & Curran Contract for Grant Preparation Services August 23, 2022
The Colorado River Basin Funding Area (“Funding Area”) was notified that the Proposition 1 Round 2 funding was available and that $8,538,265 would be made available to the Funding Area. The three IRWM Regions that make up the Funding Area agreed on a funding split based on population, resulting in an allocation of $1,912,755 to the Region.
The City of Banning has taken a lead role in the Region and has initiated a Call for Projects inviting all identified stakeholders in the Region to participate. Once project nomination forms are submitted, an evaluation committee will review the projects and will select the most competitive ones for inclusion in a combined grant application for the Region, which is a requirement of the IRWM program.
JUSTIFICATION:
The Public Works Department currently does not have the staff resources to manage the Region’s project nomination/evaluation process and the development of the Region’s grant application.
Woodard & Curran has extensive experience completing grant applications as part of the IRWM program and demonstrable success being awarded funding in Prop. 1 Round 1.
FISCAL IMPACT:
The Professional Services Agreement will be funded by the Water Fund, Contract Services/Professional Services Account No. 660-6300-471.33-11 in the amount of $74,136. An appropriation from the Water Fund 660 to cover the expense is required.
Stakeholders who submit a project that is selected to be part of the Region’s Proposition 1, Round 2 grant application will equally share in the cost for its preparation and will pay the City of Banning for Woodard and Curran’s cost.
ALTERNATIVES:
Do not approve Resolution 2022-110 and provide alternative direction to staff.
ATTACHMENTS:
1. Resolution 2022-110
https://banningca.gov/DocumentCenter/View/11108/Att-1-Resolution-2022-110-- Grant-Application-Preparation-Svcs
2. Woodard & Curran Draft Agreement
https://banningca.gov/DocumentCenter/View/11109/Att-2-C00782-Woodard--- Curran
3. Funding Area MOU (Funding Split)
https://banningca.gov/DocumentCenter/View/11106/Att-3-CRFA-P1R2-MOUexecuted 50 195
Staff Report: Resolution 2022-110, Woodard & Curran Contract for Grant Preparation Services August 23, 2022
4. Woodard & Curran Proposal
https://banningca.gov/DocumentCenter/View/11107/Att-4-Banning-Prop-1-Round-2- Proposal_9Aug22
Approved by:
Douglas Schulze
City Manager
51 196
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200
AGREEMENT FOR PROFESSIONAL SERVICES (C00782) FOR GRANT
APPLICATION PREPARATION SERVICES FOR THE PROPOSITION 1
ROUND 2 INTEGRATED REGIONAL WATER MANAGEMENT GRANT
PROGRAM BY AND BETWEEN CITY OF BANNING AND WOODARD
& CURRAN, INCORPORATED
THIS AGREEMENT FOR PROFESSIONAL SERVICES (herein “Agreement”) is made and entered into this day: , (“Effective Date”) by and between the CITY OF BANNING, a California municipal corporation (“City”) and WOODARD & CURRAN, INCORPORATED, a Maine corporation (“Consultant”). The Consultant has been qualified by the Secretary of State to conduct business in California. City and Consultant are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought the performance of the services for the grant application preparation services for the Proposition 1, Round 2 integrated regional water management grant program, and as further defined and described particularly in Article 1 of this Agreement.
B. Consultant, following submission of a proposal for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by City to perform those services.
C. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
D. Pursuant to the City of Banning’s Municipal Code, City has authority to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the “Scope of Services” attached hereto as Exhibit A and incorporated herein by this reference, which services may be referred to herein as the “Services” hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services 2344655v8
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described herein. Consultant covenants that it shall follow the professional standards in performing the Services required hereunder and that all materials will be of good quality, and fit for the purpose intended. For purposes of this Agreement, the phrase “professional standards” shall mean those standards of practice recognized by similar firms performing similar work under similar circumstances.
1.2 Contract Documents and Exhibits.
This Agreement includes the Request for Proposal and Consultant’s accepted proposal (“Contract Documents”), both of which are on file with the City and incorporated herein by this general reference as though fully set forth herein. Exhibit A (Scope of Services), Exhibit B (Special Requirements), Exhibit C (Schedule of Compensation), and Exhibit D (Schedule of Performance) also constitute a part of this Agreement and are incorporated into this Agreement by this reference. Except as set forth in Section 1.10 regarding Exhibit B, this Agreement controls over the Contract Documents and the provisions in Exhibits A, B and C.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning all ordinances, resolutions, statutes, rules, and regulations of City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered, and shall render all Services hereunder in accordance therewith.
1.4 Licenses, Permits, Fees and Assessments.
Consultant shall obtain and maintain during the term of this Agreement, at its sole cost and expense, all necessary licenses, permits, certificates and approvals required by law for the performance of Services under this Agreement, including a City business license. Consultant shall have the sole obligation to pay for all fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and which arise from or are necessary for Consultant’s performance of the Services required by this Agreement. Consultant shall indemnify, defend and hold harmless City, its officers, employees or agents, against all such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.
1.5 Familiarity with Services.
By executing this Agreement, Consultant represents that Consultant: (i) has thoroughly investigated and considered the Scope of Services to be performed, (ii) has carefully considered how the Services should be performed, and (iii) fully understands the facilities and any difficulties and restrictions attending performance of the Services under this Agreement. If the Services involve work upon any site, Consultant represents that Consultant has or will investigate the site and is or will be fully acquainted with the conditions existing therein, prior to commencement of Services hereunder. Should Consultant discover any latent or unknown conditions, which will materially affect the performance of the Services hereunder, Consultant shall immediately inform City of such fact and shall not proceed except at Consultant’s risk until written instructions are received from the Contract Officer (defined in Section 1.12. A).
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1.6 Prevention of Loss and Damages.
Consultant shall adopt reasonable methods during the Term (defined in Section 3.4) to furnish continuous protection to the work product, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property caused by Consultant’s negligence, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence.
1.7 Further Responsibilities of Parties.
Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonable necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither Party shall be responsible to perform the Services of the other.
1.8 Additional Services.
City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra services beyond that specified in the Scope of Services or to make changes by altering, adding to or deducting from the Services. No such extra services may be undertaken unless a written order is first given by the Contract Officer to Consultant, which written order incorporates therein an adjustment in (i) the Contract Sum (as defined in Section 2.1), and/or (ii) the Schedule of Performance, (as defined in Section 3.2), and which written order is approved in writing by Consultant. Any increase in compensation of up to ten percent (10%)of the Contract Sum, or $25,000, whichever is less; or in the Schedule of Performance of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by City Council. It is expressly understood by Consultant that the provisions of this Section shall not apply to Services which arespecifically set forth in the Scope of Services or which are reasonably contemplated therein. Consultant hereby acknowledges that it accepts the risk that the Services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor.
1.9 Facilities and Equipment.
Except as otherwise provided, Consultant shall, at its own cost and expense, provide all facilities and equipment necessary to perform the Services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space (“City Facilities”), as City deems, in its sole discretion, to be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quality, and time of furnishing City Facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facilities that may involve incurring any direct expense, including but not limited to a computer, long distance telephone, network data, internet or other communication charges, vehicles and reproduction facilities.
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1.10 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern.
1.11 Corrections.
In addition to the indemnification obligations set forth in Article 4, and Sections 1.4,1.13,
5.3, 5.4, and 6.3, Consultant shall correct, at its expense, all errors in the Services which may be disclosed during City’s review of Consultant’s report or plans. Should Consultant fail to make such correction(s) in a reasonably timely manner, such correction(s) may be made by City, and the cost thereof shall be charged to Consultant. In addition to all other available remedies, City may deduct the cost of such correction(s) from any retention amount held by City, or may withhold payment otherwise owed Consultant under this Agreement up to the amount of the cost of correction(s), as provided in Section 6.3.
1.12 Party Representatives.
A. Contract Officer: For the purposes of this Agreement, the Contract Officer shall be the City Manager, or such other person designated in writing by the City Manager (“Contract Officer”). Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of City required hereunder to carry out the terms of this Agreement.
B. Principals and Personnel of Consultant.
1) Consultant Representative: The following principal of Consultant is hereby designated as being the Consultant Representative authorized to act on Consultant’s behalf regarding the Services specified herein and make all decisions in connection therewith:
Name Title
Sally Johnson Water Resources Planner
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Consultant Representative were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Consultant Representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Consultant Representative. For purposes of this Agreement, the foregoing Consultant Representative may not be replaced nor may their responsibilities be substantially reduced or reassigned by Consultant without the express written approval of City. It shall be Consultant’s responsibility to assure that DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 204
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the Contract Officer is kept informed of the progress of the performance of the Services, and Consultant shall refer any decisions which must be made by City to the Contract Officer. 2) Consultant’s Personnel: Consultant has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by Consultant or under its supervision, and all personnel engaged in the Services shall be qualified to perform such Services. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement.
Consultant shall notify City of all changes in Consultant’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement, prior to and during any such performance. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires to reassign any staff or sub-contractor of Consultant, City shall give notice as set forth in Section 8.1. Consultant shall, immediately upon the receipt of the notice to re-assign staff from City, reassign such person or persons.
1.13 Independent Contractor.
A. Consultant is an independent contractor and not an employee of City.
Consultant shall have no power to incur any debt, obligation, or liability on behalf of City. All Services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the Services. Any additional personnel performing Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
B. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant’s personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this Section.
1.14 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Consultant, the Consultant Representative and employees were a substantial inducement for City to enter into this Agreement.
Therefore, Consultant shall not contract with any other entity to perform in whole or in part the Services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 205
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without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) ofthe present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreementshall be void. No approved transfershall release Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, as full compensation for Services satisfactorily rendered, City shall pay Consultant at the hourly rates set forth in the “Schedule of Compensation” attached hereto as Exhibit C and incorporated herein by this reference. In no event shall Consultant be paid more than $74,136.00 (the “Contract Sum”). The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by City.
Coordination of the performance of the Services with City is a critical component of the Services.
If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending those meetings.
2.2 Method of Compensation.
The method of compensation may include: payment for time and materials based upon Consultant’s rates as specified in the Schedule of Compensation, provided that time estimates are provided for the performance of sub tasks, but not exceeding the Contract Sum.
2.3 Reimbursable Expenses.
City shall only reimburse Consultant for those actual and necessary expenses expressly set forth in Exhibit C. Reimbursable expenses may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual sub-contractor expenses of an approved sub-contractor pursuant to Section 1.14, and only if specified in the Schedule of Compensation.
2.4 Unauthorized Services and Expenses.
City will not pay for any Services or reimburse for any expenses incurred which are not specified in the Scope of Services, unless authorized in writing as set forth in Section 1.8 of this Agreement. City shall make payment for such authorized additional Services and expenses in accordance with Article 2 of this Agreement.
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2.5 Invoices.
Each month Consultant shall furnish to City an original invoice for all Servicesperformed and expenses incurred during the preceding month. Each such invoice shall contain all of the information set forth in Section III of Exhibit C to this Agreement. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. Consultant shall not invoice City for any duplicate Services performed by more than one person.
City shall independently review each invoice submitted by Consultant to determine whether the Services performed and expenses incurred are in compliance with the provisions of this Agreement. City will use its best efforts to cause Consultant to be paid within thirty (30) days of receipt of Consultant’s correct and undisputed invoice, except as to any charges for Services performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 6.3. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City of any invoice provided by Consultant shall not constitute waiver of any rights or remedies provided herein or any applicable law.
2.6 Waiver.
Payment to Consultant for Services performed pursuant to this Agreement shall not be deemed to waive any defects in Services performed by Consultant.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement; provided, however, that the foregoing shall not be construed to limit or deprive a Party of the benefits of any grace or use period allowed in this Agreement.
3.2 Schedule of Performance.
Consultant shall commence the Services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit D and incorporated herein by this reference.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the Services rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant. Such unforeseeable consequences include, but are not restricted to, acts of God or public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 207
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City, if Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified,subject to the provisions of Section 1.8. The Contract Officer’s determination (or the City Council’s determination, in the event the period of enforced delay exceeds the period specified in Section
1.8) shall be final and conclusive upon the Parties to this Agreement. In no event shallConsultant be entitled to recover damages against City for any delay in the performance of this Agreement, however caused; Consultant’s sole remedy shall be the extension of the Agreement pursuant to this Section.
3.4 Term.
The Term of this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from the date hereof, unless sooner terminated as provided in Article 6 of this Agreement or extended as provided in Sections 1.8 and 3.3 of this Agreement.
Maximum term and any subsequent amendment or modification shall not exceed five (5) years.
ARTICLE 4. INSURANCE AND INDEMNIFICATION
4.1 Minimum Scope and Limits of Insurance.
Consultant shall procure and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:
A. Commercial General Liability Insurance with a minimum limit of $1,000,000.00 per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of $2,000,000.00 per project or location. If Consultant is a limited liability company, the commercial general liability coverage shall be amended so that Consultant and its managers, members, affiliates, employees, agents and other persons necessary or incidental to its operation are insureds.
B. Automobile Liability Insurance for any owned, non-owned or hired vehicle used in connection with the performance of this Agreement with a combined single limit of $1,000,000.00 per accident for bodily injury and property damage. If Consultant does not use any owned, non-owned or hired vehicles in the performance of Services under this Agreement, Consultant shall obtain a non-owned auto endorsement to the Commercial General Liability policy.
C. Workers’ Compensation Insurance as required by the State of California and Employer’s Liability Insurance with a minimum limit of $1,000,000.00 per accident for bodily injury or disease. If Consultant has no employees while performing Services under this Agreement, workers’ compensation policy is not required; however, Consultant shall execute a declaration that it has no employees.
D. Professional Liability/Errors and Omissions Insurance with minimum limits of $1,000,000.00 per claim and in the aggregate.
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4.2 Acceptability of Insurers.
The insurance policies required under this Article shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide. Self-insurance shall not be considered to comply with the insurance requirements under this Article.
4.3 Additional Insured.
The commercial general and automobile liability policies shall contain an endorsement naming City, its officers, employees, agents and volunteers as additional insureds.
4.4 Primary and Non-Contributing.
The insurance policies required under this Article shall apply on a primary noncontributing basis in relation to any other insurance or self-insurance maintained by City. Any insurance or self-insurance maintained by City, its officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.
4.5 Consultant’s Waiver of Subrogation.
The insurance policies required under this Article shall not prohibit Consultant and Consultant’s employees, agents or sub-contractors from waiving the right of subrogation prior to a loss. Consultant hereby waives all rights of subrogation against City.
4.6 Deductibles and Self-Insured Retentions.
Any deductibles or self-insured retentions must be declared to and approved by City. At City’s option, Consultant shall either reduce or eliminate the deductibles or self-insured retentions with respect to City; or Consultant shall procure a bond guaranteeing payment of losses and expenses.
4.7 Cancellations or Modifications to Coverage.
Consultant shall not cancel or reduce the insurance policies required by this Article during the term of this Agreement. The commercial general and automobile liability policies required under this Agreement shall be endorsed to state that should the issuing insurer cancel the policy before the expiration date, the issuing insurer will endeavor to mail 30 days’ prior written notice to City. If any insurance policy required under this Article is canceled or reduced in coverage or limits, Consultant shall, within two (2) Business Days (as defined in Section 8.12) of notice from the insurer, phone, fax or notify City via certified mail, return receipt requested, of the cancellation of or changes to the policy.
4.8 City Remedy for Noncompliance.
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policies do not comply with the requirements under this Article, City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may, but has no duty to, take out the necessary insurance and pay, at Consultant’s expense, the premium thereon.
Consultant shall promptly reimburse City for any premium paid by City, or City may withhold amounts sufficient to pay the premiums from payments due to Consultant.
4.9 Evidence of Insurance.
Prior to the performance of Services under this Agreement, Consultant shall furnish the City Clerk with a certificate or certificates of insurance and all original endorsements evidencing and effecting the coverages required under this Article. The endorsements are subject to City’s approval. Consultant may provide redacted copies of all required insurance policies to City. Consultant shall maintain current endorsements on file with the City Clerk. Consultant shall provide proof to the City Clerk that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant shall furnish such proof prior to the expiration of the coverages.
4.10 Indemnity Requirements not Limiting.
Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under this Agreement.
4.11 Sub-contractor Insurance Requirements.
Consultant shall require each of its sub-contractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Article.
4.12 Indemnification, Hold Harmless, and Duty to Defend.
A. Indemnification of City.
1) To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith (collectively “Liabilities”), at law or in equity, which arise out of, the negligent acts or omissions of Consultant, its officers, agents, servants, employees, sub-contractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, but only to the proportionate extent caused by the Consultant’s negligence and excepting for Liabilities arising from the negligence or willful misconduct of the Indemnitees as determined by court decision
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or by the agreement of the Parties. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
2) Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers’ compensation laws. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this subparagraph A.2. 3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Article from each and every sub-contractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement.
If Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant’s sub-contractor, its officers, agents, servants, employees, sub-contractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant’s sub-contractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
B. Workers’ Compensation Acts not Limiting. Consultant’s indemnifications and obligations under this Article, or any other provision of this Agreement, shall not be limited by the provisions of any workers’ compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.
C. Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities in this Article shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.
D. Survival of Terms. Consultant’s indemnifications and obligations under this Article shall survive the expiration or termination of this Agreement.
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ARTICLE 5. RECORDS, REPORTS, AND RELEASE OF INFORMATION
5.1 Service Records.
Consultant shall keep, and require sub-contractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and Services performed hereunder (the “Service Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. Any and all such Service Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such Service Records at all times during normal business hours of City, including the right to inspect, copy, audit and make copies and transcripts from such Service Records. Such Service Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Service Records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the Service Records may be given to City, and access shall be provided by Consultant’s successor in interest (“Consultant’s Successor”). If custody of the Service Records is given to Consultant’s Successor, Consultant shall give written notice to City of the transfer of the Service Records to Consultant’s Successor. The notice shall include contact information (address and telephone number) for Consultant’s Successor, and access shall be provided to City by Consultant’s Successor.
5.2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that City is greatly concerned about the cost of Services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services contemplated herein, Consultant shall promptly notify the Contract Officer of that fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.
5.3 Ownership of Documents.
Except for proprietary software, source code, software framework, and methodologies, all drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “Consultant Documents”) prepared by Consultant, its employees, sub-contractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the Consultant Documents hereunder. Any use, reuse or assignment of such completed Consultant Documents for other projects and/or use of uncompleted Consultant Documents without specific written authorization by Consultant will be at City’s sole risk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use or assignment. Consultant may retain copies of such Consultant Documents forits DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 212
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own use. Consultant shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of all Consultant Documents prepared by them; and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom.
5.4 Confidentiality and Release of Information.
A. All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than its employees, agents, subcontractors, or the City without prior written authorization from the Contract Officer.
B. Consultant, its officers, employees, agents or sub-contractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the Services performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena.
C. If Consultant, or any officer, employee, agent or sub-contractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorneys’ fees, caused by or incurred as a result of Consultant’s conduct.
D. Consultant shall promptly notify City should Consultant, its officers, employees, agents or sub-contractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any Party regarding this Agreement and the Services performed thereunder. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite the response.
ARTICLE 6. ENFORCEMENT OF AGREEMENT AND TERMINATION
6.1 California Law.
This Agreement, and any dispute arising from the relationship between the Parties to this Agreement, shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
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6.2 Disputes; Default.
A. In the event that City determines Consultant is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any Services performed after the date of default. In addition to the provisions of Section 4.8, and the right to terminate pursuant to Section 6.7, if the City Manager determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, City may serve Consultant with written notice of the default. Consultant shall have ten (10) calendar days after service upon it of the notice in which to cure the default by rendering a satisfactory performance.
In the event that Consultant fails to cure its default within such period of time, City may, notwithstanding any other provision of this Agreement, terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
B. In the event of termination pursuant to this Section, City may take over the Services and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Consultant for the purpose of set-off or partial payment of the amounts owed City as provided in Section 6.3.
6.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement): (i) any payment amount of which may be in dispute hereunder or which is necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, (ii) all amounts retained pursuant to the provisions of Section 4.8, (iii) all amounts for which City may be liable to third parties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement, and (iv) all payments due or that become due to Consultant during the period that Consultant or any of its subcontractors fail to maintain any required insurance in full force and effect, until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City, as provided in Section 4.9, above. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as elsewhere provided herein.
6.4 Waiver.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
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Acceptance by City of any Services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either Party of any default must be in writing, and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
6.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
6.6 Legal Action.
In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Consultant must file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action against City under this Agreement.
6.7 Termination Prior to Expiration of Term.
This Article 6 shall govern any termination of this Agreement except as specifically provided in Section 6.2 for termination for default of Consultant. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of Consultant, the period of notice may be a shorter time as may be determined by the Contract Officer. In addition, Consultant reserves the right to terminate this Agreement at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of City, the period of notice may be a shorter time as Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Officer. Except where Consultant has initiated termination, Consultant shall be entitled to compensation for all Services rendered prior to the effective date of the notice of termination and for any Services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 6.3. In the event Consultant has initiated termination, Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating Party need not provide the non-terminating Party with the opportunity to cure pursuant to Section 6.2.
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6.8 Attorneys’ Fees.
In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorney’s fees on any appeal, and in addition the Partyentitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 7. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
7.1 Non-liability of City Officers and Employees.
No officer or employee of City shall be personally liable to Consultant, or Consultant’s Successor, in the event of any default or breach by City or for any amount which may become due to Consultant or Consultant’s Successor, or for breach of any obligation of the terms of this Agreement.
7.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of Services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or sub-contractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of City shall have any direct or indirect financial interest in this Agreement within the scope of Government Code section 1090, nor shall any such officer or employee make, participate in making, or use his or her official position to influence, any City decision relating to the Agreement which has a material financial effect on his or her financial interests or the financial interests of any corporation, partnership or association in which he or she is, directly or indirectly, interested, in violation of any State statute or regulation. Consultant warrants that it has not paid or given, and will not pay or give any third party any money or other consideration for obtaining this Agreement.
Consultant and its officers, employees, associates and sub-contractors, if any, shall comply with all conflict of interest statutes of the State of California applicable to Consultant’s Services under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant may perform similar services for other clients; but Consultant and its officers, employees, associates and subcontractors shall not, without the Contract Officer’s prior written approval, perform services for DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 216
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another person or entity for whom Consultant is not currently performing services that would require Consultant or one of its officers, employees, associates or sub-contractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. Consultant shall incorporate a clause substantially similar to this Section into any subcontract that Consultant executes in connection with the performance of this Agreement.
7.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, or ancestry in the performance of this Agreement.
Consultant shall take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry, or other protected class.
7.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of Services covered by this Agreement, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.
ARTICLE 8. MISCELLANEOUS PROVISIONS
8.1 Notices.
Any notice, demand, request, document, consent, approval, bill, invoice, report or other communication required or permitted under this Agreement shall be in writing and conclusively deemed effective: (a) on confirmed delivery by courier service or overnight delivery service during Consultant’s and City’s regular business hours; or (b) three (3) Business Days after deposit in the United States mail, by certified or registered mail, and addressed to the Party to be notified as set forth below:
If to City Attn: Art Vela
Director of Public Works
City of Banning
99 East Ramsey Street
Banning, California 92220
Email: [email protected]
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With a courtesy copy to: Kevin G. Ennis, City Attorney
Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Email: [email protected]
If to Consultant: Attn: Sally Johnson
Water Resources Planner
Woodard & Curran, Inc.
888 South Figueroa #1700
Los Angeles, CA 90017
Email: [email protected]
8.2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
8.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
8.4 Integration; Amendment.
This Agreement, and all exhibits referred to in this Agreement, constitute the final, complete and exclusive statement of the terms of the agreement between the Parties pertaining to the subject matter of this Agreement and supersede all other and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreement. No amendment to or modification of this Agreement, nor any provision or breach hereof waived, shall be valid unless made in writing and approved by Consultant and by City Council. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
8.5 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
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8.6 Mutual Cooperation.
A. City’s Cooperation. City shall provide Consultant with all pertinent data, documents and other requested information as is reasonably available for Consultant’s proper performance of the Services required under this Agreement.
B. Consultant’s Cooperation. In the event any claim or action is brought against City relating to Consultant’s performance of Services rendered under this Agreement, Consultant shall render any reasonable assistance that City requires.
8.7 No Third Party Beneficiaries Intended.
This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
8.8 Final Payment Acceptance Constitutes Release.
The acceptance by Consultant of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for anything done, furnished or relating to Consultant’s Services. Acceptance of payment shall be any negotiation of City’s check or the failure to make a written extra compensation claim within ten (10) calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, sub-contractors and agents for the accuracy and competency of the information provided and/or Services performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the Services prepared by Consultant, its employees, sub-contractors and agents.
8.9 Non-Appropriation of Funds.
Payments to be made to Consultant by City for Services performed within the current fiscal year which are within the current fiscal budget and within an available, unexhausted fund. In the event that City does not appropriate sufficient funds for payment of Consultant’s Services beyond the current fiscal year, this Agreement shall cover payment for Consultant’s Services only to the conclusion of the last fiscal year in which City appropriates sufficient funds and shall automatically terminate at the conclusion of such fiscal year.
8.10 Headings.
The headings in this Agreement are included solely for convenience of reference and shall not affect the interpretation of any provision of this Agreement or any of the rights or obligations of the Parties to this Agreement.
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8.11 Word Usage.
Unless the context clearly requires otherwise, (a) the words “shall,” “will” and “agrees” are mandatory and “may” is permissive; (b) “or” is not exclusive; and (c) “includes” or “including” are not limiting.
8.12 Business Days.
“Business Days” refers to days that the Banning City Hall is open for business.
8.13 Corporate Authority.
The persons executing this Agreement on behalf of the Parties hereto warrant that (i): such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of that Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which that Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties. [SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written.
CITY OF BANNING CONSULTANT
Douglas Schulze, Date
City Manager
NAME: Date
TITLE:
NAME: Date
TITLE:
ATTEST:
Tax ID No.
Caroline Patton, Date
Deputy City Clerk
Address:
APPROVED AS TO FORM:
Richards, Watson & Gershon
City Council Approval:
Serita R. Young Date
City Attorney
NOTE: PROOF OF AUTHORITY TO BIND CONTRACTING PARTY REQUIRED. APPROPRIATE
ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
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01-0363222
2/23/2023
Sally Johnson
41 Hitchins Drive
Portland, ME 04102
Project Manager
8/23/2022
2/23/2023
2/24/2023
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EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant will perform the following Services in connection with providing Grant Application Preparation Services for the Proposition 1 Round 2 Integrated Regional Water Management Grant Program prepared in connection therewith:
II. As part of the Services, Consultant will prepare and deliver the following tangible work products and services to City:
See attachment Electronic Mail dated March 9, 2022
III. In addition to the requirements of Parts I and II of this Scope of Services, during the performance of the Services, Consultant will keep City appraised through periodic status reports regarding the performance of the Services under this Agreement as set forth below and in Section 5.2, by the following means:
a. In-person meetings and/or teleconferences.
b. Email updates/questions to applicant team and City while reviews are underway.
c. Conference calls.
IV. All work product is subject to review and acceptance by City. If the City determines that any work product is unacceptable, for any reason, it must be revised by Consultant without additional charge to City until found satisfactory and accepted by City.
Exhibit “A”-1
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888 South Figueroa #1700
Los Angeles, California 90017
www.woodardcurran.com
T 800.426.4262
T 213.223.9460
Via Electronic Mail
March 9, 2022
Art Vela
Public Works Director
City of Banning
99 E. Ramsey Street
Banning, CA 92220
Re: Revised proposal for San Gorgonio IRWM Region Proposition 1, Round 2 IRWM Implementation Grant Support
Dear Mr. Vela:
Woodard & Curran is pleased to submit this revised letter proposal to the City of Banning, as contracting agency for the San Gorgonio Integrated Regional Water Management (IRWM) Region, to provide grant application preparation services for the Proposition 1 (Prop 1) IRWM Program. This proposal has been revised to update the proposed schedule to reflect the San Gorgonio IRWM Program’s decision to extend the Call for Projects and pursue the February 1, 2023 application deadline.
BACKGROUND
Development of the San Gorgonio IRWM Plan was funded by a Prop 1 IRWM planning grant in the amount of $1,000,000 that Woodard & Curran helped the region secure in 2016. In 2019, our team assisted the City with preparing the San Gorgonio IRWM Region’s Proposition 1 IRWM Implementation Grant for Round 1, which was awarded over $3.5 million to fund four priority projects and associated grant administration.
As a result of our extensive experience in preparing past IRWM implementation grant applications for the Region, the Woodard & Curran team is well positioned to provide the San Gorgonio IRWM Region and its stakeholders with the highest quality of support for the Proposition 1 Round 2 IRWM grant solicitation. This support would include assisting the Region and Regional Water Management Group (RWMG) in selecting projects for inclusion in the grant application, preparing and submitting application materials, and supporting post-application coordination with DWR. The San Gorgonio IRWM Region has agreed on a funding split within the Colorado River Funding Area and has been allocated $1,912,755 in grant funding for Round
2. Because the Funding Area has a funding split, the Department of Water Resources (DWR) has simplified the application process for the San Gorgonio IRWM Region that reduces the narrative required and removes DWR’s scoring process, which has been taken into consideration for this proposal.
DWR’s simplified application process also requires that each region complete a competitive local project selection process that adheres with Proposition 1 requirements for Funding Areas that have agreed on a funding split, as outlined in Attachment 7 of the Draft PSP. Woodard & Curran will work with the RWMG to update the project selection process outlined in Section 5.2 of the San Gorgonio IRWM Plan to ensure compliance with Attachment 7. A recusal process for DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 223
City of Banning
SGIRWM Prop 1 Round 2 Proposal
2 Woodard & Curran, Inc.
Revised August 9, 2022
the Project Review Subcommittee should be outlined for project voting and Table 5-1: Project Prioritization Criteria and Scoring in the IRWM Plan must be updated to include a CEQA/NEPA/Permitting prioritization criterion. DWR also encourages IRWM Regions to select a replacement project in the event that a project is removed from the application or grant agreement. This replacement project must be the next highest ranked project eligible to receive funding that is not included on the recommended project list. The replacement project will be added to the agreement if a project is removed from the grant agreement during the implementation period for failing to progress in a timely fashion.
Per the Draft PSP, in addition to the grant application checklist (consisting of grantee, project sponsor, and project information), the grant application is expected to consist of seven attachments, including the following:
• Attachment 1: Authorization and Eligibility Requirements consists of authorizing resolutions, self-certification forms for eligibility requirements, Groundwater Sustainability Agency support letter(s), and CASGEM-mapping • Attachment 2: Work Plan includes a description of the tasks to be completed for each proposed project, and is limited to seven pages per project, exclusive of maps and figures.
• Attachment 3: Budget includes tables of costs for each project, organized consistent with the tasks described in Attachment 2 Work Plan. No budget justification narrative is expected to be required for the San Gorgonio IRWM proposal due to the funding split agreement for the Colorado River Funding Area.
• Attachment 4: Schedule requires a schedule for each project that shows the start and end dates, along with project milestone dates, organized consistent with the tasks in Attachment 2 Work Plan. No schedule justification narrative is expected to be required for the San Gorgio IRWM proposal due to the funding split agreement for the Colorado River Funding Area.
• Attachment 5: Disadvantaged Community (DAC) / Economically Distressed Area (EDA) includes a narrative explaining the DAC or EDA status and how the project(s) will benefit these communities. This attachment is optional, but expected to be required for the San Gorgonio IRWM proposal due to the presence of DACs and EDAs within the majority of the IRWM region’s boundaries and anticipated request for funding match waivers for the projects.
• Attachment 6: Climate Change requires the region answer five climate change planning questions. This attachment is not evaluated by DWR as part of the application, and responses will not affect funding success. However, it is required prior to execution of the grant agreement.
• Attachment 7: Review Process is required for all IRWM regions that have a funding split agreement in place, including the San Gorgio IRWM region. This attachment requires the region to explain how the local project selection process is competitive and meets DWR’s requirements.
The proposed Project Manager, Sally Johnson, is well-versed with managing grant applications, including large IRWM implementation grant applications, and previously served as the Project DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 224
City of Banning
SGIRWM Prop 1 Round 2 Proposal
3 Woodard & Curran, Inc.
Revised August 9, 2022
Manager for the Region’s successful Round 1 grant. This proposal would be implemented by Woodard & Curran staff following standard project management practices. As described in Task 1: Project Management, monthly invoicing and progress reporting will be completed, which is used by the Project Manager to confirm progress on budget and schedule.
Additionally, during grant writing efforts, the Project Manager will manage Woodard & Curran staff through regular team meetings and weekly budget checks using Woodard & Curran’s timesheet and controls program, Deltek Vision. Input on draft deliverables will be solicited via email or sharepoint files, with all comments provided in track changes and compiled for discussion via teleconference as appropriate.
SCOPE OF SERVICES
The proposed Scope of Services includes 4 tasks. This scope is based on DWR’s Draft Proposition 1 Round 2 IRWM Implementation Grant Proposal Solicitation Package (PSP, released December 2021), and the project selection process included in the San Gorgonio IRWM Plan. The Final PSP is expected to be released by DWR in April 2022. At that time, Woodard & Curran would review the Final PSP to determine whether any changes made by DWR from the Draft to Final PSPs would affect this proposed scope of work. If substantial changes to the scope of work are required due to changes found in the final PSP, Woodard & Curran may submit an amendment request to the City. For the purposes of this proposal, it is assumed that three projects will be included in the San Gorgonio IRWM Region’s Round 2 implementation grant application. This proposal also assumes that the replacement project will not be included in the application itself, and therefore would be selected but not require application materials be developed.
Task 1: Project Management
Woodard & Curran will assist the City of Banning on behalf of the San Gorgonio RWMG to coordinate, complete, and submit the Prop 1 implementation grant application in accordance with DWR’s Final PSP. Woodard & Curran will prepare and manage a schedule for the grant application process to ensure all agencies participating remain on task and will coordinate and conduct up to 3 meetings with RWMG members as needed during the grant process.
Task 1 includes all project management and project coordination activities that may occur between the estimated start date of April 2022 through the completion of Task 4 (estimated to be complete within one year of project start), including a kickoff meeting with the City of Banning. Woodard & Curran will prepare monthly invoices and progress reports and conduct ongoing schedule and budget management. Woodard & Curran will coordinate with the City throughout completion of Tasks 2 through 4.
Deliverables:
• SGIRWM grant application schedule
• Agendas, meeting materials, and notes for up to three RWMG meetings • Monthly progress reports and invoices (for one year)
DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 225
City of Banning
SGIRWM Prop 1 Round 2 Proposal
4 Woodard & Curran, Inc.
Revised August 9, 2022
Task 2: Project Selection
This proposal assumes the City of Banning and RWMG will initiate the project solicitation process without the assistance of Woodard & Curran, and that Woodard & Curran would begin involvement with the project selection process once the Call for Projects closes, if applicable.
Woodard & Curran assumes that project selection would occur during a virtual RWMG meeting to be held via conference call (Teams). Woodard & Curran will provide information about scoring criteria and priorities based on DWR’s Final PSP to the RWMG and will attend the meeting via teleconference for the purpose of answering questions that might arise about DWR’s process. Woodard & Curran would not be involved with making recommendations to the RWMG regarding project selection. This scope assumes the project selection meeting will be 2 hours, longer than the normal 1-hour RWMG meetings and will include official voting and recusal, if applicable. The result of the meeting will be a project list for inclusion in the grant application including a replacement project.
Deliverables:
• Updated project selection process (including updated criteria and recusal process) • Project list for inclusion in grant application (including replacement project) • One (1) two-hour project selection meeting
Task 3: Application Preparation and Submittal
Woodard & Curran will coordinate with each project sponsor to receive the necessary project information and data to prepare the grant application. Woodard & Curran will prepare a data request for project sponsors and distribute it via email. A one-hour virtual workshop will be held with project sponsors to review the data request and answer questions about the requested information and the application. Information received from the data request will be used to develop the Work Plan, Budget, and Schedule for each identified project (three projects are assumed in this scope).
Woodard & Curran will prepare draft versions of Attachments 1 through 7 and the grant application checklist. This task includes coordination calls and emails with project sponsors and the RWMG as necessary. RWMG and project sponsors will review the draft application materials and provide comments. Woodard & Curran will then incorporate comments and prepare a draft final version of all attachments. The RWMG and project sponsors will be given the opportunity to review the draft final attachments prior to submittal. Woodard & Curran will prepare a screencheck final application incorporating comments from the draft final, to be reviewed by City of Banning as the applicant on behalf of the San Gorgonio IRWM Region. Following City of Banning approval on the screencheck final, Woodard & Curran will finalize and submit the application to DWR via its online GRanTS system, using the City of Banning’s access. Electronic versions of the application will be provided to the RWMG and project sponsors in MS Word, Excel, and PDF format.
Deliverables:
• Data request in MS Word and Excel format
DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 226
City of Banning
SGIRWM Prop 1 Round 2 Proposal
5 Woodard & Curran, Inc.
Revised August 9, 2022
• Draft and draft final application
• Final electronic files of application in MS Word, Excel, and PDF format • Confirmation final attachments successfully uploaded to DWR’s GRanTS system Task 4: Grant Agreement and Funding Award Support
Woodard & Curran will also provide post-submittal support. This will include reviewing DWR’s draft grant awards and preparing a comment letter for submittal to DWR, as needed. If the SGIRWM region is selected for award, Woodard & Curran will review the draft funding agreement and provide comments to the RWMG regarding the requirements and recommended adjustments to project scope of work, budgets, and schedule. This task assumes up to 16 hours of Woodard & Curran time.
Deliverables:
• Draft and final comment letter on Draft Awards
• Comments on Draft Agreement
SCHEDULE
Woodard & Curran can begin work immediately following receipt of a Notice to Proceed (NTP).
The current application timeline provided by DWR is as follows:
• Release of Draft PSP – December 2021
• Release of Final PSP - April 2022
• Applications due – February 1, 2023
• DWR review/notification of award - No timeline provided Woodard & Curran has provided a schedule below assuming an NTP is issued in August 2022.
This schedule has been revised to reflect the Round 2 Final PSP.
Table 1: Approximate Proposed Schedule
Activity Anticipated Start Anticipated
Completion Duration
Task 1: Project
Management August 2022 August 2023 1 year
Task 2: Project Selection
and Coordination August 2022 October 2022 3 months
Task 3: Application
Preparation and Submittal November 2022 February 2023 3 months Task 4: Grant Agreement
and Funding Award
Support
March 2023 August 2023 6 months
DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 227
City of Banning
SGIRWM Prop 1 Round 2 Proposal
6 Woodard & Curran, Inc.
Revised August 9, 2022
BUDGET
Woodard & Curran proposed to complete this Task Order for an amount not-to-exceed $74,136 (see Fee Estimate attached). The cost for Woodard & Curran’s work will be on a timeand-materials basis.
TERMS AND CONDITIONS
The Scope of Services will be completed in accordance with the terms of the Consultant/Professional Services Agreement between Woodard & Curran, Inc. and City of Banning.
CLOSING
We greatly appreciate this opportunity to offer our funding services and hope to continue to support the San Gorgonio IRWM Region in achieving its important funding goals. Persephene St. Charles will serve as the Principal-in-Charge and Sally Johnson will serve as Project Manager ([email protected], 858-875-7427). Sally is the point of contact for thisproposal.
If you accept this proposal and wish to proceed with the Scope of Services, please sign in the space indicated below and return a copy for our files. Please feel free to call the undersigned at 858-875-7427 if you have any questions regarding this proposal or require any further information.
Sincerely,
WOODARD & CURRAN, INC.
Sally Johnson
Water Resources Planner
Enclosure(s)
cc: Fee Estimate
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized agents as of the date indicated below.
DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 228
City of Banning
SGIRWM Prop 1 Round 2 Proposal
7 Woodard & Curran, Inc.
Revised August 9, 2022
AUTHORIZATION BY:
WOODARD & CURRAN, INC. CITY OF BANNING
Signature Date Signature Date
Persephene St. Charles Art Vela
Name (printed) Name (printed)
National Practice Leader Public Works Director
Title Title
DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 229
11303-0008\2344655v8.doc
EXHIBIT “B”
SPECIAL REQUIREMENTS
None
Exhibit “B”-1
DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 230
11303-0008\2344655v8.doc
EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks (“Tasks”) at the following rates:
TASK DESCRIPTION SUB-BUDGET
1. Project Management $13,106
2. Project Selection and Coordination $5,370
3. Application Preparation and Submittal $51,700
4. Post-Submittal Support $3,960
TOTAL $74,136
II. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task sub-budget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8.
III. City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include:
A. Line items for all personnel describing the Services performed, the number of hours worked, and the hourly rate.
B. Line items for all materials and equipment properly charged to the Services.
C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.
D. Line items for all approved sub-contractor labor, supplies, equipment, materials, and travel properly charged to the Services.
IV. The total compensation for Services shall not exceed $74,136 as provided in Section 2.1 of this Agreement.
V. Consultant’s billing rates for all personnel are attached as Exhibit C-1.
Exhibit “C”-1
DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 231
Fee Estimate
City of Banning March 9, 2022
San Gorgonio IRWM Region Prop 1 Round 2 Implementation Grant Tasks Labor ODCs Total
Persephene
St. Charles
Sally
Johnson Emily Honn Jen Sindermann
Total Hours Total Labor ODCs Total ODCs Total
Estimated
PIC/PM PM Planner Project
Assistant
Costs (2) (3) Fee
$330 $260 $235 $120
Task 1: Project Management
Ongoing PM and Coordination 2 18 18 38 $7,500 $0 $0 $7,500 Grant application process schedule 2 3 5 $1,225 $1 $1 $1,226 Conduct Meetings with RWMG members (up to 3 RWMG meetings) 6 12 18 $4,380 $0 $0 $4,380 Subtotal Task 1: 2 26 15 18 61 $13,105 $1 $1 $13,106
Task 2: Project Selection and Coordination
Updated Project Selection Process 4 8 12 $2,920 $0 $0 $2,920 Project Selection Meeting 4 6 10 $2,450 $0 $0 $2,450
Subtotal Task 2: 0 8 14 0 22 $5,370 $0 $0 $5,370
Task 3: Application Preparation and Submittal
LPS Data Request and Coordination 4 8 12 $2,920 $0 $0 $2,920 Prepare Draft Grant Application (3 projects) 2 33 96 131 $31,800 $0 $0 $31,800 Att 1 Authorization/Eligibility 2 4
Att 2 Work Plan 10 24
Att 3 Budget 6 16
Att 4 Schedule 6 16
Att 5 DAC/EDA 4 16
Att 6 Climate Change 2 8
Att 7 Review Process 2 8
Grant Application Checklist 1 4
Prepare Final Grant Application 1 20 40 61 $14,930 $0 $0 $14,930 Submit via GRanTS for City and Project Proponents 2 6 1 9 $2,050 $0 $0 $2,050 Subtotal Task 3: 3 59 150 1 213 $51,700 $0 $0 $51,700
Task 4: Post-Submittal Support
Comment Letter on Draft Awards 2 4 6 $1,460 $0 $0 $1,460 Review and Comment on Draft Agreement 6 4 10 $2,500 $0 $0 $2,500 Subtotal Task 4: 0 8 8 0 16 $3,960 $0 $0 $3,960
Total 5 101 187 19 312 $74,135 $1 $1 $74,136
1. Assumes 3 projects included in grant application.
2. The individual hourly rates include salary, overhead andprofit.
3. Other direct costs (ODCs) such as reproduction, delivery, mileage (rates will be those allowed by current IRS guidelines), and travel expenses, will be billed at actual cost plus 10%.
4. Woodard & Curran reserves the right to adjust its hourly rate structure and ODC markup at the beginning of the calendar year for all ongoing contracts.
DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 232
11303-0008\2344655v8.doc
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services timely, and deliver the specified tangible work products to City in accordance with the schedule attached as Exhibit D-1.
II. The Contract Officer may approve extensions for performance of the Services in accordance with Sections 1.8 and 3.3.
Exhibit “D”- 1
DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 233
11303-0008\2344655v8.doc
EXHIBIT “D-1”
PROPOSED PROJECT SCHEDULE
Exhibit “D-1”- 1
DocuSign Envelope ID: AE8BAF33-1CEF-4109-93F9-0D282571841D 234
STATE OF CALIFORNIA – CALIFORNIA NATURAL RESOURCES AGENCY GAVIN NEWSOM, Governor
DEPARTMENT OF WATER RESOURCES
P.O. BOX 942836
SACRAMENTO, CA 94236-0001
(916) 653-5791
May 18, 2023
Arturo Vela
Director of Public Works
City of Banning
99 E. Ramsey Street Banning, CA 92220
Award Notification for Proposition 1 Round 2 Integrated Regional Water Management (IRWM) Implementation Grant
Dear Mr. Vela:
Congratulations! We are pleased to inform you that the proposal, Proposition 1 Round 2 San Gorgonio IRWM Implementation Proposal, filed by the City of Banning has been awarded $1,912,755 by the Department of Water Resources (DWR) through the Proposition 1 Round 2 IRWM Implementation Grant Solicitation. Costs incurred after May 5, 2023 (DWR Director’s approval date of the awards) will be eligible for grant reimbursement and costs incurred after January 1, 2015, can be used as required local cost share. This award is conditioned upon the execution of a Grant Agreement between DWR and your agency. Please see the Agreement Template for your reference.
Your timely attention is directed to the following actions.
Within 14 calendar days of the date of this award letter:
Award Acceptance – Please submit a letter or e-mail signed by the authorized representative confirming your agency as the Grantee to accept the grant award in the amount of $1,912,755 and your commitment to provide the required local cost share of 50% of the total project costs, excluding projects receiving a cost share waiver or reduction.
Electronic Signatures – DWR uses DocuSign to process signatures electronically to expedite all grant-related documents requiring a signature. In order for DWR to send documents to you via DocuSign, we need your consent. If you consent to the use of DocuSign, please submit a letter on official letterhead signed by the authorized representative consenting to the use of DocuSign for all transactions related to this award (see sample language in Attachment 1). If you prefer not to use electronic signatures, DWR can send documents for original (wet) signatures via e-mail or mail, but this can delay the process significantly.
Authorizing Resolution Update – The applicant has provided a resolution adopted by the applicant’s governing body designating an authorized representative to execute an agreement with the State of California for a Round 2 IRWM Implementation Grant but this resolution does not include language allowing a designee to sign in place of the authorized representative. Please provide a resolution that includes language allowing a designee to sign documents (see example in Attachment 2). 235
Mr. Vela
May 18, 2023