759
PASSED, APPROVED AND ADOPTED this 25th day of June 2024 .
ATTEST:
Caroline Patton , Adm
City of Banning
APPR~FORM:
Serita R. Young , City Attorney
Richards , Watson & Gershon
Resolution 2024- 97
760
CERTIFICATION:
I, Caroline Patton , Administrative City Clerk of the City of Banning , California , do hereby certify that the foregoing Resolution 2024- 97 , was duly adopted by the City Council of the City of Banning , California , at a regular meeting thereof held on the 25th day of June 2024 by the following vote , to wit:
AYES: Flynn , Happe , Minjares , Sanchez , and Wallace .
NOES :
ABSENT:
ABSTAIN :
Resolution 2024- 97
Caroline Patton , Administ i:at ive City Cle rk
City of Banning , Californ ia
761
Resolution 2024- 97
EXHIBIT A
City of Banning Local Hazard Mitigation Plan
762
LOCAL HAZARD MITIGATION PLAN
LHMP)
2023
City of Banning
local Hazard M1tigallon Plan 2023
CONTACT INFORMATION
City of Banning
Brandon Smith
Banning Police Department
Lieutenant
125 E. Ramsey Street
Banning , CA 92220
951) 922-3170 (Main Line)
951) 849 -1633 (Direct Line)
951) 922 -0039 (Fax)
[email protected]
City of Ba nning
Local Hazard Mitigation Plan 2023
763
PLAN ADAPTION/RESOLUTION
The City of Banning will submit plans to Riverside County Emergency Management Department who will forward to California Governor's Office ofEmergency Services (CAL OES) for review prior to being submitted to the Federal Emergency Management Agency (FEMA). In addition, we will wait to receive an "Approval Pending Adoption" letter from FEMA before taking th~ plan to our local governing bodies for adoption. Upon approval, the City of Banning will insert the signed resolution.
City of Banning
Local Hazard Mitigation Plan 2023 2
EXECUTIVE SUMMARY
The purpose of this local hazard mitigation plan is to identify the county's hazards, review and assess past disaster occurrences, estimate the probability of future occurrences, and set goals to mitigate potential risks to reduce or eliminate long-term risk to people and property from natural and man-made hazards.
The plan was prepared pursuant to the requirements of the Disaster Mitigation Act of 2000 to achieve eligibility and potentially secure mitigation funding through Federal Emergency Management Agency (FEMA) Flood Mitigation Assistance, Pre-Disaster Mitigation, and Hazard Mitigation Grant Programs.
The City of Banning's continual efforts to maintain a disaster-mitigation strategy is ongoing. Our goal is to develop and maintain an all-inclusive plan to include all jurisdictions, special districts, businesses, and community organizations to promote consistency, continuity, and unification.
The City of Banning planning process followed a methodology presented by FEMA and CAL-OES which included conducting meetings with the Operational Area Planning Committee ( OAPC) coordinated by Riverside County Emergency Management Department ( EMD) comprised of participating Federal, State, and local jurisdictions agencies, special districts, school districts, nonprofit communities, universities, businesses, tribes, and the general public.
The plan identifies vulnerabilities, provides recommendations for prioritized mitigation actions, evaluates resources, identifies mitigation shortcomings, provides future mitigation planning, and maintenance of existing plan.
The plan will be implemented upon FEMA approval.
City of Banning
Local Hazard Mitigation Plan 2023 3
764
Table of Contents
CONTACT INFORMATION ..
PLAN ADAPTION /RESOLUTION.. .......... . ....... .................. . ...... 2 EXECUTIVE SUMMARY.. . ...... 3
SECTION 1.0 - COMMUNITY PROFILE .. ........ ....................... . .. 7
1. 1 CITY MAP ..... 7
1.2 BRIEF HISTORY .................. 8
1.3 GEOGRAPHY AND CLIMATE DESCRIPTION ....... 8
1.4 ECONOMY DESCRIPTION ....... 9
1.5 POPULATION AND HOUSING ... 10
1.6 DEVELOPMENT TRENDS AND LAND USE ..... ...... . ................ 11 SECTION 2.0- PLANNING PROCESS ... 12
2.1 LOCAL PLANNING PROCESS.. . .... 12
2.2 PARTICIPATION IN REGIONAL (OA) PLANNING PROCESS ...................... 13
2.3 DATES AVAILABLE FOR PUBLIC COMMENT.. . .............. 13
2.4 PLANS ADOPTED BY RESOLUTION ....... 13
SECTION 3.0- MITIGATION ACTIONS /UPDATES . . ...... 14
3.1 UPDATES FROM THE 2017 LHMP ...... 15
SECTION 4.0 - HAZARD IDENTIFICATION AND RISK ASSESSMENT ....... 17
4. 1 CRITICAL FACILITIES AND INFRASTRUCTURES
4.2 ESTIMATING POTENTIAL
4.3 IDENTIFICATION OF RISKS AND VULNERABILITIES
SECTION 5.0- COMMUNITY RATING SYSTEM
5.1 REPETITIVE LOSS PROPERTIES ................................. .
5.2 NATIONAL FLOOD INSURANCE PROPERTIES
SECTION 6.0- CAPABILITIES ASSESSMENT ...
6.1 REGULATORY MITIGATION CAPABILITIES ..
City of Banning
Local Hazard Mitigatron Plan 2023
17 17
18 29
29 30
31 31
4 6 .2 ADMINISTRATIVE/TECHNICAL MITIGATION CAPABILITIES 6 .3 FISCAL MITIGATION CAPABILITIES ..
6.4 MITIGATION EDUCATION AND OUTREACH PARTNERSHIPS ..
6.5 FUNDING OPPORTUNITIES
SECTION 7.0- MITIGATION STRATEGIES ..
7.1 OVERVIEW
7.2 GOALS AND OBJECTIVES ..
7.3 2023 LHMP MITIGATION ACTIONS ..
33 34
34 35
36 36
36 37
SECTION 8.0- PLAN IMPLEMENTATION AND MAINTENANCE PROCESS .... 41
8.1 PLAN IMPLEMENTATION ... . .......................................... 41
8.2 PLAN MAINTENANCE AND REVIEW ..
8.3 INCORPORATION INTO EXISTING PLANNING MECHANISMS
8.4 CONTINUED PUBLIC INVOLVEMENT
APPENDICES
42 42
43 44
APPENDIX A-1 : PICTURE OF CITY WEBSITE INVITING PUBLIC COMMENT/INPUT 45 APPENDIX A-2: PUBLIC OUTREACH QUESTIONNAIRE .. .. 46 APPENDIX A-3: 2023 CITY OF BANNING LHMP POWERPOINT PRESENTATION49 City of Banmng
local Hazard Mitigation Plan 2023 5
765
City of Banning
Local Hazard M 1tigat1on Plan 2023 6
SECTION 1.0 - COMMUNITY PROFILE
1.1 CITY MAP
City of Banning map ( Source: 2023 Riverside County Transportation Department ) City of Ba nning
Local Hazard Mitigat ion Plan 2023 7
766
1.2 BRI EF HISTORY
Th.e City of Banning is strategically located astride Interstate 10 between the Inland Empire and the Coachella Valley in the San Gorgonio Pass. The City , incorporated in 1913 , has a rich and colorful history . Initially Banning served as a stagecoach and then rai lroad stop between the Arizona territories and Los Angeles . This history has contributed to the present-day spirit of pioneer resourcefu lness and "can do" attitude that is so prevalent in the community. Banning is a friendly and wholesome place to work and raise a family. Desirable executive housing is available . as well as moderate- and lower-income housing. Clean air , ample water supplies and the memorable and inspiring scenic vistas of both Mt. San Gorgonio and Mt. San Jacinto , the 2 tallest peaks in Southern California, are additional amenities which make the City of Banning a logical choice as a development opportunity in the Southern California area. Banning is known as STAGECOACH TOWN , U.S.A." and is famous for its annual Stagecoach Days Celebration featuring a parade . carnival , and rodeo.
1.3 GEOGRAPHY AND CLIMAT E DES CR IPTION
The City of Banning is an incorporated city in Riverside County . in the San Gorgonio Pass . between the Inland Empire and Coachella Valley. It is approximately twenty-three ( 23) square miles in area and is approximately thirty-two ( 32 ) miles east of the County seat, the City of Riverside . The City of Banning is bordered by San Bernardino County to the north , The City of Beaumont to the west , and Riverside County to the south and east. The Union Pacific Railroad and California Interstate 10 Freeway both run through the middle of the City. Smith Creek , a waterway that starts in the Mountains and runs through the lower part of the valley , is close to the City's southern and eastern boundaries.
The City of Banning sits at an elevation of approximately 2 ,300 feet above sea level. The City of Banning has climate that would be described as hot during the summer and cold during the winter months . Average temperatures are in the high 90 's during summer and low 40 's during the winter .
However . Banning can get snow which would make the temperatures lower. The average annual rainfall for the City of Banning is about 16 inches per year. The San Gorgonio Pass area and the City of Banning are susceptible to hot , dry , Santa Ana wind events. Winds alone contribute to damage in the area , as well as increasing the size and damage from fires in either a wildland or structure setting. San Gorgonio Mountain , to the north . and Mount San Jacinto . to the south . are located in the City and contribute to the weather events in the City.
City of Banning
Local Hazard M1tigat1on Plan 2023 8
1. 4 ECONOMY DESCRIPTION
The City of Banning is primarily a bedroom community , but industry is growing within the City and several new businesses . including shipping transfer stations are being built. The 2020 United States Census identifies the three primary industry sectors within Banning employing the largest percentage of the Banning population as: education services . health care . and social assistance, followed second by retail trade , and third by the arts , entertainment , recreation . accommodation , and food services . The table below outlines the Industry for the Civilian Employed Population 16 Years and Over . according to US Census Bureau data for the 2020 Census .
Table 1.4.1 Measure and Value
MEASURE Value
Education services. and health care and social
27.40 %
assistance
Retail Trade 14.00%
Arts. entertainment , and recreation . and
11.60%
accommodation and food services
Construction 7.70 %
Professional . scientific . and management . and
7.50 %
administrative and waste manaoement services
Transportation and warehousinq , and utilities 7.50%
Other services , except public administration 6.40%
Manufacturinq 6.30 %
Finance and insurance . and real estate and
4.00 %
rental leasino
Public administration 3.60%
Wholesale Trade 2.80 %
Information 0.70%
Agriculture , Forestry, Fishing and Hunting. and
0.40%
Mining
City of Banmng
Local Hazard Millgat1on Plan 2023 9
767
1.5 POPULATION AND HOUSING
In 2020 , the US Census Bu reau es timated the populati on for the City of Banning , Californ ia at 29 ,505 , whereas the 20 10 popu lati on estimate was 29 ,603. Although the officia l Census data indicates a slight drop in popu lation there is a current housi ng boom occurrin g within the City and the popu lation is expec ted to continue to climb over the com ing yea rs. The expe cted popu lati on growth and new developme nts will push housi ng closer to the higher risk hazard zones for both wildfires and floods .
Po pu lation Growth
Populillion ; 2000 - 2018
Table 1.5.1 Population Growth
lf~,l,l
1~ ~" f" ~~ , t,, ~ "! I'" ~
i ? CIXKI
i
K. ,~ co,
Table 1.5.2 Popul ation by Age
Po pu lation Share by Age : 2 000, 20 10, and 2 0 18
30' 4 2000 201 0 ,.,,
2>"
6 A
15~
u
0 ....
j
04 5-20 21-~ 35.54 55-<>' 65•
Sooltes l000 & 2010U.. S ~ UfflU$. Am« KM! UJffl' TIUMY~. l011. twtwnCo City of Banning
Local Hazard Mitiga tion Pl an 2023
Berween 2000 and 2018,
the total popuh1tion of
ttK- Citycf8. lnM11
1ncr@, ned by 7, 720 10
31. 282
Oucinc 1h" 18yei11
perlOd. lhedr( s
populiltion growth rill@
of ] 2_8 percent w~
tower t~ntheR1V'H'Side
Cot. ntyratealS6l
percMt
l 3 percl!' flt of the tot. ii
populatlooofR11.· e~
County~'" the City of -
Poput; uionvalue,, fcw
2000and2010arefrom
thf! U ' i Detl! nnlal
Census.
ViluH for other ve-,
a1e ewmiltn by thtCa1~ ~nmMt of
Fitnnce.
Between 2000 and
2018, the 2:1 - 34 age
group expenenced
the largest increase in
share, grow ing from
13. 4 to 20. 3 percen t .
The age group that
experienced the
grea test dedme in
s hare was 5- 20,
decreasing from 23 .4
to 17.9 percent .
10 1.6 DEVELOPMENT TRENDS AND LAND USE
The General Plan represe nts the cornerstone of the City's long-range planning for land use and development. As part of the City's General Plan update, the City takes appropria te inven tory of both " unfin ished bus iness " and the chall enges facing the community in the opening decade s of the 21st Cen tury. Some of the issues and chall enges the City will face in coming years are shared with the neighboring commun ities , whi le others are uniq ue to Banning .
New devel opment as shown in in Figures 7.3 .1 and 7.3 .2 are push ing reside ntial struc tures and larger population numbers to areas in fl ood and fire hazard zon es. Th is increases the risk to life and property in those zones . Mitiga tion acti ons , such as defensible spa ce , fire-resistant roofing materials, an d flood contro l channels are being used to reduce the hazard risks .
Figure 1.7.1 General Plan Map , 2021
CITY OF BAM,,_ G
GE NERAL PL. A N LA NO USE ' ZONING
J ------------· --------
5 -
City of Bann ing's Designa ted Land Use Map for further inform ation of prop osed developme nt with the City of Ba nning.
Ci ty of Banning
Local Hazard Mitigation Plan 2023 11
768
SECTION 2.0 - PLANNING PROCESS
Planning Process
Requirements §201.6(b) and §201.6(c)(1 ): An open public involvement process is essential to the development of an effective plan. In order to develop a more comprehensive approach to reducing the effects of natural disasters, the planninQ process shall include:
1) An opportunity for the public to comment on the plan during the drafting stage and prior to plan approval ;
2) An opportunity for neighboring communities , local and regional agencies involved in hazard mitigation activities, and agencies that have the authority to regulate development, as well as businesses, academia, and other private and nonprofit interests to be involved in the planning process . 3) Review and incorporation, if appropriate , of existing plans, studies , reports , and technical information. [The plan shall document] the planning process used to develop the plan , including how it was prepared , who was involved in the process , and how the public was involved.
2.1 LOCAL PLANNING PROCESS
City of Banning staff from each department met on October 4 , 2022 , to identify and prioritize appropriate mitigation strategies and general priorities . Follow-up communications and meetings were conducted with the local planning process team members throughout the development of the Local Hazard Mitigation Plan. The local planning process team members consisted of the following members:
City Manager - Doug Schulze
Deputy City Manager - Lincoln Bogard
Public Works Department - Art Vela
Public Works Department - Nate Smith
Finance Department - Lincoln Bogard
Planning Department - Adam Rush
Electric Director - Art Vela
Economic Development - Marisol Lopez
Police Department - Lieutenant Brandon Smith
Information Technologies - Eric Brown
Fire Department - Contracted through CAL Fire
Emergency Service Coordinator - Contracted through Riverside County Emergency Management Department
City of Banning
Local Hazard Mitigation Pl an 2023 12
2.2 PARTICIPATION IN REGIONAL (OA) PLANNING PROCESS
The City of Banning participated in several regional Local Hazard Mitigation Plan development process meetings with the Riverside County Operational Area . The meetings included the following:
April 13, 2022 , City of Banning participated in the Local Hazard Mitigation Plan Steering Committee hosted by the Riverside County Emergency Management Department.
June 15, 2022, City of Banning participated in the Local Hazard Mitigation Plan Kick Off Meeting hosted by Riverside County Emergency Management.
July 3, 2022 , City of Banning participated in the Local Hazard Mitigation Plan Steering Committee hosted by the Riverside County Emergency Management Department.
August 17, 2022 , City of Banning participated in workshop meeting related to the development of the Local Hazard Mitigation Plan Steering Committee hosted by the Riverside County Emergency Management.
October 4 , 2022 , City of Banning staff participated in local planning process meeting on the development of the Local Hazard Mitigation Plan.
October 5, 2022, City of Banning participated in the Local Hazard Mitigation Plan Steering Committee hosted by the Riverside County Emergency Management Department.
2.3 DATES AVAILABLE FOR PUBLIC COMMENT
The City of Banning utilized an online form at engagebanning .civilspace.io for public comment outreach related to the LHMP ( see Appendix A-1 and Appendix A-2), which closed for public comment on October 1 , 2022. Public notice of the LHMP update was announced at the October 11 , 2022 , San Gorgonio Pass Emergency Planning Committee ( PASSCOM ) meeting. At the January 10, 2023 , City of Banning Council Meeting , the City Manager again discussed the LHMP and the online form for public comment using engagebanning .civilspace.io was reopened for public comment.
2.4 PLANS ADOPTED BY RESOLUTION
Upon approval by FEMA, the LHMP will be presented to the City Council in a public meeting for adoption via an official resolution.
Ci ty of Banning
l ocal Hazard M iti gation Plan 20 23 13
769
SECTION 3.0- MITIGATION ACTIONS/ UPDATES
Element D • Plan Review, Evaluation, and Implementation Requirement §201 .6(d)(3) A local jurisdiction must review and revise its plan to reflect changes in development, progress in local mitigation efforts, and changes in prio rities , and resubmit if for approval within 5 years in ord er to continue to be eligible for mitigation project grant funding .
The updated LHMP complies with FEMA guidance and California OES guidelines for LHMPs. The update followed the requirements noted in the DMA of 2000 and FEMA 's 2013 Local Hazard Mitigation Planning Handbook. This LHMP update involved a comprehensive review and update of each section of the 2017 LHMP and has attempted to align with the elements of the DMA and FEMA review guide and therefore has multiple changes in section title and content.
City of Banning
Local Hazard M1tigat1on Plan 2023 14
3.1 UPDATES FROM THE 2017 LHMP
Plan I Acli on Hazard Background/ Benefit Department
C ost ::~;~:•
I Timeline Year Estimate
Assign nsk leveh lex- wildfire
hazards lo assist in regulating the Cal Fife/
2017
I allowable lype, density, location,
Fire
This will ensure be tter wildfire mitigation Building and I $14. 000• I Gene ral j 2017- and/ or destgn and construcboo of lor thecrty'sfuturepro, ect Safely. $ 20,000 Foods 2028 new devetopments. both public and Planning
pnvate
Wead abatsrmml program to
All cily ownsd property is abated
control or ellminate unwanted
appropnatEily to lower the nsk of fire
l vegetallon, commonly referred 10
hazards and to a clean property I E i- u I S5. 000 lo I Geoer.> I I 20t7-
2017
as weeds. to reduce fire hazards
Fire appearance . The Code Enforcement
b6;;: s $ 10,000 Funds 2028
and maintain a safe and
Ospartment ~ s with private
aeslhe ticaly pleasing environment
l andowners lo ensure comphance. Thts is
conducted lhroughoul the cdy
Require all new developments to
mb',) ate potenbal lloodtng that may
resutt from development. such as
grading that prevents adverse I IThisW! llenwrelha l s! ormwaterflowwil I Bu.: tdmgand I Sl0,000- 1 General I 2017- 2017 I drainage impacts to adjacent
Floodmg !° e:~ rv:1:: pnatety lo reduce the safely $ 20,000 Fuods 2028 properties , on- site retention of
runoff, and lhe adequate s1bng of
slrudureslocatedwtthinflood
plalflS.
L___ l_
c. tyofBarww, g
LocalHaza1dM,: ga1, onP1an2023
770
Table 3.1.1 are the goals and objectives from the 2017 LHMP that are still in place during the 2022 LHMP Update.
Table 3.1 .1 Goals and Objectives
Goa l 1 - Provide effective emerg ency response to disasters that minim ize the loss of life and property, and lessen to the oreatest extent feas ible , serious damaae and injuries .
Ob iective 1.1 - Provide timelv notification and direction to the oublic of imm inent and ootential hazards .
Objective 1.2 - Protect public health and safety by preparing for, responding to , and recovering from the effects of natural or technoloo ical disasters .
Objective 1.3- Improve community transportation corridors to allow for better evacuation routes for public and better access for emeraencv resoonders .
Goa l 2 - lmorove the commun ity's capability to mitigate hazards and reduce exposure to haza rd related losses.
Objective 2. 1 - Reduce localized flooding within the City's storm drain systems by enforcement of the City of Bannina 's Stormwater Ma naaement and Discharge Control Code .
Objective 2. 2 - Minimize the impact to the City due to reoccu rrin g drought conditions that im pact ground water supply.
Objective 2.3 - Minimize the impact to vulnerable populations within the community that may be affected by severe weather- related events , such as Iona duration heat waves and winter storm s.
Goal 3 - Protect the lives and property of residents , business owners , and visitors from the hazards of urban and wildland fires.
Objective 3. 1 - Support brush removal and weed abatement in developed areas to minim ize fire risks and coordi nate with the Riverside County Fire Department Hazard Reduction Office and neighboring cities regarding jurisdictional issues rela ted to brush removal.
Objective 3.2 - Classify areas of varying fire-hazard severity based upon the proxi mity to open wildland slope, arades , access ibilitv, water suooly, and building construction features .
Objective 3.3 - Requi re property owners adjacent to wildland areas to maintain a defen sible space around structures that are free from dry brush and other flammable materials and to comply with the 100 ' Defensible Space Requirement in the Public Resources Code ( PRC 4291) and Government Code ( GC 511 82 ) for fue l modification to reduce fire dancer.
Objective 3.4 - Continue to conduct long-range fire safety plann ing, including enforcement of stringent building, fire , subdivision, and other Municipal Code standa rds ; improved infrastructure ; and mutual- aid agreem ents with other oublic aaencies and the orivate sector.
Goa l4 - Substantially reduce the known level of risk to loss of life . personal injury, publ ic and private property damage, economic and social dislocation , and dis rupti on of vital commun ity services that would result from earthauake damaae or oth er geologic disturbance.
Objective 4.1 - Require new development and re-deve lopme nt to be undertaken in a manner that is in complian ce with current seismic and qeoloqic haza rd safety standards.
Objective 4.2 - Adopt current Building and Fire Codes and amend the Bu ilding and Zoning Codes to incorpora te soecific standards for sitina, seismic desian , and rev iew of Essential Facil ities.
Goal 5 - Reduce near-term drouaht shortaoes that cou ld imoact res idents and the aariculture industrv.
Obiective 5.1 - Adopt and enforce the urban water manaaement and conservation clan to preserve water.
Objective 5.2 - Maximize the use of shared resources between jurisdictions and special districts for mitiaation /commun ication .
Objective 5.3 - Min imize the impact to the City due to reoccurring drought cond itio ns that impact both ground water suoolv and aaricultura l industrv .
City of Banning
l ocal Hazard Mitigation Plan 2023
SECTION 4.0 - HAZARD IDENTIFICATION AND RISK ASSESSMENT Element B - Risk Assessment & Hazard Identification Requirements Requirement § 20 1.6(c)(2): [ The plan shall include) A risk assessment that provides the factual basis for activities proposed in the strategy to redu ce losses from identified hazards . Loca l risk assessments must provide sufficient inform ation to enable the jurisdiction to ide ntify and prioritize appropriate mitigation actions to reduce losses from identified hazards .
Requirement § 201 .6(c)(2)(i ): [The risk assessment shall include a] description of the type , location and extent of all natural hazards that can affect the jurisdiction. The plan sha ll include informati on on previous occurrences of hazard events and on the probability of future hazard events .
4.1 CRITICAL FACILITIES AND INFRASTRUCTURES
A critical facility may be defined as one that is essential in providing utility or direction either during the response to an emergency or during the recovery operation. An inventory of critical facilities is included from the City of Banning in Table 4.1 .1.
Table 4 .1.1 Critical Facilities Type
Critical Facilities Type Number Critical Facilities Type Number .
Airoorts 1 Health Ca re Facilities lHosoitan 1
Commun ications Cente rs 1 Health Ca re Faci lities / Beaver Medical Grouo) 1 Detention Centers / Countv of Riverside ) 1 Law En forcement Facilities 1 Court House / Countv of Riverside ) 1 Mai ntenance Yards 1 Schools ( Elementary, Intermediate and High
Citv Hall 1 Schools) 7
Emergency Operations Centers ( City
Hall\ 1 College / Un iversities 1
Fire De nartment / Stations / CAL Fire) 2 Public Utilities Water/ Sewe r/Electric 4 Totals 24
4.2 ESTIMATING POTENTIAL LOSS
The most vulnerable structures in the City of Banning are the various elementary and middle schools, the high school (Banning High School ), Police Department, City Hall , Corporate Yard , Fire Departments/ Stations, and water facilities (wells, above ground reservoirs, and wastewater treatment plants). The proximity to the earthquake faults and flood plains increases the probability that infrastructure damage will occur to these facilities in the event of a major earthquake or flood event. Many of the water reservoirs and water wells are located along the foothills of the Mount San Gorgonio and are susceptible to wildfire hazards.
The City of Banning's transportation network of roads , Interstate , and rail lines provides additional risks and potential loss to the City of Banning in the event of an earthquake or other disaster .
City of Banning
Local Hazard Mitigation Plan 2023 17
771
Replacement values listed on the table below (table 4.2.1) are calculated using the 2017 replacement values and adjusting for Consumer Price Index changes from 201 7 to 2023.
Name of Asset Replacement Value ($) Hazard Specific Information Schools lelementarv/ middlel 97 .5 million Earthquake / Flood / Fire Hiah School /Bannino Hiohl 50.6 mill ion Earthauake / Flood / Fire Police Denartment 19 .1 million Earthauake
Citv Hall 15.2 mill ion Earthauake
Cornorate Yard 6 .3 million Earthouake
Fire Station - 6th Street (Located in City of
3.2 mill ion Earthquake
Beaumontl
Fire Station 89 - Murrav Street 3 mill ion Earthauake
Water Wells 95 million Earthauake / Fire / Flood
Water Reservoirs 82 million Earthauake / Fire / Flood
Wastewater Treatment Plants 150 mill ion Earthauake / Fire / Flood
4.3 IDENTIFICATION OF RISKS AND VULNERABILITIES
As part of the planning process for the City 's Local Hazard Mitigation Plan , team members utilized information from several sources to determine the hazards that threaten the planning area. The following data sources were used for the Hazard Identification portion of this Plan Update :
2017 City of Banning General Plan Update
2017 City of Banning LHMP
FEMA 's Resilience Analysis and Planning Tool ( RAPT )
FEMA 's Disaster Declaration Database
NOAA Storm Events Database
2020 US Census
The team members used historical data from previous events within the city and new population data from the 2020 US Census and FEMA's RAPT to determine populations that would be affected during another similar event.
The City of Banning uses a vulnerability worksheet tool that helps organize and assess the various hazard-related factors and their impacts. It typically includes sections for identifying hazards , assessing their severity and probability , and ranking them based on the combined assessment.
When ranking hazards using a vulnerability worksheet , several factors , such as geographic extent , likelihood of future occurrence , magnitude/severity , and significance are considered. The results of the vulnerability worksheet , including the hazard rankings , severity assessments, and probability assessments , are used to inform mitigation planning . Based on the rankings , authorities can identify and prioritize measures to reduce the vulnerability to each hazard .
Mitigation strategies may include land-use planning, infrastructure improvements , early warning systems , public education , and emergency response planning .
City of Banning
Local Hazard Miti ga tion Pl an 20 23 18
Table 4.3.1 CITY OF BANNING LOCAL HAZARD IDNETIFICATION RISK MATRIX 2023
HAZARDS LOCAL JURISDICTION
NATURAL DISASTER/ GEOGRAPHIC LIKELIHOOD OF MAGINITUDE
SIGNIFICANCE
CLIMATE EXTENT FUTURE OCCURANCE / SEVERITY
WILDFIRE Extensive Highly Likely Critical High
EARTHQUAKE Extreme Occasional Catastroohic Hiah
FLOOD Siqnificant Hiqhly Likely Limited Hiqh
STORMS Extensive Likely Critical Medium
STRONG WINDS Sianificant Likelv Limited Medium
DROUGHT Extreme Likely Critical Medium
LANDSLIDE Limited Occasional Limited Medium
EXTREME WEATHER -
HEAT Extreme Likely Limited Medium
HAIL Limited Occasional Nealiaible Low
LIGHTNING Siqnificant Occasional Neqliqible Low
WINTER WEATHER Siqnificant Occasional Neqliqible Low
HURRICANE Extreme Unlikelv Limited Low
TORNADO Limited Unlikelv Limited Low
HUMAN CAUSED HAZARDS
HAZARDOUS MATERIAL
INCIDENT Siqnificant Occasional Limited Hiqh
TRANSPORTATION
FAILURE Extensive Occasional Catastrooh ic Hiah
WATER SUPPLY
DISRUPTION Extreme Occasional Catastroohi c Hiah
ELECTRICAL FAILURE Extreme Occasional Catastrophic Hiqh Based upon these historical documents, certain hazards were excluded from consideration for this LHMP Update and they are listed in Table 4 .3.3 .
Table 4.3 .2 Definition for each hazard
i!OB!:! l!h!!; ~ ent Mi!ilnltu!!el§eve!: ttl!
Negligible: Less than 10% of property severely
Limited: Less than 10% of planning area
damaged; shutdown of facilities and services for less
than 24 hours; and/or injuries/illnesses treatable with first aid
Limited : 10-25% of property severely damaged ;
Significant: 10-25 % of planning area
shutdown of facilities for more than a week; and/or
injuries/illnesses treatable do not result in permanent disabilitv
Critical: 25-50 % of property severely damaged :
Extens ive: 25-50 % of planning area shutdown of facilities for at least two weeks ; and/or injuries/illnesses result in oermanent disability
Catastrophic : More than 50 % of property severely
Extreme : 50-100 % of planning area damaged: shutdown of facilities for more than 30 days; and /or multinle deaths
Likelihood of Future Occurrences S!gnlflcance
City of Banning
Local Hazard Miti gatio n Plan 2023 19
772
Unlikely: Less than 1% chance of occurrence in the
next 100 years , or has a recurrence interval of greate r Low: Minimal potential impact than every 100 years
Occasional: Between 1 and 10% chance of occurrence
in the next year , or has a recurrence intervalof 11 to Medium: Moderate potential impact 100 years
Likely: Between 10 and 100 % chance of occurre nce in
the next year, or has a recurrence interval of 10 years or High: Widesp read pote ntial impa ct less
Highly Likely: Near 100% chance of occurrence in the
next year , or happens every year
Table 4.3 .3 2023 LHMP EXCLU DED HAZAR DS
Based on historical documents and other available planning mechanisms some hazards were excluded from this LHMP update
Hazard Excluded Reason for Exclusion
Aqueduct The City does not have an aqueduct that cou ld cause flood ing or poten tial inundation .
Covered in MJLHMP Section 5.3. 16
Avalanches The Citv does not have suffi cient snowfa ll to have avalanche as a haza rd.
Civil Disturbance While civil disturbances occur from time to time , there are other avenues outside of this Plan Update to address this hazard . Covered in MJLHMP Section 5.3.10 Coastal Flooding
Due to the distance from the coast , and limited chance of waters reaching the city , coastal floodina was excluded from consideration .
Cyber Threats While the potential for cyber threats exists, there are other avenues outside of this Plan Uodate to address this hazard . Covered in MJLHMP Sect ion 5.3.6 Ice Storm While ice storms can occur, there have been no instances where it has caused significant im pact the City.
Insects Pests and While pests and diseases from insects can occur , there have been no instances where it Diseases has affected the City . Covered in MJLHMP Sect ion 5.3.18 Jail/Prison Event
While the City of Banning has a jail facility in our jurisdiction and the potential for a jail/prison event exists , there are other avenues outside of this Plan Update to address this hazard . Cove red in MJLHMP Section 5. 3.19
Nuclear Incident While radiological accidents may occur, there are other avenues outside of this Plan Update to address th is hazard. Covered in MJLHMP Sect ion 5.3.12 Pandemic
While the potential for a pandemic exists , there are other avenues outside of this Plan Update to address this hazard. Covered in MJLHMP Section 5 .3 .2 Pipeline
While the City of Banning has multiple pipelines in our jurisdiction and a hazardous materials release can occur, there are other avenues outside of this Plan Update to address this hazard. Covered in MJLH MP Section 5.3.20
Terrorism
While the poten tial for terrorism exists , there are other avenues outside of this Plan Update to address thfs hazard . Covered in MJ LH MP Secti on 5.3 .7 Volcano Due to the distance from volcanoes , and the limited chance of an eruption , volcano was excluded from cons ideration.
City of Banning
Local Hazard Mitigation Plan 2023 20
Th e followi ng are the top four risks and vulnerab ilities the City of Bannin g identified through its local planning process as part of the development of the City's Local Hazard Mitigation Plan:
1. Wildfires
Hazard Summary: Wildfire is a continuou s threat in Southern Californ ia , particularly in the City of Bann ing area of Rivers ide County. Accord ing to FEMA' s Disaste r Decla ration Database , since 2017 there have been 10 disaster declarations attribut ed to fires in Rivers ide County. The major areas of concern are the wildla nd and urba n interface s. Newer home developments now border major brush areas within Banning , increasing the probab ility of wildland fire start s becoming more man-made- related causes. Althoug h occurrin g with less frequency , the threat of fire from lightning strikes also exists.
Generally, the dry seasons are a major time for an increase in wildland fires. Environmen tal chan ges such as the lack of traditio nal rain precipitation have increased the wildland fire danger from a once seasonal even t occurri ng from late spring to mid-fall to a now all-year-rou nd hazard .
Wildland Fire danger is exce ption ally great during strong wind even ts such as "Santa Ana" winds.
Poor maintenan ce of vege tation growth around structures and properties also contributes to the growth and devastation of wildland fires.
Critical Infrastructure at Risk : Banning has experienced numerous wildland fires that have affected peop le and infrastru ctu res. The effec ts on peop le can be significant. Many wildl and fires have resu lted in the evacua tion of home s due to the poten tial of the wildland fires either damaging or destroying homes and com merc ial buildings. Th e effects of wildl and fires on infrastructure inclu de damaging or destroy ing utility infras tru ctures such as powerlines , water or sewage components , and natural gas supply lines . Another effect wi ldland fires have on infrastructure is wildl and fires can destroy ground covering , causing flooding and land erosion . If heavy rains follow a significant wi ldland fire , there is a strong probabi lity that flash floods , severe eros ion , landslides , and mudfl ows can occur.
Community Impact: Whi le the threat of fires damaging structures mainly effects the residen ces and other stru ctures near the foothills of both Mt. San Gorgon io and Mt. San Jacinto, the entire popu lation of Banning can become effected by fire events tha t cause disruption to power and wate r utilities in the City . The City has a water canyo n with many we ll sites tha t service the City of Banning for potable wa ter. A fire event in the Ba nning Water Can yon could have the potential of disrupting wa ter servic e to all of the City 's residen ts . A fire even t on the north side of the city (Mt.
San Gorgonio foothills) has the potentia l to displace over 10,000 city residents. A fire event on the south side of the city (Mt. San Jacinto foothills) has the pote ntial to displace over 3,000 residents.
The City of Banning geographic location also causes roadway conges tion during events that requ ire eva cuation , as the Interstate 10 freeway is the only main rou te leading out of the City .
City of Bann ing
Local Hazard Mitigat ion Plan 2023 21
773
Figure 4.3.4 City of Banning Fire Hazard Severity Zones , 2023 Banning FHSZ M!P_
Rtvl! tsidl! Counry
Rl! ferimc:: eLaven · Cit ies
D
C• li fornlilFlre Haard
S.~ rity z-{ FHSZ)
f>IS.:.' lf' LIU
v-tr-ts:.
f'-IS.:! irSA.:.
t•,>+~
kd,, nte
FC: TG! S Ll~< O tielAllH ES~ J Per GIS ., l.fCO I-~ s :-~ TJ,:; f~.Uf, ES I ~-CIT Gr.? r~~ ~. , GIS ' I F.>::.'. lE , a~ .'.;IS ~ en :.: s lH,. Gli 1..1,GS_ C.•,•' oru Qi.,.,., d 11•~ rd~ C,lfof! lfru G.<:•~ Su~ t ~• ~" lf'' r1\ i't e.. l!,rvrt C""-. rtPE r-.: r,.,.:" 1 tt-, Mt : u11tnla. t>orfll, ano,.. 1~, p,¥" 1!"' f.l' ltf' tt.el' 1. ll : c,rtrlb-.•• d.1• U ••~ N,_._ .... l&Jt<,.,.- l! cntiCf ,; omport1!~ 1tltt- eFtf: i:
2. Earthquakes
F-V,.P ~---- r•rt:,- C....!'( 1 £.-~ Cieo9r- a J.Wnll. Jf\ OJl\' f·•-•• :. Klti,· e,- t,od, t (~ d~.- M. U 1. JnNs. tJte 1, 1. E.,,., ic~.E G1rn,. i, 5M~ Gr-• rl'l. 5n' to&• o6oQ. u l•: METFt.~ l•SGS lk. rNurli...~! t. 1~ t a,.:. t.'15 ~. I Hazard Summary: Located within the City of Banning and the surrounding areas are several known active and potentially active earthquake faults , including the San Andreas Fault and the San Jacinto Fault.
Historically, the San Andreas Fault is the most active among the fault network that cuts through rocks of the California coastalregion . The entire San Andreas Fault system is more than 800 miles long . The San Andreas Fault forms a continuous , narrow break in the earth's crust that extends from northern California southward to Cajon Pass in San Bernardino County and then transitions southeastward from Cajon Pass to the Salton Sea and eventually to the Baja California Sea of Cortez. The San Andreas Fault has several branching faults, including the San Jacinto and Banning faults . Recent studies of the eastern section of the San Andreas near San Gorgonio Pass reveal that this area is more advanced in the cycle of strain accumulation than the western area at the Cajon Pass . Earthquake activity around the Southern San Andreas , including the June 1992 Landers-Big Bear earthquakes , has prompted scientists to increase their studies of this area .
The San Jacinto Fault has had a higher level of moderate-to-large earthquakes during the past 50 to 100 years , although the slip rate is not as high . Historically , the San Jacinto Fault produced a series of large earthquakes starting in 1899 on average every 14 years , with the longest interval being 19 years . The last slip occurred on the Superstition Hills and Elmore Ranch sequence in 1987.
City of Banning
Loca l Haza rd M1tigallon Plan 2023 22
Research centers devoted to detecting and logging earthquake events record the ongoing weekly activity of small magnitude on the Riverside County faults . Geodetic data indicates there is an appreciable" strain accumulation across both faults , implying that either one or both may be primed for release. In 2015, the Working Group on California Earthquake Probabilities (WGCEP) estimated 30 -year probabilities of 19 percent for an M 6.7 and larger event on the Southern San Jacinto Fault.
Critical Infrastructure at Risk: Within the City of Banning there are various pieces of critical infrastructure ( including City Hall and Fire Departments) that are aging and could be severely impacted by a moderate to catastrophic earthquake . Many residential buildings (especially on the City 's east side) are old construction and could sustain major damage from a high magnitude earthquake . As with a major fire event, the fact that the Interstate 10 freeway is the only main thoroughfare , a major earthquake has the possibility of causing major disruption to residents trying to exit the city , as well as external emergency services entering the city. This disruption could impact all residents of the City of Banning.
Community Impact: A moderate earthquake in or near Banning could result in casualties , property damage, environmental damage, and disruption of normal government and community services. The effects of the earthquake could be aggravated by collateral emergencies such as medical emergencies, fires, flooding , hazardous material spills, utility disruptions , landslides , and transportation emergencies in Banning. The City would most likely exceed the response capability of the City's emergency management organizations , requiring mutual assistance from neighboring municipalities, volunteer organizations , private agencies , the California Office of Emergency Services (Cal OES), and the Federal Emergency Support Functions.
A catastrophic earthquake in or near Banning could result in hundreds of casualties , extensive major property damage, disruption in communications and utility systems, supply and distribution systems disruption , and general panic. An earthquake of this magnitude could directly affect all of Riverside County and most of Southern California , causing a critical demand for mutual aid resources and competition for national relief.
In any earthquake , the primary consideration is saving lives . Secondary considerations should apply towards the tasks of providing mental health wellness for reuniting families , providing shelter to displaced persons , and restoring basic needs and services . All Local, State , and Federal government emergency plans indicate a general capacity to respond to small and intermediatesized earthquakes . However , the emergency plans reveal it is unlikely that any of these governmental organizations will be able to cope with the immediate impact of a great quake , such as a Magnitude 8.3 earthquake on the south-central San Andreas Fault. As such, the general public must realize that the assistance they are [\ ccustomed to experiencing will not be immediately available for up to 72 hours or more .
City of Banning
Local Hazard Mitigation Plan 2023 23
774
Banning Fault Ma _!)
Fault Activltv Map of
California : PreQuaternary and
Quate rnary Faults -
PreQua ternary Faults
all othe~ va; ues.,
fault, certa1' l
hult aoprox located
fault concealed
tt-ru'it faL ,t. certam
u·rust fauit. app1 01C.
loc.1ted
ti-rust fauit, approl(.
located, ouened
faull. certah barbed!
fatJlt aps; rox
located. barba1I
fault, COO(J!a·ed
arball
rr \·alidRJ.. le
Fault Activity f-4 ap of
callfol" ni a: PreQuaternary and
Qu ate.rnary Fau lts -
Qm1term,ry Fau lts
fa ultcertai' l
Figure 4.3.5 City of Banning Fault Map , 2023
I
Jo,.
Esr, NASA, NG,4 \ JSGS Loma Linda ur,,.,en.rtv, UC Rh'e~de. C->ul'tv cf Riverside. California St,:lte Par~s. Esri. HERE Garmin, SafeGraph GeoTechrolog1es, Inc. f-'ET!. NASA, USGS, Bureau Y Land J.!Jnaqement. EPA, NPS. USDA T1:!e:..t1as I ESRI. RCIT GIS l.ftrCO I U.S. Cer>s-..s TIGERLI~ ES / P.CIT Geographical Soh.1lions ( GIS . I RCOE. RCIT-C·!S RCIT·GIS TU-I). GIS USGS, Ca11fom1a Oi,1s1or of 1- 1,run9 ar-d Ge~ocn I Cahfom. a Geolooical Sur1ey, C.W. Jennings. V-U• Brvant RCIT GIS . LAFCO
3. Floods
Hazard Summary: Floods have been a part of Banning 's past and will continue to be so in the future. Banning 's proximity to the mountains of the San Gorgonio Pass can lead to flooding in many ways. Wildfires in the area increase the potential for fast moving debris flows during yearly snowmelts and after large winter storms . The Banning Water Canyon is also a large , usually dry creek bed that sees nearly annual flooding from mountain rains flowing downhill. During winter storms , prolonged precipitation can result in flooding causing damage to property and infrastructure . Predominantly, the effects of flooding are generally confined to areas near the drainageways and low-lying areas. As waterways grow in size from local drainages, so grows the threat of flood and dimensions of the threat. Structures can also be damaged from trees falling as a result of water-saturated soils . Electrical power outages can occur and cause major problems .
Heavy rain events can also lead to problems with storm drainage systems and create localized flood problems .
City of Banning
Local Hazard M1tigat1on Plan 2023 24
Critical Infrastructure at Risk : During a major flood , Banning City Hall , Banning Police Department , and Fire Station 89 would each face distinct impacts due to their locations and functions. City Hall , being a centralized administrative hub , could experience flooding in lowerlying areas , potentially affecting ground -level offices . The police station might encounter challenges in accessibility due to flooded roads , hindering rapid emergency response and patrols.
Meanwhile , Fire Station 89 could face inundation around its vicinity , impacting the ability to swiftly deploy emergency response vehicles or affecting the living quarters of on -duty personnel. These facilities may suffer disruptions in essential services , hampering their operational capacities during the flood event.
Community Impact : A major flood in the City of Banning could have far-reaching impacts on the community . Infrastructure , homes , and businesses might face significant damage due to inundation , leading to potential structural instability , property loss , and disruption of daily life.
Roads and transportation networks could be impassable , limiting mobility and access to essential services. Residents might face displacement , property damage , or even health risks due to contaminated water or unsafe living conditions . The local economy could suffer due to business closures , and loss of livelihoods. The flood's aftermath could result in an increased strain on public services such as emergency response , healthcare , and utilities . Furthermore , the psychological toll on the community such as stress , trauma , and a sense of vulnerability cannot be overlooked.
Mitigation efforts primarily focus on comprehensive planning , early warning systems , public awareness campaigns, and infrastructure improvements to minimize the impacts and enhance the community's resilience in the face of such natural disasters.
Methodology: Using GIS the DIFRM flood zones layer and Census Bureau data was overlayed with the City's critical facilities point layer to determine those critical infrastructure facilities and populations that could be affected. To quantify a potential loss , estimate for both the public and private buildings , the "NRI Building Value ", was multiplied by .025 for the NRI census tracts located adjacent or within a flood zone within the city. This is a worst-case scenario based upon a 500- year event that could cause catastrophic damages.
City of Banmng
Local Hazard Mitigation Plan 2023 25
775
Ba nning Flood Map
USA Flood Haza rd Areas
Mn:. Jat Chance
Flood Hazard
O 2:: Arnual Ch ance
Flood Hazard
r•~ R.e<;iula torv Flood,'tav
SOECla• Flood ... ,N
fl;tJre ::: ord1: 1ors := s:.
riru; f Ct- arre Flood
Hazard
Are3 with Red :.Jce-d
Fl. s~ DI..£ to u.-,~
Rive rsi de Co un ty
Ref er ence La yer s - Cities
t:::i
Figure 4.3.6 City of Banning Flood Map , 2023
I
Esn. wi..SA, "tG A. JSGS I Loma Londa Ur<versitv. UC Ri.,.ers.de. C.OOr•tt of R.i ... ers.id~. Cahforma State P-,r~-5. Esn. HEq_E Garman. S..feGraoi" GeoTec111•olc.ij•Es Inc METl H~. USGS. Btlreau of Lard ~an.a9emert EP). ' lPS LJSD, Te1e;.';),35 I ESRI , RCIT GIS L"-FCO U 5 Cens1,,s TIGERLIMS I RGT GeOQraphk.11 SoLuors ( GIS) I RCOE, RCIT·G (S RClT-GIS ID1 .\ GIS I 1-.CIT GIS l.Ai=(o
4. Human Caused Hazards
Hazardous Materials Incident
Along with the potential for death and injuries from large-scale motor vehicle accidents . there is the potential for hazardous material spills or fires as numerous commercial transportation vehicles travel the highway and interstate with various types and quantities of hazardous materials. The Union Pacific Railroad is a predominately commercial freight transportation system but , Amtrak trains also use these tracks. Large quantities and numerous types of hazardous materials are transported through the jurisdiction by rail on a daily basis. Due to the increased rail and vehicle traffic in and near the City , this type of accident may occur in the future . Of particular concern is the large number of liquefied petroleum gas vessels that are transported on the system. A derailment and fire, with large exploding liquefied petroleum gas vessels, could cause widespread damage to the City , as has happened in other communities across the country . Large quantities of hazardous materials are used by the agricultural industry and thus travel through the City of Banning and are stored and used in the surrounding areas. In the past there was the potential for hazardous materials releases from large industrial facilities . In today's economics , the smaller businesses are stock piling hazardous materials storage in a cost savings strategy.
City of Banning
local Hazard M1tigat1on Plan 2023 26
The fact that the Interstate 1Ofreeway and Union Pacific Railroad travel the length of the City form east to west means that a major hazardous materials spill on the freeway and or railway could halt traffic through the area. Many of the City 's critical infrastructure is near the area of the both the Interstate 1Ofreeway and the railroad, including City Hall , City Fleet and Transit Services , Banning Electric Department, and Banning Police Department. A major hazardous materials spill could cause disruption to these essential city services and have an impact of the entire population .
Bann ing Pipelin es
Hillhmlll_ Gas_ J>~ ll~ s
u, nJ> rGdoch
J> l,..,. es
llhrerskte( CKJ11ly
ll~en! llce l ~•: o. Ckies
D
Figure 4.3 .7 City of Banning Pipelines Map, 2023
1..:S Cer, JUtTK, ERU-. ES ,.,.,..._, o -.. .. ,__.,.,..:;, • .....,=--,.....-~, u,:>1111::: 1 .... ..__,_,. ,,,. .._.,,.. ,._.._.,,,. ---= ,..,.., . .,,,. ,·.
L.,:,fCQ ~- i U'd.11 ·. r•~"\. LI( F, •- rsiot. ~--,!~ ol ~,, lllf C~HC.rT ... SU,• e ~ fl".s ESf'I . "li' N: w, r,, .,, 5¥e<" at" .:, e;:, rec"--)' H Ir,:. f7' iAS, 1, US6S 8- 1-. e# LM" d''.¥~'. !: I>.\ ',I'S o.: st;. u,,. .. 1. n. u .... -:. uci.-,.~. c-- t,: JP<' ft" S3o! c..- cnwS.:. teh ,,. E .. , H.!' c,-~. c;:- 1••~.,.~ GmT« tr ~ lr-i: • 01, r~"' usc.s,e.. n.uclur..:1 ,1r.--, i Ef';. '- PS_ VS0, 1, l ~ Lir•, bUlll' I~•~ :.>:P,. .. . H v1 , cf~ ........ ~ (Jlil'?n"~ 5:- i~t Flfl": 5 EiA I-IEII:[ c;,-. r s~•,,:, n~ C:.: l"'-"edoQIK L"IC '' ETI '. AS.:. u-::. s Ell' O•, '. J l•---0 !" IJ~j,9"'!"..-{ EPA FS u; c;. i,
Water Supply Disruption / Contamination
The City of Banning sits at the foothills of Mt. San Gorgonio and Mt. San Jacinto in the San Gorgonio Pass area of Riverside County. On the northern end of the City is the Banning Water Canyon which is the location of several well sites for City of Banning Potable water . Fires in the area create the risk of mudslides and debris flows that have the potential to cause damage to well sites and thus disrupt the water supply to the entire population of the City of Banning . Damage to City of Banning well sites also creates the risk of potable water contamination. The City of Banning 's Electric and Water Departments continually maintain the areas around the Banning Water Canyon to mitigate the risks of fire and flooding to the area , causing damage to or contaminating the City of Banning 's water source .
City of Banning
l ocal Hazard Mitigat ion Plan 2023 27
776
Figure 4.3.8 City of Banning Potable Water System Map , 2018 I
I ~ _ .. ~ LJ
i l I -· . .,.
I _____,_,_____, l ~ I ~ l
1 bf;:=',... ;_ -~ L -~~ ,, :--...:::"'-.,_
l ~. - f--~--__ .- cil ---------• »-----•. ,.
I ... _ ._;;-.. : ----. __ _.,. , . .--....
V ~ -• ~~ ~_
J---· J ~~-
0 City of Banni ng
Local Hazard M1tigabon Plan 202 3 28
SECTION 5.0 - COMMUNITY RATING SYSTEM
5.1 REPETITIVE LOSS PROPERTIES
The City of Banning has no repetitive loss properties.
The City of Banning assists the County of Riverside with grading when flooding of Mias Canyon Water Crossing during severe flooding events causes the access road / bridge for Mias Canyon to become flooded and obstructed by debris. Flooding prevents access into or out of the Mias Canyon area, where there are approximately 230 residents ( unincorporated Riverside County area of Banning , not City of Banning properties) and critical City of Banning infrastructure for the Water Department.
U SA Flood Haz a rd Areas
OZ"': "- nn_,. I Cha rc":
Flood Haza,;:,
1~ A"'1udl Cl-ar:e
lood HU,1,-, j
Fuv,,. Cordti-. 1ns r:.
Mf•Jal Cl-.rce Flood
l-4 aza,.d
l\e; J1. Jt0f" l'Fl:: iod"' o1V
Ar,e a t\.ltl- F~duc ed
RI~!,.. Due to lftee
lilrrli SpeciJi Flood"' af
Figure 5.1.1 Mias Canyon Water Crossing , 2023
Haur I RCIT- G I S I RC£ T GIS. UFCO !: I.CO E. RG " r- G IS I ESPJ f-.a - GIS, 1. AFCO I - ae..4.das U. S Cer> t> i T! GERUMS TU U I RCIT GeoT, ipMul SolJMrs (GISf I TLlt.t GIS Ec;n COfl' mL"•W Maps Cortribt.~o,-s_ t.om. i Lin~ Uti•,er~•t'. UC Ri¥en.,de. Co,,rr--1of Ri , e<sid<e. Count; of Sal'\ Semardino.
C. d... rrid St, 1Je Part. s. :. Open5tr ~~" t. 1p .... croscft E~. HERE ~ rmir, Sa fe". if,jor. ~ TKt,, o1o0ies. loc t•ET (. NASA U5GS. Bur- e- Au d lard Mar aQ .! O"! f",t EP. 1, 1, PS iJS Census 01. ru u. USDA City of Ban ni ng
Local Hazard Mitigation Plan 2023 29
777
5.2 NATIONAL FLOOD INSURANCE PROPERTIES
The City of Banning has participated in the National Flood Insurance Program since 2008. They City provides information to residents regarding flood hazards , actions they can take to be safe during a flood event, flood insurance requirements , and requires that new development and significant redevelopment comply with the City 's flood ordinances and meet FEMA standards for construction.
Describe participation in NFIP , including any changes since the previously approved plan. The Planning Team has reviewed this section and there were no changes.
Date first joined NFIP. 2008.
Identify actions related to continued compliance with NFIP . The City of Banning is currently in compliance w11h the NFIP . The City currently conducts outreach to educate residents on the potential flood hazards in the community.
CRS member? No .
CRS class? NIA.
Describe any data used to regulate flood hazard area other than FEMA maps. None.
Have there been issues with community participation in the program? No.
What are the general hurdles for effective implementation of the NFIP ? None.
Summarize actions related to continued compliance with NFIP. None .
Repetitive Loss Properties - See section 5. 1 Repetitive Loss Properties.
The City of Banning participates in the National Flood Insurance Program (NFIP ). The Federal Emergency Management Agency ( FEMA) last visited the City in December 2022 , providing general information utilizing the Community Rating System (CRS). The visits aimed to identify potential problem areas related to the flood plan management and suggested actions to repair those problems. The purpose of flood plan management focuses on the following:
Reduce flood loses.
Facilitate accurate insurance ratings.
Promote awareness of flood insurance .
City of Banning
local Hazard M1tigaho n Plan 2023 30
SECTION 6.0 - CAPABILITIES ASSESSMENT
6.1 REGULATORY MITIGATION CAPABILITIES
Capabilities are the programs and policies currently used to reduce hazard impacts or implement hazard mitigation activities. The capabilities assessment is divided into five sections:
Regulatory Mitigation Capabilities
Administrative and Technical Mitigation Capabilities
Fiscal Mitigation Capabilities
Mitigation Outreach and Partnerships
Funding Sources
These capabilities will be expanded and improved upon by incorporating hazard information into the General Plan . The City implements a process to ensure mitigation actions identified in the hazard mitigation plan are reviewed as part of the update to the City 's Capital Improvement Program and Emergency Operations Plan , both will begin the update process in 2024. The City of Banning also utilizes cloud -based information backup technology to ensure the security of the City 's data .
Table 6.1.1 Regulatory Mitigation Capabilities
Regulatory Tool
Accessible/ Eligible
Comments/ Ability to Support Mitigation
to Use { Yes/Nol
General Plan Yes General Plan for the City (2006)
Zoning Ordinance Yes
Updated as necessary by the Planning Commission and
the City Counci l
Subdivision Ordinance Yes
Updated as necessary by the Planning Commission and
the City Counci l
Site Plan Review
Yes Performed by all City Departments
Requirements
Flood Plain Ordinance Yes
Updated when new state or federal requiremen ts are
mandated
Earthquake Hazard
Yes
General Plan / Updated when new state requirements are
Reduction Ordinance mandated
Emergency Preparedness
No Updated as necessary by the City Council
Facilities Ordinance
Building code Yes
The City adopls the current State of California Bui lding code with local amendments
Fire Department ISO Rating Yes Raling : 4
Stormwater Management
Yes
Updated when new state or federal requirements are
Program mandated
Capital Improvements Plan Yes Five Year Plan
Economic Development Plan Yes Performed by all City Department s Local Emergency Operations
Yes Updaled 2012 / New update plan
Plan
Flood Insurance Study Yes
FEMA Flood Insurance Study NFIP information is
avai lable on the local web page
Ci ty of Ba nmng
local Hazard Mihgat1on Plan 2023 31
778
As documented in the preceding table , the City adopts County, State , and Federal requirements and standards to provide the most current mitigation measures to protect the community.
The City of Banning's 2006 General Plan consists of an integrated and internally consistent set of policies and programs that addresses the seven issue areas that the State of California requires :
local land use , circulation , housing , noise, safety , conservation , and open space in addition to four other topics. The Elements that comprise the City of Banning General Plan includes the following :
Chapter 1: Banning Vision Statement
Chapter 2: Introduction and Administration
Chapter 3: Community Development
Chapter 4 : Environmental Resources
Chapter 5: Environmental Hazards
Chapter 6: Public Services and Facilities
Chapter 7 : Glossary of Terms and Acronyms
2011 Engineering and Traffic Surveys
Final Environmental Impact Report
General Plan Amendments
City of Banning
Local Hazard Mitigation Plan 2023 32
6.2 ADMINISTRATIVE/ TECHNICAL MITIGATION CAPABILITIES
The administrative and technical capabilities can continue to be expanded and improved on to reduce risk through continued coordination with department managers during the annual review of the LHMP and as the City progresses towards implementation . This coordination identifies information that should be included in future updates.
Table 6.2.1 Administrative/Technical Mitigation Capabilities Personnel Resources
Accessible/ Eligible
Department/ Position
to Use fYes/ Nol
Planner/ Eng ineer with knowledge of land
Yes Plann ing and Development Director
development and land management practices
Engin eer/ professiona l trained in construction
Yes
City Engineer, City Bu ilding Official ,
practices re lated to buildings/ infrastructure and Public Works Director Planner/ e ngineer/ scientist with an
City Engineer, City Planner, City
Yes Building Official , and Public Works
understanding of natural hazards
Director
Mitigation Plann ing Committee Yes Created for 2023 LHMP Update Personnel ski lled in GIS Yes City Plann ing Department Full-time building official Yes Contracted
Floodplain manager Yes City Public Works
Public Works Official Yes Public Works Depa rtment
Grant Writer Yes Contracted
Budget I Finance Personnel Yes F inance Department
Emeraencv Ma naaer Yes Contracted with Riverside County GIS Data- Land use Yes Plann ing Department
GIS Datalinks to Assessor's data Yes Plann ing Department Police DepartmenUCity
Warning Systems/ Services Yes
Website/ Riverside County EMD
Reverse 911 /City Alerts/ Alert
Riverside Countv}
C1ty of Banning
Local Hazard Mitigation Plan 2023 33
779
6.3 FISCAL MITIGATION CAPABILITIES
Fiscal Capabilities can be expanded and improved upon by coordinating with other departments , organizations , and agencies to identify potential assets and resources that may not currently be considered . The City of Banning wi ll be seeking Building Resilient Infrastructure and Communities BRIC) grants , Emergency Management Performance Grants ( EMPG ), and State Homeland Security Program (SHSP) grants for future mitigation and preparedness .
Table 6.3.1 Fiscal Mitigation Capabilities
Financial Resources
Accessible /Eligible
Comments
to Use (Yes/No)
Community Development Block Yes Planning Department
Grants
Capital improvements project Yes C ity Manager and Planning Department fund ino
Authority to levy taxes for Yes With voter approval
soecific ourooses
Impact fees for new Yes
City Manager, Planning Department, and F inance
develooment Department
Incur debt through general
Yes With voter approval
obliqation bonds
Fees for water , sewer , gas , or Yes City Water/ Electric electric services
Incur debt through spec ial tax Yes With voter approval bonds
Incur debt through private No
activities
Withho ld spending in hazard- N/A
orone areas
Util ization of various Emergen cy Yes Riverside County EMO Manaoement Grants
Other N/A
6.4 MITIGATION EDUCATION AND OUTREACH PARTNERSHIPS
The City of Banning has an existing water responsible program and annual fire safety programs in schools and throughout the year at special community events.
The City participates in the local San Gorgonio PASSCOM Emergency Planning Committee meetings to disseminate information to local groups regarding safety concerns of the area.
The City participates in a Con Fab between agencies and public utility services in the Riverside and San Bernardino County areas to discuss issues effecting local communities and agencies , to include emergency management related issues.
City of Banning
Local Hazard M1tigallon Plan 2023 34
The City of Banning has been training residents and employees in Community Emergency Response Team (CERT ) and New Employee Safety Training (NEST). CERT training prepares residents to assist the City of Banning and emergency personnel during wide-scale emergencies and will aid in the loss of life or injury.
The City of Banning Police Department has Volunteer and Explorer Programs that are trained to assist the needs of the department during emergency situations.
The City of Banning partners with Cal-Trans and Union Pacific Railroad to conduct area cleanups and community outreach for the homeless population.
The City will further expand relationships and provide further education and outreach to the community by focusing on creating Community Emergency Response Team (CERT) courses for the community provided by Riverside County Emergency Management. The City will have employees complete training through FEMA 's Emergency Management Institute and conduct training in elderly communities related to emergency preparedness.
Establishing "Health and safety Events " in coordination with Building Resilient Communities , and the Riverside County Emergency Management Department to promote disaster preparedness.
Building Resilient Communities provides information to the communities , so they are ready in the event of a crisis . Building Resilient Communities currently provide disaster preparedness tools, resources , and updates on emergency situations to hundreds of faiths , community , and business leaders .
As such , training , and education opportunities, along with completed or in progress mitigation action items are shared with community members during in person monthly public meetings, and through city social media .
Available training will be expanded upon by incorporating audience directed preparedness training to the elderly communities through City and department specific outreach regarding disaster preparedness. Notifications will be made through various medias to ensure the greatest impact to the audience . The City will continue to make advancements in the warning systems available to alert the community of hazard and disaster events by monitoring available resources and technology , seeking funding for advancements when needed , and notifying the public of the available systems.
6.5 FUNDING OPPORTUNITIES
The City of Banning has the same funding opportunities as other cities in Riverside County . Please refer to Section 7.4 and Table 7.4 of the Riverside County Multi-Jurisdictional Hazard Mitigation Plan for a list of funding opportunities. The City of Banning utilizes funds from its General Fund , along with funds from the State Homeland Security Program ( SHSP) Grants , Emergency Management Performance Grants (EMPG ), and other fiscal opportunities listed on the CalOES website (caloes .ca.gov).
City of Banning
Local Hazard Mitigation Plan 2023 35
780
SECTION 7. 0- MITIGATION STRATEGIES
7.1 OVERVIEW
The mitigation strategy for the City of Banning is formulated on educated predictions , and recognized mitigation challenges and opportunities along with an in-depth understanding of possible deficiencies between potential vulnerabilities and existing capabilities with the goal of creating a disaster resistant and sustainable community. The mitigation strategy builds upon the previous mitigation actions identified by the City of Banning 2017 LHMP and was expanded to consider current needs.
7.2 GOALS AND OBJECTIVES
The 2023 City of Banning's Hazard Mitigation Planning Team has identified a list of mitigation Strategies and Goals for potentially hazardous issues identified throughout the City. The City's 2023 Goals and Objectives are listed below:
Table 7.2.1 2023 Goals and Objectives
Goal # 1 Educate the public on residential wildland fire defensible space .
Objective 1.1- The City provides defensible space inspections through Banning Code Enforcement and Cal Fire .
Objective 1.2- The City participates in local public education events that will include Community Emergency Response Training (CERT ) and community disaster expos.
Goal# 2 The City of Banning Emergency Operation Center ( EOC) establishes alternate communications means with Riverside County EOC in case of communication failure with telephone or internet communications.
Objective 2.1- Acquire a radio of either a hand-talkie (HT), mobile, or base style to communicate with Rivers ide County EOG .
Objective 2.2- Regular1y test the radio equipment to ensure it can transmit and receive communications with Riverside Countv EOG.
Refer to Table 3.1.1 these goals and objectives from the 2017 LHMP are still in place during the 2023 LHMP Update.
City of Banning
Local Hazard M rtigat1on Plan 2023 36
7.3 2023 LHMP MITIGATION ACTIONS
Plan I
Year
Action
Assign risk levels for wildfire hazards lo
assist an regulating the alowabte type,
2023 I density. loc; at> on , and. lor design and
construction of new developments, bolh
pubhc and pnvate
Addressmg oty- owned and povate
properties to dear brush and high- fuel
ege,at,on and m,1,,an "•""'' "'"" ( a I
2023 I ::C7u: !~!= ~:~~~~: ever IS
d05ef) to reduce the risk of fires lot
structures within a Very High Fire Hazard
Seventy Zone
Oevetop partnerships -...., th neigt- borhood
2023 I groups horoeowner' s associations . and
business groups
2017 LHMP Mitigation Action continued)
Weed abatement program to control or
2023 I :~:~=~i:!.:~ sv~~:!:' e ==~ s
and maintain a safe and aesthetically
plcas, ng enwtH' lmenl
Cltyol Banrw, g
localHazardt. 1.! gataiPla' l202l
Hanni
Fire
Fire
Fire
Fire
Background/ Benefit Department
Cost
i~:I I Timeline Estimate
CalFir& I
This WIii ensure better WIidfire mitigation lor Buicingand $ 14. 000• GF:':r:1 I 2023-
theoty'& fulureproject Safety, $ 20. 000 2028
Planning
IConllnuiog enforCE1mant will help reduce
poten1ra1 ignition points and lhe sp( ead of
ICal Fire/ Code I $5.ClOO - I General I 2023-
Enforcement $ 10 , 000 Funds Ongoing
fires In the community
Education and outr6ach programs target
e1t1zens businesses , developers , I Eme<gency I SJ 000 - I General I 2023-
l andscapers . and insurers to mcrease
awmeness of wildfire nsk and strategies for
Mgl JCal Fire S5 .000 Funds 2028
DfO\...-+ uv,. homes and infrastructure
Al oty owned p( 0perty IS abated
appropriately to lov. er the nsk of fire hazards I Cod
and to a clean properly appearance. The EnlotCE1~ eritl I S5 .000 lo I General I 2017- Code Enlorcemenl Department' NO~ swlth Public Wor11s $ 10 000 Funds 2028 pnvate landowners to ensure compliance.
This IS conducted throughout the city
781
Promote greater publlc awareness of
ex1stmg stale incenllve progra ms lot Educatioo on potential hazards and m1t19atJon Public Works/ 2023 earthquake retrofit. such as Earthquake Earthquake techniques is on of the key foundations to Building and Brace and BOit. lo help property owners buiding a more resilient community. safety make their homes more earthquake safe
Educalioo and training on basic survival
Cooduci ongoing training k,r ,ts staff tec: Miqu& s are some ol the key fouodalK> fls EmEirgency
2023 member.. and residents to prepare for Earthquake to building a more resilient communrty. The Mgt
earthquakes. U58 of USTOS and CERT !raining will hlMp
prepare the city In the event of an emergency.
Strengthen and enforce building codes to Mini'nlzes property damage. protects Code
EnforcemenV
2023 ensure that new (; OllSIT\. lciJons meel seismic Earthquake occupants. and enhances the seismic Building and
safely standards. resilience of the community.
safely
Adopt and enforce strict land- use
Mtnirnizes lood dBmage. protects
Buiding and
2023
reglAations in lood- prone areas .
Floodl"" lg mfrastructure. and reduces the financial
sarety
burden oo lhe comrnl. lllly.
Requite all new developments to mitigate
polentJal lood1n9 that may result from
development. such as 9rad1ng that prevents This will ensure that stormwater now will be Bu~ ding and
2023 adverse dra. mage impacts to a.d1acent Flooding channeled appropna. tely lo reduce the safety
properties, on. site retention of nmo ff , and creabon of flooding. the adequate sillng of structu1es loGaled
within nood plems.
Educating the public about Tum Around
Cal F11o/
Don" t Drown to warn peopHI of the hazards
Educating the publtc will create awareness Baming
2023
of walking or dnving a vehicle through flood
Fk> odlrlg throughout the community lo re duce Pollc: e. v,1a. lers.
p.-ev entable accidents from flood hazards. Emergency
Mgt
C! tydBann, ng
Local 1- azara ,.. lbga: JOn Plan 2023
10J) O(). General
20,000 Funds
EMPG,
GenMal
S100. 000-
Funds.
S300000
and Slate
aod
Federal
Grants
20, 000. General
30,000 Funds
50,00(). General
S100.000 Funds
10,000- General
20,000 Funds
10.000. Gen6( al
15.000 Funds
2023-
2028
2023·
2028
2023-
2028
2023-
2028
2023•
2028
202>-
Ongoing
38 Figure 7.3.1 Atwell Housing Development Plan, 2016
i]
LSA
t
City of Banning
Local Hazard Mitigation Plan 2023
UOOIO
t ,•-·----·--
c,,,,..-... •--~
o.- s.--. a o·---
0 111 ... ~-... ____ ,._. __ "'
782
Figure 7 .3.2 Rancho San Gorgonio Development Specific Plan , 2015 -· 5PU. H ll PL.\~
il.:.~··
i ·---_ u. __ _
rl '., ~ •·~(--....,__.
Ti:.< - r-·-··-~ .:-.: ~ .
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rGtA" Cft.C-.n •--
Q , • --==-~-"""'-__ L_and ~sePlan {Color)
City of Banmng
Local Hazard M1tigallon Plan 2023 40
SECTION 8.0 - PLAN IMPLEMENTATION AND MAINTENANCE
PROCESS
Implementation and maintenance of this 2023 LHMP Update is critical to the overall success of hazard mitigation planning. This is the fourth step in the planning process. This chapter provides an overview of the overall strategy for plan implementation and maintenance and outlines the method and schedule for monitoring , updating , and evaluating the Plan . The chapter also discusses incorporating the Plan into existing planning mechanisms and how to address continued public involvement.
The City of Banning Police will review the Hazard Mitigation Plan semi-annually. The first review will be conducted by Banning. Banning will send out a notification that the review is in the process and ask Department Heads for any suggested updates. The second review will include all City Departments to ensure that all information is current.
Notification that the plan is under review and asking for any inputs . This notification will be sent out to all Department Heads, City Service Groups and Special City's (i.e., Water City ). The City of Banning is responsible for establishing review dates and notification of plan review . The following information will be provided to departments and interested participants for the purpose of gathering recommended changes:
The Banning Police Department will schedule reviews in January and July of each year over the next five years. If the review team identifies changes that have occurred during the evaluation , the City of Banning will publish a change notice to all plan holders and the Riverside County Emergency Management Department , (Operational Area ).
8.1 PLAN IMPLEMENATION
While this plan contains many worthwhile actions , the city will need to decide which action (s) to undertake first. Two factors will help with making that decision : the priority assigned the actions in the planning process and funding availability . Low or no-cost actions most easily demonstrate progress toward successful plan implementation.
An important implementation mechanism that is highly effective and low-cost is incorporation of the hazard mitigation plan recommendations and their underlying principles into other plans and mechanisms , such as general plans , earthquake and stormwater plans , Emergency Operations Plans (EOPS), evacuation plans , and other hazard and emergency management planning efforts for the City .
The appointed department directors and staff appointed to head each department within the city are charged with implementation of various activities in the Plan Update . During the annual reviews as described later in this section, an assessment of progress on each of the goals and activities in this LHMP Update should be determined and noted. However , the priorities and standing of activities may change based upon a change in the environment or funding opportunities.
The primary duty of the city is to see the LHMP Update successfully carried out and to report to their governing board and the public on the status of plan implementation and mitigation City of Banning
Local Hazard Mitigation Plan 2023 41
783
opportunities. Other duties include reviewing and promoting mitigation proposals, considering stakeholder concerns about hazard mitigation, passing concerns on to appropriate entities, and posting relevant information on the City website.
8.2 PLAN MAINTENANCE AND REVIEW
The City of Banning is responsible for initiating plan reviews for the planning area. To monitor progress and update the mitigation strategies identified in the mitigation action plan, The city of Banning will revisit this Plan Update annually each year or following a hazard event. The city of Banning staff will meet annually to review progress on plan implementation. This LHMP update is anticipated to be fully approved and adopted in mid-2024, the next LHMP update for the City of Banning Planning Area will occur in 2028.
Criteria for Annual Reviews:
The renovations to city infrastructure including water, sewer, drainage, roads, bridges, gas lines, and buildings.
Natural hazard occurrences that required activation of the Emergency Operations Center EOC), whether the event resulted in a presidential disaster declaration.
Natural hazard occurrences that were not of a magnitude to warrant activation of the EOC or a federal disaster declaration but were severe enough to cause damage in the city or closure of offices, schools, or public services.
If the City identifies changes have occurred during the evaluation, we will update the LHMP Revision Page, and notify Riverside County EMO to update our Annex. The Riverside County Emergency Management Department will coordinate the monitoring, evaluation, and update of the MJLHMP.
8.3 INCORPORATION INTO EXISTING PLANNING MECHANISMS
The City of Banning will integrate mitigation goals, information, and actions from its 2023 LHMP into the Safety Element of the General Plan upon the next update. The 2017 LHMP is already implemented into the following planning mechanisms and once approved, the 2023 LHMP Update will also be implemented into the same mechanisms:
Building and Construction Codes
Fire Codes
Capital Improvement Plan
Stormwater Pollution Prevention Plan
Efficient Landscape Ordinance
Emergency Operations Plan
Banning Electric Utility Wildfire Mitigation Plan 2022
Facilities Management Plan
Water Quality Management Plan
City of Banning
Local Hazard Mitigation Plan 2023 42
8.4 CONTINUED PUBLIC INVOLVEMENT
Continued public involvement is imperative to the overall success of this Plan's implementation.
The update process provides an opportunity to solicit participation from new and existing stakeholders and to publicize success stores from the plan implementation and seek additional public comment. The LHMP maintenance and update process will include continued public and stakeholder involvement and input through attendance at City Council Meetings, Community Based Organization meetings, other meetings or events that may be scheduled, web postings, press releases to local media, and through public hearings.
City of Banning
Local Hazard Mitigation Plan 2023 43
784
APPENDICES
Appendix A-1 : Picture of Engage Banning Survey Posting Appendix A-2: Public Outreach Engage Banning Survey
Appendix A-3: 2023 City of Banning LHMP PowerPoint Presentation City of Banning
l ocal Hazard M1tigalEon Plan 2023 44
APPENDIX A-1: PICTURE OF CITY WEBSITE INVITING PUBLIC
COMMENT/ INPUT
City of Banning
Local Hazard Mitigation Plan 2023
October 1, 2022 , Survey
Local Hazard
Mltl1at1on Plan --~---..... -·--~ ,.,__.,.."' ___ _
I.oat H1. unt Mitigation
Pl&" Survey
Stay Informed
February 10 , 2023 , Survey
ca
Wekome!
Local Ha. tard Mltlptlo...
local Hazard
Mi ligation Plan
Survey
I _...,..,.. ,.,
r _,_....,._ .. , .. _,,....,_,_...,._
11111
Hello, I'm Chief
Matthew Hamner
ofthe Banning
Police Department.
Thank you for
helping with the
city' s Local Hazard
Mitigation Plan!"
Before vou begin
r--·•--~-·-•I<• .. ···--·~· -..--·••-~·
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45 785
APPENDIX A-2: PUBLIC OUTREACH QUESTIONNAIRE
Local Hazard Mitigation Plan Survey
Are you aware that the City of Banning has a Local Hazard Mitigation Plan? No responses yet
Please select one hazard you think is the highest threat to your neighborhood.
No responses yet
In your opinion, what are some steps the City of Banning could make to reduce or eliminate the risk of future hazard damages in your neighborhood? View responses
Text Analysis
No data to show
Are there any other issues regarding reduction of risk and loss associated with hazards or disasters in the community that you think are important? View responses
Text Analysis
No data to show
Survey Continued
Prevention • Administrative or regulatory actions that influence the way land is developed and buildings are constructed ( Example - Planning and zoning building codes, etc.) No responses yet
Property Protection - Actions that involve the modification of existing buildings or structures to protect them from a hazard or remove them from the hazard area (Example - Retrofits, relocation, acquisition, etc.)
No responses yet
City of Banning
Local Hazard Mitigation Plan 2023 46
Public Education and Awareness - Actions to inform and educate residents, elected officials, and property owners about the hazards and potential ways to mitigate them Example - Outreach, real estate disclosure, school- age and adult education) No responses yet
Natural Resource Protection - Actions that, in addition to minimizing hazard losses, also preserve or restore the functions of natural systems ( Example - Erosion control, stream restoration, etc)
No responses yet
Emergency Services - Actions that protect people and property during and immediately after a disaster or hazard event (Example - Warning systems, protection of official facilities, etc.)
No responses yet
Structural Projects - Actions that involve the construction of structures to reduce the impact of a hazard ( Example - Dams, floodwalls, etc.)
No responses yet
Survey Continued
Non-disclosure of the hazards in my community
No responses yet
Poor planning and response to an emergency or disaster
No responses yet
Lack of follow- up in implementing and carrying out mitigation projects No responses yet
No early alert and warnings notifications during an emergency or disaster No responses yet
City of Banning
Local Hazard Mitigation Plan 2023 47
786
Too many alert and warnings notifications regarding an emergency or disaster No responses yet
Survey Continued
Please provide us your name, email , and telephone number. The City of Banning will use this information only in instances where they need to respond to your questions or comments . We will not share this information with anyone . (OPTIONAL) View responses
Text Analysis
No data to show
City of Banning
Local Hazard Mitigation Plan 2023 48
APPENDIX A-3: 2023 CITY OF BANNING LHMP POWERPOINT
PRESENTATION
Local Hazard Mitigation Plan (LHMP)
Brandon Smith
Lieutenant
Banning Police Department
City of Ban mng
Local Hazard Mitigation Plan 2023
1•·· I
41!'!, -
49 787
0 ll
788
Title 2 - ADMINISTRATION AND PERSONNEL
Chapter 2.48 DISASTER OPERATIONS AND RELIEF
Banning, California, Code of Ordinances Created: 2026-03-26 16:17:25 [EST] (Supp. No. 60, 3-26)
Chapter 2.48 DISASTER OPERATIONS AND RELIEF
2.48.010 Purpose.
The purpose of this chapter is to provide for the preparation and carrying out of plans for the protection of persons and property within the city in the event of an emergency, including the direction of the emergency organization and the coordination of the emergency functions of this city, with all other public agencies, corporations, organizations and affected private persons. (Ord. No. 1378, § 1 (part).)
2.48.020 Definitions.
As used in this chapter, "emergency" means the actual or threatened existence of conditions of disaster or of extreme peril to the safety of persons and property within this city caused by such conditions as air pollution, fire, flood, storms, epidemic, riot, earthquake, or other conditions, including conditions resulting from a labor controversy, which conditions are or likely to be beyond the control of the services, personnel, equipment, and facilities of this city, requiring the combined forces of other political subdivisions to combat. (Ord. No. 1378, § 1 (part).)
2.48.030 Disaster council powers and duties.
A nonemergency committee, to be known as the City of Banning disaster council, is created.
It shall be the duty of the City of Banning disaster council, and it is empowered, to develop and recommend for adoption by the city council, emergency and mutual aid plans and agreements and such ordinances, resolutions, rules and regulations as are necessary to implement such plans and agreements.
The disaster council shall meet upon call of the chairperson or, in his or her absence from the city or inability to call such meeting, upon call of the vice-chairperson or his designee. All meetings of the disaster council shall be held and conducted in accordance with the provisions of the Ralph M. Brown Act, Government Code Sections 54950 et seq.
(Ord. No. 1378, § 1 (part).)
2.48.040 Emergency services division.
Hereby created are the office of director of emergency services, who shall be the city manager; the office of assistant director of emergency services, who shall be the first alternate city manager as designated in the latest city manager's "letter of authority"; and the office of emergency services coordinator, who shall be appointed by the city manager.
(Ord. No. 1378, § 1 (part).)
2.48.050 Disaster council membership.
The membership of the disaster council shall include:
789
Created: 2026-03-26 16:17:25 [EST]
(Supp. No. 60, 3-26)
A. The mayor, who shall be chairperson;
B. The director of emergency services, who shall be vice-chairperson; C. The assistant director of emergency services;
D. Chief of police;
E. Human resource director;
F. Public works director;
G. Finance director;
H. Electric utility director;
I. Water/wastewater utility director;
J. Community development director;
K. Parks and recreation director;
L. Emergency services coordinator;
M. One member from the superintendent's office of the Banning unified school district; and N. Such additional citizens of this city, as the city council may appoint to be "members at large." (Ord. No. 1378, § 1 (part).)
2.48.060 Powers and duties of the director, assistant director of emergency services and the emergency services coordinator.
A. The director is empowered to:
1. Request the city council to proclaim the existence or threatened existence of a "local emergency" if the city council is in session, or to issue such proclamation if the city council is not in session;
2. Request the Governor to proclaim a "state of emergency" when, in the opinion of the director, locally available resources are inadequate to cope with the emergency;
3. Control and, direct the effort of the emergency organization of the city for the accomplishment of the purposes of this chapter;
4. Direct cooperation between and coordination of services and staff of the emergency organization of this city and resolve questions of authority and responsibility that may arise between them;
5. Represent the city in all dealings with public or private agencies on matters pertaining to emergencies as defined herein;
6. In the event of the proclamation of a "local emergency," or the proclamation of a "state of emergency" by the Governor or the Director of the State Office of Emergency Services, or the existence of a "state of war emergency," the director is empowered:
a. To make and issue rules and regulations on matters reasonably related to the protection of life and property affected by such emergency; provided, however, such rules and regulations shall be ratified at the earliest practicable time by the city council, b. To obtain vital supplies, equipment, and such other necessities found lacking and needed for the protection of life and property and to bind the city for the fair value thereof and, if required immediately, to commandeer the same for public use,
790
Created: 2026-03-26 16:17:25 [EST]
(Supp. No. 60, 3-26)
c. To require emergency services of any city officer or employee and to command the aid of as many citizens of this community as he deems necessary in the execution of his duties; such persons shall be entitled to all privileges, benefits, and immunities as are provided by state law for registered disaster service workers,
d. To requisition necessary personnel or material of any city department, and e. To execute all of his ordinary power as city manager, conferred upon him by the Banning ordinance code or by resolution or emergency plan adopted pursuant to this chapter by the city council, all powers conferred upon him by a statute, by any agreement approved by the city council and by any other lawful authority.
B. The following order of succession shall take effect in the event the director of emergency services is unavailable to attend meetings and otherwise perform his duties during an emergency:
1. Assistant director of emergency services;
2. The department director named as second alternate city manager in the latest city manager's "letter of authority";
3. Chief of police.
C. The assistant director of emergency services shall have such other powers and duties as may be assigned by the director.
D. The emergency services coordinator shall, under the supervision of the director of emergency services, develop emergency plans and manage the emergency programs of this city and shall have such other powers and duties as may be assigned by the director.
(Ord. No. 1378, § 1 (part).)
2.48.070 Appointment of standby officers.
A. To provide for the continuance of legislative and executive functions in the city during a state of war emergency, a state of emergency or a local emergency the city council shall appoint three standby officers for each of its members. In case a standby office becomes vacant because of removal, death, resignation, or other cause, the city council shall appoint another person to fill said office. Standby officers shall be designated Nos. 1, 2, and 3 as the case may be.
B. The qualifications of each standby officer should be carefully investigated, and the city council may request the chief of police to aid in the investigation of any prospective appointee. No examination or investigation shall be made without the consent of the prospective appointee.
C. Consideration shall be given to places of residence and work, so that for each office for which standby officers are appointed there shall be the greatest probability of survivorship. Standby officers may be residents or officers of a city other than the City of Banning.
D. Each standby officer shall take the oath of office required of the person occupying the office for which he or she stands by. Persons appointed as standby officers shall serve in their posts as standby officers at the pleasure of the city council and may be removed and replaced at any time with or without cause.
E. Each standby officer shall have the following duties:
1. To inform himself or herself of the duties of the office for which he or she stands by. Employees of the city shall assist him or her and shall provide each standby officer with a copy of this chapter. 791
Created: 2026-03-26 16:17:25 [EST]
(Supp. No. 60, 3-26)
2. To keep informed of the business and affairs of the city to the extent necessary to enable him or her to fill his or her post competently. For this purpose, the city may arrange information meetings and require attendance.
3. To immediately report himself or herself ready for duty in the event of a state of war emergency or in the event of a state of emergency or a local emergency at the place and in the method previously designated in the city's emergency plan.
4. To fill the post for which he or she has been appointed when the regular council member is unavailable during a state of war emergency. Standby officer No. 2 and 3 shall substitute in succession for standby officer No. 1 in the same way that said standby officer is substituted in place of the regular council member. He or she shall serve until the regular council member becomes available or until the election or appointment of a new regular council member.
F. Should all members of the city council, including all standby members be unavailable, temporary officers shall be appointed to serve until a regular member or a standby member becomes available or until election or appointment of a new regular or standby member. Temporary officers shall be appointed as follows:
1. By the chairperson of the board of supervisors of Riverside County, and if he or she is unavailable.
2. By the chairperson of the board of supervisors of any other county within one hundred fifty miles of the city, beginning with the nearest and most populated county and going to the farthest and least populated, and if he or she is unavailable.
3. By the mayor of any city within one hundred fifty miles of the city, beginning with the nearest and most populated city and going to the farthest and least populated.
G. As used in this chapter, "unavailable" means that a council member is either killed, missing or so seriously injured as to be unable to attend meetings and otherwise perform his or her duties. Any question as to whether a particular member is unavailable shall be settled by the city council or any remaining available members of said body (including standby officers who are on the city council).
H. The office of mayor shall be filled by the normally elected mayor pro tempore should the mayor be unavailable. Should both the mayor and mayor pro tempore be unavailable, the mayor shall be selected by the city council from among the ranks of remaining elected council members. Standby officers serving on the city council shall participate in the selection of a mayor.
The selected person shall serve until the elected mayor becomes available or until the election of a new mayor.
(Ord. No. 1378, § 1 (part).)
2.48.080 Emergency organization.
The emergency management organization shall consist of the following:
A. City manager/acting city manager;
B. Emergency services coordinator/acting emergency services coordinator; C. Chief of police/acting chief of police;
D. Human resource director/acting human resource director; E. Public works director/acting public works director;
F. Finance director/acting finance director;
G. Electric utility director/acting electric utility director; 792
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(Supp. No. 60, 3-26)
H. Water/wastewater utility director/acting water/wastewater utility director; I. Community development director/acting community development director; J. Parks and recreation director/acting parks and recreation director.
All officers and employees of the city, together with those volunteer forces enrolled to aid them during an emergency, and all groups, organizations, and persons who may by agreement or operation of law, including persons impressed into service under provisions of this chapter, be charged with duties incident to the protection of life and property in the city during such emergency, shall constitute the emergency organization of the city. (Ord. No. 1378, § 1 (part).)
2.48.090 Emergency plan.
The City of Banning disaster council shall be responsible for the development of the city's emergency plan, which shall provide for the effective mobilization of all of the resources of this city, both public and private, to meet any conditions constituting a local emergency, state of emergency, or state of war emergency; and shall provide for the organization, powers and duties, services, and staff of the emergency organization. Such plan shall take effect upon adoption by resolution of the city council. (Ord. No. 1378, § 1 (part).)
2.48.100 Designation of the emergency operations centers.
It is designated that, in the event of an emergency, the city building located at 3900 W. Wilson Street shall be designated as the primary emergency operations center (EOC) for the city.
Should that building be deemed unsafe to occupy, then the alternate EOC will be the city building at 176 E.
Lincoln Street. The building at 176 E. Lincoln Street is also designated as a department operations center (DOC), to be utilized to help control city activities in conjunction with the EOC. (Ord. No. 1378, § 1 (part).)
2.48.110 Expenditures.
Any expenditure made in connection with emergency activities, including mutual aid activities, shall be deemed conclusively to be for the direct protection and benefit of the inhabitants and property of the city. (Ord. No. 1378, § 1 (part).)
2.48.120 Punishment for violation.
It shall be a misdemeanor, punishable by a fine of not to exceed one thousand dollars, or by imprisonment for not to exceed six months, or both, for any person, during an emergency, to:
A. Wilfully obstruct, hinder, or delay any member of the emergency organization in the enforcement of any lawful rule or regulation issued pursuant to this chapter, or in the performance of any duty imposed upon him by virtue of this chapter;
B. Do any act forbidden by any lawful rule or regulation issued pursuant to this chapter, if such act is of such a nature as to give or be likely to give assistance to the enemy or to imperil the lives or property of inhabitants of this city, or to prevent, hinder, or delay the defense or protection thereof; 793
Created: 2026-03-26 16:17:25 [EST]
(Supp. No. 60, 3-26)
C. Wear, carry, or display, without authority, any means of identification specified by the emergency agency of the state.
(Ord. No. 1378, § 1 (part).)
2.48.130 Severability.
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such action shall not affect other provisions of this chapter or applications, and to this end the provisions of this chapter are declared to be severable.
(Ord. No. 1378, § 1 (part).)
794
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Elizabeth Gibbs, City Manager
PREPARED BY: Phaedra Norton, City Attorney
MEETING DATE: July 14, 2026
SUBJECT: (1) Adopt Resolution 2026-111 a Resolution of the City Council of the City of Banning, California, Accepting the Riverside County Registrar of Voters Certificate of Sufficiency for the Referendum Petitions for Ordinance Nos. 1618, 1619, and 1620 Adopted by the City Council on April 14, 2026.
(2) Reconsider and Provide Direction to Repeal Ordinance Nos. 1618, 1619, and 1620.
a. Ordinance No. 1618 – amending the city’s zoning map from High Density Residential, Medium Density Residential, Low Density Residential, General Commercial, Open Space – Resources and Open Space – Parks land uses to the Sunset Crossroads Specific Plan that provides for General Commercial, Industrial, Open Space – Parks, and Open Space – Resources land uses.
b. Ordinance No. 1619 – amending the city’s zoning map to change the zoning of 41 acres of a 49.2 acre site within the jurisdiction of the City from Public Facilities School to Very High Density Residential to ensure “no net loss” of the City’s residential development capacity. c. Ordinance No. 1620 – approving a statutory Development Agreement between the City and NP Banning Industrial (Owner). Under the terms of the Development Agreement and in exchange for vested development rights to develop a master planned project including industrial and commercial uses and various public facilities including parkland and open space, with on and off site related improvements on approximately 533.8 acres of Owners real property located within the City of Banning and the County of Riverside. The Development Agreement requires the Owner to provide fees, facilities, and public benefits subject to the timing and terms of the Development Agreement.
(3) If the City Council does not direct the repeal of Ordinances Nos.1618, 1619, and 1620, in their entirety:
a. Adopt Resolution 2026-112, Calling for the holding of a General Municipal Election on November 3, 2026, for the Submission to the Qualified Voters of the City of Banning, Ordinance Nos. 1618, 1619, and 1620; Request the County of Riverside to consolidate said election with 795
the Statewide General Election on November 3, 2026; Request the Board of Supervisors to consent to the Registrar of Voters performing election services for the City of Banning; Setting rules and deadlines for arguments and rebuttals for and against each Ordinance.
STAFF RECOMMENDATION:
Adopt Resolution No. 2026- 111, a Resolution of the City Council of the City of Banning, California, Accepting the Riverside County Registrar of Voters Certificate of Sufficiency for the Referendum Petitions for Ordinance Nos. 1618, 1619, and 1620.
Option 1:
Reconsider and provide direction to Repeal Ordinance Nos. 1618, 1619, and 1620 in their entirety.
Option 2:
If the City Council does not provide direction to repeal Ordinances Nos. 1618, 1619, and 1620, in their entirety:
Adopt Resolution 2026-112, Calling for the holding of a General Municipal Election on November 3, 2026, for the Submission to the Qualified Voters of the City of Banning, Ordinance Nos. 1618, 1619, and 1620; Request the County of Riverside to consolidate said election with the Statewide General Election on November 3, 2026; Request the Board of Supervisors to consent to the Registrar of Voters performing election services for the City of Banning; Setting rules and deadlines for arguments and rebuttals for and against each Ordinance.
BACKGROUND:
On April 14, 2026, the City Council adopted the following Ordinances:
Ordinance No. 1618 – amending the city’s zoning map from High Density Residential, Medium Density Residential, Low Density Residential, General Commercial, Open Space – Resources, and Open Space – Parks, to the Sunset Crossroads Specific Plan that provides General Commercial, Industrial, Open Space – Parks, and Open Space – Resources land uses.
Ordinance No. 1619 – amending the city’s zoning map to change the zoning of 41 acres of a 49.2 acre site within the jurisdiction of the City from Public Facilities School to Very High Density Residential to ensure “no net loss” of the City’s residential development capacity.
Ordinance No. 1620 – approving a statutory Development Agreement between the City and NP Banning Industrial (Owner). Under the terms of the Development Agreement and in exchange for vested development rights to develop a master planned project including industrial and commercial uses and various public facilities including parkland and open space, with on and off site related improvements on approximately 533.8 acres of Owners real property located within the City of Banning and the County of Riverside. The Development Agreement requires the Owner to provide fees, facilities, and public benefits subject to the timing and terms of the Development Agreement.
On April 17, 2026, proponents of an effort to protest the adoption of the Ordinances by referendum timely filed a draft summary of each Ordinances with the City Clerk’s Office for the City Attorney’s review and possible amendment.
On April 24, 2026, the City Attorney timely prepared an amended summary of each Ordinance for the proponents to include in a referendum petition for each Ordinance to be circulated among City of Banning voters for signature.
On May 26, 2026, the referendum proponents timely filed with the City Clerk’s Office a signed petition 796
protesting each Ordinance by referendum. A prima facia count of the signatures for each referendum petition was conducted, and it was determined that there were sufficient unverified signatures to refer and submit the petitions and signatures to County of Riverside Registrar of Voters (ROV) for official verification in accordance with the elections code.
On June 26, 2026, the verification was completed by the ROV and the certificate and petition summary report for each Ordinance was transmitted to the City Clerk. Per the ROV, the Report of Registration was submitted to the Secretary of State on May 18, 2026. Based upon that report, the total number of registered voters for the City of Banning was 19,842.
Per the elections code, a referendum petition must be signed by not less than ten percent (10%) of the registered voters of the City. Therefore, each referendum petition is required to contain the verified signatures of at least 1,984 Banning registered voters. Based upon the certificate of the ROV each petition has sufficient verified signatures on the petition. The ROV Certificate of Sufficiency for each Ordinance is attached to Resolution 2026-111.
Pursuant to the elections code, since the petition protesting the adoption of the Ordinances have received sufficient verified signatures the effective date of the Ordinances are suspended.
JUSTIFICATION:
CITY COUNCIL OPTIONS;
Option 1 – Reconsider and provide direction to repeal Ordinance Nos. 1618, 1619, and 1620 in their entirety.
If the City Council chooses this option, the Ordinances shall not be enacted again by the City Council for a period of one year after the date of the repeal of the Ordinances.
Option 2 – Adopt the Resolutions to Submit the Ordinances to the Voters If the City Council does not provide direction to repeal the Ordinances in their entirety, the City Council shall submit the Ordinances to the voters, either at the next regular municipal election occurring not less than 88 days after the order of the City Council, or at a special election called for the purpose, not less than 88 days after the order of the City Council.
The next regular municipal election is scheduled for Tuesday, November 3, 2026, which is a consolidated election with the statewide general election. The cost of an election will depend on whether it is a standalone or consolidated election. Standalone elections tend to be more expensive while consolidated elections are more cost effective.
FISCAL IMPACT:
Any election costs related to the submission of the Ordinances to the voters.
ATTACHMENTS:
1. CC Resolution No. 2026-111.docx
2. Exhibits A, B and C to Resolution 2026-111.pdf
3. CC Resolution No. 2026-112.docx
4. EXHIBITS A, B, C to Resolution 2026-112.pdf
797
EXHIBIT “A”
798
ART TINOCO
REGISTRAR OF VOTERS
MATTHEW CEBALLOS
ASSISTANT REGISTRAR OF VOTERS
2724 GATEWAY DRIVE
RIVERSIDE, CA 92507-0918
MAIN (951) 486-7200
FAX (951) 486-7335
CA RELAY SERVICE (DIAL 711)
VOTEINFO.NET
State of California )
) ss.
County of Riverside )
June 26, 2026
I, ART TINOCO, Registrar of Voters of the County of Riverside, State of California, do hereby certify that on May 26, 2026, “City of Banning, Referendum Against an Ordinance Passed by the City Council Ordinance No. 1618” was delivered to my office for the purpose of verifying that the signatures thereon were registered within the defined area.
I further certify that the signatures on said petition were counted and examined by means of a full verification process and that the results of said examination are as follows:
That the total number of signatures submitted for said petition was .............2,531 The total number of signatures checked was................................................2,531 The total number of sufficient signatures on petition is .................................2,379 The total number of insufficient signatures on petition is .................................152 If you have any questions, please contact our office at (951) 486-7200.
ART TINOCO
Registrar of Voters
Leticia Flores
Chief Deputy Registrar of Voters
799
EXHIBIT “B”
800
ART TINOCO
REGISTRAR OF VOTERS
MATTHEW CEBALLOS
ASSISTANT REGISTRAR OF VOTERS
2724 GATEWAY DRIVE
RIVERSIDE, CA 92507-0918
MAIN (951) 486-7200
FAX (951) 486-7335
CA RELAY SERVICE (DIAL 711)
VOTEINFO.NET
State of California )
) ss.
County of Riverside )
June 26, 2026
I, ART TINOCO, Registrar of Voters of the County of Riverside, State of California, do hereby certify that on May 26, 2026, “City of Banning, Referendum Against an Ordinance Passed by the City Council Ordinance No. 1619” was delivered to my office for the purpose of verifying that the signatures thereon were registered within the defined area.
I further certify that the signatures on said petition were counted and examined by means of a full verification process and that the results of said examination are as follows:
That the total number of signatures submitted for said petition was .............2,537 The total number of signatures checked was................................................2,537 The total number of sufficient signatures on petition is .................................2,378 The total number of insufficient signatures on petition is .................................159 If you have any questions, please contact our office at (951) 486-7200.
ART TINOCO
Registrar of Voters
Leticia Flores
Chief Deputy Registrar of Voters
801
EXHIBIT “C”
802
ART TINOCO
REGISTRAR OF VOTERS
MATTHEW CEBALLOS
ASSISTANT REGISTRAR OF VOTERS
2724 GATEWAY DRIVE
RIVERSIDE, CA 92507-0918
MAIN (951) 486-7200
FAX (951) 486-7335
CA RELAY SERVICE (DIAL 711)
VOTEINFO.NET
State of California )
) ss.
County of Riverside )
June 26, 2026
I, ART TINOCO, Registrar of Voters of the County of Riverside, State of California, do hereby certify that on May 26, 2026, “City of Banning, Referendum Against an Ordinance Passed by the City Council Ordinance No. 1620” was delivered to my office for the purpose of verifying that the signatures thereon were registered within the defined area.
I further certify that the signatures on said petition were counted and examined by means of a full verification process and that the results of said examination are as follows:
That the total number of signatures submitted for said petition was .............2,530 The total number of signatures checked was................................................2,530 The total number of sufficient signatures on petition is .................................2,369 The total number of insufficient signatures on petition is .................................161 If you have any questions, please contact our office at (951) 486-7200.
ART TINOCO
Registrar of Voters
Leticia Flores
Chief Deputy Registrar of Voters
803
Resolution 2026-112
RESOLUTION NO. 2026-112
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING,
CALIFORNIA, CALLING FOR THE HOLDING OF A GENERAL MUNICIPAL ELECTION ON NOVEMBER 3, 2026, FOR THE SUBMISSION TO THE QUALIFIED VOTERS OF THE CITY OF BANNING, ORDINANCE NOS. 1618, 1619, AND 1620; REQUESTING THE COUNTY OF RIVERSIDE TO
CONSOLIDATE SAID ELECTION WITH THE STATEWIDE GENERAL
ELECTION ON NOVEMBER 3, 2026; REQUEST THE BOARD OF
SUPERVISORS TO CONSENT TO THE RIVERSIDE COUNTY REGISTRAR OF VOTERS TO PERFORM ELECTION SERVICES FOR THE CITY’S GENERAL MUNICIPAL ELECTION ON NOVEMBER 3, 2026; SETTING RULES AND
DEADLINES FOR ARGUMENTS AND REBUTTALS FOR AND AGAINST EACH
ORDINANCES
WHEREAS, on April 14, 2026, the Banning City Council adopted Banning Ordinance Nos. 1618, 1619, and 1620; and
WHEREAS, on April 17, 2026, the City Clerk’s Office received a proposed impartial summary of each ordinance on behalf of Banning resident Kathleen Dale who declared herself to be the proponent of a referendum effort related to Ordinance Nos. 1618, 1619, and 1620; and WHEREAS, on April 24, 2026, the City Attorney timely prepared an impartial title and summary of each ordinance in compliance with the provisions of the Elections Code section 9238 and submitted to the City Clerk within ten (ten) business days; and WHEREAS, pursuant to California Elections Code sections 15 and 9238( b)( 2)( B)( vi), the Ordinances were scheduled to become effective unless the proponents filed a signed referendum petition with the City Clerk’s office by May 26, 2026, to challenge the Ordinances; and
WHEREAS, on May 26, 2026, the referendum proponents timely filed with the City Clerk’s Office, a signed petition protesting each of the ordinances by referendum which, if the referendum qualifies, would suspend the effective date of the Ordinances, require that the City Council reconsider the Ordinances and either repeal it in its entirety or submit the Ordinances to a vote of Banning voters; and
WHEREAS, a referendum petition protesting the adoption of each ordinance must be filed with the City Clerk within thirty (30) days following its adoption and must bear signatures of not less than ten percent (10%) of the registered voters of the City; and WHEREAS, per the Riverside County Registrar of Voters’ last report of registration to the Secretary of State pursuant to California Elections Code § 9237, the number of verified signatures required was 1984; and
WHEREAS, the City Clerk, through the Riverside County Registrar of Voters, has certified that the form of the referendum petition complies with California law and, based upon an examination of voter registration records, has ascertained that the petition is signed by the requisite number of voters to qualify the Ordinances for the referendum ballot under the Elections Code, unless it is repealed by the City Council; and
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Resolution 2026-112
WHEREAS, the City Council has not voted to repeal the Ordinances; and WHEREAS, pursuant to California Elections Code section 9237, because the petition was signed by the requisite number of voters and the Ordinances were not repealed by the City Council, the effective date of the Ordinances are suspended, and the Ordinances may not go into effect unless and until approved by a majority of Banning voters voting upon it at a municipal election; and
WHEREAS, the City Council is therefore authorized and required by California Elections Code section 9241 to submit the proposed Ordinances to the voters at either its next regular municipal election or a special municipal election called for that purpose, occurring not less than 88 days after the date of the order of election; and
WHEREAS, the next regular municipal election that is not less than 88 days after the date of this Resolution would be Banning General Municipal Election to be held on Tuesday, November 3, 2026; and
WHEREAS, the City Council reviewed its options on July 14, 2026, at its Regular City Council Meeting and directed the City Clerk to place the Ordinances before Banning voters at the General Municipal Election to be held on November 3, 2026, concurrently with the Statewide General Election; and
WHEREAS, the specific terms of the resolution are attached hereto as Exhibit “A” and by this reference made an operative part hereof, and in accordance with all applicable laws; and WHEREAS, it is desirable that the General Municipal Election be consolidated with the Statewide General Election to be held on the same date and that within the City the precincts, polling places, voting centers and election officers of the two elections be the same, and that the Riverside County Registrar of Voters canvass the returns of the General Municipal Election and that the election be held in all respects as if there were only one election; and WHEREAS, it is also desirable to establish deadlines and rules for the submission of written arguments and rebuttals for and against the Ordinances in accordance with applicable California Elections Code procedures.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BANNING HEREBY RESOLVES AS FOLLOWS:
Section 1. Recitals. The City Council hereby finds and determines that the foregoing recitals are true and correct and are incorporated herein and by this reference are made an operative part hereof.
Section 2. Submission of Ordinances to the Voters. Pursuant to the requirements of the California Elections Code applicable to the City of Banning, the City Council hereby calls and orders the ordinances to be submitted to the qualified voters of the City at a General Municipal Election to be held in the City of Banning, California, on Tuesday, November 3, 2026. Ordinance Nos. 1618, 1619, and 1620 shall be in the form attached hereto as Exhibit “A”, “B”, and “C”, respectively, to this Resolution and are incorporated by this reference as if fully set forth herein.
Section 3. Ballot Question. The City Council, pursuant to its right and authority, does hereby order that the ballot question for each Ordinance shall be presented and printed upon the ballot 805
Resolution 2026-112
submitted to the qualified voters in the manner and form set forth in this Section 3. On the ballot to be submitted to the qualified voters at the General Municipal Election to be held on Tuesday, November 3rd, 2026, in addition to any other matters required by law, there shall be printed substantially the following ballot questions.
Shall Ordinance No.1618, amending the land uses for property located South of I-10 and the Union Pacific Railroad and West of Sunset Avenue allowing General Commercial, Industrial, Open Space – Parks and Resources land uses on the property and pre-zoning territory within the City’s Sphere of Influence located South of the North Boundary of Western Avenue and West of Sunset Avenue for General Commercial, Industrial, Open Space – Parks and Resources land uses, be adopted? YES
NO
Shall Ordinance No. 1619, which amends the land uses for property south of West Westward Avenue and east of Sunset Avenue to allow Very High-Density Residential use on 41 acres of the 49.2-acre site, be adopted?
YES
NO
Shall Ordinance No.1620, approving a development agreement with NP Banning Industrial to develop a master planned project including commercial and industrial uses, various public facilities with on and offsite related improvements subject to the terms of the agreement which includes dedicating over 68 acres of land to the City for open space, a fire station, parks, and public utilities and over $40,000,000 in public benefit payments to the City, be adopted?
YES
NO
Section 4. Election procedures
A. The vote requirement for each Ordinance to pass is a simple majority (50%+1) of votes cast.
B. The ballots to be used at the election shall be in the form and content as required by law.
C. Pursuant to the requirements of Section 10403 of the Elections Code, the Board of Supervisors of the County of Riverside is hereby requested to consent and agree to the consolidation of a General Municipal Election with the Statewide 806
Resolution 2026-112
General Election to be held on Tuesday, November 3, 2026, for the purpose of submitting to the voters the ballot question relating to each of the Referendum Ordinance Measures.
D. The election services which the City of Banning requests the Registrar of Voters, or such other official as may be appropriate, to perform and which such officer is hereby authorized and directed to perform, if said Board of Supervisors consents, include: the preparation, printing, and mailing of sample ballots, the establishment or appointment of precincts, polling places, voting centers, and election officers, the preparation, printing, mailing, and furnishing of ballots, making such publications as are required by law in connection therewith; the furnishing of ballots, voting booths and other necessary supplies or materials for polling places and voting centers; the canvassing of the returns of the election and the furnishing of the results of such canvassing to the City Clerk of the City of Banning; and the performance of such other election services as may be requested by the City Clerk. All reasonable and actual election expenses shall be paid by the City upon presentation of a properly submitted bill.
E. The City Clerk is authorized, instructed, and directed to procure and furnish, or cause to be procured and furnished through the County of Riverside, any and all official ballots, notices, printed matter and all supplies, equipment and paraphernalia that may be necessary in order to properly and lawfully conduct the election.
F. The polls, voting centers and/or voting drop-off boxes shall be open and the procedures for submitting votes-by-mail or votes at polls and voting centers shall be done in accordance with those times and procedures established by the County of Riverside, except as otherwise provided in the Elections Code of the State of California.
G. In all particulars not recited in this Resolution, the election shall be held and conducted as provided by law for holding municipal elections in the City.
H. Notice of the time and place of holding the election is given and the City Clerk is authorized, instructed, and directed to give further or additional notice of the election, in time, form, and manner as required by law.
I. All ballots shall be tallied at a central counting place and not at the precincts. Said central counting place shall be at a County center as designated by the Registrar of Voters.
J. The Riverside County Registrar of Voters is hereby authorized to canvass the returns of said election.
K. The City Clerk of the City of Banning shall receive the canvass from the County as it pertains to the election on the Referendum Ordinance Measures, and shall certify the results to the City Council, as required by law. 807
Resolution 2026-112
Section 5. Arguments and Impartial Analysis
A. The City Council authorizes (i) the City Council or any member(s) of the City Council, (ii) the proponents of the referendum protesting each Ordinance, (iii) any individual voter eligible to vote on the above Ordinance, (iv) a bona fide association of such citizens or (v) any combination of voters and associations, to file a written argument in favor or against each Ordinance, in accordance with Article 4, Chapter 3, Division 9 of the Elections Code of the State of California, which argument may be changed until and including the deadline set by the Riverside County Registrar of Voters, after which no arguments for or against each Ordinance may be submitted to the City Clerk. Arguments in favor of or against each Ordinance shall each not exceed 300 words in length. Each argument shall be filed with the City Clerk, signed, and include the printed name(s) and signature(s) submitting it, or if submitted on behalf of an organization, the name of the organization, and the printed name and signature of at least one of its principal officers who is the author of the argument.
B. The City Clerk shall comply with all provisions of law establishing priority of arguments for printing and distribution to the voters and shall take all necessary actions to cause the selected arguments to be printed and distributed to the voters.
C. Pursuant to Section 9280 of the Elections Code, the City Council directs the City Clerk to transmit a copy of this Resolution to the City Attorney. The City Attorney shall prepare an impartial analysis of each Ordinance, not to exceed 500 words in length, showing the effect of each Ordinance on the existing law and the operation of each Ordinance. The City Attorney shall transmit such impartial analysis to the City Clerk, who shall cause the analysis to be published in the voter information guide along with each Ordinance as provided by law. The Impartial Analysis shall be filed by the deadline set for filing of primary arguments as set forth in Subsection 5(A) above. The impartial analysis shall include a statement indicating whether the Ordinances were placed on the ballot by a petition signed by the requisite number of voters or by the City Council. In the event the entire text of the Ordinances are not printed on the ballot, nor in the voter information portion of the sample ballot, there shall be printed immediately below the impartial analysis, in no less than 10-font bold type, the following:
“The above statement is an impartial analysis of Ordinance or Measure _____. If you desire a copy of the Ordinance/Measure, please call the election official’s office at (951) 486-7200 and a copy will be mailed at no cost to you.”
D. The provisions of this section 5 shall apply only to the election to be held on November 3, 2026, and shall then be repealed.
Section 6. Rebuttals.
A. Pursuant to Section 9285 of the Elections Code of the State of California, when the clerk has selected the arguments for and against each Ordinance which will 808
Resolution 2026-112
be printed and distributed to the voters, the Clerk shall send copies of the argument in favor of each Ordinance to the authors of the argument against, and copies of the argument against to the authors of the argument in favor. The authors or persons designated by them may prepare and submit rebuttal arguments not exceeding 250 words. The rebuttal arguments should be filed with the City Clerk no later than 10 days after the deadline for primary arguments set forth in Section 5 above. Rebuttal arguments shall be printed in the same manner as the direct arguments. Each rebuttal argument shall immediately follow the direct argument which it seeks to rebut.
B. The provisions of this Section 6 shall apply only to the election to be held on November 3, 2026, and shall then be repealed.
Section 7. Placement on the Ballot. The full text of the ordinances shall be printed in the voter information guide, and a statement shall be printed in the ballot pursuant to Section 9223 of the Elections Code advising voters that they may obtain a copy of the ordinances at no cost.
Section 8. Delivery of Resolution to County. The City Clerk shall certify to the passage and adoption of this Resolution and enter into the book of original resolutions. The City Council directs the City Clerk to deliver copies of this Resolution, including Ordinance Nos. 1618, 1619, and 1620, attached hereto as Exhibit “A”, “B,” “C”, respectively, to the Clerk of the Board of Supervisors of Riverside County and to the Registrar of Voters of Riverside County.
Section 9. Public Examination. Pursuant to California Elections Code section 9295, the Ordinances will be available for public examination for no fewer than ten (10) calendar days prior to being submitted for printing in the voter information guide The City Clerk shall post notice in the Clerk’s office of the specific dates that the examination period will run.
Section 10. CEQA. The City Council hereby finds and determines that placement of each Ordinance on the ballot is not a discretionary action of the City Council within the meaning of the California Environmental Quality Act (“CEQA”) and the State CEQA Guidelines and is, therefore, not subject to CEQA review. See Tuolumne Jobs and Small Business Alliance v. Superior Court, (2014) 59 Cal. 4 th 1029.
Section 11. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Resolution which can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The City Council hereby declares that it would have adopted this Resolution irrespective of the invalidity of any particular portion thereof.
Section 12. Effective Date of Resolution. This Resolution shall take effect immediately upon its adoption.
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Resolution 2026-112
Section 13. Suspension of each Ordinance and Effective Date of each Ordinance if Approved by Voters. Pursuant California Election Code sections 9217, 9237, and 9243, each Ordinance is suspended and shall not go into effect unless and until it is approved and adopted by a majority of the eligible voters of the City of Banning voting at the General Municipal Election of November 3, 2026. Each Ordinance shall be deemed adopted when the City Council has certified the results of that election by resolution and shall take effect ten (10) days thereafter.
PASSED, APPROVED, and ADOPTED this 14th day of July 2026.
Richard Royce, Mayor
City of Banning
ATTEST:
Sandra Calderon, Deputy City Clerk
City of Banning
APPROVED AS TO FORM:
John Pinkney, City Attorney
Slovak, Baron, Empey, Murphy &
Pinkney, LLP
810
Resolution 2026-112
CERTIFICATION:
I, Sandra Calderon, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2026-112, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 14th day of July 2026 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sandra Calderon, Deputy City Clerk
City of Banning, California
811
EXHIBIT “A”
812
ORDINANCE NO. 1618
AN ORDINANCE OF THE CITY OF BANNING, CALIFORNIA,
APPROVING AN AMENDMENT TO THE CITY OF BANNING OFFICIAL
ZONING MAP AND APPROVING ZONE CHANGE 20-3502 REZONING
CERTAIN TERRITORY IN THE CITY LOCATED SOUTH OF 1-10 AND THE
UNION PACIFIC RAILROAD, AND WEST OF SUNSET AVENUE
(ASSESSOR'S PARCEL NUMBERS (APNS): 537-110-003 THROUGH - 005, 537-110-011 THROUGH -014) AND PRE-ZONING PRIOR TO
ANNEXATION CERTAIN TERRITORY IN THE SPHERE OF INFLUENCE
OF THE CITY LOCATED SOUTH OF THE NORTHERN BOUNDARY OF
WESTERN AVENUE AND WEST OF SUNSET AVENUE (APNS 537-120- 013, 537-120-025, AND 537-120-028 THROUGH -036).
WHEREAS, the City of Banning, California, ("City") is a general law city and a municipal corporation of the State of California; and
WHEREAS, NP Banning Industrial, LLC, a Missouri Limited Liability Corporation ("Owner") is proposing to develop a master planned project including industrial and commercial uses and various public facilities, including parkland and open space, with on-and off-site related improvements ("Project") on approximately 533.8 acres of real property located within the City of Banning and the County of Riverside, with approximately 253.7 acres of this real property located in unincorporated County of Riverside and the City's southerly sphere of influence. The property is comprised of assessor's parcel numbers (APNs): 537-110-003 through -005, 537-110-011 through - 014, 537-120-013, 537-120-025, and 537-120-028 through -036, and more specifically described on Exhibit A attached hereto and incorporated herein by this reference ("Project Site"); and
WHEREAS, the Project site is, or will be made, subject to the following entitlements: Resolution 2026-29, approving General Plan Amendment No. 20-2501 and Specific Plan No. 20-2002; this Ordinance approving Zone Change 20-3502; Ordinance No. 1620 approving a Development Agreement ("Development Agreement") between the City and Owner and Resolution No. 2026-31 approving Tentative Parcel Map No. 38118 to reconsolidate all existing parcels of the Property into 34 parcels and five lettered lots; and Resolution No. 2026-28, certifying an Environmental Impact Report (EIR), SCH Number 2021020011, Adopting Findings and a Statement of Overriding Considerations, and Adopting a Mitigation Monitoring and Reporting Program (collectively "Entitlements"); and
WHEREAS, the City has received from Owner a request to annex the portion of the Property located in the sphere of influence of the City and is adopting, or will adopt, Resolution 2026-30 approving a Plan of Service and such annexation and recommending approval of such annexation to LAFCO.
WHEREAS, concurrently with consideration of the Project, the City is considering General Plan Amendment (GPA) 22-2502, and Zone Change (ZC) 22-3502, to amend the existing land use designation on twelve parcels that are not a part of the Project Site of land from Public Facilities - School (PF-S) to Very High Density Residential (VHDR), and amending the Zoning District classification from Public Facilities - School (PF-S) to Ordinance No. 1618
April 14, 2026
813
Very High Density Residential (VHDR) (collectively, "MSJC Site Entitlements"), for 40.9 acres of a 49.2-acre site located at the southeast corner of Westward and Sunset Avenues (APNs: 537-140-004, 537-140-006 through -012, 537-150-001, 537-150-003 and -004, 537-150-008, and 537-140-001 through -003 (collectively the "MSJC Site") to ensure that approval of the Project will not result in a net loss of residential housing capacity; and
WHEREAS, in compliance with Government Code Section 65854, the City Planning Commission provided notice and held a duly noticed public hearing on the Project at a special meeting on September 25, 2025, further considered the Project at separately noticed continuation of such meeting on November 5, 2025 and at a continuation of that meeting to a special meeting on November 17, 2025, voted 3 in support and 2 opposed, passing a resolution recommending the City Council deny the Project applications. At the same special meeting, the Planning Commission voted 5 in support and none opposed, passing a resolution recommending the City Council deny the MSJC Site Entitlements; and
WHEREAS, the City prepared the Final EIR, including the Draft EIR (collectively, 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, at the January 28, 2026, special meeting, the City Council of the City of Banning (the "City Council") held a public hearing, commenced deliberation and voted five in favor and none opposed to continue deliberation of the matter at a special meeting on February 26, 2026; and
WHEREAS, at the February 26, 2026, special meeting, the City Council voted unanimously 5-0 to continue the item to a regular meeting date of March 10, 2026; and WHEREAS, the City Council has reviewed the staff report, Planning Commission recommendation, environmental documentation, proposed general plan amendment and zone change, Sunset Crossroads Specific Plan, development agreement, parcel map and supporting materials, and public testimony and has determined that approval of Zone Change 20-3502 is appropriate under Chapter 17.116 of the Banning Municipal Code and consistent with the policies and programs of the City of Banning General Plan, any applicable specific plan and zoning ordinances; and
WHEREAS, the Project reduces environmental impacts by incorporating the reduction in industrial uses generally as contemplated by Alternative 4, the Reduced Industrial Alternative, which was identified as the Environmentally Superior Alternative in the FEIR, including by (1) eliminating the extension of Lincoln Street over the Smith Creek drainage, buildout of Highland Home Road north of Sun Lakes Boulevard and the related fire road access and (2) eliminating Industrial buildings in Planning Areas 2, 3, 7, 8 and 9 and all cold-storage uses, thereby reducing overall Industrial square footage to a maximum of 4,749,000 square feet, which is an even greater reduction in square footage and elimination of more buildings than considered in Alternative 4. The Project also modifies and reduces impacts to the Commercial land uses by removing construction of the truck fueling operation, modifying the mix of commercial uses, and reducing the maximum commercial square footage to 223,753 square feet, including up to 200,000 square feet discount club use, plus an approximately 125 room hotel; and Ordinance No. 1618
April 14, 2026
814
WHEREAS, the City, as "Lead Agency" under the California Environmental Quality Act ("CEQA") and the CEQA Guidelines, concurrently with adoption of this Resolution pursuant to adoption of Resolution 2026-28, certified the FEIR as supplemented by the Supplemental CEQA Memorandum dated October 23, 2025 to address revisions to the Project and the Sunset Crossroads Project-Modified Project V2.1 Trip Generation Assessment dated February 20, 2026 to address further reductions in Project industrial square footage and related traffic impacts, each prepared by Urban Crossroads, Inc. (collectively "Supplemental CEQA Memoranda") and adopted Findings and Statement of Overriding Consideration and a Mitigation Monitoring and Reporting Program and determined that the FEIR as so supplemented sufficiently analyzes both the feasible Mitigation Measures necessary to avoid or substantially lessen the Project's potential environmental impacts and a range of feasible alternatives capable of eliminating or reducing these effects while feasibly attaining most of the basic objectives of the Project in accordance with CEQA and the State CEQA Guidelines, and has determined that the Zone Change has been fully analyzed per CEQA under the FEIR 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. OFFICIAL ZONING MAP AMENDMENTS.
The City Council hereby approves ZC 20-3502, zoning land lying within the jurisdiction of the City and pre-zoning land in the City's sphere of influence, and directs the Community Development Director to amend the City of Banning Official Zoning Map, as depicted in Exhibit A to this Ordinance and incorporated by this reference, to amend the zoning classifications of the Real Property legally described on Exhibit B-1 and Exhibit B-2 to this Ordinance, each incorporated by this reference, from High Density Residential, Medium Density Residential, Low Density Residential, General Commercial and Open Space - Resource and Open Space - Parks, where applicable, to "Specific Plan - Sunset Crossroads" to provide General Commercial (GC), Industrial (I), Open Space - Parks (OS-P), and Open Space - Resources (OS-R) land uses pursuant to the Sunset Crossroads Specific Plan adopted pursuant to Resolution 2026-29 by the City Council and the following, in each case subject to termination of this approval as set forth in the Development Agreement if the First Installment of the Public Benefit Fee (each as defined in the Development Agreement) is not timely paid in accordance with the terms of Section
5.2.1 of said Development Agreement.
A. Zone Map Change. The portion of the Property legally described on Exhibit B-1, comprising APNS 537-110-003 through-005, 537-110-011 through-014 is within the jurisdiction of the City and is hereby zoned to "Specific Plan - Sunset Crossroads".
B. Pre-Zoning. The portion of the Property legally described on Exhibit B-2, comprising APNS 537-120-013, 537-120-025, and 537-120-028 through -036 is located in the sphere of influence of the City and is hereby pre-zoned to "Specific Ordinance No. 1618
April 14, 2026
815
Plan - Sunset Crossroads". This pre-zoning shall take effect upon execution of a Certificate of Completion by the Riverside County Local Agency Formation Commission for the annexation.
SECTION 3. FINDINGS FOR APPROVAL OF ZC 20-3502.
BMC Section 17.116.040 provides that upon receipt of the Planning Commission's recommendation, the City Council may approve, approve with modifications, or disapprove the proposed amendment based upon its findings. Amendments to the Zoning Ordinance shall be adopted by ordinance. Further, BMC Section 17.116.050 provides that an amendment to the Zoning Ordinance may be adopted only if the following findings are made. The City Council hereby finds and determines as follows:
A. FINDING No. 1: The proposed Amendment is consistent with the goals and policies of the General Plan.
Findings of Fact: The proposed ZC 20-3502 is consistent with the goals and policies of the General Plan. The proposed amendment will establish a land use pattern consistent with the corresponding general plan amendment 20- 2501, allowing for General Commercial and Industrial districts while preserving natural on-site drainages and open spaces with Open Space designations to maintain an appropriate balance of land uses in the City and through adoption of a Specific Plan will regulate such uses to allow for the orderly development of the Property. The Project will assist with the development of a circulation system that serves the needs of the City (Circulation Element Policy 6) through dedication of land and widening of key roadways, provision of other infrastructure and payment of fair share of fees such that City streets are able to maintain peak hour LOS D or better with implementation of the Project and City and regional capital improvements. The proposed zoning will also create economic opportunities consistent with the goals and policies in the General Plan Economic Development Element, such as the following:
• Goal: A balanced, broadly-based economy that provides a full range of economic and employment opportunities, while maintaining high standards of development and environmental protection.
• Policy 2 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.
• Program 6.B Preserve highway commercial land use designations at interchange locations, and encourage the location of high quality freewayserving businesses.
Further detailed findings of consistency between the Project and the General Plan are set forth in the FEIR and Resolution 2026-29 adopted by the City Council prior to or concurrently with adoption of this Ordinance, which findings and supporting evidence has been previously considered by the City Council in connection with the Project.
Ordinance No. 1618
April 14, 2026
Page4
816
B. FINDING No. 2: The proposed Amendment is internally consistent with the Zoning Ordinance.
Findings of Fact: The proposed zone change is internally consistent with the Zoning Ordinance because the zone change will implement zoning map changes authorized by Banning Municipal Code Chapter 17.96, authorizing adoption of Specific Plans by the City Council including adoption of the Sunset Crossroads Specific Plan adopted concurrently with adoption of this Ordinance pursuant to Resolution 2026-29. The proposed Project shall require an amendment to Banning Municipal Code Section 17 .96.080 - Specific plan zoning districts and zoning map designations. Inclusion of the Sunset Crossroads Specific Plan in the BMC will immediately make it consistent with the zoning ordinance. As required by state law and provided that the MSJC Site Entitlements are adopted by the City Council, the proposed Project involves a transfer of residential density from Sunset Crossroads development project site to the MSJC Site to accommodate the commercial/industrial development project. The transfer of residential development capacity is consistent with state housing law in that it ensures no net loss in the residential development capacity identified in the City's General Plan. The proposed density transfer can be accommodated on an approximately 41-acre site because the proposed density range is from 24 to 30 dwelling units per acre, consistent with the Zoning Ordinance and development standards for the Very High Density Residential zone and General Plan Housing Element goals and Programs 4 which require the City to create very high density zoning with a range of 24-30 du/acre.
C. FINDING No. 3: That the City Council has independently reviewed and considered the requirements of the California Environmental Quality Act.
Findings of Fact: The Sunset Crossroads FEIR has been prepared for the Project in accordance with the California Environmental Quality Act (Pub.
Resources Code, § 21000 et seq.) (CEQA). The City Council has conducted an independent review and is concurrently certifying the Sunset Crossroads FEIR (SCH# 2021020011), including the DEIR and certain Supplemental CEQA Memoranda as compliant with CEQA and has adopted the related CEQA Findings, Statement of Overriding Consideration, and Mitigation Monitoring and Reporting Program for the Project pursuant to Resolution No. 2026-28 concurrently with or prior to adoption of this Ordinance.
SECTION 5. SEVERABILITY.
If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional.
SECTION 6. CERTIFICATION.
Ordinance No. 1618
April 14, 2026
817
The City Clerk is directed to certify the passage and adoption of this Ordinance; cause it to be entered into the City of Banning's book of original ordinances; make a note of the passage and adoption in the records of this meeting; and, within fifteen (15) days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law.
SECTION 7. EFFECTIVE DATE.
This Ordinance shall take affect thirty (30) days after its second reading by City Council.
The City Clerk is directed to certify to the enactment of this Ordinance and to cause this Ordinance to be published and/or posted as required by law.
INTRODUCED AND READ for the first time and ordered posted at a special meeting of the City Council of the City of Banning, California, held on the 10th day of March 2026, by the following roll call vote:
AYES: Barrington, Miller, Royce, Wallace
NOES: Flynn
ABSENT:
ABSTAIN:
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of Banning, California, held on the 14th day of April 2026, by the following roll call vote:
A YES: bX(ri °'Q-\O(\, ~-Xd \e( l 'rl'.)4ce 1 \J\ttl\.ctC e..
NOES: °f\tjf\Y'\
ABSENT:
ABSTAIN:
ATTEST:
~cu 1C0a Ow d.Q.;i /JYU
Sandra Calderon, Deputy City Clerk
City of Banning
APPROVED AS TO FORM:
(Y2 .A« 12 /21 dL--- #.,., John Pinkney, City Attorney
Slovak, Baron, Empey, Murphy & Pinkney, LLP
Ordinance No. 1618
April 14, 2026
Ric rd Royce, Mayor
City of Banning
818
CERTIFICATION:
I, Sandra Calderon, Deputy City Clerk of the City of Banning, California, do hereby certify that Ordinance No. 1618 was duly introduced at a special meeting of the City Council of the City of Banning, held on the 10th day of March, 2026, and was duly adopted at a regular meeting of said City Council on the 14th day of April, 2026, by the following vote, to wit:
AYES: Barrington, Miller, Royce, Wallace
NOES: Flynn
ABSENT: None
ABSTAIN: None
Ordinance No. 1618
April 14, 2026
Sandra Calderon, Deputy City Clerk
City of Banning, California
819
Ordinance No. 1618
April 14, 2026
EXHIBIT A
Existing General Plan/Zoning Map
820
NG PROJECT NUMBER: SP 20-2002,GPA 20-2501,ZC 20-3502,TPM 38118 CALIFORNIA"""-
GENERAL PLAN/ZONING
APN: 537-110-003 THROUGH -005, 537-110-011 THROUGH -014, 537-120-013, 537-120-025, AND 537-120-028 THROUGH -036
ZONE·General Commercial(GC), Low Density Residenlial(LDR), High Density Residential(HDR), ·Medium Density Residential(MDR), Open Space - Parks(OS-P), Open Space - Resources(OS-R) 821
EXHIBIT B-1
Legal Description of APNS 537-110-003 through -005, 537-110-011 through -014
COMPRISING THE NORTHERN PORTION OF THE PROJECT SITE AND SLB
EXTENSION IN THE CITY OF BANNING
PARCEL A:
PARCELS 1 THROUGH 4, INCLUSIVE OF MAPS AND LETTERED LOTS A THROUGH J, INCLUSIVE, OF PARCEL MAP NO. 25541, IN THE CITY OF BANNING, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, ON FILE IN BOOK 166 PAGES 27 THROUGH 35, INCLUSIVE, OF PARCEL MAPS, RECORDS OF RIVERSIDE
COUNTY, CALIFORNIA
Ordinance No. 1618
April 14, 2026
822
EXHIBIT B-2
Legal Description of APNS 537-120-013, 537-120-025, and 537-120-028 through -036
COMPRISING UNINCORPORATED SOUTHERN PORTION OF THE PROJECT SITE PARCEL B:
PARCELS 1 THROUGH 9 AND LETTERED LOTS "A" THROUGH "O", ALL INCLUSIVE OF PARCEL MAP 28971, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 198 PAGES 8 THROUGH 10
INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM PARCELS 3 AND 7, THOSE PORTIONS CONVEYED TO THE CITY OF BANNING BY A DEED RECORDED JANUARY 15, 1998 AS INSTRUMENT NO. 015506 OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM PARCEL 3 ALL THAT PORTION CONVEYED TO THE CITY OF BANNING BY A DEED RECORDED MARCH 22, 2002 AS INSTRUMENT NO. 2002-146041.
PARCEL C:
PARCELS 1 AND 2 AND LETTERED LOTS A, B, AND C OF PARCEL MAP 13521, IN
THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 83, PAGES 13 THROUGH 15, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM THOSE PORTIONS CONVEYED TO THE CITY OF BANNING, A MUNICIPAL CORPORATION, BY DEED RECORDED JANUARY 15, 1998, AS INSTRUMENT NO. 98-015506, OFFICIAL RECORDS.
Ordinance No. 1618
April 14, 2026
823
EXHIBIT “B”
824
ORDINANCE NO.1619
AN ORDINANCE OF THE CITY OF BANNING, CALIFORNIA,
APPROVING AN AMENDMENT TO THE CITY OF BANNING OFFICIAL
ZONING MAP AND APPROVING ZONE CHANGE 22-3502 REZONING
CERTAIN TERRITORY IN THE CITY LOCATED SOUTH OF WEST
WESTWARD AVENUE AND EAST OF SUNSET AVENUE (APNS 537-
140-001- THROUGH -004, -006 THROUGH -012, 537-150-001, -003 AND -004, -008).
WHEREAS, the City of Banning, California, ("City") is a general law city and a municipal corporation of the State of California; and
WHEREAS, an application for Zone Change (Case No. ZC 22-3502), (the "Project"), a proposal to amend the Zoning District classification from Public Facilities - School (PF-S) to Very High Density Residential (VHDR), for 41 acres of a 49.2-acre site located near the southeast corner of Westward and Sunset Avenues (APNs: 537-140- 001 through -004, 537-140-006 through-012, 537-150-001, 537-150-003 and-004, 537- 150-008), has been duly filed; and
WHEREAS, pursuant to Section 17.04.060.C. of the BMC, the Planning Commission has the authority to review and make recommendations to the City Council concerning Case No. ZC 22-3502; and
WHEREAS, pursuant to Section 17.116.040 of the Banning Municipal Code, the City Council has the authority to interpret the Zoning Ordinance; and WHEREAS, pursuant to the California Environmental Quality Act (CEQA) and State CEQA Guidelines Sections 15064(f)(2) and 15070, the proposal constitutes a project as defined by CEQA and Community Development Department staff has determined that the Project is likely to have a significant effect on the environment; and WHEREAS, based upon the complexity and magnitude of the proposed project, staff determined that an Environmental Impact Report should be prepared for the project, and an Initial Study was not necessary. A Notice of Preparation (NOP) was therefore completed and distributed to the State Clearinghouse, as well as agencies and organizations that may provide comment on the Project's potential impact(s) on the environment. The State of California Clearinghouse issued a project number for the project, SCH No. 2021020011. The 30-day public comment period extended from February 1 to March 3, 2021. An electronic copy of the NOP was made available on the City's website. Comments received during the public review of the NOP were utilized to assist in identifying potential environmental impacts; and WHEREAS, due to COVID-19 restrictions, the Public Scoping meeting was held virtually on February 18, 2021 via Zoom. Notice of the Public Scoping Meeting was published in the Banning Record Gazette on February 5, 2021 providing the appropriate Ordinance No. 1619
April 14, 2026
825
instructions for public participation in the Scoping Meeting. The Public Scoping Meeting included a presentation providing a summary of the Project, required actions, and the environmental review process. No public comments were received during the Scoping Meeting; and
WHEREAS, the Sunset Crossroads development project includes a General Plan Amendment and implementation of a Specific Plan for the Project; therefore, Native American consultation pursuant to both SB 18 and Assembly Bill 52 (AB 52) was conducted. On November 30, 2020 the City reached out to 31 Native American contacts to formally invite participation in tribal consultation pursuant to AB 52 and SB 18 required for the Project. The City received responses from the Morongo Band of Mission Indians (MBMI), the Soboba Band of Luiseno Indians (SBLI), and the Agua Caliente Band of Cahuilla Indians (ACBCI) requesting formal consultation with the City regarding the Development Project; and
WHEREAS, the City provided a separate consultation invitation to these same 31 Native American contacts on August 25, 2022, specifically identifying the entitlement actions related to the MSJC Site. In this 2022 consultation, the City stated the MSJC site entitlements proposed only changes to the City's land use and zoning maps, and that no construction or physical alterations were proposed or would be authorized under the MSJC entitlements. The MBMI acknowledged the City's actions and noted the MSJC Site is located within the ancestral territory and traditional use area of the Cahuilla and Serrano people of the MBMI and that any future construction or alterations to the MSJC Site would be of interest to the MBMI. The San Manuel Band of Mission Indians (SMBMI) stated the MSJC Site is outside of Serrano ancestral territory and, as such, SMBMI would not request consulting party status with the City; and
WHEREAS, a Notice of Availability (NOA) of the Draft EIR was provided to, responsible and trustee agencies, as well as the organizations, and persons who have previously requested notification. The NOA was distributed via priority mail with confirmed receipt. The NOA identified the State mandated 45-day public review period extending from December 15, 2023 to January 30, 2024 and included a weblink to the City's public noticing page providing further access to the Draft EIR, project material, and related technical appendices. Emails advising of the availability of the Draft EIR were sent by the City on December 15, 2023 to those parties requesting electronic notification. These emails provided the same weblink leading to the Draft EIR; and WHEREAS, during the public review and comment period, the City received 54 letters from Resource Agencies, Trustee Agencies, and other interested parties. The City prepared a response to each comment letter received and prepared a Final Environmental Impact Report for the Project; and
WHEREAS, in accordance with the disclosure requirements of CEQA Guidelines Section 15072(9)(5), the Project site is not listed as a hazardous property as designated under Section 65962.5 of the Government Code; and
Ordinance No. 1619
April 14, 2026
Page2
826
WHEREAS, in accordance with Government Code Sections 65353, 65854, 65090, and 65091, on August 15, 2025 the City provided public notice by advertisement in the Record Gazette newspaper of a public hearing concerning the Project, and Notice of Intent (NOi) to recommend that the City Council adopt a Final Environmental Impact Report (FEIR) for the Project. The public hearing notice/NOi was also mailed to the owners of the subject properties within 300-feet of the Project boundary; and WHEREAS, in accordance with Government Code Sections 65353 and 65855, on September 10, 2025 the Planning Commission held the duly noticed public hearing at which interested persons had an opportunity to testify in support of, or opposition to the Project and at which time the Planning Commission considered the entirety of the Project and is recommending that the City Council approve the Project.
WHEREAS, in accordance with Government Code Sections 65353, 65854, 65090, and 65091, on October 10, 2025 the City provided notice by advertisement in the Record Gazette newspaper of a public hearing before the Planning Commission to consider the Project, and related environmental documentation. The notice was also mailed to the owners of properties within 300-feet of the Project boundary; and WHEREAS, in accordance with Government Code Sections 65353 and 65855, on November 5, 2025 the Planning Commission held the duly noticed public hearing at which interested persons had an opportunity to testify in support of, or opposition to the Project and at which time the Planning Commission considered the entirety of the Project; and WHEREAS, at the November 5, 2025, regular meeting, the Planning Commission voted 5-0 instructing staff to prepare a resolution making findings supporting a denial recommendation to the City Council of GPA 22-2502 and ZC 22-3502; and WHEREAS, atthe November 17, 2025, special meeting, the Planning Commission voted 3-2 adopting Resolution No. 2025-16 recommending the City Council deny General Plan Amendment 22-2502 and Zone Change 22-3502 with findings that are included in this Resolution; and
WHEREAS, a public notice for the January 28, 2026, City Council special meeting was published in accordance with State law and the Banning Municipal Code, and written notice was mailed to property owners within 300 feet of the project site; and WHEREAS, at the January 28, 2026 special meeting, the City Council of the City of Banning (the "City Council") held a public hearing, commenced deliberation and voted five in favor and none opposed to continue deliberation of the matter at a special meeting on February 26, 2026; and
WHEREAS, at the February 26, 2026, special meeting, the City Council voted unanimously 5-0 to continue the item to a regular meeting date of March 10, 2026; and WHEREAS, at the March 10, 2026, regular meeting, the item was not heard by the Ordinance No. 1619
April 14, 2026
827
City Council in the time allotted for the meeting, and therefore, the item was continued to the regular meeting date of March 24, 2026; and
WHEREAS, the City Council has reviewed the staff report, Planning Commission recommendation, environmental documentation, proposed general plan amendment and zone change, supporting materials, and public testimony and finds the project in conformance with the requirements of the Banning Municipal Code, the City's General Plan, and the Zoning Ordinance.
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. OFFICIAL ZONING MAP AMENDMENTS.
The City Council hereby approves ZC 22-2502, zoning land lying within the jurisdiction of the City and directs the Community Development Director to amend the City of Banning Official Zoning Map, as depicted in Exhibit A to this Ordinance and incorporated by this reference, to amend the zoning classifications of the Real Property legally described on Exhibit B-1 and Exhibit B-2 to this Ordinance, each incorporated by this reference, from Public Facilities - School (PF-S) to Very High Density Residential (VHDR), for the portion of the Property legally described on Exhibit B-1, comprising APNS 537-110-003 through -005, 537-110-011 through -014 is within the jurisdiction of the City.
SECTION 3. FINDINGS FOR APPROVAL OF ZC 22-2502.
BMC Section 17 .116.040 provides that upon receipt of the Planning Commission's recommendation, the City Council may approve, approve with modifications, or disapprove the proposed amendment based upon its findings. Amendments to the Zoning Ordinance shall be adopted by ordinance. Further, BMC Section 17 .116.050 provides that an amendment to the Zoning Ordinance may be adopted only if the following findings are made. The City Council hereby finds and determines as follows:
A. FINDING No. 1: The proposed Amendment is consistent with the goals and policies of the General Plan.
Findings of Fact: The Zone Change would implement the related General Plan amendment and is therefore consistent with the policies of the General Plan for the reasons discussed above.
B. FINDING No. 2: The proposed Amendment is internally consistent with the Zoning Ordinance.
Findings of Fact: The proposed Zone Change will transfer residential density from one project site to the subject site to accommodate a commercial/industrial development project. The proposed amendment will provide consistency with state housing law in that it ensures no net loss in the residential development capacity Ordinance No. 1619
April 14, 2026
Page4
828
identified in the City's General Plan, and the proposed density range is from 24 to 30 dwelling units per acre, consistent with the Zoning Ordinance and development standards for the Very High Density Residential zone.
C. FINDING No. 3: That the City Council has independently reviewed and considered the requirements of the California Environmental Quality Act.
Findings of Fact: A Programmatic Analysis for the MSJC entitlements is contained in Chapter 5 of the Sunset Crossroads Specific Plan FEIR, in accordance with the California Environmental Quality Act (CEQA). The City Council has conducted an independent review, and the City Council approves the project and programmatic EIR that has been prepared for the Project.
SECTION 5. SEVERABILITY.
If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Or<:linance, and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional.
SECTION 6. 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.
Ordinance No. 1619
April 14, 2026
829
SECTION 7. EFFECTIVE DATE.
This Ordinance shall take affect thirty (30) days after its second reading by City Council.
The City Clerk is directed to certify to the enactment of this Ordinance and to cause this Ordinance to be published and/or posted as required by law.
INTRODUCED AND READ for the first time and ordered posted at a special meeting of the City Council of the City of Banning, California, held on the 24th day of March 2026, by the following roll call vote:
AYES: Barrington, Miller, Royce, Wallace
NOES: Flynn
ABSENT:
ABSTAIN:
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of Banning, California, held on the 14th day of April 2026, by the following roll call vote:
AYES: bo.cr~ n~-tm, 1,,t':\\er, ~oyee, Wu\l.ctce
NOES: yl ljn f\
ABSENT:
ABSTAIN:
ATTEST:
iw li'.l &lcP.!u U0-)
Sandra Calderon, Deputy City Clerk
City of Banning
APPROVED AS TO FORM:
(~ a /.7aAJohn Pinkney, City Attorney
Slovak, Baron, Empey, Murphy & Pinkney, LLP
Ordinance No. 1619
April 14, 2026
Page6
Ric ~yde,Mayor
City of Banning
830
CERTIFICATION:
I, Sandra Calderon, Deputy City Clerk of the City of Banning, California, do hereby certify that Ordinance No. 1619 was duly introduced at a special meeting of the City Council of the City of Banning, held on the 24th day of March, 2026, and was duly adopted at a regular meeting of said City Council on the 14th day of April, 2026, by the following vote, to wit:
AYES: Barrington, Miller, Royce, Wallace
NOES: Flynn
ABSENT:None
ABSTAIN: None
Ordinance No. 1619
April 14, 2026
Sandra Calderon, Deputy City Clerk
City of Banning, California
831
Ordinance No. 1619
April 14, 2026
EXHIBIT A
General Plan/Zoning Map
832
PROJECT NUMBER:GPA 22-2502, ZC 22-3502
PROPOSED GENERAL PLAN/ZONING MAP
APN: 537-140-004, 537-140-006 THROUGH -012, 537-150-001, 537-150-003AND-004, 537-150-008
,,ooPROPOSED ZONE: Very High Density Residential (VHDR) ' , '", '", , ',',
County ?fSan Bernardino, .Ma>iar, Esri Com:mtJnity Map.s Contributor?, Loma Linda University, UC Rixe:side, Cou~ty of.Riversi~e, Cou,nty ~f San .Bernardino, Califorr,iasl~e Parks, © OpenStreetMap, Microsoft Esri Tom Tom Garmin SafeGra h GeoTechnolo les Inc METI NASA USGS Bureau of Land - ',., ' ~~,wa,~-
833
EXHIBIT “C”
834
ORDINANCE NO. 1620
AN ORDINANCE OF THE CITY OF BANNING, CALIFORNIA,
APPROVING A DEVELOPMENT AGREEMENT BY AND BETWEEN THE
CITY OF BANNING AND NP BANNING INDUSTRIAL, 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, NP Banning Industrial, LLC, a Missouri Limited Liability Corporation ("Owner") is proposing to develop a master planned project including industrial and commercial uses and various public facilities, including parkland and open space, with on-and off-site related improvements ("Project") on approximately 533.8 acres of real property located within the City of Banning and the County of Riverside, with approximately 253.7 acres of this real property located in unincorporated County of Riverside and the City's southerly sphere of influence. The property is comprised of assessor's parcel numbers (APNs): 537-110-003 through -005, 537-110-011 through - 014, 537-120-013, 537-120-025, and 537-120-028 through -036, and more specifically legally described in Exhibit A attached hereto and incorporated herein by this reference (hereinafter the "Property"); and
WHEREAS, the Property is, or will be made, subject to the following entitlements:
Resolution 2026-29, approving General Plan Amendment No. 20-2501 and Specific Plan No. 20-2002; Ordinance No. 1618 approving Zone Change 20-3502; and Resolution No. 2026-31 approving Tentative Parcel Map No. 38118 to reconsolidate all existing parcels of the Property into 34 parcels and five lettered lots; and Resolution No. 2026-28, certifying an Environmental Impact Report (EIR), SCH Number 2021020011, Adopting Findings and a Statement of Overriding Considerations, and Adopting a Mitigation Monitoring and Reporting Program (collectively "Entitlements"); and WHEREAS, concurrently with consideration of the Project, the City is considering General Plan Amendment (GPA) 22-2502, and Zone Change (ZC) 22-3502, to amend the existing land use designation on twelve parcels of land that are not a part of the Project Site of land from Public Facilities - School (PF-S) to Very High Density Residential (VHDR), and amending the Zoning District classification from Public Facilities - School (PF-S) to Very High Density Residential (VHDR) (collectively, "MSJC Entitlements"), for
40.9 acres of a 49.2-acre site located at the southeast corner of Westward and Sunset Avenues (APNs: 537-140-004, 537-140-006 through -012, 537-150-001, 537-150-003 and -004, 537-150-008, and 537-140-001 through -003 (collectively the "MSJC Site") to Ordinance No. 1620
March 10, 2026
835
ensure that approval of the Project will not result in a net loss of residential housing capacity; 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 as specifically provided in the Development Agreement, regardless of any changes to City policies, rules, and regulations after project approval; and WHEREAS, the Development Agreement is intended to 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, in compliance with Government Code Section 65854, the City Planning Commission provided notice and the City Planning Commission held a duly noticed public hearing on the Project at a special meeting on September 25, 2025, further considered the Project at a separately noticed continuation of such meeting on November 5, 2025 and at a continuation of that meeting to a special meeting on November 17, 2025 voted 3 in support and 2 opposed, passing a resolution recommending the City Council deny the Project applications. At the same special meeting, the Planning Commission voted 5 in support and none opposed, passing a resolution recommending the City Council deny the MSJC Entitlements; and
WHEREAS, the City prepared the Final EIR, including the Draft EIR (collectively, the "FEIR") and, pursuant to Public Resources Code section 21092.5, the City provided copies of the FEI R to all commenting agencies and persons requesting copies of the responses; and
Ordinance No. 1620
April 14, 2026
836
WHEREAS, at the January 28, 2026, special meeting, the City Council of the City of Banning (the "City Council") held a public hearing, commenced deliberation and voted five in favor and none opposed to continue deliberation of the matter at a special meeting on February 26, 2026; and
WHEREAS, at the on February 26, 2026, special meeting, the City Council voted unanimously 5-0 to continue the item to a regular meeting date of March 10, 2026; and WHEREAS, based on the foregoing recitals, City has determined that the Development 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, the Development 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, the City, as "Lead Agency" under the California Environmental Quality Act ("CEQA") and the CEQA Guidelines, has concurrently with adoption of this Ordinance pursuant to adoption of Resolution 2026-28, certified the FEIR as supplemented by the Supplemental CEQA Memorandum dated October 23, 2025, to address revisions to the Project and the Sunset Crossroads Project-Modified Project V2.1 Trip Generation Assessment dated February 20, 2026 to address further reductions in Project industrial square footage and related traffic impacts, each prepared by Urban Crossroads, Inc. (collectively "Supplemental CEQA Memoranda") and adopted Findings and Statement of Overriding Consideration and a Mitigation Monitoring and Reporting Program and determined that the FEIR as so supplemented sufficiently analyzes both the feasible Mitigation Measures necessary to avoid or substantially lessen the Project's potential environmental impacts and a range of feasible alternatives capable of eliminating or reducing these effects while feasibly attaining most of the basic objectives of the Project in accordance with CEQA and the State CEQA Guidelines and has determined that the "Project," as more fully described in the Development Agreement, has been fully analyzed per CEQA under the FEIR 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
Ordinance No. 1620
April 14, 2026
837
That the City Council hereby approves the Development Agreement by and between the City of Banning and NP BANNING INDUSTRIAL, LLC A Missouri Limited Liability Company ("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.
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.
Ordinance No. 1620
April 14, 2026
Page4
838
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.
INTRODUCED AND READ for the first time and ordered posted at a special meeting of the City Council of the City of Banning, California, held on the 10th day of March 2026, by the following roll call vote:
A YES: Barrington, Miller, Royce, Wallace
NOES: Flynn
ABSENT:
ABSTAIN:
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of Banning, California, held on the 14th day of April 2026, by the following roll call vote:
AYES: Bo.<f1C\Diori , H~ 1\e.r, Roy ce.1 l1tzHlctc.e
NOES: fl~ C\ I'"\
ABSENT:
ABSTAIN:
ATTEST:
Sandra Calderon, Deputy City Clerk
City of Banning
APPROVED AS TO FORM:
John Pinkney, City Attorney
Slovak, Baron, Empey, Murphy & Pinkney, LLP
Ordinance No. 1620
April 14, 2026
Pages
Rich ~oyce, Mayor
City of Banning
839
CERTIFICATION:
I, Sandra Calderon, Deputy City Clerk of the City of Banning, California, do hereby certify that Ordinance No. 1620 was duly introduced at a special meeting of the City Council of the City of Banning, held on the 10th day of February, 2026, and was duly adopted at a regular meeting of said City Council on the 14th day of April, 2026, by the following vote, to wit:
AYES: Barrington, Miller, Royce, Wallace
NOES: Flynn
ABSENT: None
ABSTAIN: None
Ordinance No. 1620
April 14, 2026
Sandra Calderon, Deputy City Clerk
City of Banning
840
EXHIBIT A
Legal Description
LEGAL DESCRIPTION OF THE NORTHERN PORTION OF THE PROPERTY AND
THE SLB EXTENSION
PARCEL A:
PARCELS 1 THROUGH 4, INCLUSIVE OF MAPS AND LETTERED LOTS A THROUGH J, INCLUSIVE, OF PARCEL MAP NO. 25541, IN THE CITY OF BANNING, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, ON FILE IN BOOK 166 PAGES 27 THROUGH 35, INCLUSIVE, OF PARCEL MAPS, RECORDS OF RIVERSIDE
COUNTY, CALIFORNIA
LEGAL DESCRIPTION OF THE SOUTHERN PORTION OF THE PROPERTY PARCEL B:
PARCELS 1 THROUGH 9 AND LETTERED LOTS "A" THROUGH "O", ALL INCLUSIVE OF PARCEL MAP 28971, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 198 PAGES 8 THROUGH 10
INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM PARCELS 3 AND 7, THOSE PORTIONS
CONVEYED TO THE CITY OF BANNING BY A DEED RECORDED JANUARY 15, 1998 AS INSTRUMENT NO. 015506 OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM PARCEL 3 ALL THAT PORTION CONVEYED TO THE CITY OF BANNING BY A DEED RECORDED MARCH 22, 2002 AS INSTRUMENT NO. 2002-146041.
PARCEL C:
PARCELS 1 AND 2 AND LETTERED LOTS A, B, AND C OF PARCEL MAP 13521, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 83, PAGES 13 THROUGH 15, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM THOSE PORTIONS CONVEYED TO THE CITY OF BANNING, A MUNICIPAL CORPORATION, BY DEED RECORDED JANUARY 15, 1998, AS INSTRUMENT NO. 98-015506, OFFICIAL RECORDS.
841
EXHIBIT B
Development Agreement
842
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RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL
TO:
CITY OF BANNING
99 EAST RAMSEY STREET
BANNING, CA 92220
ATTN: CITY CLERK
SPACE ABOVE THIS LINE FOR RECORDER’S USE
EXEMPT FROM RECORDING FEE PER GOVERNMENT CODE SECTION 6103
EXHIBIT B
843
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DEVELOPMENT AGREEMENT
NO. ___
A DEVELOPMENT AGREEMENT BETWEEN
CITY OF BANNING
AND
NP BANNING INDUSTRIAL, LLC
EXHIBIT B
844
TABLE OF CONTENTS
Page
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1. DEFINITIONS AND EXHIBITS.....................................................................................5
1.1 Definitions.............................................................................................................5
1.2 Exhibits...............................................................................................................13
2. GENERAL PROVISIONS .............................................................................................14
2.1 Binding Effect of Agreement..............................................................................14
2.2 Ownership of Property........................................................................................14
2.3 Term....................................................................................................................14
2.4 Transfer...............................................................................................................15
2.5 Amendment or Cancellation of Agreement ........................................................16
2.6 Termination.........................................................................................................17
2.7 Notices ................................................................................................................18
2.8 Estoppel Certificate.............................................................................................19
3. DEVELOPMENT OF THE PROPERTY.......................................................................20
3.1 Vested Rights to Develop ...................................................................................20
3.2 Effect of Agreement on Land Use Regulations..................................................20
3.3 Reservations of Authority...................................................................................21
3.4 Subsequent Development Review ......................................................................22
3.5 Timing and Phasing of Development .................................................................24
3.6 Changes and Amendments..................................................................................25
3.7 Regulation by Outside Agencies.........................................................................26
3.8 Public Works.......................................................................................................26
3.9 Provision of Real Property Interests by City ......................................................26
3.10 City Covenants....................................................................................................27
3.11 Retail Development Obligations.........................................................................28
3.12 Planning Area 2...................................................................................................28
3.13 Planning Area 4 Buffer.......................................................................................29
3.14 Modifications to the Project to Decrease Environmental Impacts......................29
4. ANNEXATION ..............................................................................................................30
4.1 Contemplated LAFCO Action ............................................................................30
4.2 Contemplated Action ..........................................................................................30
4.3 Cooperation of City.............................................................................................30
4.4 Development of Annexed Property ....................................................................30
5. PUBLIC BENEFITS, PUBLIC IMPROVEMENTS, AND DEVELOPMENT IMPACT FEES ...............................................................................................................30
5.1 Intent ...................................................................................................................30 845
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5.2 Public Benefit Fee...............................................................................................31
5.3 Owner Required Public Improvements...............................................................31
5.4 Sun Lakes Boulevard Extension .........................................................................32
5.6 Sunset Avenue Improvements ............................................................................35
5.7 Payment of “Fair Share” Share of Certain Roadway Improvements..................36
5.8 Land Reservation, Conveyance, and Dedication ................................................36
5.9 Electrical Substation ...........................................................................................37
5.10 Additional Public Benefits..................................................................................40
5.11 Development Fees...............................................................................................42
5.12 Fair Share Payments; Oversized Improvements; Fee Credits.............................43
5.13 Limits on Public Funds.......................................................................................44
6. FINANCING OF PUBLIC IMPROVEMENTS.............................................................44
6.1 Intent ...................................................................................................................44
6.2 Formation of Community Facilities Districts.....................................................44
6.3 City Council Approval........................................................................................45
6.4 City’s Reimbursement to Owner ........................................................................45
7. REVIEW FOR COMPLIANCE .....................................................................................46
7.1 Annual Review....................................................................................................46
7.2 Procedure ............................................................................................................46
7.3 Proceedings Upon Modification or Termination ................................................46
7.4 Hearing on Modification or Termination............................................................47
7.5 Certificate of Agreement Compliance ................................................................47
8. DEFAULT AND REMEDIES........................................................................................47
8.1 Remedies in General...........................................................................................47
8.2 Specific Performance ..........................................................................................48
8.3 General Release ..................................................................................................49
8.4 Termination or Modification of Agreement for Default of Owner.....................49
8.5 Termination of Agreement for Default of City...................................................49
8.6 Attorneys’ Fees...................................................................................................50
9. THIRD PARTY LITIGATION ......................................................................................50
10. MORTGAGEE PROTECTION .....................................................................................51
11. MISCELLANEOUS PROVISIONS...............................................................................52
11.1 Recordation of Agreement..................................................................................52
11.2 Entire Agreement................................................................................................53
11.3 Severability .........................................................................................................53
11.4 Preemption or Frustration of Agreement by Changes in Law ............................53
11.5 RESERVED........................................................................................................53 846
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11.6 Interpretation and Governing Law......................................................................53
11.7 Operating Memoranda ........................................................................................54
11.8 Section Headings ................................................................................................54
11.9 Gender and Number............................................................................................54
11.10 Rule Against Perpetuities....................................................................................54
11.11 Time of Essence..................................................................................................54
11.12 Waiver.................................................................................................................54
11.13 No Third-Party Beneficiaries..............................................................................55
11.14 Mutual Covenants...............................................................................................55
11.15 Successors in Interest..........................................................................................55
11.16 Counterparts........................................................................................................55
11.17 Jurisdiction and Venue........................................................................................55
11.18 Project as a Private Undertaking.........................................................................55
11.19 Further Actions and Instruments.........................................................................55
11.20 Eminent Domain .................................................................................................56
11.21 Agent for Service of Process...............................................................................56
11.22 Designation of City Officials..............................................................................56
11.23 Legally Binding Contract; Enforceability...........................................................56
11.24 Authority to Execute ...........................................................................................56 847
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EXHIBIT LIST
EXHIBIT “A-1” - LEGAL DESCRIPTION OF THE NORTHERN PORTION OF THE
PROPERTY AND THE SLB EXTENSION
EXHIBIT “A-2” - LEGAL DESCRIPTION OF THE SOUTHERN PORTION OF THE
PROPERTY
EXHIBIT “B” - MAP SHOWING PROPERTY AND ITS LOCATION
EXHIBIT “C” - EXISTING DEVELOPMENT APPROVALS
EXHIBIT “D” - EXISTING LAND USE REGULATIONS
EXHIBIT “E-1” - INITIAL PHASING PLAN
EXHIBIT “F” - PUBLIC IMPROVEMENTS
EXHIBIT “G-1” MODIFICATIONS TO PROJECT
EXHIBIT “G-2” DIF CREDIT AND REIMBURSEMENT AGREEMENT
EXHIBIT “H” - DEVELOPMENT FEES IN EFFECT AS OF EFFECTIVE DATE EXHIBIT “I” - FAIR SHARE PAYMENTS
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DEVELOPMENT AGREEMENT NO. __________
This Development Agreement (hereinafter “Agreement”) is entered into as of the Effective Date by and among the CITY OF BANNING (hereinafter “City”), and NP BANNING INDUSTRIAL, LLC, a Missouri limited liability company (hereinafter “Owner”). City and Owner are, collectively, the “Parties,” and individually, a “Party”. Initially capitalized terms used in this Agreement shall have the meanings set forth in Section 1.1 below.
RECITALS
1. City is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Article 11, Section 7 of the California Constitution and Section 65864, et seq. (“Development Agreement Law”) of the California Government Code (“Government Code”).
2. City has adopted Procedures and Requirements of the City of Banning For the Consideration of Development Agreements (“Procedures and Requirements”), pursuant to Section 65865 of the Government Code.
3. Owner is the owner of real property comprised of approximately 533.8 acres of land. The Property is divided for purposes of this Agreement into the northerly portion, comprising approximately 280.1 acres (“Northern Portion of the Property”) located in the City, an additional approximately 8.52 acres of real property owned by Owner but subject to a public right of way easement in favor of the City for the future extension of Sun Lakes Boulevard (“SLB Extension”) and the southerly portion, comprising approximately 253.7 acres (“Southern Portion of the Property”), located in unincorporated Riverside County (“County”) within the Sphere of Influence of the City (“SOI”). The SLB Extension is subject to this Agreement but is not addressed by the Specific Plan. The Northern Portion of the Property, the SLB Extension, and the Southern Portion of the Property are collectively referred to herein as the “Property”. The Northern Portion of the Property and the SLB Extension is described in Exhibit “A-1” to this Agreement, the Southern Portion of the Property is described in Exhibit “A-2” to this Agreement, and the Property is depicted in Exhibit “B” to this Agreement.
4. Owner has filed, or will be filing, and is seeking the approval of an annexation application pertaining to the Southern Portion of the Property (“Annexation Application”) through the Local Agency Formation Commission for Riverside County (“LAFCO”) pursuant to the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000, Government Code Section 56000 et seq. LAFCO is processing the Annexation Application concurrently with City’s consideration of this Agreement and various land use entitlements detailed below.
5. The Parties acknowledge and agree that this Agreement shall be operative on the Northern Portion of the Property and the SLB Extension upon the Effective Date, and as established under the Development Agreement Law, this Agreement shall be operative on the Southern Portion of the Property upon approval of the Annexation Application.
6. Owner is proposing to develop and facilitate the future development on the Property of a project currently titled Sunset Crossroads, which is intended to include up to 223,753 square feet of commercial uses, and an approximately 125 room hotel on the Northern Portion of the 849
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Property; (b) up to 4,749,000 square feet of industrial land uses within a 396.5-acre portion of the Property; (c) related signage; (d) and land for Open Space-Resources, and Open Space-Parks; and (e) circulation features, all as further set forth in the Specific Plan as modified by this Agreement.
7. Owner has initiated an application to City for this Agreement, and certain related land use entitlements and development rights (collectively, “Existing Development Approvals”, and listed in Exhibit “C” to this Agreement), which were approved by City, specifically: (a) a General Plan Amendment, designated (GPA 20-2501) by City, changing the General Plan land use designation of the Property to the land uses identified on the General Plan Land Use Map attached as Exhibit “B” (“GPA”), (b) a Specific Plan (designated SP 20-2002) , by City, (c) a Zone Change (designated ZC 20-3502), (d) a tentative parcel map (designated TPM 38118), (e) a Tax Sharing and Reimbursement Agreement and (f) an Environmental Impact Report (designated EA 20-1506) by City, inclusive of the EIR, incorporating a mitigation monitoring and reporting program (“MMRP”) and conforming to the specifications of the California Environmental Quality Act California Public Resources Code § 21000 et seq., and the CEQA guidelines, Title 14 of the California Code of Regulations, chapter 3, § 15000 et seq. (collectively, “CEQA”).
8. Owner has requested City to enter into a development agreement and proceedings have been taken in accordance with the Procedures and Requirements of City.
9. By electing to enter into this Agreement, City shall bind current and future Councils of City (“City Council”) by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of City.
10. The terms and conditions of this Agreement have undergone extensive review by City and the City Council and have been found to be fair, just, and reasonable.
11. The best interests of the citizens of the City and the public health, safety and welfare will be served by entering into this Agreement.
12. All of the procedures of CEQA have been met with respect to the Project and the Agreement.
13. This Agreement and the Project are consistent with the City General Plan, the City of Banning Municipal Code and the Specific Plan.
14. All actions taken, and approvals given by City have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and
15. This Agreement will confer substantial private benefits on Owner by granting vested rights to develop the Property in accordance with the provisions of this Agreement.
16. City has determined that development of the Property in accordance with this Agreement and Owner’s participation in the implementation of the Specific Plan and provision of the Public Improvements will result in a number of public benefits will provide substantial benefits to City and will further important policies and goals of the City. 850
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17. This Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Sections 65864, et seq. of the Government Code (“Development Agreement Law”) are intended.
18. Owner 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 Property in accordance with this Agreement.
19. The development of the Project and the Public Improvements and other Public Benefits require a substantial early investment of money and planning and design effort by Owner.
Without the protection provided by this Agreement, uncertainty that the Project may be completed in its entirety could result in a waste of public resources, escalate the cost of public improvements, and discourage Owner’s provision of the Public Benefits specified in this Agreement. Owner’s participation in the implementation of Project will result in a number of public benefits. These benefits require the cooperation and participation of City and Owner and could not be secured without mutual cooperation in and commitment to the comprehensive planning effort that has resulted in the Specific Plan and other development approvals adopted concurrently with this Agreement.
20. Owner wishes to avoid certain development risks and uncertainties that would, in the absence of this Agreement, deter and discourage Owner from making a commitment to implement the Project. The following assurances are of vital concern to Owner to offset or remove the disincentives and uncertainties:
a. Assurance to Owner that, in return for Owner’s commitment to the development of the Property, City will in turn remain committed to development of the Project in accordance with the Development Plan and the terms of this Agreement and subject to the Reservations of Authority.
b. Assurances to Owner that as Owner becomes obligated for the costs of designing and constructing the public and private improvements described in the Project Approvals, and to make dedications, Owner will become entitled to rely upon the vested rights conferred by this Agreement in the development of the Property; and c. Assurances to Owner that in City’s administration of the Development Plan, Owner will be allowed, consistent with the Specific Plan, to develop the types and intensities of use identified in the Specific Plan.
21. The Parties agree that the consideration to be received by City pursuant to this Agreement and the rights secured to Owner hereunder constitute sufficient consideration to support the mutual and respective covenants and agreements of the Parties. By entering into this Agreement, City desires to vest in Owner certain rights and approvals as specified in this Agreement.
22. This Agreement provides assurances that the public benefits identified below will be achieved in accordance with the terms of this Agreement. Developer is willing, pursuant to the 851
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terms of this Agreement, to make expenditures and provide benefits to the City including, without limitation, construction of improvements in a manner that benefits a wider area, and mitigates impacts resulting in part from certain existing conditions and cumulative development in addition to those impacts caused by the Project, thus conferring a public benefit on the City. The Project will provide local and regional public benefits to the City, including, without limitation:
a. Increased real property taxes, sales taxes, transit occupancy taxes and other revenues to the City.
b. Provision of public facilities, including the construction of the Sunset Avenue Improvements. The Sunset Avenue Improvements are depicted in Exhibit “F”. c. Provision of a Public Benefit Fee, an Accelerated Transportation DIF Payment to facilitate the construction of the SLB Extension, and a Service Special Tax. d. Provision of $3 million of the Public Benefit Fee, regardless of whether the Project is developed.
e. Provision of funding for a Banning Electric Utility Substation. f. Provision of $16,000,000 for a possible future fire station to be considered by the City pursuant to Section 5.10.4.
g. Provision of $1,000,000 for a new fire ladder truck or other fire suppression equipment.
h. Provision of $750,000 for City downtown beautification/small business assistance.
i. Provision of $500,000 for a City animal shelter.
j. Dedication of property to the City as a site for a possible future fire station, a water tank, electrical substation and a reverse osmosis facility. k. Establishment of a job fair to benefit City residents, and a requirement that all leases include language requiring lessees to provide two weeks’ advance notice to City residents when new lessees are hiring employees.
l. Setting aside approximately 53 acres for Open Space Resource Land and approximately 5 acres for parks and recreational facilities (“Park”). m. Construction of the Park facilities, as specified in the Specific Plan (“Specific Plan Park Facilities”) and maintenance of the Park. n. Provision of both construction jobs and permanent jobs. 852
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o. Provision of approximately $71,000,000 in City Development Impact Fees (“DIF”), TUMF and MSHCP impact fees and school fees, before the DIF transportation reduction specified herein.
p. Modifications to the Project analyzed in the EIR that are consistent with the Specific Plan to provide further buffer to certain nearby residential properties.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following terms when used in this Agreement shall be defined as follows unless another meaning is clearly intended in the context in which it appears:
“Accelerated Transportation DIF Payment” has the meaning set forth in Section 5.5.1. “Additional Park Facilities” has the meaning set forth in Section 5.10.3. “Agreement” means this Development Agreement.
“Annexation” has the meaning set forth in Section 4.1.
“Annexation Application” has the meaning set forth in Recital 4. “Annexation Date” has the meaning set forth in Section 2.3.1. “Annexation Deadline” has the meaning set forth in Section 2.3.1 “Annual Escalation Factor” has the meaning set forth in Section 6.2.2(c). “Authorized Facilities and Fees” means facilities authorized under the Mello-Roos Act including, without exception, public streets and other related improvements, including grading, paving, curbs and gutters, sidewalks, street signalization and signage, street lights and parkway and landscaping related thereto, water facilities, storm drain facilities, sewer facilities, public parks, open space and landscaping, electrical facilities, any fees (cash contribution) paid by Owner pursuant to the Project’s conditions of approval or this Agreement or which is included in any City capital improvement fee program, to finance public facilities to be constructed and owned by City, subject to credit against the corresponding fee.
“Authorized Services” has the meaning set forth in Section 6.2.1. “Banning Electric Final Contribution” has the meaning set forth in Section 5.9.3. “Banning Electric Initial Contribution” has the meaning set forth in Section 5.9.1. 853
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“Base Year” means the Fiscal Year prior to the effective date of the ordinance approving this Agreement.
“Benefitted Properties” has the meaning set forth in Section 5.12.1 “CEQA” means the California Environmental Quality Act.
“CFD” means a community facilities district formed pursuant to the Mello-Roos Act by the City as described in section 6.2.1.
“CFD Bonds” means one or more series of bonds (including refunding bonds) issued by the CFD secured by the levy of special taxes levied against taxable parcels within the boundaries of the Property, the proceeds of which reimburse the Owner for Authorized Facilities and Fees.
“Certificate” has the meaning set forth in Section 7.5. “City” means the City of Banning, a political subdivision of the State of California. “City Council” means the current and future councils of City. “City Expenditures” has the meaning set forth in Section 2.6. “City Grant” has the meaning set forth in Section 5.9.6. “City Manager” means the current and future city manager for the City. “City Ordinance” means the Ordinance adopted by the City Council approving this Agreement.
“City Substation Payment” has the meaning set forth in Section 5.9.3. “Conveyance Documents” has the meaning set forth in Section 5.9.3(a). “County” means County of Riverside.
“CSCDA” has the meaning set forth in Section 6.2.1.
“Default” has the meaning set forth in Section 8.4.
“Design Review” has the meaning set forth in the Specific Plan. “Development” means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. When authorized by a Subsequent Development Approval as provided by this Agreement, “development” includes the maintenance, repair, 854
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reconstruction, or redevelopment of any building, structure, improvement, or facility after the construction and completion thereof.
“Development Agreement Law” as defined in Section 7 of the California Constitution and Section 65864, et seq. of the Government Code.
“Development Approvals” means all discretionary and ministerial permits and other entitlements authorizing the development and use of the Project and which have been requested by Owner and approved by the City including, but not limited to the Existing Development Approvals and the following and any amendments thereto:
(1) General Plan Amendments
(2) Specific Plan
(3) Zoning Code Amendments
(4) Sign Program
(5) Tentative and Final Subdivision and Parcel Maps
(6) Lot line adjustments
(7) Minor Modifications to Specific Plan
(8) Variances
(9) Conditional use permits
(10) Design Review approvals
(11) Reimbursement Agreement
(12) DIF Credit and Reimbursement Agreement
(13) Grading and building permits
(14) Electrical and Misc. Permits
(15) Sign Permits
(16) Occupancy Permits
(17) Tenant Permits
“Development Exactions” means any requirement of City in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of Development Fees in 855
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order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests.
“Development Fees” or “DIF” means any monetary exactions, other than Processing Fees, charged by City or local agencies under City’s control to applicants in connection with approval of development projects for the purpose of defraying all or a portion of the cost of public improvements, public services or community amenities related to the Project or the Property.
“Development Limitation” has the meaning set forth in Section 2.3.2. “Development Plan” means the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property. “DIF Vesting” has the meaning set forth in Section 5.11. “DIF Vesting End Date” has the meaning set forth in Section 5.11. “Effective Date” means the later of (i) the date the City Ordinance approving this Agreement becomes effective; or (ii) the date the Agreement is recorded in the County Recorder’s Office.
“Engineer’s Estimate” has the meaning set forth in Section 5.9.2. “EIR” means Environmental Impact Report, State Clearinghouse No. 2021020011, addressing the impacts of the Project, certified by the City in accordance with the requirements of CEQA and includes, without limitation, the Draft EIR, the Final EIR and all technical appendices, as the EIR has been supplemented as described in City Resolution 2026-28 certifying the EIR.
“Electric DIF Obligation” has the meaning set forth in Section 5.9.3. “Electrical Property” has the meaning set forth in Section 5.8.3. “Existing Development Approvals” means all Development Approvals approved or issued prior to the Effective Date. Existing Development Approvals includes the list of Existing Development Approvals incorporated herein as Exhibit “C” and all other Development Approvals which are a matter of public record on the Effective Date or the finalization of which is contingent only upon this Development Agreement becoming effective. “Existing Land Use Regulations” means all Land Use Regulations in effect on the Effective Date and includes the Land Use Regulations incorporated herein as Exhibit “D” and all other Land Use Regulations which are a matter of public record on the Effective Date, as the same may have been modified or superseded pursuant to the Existing Development Approvals or this Agreement.
“Fair Share” shall have the meaning set forth in Section 5.12.2. 856
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“Fire Equipment Payment” shall have the meaning set forth in Section 5.10.5. “Fire Station Payment” shall have the meaning set forth in Section 5.10.4. “Fire Station Property” shall have the meaning set forth in Section 5.8.1. “Fiscal Year” means the period beginning on July 1 of each year and ending on the next succeeding June 30.
“Fueling Facility” has the meaning set forth in the Specific Plan. “Government Code” means the California Government Code. “GPA” has the meaning set forth in the Recitals hereto. “Gross Tax Increment Revenue” shall mean, with respect to the Property, one hundred percent (100%) of the ad valorem tax revenue the City receives from the County with respect to the Incremental Assessed Property Value of the Property for any given Fiscal Year.
“Incremental Assessed Property Value” means, in any Fiscal Year, the difference between the assessed value of the Property and the assessed value of the Property in the Base Year, to the extent that the difference is a positive number. “Industrial Property” has the meaning set forth in Section 6.2.2(b). “Initial Phasing Plan” means the phasing plan set forth on Exhibit “E-1”. “LAFCO” means the Local Agency Formation Commission for Riverside County. “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and official policies of City governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings and structures, Development Exactions, 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 property. “Land Use Regulations” does not include any City ordinance, resolution, code, rule, regulation, or official policy, governing:
(1) The conduct of businesses, professions, and occupations; (2) Taxes and assessments;
(3) The control and abatement of nuisances;
(4) The granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; (5) The exercise of the power of eminent domain.
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“Maximum Reimbursement Payment” has the meaning set forth in Section 6.4. “MARA Agreement” has the meaning set forth in Section 5.4. “Mello-Roos Act” means the Mello-Roos Community Facilities Act of 1982 (Cal. Gov’t Code §§ 53311-53368), as amended from time to time.
“MMRP” means a mitigation monitoring and reporting program, as more fully described in the Recitals hereto.
“Mortgage” means any mortgage, deed of trust, sale and leaseback arrangement (in which the Property, or a portion thereof or an interest therein is sold by Owner and leased back concurrently therewith, which arrangement is subject to no prior contractual encumbrances securing payment of money), or other transaction in which the Property, or a portion thereof or an interest therein is pledged as security contracted in good faith and for fair value.
“Mortgagee” means the holder or beneficiary of any Mortgage covering all or part of the Property or any successor and assignee of any such Mortgage holder or beneficiary. “Non-DIF Sunset Improvements” has the meaning set forth in Section 5.6. “Northern Portion of the Property” has the meaning set forth in Recital 3. “Offsite Interests” has the meaning set forth in Section 3.9. “Operating Memoranda” has the meaning set forth in Section 11.7. “Outside Agencies” has the meaning set forth in Section 3.7. “Outside Agency” has the meaning set forth in Section 3.7. “Oversized Improvements” shall mean any Public Improvement with respect to which the Parties agree that Owner’s direct or indirect financial contribution exceeds the cost of the Improvement or portion thereof reasonably attributable to the Project or phase thereof, as depicted in Exhibit “F”.
“Owner” means the persons and entities listed as Owner on the first page of this Agreement and their successors in interest to all or any part of the Property. “Owner’s Costs” has the meaning set forth in Section 5.5.2(d)(iii). “Owner’s Deficit” has the meaning set forth in Section 5.5.2(d)(iii). “Owner’s Offset” has the meaning set forth in Section 5.5.2(d)(iii). “Owner’s Plan” has the meaning set forth in Section 5.5.2(b). “Park” has the meaning set forth in Recital 22.l.
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“Permitted Uses” has the meaning set forth in Section 3.4.3. “Phasing Plan” has the meaning set forth in Section 3.5.2. “Procedures and Requirements” means the Procedures and Requirements of the City of Banning For the Consideration of Development Agreements. “Processing Fees” has the meaning set forth in Section 3.3.1. “Project” means the development of the Property contemplated by the Development Plan as the same may be further defined, enhanced, or modified pursuant to the provisions of this Agreement.
“Property” means the real property described on Exhibits “A-1” and “A-2.” “Public Benefit Fee” has the meaning set forth in Section 5.2. “Public Benefits” means the Public Improvements constructed by Owner pursuant to this Agreement, including the Oversized Improvements (subject to the right of Owner for reimbursement and/or fee credit as described in this Agreement), the payment of Owner’s Fair Share of Public Improvements and the additional matters described as public benefits in Section 5.
“Public Improvements” has the meaning set forth in Section 5.3. “Public Maintenance and Access Easements” has the meaning set forth in Section 5.4. “Reduced Tolling Obligations” has the meaning set forth in Section 2.3. “Regulatory Change” has the meaning set forth in Section 3.2. “Retail Plan” has the meaning set forth in Section 3.11. “Retail Date” has the meaning set forth in Section 3.11. “Retail Threshold” has the meaning set forth in Section 3.11. “Reimbursement Payment” has the meaning set forth in Section 6.4. “RCA” means the Regional Conservation Authority.
“RCTC” means the Riverside County Transportation Commission. “RMA” has the meaning set forth in Section 6.2.2.
“Reservations of Authority” means the rights and authority reserved to City under Section 3.6 of this Agreement and not a part of the assurances and rights provided to Owner under this Agreement.
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“RO Property” has the meaning set forth in Section 5.8.4. “Sales Tax Revenue” means the City’s share of annual State sales tax revenue received from the State and/or County attributable to the Property. “Service Special Tax” has the meaning set forth in Section 6.2.2(b). “SLB Estimated Completion Date” has the meaning set forth in Section 5.5.2(a). “SLB Extension” has the meaning set forth in Recital 3, as depicted in Exhibit “F”. “SLB Extension Completion Date” has the meaning set forth in Section 5.5. “SOI” has the meaning set forth in Recital 3.
“Southern Portion of the Property” has the meaning set forth in Recital 3. “Specific Plan” means the Sunset Crossroads Specific Plan (Specific Plan No. 20- 20000002) as the same may be amended or modified from time to time consistent with the requirements of this Agreement.
“Specific Plan Park Facilities” has the meaning set forth in Recital 22.m. “Subsequent Installment” has the meaning set forth in Section 5.2.2. “Substation” has the meaning set forth in Section 5.9.1. “Substation Clearances” has the meaning set forth in Section 5.9.1. “Substation Costs” has the meaning set forth in Section 5.9.1. “Substation Excess Cost Documentation” has the meaning set forth in Section 5.9.3. “Substation Fair Share Percentage” has the meaning set forth in Section 5.9.3(b). “Substation Funding Date” has the meaning set forth in Section 5.9.3. “Substation Reimbursement” has the meaning set forth in Section 5.9.3(b) “Subdivision Map” means any parcel map or tract map approved by the City pursuant to the Subdivision Map Act, including without limitation Parcel Map No. _________. “Subdivision Map Act” means Government Code Section 66410, et seq. “Subsequent Development Approvals” means all Development Approvals approved after the Effective Date in connection with development of the Property that are adopted in accordance with the Development Plan or in accordance with Subsequent Land Use Regulations adopted consistent with the requirements of this Agreement, including the Reservation of Authority, but specifically excluding the Existing Development Approvals. 860
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“Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement that are adopted in accordance with the Development Plan and the requirements of this Agreement, including the Reservation of Authority.
“Sunset Avenue Improvements” has the meaning set forth in Section 5.6, as depicted in Exhibit “F”.
“Term” has the meaning set forth in Section 2.3.1.
“Third Party Fair Share Payments” has the meaning set forth in Section 5.6. “Tolling Period” has the meaning set forth in Section 2.3. “Transfer” means sale, assignment, lease, sublease, or any other transfer of a legal or equitable interest in the Property.
“Travel Center Retail Uses” has the meaning set forth in the Specific Plan. “TUMF Agreement” has the meaning set forth in Section 5.5.2(d)(ii). “Water Tank Property” has the meaning set forth in Section 5.8.2. “WRCOG” means the Western Riverside Council of Governments.
1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:
Exhibit “A-1” Legal Description of the Northern Portion of the Property and the SLB Extension
Exhibit “A-2” Legal Description of the Southern Portion of the Property Exhibit “B” Map Showing Property and Its Location
Exhibit “C” Existing Development Approvals
Exhibit “D” Existing Land Use Regulations
Exhibit “E-1” Initial Phasing Plan
Exhibit “F” Public Improvements
Exhibit “G-1” Modifications to Project
Exhibit “G-2” DIF Credit and Reimbursement Agreement
Exhibit “H” Development Fees in Effect as of Effective Date 861
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Exhibit “I” Fair Share Payments
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Agreement.
2.2 Ownership of Property. Each Owner represents and covenants that it is the owner of a legal or equitable interest in the Property or a portion thereof.
2.3 Term.
2.3.1 Commencement. For the Northern Portion of the Property and the SLB Extension, the term of this Agreement shall commence on the Effective Date. For the Southern Portion of the Property, this Agreement shall become operative on the recordation date of the LAFCO Certificate of Completion. (“Annexation Date”). This Agreement shall remain in effect for thirty (30) years from the Effective Date unless this term is modified or extended pursuant to the provisions of this Agreement (“Term”). The Annexation Date shall be no later than June 15, 2030 or such subsequent date as may be determined based upon intervening Development Limitations as that term is defined below in Section 2.3.2 or the Parties’ written agreement to extend this time period (“Annexation Deadline”). In the event that either the Annexation or another successor annexation effort relative to the Southern Portion of the Property is not complete by the Annexation Deadline, either Party may terminate this Agreement as a matter of right upon written notice to the other per Section 2.7 below. Notwithstanding the foregoing, the provisions of Sections 5.2, 5.4, 5.5, 5.6 and 6.4 shall survive the expiration or the termination of this Agreement.
2.3.2 Extensions for Development Limitations. Notwithstanding the Parties’ expectation that there will be no limit or moratorium upon the Project’s development or the issuance of any Development Approvals, building or other development related permits (“Development Limitation”) during the Term, the Parties understand and agree that various third Parties may take action causing a de facto Development Limitation. Such third party actions include the filing of litigation challenging the City’s issuance of any Development Approval, including this Agreement and the following potential Development Limitations. Consequently, the Term, all Development Approvals and all obligations imposed pursuant to this Agreement shall be extended day for day for any delay caused by any of the following potential Development Limitations for a time equal to the duration of that delay occurring during the Term as further provided below:
(a) floods, earthquakes, other Acts of God, fires, moratoria enacted by governmental entities or agencies, including Owner’s inability to obtain any kind of utility service to serve the Project, litigation challenging this Agreement or any Development Approvals, injunctions issued by any court of competent jurisdiction applicable to this Agreement or the Development Approvals, acts of the public enemy, wars, riots or similar hostilities; epidemics, quarantine, pandemics or other national, state, or local mass medical emergencies, restrictions; freight embargoes, lack of transportation, unusually severe weather, inability to secure or delays in 862
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securing labor, fuels, materials, services or tools, delays due to the existence or remediation of hazardous materials, acts of God, riots, war or acts of terrorism; (b) Strikes or other labor problems, or delays of any contractor, subcontractor or supplier;
(c) Any national, state, county or local state of emergency declared by a duly authorized public official;
(d) Any delays resulting from the unreasonable delay or failure of a governmental agency or entity, excluding the City, to perform any act or to issue any permit or approval necessary for the Project where such delay or failure is beyond the reasonable control of the Owner and not caused by any act or omission of the Owner;
Each Party shall promptly notify the other Party to this Agreement upon learning of any Development Limitation. If any Party to this Agreement is prevented (the filing of a lawsuit by a third party attacking this Agreement or the Development Approvals is deemed to prevent any Party from performing its obligations under this Agreement or the Development Approvals) by any Development Limitation from performing its obligations under this Agreement, then on the condition that the Party claiming a Development Limitation (i) did not cause said event(s) and (ii) said event(s) was beyond said Party’s reasonable control, the time for performance by said Party of the applicable obligations under this Agreement shall be extended day for day by a number of days equal to the number of days of that said Development Limitation continued in effect or by the number of days it takes to repair or restore the damage caused by the Development Limitation to the condition which existed prior to the occurrence, whichever is longer, or longer as the Parties may mutually agree (“Tolling Period”). Regarding the applicable time periods of Owner’s satisfaction of obligations under Sections 3.11 (Retail Development Obligations), 5.2.1 and 5.2.2 (Public Benefit Fee), 5.5.1 (Accelerated Transportation DIF Payment), 5.8.1 (Fire Station Property), 5.8.2 (Water Tank Property), 5.8.3 (Electrical Property), 5.8.4 (RO Property), 5.9.1 (Banning Electric Initial Contribution), 5.9.3(Substation Funding Date), 5.10.2 (Open Space Dedication), 5.10.3 (Park Dedication) 5.10.4 (initial Fire Station Payment), and 5.10.6 (City Grant) (collectively, “Reduced Tolling Obligations”), when such Development Limitation terminates, all of the Reduced Tolling Obligations’ respective time periods for satisfaction shall be extended only ten (10) business days after the Development Limitation terminates.
2.4 Transfer.
2.4.1 Right to Transfer. Owner shall have the right to transfer the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act) to any person, partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such, transfer shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following conditions precedent:
(a) No transfer of any right or interest under this Agreement shall be made unless made together with the transfer of all or a part of the Property. 863
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(b) Concurrent with any such transfer, or within thirty (30) days thereafter, Owner shall notify City, in writing, of such transfer and shall provide City with an executed agreement by the transferee providing therein that the transferee expressly and unconditionally assumes all the duties and obligations of Owner under this Agreement with respect to the portion of the Property so transferred.
(c) Notwithstanding the failure of any transferee to execute the agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such transferee, but the benefits of this Agreement shall not inure to such transferee until and unless such agreement is executed.
2.4.2 Release of Transferring Owner.
(a) Notwithstanding any transfer, a transferring Owner shall continue to be obligated under this Agreement until the full satisfaction by such transferring Owner of the following conditions and upon such satisfaction shall be released from the obligations under this Agreement: (i) Owner no longer has a legal or equitable interest in all or any part of the Property; (ii) Owner is not then in default under this Agreement; (iii) Owner has provided City with the notice and executed agreement required under Section 2.4.1(b) above; and (iv) The transferee provides City with security equivalent in all respects to any security previously provided by Owner to secure performance of its obligations hereunder. If City previously had not required the posting of security, then City shall not require the transferee to provide such security.
(b) If requested by transferring Owner, the City shall promptly memorialize such release in writing upon satisfaction of the foregoing conditions.
A default under this Agreement by Owner 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 property shall not be considered or acted upon by the City as a default by Owner and shall not affect Owner’s rights and obligations hereunder.
2.4.3 Subsequent Transfer. Any subsequent transfer after an initial transfer shall be made only in accordance with and subject to the terms and conditions of Section 2.4.
2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or cancelled in whole or in part only by written consent of all Parties in the manner provided for in Government Code Section 65868 or 65865.1. This provision shall not limit any remedy of City or Owner as provided by this Agreement. In the case of amendments affecting portions of the Property, only the consent of the owner of such portion of the Property shall be required so long as the amendment does not diminish the rights appurtenant to or increase the burdens upon any other portion of the Property. Any Subsequent Land Use Approval pursuant to this Agreement and any amendment of the Land Use Regulations including to the General Plan, the Specific Plan or City’s zoning ordinance, shall not require amendment of this Agreement. Instead, any such 864
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amendment shall be deemed to be incorporated into this Agreement at the time that such amendment is approved by the City Council.
2.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in Section 2.3.
(b) Entry of a final judgment by a court of competent jurisdiction setting aside, voiding or annulling the adoption of the ordinance approving this Agreement, provided the time for filing any return to writ has also expired. (c) The adoption of a referendum measure overriding or repealing the City Ordinance.
(d) Owner’s election to terminate this Agreement. It is understood that the majority of the industrial development allowed by the Development Approvals is located on land that must be annexed to the City with the approval of LAFCO.
Therefore, if LAFCO denies the Annexation of the Property not due to the acts or omissions of Owner, Owner may elect, in its sole and absolute discretion, not to develop the Property in accordance with the Development Approvals and terminate this Agreement and the Development Approvals prior to the issuance of a grading permit for the industrial development. In such a situation, Owner shall provide notice of said election to terminate this Agreement and the Development Approvals to the City, and this Agreement and the Development Approvals shall be terminated. The Parties, if they mutually agree, may enter into a meet and confer process to determine if any of the Development Approvals within the boundaries of the City should be retained and not terminated. Following receipt of Owner’s notice of election to terminate this Agreement and Development Approvals, Owner and City shall execute an appropriate instrument in recordable form evidencing such termination of this Agreement and the Development Approvals as provided in the preceding sentence. In the event that City has received any monetary payments from Owner under Section 5.5.1 (Accelerated DIF), 5.9.1 (Electrical Substation),
5.10.4 (Fire Station) or 5.10.6 (City Grant) prior to Owner’s termination under this Section 2.6(d), it shall return such payments to Owner within thirty (30) days from receipt of Owner’s election to terminate this Agreement and the Development Approvals, less the amount of any reasonable expenditures made by City for their intended purpose (“City Expenditures”), including, but not limited to, design or construction fees for the fire station (5.10.4) (and fire equipment purchases (5.10.5)), the electric Substation, (5.9) Fair Share payments for roadway improvements (5.7) Animal Shelter Grant (5.10.8) incurred prior to such termination, and provided further that the amount of Three Million Dollars ($3,000,000) provided for in Section 5.2.1 (First Installment, Public Benefit Fee) and the amounts under 3.11 (Retail Development Obligations) and 5.2.2 (Subsequent Installments, Public Benefit Fee), shall not be subject to termination, reimbursement or repayment under any circumstances. In order for the City to be 865
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eligible to any offset due to the incurrence of City Expenditures, City is required to provide documentation to Owner of all City Expenditures actually paid by City. In addition, upon City’s receipt from Owner of Owner’s notice of election to terminate this Agreement and Development Approvals, City shall cease the incurrence of further City Expenditures. Any construction completed by Owner prior to such termination shall be subject to applicable DIF (as may be deducted from DIF paid under 5.5.1). Further, it is understood that City does not collect TUMF and MSHCP and that Owner will be solely responsible to recover any such amounts from WRCOG and RCA, as applicable, with no liability to City whatsoever. (e) Upon the termination of this Agreement, no Party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Agreement.
2.7 Notices.
2.7.1 As used in this Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment, or other communication required or permitted hereunder: (a) when hand delivered to the other Party; (b) five (5) days after such notice has been sent by United States mail via certified mail, return receipt requested, postage prepaid, and addressed to the other Party as set forth below; or (c) two (2) days after such notice has been deposited with a national overnight delivery service reasonably approved by the Parties (Federal Express, United Parcel Service and U.S. Postal Service are deemed approved by the Parties), postage prepaid, addressed to the Party to whom notice is being sent as set forth with next Business-Day delivery guaranteed, or (d) on the date of delivery shown in the email records of the Party sending the email, provided that the sending Party either receives a confirmation of delivery from the persons to whom the email is addressed or follows the provisions for notice set forth in clauses (a), (b) or (c) within two (2) days following email transmittal.
2.7.2 Unless otherwise provided in writing, all notices hereunder shall be addressed as follows:
If to City:
City Clerk
City of Banning
99 East Ramsey Street
Banning, CA 92220
with copies to:
City Manager
City of Banning
866
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99 East Ramsey Street
Banning, CA 92220
and to:
Community Development Director
City of Banning
99 East Ramsey Street
Banning, CA 92220
And to:
City Attorney
City of Banning
99 East Ramsey Street
Banning, CA 92220
If to Owner:
NP Banning Industrial, LLC
Attn: Nathaniel Hagedorn
3315 N. Oak Trafficway
Kansas City, MO 64116
Email: [email protected]
with copies to:
John C. Condas, Esq.
Allen Matkins Leck Gamble Mallory & Natsis LLP
2010 Main Street, Suite 800
Irvine, CA 92614
email: [email protected]
and to:
NorthPoint Development, LLC
Attn: Asst. General Counsel
3315 N. Oak Trafficway
Kansas City, MO 64116
Email: [email protected]
and to:
NP Banning Industrial, LLC
Attn: J.J. Jenkins
12977 N. Outer Forty Rd., Suite 203
St. Louis, MO 63141
Email: [email protected]
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2.7.3 Any Party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a Party or an officer or representative of a Party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by any such change.
2.8 Estoppel Certificate. City shall, at any time and from time to time within ten (10) days after receipt of written notice from Owner so requesting, execute, acknowledge and deliver to Owner a statement in writing: (a) certifying that this Agreement is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Agreement, as so modified, is in full force and effect); (b) acknowledging that there are no uncured defaults on the part of Owner hereunder or specifying such defaults if any are claimed; and (c) addressing such other reasonable and customary matters as Owner may request. Any such statement may be relied upon by any prospective purchaser or encumbrances of all or any portion of the Property. Upon Owner’s written request, City shall issue a certificate of performance evidencing completion of any of Owner’s obligation(s) under this Agreement.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Vested Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority, Owner shall have a vested right to develop the Project on the Property during the Term of this Agreement in accordance with, and to the extent of, the Development Plan.
City covenants that it will not initiate, so long as this Agreement remains in effect, any amendment to the General Plan directly applicable to the Property, the Project’s zoning as established by the Development Plan or the Specific Plan in a manner that Owner reasonably deems contrary to its interest in, or use of the Property. Except as otherwise provided in this Agreement, the Permitted Uses of the Property shall include construction of commercial and/or industrial buildings and appurtenant structures, installation of all improvements and infrastructure reasonably incident thereto, as permitted under the Development Plan and this Agreement, including without limitation as set forth in Section 3.4.3, and the density or intensity of use of the Property and the maximum height and size of proposed buildings shall be as set forth in the Development Plan.
Provisions for reservation or dedication of land for public purposes applicable to the Property shall be those set forth in Section 5.10.3 of this Agreement and the Development Plan. Subject to the other provisions of this Agreement, Owner shall have the right to increase the density and intensity of use of any portion of the Property by a transfer of density or floor area from other portions of the Property in excess of the density and intensity limitations specified under and consistent with the Development Plan. Nothing herein is deemed or interpreted to vest an increase in the overall density or intensity of use of the Property as a whole, and any density transfer shall fully conform to the requirements of the Specific Plan. Additionally, notwithstanding the language of this Section or any other language in this Agreement, all specifications, standards and policies regarding the design and construction of public works facilities, if any, shall be those that are in effect at the time the applicable Project plans are being processed for approval.
3.2 Effect of Agreement on Land Use Regulations. In accordance with the terms of Government Code § 65866, except as otherwise provided under the terms of this Agreement including the Reservations of Authority, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings and structures, and the design, improvement and construction 868
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standards and specifications applicable to development of the Property shall be the Development Plan. The Development Plan shall continue to apply to the Project and to the reconstruction of any Project improvements damaged or destroyed from any cause. Except as otherwise provided in this Agreement, no amendment, revision of, or addition to the Development Plan that would affect the Project or increase the obligations or decrease the rights of Owner hereunder or under the Development Plan (“Regulatory Change”) shall be made without Owner’s consent, whether adopted or approved by the City Council or any office, board commission or other agency of City, or by the people of City through an initiative measure. Furthermore, no such Regulatory Change shall be effective or enforceable by City with respect to the Project or the Property, nor against Owner or its successors or assigns. However, nothing in this Section shall preclude City: (i) from applying the Subsequent Land Use Regulations authorized by Section 3.3.1 or (ii) from denying or conditionally approving any subsequent development project application on the basis of the Development Plan (except for this Agreement, the amendment process for which is set forth in Section 2.5) as it may be amended or modified from time to time, but only at the written request of Owner or with the written consent of Owner in its sole and absolute discretion. All amendments to the Development Approvals shall automatically become part of the Development Plan.
3.3 Reservations of Authority.
3.3.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the development of the Property.
(a) Reasonable processing fees and charges for land use, approvals of entitlements and mitigation monitoring imposed by City to cover the estimated actual costs to City of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued (“Processing Fees”); provided that: (i) such Processing Fees are in force and effect on a City-wide basis at the time application is submitted for such permits, approvals or entitlements; and (ii) any Processing Fees shall not exceed an amount which will compensate City for the estimated reasonable cost and increases incurred, as permitted pursuant to Government Code Section 54990. City may also increase Processing Fees based on any increase in the estimated reasonable cost to City of performing the work for which the particular Processing Fee is paid provided that such increases are made on a City-wide basis. In addition, all processing fees and charges for plan checks, building permits and inspections, excluding all such charges imposed by the City Public Works Department, shall be based upon the City fee schedule in effect at the time such permits and inspections are sought. (b) Regulations prescribing or relating to procedural matters, hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure excluding those set forth in the Development Plan.
(c) Regulations governing construction standards and specifications including, without limitation, the Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code applicable in City. 869
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(d) Regulations imposing Development Fees, subject to the provisions of Section 5.11 below.
(e) Regulations that are reasonably necessary to protect the public health and safety regardless as to whether they conflict with the Development Plan.
To the extent feasible , any such regulations shall be applied and construed so as to provide Owner with the rights and assurances provided under this Agreement. (f) Regulations that do not conflict with the Development Plan. For purposes of this Section, a Subsequent Land Use Regulation shall be deemed in conflict with the Development Plan if it substantially increases the cost of development or reduces the Project unit or square footage, yield, or materially limits the rate, timing, or sequencing of development of the Property. Any regulation, whether adopted by initiative or otherwise, materially limiting the rate or timing of development of the Property shall be deemed in conflict with the Development Plan and shall therefore not be applicable to the development of the Property.
(g) Regulations for which Owner has given written consent to be applied to development of the Property, regardless of whether they conflict with the Development Plan.
(h) Regulations that City is required to adopt and/or enforce by applicable state or federal law.
3.3.2 Subsequent Development Approvals. This Agreement shall not prevent City, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations, that are approved in writing by Owner, nor shall this Agreement prevent City from denying or conditionally approving any Subsequent Development Approval on the basis of the Development Plan or any Subsequent Land Use Regulation, authorized pursuant to Section 3.3.1 or approved by Owner in writing.
3.3.3 Modification or Suspension by State or Federal Law. In the event that state or federal laws or regulations, enacted after the Effective Date of this Agreement, preempt, prevent, or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce and the provisions of Section 11.4 shall apply to any modifications or suspensions pursuant to this Section.
3.3.4 Intent. The Parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to City all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to City all such power and authority which cannot be restricted by contract. 870
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3.4 Subsequent Development Review.
3.4.1 Processing of Subsequent Development Applications. In connection with any Subsequent Development Approval, City shall exercise its discretion in accordance with the Development Plan and as provided by this Agreement including, but not limited to, the Reservations of Authority; provided however that Subsequent Development Approvals shall not be disapproved, conditioned or delayed by City for reasons inconsistent with the Development Plan or the provisions of this Agreement and the conditions, terms, restrictions, and requirements for any subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the Development Plan or this Agreement.
City shall accept for processing, review and action all applications for Subsequent Development Approvals, and such applications shall be processed in the normal manner for processing such matters, consistent with the Development Plan. Following approval of each Subsequent Development Approval, Owner shall have the vested right to develop pursuant to said approval to the same extent that Owner has the vested right to develop pursuant to the Development Plan. If, as of the date Owner applies for any Subsequent Development Approval, Owner has fulfilled, or irrevocably committed itself with respect to, any obligation on its part to finance or otherwise contribute its share of the public improvements applicable as of that date and made appropriate arrangement to cause the construction of such public improvements subject to a Reimbursement Agreement under Section 5.12.1, City shall not withhold such Subsequent Development Approval on the basis of any delay in obtaining the financial or other contributions of any other property owner or Owner to such improvements. Nothing in this Agreement shall be interpreted to require the City to pay, from its general fund, special fund or any other fund, the costs of all or any part of the Project or related public improvements other than as expressly provided in Section 5 of this Agreement with respect to the Public Improvements as specified in this Agreement, and, if no other method of providing such Public Improvements is available, the provisions of Section 5.12 shall apply to the extent applicable.
3.4.2 Additional CEQA Review. City shall not require Owner to obtain any approvals or permits for the development of the Project in accordance with this Agreement other than those permits or approvals that are required by the Development Plan or this Agreement. The Parties agree that this Agreement does not modify, alter or change City’s obligations pursuant to CEQA and acknowledge that future discretionary actions may require additional environmental review pursuant to CEQA. In the event that additional environmental review is required by CEQA, City agrees to utilize tiered environmental documents, including the use of addenda, to the fullest extent permitted by law, as determined by City, and as provided in California Public Resources Code Sections 21093 and 21094. The Community Development Director shall make the determination as to the level of CEQA documentation (exemption, addendum, supplemental EIR, supplemental MND, or subsequent EIR or no further review required), that is appropriate and may request and obtain technical information as necessary to make this determination. Because the Project has been extensively reviewed in the EIR, it is the intent of City in adopting this Agreement and the Existing Development Approvals that applications for implementing approvals for the Project, including with respect to grading, improvements, individual maps, buildings or phases, consistent with the Development Plan shall not require additional review under CEQA, provided that none of the conditions are present which require further environmental review under CEQA, including but not limited to Public Resources Code Section 21166 and provisions that may require an Addendum to the EIR under CEQA Guidelines Section 15164. 871
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3.4.3 Permitted Uses. The Project is designed to include regional commercial uses, including up to 200,000 square feet of large single tenant use and other commercial retail and restaurant uses, a hotel and warehouse and industrial uses, which constitute Permitted Uses (defined below) in the Specific Plan. However, because the buildings in the commercial and industrial areas of the Property will be leased to third parties, the Specific Plan provides for a range of allowable uses. Therefore, while the uses described above may be developed under the Development Plan, the Development Plan does not require these uses to be implemented and any of the commercial land uses listed in Table 3-1 of the Specific Plan are deemed to be consistent with the Development Plan and allowed uses so long as the City determines either that the environmental impacts of such uses do not generate new significant unmitigatable impacts as compared with what was disclosed in the EIR or supplemental environmental analysis is performed by the City as required by CEQA. The full list of Permitted, Conditionally Permitted, Ancillary, and Prohibited Uses in this Planning Areas is provided in Chapter 3, Development Standards of the Specific Plan (“Permitted Uses”). City, in considering an application for a specific use, shall determine whether there are significant environmental impacts resulting from such proposed use not addressed in the EIR, as supplemented, and in that case whether to prepare additional environmental documentation. If the environmental impacts exceed the impacts disclosed in the EIR or subsequent environmental documentation previously approved by City, City shall undertake additional environmental review in compliance with CEQA prior to approving any such use.
3.5 Timing and Phasing of Development.
3.5.1 Timing of Development. The Parties acknowledge that Owner cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owner, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, that the failure of the Parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such Parties’ agreement, it is the Parties’ intent to cure that deficiency by acknowledging and providing that Owner shall have the right to develop the Property in such order and at such rate and at such times as Owner deems appropriate within the exercise of its subjective business judgment, subject only to any timing or phasing requirements for construction of Public Improvements set forth in the Development Plan or in the Phasing Plan, as the same may be amended from time to time.
3.5.2 Phasing of Development. Owner may phase its subdivision of the Property and/or any of the Planning Areas by applying for Subdivision Maps covering less than the entire Property or some discrete portion of any of the Planning Areas. Attached hereto as Exhibit “E” is an initial phasing plan for construction of the Project (“Initial Phasing Plan”), which may be modified from time to time as set forth in Section 3.5.3. The Initial Phasing Plan, and all subsequent revisions to the Initial Phasing Plan, shall insure that each building of each phase shall have adequate public facilities to service each building of each phase. The phasing plan in effect during any given time period shall be referred to as the “Phasing Plan”. The Parties acknowledge and agree that Owner may modify the Phasing Plan at any time, in its sole and absolute discretion, as long as each phase or each building in each phase can be adequately serviced with all necessary public facilities related to such modification of the Phasing Plan. Notwithstanding the foregoing, 872
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if the Developer modifies the Initial Phasing Plan to increase or decrease the need for public facilities serving the buildings in one or more of the phases, Developer and City shall mutually agree to modify the public facilities to assure that each building of each phase has adequate public facilities to service each building of each such phase.
3.5.3 Deviation from Phasing Plan. The Parties acknowledge that Owner cannot at this time accurately predict the time schedule within which the Project will be developed, or the order in which particular phases or other portions of the Project will be developed, and that the rate, timing, order, and sequence of the development of the Project will depend on numerous circumstances beyond Owner’s control, including, without limitation, market trends, demand, the condition of capital markets, interest rates, availability of financing and other economic and social factors. Therefore, so long as the Project is developed in accordance with the Development Plan (as these may be amended from time to time pursuant to this Agreement), Owner shall not be required to initiate or complete development of the Project, or any particular phase or portion of the Project, within any specific period of time. Subject to the provisions of this Agreement, including but not limited to Sections 3.5.1 and 3.5.2, Owner shall develop the Project in accordance with the Owner’s own time schedule as such schedule may exist from time to time, and Owner may determine which part of the Project shall be developed during each phase of the Project, it being the intent of the Parties hereunder to cure any deficiency in this Agreement by reason of any failure to provide for the timing of development by acknowledging and providing that Owner shall have the right to develop the Project in such order and at such rate and at such times as Owner deems appropriate in the good faith exercise of its objective business judgment. It is acknowledged, however, that any deviation from the project phasing set forth in the Phasing Plan agreed upon by the Parties may require modification of the timing and order of providing public facilities provided in the Existing Development Approvals in order to insure that each building of the Project is adequately serviced by all necessary Public Improvements. Owner shall give City written notice of any intended deviation from the phasing set forth in the Phasing Plan, as modified by any prior, noticed deviations, with such notices to include a revised phasing plan.
By entering into this Agreement, Owner shall not be obligated to build any structures, make any improvement, or otherwise develop the Project, provided, however, that Owner’s failure to develop the Project shall not preclude application to the Property of the taxes or assessments levied by any financing district in accordance with state law. Nothing in this Agreement shall be deemed to release Owner of the obligation to construct Public Improvements as required by this Agreement.
3.5.4 Project Construction Beyond 2027 EIR Buildout Year. The Parties agree and acknowledge that the EIR describes buildout of the Project by 2027 and that economic conditions or business factors, including without limitation, the timing of attracting tenants may influence the ability to complete construction of the Project by 2027. This Agreement in no way obligates Developer to commence or complete buildout of the Project by 2027. Therefore, with respect to any request for any discretionary Subsequent Development Approval which is subject to the final approval of the Director of Planning, the Director of Planning shall make an administrative determination as to whether the EIR together with any addendum thereto is sufficient for the issuance of the permit or approval or whether, as required by CEQA Section 21166 or CEQA Guidelines Sections 15162, 15163 and 15164, there have been substantial changes in the Project, circumstances or new information of substantial importance that would require additional environmental review. However, if Developer submits an application for a 873
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discretionary Subsequent Development Approval that is subject to recommendation or approval of the Planning Commission and/or City Council, those bodies shall make all applicable determinations under CEQA.
3.6 Changes and Amendments. The Parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event Owner finds that a change in the Existing Development Approvals is necessary or appropriate, Owner shall apply for a Subsequent Development Approval to effectuate such change and City shall process and act on such application in accordance with Development Plan, except as otherwise provided by this Agreement including the Reservations of Authority.
3.6.1 Minor modifications to the Existing Development Approvals may be approved by the City Community Development Director and, if approved, shall be incorporated herein as an addendum to Exhibit “C”, and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in City’s reasonable discretion, a change to the Existing Development Approvals shall be deemed “minor” and may be approved by the Community Development Director provided such change does not:
(a) Alter the permitted uses of the Property; or,
(b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings or structures in excess of 10% of the originally approved criteria; or, (d) Increase the number of lots or parcels of any tentative parcel or subdivision map; or
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.
3.7 Regulation by Outside Agencies. It is acknowledged by the Parties that governmental agencies, quasi-public entities, and public utilities not within the control of City (“Outside Agencies” and each an “Outside Agency”) possess authority to regulate aspects of the development of the Property separately from or jointly with City and this Agreement does not limit the authority of such Outside Agencies. City shall use best efforts to cooperate with Owner in securing permits and approvals required from such Outside Agencies.
3.8 Public Works. If Owner is required by this Agreement to construct any public works facilities which will be dedicated to City or any Outside Agency (as defined below) upon completion, and if required by applicable laws to do so, Owner shall perform such work in the same manner and subject to the same requirements as would be applicable to City or such Outside Agency if it would have undertaken such construction
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3.9 Provision of Real Property Interests by City. In any instance where Owner is required to construct any public improvement on land not owned by Owner, Owner 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 Owner is unable, after exercising reasonable efforts to acquire the real property interests necessary for the construction of such public improvements (“Offsite Interests”), and if so instructed by Owner and upon Owner’s provision of adequate security for costs City may reasonably incur, City shall negotiate to attempt to purchase the Offsite Interests in order to allow Owner to construct the public improvements as required by this 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. Owner shall pay all reasonable costs associated with such acquisition or condemnation proceedings and shall enter into a land acquisition agreement with City in a form approved by the City Attorney. This Section is not intended by the Parties to impose upon the Owner an enforceable duty to acquire land or construct any public improvements on land not owned by Owner, except to the extent that the Owner 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, Owner 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 Owner 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.
3.10 City Covenants.
3.10.1 No Conflicting Land Use Regulations. City hereby represents and warrants to Owner that as of the Effective Date there are no rules, regulations, ordinances, or official policies of City that would materially interfere with development of the Project according to the Development Plan, provided the Southern Portion of the Property is annexed into the City.
3.10.2 Subdivision Map Extension and Other Development Approvals. As permitted by Section 66452.6 of the Government Code, each Subdivision Map, heretofore or hereafter approved in connection with development of the Property or the Project shall be extended and shall remain in effect for the term provided by the Subdivision Map Act or the term provided by this Agreement, whichever is longer. If Owner, in its sole and absolute discretion, chooses to process vesting tentative maps, City shall process such vesting maps in accordance with the Existing Land Use Regulations and the Subdivision Map Act, and any tentative map, either vesting or non-vesting, may be processed in phases. In addition, all other Development Approvals shall automatically be extended, without the need for filing extension applications, and shall remain in effect for the term provided by the Banning Municipal Code or the term provided by this Agreement, whichever is longer.
3.10.3 Additional Covenants. City agrees to take the following actions with respect to the development of the Project:
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(a) Consider and approve signage consistent with the Sign Program requirements.
(b) Construct the SLB Extension. The Parties shall use good faith efforts to enter into an Operating Memorandum as provided in Section 11.7 to confirm the specifications of the SLB Extension.
(c) Subject to the provisions of Section 5.9, construct the Substation and,
(d) Subject to the provision of Section 5.8.1, if the City determines to do so at a future date, any fire station.
3.10.4 Easements. City shall cooperate with Owner in connection with any arrangements for abandoning existing utility or other easements and facilities and the relocation thereof or creation of any new easements within the Property necessary or appropriate in connection with the development of the Project. If any such easement is owned by City or any governmental agency under the control of City, City shall subject to applicable state law, at the request of Owner take such action and execute such documents as may be necessary to abandon and/or relocate such easements as necessary or appropriate in connection with the development of the Project.
3.11 Retail Development Obligations. Owner shall obtain all necessary approvals including but not limited to building permits and commence construction as provided in the building permits of a minimum of One Hundred Thousand (100,000) square feet of Project commercial uses (“Retail Threshold”), within thirty six (36) months after the Effective Date (“Retail Date”). Thereafter, Owner shall diligently complete the One Hundred Thousand (100,000) square feet of Project commercial uses. Owner shall submit all required entitlement applications a minimum of six (6) months before the Retail Date. City and Owner shall process these entitlement applications promptly, using all reasonable good faith efforts. If Owner timely submits all required applications, the Parties may mutually agree upon extending the Retail Date in order to provide City with adequate time to process and consider approval of these entitlement applications. For the purposes of this section, “commercial uses” include any of the General Commercial uses authorized in the Specific Plan. If the Retail Threshold is not satisfied by the Retail Date, Owner shall pay the City Five Hundred Thousand Dollars ($500,000) thirty (30) days after the Retail Date, and an additional Five Hundred Thousand Dollars ($500,000) every six (6) months thereafter, if the Retail Threshold is not satisfied. Developer and City agree and acknowledge that the payments required hereunder are reasonable under the circumstances, that it would be extremely difficult or impossible to establish the damages that would be suffered by the City and the public by reason of Developer’s failure to meet the Retail Threshold and therefore the payments provided in this paragraph are a reasonable estimate of such damages (which are not punitive) and which shall be deemed liquidated damages under Civil Code Section 1671 and other applicable law. Owner shall submit for City review a retail recruitment and tenant outreach plan (with a focus on anchor tenants) (“Retail Plan”) within six (6) months of the Effective Date. The Retail Plan shall obligate Owner to recruit retail tenants. Owner shall regularly apprise City of Owner’s efforts to attract potential or actual anchor tenants. A minimum of two (2) 100,000 square 876
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foot or larger retail commercial buildings (for single tenants) shall be constructed within the retail/commercial area of the Project.
3.12 Planning Area 2. Following a joint Planning Commission/City Council public hearing with respect to the Project held on May 8, 2025, and in order to provide an additional buffer to existing residences east of Sunset Avenue consistent with the Specific Plan, the City has requested and Owner acknowledges and agrees that no construction of any warehouses, or the commencement of any Industrial uses, shall occur in Planning Area 2 of the Specific Plan. Within one hundred twenty (120) days of the Effective Date, Owner shall submit all applications necessary to process a General Plan Amendment, Specific Plan Amendment and Zone Change for Planning Area 2, to General Commercial (GC) uses, as specified in the Specific Plan. The City and Owner acknowledge and agree that any change in the Specific Plan designation of Planning Area 2 cannot proceed, if at all, unless and until City undertakes and completes environmental review under CEQA, and the City issues all necessary permits and clearances to authorize GC uses in Planning Area 2. The City and Owner acknowledge and agree that the mere submission of a Specific Plan Amendment for Planning Area 2 does not commit the City to approve such an amendment or any other development applications submitted by Owner.
3.13 Planning Area 4 Buffer. Following a joint Planning Commission/City Council public hearing with respect to the Project held on May 8, 2025, and at the request of the City, in order to provide an additional buffer to existing residences south of Bobcat Road consistent with the Specific Plan, Owner hereby agrees that it shall create a buffer area of at least one hundred fifty (150) feet between the building footprint of any building built in Planning Area 4 of the Specific Plan which has frontage on Bobcat Road. Included in this buffer area will be a minimum of twenty (20) feet of landscaped area.
3.14 Modifications to the Project to Decrease Environmental Impacts. Based upon input from the City Council at its January 28, 2026, hearing on the Project, Owner has agreed to provide additional modifications to the Project as specified below. These modifications are depicted in Exhibit “G-1”.
3.14.1 Removal of Industrial Uses in Planning Area 7. Owner acknowledges and agrees that no construction of any warehouses, or the commencement of any Industrial (LI) uses, as specified in the Specific Plan, shall occur in Planning Area 7.
3.14.2 Removal of Trailer Storage Yard. Owner acknowledges and agrees that no construction or use of a trailer storage yard shall occur in Planning Area 8 of the Specific Plan.
3.14.3 Construction of a Truck Barrier System. Subject to approval of the City, Owner shall construct a truck barrier system on Sun Lakes Blvd. at the western boundary of the Property, to limit heavy truck access west of the Property along Sun Lakes Blvd. This truck barrier system is in addition to other Project improvements designed to prohibit heavy truck access west of the Property along Sun Lakes Blvd.
3.14.4 Modifications to the Improvement of Highland Home Road. Owner shall be required to and shall only construct improvements to Highland Home Road south of Sun Lakes Blvd. Owner shall not be obligated to construct improvements to Highland Home Road north of 877
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Sun Lakes Blvd., except for the construction of an access road to allow Banning Electric Utility to access the contemplated substation, subject to the reasonable approval of the City and Banning Electric Utility and compliance with CEQA.
3.14.5 Modifications to the Improvements of Lincoln Avenue. Owner shall be required to and shall only construct improvements to Lincoln Avenue to the eastern edge of Smith Creek in Planning Area 6 of the Specific Plan.
3.14.6 Public Bypass Route to Access Retail Development in Planning Area 1. In order to reduce trips traveling easterly along Sun Lakes Blvd. to Sunset Avenue to access retail development in Planning Area 1, Owner shall make accommodations for and construct road improvements to allow public vehicular access from Sun Lakes Blvd. to Lincoln Avenue. The City and Owner acknowledge and agree that construction of this bypass cannot proceed, if at all, unless and until City complies with CEQA, and all necessary permits and clearances are obtained by Owner.
3.14.7 Prohibition of Cold Storage and Freestanding Travel Center Uses. In order to reduce environmental impacts, Owner agrees that the Project shall not include any cold storage uses or a freestanding travel center, similar to travel centers operated by Flying J, Buc-ee’s or Love’s.
4. ANNEXATION.
4.1 Contemplated LAFCO Action. The Parties recognize that the Property includes land that presently is outside of the City, generally comprised of the Southern Portion of the Property, that is in the City’s sphere of influence (“SOI”) and subject to annexation by LAFCO (“Annexation”). Owner will be the applicant with respect to the Annexation. The Parties recognize that the Development Agreement Law authorizes the City to enter into a development agreement with Owner for property that is within the City’s SOI. The Parties further agree and understand that prior to the contemplated Annexation, this Agreement shall function as a pre-annexation agreement with respect to the Southern Portion of the Property and bind the Parties as such.
4.2 Contemplated Action. Upon LAFCO approval of the Annexation, and the recordation of the Certificate of Completion, the Parties agree that the Agreement shall become operative on the Southern Portion of the Property.
4.3 Cooperation of City. The City agrees to support the Annexation and to use best efforts to achieve the prompt annexation of the Property within the SOI into the City.
4.4 Development of Annexed Property. The Parties agree that upon City approval of the Annexation by LAFCO, the rights of Owner to develop the Project upon the newly annexed portion of the Property in accordance with the Development Plan as set forth in this Agreement shall vest and become equivalent to the vested rights described above in Section 3.1 for the portions of the Property within the City jurisdictional boundaries as of the Effective Date. 878
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5. PUBLIC BENEFITS, PUBLIC IMPROVEMENTS, AND DEVELOPMENT IMPACT FEES.
5.1 Intent. The Parties intend to provide consideration to the public to balance the private benefits conferred on Owner under this Agreement by requiring that Owner provide the Public Benefits described in this Section 5. The City has either previously approved or is in the process of considering various public improvements that may occur on or adjacent to the Property including the Sun Lakes Boulevard Extension, the Substation, a reverse osmosis facility and a potable water reservoir. Each of these public improvements has either undergone prior environmental (CEQA) review or is under consideration by the City or would, prior to construction, undergo applicable environmental (CEQA) review by the City and may proceed with or without development of the Project. Nonetheless, the Public Benefits include land conveyance and payments to be made to the City by Owner which land and payments may be utilized by the City for these and for other purposes to the extent described in this Agreement, in the event the City does not proceed with construction of such public improvements.
5.2 Public Benefit Fee. Owner shall pay the City a Public Benefit Fee (“Public Benefit Fee”) equal to the lesser of either Eight Million Dollars ($8,000,000) or One Dollar and Forty Four Cents ($1.44) per square foot of entitled warehouse/logistics/industrial building square footage.
Furthermore, the Public Benefit Fee shall be paid in installments subject to the following terms and conditions:
5.2.1 First Installment. In consideration for the City entering into this Agreement, Owner shall pay the first installment of the nonrefundable Public Benefit Fee of Three Million Dollars ($3,000,000) (First Installment”) by wire transfer in immediately available funds within sixty (60) days of the Effective Date without extension for any reason such as denial of the Annexation by LAFCO, a Development Limitation, force majeure, lawsuit challenging this Agreement or the Development Approvals or Tolling Period. In the event that such payment is not made within such sixty (60) days, this Agreement and the Development Approvals shall, without the necessity of notice or cure, terminate. However, the provisions providing for the City to retain the First Installment shall survive such termination. Notwithstanding anything to the contrary in this Agreement and the Development Approvals, they shall not be deemed to be vested rights of Owner until the First Installment is made. If Owner elects to terminate this Agreement and the Development Approvals as provided for in this Agreement, the rights under this Agreement and the Development Approvals shall be deemed not to be vested.. Upon Owner’s payment of the First Installment, the Existing Land Use Regulations shall revert to the Land Use Regulations in effect on the Effective Date.
5.2.2 Subsequent Installments. Following the issuance of occupancy permits for the first 694,444 square feet of warehouse/logistics/industrial buildings, Owner shall pay subsequent installments of the Public Benefit Fee upon issuance of occupancy permits for each warehouse/logistics/industrial building on a square-foot-by-square foot basis at the rate of One Dollar and Forty Four Cents ($1.44) per square foot (“Subsequent Installments”).
5.2.3 Sales Tax Credits. Owner may claim Sales Tax Revenues generated by the Industrial Property (as defined below) as a credit on a dollar-for-dollar basis toward future Subsequent Installments up to a maximum cumulative credit of Two Million Dollars ($2,000,000). 879
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These credits shall be applied only on a going-forward basis for Sales Tax Revenues actually received by the City and are non-refundable.
5.3 Owner Required Public Improvements. Owner shall construct and install or fund the installation of the public improvements and infrastructure required in connection with the Project and listed on Exhibit “F” (“Public Improvements”) and/or required as conditions of approval to the Existing Development Approvals in conformance with standards set forth in the Development Plan. Subject to Section 3.5, Owner will make these Public Improvements in phases concurrent with the development of each building of each phase of the Project and in accordance with the Phasing Plan and the conditions of approval to the Existing Development Approvals. If development of the Project proceeds according to the Phasing Plan and the Development Plan, the Owner and City acknowledge and agree that no additional Public Improvements shall be required beyond what is found in in Exhibit “E-1,” Exhibit “F,” and the conditions of approval for the Existing Development. Owner shall have the right to construct any public facilities on behalf of the City and to obtain fee credits or reimbursements from the City as further described below to the extent that such Public Improvements are included in the City’s DIF Program.
5.4 Sun Lakes Boulevard Extension. It is the mutual intent of the Parties to provide for the completion of the SLB Extension as set forth in this Section 5.4 and with mutual acknowledgement of the facts set forth in this paragraph. Owner shall dedicate, or has dedicated, portions of the Property to the City to accommodate the construction and operation of the SLB Extension (“Public Maintenance and Access Easements”). Upon request of Owner, City shall promptly vacate via quitclaim deed portions of the Public Maintenance and Access Easement based upon the following conditions precedent: (i) access to the creek culvert crossings is maintained (this Access may be reconfigured to accommodate development and operation of the Project, as reasonably determined by the City Engineer); (ii) Owner has designated a private maintenance entity to either maintain cut slope and filled embankments, or has proposed and completed grading to eliminate cut slopes and filled embankments to accommodate the Project; (iii) Owner has maintained continued access to City-owned utility facilities. Access may be reconfigured to accommodate development and operation of the Project needs, as reasonably determined by the City Engineer.
5.5 Coordination Regarding Construction of Sun Lakes Boulevard Extension. In order to insure that construction or operation of the SLB Extension does not interfere with development or operation of the Project, Construction of the SLB Extension is under the control of the City and could be constructed by the City or by third parties designated by the City separate and apart from Owner’s Project, and Owner has a separate interest in completion of the SLB Extension to ensure access to Owner’s Project. City has entered into an Agreement for the Funding of Measure A Regional Arterial Improvements (“MARA Agreement”) with RCTC, pursuant to which the City is receiving a reimbursement grant for the SLB Extension’s design and construction costs and the City is obligated to complete the SLB Extension on or before August 31, 2027, or later if the parties to the MARA Agreement agree to one or more extensions of the date of completion (“SLB Extension Completion Date”). Additional regulatory approvals and other actions may be required to construct the SLB Extension, including approvals and actions necessary to address the Kinder Morgan pipeline that currently traverses the Property. Such approvals and actions may affect construction of the SLB Extension and cause delays beyond the control of either Party. Each Party 880
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agrees to provide the other with regular updates regarding such approvals and actions and the status of the SLB Extension.
5.5.1 Accelerated DIF Payment. Within forty five (45) days after the City has obtained all permits to commence the construction of the SLB Extension or upon the Effective Date, whichever is later, Owner shall pay City Five Million One Hundred Thousand Dollars ($5,100,000) of the Project’s Transportation DIF obligation (“Accelerated Transportation DIF Payment”) to assist the City to in its design and construction of the SLB Extension. Until the SLB Extension is completed, the City shall only use the Accelerated Transportation DIF Payment to pay for design and construction costs of the SLB Extension.
5.5.2 Owner’s Contingency.
(a) No later than sixty (60) days before the SLB Extension Completion Date, City shall give Owner written notice whether the SLB Extension will be completed by the SLB Extension Completion Date, and if not, when the City estimates that the SLB Extension will be completed (“SLB Estimated Completion Date”).
(b) If the SLB Estimated Completion Date is greater than sixty (60) days after the SLB Extension Completion Date, then Owner may, in its sole discretion, prepare a plan (“Owner’s Plan”) specifying how Owner would complete the SLB Extension if given control over construction. Owner shall submit Owner’s Plan to the City for review and approval, with such approval not to be unreasonably withheld. The Owner’s Plan must specify (i) the actions needed to finish the SLB Extension; (ii) a schedule to complete the SLB Extension, providing a completion date for the SLB Extension at least sixty (60) days before the SLB Estimated Completion Date; (iii) the cost to complete the SLB Extension and (iv) the form and amount of financial security to be posted by Owner, in favor of the City, to insure that Owner finishes the SLB Extension. City shall review and either approve or deny Owner’s Plan no later than forty-five(45) days after submitted by Owner.
City shall neither unreasonably withhold its approval of Owner’s Plan nor deny approval of Owner’s Plan based solely upon delay incurred due to replacement of any existing contractor or consultant. If the City timely denies the Owner’s Plan, City shall notify Owner of this denial, and thereafter, the Parties shall enter into a thirty (30) day meet and confer process to attempt to reach agreement on all steps needed to complete the SLB Extension as quickly as possible. If City fails to either approve or deny the Owner’s Plan within forty-five (45) days, Owner’s Plan shall be deemed accepted by the City.
(c) City shall allow Owner to complete construction of the SLB Extension and Owner may, in its sole discretion, choose to complete the SLB Extension if: (i) completion of the SLB Extension is required by the conditions of approval in the Development Approvals and the City has not awarded a contract for construction of the SLB Extension on or before issuance of the first grading permit or six (6) months before the SLB Estimated Completion Date, whichever is sooner; (ii) the MARA Agreement is terminated before the SLB Extension is 881
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completed; (iii) City has affirmatively approved the Owner's Plan; or the Owner's Plan has been deemed accepted; or (iv) through the aforementioned meet and confer process, the Parties have agreed that Owner can complete construction of the SLB Extension.
(d) If Owner chooses to complete the SLB Extension, as provided in the preceding paragraph, Owner shall promptly provide City with written notice of its choice and responsible for all design, permitting, and construction activities necessary to complete the SLB Extension. The following provisions shall also thereafter apply:
(i) Owner shall not begin any work on the SLB Extension unless and until it enters into an agreement with the City in a form deemed acceptable to the City Attorney to indemnify, defend, and hold the City and its elected officials, officers, contractors serving as City officials, agents, and employees 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 Owner's choice to complete the SLB Extension itself and/or construction of the SLB Extension, and which may arise from the direct or indirect operations of Owner or those of Owner's contractors, agents, tenants, employees, or any other persons acting on Owner's behalf, which relate to the SLB Extension (“City Losses”). This indemnity shall apply to all City Losses, as described above, regardless of whether or not the City affirmatively approved Owner’s Plan, except for City Losses arising from the sole negligence or willful misconduct of City.
This indemnity shall also survive the expiration or earlier termination of this Agreement, but shall also terminate one (1) year after City accepts Owner’s offer of dedication of the SLB Extension public improvements. (ii) Within forty-five (45) days of receipt of Owner’s written notice of its intention to complete the SLB Extension and City’s approval or deemed approval of Owner’s Plan, City shall refund to Owner any remaining unspent portion of the Accelerated Transportation DIF Payment.
The City agrees that Owner may pursue TUMF credits and reimbursements and DIF credits and reimbursement for all sums Owner expends in designing, permitting, and constructing the SLB Extension to the extent such sums are covered under the applicable DIF or TUMF study. Owner and City shall use good faith efforts to enter into a DIF Credit and Reimbursement Agreement, in substantially the same form as specified in Exhibit “G-2”. To the extent of any conflict between the terms of this Agreement and the DIF Credit and Reimbursement Agreement, this Agreement shall control. The Parties acknowledge and agree that the DIF Credit and Reimbursement Agreement shall address Owner’s construction of other Public Improvements which do not include the SLB Extension which otherwise would be funded by the City DIF program. Owner and City shall use good faith efforts to enter into an Improvement and 882
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Credit/Reimbursement Agreement Transportation Uniform Mitigation Fee Program (“TUMF Agreement”) with respect to the SLB Extension in a form acceptable to and approved by the WRCOG.
(iii) Upon completion of the SLB Extension by Owner if it does so in accordance with this Agreement, Owner shall submit a final written account of the actual costs Owner incurred in completing the design, permitting and construction of the SLB Extension (“Owner’s Costs”) to City. City shall forty-five (45) days to review and approve or disapprove Owner’s Costs, which approval shall not be unreasonably withheld. Within thirty (30) days of the approval of the Owner’s Costs, the Parties shall calculate the total amount of estimated TUMF credits and DIF credits Owner is entitled to receive, provided that the final TUMF calculation shall be subject to the review and approval of WRCOG. City will use best efforts to assist Owner in obtaining TUMF credits from WRCOG. The amount of the DIF credits Owner shall be entitled to seek and receive as allowed by this Agreement shall include the portion of the Accelerated Transportation DIF Payment that was not refunded to Owner as described above. “Owner’s Offset” is defined herein as the actual amount of TUMF credits and DIF credits received by Owner. If Owner’s Costs exceed Owner’s Offset (“Owner’s Deficit”), Owner shall be entitled to seek TUMF reimbursements (subject to WRCOG approval) and/or DIF reimbursements to recover the Owner’s Deficit to the extent there remains any difference between the maximum cost included in each of the TUMF and DIF nexus studies and TUMF or DIF funds already spent on the SLB Extension. The City, in its sole and absolute discretion, shall determine which source of reimbursement shall be used based on the applicable nexus studies. Each Fiscal Year, City shall make the forgoing reimbursement payments to Owner to satisfy, or partially satisfy the Owner’s Deficit, with such payments to be received solely through TUMF reimbursement, DIF reimbursement provided that Owner does not recover more than Owner’s Deficit. Notwithstanding anything to the contrary in this Agreement, the City shall have no obligation to reimburse Developer from its general fund or other sources except from applicable DIF or TUMF as provided above, but City, in its sole and absolute discretion, may choose to reimburse Developer from other sources aside from DIF or TUMF funds.
5.6 Sunset Avenue Improvements. As specified in Exhibit “F”, Owner or third parties shall construct and install or fund the construction of improvements to Sunset Avenue (“Sunset Avenue Improvements”). Owner’s construction and installation or its funding of the Sunset Avenue Improvements, if undertaken by Owner, shall occur as specified in the Initial Phasing Plan, as defined in Section 3.5.2, which may be amended in the future as provided in Section 3.5.2.
Pursuant to the DIF Credit and Reimbursement Agreement attached hereto as Exhibit G-2, Owner shall be entitled to receive a partial DIF credit if Owner constructs or funds the construction of the Sunset Avenue Improvements to the extent such improvements are included in the City’s DIF program and nexus study. In the event that Owner constructs any Sunset Avenue Improvements that are not included in the City’s DIF program (“Non-DIF Sunset Improvements”), City agrees to 883
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use good faith efforts at such time as it has the legal authority to do so to (i) impose a fair share payment condition of approval onto any third party developer’s project which would benefit from the construction of the Non-DIF Sunset Improvements to the extent of their fair share (“Third Party Fair Share Payments”); and (ii) collect all Third Party Fair Share Payments. Regarding the Rancho San Gorgonio project Owner and City agree that this project’s entitlements contain conditions of approval that obligate this developer to install portions of the Sunset Avenue Improvements. City shall use good faith efforts to enforce these entitlements’ conditions of approval regarding this developer’s required Sunset Avenue Improvements, and shall use good faith efforts to collect this developer’s Third Party Fair Share Payments to the extent it has the legal authority to do so. City shall distribute all Third Party Fair Share Payments to Owner within thirty (30) days of City’s receipt of such payments provided that Owner has provided City with current up to date payment information upon request. However, City shall have no obligation to incur any legal fees to collect Third Party Fair Share Payments except to the extent such legal fees are advanced by Owner. For the sake of clarity, City shall have no liability to Owner to pay Third Party Fair Share Payments to Owner except to the extent that it receives Third Party Fair Share Payments from a third-party developer. If third parties construct Sunset Avenue Improvements not included in the City’s DIF program, Owner shall pay its fair share of such facilities to the City within thirty (30) days of receiving written notice from the City to make such payment.
5.7 Payment of “Fair Share” Share of Certain Roadway Improvements. To help facilitate the City’s achievement of its goals and policies with respect to roadway improvements, Owner agrees to pay its proportional or Fair Share (as defined in Section 5.12.2) of the roadway improvements listed on Exhibit “I”. The Fair Share payments shall become due at the times specified on Exhibit “I”; or if there is no time specified in Exhibit “I”, at such time as reasonably required by the City; or as otherwise established in conditions of approval for Subsequent Development Approvals, if any.
5.8 Land Reservation, Conveyance, and Dedication.
5.8.1 Owner shall reserve a portion of the Property suitable for construction of a fire station by the City or County (“Fire Station Property”). The Parties have already tentatively approved the location of the Fire Station Property on portions of parcels 4 and 34 of Tentative Parcel Map No. 38118. The Parties agree to work cooperatively and in good faith to identify a suitable final location of the Fire Station Property no later than one (1) year after the Effective Date. The Parties agree that the Fire Station Property must be at least two and one half (2 ½) acres and not greater than three (3) acres in size. Owner shall reserve and dedicate the Fire Station Property to the City at no cost to the City no later than three (3) years from the Effective Date.
After the City acquires the Fire Station Property, City or County shall not use the Fire Station Property for any use other than a fire station, a reverse osmosis facility, or both. Regardless of whether the City elects to develop a fire station, Owner has agreed to make the Fire Station Payment in accordance with Section 5.10.4. Under no circumstances shall Owner be obligated to pay any sums for the construction of the fire station over and above the Fire Station Payment.
5.8.2 Owner shall reserve a portion of the Property suitable for construction of a water tank (“Water Tank Property”). The Parties have already tentatively approved the location of the Water Tank Property on portions of parcels 4 and 34 of Tentative Parcel Map No. 38118. The Parties agree to work cooperatively and in good faith to identify the final location of the Water 884
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Tank Property no later than one (1) year after the Effective Date. The Parties agree that the Water Tank Property must be no greater than two (2) acres in size. Owner shall reserve and dedicate the Water Tank Property to the City at no cost to the City, no later than three (3) years from the Effective Date. After acquiring the Water Tank Property, City or its successors shall not use the Water Tank Property for any use other than a water tank. Under no circumstances shall Owner be obligated to pay for the construction of the water tank and related uses.
5.8.3 Owner shall reserve a portion of the Property for a Banning Electric Utility Substation (“Electrical Property”). The Parties have tentatively approved the location of the Electrical Property, on Tentative Parcel Map No. 38118. The Parties agree to work cooperatively and in good faith to identify a suitable final location of the Electrical Property no later than one (1) year after the Effective Date. Owner shall reserve and dedicate the Electrical Property to the City at no cost to the City no later than three (3) years from the Effective Date. After acquiring the Electrical Property, City or Banning Electric Utility shall not use the Electrical Property for any use other than a utility substation and related uses
5.8.4 Owner shall reserve a portion of the Property suitable for construction of a reverse osmosis facility (“RO Property”). The Parties have already tentatively approved the location of the RO Property on portions of parcels 10, 31 and 33 of Tentative Parcel Map No. 38118. The Parties agree to work cooperatively and in good faith to identify a suitable final location for the RO Property no later than one (1) year after the Effective Date. The Parties agree that the RO Property must be no greater than two (2) acres in size. Owner shall reserve and dedicate the RO Property to the City at no cost to the City, no later than three (3) years from the Effective Date. After acquiring the RO Property, City or its successors shall not use the RO Property for any use other than for an RO facility and related uses. Under no circumstances shall Owner be obligated to pay for the construction of the reverse osmosis facility.
5.9 Electrical Substation.
5.9.1 Owner shall contribute Five Hundred Thousand Dollars ($500,000) for the design and environmental review of an electrical Substation, (“Banning Electric Initial Contribution”). Upon receipt of the Banning Electric Initial Contribution, City shall promptly commence the design and environmental review of the Substation, as defined below. The City and Owner acknowledge and agree that construction of the Substation cannot proceed, if at all, unless and until City undertakes and completes environmental review under CEQA, and the City obtains all necessary permits and clearances to construct the Substation. The City’s obtaining all necessary environmental clearances, permits and other clearances are, collectively (“Substation Clearances”). The entering into of this Agreement by the Parties does not commit the City to construct the Substation, but rather this Agreement establishes the framework and the procedure for the City to construct the Substation, if the City ultimately determines, in its sole discretion, to commence the design, permitting process and construction of the Substation. The Substation shall be designed and constructed to provide at least 40 Mega Volt Amperes (“Substation”). The Parties acknowledge and agree that the estimated cost to design, permit and construct the Substation (“Substation Costs”) is Twelve Million Five Hundred Thousand Dollars ($12,500,000). City shall design and construct the Substation and obtain all necessary governmental and private party approvals. The design, components, and schedule to construct and complete the Substation shall be based upon an Engineer’s Estimate, discussed below. The City shall complete the Engineer’s 885
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Estimate within ninety (90) days after City completes the design of the Substation. Owner shall pay the Banning Electric Initial Contribution ninety (90) days after the Effective Date. If the City chooses, in its sole discretion, to not design or construct the Substation, City shall refund the Banning Electric Initial Contribution within thirty (30) days after City notifies Owner of its decision to not design and construct the Substation. Upon request of Owner, City shall provide Owner with documentation demonstrating that the Banning Electric Initial Contribution has only been used for design and environmental review of the Substation. Any portion of the Banning Electric Initial Contribution not used for design and environmental review retained by City shall result in a reduction in the amount of the Banning Electric Final Contribution, defined below, unless City chooses to not design and construct the Substation.
5.9.2 Upon the City’s obtaining the Substation Clearances, Owner shall further contribute to the completion of the Substation, by making the Banning Electric Final Contribution in the amount of Nine Million Five Hundred Thousand Dollars ($9,500,000) as specified in Section
5.9.3(a). The City shall make an in-kind contribution valued at approximately Two Million, Five Hundred Thousand Dollars ($2,500,000) consisting of City staff time, labor, materials and equipment, which may include, but not limited to: two (2), twenty (20) MVA transformers. The Engineer’s Estimate shall: (i) be based upon substantial objective evidence (ii) accurately specify the Substation Costs, which shall not exceed Twelve Million Five Hundred Thousand Dollars ($12,500,000) unless City provides Owner the information required by Section 5.9.3; and (iii) establish a schedule concerning the construction and completion of the Substation. The City shall share the Engineer’s Estimate with Owner, for Owner’s reasonable approval, which shall not be unreasonably withheld or conditioned. Owner shall have sixty (60) days from receipt of the Engineer’s Estimate to review it, after which time Owner shall be deemed to have approved the Engineer’s Estimate unless Owner has presented written objections to the City.
5.9.3 Owner’s obligation to fund the Substation Costs shall not exceed the amount of the Banning Electric Initial Contribution and an additional Nine Million Five Hundred Thousand Dollars ($9,500,000) (“Banning Electric Final Contribution”) plus the Banning Electric Initial Contribution of Five Hundred Thousand Dollars ($500,000.00) for a grant total of Ten Million Dollars ($10,000,000.00) (“Total Electric Contribution”). Within thirty (30) days after City has obtained the Substation Clearances (“Substation Funding Date”), Owner shall deposit One Million Five Hundred Thousand Dollars ($1,500,000) into an escrow account or funds control, with the escrow holder to be mutually selected by the Parties. In addition, on or before the Substation Funding Date, Owner shall deposit in the escrow account, Eight Million Dollars ($8,000,000), or provide security in the form of a bond or letter of credit in favor of the City, in the amount of Eight Million Dollars ($8,000,000), or a combination of bonds, letters of credit and cash. Owner, in its sole and absolute discretion, shall determine the form of such security to be provided. Regardless of the amount of the Engineer’s Estimate, in no event shall Owner be required to contribute any funding in excess of the Banning Electric Initial Contribution and the Banning Electric Final Contribution. If the Engineer’s Estimate exceeds Twelve Million Five Hundred Thousand Dollars ($12,500,000), the City shall provide written documentation (“Substation Excess Cost Documentation”) to Owner demonstrating how the City intends to pay all costs in excess of Twelve Million Five Hundred Thousand Dollars ($12,500,000) (“City Substation Payment”). Prior to Owner’s payment of the Banning Electric Final Contribution, City shall provide the Substation Cost Documentation to Owner, for Owner’s approval, which approval shall not be unreasonably withheld or conditioned. Owner shall either approve or deny the 886
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Substation Cost Documentation sixty (60) days after it is received. If Owner denies the Substation Cost Documentation it shall specify in writing to City the specific reasons for so denying the Substation Cost Documentation and shall negotiate reasonably and in good faith a resolution of the issue with City within ten (10) days thereafter. If Owner fails to provide written approval or denial of the Substation Cost Documentation within this sixty (60) day period, then Owner shall be deemed to have approved the Substation Excess Cost Documentation. (a) After Owner’s provision of the Banning Electric Final Contribution, the City shall promptly take all necessary steps in order for construction of the Substation to commence. Prior to commencing construction, City shall provide documentation to Owner, demonstrating that the construction contract for the Substation Costs is consistent with the amount specified in the Engineer’s Estimate or the lowest responsive and responsible bid received in accordance with applicable public bidding laws (“Low Bid”), and the schedule established by the Engineer’s Estimate. Upon receipt of this documentation from City, Owner shall deposit into an escrow account, as provided below, all necessary documents to convey the Electrical Property to the City (“Conveyance Documents”). City shall notify Owner, in writing, when the construction contract for the Substation has been awarded. Upon receipt of this written notice from City, Owner shall immediately authorize the escrow holder to release the Conveyance Documents, and will insure that the Conveyance Documents are recorded in the official records of the County Recorder. Upon commencement of construction, the following process shall be followed to fund the construction of the Substation, which shall continue until construction of the Substation is completed: (i) Upon City’s receipt of invoices from the contractor retained to construct the Substation, City shall present such invoices to Owner; (ii) If such invoices comport with information in the Engineer’s Estimate or the Low Bid, within thirty (30) days of receipt of such invoices, Owner shall authorize payment of the invoices from the cash deposited in the escrow or funds control, and after such authorization is issued, City shall use the proceeds to pay such invoices or reimburse itself if it previously paid the invoice from its own funds; (iii) Within thirty (30) days after the cash is withdrawn from the escrow, Owner shall deposit into the escrow the same amount of cash which was withdrawn from the escrow, and shall continue to do so, upon the City’s submission of invoices to Owner, until Owner has deposited into escrow the entire amount of the Banning Electric Final Contribution; and (iv) Within thirty (30) days after the cash is withdrawn from the escrow, City shall authorize a reduction in the amount of security posted by Owner, in the same amount as the amount of cash withdrawn from the escrow. Owner shall have the ability to enter the Electrical Property while construction of the Substation is ongoing, to determine the progress and timing of the construction. If the cost of the Low Bid exceeds the amount of the Engineer’s Estimate, or of the cost of construction exceeds the Banning Electric Final Contribution for any reason, including due to change orders, the obligation of Owner to pay the Banning Electric Final Contribution shall not terminate or abate, but the City shall be obligated to fund any such additional amount to complete the Substation.
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(b) Due to Owner’s payment of the Total Electric Contribution and City’s adoption of the Electric Facilities DIF, the Parties acknowledge and agree that Owner shall receive Electric Facilities DIF credits in the amount of the Project’s entire Electric Facilities DIF obligation (“Electric DIF Obligation”), and Owner shall not be obligated to pay the Electric Facilities DIF. Upon completion of the Substation, Owner will be entitled to reimbursement from the City for the difference between the sum of its Banning Electric Initial Contribution and its Banning Electric Final Contribution, on the one hand, and the Electric DIF Obligation, on the other hand (“Substation Reimbursement”). Owner shall begin to receive the Substation Reimbursement in the first Fiscal Year after the City issues a Notice of Completion of the Substation. The Substation Reimbursement shall be paid to the Owner (i) solely through cash payments from the City in equal annual installments over a term of ten (10) years, or more quickly, in the sole and absolute discretion of the City; or (ii) third party developers to the extent actually paid, or a combination thereof, with the City, in its sole discretion, to determine which payment sources are to be used to pay the Substation Reimbursement. The City shall use good faith efforts to expedite the payment of the Substation Reimbursement as quickly as reasonably possible. City shall reserve electrical power capacity equal to the Substation Fair Share Percentage to service the Project so long as the Owner has paid the full amount of the Banning Electric Final Contribution and development of the Project remains in substantial compliance with the Project Initial Phasing Plan set forth in Exhibit “E-1”. Except as otherwise provided in this Section 5.9.3, the City shall have no obligation to pay or reimburse Owner for any portion of the cost of the Substation Costs.
5.10 Additional Public Benefits. Owner shall provide the following additional Public Benefits:
5.10.1 Maintenance of Private Roads. Owner shall maintain all private roads and sidewalks and landscape areas within and fronting the public right-of-way on the Property in accordance with the requirements of the Specific Plan and any conditions of approval.
5.10.2 Open Space Dedication. At no cost to City and without reimbursement or credit to any DIF, Owner will set aside and grant to City an irrevocable offer to dedicate to the City, approximately 52.8 acres as Open Space Resource land. Notwithstanding the foregoing, Owner may be able to receive reimbursement or MSHCP impact fee credits from the Regional Conservation Agency (“RCA”) if RCA determines that Owner is entitled to MSHCP impact fee credits or reimbursement. Subject to approval from RCA, City shall have sole and absolute discretion whether to accept such dedication. The Parties acknowledge and agree that the acreage of the dedicated Open Space Resource land may be reduced, based upon required mitigation which may be imposed on development of the Project by other public agencies, such as the U. S. Fish & Wildlife Service, U. S. Army Corps of Engineers, California Department of Fish & Wildlife or the Western Riverside Regional Conservation Authority (collectively, “Resource Agencies”). In addition, the Parties acknowledge and agree that the Resource Agencies may limit use of the Open Space Resource land, and the Parties agree that they will both abide by any and all applicable restrictions which may be imposed by the Resource Agencies. However, if habitat restoration, habitat mitigation and monitoring plan, endowment agreement or other similar obligations are 888
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required by the Resource Agencies solely in connection with development of the Project, the same shall be the sole obligation of the Owner.
5.10.3 Park Dedication. Owner shall reserve and dedicate to City, at no cost to City and without reimbursement or credit to any DIF, approximately 12 acres for the Park. Owner shall be responsible for the design and the cost of constructing the Specific Plan Park Facilities. Owner shall be responsible, at its sole cost, to maintain the Park, and City shall use best efforts to assist Owner in its efforts to obtain grants or tax benefits in connection with Owner’s reservation of the Park. Owner shall be responsible for maintaining the Park upon completion. City agrees that Owner shall receive parks and recreation development impact fee credits, if the Specific Plan Park Facilities meet the applicable criteria of the parks and recreation development impact fee program, on a dollar-for-dollar basis for all Owner’s costs incurred for designing and constructing the Specific Plan Park Facilities. Prior to receiving such development impact fee credits, the City shall require that Owner provide proof in the form of paid invoices or receipts for the incurred costs to insure all such costs were actually incurred. If the City chooses to expand the Specific Plan Park Facilities after the effective date to include facilities not previously included in the Specific Plan (“Additional Park Facilities”), City shall provide written notification to Owner no later than City’s approval of Owner’s Specific Plan Park Facilities plans, and the Parties shall meet and confer and use good faith efforts to enter into a Park improvement plan, addressing the Additional Park Facilities that will address an appropriate apportionment of the costs to design and construct the Additional Park Facilities.
5.10.4 Fire Station Payment. Owner shall contribute Sixteen Million Dollars ($16,000,000) (“Fire Station Payment”) to the City to be used for construction of the fire station.
Owner shall pay the City Two Million Five Hundred Thousand Dollars ($2,500,000) of the Fire Station Payment within six (6) months of the Effective Date. Owner shall pay the City the remainder of the Fire Station Payment within sixty (60) days after City obtains all necessary approvals to commence construction of the fire station. Owner acknowledges that neither the City nor the Riverside County Fire Department has considered or identified a need for a fire station at the Property, there is no current plan for development of a fire station and, if desired, the planning, design, and construction of any fire station would occur at an undetermined future date by the City.
Construction of a fire station cannot proceed, if at all, unless and until City undertakes and completes environmental review under CEQA, and the City obtains all necessary permits and clearances to construct the fire station. If the City determines in its sole and absolute discretion to not construct the fire station, then the City may use the proceeds of the Fire Station Payment for any City purpose. In such a situation, City shall provide written notification to Owner of its determination not to build the fire station within one (1) year of the Effective Date. If such notification is received, Owner shall make the Fire Station Payment based upon the following schedule: (i) One Million Dollars ($1,000,000) prior to issuance of occupancy permits for Five Hundred Thousand (500,000) square feet of warehouse building(s); (ii) Three Million Dollars ($3,000,000) prior to issuance of occupancy permits for One Million (1,000,000) square feet of warehouse building(s); (iii) Three Million Dollars ($3,000,000) prior to issuance of occupancy permits for Two Million (2,000,000) square feet of warehouse building(s); (iii) Three Million Dollars ($3,000,000) prior to issuance of occupancy permits for Three Million (3,000,000) square feet of warehouse building(s) and (iv) Three Million Five Hundred Thousand Dollars ($3,500,000) prior to issuance of occupancy permits for Three Million Five Hundred Thousand (3,500,000) square feet of warehouse building(s). Notwithstanding the forgoing the entire amount of the Fire 889
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Station Payment by Owner to City shall be made no later than five (5) years from the Effective Date. The amount of the Fire Station Payment shall be subject to an “Annual Escalation Factor” on each anniversary of the Effective Date during the term of this Agreement 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%).
5.10.5 Fire Equipment Payment. Owner shall contribute One Million Dollars ($1,000,000) (“Fire Equipment Payment”) to the City for the City to use to acquire fire equipment for the fire station. Owner shall make this payment within one hundred eighty (180) days from when the City obtains all necessary approvals to construct the fire station. As specified in Section
5.10.4, if City determines to not use the proceeds of the Fire Station Payment to construct the fire station, then the City may use the proceeds of the Fire Equipment Payment for any City purpose.
In such a situation, Owner shall make the Fire Equipment Payment to the City prior to issuance of occupancy permits for Four Million (4,000,000) square feet of warehouse building(s).
Notwithstanding the forgoing the entire amount of the Fire Equipment Payment shall be made by Owner to City no later than five (5) years from the Effective Date.
5.10.6 City Grant. Owner shall provide City with a grant of Seven Hundred Fifty Thousand Dollars ($750,000) (“City Grant”), with the proceeds solely to be used by the City to aid in City downtown beautification or small business assistance for small businesses located in the City. The City Grant is to be disbursed in three (3) equal payments of Two Hundred Fifty Thousand Dollars ($250,000): (i) within sixty (60) days of the Effective Date; (ii) within twelve (12) months of the Effective Date; and (iii) within twenty four (24) months of the Effective Date.
5.10.7 Employment Outreach. Owner shall include in all leases for the Project the requirement that each tenant provide the City with written notice that each tenant is intending to hire employees for its business, with such notice issued at least two (2) weeks before each tenant intends to commence its operations. City shall provide notice to City residents of these commencements of operations.
5.10.8 Animal Shelter Grant. Owner shall provide City with a grant of Five Hundred Thousand Dollars ($500,000), with the proceeds solely to be used to build or operate an animal shelter. This payment shall be made to City prior to issuance of first grading permit of an industrial building.
5.11 Development Fees. Development Fees currently imposed are identified in City Resolution 2019-112 adopted by the City Council on September 10, 2019. Development Fees or “DIF” also includes TUMF and MSHCP. A schedule showing the Development Fees in place as of the Effective Date as Exhibit “H” only for the specific uses therein identified. The City shall not impose any future mitigation measure, exaction or Development Fee on the Property, the Project or the Development Plan (unless modifications to the Project necessitate such future mitigation measures, exactions or Development Fees, which are reasonably related and roughly proportional to the impacts associated with modifications to the Project) or any portion thereof, except those existing Development Fees in existence on the Effective Date of this Agreement as they may be amended and increased from time to time and for different improvements and/or uses 890
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as Owner may later develop and for new categories as provided in this paragraph. Further, except as otherwise provided herein the City shall not impose any new categories of Development Fees to the Project (“DIF Vesting”). Notwithstanding the foregoing, the DIF Vesting shall terminate on the seventh (7th) anniversary of the Effective Date (“DIF Vesting End Date”). After the DIF Vesting End Date, the City may apply subsequently adopted new categories of DIF to the Project, the Property and the Development Plan if the same are applied uniformly to development either (i) throughout the City or (ii) within 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 and the Development Approvals. Notwithstanding the forgoing, it is understood and agreed that when the Owner applies for permits or entitlements under the Development Plan the more detailed plans submitted in connection with the same may disclose the need for easements, dedications or rights of way for Public Improvements serving the Project not previously foreseeable and the Developer shall cooperate in good faith with City to grant such rights to City at no cost to City.
5.12 Fair Share Payments; Oversized Improvements; Fee Credits.
5.12.1 Construction of Oversized Public Improvements. The Parties acknowledge that certain of the Public Improvements, to be constructed by Owner may, to a greater or lesser extent, constitute Oversized Improvements and that owners of other properties may benefit from such Oversized Improvements. In addition, the City agrees that, in recognition of the regional nature of certain street and, possibly, other improvements made to the Property by Owner, City shall use good faith efforts so that owners of all property that will reasonably benefit from the Improvements including Oversized Improvements and certain components of the Sunset Avenue Improvements as determined in accordance herewith (“Benefitted Properties”) or otherwise benefitted by the regional Improvements who apply for entitlements will pay their Fair Share for such Public Improvements, either directly or through subdivision agreements or other agreements, between such owners and the City, or between owners of Benefitted Properties.. The DIF Credit and Reimbursement Agreement shall include the obligations specified in this Section and elsewhere in this Agreement.
5.12.2 Fair Share Determination. “Fair Share” shall mean the amount if any, of Owner’s contribution to the cost of any Public Improvements and unless otherwise provided on Exhibit “I” or elsewhere in this Agreement with respect to a particular improvement, shall be calculated for the Project based on the Project’s proportion of the benefit conferred on all Benefitted Properties, as established by a regional benefit study prepared by independent professional consultants experienced in the preparation of “zone of benefit” studies. The consultants shall be selected by City, and their conclusions shall be subject to review and approval by City. City shall afford Owner, and any other involved developer(s), the opportunity to review and comment on the tentative conclusions, and such comments shall be taken into consideration by City in its review. The costs of any such study shall be deemed to be a part of the cost of the Oversized Facility to which it pertains. The fees and costs of the consultants shall be solely paid, initially, by the developers seeking entitlements and then involved. The Parties recognize, however, that it will not always be possible to implement or achieve such goals, given the size, timing of development and nature of the other Benefitted Properties, and nothing herein shall be deemed to require City to fund or reimburse any portion of the excess costs other than from funds 891
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actually collected from third party developers expressly for such purpose. For the sake of clarity, the City shall not be responsible to pay for the cost of any such improvements or any portions thereof out of any fund not specifically set aside for such purpose including but not limited to its general fund or special fund revenues.
5.12.3 Fee Credits. To the extent an improvement is included in City’s current Nexus Study that is a component of City’s DIF program, the City shall recognize and apply in lieu credit against the fees associated with the specific Nexus Study, equal to the actual documented cost of improvements and/or dedications made in the development of the Project by Owner, even if improvement was funded by a CFD or other alternative financing mechanism, and for which the fees would otherwise be imposed in accordance with City ordinances and resolutions; provided, however, that such in lieu credit shall not exceed the amount established by the City’s DIF program for construction of such improvements and/or dedications. These in lieu fee credits shall be further defined within the DIF Credit and Reimbursement Agreement. For the sake of clarity, it is understood and agreed by Owner that credits to TUMF and MSHCP development impact fees shall be subject to the rules of the Western Riverside Regional Council of Governments (“WRCOG”) and Western Riverside Regional Conservation Agency rules concerning fee credits as administered by those agencies. This paragraph shall apply to all DIF credits sought by Owner under this Agreement.
5.13 Limits on Public Funds. Notwithstanding anything else to the contrary herein, the parties acknowledge and agree that in no event shall the cumulative total of public funds, if any, as defined in California Labor Code Section 1720(b), received by Owner with respect to the Project exceed the amount of the conditioned public improvements imposed on the Project as part of the Development Approvals.
6. FINANCING OF PUBLIC IMPROVEMENTS.
6.1 Intent. The intent of this Section 6 is to establish the contractual framework for mutual cooperation between the City and Owner necessary to finance and implement the Project.
Accordingly, the City shall take all actions reasonably necessary, and Owner shall take all actions reasonably necessary and shall reasonably cooperate, as appropriate, in furtherance of the development and operation of the Project.
6.2 Formation of Community Facilities Districts.
6.2.1 Owner agrees to submit a petition(s) to the City and or California Statewide Communities Development Authority (“CSCDA”) under the Mello Roos Act for formation of one or two CFDs over some or all of the Owner’s Property. Owner has the sole and absolute discretion to determine if it will proceed with one CFD or two CFDs to finance eligible facilities and TUMF and DIF payments defined herein as Authorized Facilities and Fees, and Authorized Services (as defined below). If the City is the sponsor of the CFD, the City shall initiate formation of the CFD(s) promptly following submission by Owner of any such petition and compliance with section 53318(d) of the Mello-Roos Act. City agrees to cooperate in the formation of the CFD should the Owner elect CSCDA to be the sponsor of the CFD(s). Owner agrees to vote in favor of the formation of the CFD(s) for which it has petitioned. The CFD shall also be authorized to finance City services provided to only the parcels within the boundaries of the CFD, provided such services 892
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are authorized under the Mello Roos Act and to the extent that the services do not supplant services already available within the territory of the CFD at the time the CFD is created (“Authorized Services”).
6.2.2 The Rate and Method of Apportionment of Special Taxes for the CFD (“RMA”) shall provide, in part:
(a) Special taxes shall be levied to finance Authorized Facilities and Fees, should the Owner, in its sole and absolute discretion, decide to form the CFD to finance any such Authorized Facilities and Fees, which decision shall remain subject to the approval of the City;
(b) Special taxes for Authorized Services (“Service Special Tax”) shall only be levied against parcels used for industrial/warehouse/logistic purposes (collectively, “Industrial Property”) and the levy of the Service Special Tax shall commence upon the issuance of a certificate of occupancy prior to May 1 for an Industrial Property;
(c) The maximum Service Special Tax rate in the first year that there is a levy of the Service Special Tax for an Industrial Property parcel shall be at a rate of $0.20 per building square foot, not including space devoted to stairwells, public restrooms, vehicle parking and areas incident thereto, and mechanical equipment incidental to the operation of any such building, 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 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%);
(d) The CFD for Authorized Services shall be formed prior to the City’s issuance of a final certificate of occupancy for the first Industrial Property; and (e) A budgeting process that includes that each Fiscal Year the Service Special Taxes for each parcel shall be reduced by 100% of the aggregated amount of Sales Tax Revenues generated by the Industrial Property within the boundaries of the CFD and collected by the City in the preceding Fiscal Year on a pro rata basis based on taxable building square footage for each parcel.
6.2.3 Owner and the City shall cooperate reasonably in developing the RMA(s).
Promptly following Owner’s request to have CFD Bonds issued, Owner and the City shall meet with the City’s public financing consultants to determine reasonable and appropriate issuance dates, amounts, and main financing terms. Contemporaneously with the formation of the CFD, Owner and the City shall enter into a CFD Acquisition and Reimbursement Agreement that shall apply to the acquisition and construction and/or reimbursement of Authorized Facilities and Fees.
6.2.4 In the event Owner conveys any portion of the Property to City or any Outside Agencies and said Property (or part thereof) is subject to payment of special taxes for Authorized Facilities and Fees and CFD Bonds have been issued and are outstanding, Owner shall 893
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prepay the special taxes pursuant to the terms of the RMA with respect to the portion of the Property being conveyed prior to completion of any such conveyance.
6.2.5 Except to the extent permitted by this Section 6 or otherwise approved by Owner, the City shall not initiate the formation of any other land-secured financing district or assessment district involving the levy of special taxes or assessments for facilities or services with regards to the Property.
6.3 City Council Approval. Notwithstanding the foregoing, it is acknowledged and agreed by the Parties that nothing contained in this Section 6 shall be construed as committing or requiring the City Council to authorize and approve the formation of the CFD, or to issue and sell CFD Bonds.
6.4 City’s Reimbursement to Owner. Owner shall be entitled to reimbursement from the City for: (i) an Owner’s Deficit, if such a deficit occurs, as provided in Section 5.5.2(d)(iii), and (ii) the Substation Reimbursement, as provided in Section 5.9.3(b) (collectively, “Maximum Reimbursement Payment”).
7. REVIEW FOR COMPLIANCE.
7.1 Annual Review. The Community Development Director, in consultation with the City Manager and City Attorney, shall review this Agreement annually, on or before the September 15th of each year commencing on the September 15th at least six months after the Effective Date, in order to ascertain the good faith compliance by Owner with the terms of the Agreement. This review shall be limited in scope to compliance with the terms of this Agreement pursuant to Government Code Section 65865.1 and the Banning Municipal Code, in effect on the Effective Date. On or before July 1st of each year, Owner shall submit an annual monitoring report, in a form specified by the Community Development Director, providing all information necessary to evaluate such good faith compliance as determined by the Community Development Director.
7.2 Procedure.
7.2.1 During either an annual review or a special review at a public hearing, Owner shall be required to demonstrate good faith compliance with the terms of the Agreement.
7.2.2 Upon completion of an annual review or a special review, the Community Development Director shall submit a report to the Planning Commission and City Council setting forth the evidence concerning good faith compliance by Owner with the terms of this Agreement and his recommended finding on that issue. The Planning Commission shall hold a public hearing regarding Owner’s good faith compliance with this Agreement.
7.2.3 Within thirty (30) days following the date of the Planning Commission’s public hearing the Planning Commission shall forward its recommendation to the City Council.
After receiving the Planning Commission’s recommendation, the City Council shall hold a public hearing regarding Owner’s good faith compliance with this Agreement. If the City Council finds on the basis of quantifiable, objective substantial evidence that Owner has complied in good faith with the terms and conditions of this Agreement, the review shall be concluded. 894
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7.2.4 If the City Council makes a preliminary finding that Owner has not complied in good faith with the terms and conditions of this Agreement, the City Council may modify or terminate this Agreement as provided in Section 7.3 and Section 7.4. Notice of default as provided under Section 8.4 of this Agreement shall be given to Owner prior to proceeding under Section 7.3 and Section 7.4.
7.3 Proceedings Upon Modification or Termination. If, upon a preliminary finding under Section 7.2, City determines to proceed with modification or termination of this Agreement, City shall give written notice to Owner of its intention so to do. The notice shall be given at least ten calendar days prior to the scheduled hearing and shall contain:
(a) The time and place of the hearing;
(b) A statement as to whether or not City proposes to terminate or to modify the Agreement; and,
(c) Such other information as is reasonably necessary to inform Owner of the nature of the proceeding and the specific issues asserted by the City as not demonstrating good faith compliance.
7.4 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, Owner shall be given an opportunity to be heard and shall be entitled to present written and oral evidence with respect to its good faith compliance with the terms and conditions of this Agreement and any other matters related to this Agreement and the development of the Property. If the City Council finds, based upon substantial evidence, that Owner has not complied in good faith with the terms or conditions of the Agreement, the Council may terminate this Agreement or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the City. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.
7.5 Certificate of Agreement Compliance. If, at the conclusion of an annual or special review, Owner is found to be in compliance with this Agreement, City shall, upon request by Owner, promptly issue a Certificate of Agreement Compliance (“Certificate”) to Owner stating that after the most recent annual or special review and based upon the information known or made known to the Community Development Director and City Council that (1) this Agreement remains in effect and (2) Owner is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after an annual or a special review and shall state the anticipated date of commencement of the next annual review. Owner may record the Certificate with the County Recorder. If the City shall fail to conduct any annual review, Owner shall be deemed to be in compliance with the requirements of this Agreement.
Whether or not the Certificate is relied upon by transferees or Owner, City shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Community Development Director or City Council. 895
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8. DEFAULT AND REMEDIES.
8.1 Remedies in General.
8.1.1 It is acknowledged by the Parties that City would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof.
8.1.2 In general, each of the Parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that City shall not be liable in damages to Owner, or to any successor in interest of Owner, or to any other person, and Owner covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or (c) Arising out of or connected with any dispute, controversy, or issue regarding the application, validity, interpretation or effect of the provisions of this Agreement; or
(d) For any injury to or interference with the rights of Owner, allegedly or actually arising out of, or incurred in connection with, the parties entering this Agreement, or their exercise of any rights under this Agreement.
8.1.3 Notwithstanding the foregoing, Owner is entitled to pursue any claims for damages against City arising out of any breach of City concerning the Reimbursement Agreement or the DIF Credit Agreement. Likewise and notwithstanding anything to the contrary in this Agreement, the City and Owner shall have the right to pursue claims for damages against the other for the non-payment of any monetary amount expressly provided for in this Agreement.
Notwithstanding the foregoing, Owner’s liability to the City and City’s liability to Owner in connection with this Agreement shall be limited to direct damages and shall exclude any other liability, including without limitation liability for special, indirect, punitive, or consequential damages in contract, tort, warranty, strict liability or otherwise. If either City or Owner fail to make a payment due under this Agreement on the date specified in this Agreement, interest shall accrue on such amount at the rate of ten percent (10%) per annum until such amount is paid in accordance with this Agreement. Claims by Owner concerning the TUMF Improvement and Credit Agreement must be brought against WRCOG and not City. Claims by Owner concerning MSHCP implementation must be brought against RCA and not City.
8.2 Specific Performance.
8.2.1 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 Agreement and should be available to the Parties for the following reasons:
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(a) Money damages are unavailable against City except as provided in Section 8.1 above.
(b) Due to the size, nature, and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, Owner may be foreclosed from other choices it may have had to utilize the Property or portions thereof. Owner has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate Owner for such efforts.
8.2.2 Accordingly, it is expressly recognized that injunctive relief and specific enforcement of this Agreement are proper and desirable remedies, and it is agreed that any claim by Owner against City for an alleged breach of this Agreement shall be remedied by injunctive relief or an appropriate action for specific enforcement of this Agreement. It is agreed that specific performance is not available to City against Owner, although City can seek the remedy of injunctive relief against Owner.
8.3 General Release. Except for non-damage remedies, including the remedy of specific performance and judicial review as provided in this Agreement, Owner, for itself, its successors and assignees, hereby releases the City, its officers, agents, employees, and independent contractors from any and all claims, demands, actions, or suits of any kind or nature whatsoever arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, on any law or ordinance which seeks to impose any other monetary liability or damages, upon the City because it entered into this Agreement or because of the terms of this Agreement. Owner hereby waives the provisions of Section 1542 of the Civil Code which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” Notwithstanding the foregoing, this general release is inapplicable to claims that City has breached the TUMF Improvement and Credit Agreement, Reimbursement Agreement or the DIF Credit Agreement.
8.4 Termination or Modification of Agreement for Default of Owner. Subject to the provisions contained in Section 7.4 herein, City may terminate or modify this Agreement for any failure of Owner to perform any material duty or obligation of Owner under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as “Default”); provided, however, City may terminate or modify this Agreement pursuant to this Section only after providing written notice to Owner of default setting forth the nature of the default and the actions, if any, required by Owner to cure such default and, where the default can be cured, Owner has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default. In addition to the remedies specified in this Section, if Owner fails to make any of the payments 897
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specified in Sections 5.2, 5.5.1, 5.9, 5.9.1, 5.9.3, 5.10.4, 5.10.5 or 5.10.6 after the City's completion of the process specified in this section, it may in its sole discretion withhold issuance of permits sought by Owner until such payments are made by Owner and pursue any other remedies under this Agreement.
8.5 Termination of Agreement for Default of City. Owner may terminate this Agreement only in the event of a default by City in the performance of a material term of this Agreement and only after providing written notice to City of default setting forth the nature of the default and the actions, if any, required by City to cure such default and, where the default can be cured, City has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default. During the time when Owner alleges the existence of a City Default and without limiting any of its other available remedies, Owner shall not be obligated to proceed with or complete the Project or any phase of the Project, nor to reserve or dedicate any property pursuant to this Agreement. Upon a City Default, any resulting delays in Owner’s performance shall neither be a default by Owner nor constitute grounds for termination or cancellation of this Agreement by the City.
8.6 Attorneys’ Fees. Should any legal action be brought by either Party against the other for default under this Agreement or to enforce or interpret any provision hereof, the Party prevailing in such action shall be entitled to recover against the non-prevailing Party its reasonable attorneys’ fees and costs incurred in such action.
9. THIRD PARTY LITIGATION.
9.1 To the maximum extent permitted by law, Owner 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 Owner's activities in connection with the Development and/or construction of the Project, and which may arise from the direct or indirect operations of Owner or those of Owner's contractors, agents, tenants, employees, or any other persons acting on Owner'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.
9.2 Without limiting the generality of Section 9.1, Owner shall also 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 Owner or Owner's contractors are required to pay prevailing wages pursuant to Labor Code Section 1720 et seq., in connection with the Development of the Project.
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9.3 Without limiting the generality of Section 9.1, in the event of any legal action challenging the validity, applicability, or interpretation of any provision of this 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, Owner 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.
9.4 Without limiting the generality of Section 9.1, Owner shall defend indemnify and hold Indemnitees free and harmless from any liability, based or asserted, upon any act or omission of Owner, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions.
9.5 With respect to any legal action or claim falling within Owner's defense, indemnity, and hold harmless obligations under this Agreement:
(a) City shall promptly notify Owner of any such claim, action or proceeding, and City shall cooperate in the defense save and except claims for damages arising through the sole active negligence or sole willful misconduct of City or from breach of this Agreement by City, and if City fails to promptly notify Owner of any such claim, action or proceeding, or if City fails to cooperate in the defense, Owner shall not thereafter be responsible to defend, indemnify, or hold harmless City.
(b) City shall have the right to select counsel of its choice and Owner 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. 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. The City shall refund to Owner any unexpended funds from the deposit within thirty (30) days of any final disposition or full and complete settlement of the action or claim. (c) In the event of any litigation challenging the effectiveness of this Agreement, or any portion hereof, this 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, Owner may elect to continue Development under this 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.
9.6 In the event any initiative, moratorium, referendum, statute, ordinance, limitation or other measure is enacted by or under authority of City subsequent to the Effective Date that would otherwise modify the development rights vested pursuant to this Agreement, Owner reserves the right to challenge any such enactment in a court of law should it become necessary to 899
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protect the development rights vested in the Owner pursuant to the terms and conditions of this Development Agreement, and City agrees that (subject to any judicial writ or order to the contrary) Owner shall continue to enjoy such development rights until such time, if ever, as all such challenges to the validity of such measure, or its interpretation or applicability to Owner have been finally resolved (including the expiration of all times for appeal without any appeals having been filed) adversely to Owner. Any exercise by Owner of challenged development rights shall be at Owner’s sole risk and expense, and City will not be liable to Owner if it is determined that Owner was not entitled to exercise such development rights.
9.7 This Section shall survive the expiration or earlier termination of this Agreement.
Notwithstanding the foregoing, Owner’s indemnity obligations specified in this Section 9.7 regarding Owner’s design, construction or dedication of public improvements shall terminate one (1) year after City accepts Owner’s offer of dedication of public improvements.
10. MORTGAGEE PROTECTION.
10.1 The Parties hereto agree that this Agreement shall not prevent or limit Owner, in any manner, at Owner’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property.
10.2 City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with Owner and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by Owner in the performance of Owner’s obligations under this Agreement.
(c) If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Owner under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Owner. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such Party under this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu 900
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of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement. If the Community Development Director, acting in consultation with the City Manager and City Attorney, provides prior written consent, which consent shall not be unreasonable withheld, a Mortgagee in possession shall not have an obligation or duty under this Agreement to perform any of Owner’s obligations or other affirmative covenants of Owner hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by Owner is a condition precedent to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City’s performance hereunder. Any transfer by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement.
11. MISCELLANEOUS PROVISIONS.
11.1 Recordation of Agreement. This Agreement and any amendment, modification, termination or cancellation thereof shall be recorded with the County Recorder by the Clerk of the Board of Supervisors within the period required by Section 65868.5 of the Government Code.
11.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties, and there are no oral or written representations, understandings, or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings, or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
11.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the Public Benefits, including the payments set forth therein, are essential elements of this Agreement and City would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.
11.4 Preemption or Frustration of Agreement by Changes in Law. In the event that any Party has or acquires actual knowledge that: (i) state or federal law or regulations enacted after the Effective Date preempt this Agreement or City’s authority to perform hereunder, or (ii) the action or inaction of any governmental agency or quasi-public entity arising from or related to this Agreement, apart from City or any instrumentality thereof, frustrates compliance with one or more provisions of this Agreement as a matter of law, such a Party shall:
(a) Provide the other Party with written notice of such state or federal law or regulation, a copy of such law or regulation and a statement identifying how such law regulation conflicts with the provisions of this Agreement. (b) Upon notice by one Party to another as to preemption or frustration of this Agreement by law or regulation, the Parties shall promptly meet and confer 901
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in good faith and make a reasonable attempt to modify or amend this Agreement to comply with such applicable state or federal law or regulation in a manner that is least disruptive to the purpose and intent of this Agreement. If the Parties cannot agree on a manner or method to comply with such state or federal law or regulation, the Parties shall follow the Dispute Resolution procedures set forth in this in section 8 of this Agreement.
11.5 RESERVED
11.6 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California.
This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof.
11.7 Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between the City and the Owner. It is anticipated due to the term of this Agreement that clarification, interpretation and refinements to the Development Approvals may be appropriate with respect to the details of performance of the City and the Owner. To the extent allowable by law, the Owner shall retain a certain degree of flexibility as provided herein with respect to all matters, items and provisions covered in general under this Agreement and exhibits thereto. When and if the Owner finds it necessary or appropriate to make clarification, interpretation and refinements, the Parties shall effectuate such changes, adjustments or clarifications through operating memoranda (“Operating Memoranda”) approved by the Parties in writing, which reference this Section of the Agreement. Operating Memoranda are not intended to constitute an amendment to this Agreement but mere ministerial clarifications; therefore, public notices and hearings shall not be required. The City Attorney shall be authorized, upon consultation with the Owner, to determine whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such character to constitute an amendment to the Agreement which requires compliance with the provisions of this 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 to execute any Operating Memoranda hereunder without Planning Commission or City Council action and without public hearing.
Although other matters may also fall within the scope of Operating Memoranda, any clarification, interpretation and refinements to this Agreement which does not relate to the Term, permitted uses of the Project, provisions for the reservation or dedication of land, grant of easement, or the conditions, terms, restrictions and requirements relating to Subsequent Development Approvals of City, revisions to Public Benefits (other than to the time for performance of such Public Benefits) or monetary exactions of Owner, shall be considered an “Operating Memoranda”.
Notwithstanding the foregoing, if the City Manager determines that such requested Operating Memorandum must or should be submitted for approval to the Planning Commission or City Council, the City Manager may so submit the requested Operating Memorandum for approval.
11.8 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 902
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11.9 Gender and Number. As used herein, the neuter gender includes the masculine and feminine, the feminine gender includes the masculine, and the masculine gender includes the feminine. As used herein, the singular of any word includes the plural.
11.10 Rule Against Perpetuities. This Agreement shall be construed by all interested Parties, to the maximum extent possible, to be consistent with, and not in violation of, the Rule against Perpetuities.
11.11 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
11.12 Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party’s right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter.
11.13 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 Agreement.
11.14 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the covenants to be performed hereunder by such benefited Party.
11.15 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each Party and each successor in interest during ownership of the Property or any portion thereof.
11.16 Counterparts. This 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.
11.17 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a Party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Riverside Historic Courthouse of the Superior Court, and the Parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.
11.18 Project as a Private Undertaking. It is specifically understood and agreed by and between the Parties hereto that the development of the Project is a private development, that neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants, and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this 903
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Agreement. The only relationship between City and Owner is that of a government entity regulating the development of private property and the owner of such property.
11.19 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The Parties further agree to mutually cooperate with one another in carrying out the purposes of this Agreement.
11.20 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by City of its power of eminent domain, or to mandate City’s use of eminent domain.
11.21 Agent for Service of Process. In the event Owner is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, Ownershall file with the Community Development Director, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon Owner. If for any reason service of such process upon such agent is not feasible, then in such event Owner may be personally served with such process out of this County and such service shall constitute valid service upon Owner.
Owner is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto. Owner for itself, assigns and successors hereby waives the provisions of The Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S.
No. 6638).
11.22 Designation of City Officials. Except for functions to be performed by the City Council, City may, at any time and in its sole discretion, substitute any City official to perform any function identified in this Agreement as the designated responsibility of any other official.
City shall provide notice of such substitution pursuant to Section 2.7; provided, however, the failure to give such notice shall not affect the authority of the substitute official in any way.
11.23 Legally Binding Contract; Enforceability.
11.23.1 It is the intent of City and Owner that this Agreement is a legally binding contract which shall prevail over the provisions of any subsequently enacted moratoria, statutes, ordinances, limitations, or other measures, whether or not enacted by City, or under the authority of City by voter initiative or referendum, and whether or not such 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 904
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improvements or affecting parcel or Subdivision Maps, building permits, occupancy certificates, or other entitlement to use the Property which are issued by City, subject only to the rights and powers reserved to City under the terms of this Agreement and the requirements of California law.
11.23.2 This Agreement shall not become binding and shall have no force and effect whatsoever until such time as it has been approved by the City Council pursuant to a duly enacted ordinance and fully executed by and delivered to all of the Parties hereto.
11.24 Authority to Execute. The person executing this Agreement on behalf of Owner warrants and represents that he has the authority to execute this Agreement on behalf of his corporation, partnership or business entity and warrants and represents that he has the authority to bind Owner to the performance of its obligations hereunder.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year set forth below.
[Signatures appear on following pages.]
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CITY OF BANNING
Dated:
By:
Mayor, City of Banning
ATTEST:
Sandra Calderon
Deputy City Clerk
By:
Deputy
(SEAL)
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Owner:
NP BANNING INDUSTRIAL, LLC
By: NPD Management, LLC,
a Missouri limited liability company
By:
Nathaniel Hagedorn, Manager
Dated:
(ALL SIGNATURES SHALL BE ACKNOWLEDGED BEFORE A NOTARY PUBLIC.
EXECUTION ON BEHALF OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.)
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California }
}
County of }
On before me, ,
Date Here Insert Name and Title of the Officer
personally appeared
Name(s) of Signer(s)
,
who proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Place Notary Seal Above Signature of Notary Public
[ACKNOWLEDGMENT PAGE TO _________________________]
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EXHIBIT “A-1”
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Development Agreement No.___
EXHIBIT “A-1”
LEGAL DESCRIPTION OF THE NORTHERN PORTION OF THE PROPERTY AND
THE SLB EXTENSION
PARCEL A:
PARCELS 1 THROUGH 4, INCLUSIVE OF MAPS AND LETTERED LOTS A THROUGH J, INCLUSIVE, OF PARCEL MAP NO.
25541, IN THE CITY OF BANNING, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, ON FILE IN BOOK 166 PAGES 27
THROUGH 35, INCLUSIVE, OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
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Development Agreement No.___
EXHIBIT “A-2”
LEGAL DESCRIPTION OF THE SOUTHERN PORTION OF THE PROPERTY PARCEL B:
PARCELS 1 THROUGH 9 AND LETTERED LOTS "A" THROUGH "O", ALL INCLUSIVE OF PARCEL MAP 28971, IN THE
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 198 PAGES 8 THROUGH 10
INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM PARCELS 3 AND 7, THOSE PORTIONS CONVEYED TO THE
CITY OF BANNING BY A DEED
RECORDED JANUARY 15, 1998 AS INSTRUMENT NO. 015506 OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM PARCEL 3 ALL THAT PORTION CONVEYED TO THE
CITY OF BANNING BY A DEED
RECORDED MARCH 22, 2002 AS INSTRUMENT NO. 2002-146041.
PARCEL C:
PARCELS 1 AND 2 AND LETTERED LOTS A, B, AND C OF PARCEL MAP 13521, IN
THE COUNTY OF RIVERSIDE, STATE OF
CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 83, PAGES 13 THROUGH 15,
INCLUSIVE OF PARCEL MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM THOSE PORTIONS CONVEYED TO THE CITY OF
BANNING, A MUNICIPAL CORPORATION, BY
DEED RECORDED JANUARY 15, 1998, AS INSTRUMENT NO. 98-015506, OFFICIAL RECORDS.
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EXHIBIT “B”
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Development Agreement No.___
EXHIBIT “B”
MAP SHOWING PROPERTY AND ITS LOCATION
911
EXHIBIT “C”
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Development Agreement No.___
EXHIBIT “C”
EXISTING DEVELOPMENT APPROVALS
1. certification of the EIR;
2. adoption of a general plan amendment;
3. adoption of a zone change for the Northern Portion of the Property;
4. adoption of a prezoning change for the Southern Portion of the Property;
5. adoption of the Specific Plan to regulate development within the Property;
6. approval of this Agreement; and
7. approval of tentative parcel map No. TPM 38118.
COPIES OF THE EXISTING DEVELOPMENT APPROVALS LISTED ABOVE ARE ON FILE
IN THE CITY OF BANNING PLANNING DEPARTMENT AND ARE INCORPORATED HEREIN BY REFERENCE.
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EXHIBIT “D”
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Development Agreement No.___
EXHIBIT “D”
EXISTING LAND USE REGULATIONS
COPIES OF THE EXISTING LAND USE REGULATIONS LISTED ABOVE ARE ON FILE IN
THE CITY OF BANNING PLANNING DEPARTMENT AND ARE INCORPORATED HEREIN BY REFERENCE.
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Development Agreement No.___
EXHIBIT “E-1”
INITIAL PHASING PLAN
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-1”
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EXHIBIT “F”
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Development Agreement No.___
EXHIBIT “F”
IMPROVEMENTS INCLUDED AS CONDITIONS OF
APPROVAL TO THE EXISTING DEVELOPMENT APPROVALS.
Depicted in Exhibit “E-1”, incorporated herein by reference Roadway Improvements, per Specific Plan
• Sunset Avenue (1-10 to Lincoln Street): Arterial Highway (110' R/W) - Full Width Improvements (if not constructed by others)
• Sunset Avenue (Lincoln Street to Sun Lakes Boulevard): Modified Secondary Highway (110' R/W) - Full Width Improvements
• Sunset Avenue (South of Sun Lakes Boulevard): Secondary Highway (88' R/W) - Full Width Improvements (if not constructed by others)
• Lincoln Street: Collector Street (78' R/W) - Full Width Improvements • Bobcat Road: Collector Street (78' R/W) - Half Width Improvements plus 10' of Roadway Improvements
• Highland Home Road (North of Sun Lakes Boulevard): Arterial Highway (110' R/W) – Half Width Improvements plus 10’ of Roadway Improvements • Highland Home Road (South of Sun Lakes Boulevard): Arterial Highway (110' R/W) - Half Width Improvements plus 10’ of Roadway Improvements • Utility Improvements
• Recycled Water (size varies)
• Water (size varies)
• Sanitary Sewer (size varies)
• Storm Drain (size varies)
• 24" Sanitary Sewer Dry Trunk Main (South of Sun Lakes Boulevard) • (2) Concrete Box Culvert Roadway Crossings along Lincoln Street • (1) Concrete Box Culvert Roadway Crossings along Sunset Avenue (South of Sun Lakes Boulevard)
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Development Agreement No.___
EXHIBIT “G-1”
Modifications to Project
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Development Agreement No.___
EXHIBIT “G-2”
DIF CREDIT AND REIMBURSEMENT AGREEMENT
DEVELOPMENT IMPACT FEE CREDIT IMPLEMENTATION AGREEMENT
(Sunset Crossroads)
This DEVELOPMENT IMPACT FEE CREDIT IMPLEMENTATION AGREEMENT (“Agreement”) is made and effective this ____ day of __________, 2025, by and between the CITY OF BANNING, a California municipal corporation (“City”), and NP BANNING INDUSTRIAL, LLC, a Missouri limited liability company (“Owner”). City and Owner are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties.”
RECITALS
A. Owner is the owner and developer of certain real property comprised ___ gross acres of land, more specifically described in the legal description set forth in Exhibit “A,” attached hereto and incorporated herein by this reference (“Property”).
B. Owner has obtained certain entitlements from the City including General Plan Amendment No. __-____, Zone Change No __-____, Pre-zone Change No. __-____, the Sunset Crossroads Specific Plan No. 20-20000002, FEIR (SCH No. __________), Tentative Parcel Map No. _____, a Sign Program, and a Development Agreement, which entitlements together allow for the development of a project currently titled “Sunset Crossroads,” which is intended to include commercial and industrial uses, including, without limitation: (a) up to 268,400 square feet of commercial uses, including Travel Center Retail Uses, a Fueling Facility, and a hotel with approximately 125 rooms; (b) up to 5,545,000 square feet of industrial land uses within a 396.5- acre portion of the Property; (c) related signage; (d) approximately 65.4 acres of land designated for Open Space-Resources (52.8 acres) and Open Space-Parks (approximately 5 acres); and approximately 23.6 acres of internal circulation features (“Project”). The Development Agreement was recorded in the official records of the County of Riverside on __________ __, 2025, as Document No. 2025-________ and became effective on __________ __, 2025 (“Development Agreement”).
C. On September 10, 2019, the Banning City Council adopted Resolution 2019-112, approving updated development impact fees, including fees for General Facilities, Police Facilities, Fire Facilities, Parkland and Park Facilities, General City Facilities, Wastewater Facilities, and Water Facilities additionally the City imposes regional development impact fees pursuant to separate ordinances known as TUMF Fees and MSHCP Fees (collectively “Development Impact Fees” or “DIF”). The final Development Impact Fee Update Study dated August 7, 2019 (“DIF Nexus Study”), is currently on file with the City.
D. The Development Agreement requires Owner to pay Development Impact Fees as set forth in the Development Agreement at Section 5.11 and Exhibit “H” for the purpose of 918
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defraying all or a portion of the cost of public improvements, public services, and community amenities related to the Project.
E. As a condition of the development approvals for the Project, as more specifically set forth the Development Agreement, City has required, or for some improvements gives the option for, Owner to design, construct, and/or install certain components of public infrastructure, and/or dedicate certain properties, that might otherwise have been funded by DIF (collectively, the “DIF Improvements”, and individually a “DIF Improvement”).
F. The City’s DIF program authorizes the City to provide a credit to project applicants against certain DIF in exchange for the applicant’s construction and dedication of public improvements covered by the nexus study for that DIF. TUMF and MSHCP credits are subject to and Owner shall comply with the rules of the Western Regional Council of Governments and the Western Riverside Regional Conservation Agreement respectively. Accordingly, the Development Agreement contemplates that, in exchange for providing the DIF Improvements, Owner shall be entitled to: (1) fee credits or reimbursements from the City for the public improvements required in Section 5.3 of the Development Agreement (“Public Improvements”), to the extent that such public improvements are included in the City’s DIF program; (2) DIF credits in the amount of Owner’s Deficit, including the portion of the Accelerated Transportation DIF Payment that was not refunded to Owner, related to the future extension of Sun Lakes Boulevard (“SLB Extension”), to the extent there remains any difference between the maximum cost included in each of the TUMF and DIF nexus studies and TUMF or DIF funds already spent on the SLB Extension; (3) a partial DIF credit due to Owner’s constructing or funding the construction of improvements to Sunset Avenue (“Sunset Avenue Improvements”) as set forth in Section 5.6 of the Development Agreement to the extent such improvements are included in City’s DIF program; (4) Parkland and Park Facilities DIF credit for the design and cost of constructing the Specific Plan Park Facilities, as set forth in Section 5.10.3 of the Development Agreement; and (5) DIF credit for Owner’s construction of Oversized Improvements to the extent an improvement is included in the DIF program, as set forth in more detail in Section 5.12 of the Development Agreement.
Sections 5.8.1 through 5.8.24 of the Development Agreement require Owner to dedicate the Fire Station Property, Water Tank Property, Electrical Property and the RO Property (“Dedication Properties”) in exchange for DIF credits, following dedication of said properties. For the sake of clarity and notwithstanding anything to the contrary herein, DIF credits shall only be due with respect to the particular DIF having the corresponding improvement identified in the Nexus Study for the DIF in question.
G. This Agreement shall be interpreted consistently with California Labor Code Section 1720(c)(2) to accomplish the Parties’ intent that the Project is a private development and exempt from payment of prevailing wages to the full extent permitted under California Labor Code Section 1720(c)(2), and any other applicable provisions and City maintains no proprietary interest in the Project; provided, however, that Owner shall pay prevailing wage for the DIF Improvements and as otherwise required by state law.
H. The Parties desire to enter into this Agreement to implement the Project in a manner consistent with the Development Agreement for the following purposes: (1) to provide for the timely delivery of the DIF Improvements; (2) to provide a means by which Owner’s costs for delivery of the DIF Improvements and related right-of-ways are offset against Owner’s DIF 919
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obligations; and (3) to provide a means for Owner to be reimbursed for DIF Improvements in accordance with the terms of the Development Agreement.
I. It is the intent of this Agreement to implement certain provisions of the Development Agreement related to the City providing credit against Developer’s required payment of DIF for qualifying improvements. If there is any conflict between this Agreement and the Development Agreement, the Development Agreement shall control. Capitalized terms which are used in this Agreement but not defined herein shall be as defined in the Development Agreement.
J. The Parties contemplate that one or more Subdivision Improvement Agreements will be entered into in connection with a final map approved and recorded in connection with the development of the Project. The Subdivision Improvement Agreements will likely include provisions related to required insurance, bonds, warranty, and other provisions related to the construction of improvements to be accepted by the City. It is the intent of this Agreement to not duplicate, contradict, or override the terms of that Subdivision Improvement Agreements, but to have the terms of the Subdivision Improvement Agreements control in the event of a conflict with the terms of this Agreement.
NOW, THEREFORE, for the purposes set forth herein, and for good and valuable consideration, the adequacy of which is hereby acknowledged, the Parties hereby agree as follows:
TERMS
1.0 Incorporation of Recitals. The Parties hereby affirm the facts set forth in the Recitals above and agree to the incorporation of the Recitals as though fully set forth herein.
2.0 Construction of DIF Improvements. Owner shall construct or have constructed at its own cost and expense the DIF Improvements. The DIF Improvements are described and listed in the City’s May 2019 Traffic Fee Study and the DIF Nexus Study that support the imposition of the City’s Development Impact Fees, TUMF and MSHCP, as the same may be amended or added to under the Development Agreement. The DIF Improvements shall thereafter be shown and described more specifically on the plans, profiles, and specifications that will be prepared by or on behalf of Owner and approved by City, as provided by this Agreement and under applicable law.
The DIF Improvements are the public facilities identified in the Nexus Study upon which the applicable DIF Credit (as defined in this Agreement) is calculated. Owner shall be eligible to receive the applicable DIF Credit against payment of the DIF upon the proof of payment under the construction contract for the applicable DIF Improvements. Owner shall provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary to fully and adequately complete the DIF Improvements.
2.1 Pre-Approval of Plans and Specifications. Owner shall obtain City approval of all plans and specifications of the DIF Improvements before starting construction. In preparing the plans and specifications, Owner shall utilize competent design professionals who timely perform design services at a competitive cost. City approval of plans and specifications shall not relieve Owner from ensuring that all DIF Improvements conform with all other requirements and standards set forth in this Agreement and under applicable law. 920
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2.2 Bidding and Contracting Requirements. Owner shall comply with Exhibit “C” to this Agreement and all state and local laws, ordinances, regulations, codes, standards, and other requirements applicable to the bidding and contracting for the construction of the DIF Improvements including but not limited to Labor Code Section 1720 requiring the payment of prevailing wages.
2.3 Permits and Notices. Before starting any work on the applicable DIF Improvements, the contractor(s) retained by Owner for the work (each, a “Contractor”) shall, at its sole cost and expense, obtain all necessary permits and licenses and give all necessary and incidental notices required for the lawful construction of the applicable DIF Improvements and performance of the Contractor’s obligations under its contract with Owner. The Contractor shall conduct the work in full compliance with the regulations, rules, standard procedures, and other requirements contained in any permit or license issued to the Contractor.
2.4 Insurance and Public Works Requirements. Owner and all of its Contractors shall pay prevailing wages (in accordance with Articles 1 and 2 of Chapter 1, Part 7, Division 2 of the Labor Code) as required by law and otherwise comply with applicable provisions of the Labor Code, the Government Code and the Public Contract Code on work on all DIF Improvements. The Contractors shall be required to provide proof of insurance coverage throughout the term of the construction of the applicable DIF Improvements reasonably acceptable to City. The Contractors shall comply with such other reasonable requirements relating to the construction of the applicable DIF Improvements which Owner, in consultation with City, may impose by written notification delivered to the Contractors at any time. The Contractors shall provide proof to Owner, at such intervals and in such form as Owner may require, that the foregoing requirements have been satisfied.
2.5 Quality of Work/Compliance with Laws. The construction plans and specifications for the DIF Improvements shall be prepared in accordance with all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements.
The DIF Improvements shall be completed in a good and workmanship like manner in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced.
2.6 Standard of Performance. The DIF Improvements shall be completed in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. The Contractors shall be skilled in the professional calling necessary to perform the work and shall have all licenses, permits, qualifications, and approvals of whatever nature legally required to perform the work, and such licenses, permits, qualifications, and approvals shall be maintained throughout the term of this Agreement.
2.7 Alterations to DIF Improvements. All work shall be done, and the applicable DIF Improvements completed, as shown on approved plans and specifications, and any subsequent alterations thereto. If during the course of construction and installation it is reasonably determined that public health and safety interests require alterations in the applicable DIF Improvements, the Contractor shall undertake such design and construction changes as may be 921
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reasonably required by City and agreed to by Owner. Any and all alterations in the plans and specifications and the applicable DIF Improvements to be completed may be accomplished without first giving prior notice thereof to the Contractor’s surety for this Agreement.
2.8 Coordination of DIF Improvements. Construction of the DIF Improvements shall include any transitions and/or other incidental work deemed necessary for drainage or public safety, as shown more specifically for the applicable DIF Improvements. Owner shall be responsible for the replacement, relocation, or removal of any component of any existing public or private improvement in conflict with the construction or installation of the DIF Improvements, to the extent that Owner is permitted to do so, with such cooperation as may be necessary from the City, including, without limitation, condemnation proceedings. Such replacement, relocation, or removal shall be performed to the satisfaction of City, which shall not be unreasonably withheld, conditioned, or delayed, and Owner shall make commercially reasonable efforts in coordinating with private owners of such improvements, if any.
3.0 Maintenance of DIF Improvements. City shall not be responsible or liable for the maintenance or care of any completed portion of the DIF Improvements until City expressly approves and accepts that portion in writing. City shall exercise no control over completed portions of the DIF Improvements until accepted. Any use by any person of any completed portion of the DIF Improvements, shall be at the sole and exclusive risk of Owner at all times prior to City’s acceptance of completed portions of the DIF Improvements. Owner shall maintain completed portions of the DIF Improvements in a state of good maintenance and repair until they are approved and accepted by City, and until the security for the performance of the completed portion of the DIF Improvements is released. It shall be Owner’s responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. If Owner fails to properly prosecute its maintenance obligation under this section, following thirty (30) days’ written notice by City, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Owner and the surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by any completed portion of the DIF Improvements or their condition prior to acceptance, except to the extent caused by, relating to, or arising out of the negligent acts or omissions or willful conduct of City or its elected officials, officers, employees, volunteers, or agents. The process and terms for the City accepting a completed DIF Improvement shall be as provided in the applicable Subdivision Improvement Agreement, if any, entered into for that applicable portion of the Project.
4.0 Fees and Charges. Owner shall, at its sole cost and expense, pay all fees, charges, and taxes required by the Development Agreement arising out of the construction of the DIF Improvements, including, without limitation, all plan check, design review, engineering, inspection, sewer treatment connection fees, and other service fees established by City. All of these fees may be included in the DIF Credit subject to the other terms of this Agreement and the Development Agreement.
5.0 City Inspection of DIF Improvements. Owner shall, at its sole cost and expense, and at all times during construction of the DIF Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the DIF Improvements and areas where construction of the DIF Improvements is occurring or will occur. 922
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6.0 Liens. Upon the expiration of the time for the recording of claims of liens as prescribed by Civil Code Sections 8412 and 8414 with respect to the DIF Improvements, Owner shall provide to City such evidence or proof as City shall require that all persons, firms, and corporations supplying work, labor, materials, supplies, and equipment to the construction of the DIF Improvements, have been paid in full, and that no claims of liens have been threatened (with such threats made in writing) or recorded by or on behalf of any such person, firm, or corporation.
7.0 Acceptance of DIF Improvements; As-Built or Record Drawings. As the applicable DIF Improvements are completed by Owner and approved by City, and if they comply with all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements, City shall be authorized to accept the completed DIF Improvements or any portion thereof as provided herein or in the applicable Subdivision Improvement Agreement, if any. City may, in its reasonable discretion, accept fully completed portions of the applicable DIF Improvements before all of the DIF Improvements for an area are complete, which shall not release or modify Owner’s obligation to complete the remainder of the DIF Improvements. Upon the total or partial acceptance of the applicable DIF Improvements by City, Owner shall file with the Recorder’s Office of the County of Riverside a notice of completion for the accepted DIF Improvements in accordance with California Civil Code Sections 8182, 8184, 9204, and 9208 (“Notice of Completion”), and after the passage of all required periods of time for filing claims, and then resolution of all outstanding claims, DIF Improvements which have been accepted by the City in accordance with this Agreement shall become the sole and exclusive property of City without any payment therefore.. Notwithstanding the foregoing, City may not accept any portion of the applicable DIF Improvements unless and until Owner provides one (1) set of “as-built” or record drawings or plans to the City for all such portions of the applicable DIF Improvements. The drawings shall be certified and shall reflect the condition of the applicable DIF Improvements as constructed, with all changes incorporated therein.
8.0 Warranty and Guarantee. Owner hereby warrants and guarantees all the DIF Improvements against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of the DIF Improvements, for a period of one year following completion of the portion of the applicable DIF Improvements as provided by this Agreement and/or the applicable Subdivision Improvement Agreement between the parties (“Warranty”). During the Warranty, Owner shall repair, replace, or reconstruct any defective portion of the DIF Improvements or portion that is not in substantial compliance with the approved plans, profiles and specifications for the applicable DIF Improvements, in accordance with the applicable ordinances, resolutions, regulations, codes, standards, or other requirements of City. All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost and expense of Owner and the surety, except to the extent caused by, relating to, or arising out of the negligent acts or omissions or willful conduct of City, or its elected officials, officers, employees, volunteers, or agents. Upon completion of such repairs, replacements, or reconstruction required for claims made during the Warranty and after expiration of the Warranty, City shall release the related Warranty bond. As to any portion of DIF Improvements that have been repaired, replaced, or reconstructed pursuant to claims made during the Warranty, Owner agrees to Warranty those portions for an additional one year, but no additional extensions are applicable. Nothing herein shall relieve Owner from any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any DIF Improvement following expiration of the Warranty or any extension thereof. Owner’s Warranty obligation under this Section shall survive the expiration or 923
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termination of this Agreement, but the survival period shall be limited to the statutory period of limitations for claims under the applicable law. In the event of a conflict among the warranty provisions of this Section and the provisions of the applicable Subdivision Improvement Agreement, the provisions which provide the most protection to City shall control.
9.0 Administrative Costs. If Owner fails to have constructed and installed all or any part of the applicable DIF Improvements, or if Owner fails to comply with any other obligation contained within this Agreement, Owner and the surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorney’s fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law.
10.0 Default; Notice; Remedies.
10.1 Notice. Notice and Defaults under this Agreement shall be as provided for in the Development Agreement.
10.2 City Completion of DIF Improvements. If the Default pertains to the failure of Owner to reasonably and timely prosecute to completion the applicable DIF Improvements, resulting in a demonstrated deficiency of necessary public health and safety services, City may complete all remaining work on the applicable DIF Improvements, arrange for the completion of all remaining work on the applicable DIF Improvements, and/or conduct such remedial activity as in its reasonable discretion it believes is required to remedy the Default. The cost of all such work or remedial activity shall be recoverable by City from Owner. City’s right to take such actions shall in no way be limited by the fact that Owner, the Contractor, or its surety may have constructed any of the DIF Improvements at the time of City’s demand for performance. Provided, however, that the City may not undertake completion of the applicable DIF Improvement until after providing written notice to Owner of Default setting forth the nature of the Default and the actions, if any, required by Owner to cure such Default and, where the Default can be cured, Owner has failed to take such actions and cure such Default within 60 days after the effective date of such notice or, in the event that such Default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such Default within such 60 day period and to diligently proceed to complete such actions and cure such Default. In the event City elects to complete or arrange for completion of the remaining work for the DIF Improvements, City may also require all work by Owner, the Contractor, or its surety on the applicable DIF Improvements to cease in order to allow adequate coordination by City.
10.3 Other Remedies. No action by any Party pursuant to this Section 10.0 et seq. of this Agreement shall prohibit that Party from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law, except that in no event shall Owner or any of its contractors, subcontractors, or assignees be entitled to seek monetary damages from City. The Parties may exercise their rights and remedies independently or cumulatively, and the Parties may pursue inconsistent remedies. The Parties may institute an action for damages, injunctive relief, or specific performance.
11.0 Security; Surety Bonds. Prior to the commencement of any work on the DIF Improvements, the Contractor shall provide City with surety bonds in the amounts and under the 924
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terms set forth below (“Security”). The amount of the Security shall be based on the estimated actual costs to construct the applicable DIF Improvements to be constructed by the Contractor for the applicable portion of the work, as determined by City in consultation with Owner after Owner has awarded a contract for construction of the DIF Improvements to the Contractor in accordance with this Agreement (“Estimated Costs”). If City in consultation with Owner determines, in its reasonable discretion, that the Estimated Costs have changed, the Contractor shall adjust the Security in the amount requested by the City. Compliance with this Section 11.0 et seq. of this Agreement shall in no way limit or modify Owner’s indemnification obligation provided in Section
12.0 of this Agreement. In the event of a conflict between the surety bond provisions of this Section and the surety bond provisions of the applicable Subdivision Improvement Agreement, the Subdivision Improvement Agreement shall control.
11.1 Performance Bond. To guarantee the faithful performance of the DIF Improvements, to protect City if Owner is in Default as set forth in Section 10.0 et seq. of this Agreement, and to secure the one-year guarantee and Warranty of the applicable DIF Improvements, the Contractor shall provide City a faithful performance bond in an amount which sum shall be not less than one hundred percent (100%) of the Estimated Costs. City may, in its reasonable discretion, partially release a portion or portions of the Security provided under this Section as the applicable DIF Improvements or portion thereof are accepted by City, provided that the Contractor is not in default on any provision of its contract with Owner and the total remaining security is not less than ten percent (10%) of the Estimated Costs. All security provided under this Section shall be released at the end of the Warranty period, or any extension thereof as provided in Section 8.0 of this Agreement, provided that Owner is not in Default on any provision of this Agreement.
11.2 Labor & Material Bond. To secure payment to the Contractors, subcontractors, laborers, materialmen, and other persons furnishing labor, materials, or equipment for performance of the DIF Improvements, the Contractor shall provide City a labor and materials bond in an amount which sum shall not be less than one hundred percent (100%) of the Estimated Costs. The Security provided under this Section may be released by written authorization of City by passage of time within which claims of lien are required to be recorded under Civil Code sections 8410 et seq. The amount of such security shall be reduced by the total of all stop notice or mechanic’s lien claims of which City is aware, plus an amount equal to ten percent (10%) of such claims for reimbursement of City’s anticipated administrative and legal expenses arising out of such claims.
11.3 Additional Requirements. The surety for any surety bonds provided as Security shall have a current A.M. Best rating of at least “A” and FSC-VIII, shall be licensed to do business in California, and shall be satisfactory to City in its reasonable discretion. As part of the obligation secured by the Security and in addition to the face amount of the Security, Owner, the Contractor, or the surety shall secure the costs and reasonable expenses and fees, including reasonable attorney’s fees and costs, incurred by City in enforcing the obligations of this Agreement. Owner, the Contractor, and the surety shall stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the DIF Improvements, or the plans and specifications for the DIF Improvements shall in any way affect its obligation on the Security.
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11.4 Evidence and Incorporation of Security. Evidence of the Security shall be provided on the forms set forth in Exhibit “B” to this Agreement, unless other forms are deemed acceptable by City, and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Exhibit “B” and incorporated herein by this reference.
12.0 Indemnification. Owner shall defend, indemnify, and hold harmless City, its elected officials, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental agency, arising out of, or incident to, any acts, omissions, or willful misconduct of Owner, its employees, contractors, subcontractors, or agents in connection with, or arising out of, or in any way related to, or caused by, the DIF Improvements or their condition prior to City’s approval and acceptance of the DIF Improvements (“Claims”). This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorney’s fees, and related costs or expenses, and the reimbursement of City, its elected officials, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any Claim that is caused by, related to, or arising out of the negligence or willful misconduct of City or its elected officials, officers, employees, volunteers or agents.
Owner’s obligation to indemnify shall survive the expiration or termination of this Agreement and shall not be limited or restricted to insurance proceeds, if any, received by City, its elected officials, employees, or agents. The City shall provide prompt notice to Owner of any Claims, and City shall have the right to select the counsel representing City with respect to the Claims.
Notwithstanding the foregoing, Owner’s indemnity obligations specified in this Section 12.0 with respect to any given DIF Improvement shall terminate one (1) year after City accepts the DIF Improvement.
13.0 Insurance. The insurance requirement under this Agreement shall be the same as the insurance requirements in any approved Subdivision Improvement Agreements entered into by City and Owner in connection with a final map.
14.0 DIF and other Credits; Reimbursements.
14.1 DIF Credit Offset Against DIF. Under the Development Agreement and in consideration for Owner’s obligation under this Agreement for the delivery of DIF Improvements, Owner shall be entitled to receive a credit for its DIF Improvement Costs against the DIF for the Project. Owner’s Costs for delivery of the DIF Improvements shall include all costs actually and reasonably incurred by Owner, and verified by the City as reasonably incurred, that the Contractor, and third party consultants or subcontractors incurred in the design, permitting, land and right of way, construction, installation, management, and related activities for delivery of the DIF Improvements both before and after the date of execution of this Agreement but after the date of the Development Agreement (“Costs”), except that Costs shall exclude any overhead or debt service. With regard to the SLB Extension, the Costs shall include the portion of the Accelerated Transportation DIF Payment that was not refunded to Owner. Owner shall be entitled to, and the City shall grant to Owner, a credit against the DIF (“DIF Credit”) in an amount equal to the lesser of: (a) the Costs or (ii) the total amount of the DIF to be imposed and levied on the Project. The grant of DIF Credit under this Agreement shall not preclude the financing of the DIF Improvement 926
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through a Community Facilities District (“CFD”) established for all or any portion of the Project.
The determination of DIF Credit will be determined by the City in good faith with input from Owner on a quarterly or other basis.
14.2 Evidence of Costs of DIF Improvements. Before the City’s issuance of any certificate of occupancy for the Project for which the applicable DIF Improvement is needed, Owner shall provide to City reasonably satisfactory evidence of the Costs of each of the DIF Improvements for that portion of the DIF Improvements under construction that would equal or exceed the applicable DIF fees (“Estimated Costs”). City may consider the following evidence of Costs provided that clearly relate to and are determined by City to be reasonable incurred and related to DIF Improvements in the Project Phase: (a) Owner and/or Contractor’s invoices that verify the work completed and percentage of work performed; (b) invoices from and payments made to design professionals; and (c) invoices or assessments and payments made for permits.
Following substantial completion and before City’s acceptance of the DIF Improvements, Owner may elect to pay to City the total amount of the DIF due to be imposed and levied on the Project in satisfaction of the precondition for issuance of certificates of occupancy, minus the Estimated Costs incurred as of that date. Thereafter, upon acceptance of the DIF Improvements by City and Owner’s provision of evidence of the actual Costs, City shall refund to Owner the amount of DIF paid that should have been covered by the DIF Credit within forty-five (45) calendar days.
14.3 DIF Reimbursement. If the dollar amount of the Costs exceeds the DIF applicable to the Project or a portion of the Project, Owner will be deemed to have fully satisfied the DIF as to that portion and is entitled to a reimbursement from City for the Costs in excess of the applicable DIF (the “Excess Costs”) but only for Costs of a DIF Improvement that is identified in a DIF nexus study (“Qualified Excess Costs”) and only if and to the extent that the City receives development impact fee funds from other developers that are found to have contributed to the need for the DIF Improvement. The obligation of the City to collect and pay Owner Qualified Excess Costs from other developers in the City shall terminate with the Development Agreement.
Notwithstanding any other provision of this Agreement, City’s assistance with reimbursement related to the DIF Improvements is limited to the Qualified Excess Costs which shall, in any event, not exceed the Costs of the DIF Improvements. City shall not under any circumstances be obligated to contribute, and shall not contribute additional assistance to the DIF Improvements, other than as expressly provided for in this Agreement. Under no circumstance shall the City pay any Excess Cost to Owner from the general fund, special funds or other funds of the City, unless the City, in its sole and absolute discretion, chooses to do so. If any audit by the Parties or the California Department of Industrial Relations determines that any excess amount has been credited, reimbursed, or otherwise contributed by City, then Owner shall reimburse City for such excess amount. This paragraph shall be interpreted consistently with California Labor Code Section 1720(c)(2) to accomplish the Parties’ intent that the Project is a private development exempt from payment of prevailing wages to the full extent permitted under California Labor Code Section 1720(c)(2), and any other applicable provisions and City maintains no proprietary interest in the Project; provided, however, that Owner shall pay prevailing wage for the DIF Improvements.
14.4 Oversized Public Improvements; Fair Share Payments; Fee Credits.
14.4.1 Construction of Oversized Public Improvements. The Parties acknowledge that certain of the Public Improvements to be constructed by Owner may, to a greater 927
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or lesser extent, constitute Oversized Improvements and that owners of other properties will benefit from such Oversized Improvements. For purposes of Section 14.4 of this Agreement, “Oversized Improvements” means any Public Improvement with respect to which the Parties agree that Owner’s direct or indirect financial contribution exceeds its Fair Share of the cost of the Public Improvement or portion thereof reasonably attributable to the Project or phase thereof.
Exhibit “F” of the Development Agreement lists all of the Public Improvements; not all of these Public Improvements are Oversized Improvements. In addition, City agrees that, in recognition of the regional nature of certain street and, possibly, other improvements made to the Property by Owner, City shall use its best efforts subject to limitations on its legal authority to ensure that owners of all property that will reasonably benefit from the Public Improvements, as determined in accordance with Section 14.4.2 of this Agreement (“Benefitted Properties”), will pay their Fair Share for such Public Improvements, either directly or through subdivision, reimbursement, or other agreements, between such owners and City, or between owners of Benefitted Properties.
14.4.2 Fair Share Determination. For purposes of Section 14.4 of this Agreement, “Fair Share” shall mean the amount if any, of Owner’s contribution to the cost of any Public Improvements, and unless otherwise provided in Exhibit “I” of the Development Agreement, shall be calculated for the Project based on the Project’s proportion of the benefit conferred on all Benefitted Properties, as established by a regional benefit study prepared by independent professional consultants experienced in the preparation of “zone of benefit” studies.
The consultants shall be selected by City.. City shall afford Owner, and any other involved developer(s), the opportunity to review and comment on the tentative conclusions, and such comments shall be taken into consideration by City in its review. The costs of any such study shall be deemed to be a part of the cost of the Oversized Improvement to which it pertains. The fees and costs of the consultants shall be paid, initially, by the Owner or if possible from other developers then involved. The Parties recognize, however, that it will not always be possible to implement or achieve such goals, given the size, timing of development and nature of the other Benefitted Properties, and nothing herein shall be deemed to require City to fund or reimburse any portion of the excess costs other than from funds collected expressly for such purpose, or to pay for the cost of any such improvements or any portions thereof out of its general, special or other fund revenues.
14.4.3 Fee Credits. In accordance with Section 5.12.3 of the Development Agreement, to the extent a Public Improvement is included in the DIF Nexus Study, City shall recognize and apply in lieu credit against any and all fees, for and equal to the Costs to provide the Public Improvement and/or dedications made in the development of the Project by Owner, even if such improvement was funded by a CFD or other alternative financing mechanism, and for which the fees would otherwise be imposed in accordance with City ordinances and resolutions; provided, however, that such in lieu credit shall not exceed the amount established by City’s DIF program for construction of such improvements and/or dedications.
14.4.4 Limits on Public Funds. Notwithstanding anything else to the contrary herein, the parties acknowledge and agree that in no event shall the cumulative total of public funds, as defined in California Labor Code Section 1720(b), received by Owner with respect to the Project exceed the amount of the conditioned public improvements imposed on the Project as part of the Development Approvals.
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14.5 Credits and Reimbursements for Dedication Properties.
14.5.1 Dedication of Fire Station Property and Water Tank Property.
Although not needed for the Project, the Parties acknowledge that in the future the City or the County may choose to construct a fire station on the Fire Station Property and a water tank on the Water Tank Property. Owner shall reserve the Fire Station Property and Water Tank Property and shall dedicate such properties to the City.. After acquiring the Fire Station Property and Water Property, the City or County shall not use the Fire Station Property for any use other than a fire station or the Water Tank Property for anything other than a water tank. Under no circumstances shall Owner be obligated to pay for the construction of the fire station or water tank.
15.0 Miscellaneous.
15.1 Assignment. Owner may assign all or any portion of its rights under this Agreement, including any DIF Credits under this Agreement, following notice to City.
15.2 Relationship between the Parties. The Parties hereby mutually agree that this Agreement shall not operate to create the relationship of partnership, joint venture, or agency between City and Owner. Further, the Parties mutually agree that the Contractor is exclusively and solely under the control and dominion of Owner. Nothing herein shall be deemed to make Owner or its Contractor an agent or contractor of City.
15.3 Warranty as to Property Ownership; Authority to Enter Agreement. Owner hereby warrants that it owns fee title to the Property and that it has the legal capacity to enter into this Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind each respective Party.
15.4 Prohibited Interests. Owner warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Owner, to solicit or secure this Agreement. Owner also warrants that it has not paid or agreed to pay any company or person, other than a bona fide employee working solely for Owner, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon the making of this Agreement. For breach of this warranty, City shall have the right to rescind this Agreement without liability.
15.5 Notices. All notices, demands, invoices, and written communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice:
To City: City of Banning
Attn: Public Works Director
99 E. Ramsey Street
Banning, CA 92220
Fax No. (951) 922-3141
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To Owner: NP Banning Industrial, LLC
Attn: J.J. Jenkins
12977 N. Outer Forty Rd., Suite 203
St. Louis, MO 63141
Email: [email protected]
Depending upon the method of transmittal, notice shall be deemed received as follows: by facsimile, as of the date and time sent; by messenger, as of the date delivered; and by reputable overnight mail, as of two (2) days after deposit in the overnight mail.
15.6 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement.
15.7 Construction; References; Captions. It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. All references to Owner include all personnel, employees, agents, and contractors of Owner, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers, except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
15.8 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing and signed by both Parties.
15.9 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 right by custom, estoppel, or otherwise.
15.10 Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation.
15.11 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
15.12 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
15.13 Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California.
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15.14 Time is of the Essence. Time is of the essence in this Agreement, and the Parties agree to execute all documents and proceed with due diligence to complete all covenants and conditions.
15.15 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument.
15.16 Entire Agreement. This Agreement and the Development Agreement contain the entire agreement between City and Owner with respect to DIF Credits and supersede any prior oral or written statements or agreements between City and Owner.
15.17. Exhibits. All Exhibits to this Agreement are hereby incorporated in full by reference as though set forth in full, provided that in the event of any material conflict between any Exhibit or portion thereof and any provision of this Agreement, the provisions of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
(Signatures on next page)
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OWNER
NP Banning Industrial, LLC, a Missouri
Limited Liability Company
____________________________________
By:
Its:
____________________________________
By:
Its:
APPROVED AS TO FORM:
____________________________________
By:
Attorneys for NP Banning Industrial, LLC
CITY OF BANNING
____________________________________
By: Richard Royce, Mayor
ATTEST:
____________________________________
By: Caroline Patton
Administrative City Clerk
APPROVED AS TO FORM:
____________________________________
By: John Pinkney,
City Attorney
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CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
State of California )
)ss.
County of ______} )
On before me, , Notary Public, personally
appeared ,who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_________________________________
Signature
(seal)
My commission expires: _____________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT “A”
LEGAL DESCRIPTION OF PROPERTY
[ATTACHED BEHIND THIS PAGE]
934
EXHIBIT “B”
FORMS FOR SECURITY
[ATTACHED BEHIND THIS PAGE]
935
BOND NO. _________________
INITIAL PREMIUM: _________________
SUBJECT TO RENEWAL
PERFORMANCE BOND
WHEREAS, the City of Banning (“City”) has executed an agreement with NP Banning Industrial, LLC (hereinafter “Owner”), requiring Owner to perform certain work consisting of, but not limited to, furnishing all labor, materials, tools, equipment, services, and incidentals for the design, construction, and/or installation of public improvements (hereinafter the “Work”);
WHEREAS, the Work to be performed by Owner is more particularly set forth in that certain DIF Credit Implementation Agreement dated _______________, (hereinafter the “Agreement”); and
WHEREAS, the Agreement is hereby referred to and incorporated herein by this reference; and
WHEREAS, Owner or its contractor is required by the Agreement to provide a good and sufficient bond for performance of the Agreement, and to guarantee and warranty the Work constructed thereunder.
NOW, THEREFORE, we the undersigned, , as Principal and , a corporation organized and existing under the laws of the State of and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the CITY in the sum of
($_____________), said sum being not less than one hundred percent (100%) of the total cost of the Work as set forth in the Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION is such, that if Owner and its contractors, or their heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, agreements, guarantees, and warranties in the Agreement and any alteration thereof made as therein provided, to be kept and performed at the time and in the manner therein specified and in all respects according to their intent and meaning, and to indemnify and save harmless City, its officers, employees, and agents, as stipulated in the Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney’s fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. 936
The said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or additions to the terms of the said Agreement or to the Work to be performed thereunder or the specification accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Agreement or to the Work.
IN WITNESS WHEREOF, we have hereto set our hands and seals this _____ day on ______________________________________, 20___.
Principal
By:____________________________________
President
Surety
By:____________________________________
Attorney-in-Fact
937
CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
State of California )
)ss.
County of ______} )
On before me, , Notary Public, personally
appeared ,who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_________________________________
Signature
(seal)
My commission expires: _____________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
938
CERTIFICATE AS TO CORPORATE PRINCIPAL
________________________________________, certify that I am the Secretary of the corporation named as principal in the attached bond, that who signed the said bond on behalf of the principal was then of said corporation; that I know his signature, and his signature thereto is genuine; and that said bond was duly signed, sealed and attested for and in behalf of said corporation by authority of its governing Board.
(Corporate Seal)
Signature:
Date:
NOTE: A copy of the power of attorney to local representatives of the bonding company may be attached hereto.
939
BOND NO.
INITIAL PREMIUM:
SUBJECT TO RENEWAL
LABOR & MATERIAL BOND
WHEREAS, the City of Banning (“City”) has executed an agreement with NP Banning Industrial, LLC (hereinafter “Owner”), requiring Owner to perform certain work consisting of, but not limited to, furnishing all labor, materials, tools, equipment, services, and incidentals for the design, construction, and/or installation of public improvements (hereinafter “Work”);
WHEREAS, the Work to be performed by Owner is more particularly set forth in that certain DIF Credit Implementation Agreement dated _______________, (hereinafter the “Agreement”); and
WHEREAS, Owner or its contractor is required to furnish a bond in connection with the Agreement providing that if Owner or any of his or its contractors shall fail to pay for any materials, provisions, or other supplies, or terms used in, upon, for or about the performance of the Work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the provisions of 3248 of the California Civil Code, with respect to such work or labor, that the Surety on this bond will pay the same together with a reasonable attorney’s fee in case suit is brought on the bond.
NOW, THEREFORE, we the undersigned, as __________________ Principal and __________________, a corporation organized and existing under the laws of the State of_________________ and duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the said Work, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to said Work to be done, and all persons performing work or labor upon the same and all persons supplying both work and materials as aforesaid, the sum of ($_____________), said sum being not less than one hundred percent (100%) of the total amount payable by Owner under the terms of the Agreement, for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if Owner or its contractors, or their heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the Work contracted to be done, or for work or labor thereon of any kind, or fail to pay any of the persons named in California Civil Code Section 9100, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, and all other applicable laws of the State of California and rules and regulations of its agencies, then said Surety will pay the same in or to,an amount not exceeding the sum specified herein. 940
In case legal action is required to enforce the provisions of this bond, the prevailing party shall be entitled to recover reasonable attorneys' fees in addition to court costs, necessary disbursements and other consequential damages. In addition to the provisions hereinabove, it is agreed that this bond will inure to the benefit of any and all persons, companies and corporations entitled to make claims under Sections 8024, 8400, 8402, 8404, 8430, 9100 of the California Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond.
The said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or additions to the terms of the Agreement or to the Work to be performed thereunder or the specification accompanying the same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement or to the Work.
IN WITNESS WHEREOF, we have hereto set our hands and seals this _____ day on ______________________________________, 20___.
Principal
By:____________________________________
President
Surety
By:____________________________________
Attorney-in-Fact
941
CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
State of California )
) ss.
County of _______} )
On before me, , Notary Public, personally
appeared ,who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_________________________________
Signature
(seal)
My commission expires: _____________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
942
CERTIFICATE AS TO CORPORATE PRINCIPAL
________________________________________, certify that I am the Secretary of the corporation named as principal in the attached bond, that who signed the said bond on behalf of the principal was then of said corporation; that I know his signature, and his signature thereto is genuine; and that said bond was duly signed, sealed and attested for and in behalf of said corporation by authority of its governing Board.
(Corporate Seal)
Signature:
Date:
NOTE: A copy of the power of attorney to local representatives of the bonding company may be attached hereto.
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EXHIBIT “C” to
EXHIBIT “G-2”
-1-
EXHIBIT “C”
BIDDING AND CONTRACTING, REQUIREMENTS FOR DIF IMPROVEMENTS With respect to construction contracts awarded for DIF Improvements after approval of this Agreement, bids for construction shall be solicited from at least three qualified contractors, provided that three qualified contractors are reasonably available. Owner may also directly solicit bids. The bid package may consist of preliminary plans and specifications.
The bidding response time shall be not less than ten (10) business days.
The City’s Public Works Director shall be provided a copy of the tabulation of bid results before the award of the contract.
Contract(s) for the construction of the DIF Improvements shall be awarded to the qualified contractor(s) submitting the lowest bid(s), as determined by Owner.
The contractor to whom a contract is awarded shall be required to pay not less than the prevailing rates of wages pursuant to Labor Code Sections 1770, 1773 and 1773.1. A current copy of applicable wage rates shall be on file in the Office of the City Clerk, as required by Labor Code Section 1773.2
The contractor shall be required to provide certified payrolls to Owner and shall furnish copies of those records to the City upon request. 944
EXHIBIT “G
-2”
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945
EXHIBIT “H”
-1-
Development Agreement No.___
EXHIBIT “H”
DEVELOPMENT FEES IN EFFECT AS OF EFFECTIVE DATE
City of Banning Development Impact Fees1
Land Use
Category
Police
Facilities
Fire
Protection
Facilities
Parkland
and
Parks
General
City
Facilities
Wastewater
Facilities
Transportation
DIF
Electric
Facilities
Water
Facilities2
Nonresidential
– (Fee per
Square Foot)
Commercial $ 0.48 $ 0.65 N/A $ 0.47 $ 2.29 $ 10.06 $ 2.36 Office 0.63 0.85 N/A 0.62 0.80 3.29 2.21
Industrial 0.23 0.32 N/A 0.23 0.87 1.60 1.27
¾” $ 6,094
1” 10,156
1-1/2” 20,312
2” 32,500
3” 60,937
4” 101,562
6” 203,123
8” 568745
1 Represents the City of Banning Development Impact Fees per square foot for nonresidential land uses approved by City Council on February 24th, 2026 per Resolution No. 2026-24.
2 Water Facilities fee is now charged based on meter sizes.
City of Banning Development Impact Fees (cont’d.)
Land Use Category TUMF3 MSHCP3
Industrial $2.33 per square foot
$20,191 per acre
Class A/B Office $2.45 per square foot
Retail $7.72 per square foot
Service $4.89 per square foot
3 TUMF and MSHCP subject to annual increases.
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EXHIBIT “I”
-1-
Development Agreement No.___
EXHIBIT “I”
FAIR SHARE PAYMENTS
947
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Elizabeth Gibbs, City Manager
PREPARED BY: Matthew Bassi, Interim Community Development Director MEETING DATE: July 14, 2026
SUBJECT: Cannabis Warehouse Moratorium Discussion
STAFF RECOMMENDATION:
Staff recommends the City Council discuss and provide direction.
BACKGROUND:
At the City Council's December 9, 2025 meeting, Councilmember Barrington asked that a future agenda item be brought forward for discussion regarding a possible moratorium on cannabis warehouses. This report provides background information for City Council to consider and discuss and to provide direction to Staff.
The City's current cannabis regulations for industrial properties (which include indoor cultivation, manufacturing, testing laboratory, distribution facility and micro business) was adopted by Council on July 10, 2018 via Ordinance No. 1523 (Chapter 17.53 BMC - refer to Attach 1). The cannabis regulations for commercial properties (which only include cannabis storefront retailers) was adopted by Council a few months later on November 13, 2018 via Ordinance No. 1531 (Chapter 17.54 BMC - refer to Attach 2). All cannabis uses require approval of a Conditional Use Permit by the Planning Commission and City Council as outlined in Chapter 17.12, Table 17.12.020 of the BMC (refer to Attach 3). Each retail or industrial cannabis business is also required to obtain a State Cannabis License approved and issued by the State Licensing Authority before they can begin operations in the City.
There are currently three (3) cannabis retailers operating storefront businesses in the City. The Zoning Code limits the amount of retail cannabis businesses to one (1) business per 10,000 population. With the city's population currently around 31,000 +/-, a 4th retail cannabis business would not be permitted until the population reached 40,000. All three cannabis retailers are located on Ramsey Street in the commercial zoning district and each has received approval of a Conditional Use Permit. In addition, there are three (3) cannabis industrial cultivation businesses (i.e., "indoor grows") and one (1) industrial cannabis manufacturer located in the industrial zones.
Each business has an active Conditional Use Permit approved by the City Council between December 2020 and September 2025, but only two (2) businesses are currently operating. Staff has prepared a summary memo outlining the business names and locations of each business (refer to Attach 4 for details).
JUSTIFICATION:
As City Council discusses cannabis, Staff has outlined below a couple of options to be considered in deciding how best to move forward.
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Option 1 - Adopt a Moratorium
Council could direct Staff to prepare a 45-day Urgency Ordinance adopting an immediate Moratorium prohibiting the submittal of a CUP for new cannabis businesses. This urgency ordinance could be brought to Council for action at the next Council meeting (scheduled for August 25th). It's important to note that adoption of an urgency ordinance for a moratorium will require a 4/5 majority vote from the Council as required by Government Code Section 65858.
This 45-day urgency ordinance could also be extended by Council within the 45 days providing an additional 10 months and 15 days to the moratorium (1-year total). During this 1-year moratorium, Council could additionally extend the moratorium for an additional 1-year period if desired (2 years total).
The primary purpose of the moratorium is twofold: 1) it stops new cannabis CUP's from being submitted; and 2) it allows time for the City to decide how best to address the cannabis issue and move forward with a code amendment. Staff would need specific direction from Council regarding what the content of the code amendment would entail (i.e., prohibition or amending standards).
Option 2: - Adopt a Zoning Code Amendment (without the Moratorium):
Council could direct staff to move forward with a zoning code amendment in lieu of adopting a moratorium. This option would take several months to process as it will require Planning Commission review with a recommendation from the Commission before the Council could take action. Under this option, Staff would need specific direction from Council regarding what the content of the code amendment would entail (i.e., prohibition or amending standards).
Regardless of what option Council directs Staff to move forward with, a zoning code amendment would ultimately need to be prepared and brought forward for Planning Commission and City Council review and approval. The zoning code amendment would need to be prepared in coordination with the City Attorney's office before it could be scheduled for public hearings.
Recommendation:
Discuss and provide direction to staff.
FISCAL IMPACT:
None.
ATTACHMENTS:
1. Attach 1 - Chapter 17.53 (Industrial Cannabis Regs).pdf
2. Attach 2 - Chapter 17.54 (Retail Cannabis Regs).pdf
3. Attach 3 - Chapter 17.12 Excerpt (Comm-Ind Use Table).pdf
4. Attach 4 - Existing Cannabis Users Memo [7-7-26].pdf 949
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Chapter 17.53 - CANNABIS CONDITIONAL USE PERMITS
17.53.010 - Definitions.
For the purpose of this Chapter, the following words and phrases shall be defined as follows:
"Applicant" means an owner applying for a cannabis conditional use permit pursuant to this Chapter.
"Bureau" means the Bureau of Cannabis Control within the California Department of Consumer Affairs.
"Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis" also means the separated resin, whether crude or purified, obtained from cannabis. "Cannabis" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. For the purpose of this Chapter, "cannabis" does not mean "industrial hemp" as defined by Section 11018.5 of the Health and Safety Code.
"Cannabis business" means a cultivation facility, a cannabis manufacturing level 1 facility, testing laboratory facility, cannabis distribution facility, or cannabis microbusiness. "Cannabis distribution" means the procurement, sale and transport of cannabis goods between State licensed cannabis retailers, manufacturers, cultivators and testing laboratories. "Cannabis distribution facility" means a facility that transports cannabis goods between State licensed cannabis retailers, manufacturers, cultivators and testing laboratories. "Cannabis goods" means cannabis, including dried flower, and cannabis products. "Cannabis microbusiness" means a commercial cannabis business comprised of at least three out of the following four uses on the same premises: (1) a cannabis retailer (as defined in Section 17.54.010), (2) a manufacturing facility, (3) a cultivation facility with canopy space of less than 10,000 square feet, and (4) a cannabis distribution facility. To qualify as a cannabis microbusiness, the cannabis business must engage in a minimum of three out of the four above referenced uses.
"Cannabis products" has the same meaning as in Section 11018.1 of the Health and Safety Code.
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"Canopy space" means the designated areas at a cultivation facility that will contain mature plants at any point in time, as follows:
Canopy shall be calculated in square feet and measured using clearly identifiable boundaries of all area(s) that will contain mature plants at any point in time, including all of the space(s) within the boundaries;
Canopy may be noncontiguous but each unique area included in the total canopy calculation shall be separated by an identifiable boundary that includes, but is not limited to, interior walls, and shelves; and
If mature plants are being cultivated using a shelving system, the surface area of each level shall be included in the total canopy calculation. "City" means the City of Banning.
"City Manager" means the City Manager or his/her designee. "Convicted" or "conviction" means a plea or verdict of guilty or a conviction following a plea of nolo contendere was entered, but does not include any plea, verdict, or conviction that is expunged pursuant to California law or a similar federal or state law where the expungement was granted.
"Commercial cannabis activity" includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery or sale of cannabis and cannabis products, or engaging in any other cannabis activity that requires a State license issued by a licensing authority.
"Cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis.
"Cultivation facility" means a location where cannabis is planted, grown, harvested, dried, cured, graded, or trimmed, or a location where any combination of those activities occurs. "Extraction" means a process by which cannabinoids are separated from cannabis plant material through chemical or physical means.
"Financial interest" shall have the meaning set forth in Section 5004 of Title 16 of the California Code of Regulations, as the same may be amended from time to time. "Indoors" means within a fully enclosed and secure structure. "Infusion" means a process by which cannabis, cannabinoids, or cannabis concentrates, are directly incorporated into a product formulation to produce a cannabis product. "Licensing authority" means the Bureau of Cannabis Control; CalCannabis Cultivation Licensing, a division of the California Department of Food and Agriculture (CDFA); the California Department of Public Health's Manufactured Cannabis Safety Branch; or any other State cannabis licensing authority.
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"Manufacture" means to compound, blend, extract, infuse, or otherwise make or prepare a cannabis product.
"Manufacturing facility" means a location that conducts the production, preparation, propagation, or compounding of cannabis or cannabis products either directly or indirectly or by extraction methods, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis at a fixed location that packages or repackages cannabis or cannabis products or labels or relabels its container. "MAUCRSA" means the Medicinal and Adult-Use Cannabis Regulation and Safety Act. "Outdoors" means any area or location not specifically meeting the definition of indoors. "Owner" means any of the following:
A person with an aggregate ownership interest of 20 percent or more in the person applying for a permit or a permittee, unless the interest is solely a security, lien, or encumbrance.
The chief executive officer of a nonprofit or other entity.
A member of the board of directors of a nonprofit.
An individual who will be participating in the direction, control, or management of the person applying for a permit. An owner who is an individual participating in the direction, control, or management of the commercial cannabis business includes any of the following:
A partner of a cannabis business that is organized as a partnership.
A member of a limited liability company of a cannabis business that is organized as a limited liability company.
An officer or director of a cannabis business that is organized as a corporation. "Nonvolatile solvent" means any solvent used in the extraction process that is not a volatile solvent. For purposes of this Chapter only, nonvolatile solvents include carbon dioxide and ethanol.
"Package" means any container or receptacle used for holding cannabis or cannabis products. "Permit" means a cannabis conditional use permit issued pursuant to this Chapter. "Permittee" means any person holding a cannabis conditional use permit under this Chapter. "Person" includes any individual, firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular. "Premises" means the designated structure or structures and land specified in the application that is owned, leased, or otherwise held under the control of the applicant where the cannabis business will be conducted.
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"Significant discrepancy" means a difference in actual inventory compared to records pertaining to inventory of at least one thousand dollars. For purposes of determining a discrepancy, the acquisition price of the cannabis goods shall be used to determine the value of cannabis goods in a permittee's inventory.
"Testing laboratory" means a laboratory, facility, or entity in the City that offers or performs tests of cannabis or cannabis products and that is both of the following:
Accredited by an accrediting body that is independent from all other persons involved in commercial cannabis activity in the State.
Licensed by the Bureau.
"Volatile solvent" means any solvent that is or produces a flammable gas or vapor that, when present in the air in sufficient quantities, will create explosive or ignitable mixtures. Examples of volatile solvents include, but are not limited to, butane, hexane, and propane. (Ord. No. 1523, § 3G, 7-10-18; Ord. No. 1542, § 3, 4-23-19; Ord. No. 1565, § 12, 7-14-20; Ord. No. 1577, § 19, 9-28-21)
17.53.020 - Commercial cannabis conditional use permit required.
Except as expressly authorized pursuant to this Title (Title 17, Zoning), all commercial cannabis activity is prohibited in the City.
Prior to initiating operations and as a continuing requisite to operating a cannabis business, the person(s) wishing to operate a cannabis business shall:
Obtain and maintain a validly issued cannabis conditional use permit approved by the City Council after recommendation by the Planning Commission, and comply with all conditions of approval.
Obtain and maintain a State license to engage in the specific cannabis business being operated on the premises.
Obtain and maintain a cannabis regulatory permit as required by Chapter 5.35 of this Code.
Obtain and maintain a business license or any other license or permit required by this Code. (Ord. No. 1523, § 3G, 7-10-18)
17.53.030 - Commercial cannabis conditional use permit—Application fees and terms.
No cannabis conditional use permit application shall be processed unless the applicant pays the application fee deposit in the amount to be established by resolution of the City Council. No cannabis conditional use permit shall be issued unless the applicant pays the nonrefundable permit fee in the amounts to be established by resolution of the City Council. 6/30/26, 2:14 PM Banning, CA Code of Ordinances
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7. No cannabis conditional use permit shall be issued if the applicant has an ownership or other direct financial interest in any other commercial cannabis business operating in the City. (Ord. No. 1523, § 3G, 7-10-18)
17.53.040 - Cannabis conditional use permit application requirements.
An applicant shall file the following information with the City at the time of application for a cannabis conditional use permit:
A completed cannabis conditional use permit application, together with the application fee in an amount to be established by resolution of the City Council.
Proof of a cannabis regulatory permit jointly approved by the City Manager and Chief of Police.
The owner identified on the cannabis conditional use permit application shall be same owner as listed on the cannabis regulatory permit issued pursuant to Chapter 5.35.
An operating plan for the proposed cannabis business that includes:
A general description of the types of products and/or services to be provided by the cannabis business;
A site plan, drawn to scale and professionally prepared by a licensed civil engineer or architect, of the parcel of property on which the proposed cannabis business will be located.
The site plan shall include the outline of all structures, driveways, parking and landscape areas, and boundaries of the parcel.
A floor plan, drawn to scale and professionally prepared by a licensed civil engineer or architect, designating all interior dimensions of the premises, the proposed use of all spaces, identification of limited access areas, areas of ingress and egress, and all security camera locations.
An evaluation of accessibility by the physically disabled to and within the building and identification of any planned accessibility improvements to comply with all state and federal disability access laws, including, but not limited to, Title 24 of the California Code of Regulations and the Americans with Disabilities Act. The evaluation must be professionally prepared by a licensed civil engineer or architect.
A business plan describing how the cannabis business will operate in accordance with the Banning Municipal Code, state law, and other applicable regulations. The business plan must include plans for cash handling and transportation of cannabis and cannabis products to and from the premises.
Water source information.
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Projected energy demand and energy efficiency plan that addresses illumination, heating, cooling, and ventilation. The applicant shall also provide a letter from the Banning Municipal Electric Company stating that the Banning Municipal Electric Company can meet the cannabis business' energy demand.
A list of all owners, employees, independent contractors, and volunteers.
Neighborhood Context Map. An accurate straight-line drawing depicting the boundaries of the premises, the boundaries of all other properties within 600 feet of the premises, and the uses of those properties, specifically including, but not limited to, any use identified in Business and Professions Code section 26054(b) and any park located within 600 feet of the premises. The distances specified in this subsection shall be the horizontal distance measured in a straight line without regard to intervening structures, from the property line of the lot on which the cannabis business is located to the nearest property line of those uses described in this subsection. The map must be professionally prepared by a licensed civil engineer or architect.
Security plan. A detailed security plan outlining the measures that will be taken to ensure the safety of persons and property on the premises. The security plan must be prepared by a qualified professional.
Lighting Plan. A lighting plan showing existing and proposed exterior and interior lighting levels that would be the minimum necessary to provide adequate security lighting for the use.
The name, phone number, and email address of an on-site community relations representative or staff member or other representative to whom the City can provide notice if there are operating problems associated with the cannabis business or refer members of the public who may have complaints or concerns regarding the cannabis business. This information shall be available to neighboring businesses and residences located within one hundred feet of the cannabis business, as measured in a straight line without regard to intervening structures. (Ord. No. 1523, § 3G, 7-10-18; Ord. No. 1542, § 4, 4-23-19)
17.53.050 - Additional application requirements.
Each cannabis business shall obtain a separate conditional use permit.
The applicant shall submit proof that the applicant is, or will be, entitled to possession of the premises for which application is made.
The applicant shall submit proof of the nature of the cannabis business's organizational status, such as articles of incorporation, by-laws, partnership agreements, and other documentation which may be required by the City.
(Ord. No. 1523, § 3G, 7-10-18)
17.53.060 - Procedures and findings for approval of cannabis conditional use permit. 6/30/26, 2:14 PM Banning, CA Code of Ordinances
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A cannabis conditional use permit shall be processed in accordance with the procedures set forth in Chapter 17.52, Conditional Use Permits, with the following exceptions:
Any provision that requires the approval by the Planning Commission with appeal to the City Council shall be replaced with the requirement that the Planning Commission make a recommendation on the cannabis conditional use permit and that the approval of such permit shall be made by the City Council.
Sections 17.52.020 (Application procedures) and 17.52.080 (Modifications) shall not apply.
Any procedures pertaining to noticing and the setting of a public hearing before the Planning Commission shall also apply to the City Council.
An applicant for a cannabis conditional use permit shall comply with the California Environmental Quality Act ("CEQA"). No cannabis conditional use permit shall be granted until the requisite CEQA review has been conducted.
(Ord. No. 1523, § 3G, 7-10-18)
17.53.070 - Approval of cannabis conditional use permit with conditions.
Upon approval of a cannabis conditional use permit, the City Council may impose conditions in excess of the requirements set forth in this Chapter including, but not limited to, conditions relating to hours of operation, the operation of any cannabis business, restrictions relating to the deployment or use of the types of equipment used on the premises, and set back requirements.
The City may grant a cannabis conditional use permit prior to the applicant having obtained a state license from a licensing authority; however, no approved cannabis business may receive a certificate of occupancy nor operate in the City prior to possessing the requisite state and local licenses and permits.
All cannabis businesses must pay all applicable taxes pursuant to all federal, state, and local laws.
Cannabis businesses shall comply with all cannabis state laws and regulations. (Ord. No. 1523, § 3G, 7-10-18)
17.53.080 - Premises.
All cannabis businesses shall be conducted only in the interior of enclosed structures, facilities and buildings and all operations including the storage or cultivation of cannabis plants at any stage of growth shall not be visible from the exterior of any structure, facility, or building. There shall be no outdoor storage of any kind associated with the cannabis business.
No cannabis business shall be located within a 600-foot radius of any park, day care center, or youth center, or public or private school providing instruction in kindergarten or any of grades 1- 12, that is in existence at the time the cannabis conditional use permit is issued. The 600-foot 6/30/26, 2:14 PM Banning, CA Code of Ordinances
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distance requirement does not include any private school in which education is primarily conducted in a private home or a family day care home. The distances specified in this subsection shall be the horizontal distance measured in a straight line without regard to intervening structures, from the property line of the lot on which the cannabis business is located to the nearest property line of those uses described in this subsection. Outdoor storage on the premises shall be prohibited.
Loading areas and loading docks shall be located on the side or rear of the lot, and shall be screened by solid, decorative walls.
Hours of operation shall be as approved with the Conditional Use Permit.
Cannabis businesses shall only be conducted on properties that are fully compliant with all Banning Municipal Code requirements, including required development standards such as parking, landscaping, etc.
Cannabis businesses located within the same building or on the same property shall each have a validly issued cannabis conditional use permit from the City.
All entrances into the premises shall be locked at all times with entry controlled by the permittee's managers and staff.
The main entrance shall be maintained clear of barriers, landscaping, and other obstructions.
Inside of the main entrance, there shall be a lobby to receive persons into the site and to verify whether they are allowed on the premises.
All commercial cannabis activity in any premises shall be separated from the main entrance and lobby, and cannabis and cannabis products shall be secured by a lock accessible only to managers and staff of the permittee.
A permittee shall not, without an approved amendment to the cannabis conditional use permit, make a physical change, alteration, or modification of the premises that alters the premises or the use of the premises from the premises diagram filed with the permit application. Material or substantial changes, alterations or modifications requiring approval include, but are not limited to, the removal, creation, or relocation of a common entryway, doorway, passage, or a means of public entry or exit, when such common entryway, doorway or passage alters or changes limitedaccess areas within the premises.
A permittee shall not sublet the premises.
Inspections. The City shall have the right to enter all cannabis businesses from time to time upon 24-hour's notice for the purpose of making reasonable inspections to observe and enforce compliance with this Chapter. Such inspections shall be limited to observing the licensed premises for purposes of determining whether the cannabis business is being operated or maintained in compliance with this Code, state law, and other applicable laws and regulations.
Any cannabis business licensed pursuant to this Chapter may be required to demonstrate, upon 6/30/26, 2:14 PM Banning, CA Code of Ordinances
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demand by the City that the source and quantity of any cannabis or cannabis products found upon the licensed premises is in full compliance with any applicable local or state law or regulation. (Ord. No. 1523, § 3G, 7-10-18; Ord. No. 1542, § 5, 4-23-19)
17.53.090 - Personnel and visitors.
All agents, officers, or other persons acting for or employed by a cannabis business shall display a laminated or plastic-coated identification badge issued by the cannabis business at all times while engaging in commercial cannabis activity. The identification badge shall, at a minimum, include the cannabis business's "doing business as" name and city business license number, the employee's first name, an employee number exclusively assigned to that employee for identification purposes, and a color photograph of the employee that clearly shows the full front of the employee's face and that is at least 1 inch in width and 1.5 inches in height.
Employees and Volunteers Age Requirement. A cannabis business shall not employ an individual less than twenty-one (21) years of age, nor may a cannabis business permit an individual less than twenty-one (21) years of age to volunteer at or be within the cannabis business.
Visitors. Cannabis businesses shall not be open to the general public. Any individual permitted to enter a limited access area who is not a person that has undergone a background check in accordance with Chapter 5.35 of this Code and is not listed on the premises' worker list shall be considered a visitor. Notwithstanding the foregoing, state and local employees, or their official designees, shall not be considered a visitor provided the individual is on the licensed premises for purposes of official government business.
Visitors Identification and Record Requirements. Prior to permitting a visitor into a limited access area, a cannabis business must check the individual's valid government issued identification. The visitor shall be required to sign the cannabis business's visitor log, which must include the individual's name, date of entry, and purpose for entry.
Visitors Must Be at Least Twenty-One (21) Years of Age. A cannabis business may not permit a visitor who is less than twenty-one (21) years of age to enter a limited access area.
Visitors Prohibited Conduct. A visitor shall not be permitted to engage in any commercial cannabis activity while on the premises.
A manager shall be on the site at all times that any other person, except a security guard, is on the site.
(Ord. No. 1523, § 3G, 7-10-18)
17.53.100 - Security.
The premises of a cannabis business must comply with all of the following security requirements:
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Main Entrance and Lobby. The premises shall have a building with a main entrance that is clearly visible from the public street or sidewalk. The main entrance shall be maintained clear of barriers, landscaping, and other obstructions. Inside of the main entrance, there shall be a lobby to receive persons into the site and to verify whether they are allowed in the cultivation areas.
Transport Area. The premises shall have an area designed for the secure transfer of cannabis from the cultivation, manufacturing, or testing laboratory area to a vehicle for transportation.
Commercial-Grade Locks. All points of ingress and egress to a premises shall ensure the use of commercial-grade, nonresidential door locks or window locks.
A permittee that is engaged in cultivation, manufacture, or distribution or is a cannabis microbusiness shall hire or contract for 24-hour security personnel to provide security services for the premises. All security personnel hired or contracted for by the cannabis business shall comply with Chapters 11.4 and 11.5 of Division 3 of the Business and Professions Code.
Video Surveillance. The premises must be equipped with a video surveillance system that meets all of the requirements set forth in this subsection.
Each premises shall have a digital audio/video surveillance system with a minimum camera resolution of 1280 x 720 pixels.
The surveillance-system storage device or the cameras shall be transmission control protocol (TCP) capable of being accessed through the internet.
The video surveillance system shall at all times be able to effectively and clearly record images of the area under surveillance and shall capture audio such that all sounds are intelligible.
Each camera shall be permanently mounted and in a fixed location. Each camera shall be placed in a location that allows the camera to clearly record activity occurring within 20 feet of all points of entry and exit on the premises, and allows for the clear and certain identification of any person and activities in all areas required to be filmed under subsection 5 below.
Areas that shall be recorded on the audio/video surveillance system include the following:
Areas where cannabis goods are weighed, packed, stored, loaded, and unloaded for transportation, prepared, or moved within the premises; Limited-access areas;
Security rooms;
Areas storing a surveillance-system storage device with at least one camera recording the access points to the secured surveillance recording area; 6/30/26, 2:14 PM Banning, CA Code of Ordinances
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Entrances and exits to the premises;
Waste containers.
Cameras shall record continuously 24 hours per day and at a minimum of 15 frames per second (FPS).
The physical media or storage device on which surveillance recordings are stored shall be secured in a manner to protect the recording from tampering, fire, or theft.
Surveillance recordings shall be kept for a minimum of 90 days.
Surveillance recordings shall be monitored by a third party surveillance company.
Surveillance recordings are subject to inspection by the City, and shall be kept in a manner that allows the City to view and obtain copies of the recordings at the licensed premises upon not less than 24 hours advance notice. The permittee shall also send or otherwise provide copies of the recordings to the City upon reasonable notice by the City.
Recorded images shall clearly and accurately display the time and date. Time is to be measured in accordance with the United States National Institute Standards and Technology standards.
The video surveillance system shall be equipped with a failure notification system that provides notification to the permittee of any interruption or failure of the video surveillance system or video surveillance-system storage device.
The video surveillance system shall be equipped with a battery backup system capable of sustaining system operations in the case of an energy failure.
Alarm System. The premises shall have an audible interior and exterior security alarm system installed on all perimeter entry points and perimeter windows.
The alarm system shall be installed, maintained, monitored, and responded to by a security company licensed by the Department of Consumer Affairs, Bureau of Security and Investigative Services.
Upon request, a permittee shall make available to the City all information related to the alarm system.
Secure Storage of Product. Cannabis and cannabis products possessed by a cannabis business shall be kept and stored in a secured manner at all times. All areas where cannabis and/or cannabis products are kept shall be separated from the main entrance and lobby and secured by a lock accessible only to managers and staff.
Lighting. The business entrance(s) and all window areas of any cannabis business shall be illuminated during evening hours. The cannabis business shall comply with the City's lighting standards regarding fixture type, wattage, illumination levels, and shielding. (Ord. No. 1523, § 3G, 7-10-18; Ord. No. 1577, § 20, 9-28-21) 6/30/26, 2:14 PM Banning, CA Code of Ordinances
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17.53.110 - Track and trace.
All permittees shall comply with the track and trace system established by the State of California and as further described in Sections 5048 through 5052, inclusive, of Title 16 of the California Code of Regulations, as the same may be amended from time to time.
(Ord. No. 1523, § 3G, 7-10-18)
17.53.120 - Signage.
The premises must comply with the following signage requirements.
A cannabis business shall conspicuously post signs a minimum of eight (8) inches wide by ten (10) inches high in size that can readily be seen by all persons at the entrance that state: "This site is not open to the public" and "Retail sales of any goods and services is prohibited." Business signage shall be limited to the name of the cannabis business only, shall be in compliance with the City's sign code, and shall contain no advertising of any companies, brands, products, goods, or services.
A sign shall be posted in a conspicuous place near each point of public access which shall be not less than twelve (12) inches wide and twelve (12) inches long, composed of letters not less than one inch in height, stating "All Activities Monitored by Video Camera." Limited access areas shall be clearly identified by the posting of a sign which shall be not less than twelve inches wide and twelve inches long, composed of letters not less than one-half inch in height, which shall state, "Limited Access Area—Authorized Personnel Only." A sign shall be posted stating "Smoking, vaporizing, ingesting, or otherwise consuming cannabis or cannabis products on these premises or in their vicinity is prohibited and a violation of the Banning Municipal Code."
A cannabis microbusiness that engages in in person retail sale of cannabis and cannabis products is not required to comply with Subsection A above. (Ord. No. 1523, § 3G, 7-10-18; Ord. No. 1577, § 21, 9-28-21)
17.53.130 - Cannabis waste management.
Cannabis waste disposal shall be conducted as follows:
Chemical, Dangerous and Hazardous Waste. Disposal of chemical, dangerous or hazardous waste must be conducted in a manner consistent with federal, state and local laws, regulations, rules or other requirements. This may include, but is not limited to, the disposal 6/30/26, 2:14 PM Banning, CA Code of Ordinances
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of all pesticide or other chemicals used in the cultivation process, certain solvents or other chemicals used in the production of cannabis concentrate.
Cannabis Waste. Cannabis waste must be made unusable and unrecognizable prior to leaving the licensed premises by grinding it and incorporating it with fifty percent non-medicinal cannabis waste. If necessary to protect the health and safety of individuals working on a licensed premises, a cannabis business may grind the stalk of a cannabis plant outside of its licensed premises provided all grinding activities occur within twenty feet of the licensed premises and cannot be seen from any public street.
Cannabis waste must be placed in either a trash enclosure or a trash receptacle for which either is locked with a commercial grade lock that is only accessible by the owner, manager, or employee of the cannabis business and any waste disposal company that provide waste disposal services for the cannabis business.
(Ord. No. 1523, § 3G, 7-10-18)
17.53.140 - General sanitary requirements.
A cannabis business must ensure that its premises is maintained in a sanitary manner and activities on its premises are conducted in a sanitary manner.
All facilities of a cannabis business must have adequate and sufficient access to bathrooms and hand-washing facilities with running water at a suitable temperature.
All workers that engage in the preparation of edible cannabis products must comply with the provisions of all relevant state and local laws regarding the preparation, distribution, and sale of food.
(Ord. No. 1523, § 3G, 7-10-18)
17.53.150 - Odor control.
A cannabis business must have a ventilation and filtration system installed that shall prevent cannabis plant odors from exiting the interior of the structure and shall comply with all related Building Code requirements.
The ventilation and filtration system must be approved by the Building Official and installed prior to the commencement of cannabis cultivation activities. (Ord. No. 1523, § 3G, 7-10-18)
17.53.160 - Cannabis indoor cultivation.
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Cannabis Commercial Indoor Cultivation shall occur only indoors and shall contain not less than 10,000 square feet of canopy space nor exceed 22,000 square feet of canopy space per cannabis conditional use permit holder.
Seed to Sale Tracking Required. Until such a time that the state of California fully implements the California Cannabis Track and Trace System required by Section 26067 of the Business and Professions Code, a cannabis business must utilize seed to sale software, third-party software that tracks all sales, transfers, purchases, receipts, deliveries of cannabis and cannabis products.
The software must be capable of producing electronic shipping manifests, tracking all cannabis inventory in possession of the cannabis business, promptly identifying a discrepancy in the stock, and tracking cannabis from the end purchaser back to its source in the event of a serious adverse event. Once implemented, all permittees shall comply with the California Cannabis Track and Trace System established by the State of California and as further described in Sections 5048 through 5052, inclusive, of Title 16 of the California Code of Regulations, as the same may be amended from time to time.
Cultivators must comply with the Federal Worker Protection Standard (40 CFR 170).
The cultivation of cannabis must be conducted in accordance with all applicable federal, state, and local laws and regulations governing the use of pesticides.
The cultivation of cannabis shall be conducted in a secure manner and shall not be visible from a public right of way. As used in this subsection, the term "visible" means capable of being seen without visual aid by an individual of normal acuity.
(Ord. No. 1523, § 3G, 7-10-18)
17.53.170 - Cannabis manufacturing level 1.
Edible Cannabis Products. Edible cannabis products shall be manufactured, packaged and labeled in compliance with MAUCRSA and any implementing regulations adopted by the State.
Edible cannabis products must be individually packaged and ready for sale by the manufacturer prior to sale or transfer to another cannabis business.
Any person that is involved in the manufacture of edible cannabis products must be a state certified food handler. The valid certificate number of such person must be on record at the manufacturing facility where that individual produces edible cannabis products.
Any facility used by a cannabis business to manufacture edible cannabis products shall be constructed, operated and inspected in compliance with all applicable building code and food safety requirements.
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A cannabis business that manufactures edible cannabis products must comply with the provisions of all relevant state and local laws regarding the preparation, distribution, and sale of food; which shall include, but not be limited to, hand-washing requirements, use of gloves for packaging, and policies prohibiting individuals suffering from symptoms associated with communicable diseases or infections from engaging the production of edible cannabis products.
Expiration Date. A cannabis business engaged in the manufacture of cannabis products, including an edible cannabis product, that is perishable shall assign an expiration date or use-by date, whichever is appropriate, to all perishable cannabis products. Once an expiration date or use-by date is assigned to cannabis products, it shall be unlawful for a person to alter that date or affix a new label with a later use-by or expiration date.
Extraction Requirements.
A manufacturer engaged in extraction may only engage in extraction using non-volatile solvents. The permittee shall not make any modifications to the method of extraction without first obtaining a modification of its permit.
Within the limitations set forth by state law, a cannabis business that extracts cannabis or produces cannabis concentrate using a solvent must use a professional grade, closed-loop extraction system capable of recovering the solvent used and must only use a solvent that is permissible under the MAUCRSA and any implementing regulations, and the manufacturer's state license.
Compliance with State Law. All packaging and labeling of cannabis and cannabis products by a cannabis business must, at a minimum meet the requirements set forth in the MAUCRSA and any implementing regulations, as the same may be amended from time to time or superseded or replaced by subsequent state legislation or by any state department or division.
Tamper-Evident, Child-Resistant Packaging Required. Cannabis and cannabis products shall be labeled and placed in a resealable, tamper-evident, child-resistant package and shall include a unique identifier for the purposes of identifying and tracking cannabis and cannabis products.
Cannot Be Attractive to Children. Cannabis packaging and labeling shall not be designed to appeal to children, including, but not limited to, cartoon characters or similar images.
State-Mandated Warnings and Information. All cannabis and cannabis product labels and inserts shall include the state-mandated warnings and information contained in Business and Professions Code Section 26120(c). Notwithstanding the foregoing, during the period of time that the state permits untested cannabis and cannabis products to be sold to purchasers, all cannabis and cannabis products must have a label affixed to each package that clearly states "This product has not been tested as required by the Medicinal and Adult Use Cannabis Regulation and Safety Act" and must comply with any other labeling requirements imposed by the state. (Ord. No. 1523, § 3G, 7-10-18)
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17.53.180 - Cannabis testing laboratory.
Accreditation. A testing laboratory shall obtain and maintain ISO/IEC 17025 accreditation.
Operating Procedures. A testing laboratory shall adopt and adhere to standard operating procedures to ensure the reporting of accurate test results, including but not limited to equipment, calibration, and methodology standards, that are consistent with its ISO/IEC 17025 accreditation.
A testing laboratory shall obtain samples of cannabis and cannabis products for testing in accordance with a statistically valid method designed to ensure that a sample is representative of the whole. Sampling methods should have at least a 95% confidence rate.
A testing laboratory shall destroy and safely dispose of the remains of any samples of cannabis or cannabis products tested upon completion of the analysis and the expiration of any retention time pursuant its standard operating procedures.
A testing laboratory shall maintain all testing results as a part of their respective business records.
(Ord. No. 1523, § 3G, 7-10-18)
17.53.190 - Cannabis distribution facility.
The transportation of cannabis or cannabis products shall only be conducted by persons holding a State license for cannabis distribution or employee of those persons.
Transportation safety standards, in addition to those imposed by the State of California, shall be approved by the Chief of Police including without limitations, the type of vehicles in which cannabis or cannabis product may be distributed, and minimum qualification for persons eligible to operate such vehicles.
A person holding a permit to operate a distribution facility shall observe and comply with all security manifest and notice requirements of Business and Professions Code Section 26070, as well as all State law requirements and Bureau regulations to operate a distribution facility. (Ord. No. 1565, § 14, 7-14-20)
17.53.200 - Cannabis microbusinesses.
A cannabis microbusiness shall comply with the following operational regulations as applicable:
Any cannabis cultivation shall occur only indoors and shall contain less than ten thousand square feet of canopy space.
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The cannabis microbusiness shall comply with the California Cannabis Track and Trace System established by the State of California and as further described in Sections 5048 through 5052, inclusive, of Title 16 of the California Code of Regulations, as the same may be amended from time to time.
A cannabis microbusiness that engages in cultivation must comply with the Federal Worker Protection Standard (40 CFR 170).
Any cannabis cultivation must be conducted in accordance with all applicable federal, state, and local laws and regulations governing the use of pesticides.
Any cannabis cultivation shall be conducted in a secure manner and shall not be visible from a public right-of-way. As used in this subsection, the term "visible" means capable of being seen without visual aid by an individual of normal acuity.
A cannabis microbusiness that engages in the manufacture of cannabis products shall comply with Section 17.53.170.
A cannabis microbusiness that engages in the distribution of cannabis or cannabis products shall comply with Section 17.53.190.
A cannabis microbusiness that engages in the retail sale of cannabis must comply with Sections 17.54.090 and 17.54.170. In the event there is a conflict pertaining to any of the operational or development standards set forth in this Chapter and in the above-referenced Sections in this paragraph, the Community Development Director shall determine which standards apply. For example, if a cannabis microbusiness operates as both a retailer and cannabis cultivation facility and the standards pertaining to a retailer and cannabis cultivation facility conflict, the Community Development Director shall determine which standards apply.
A conditional use permit shall only be issued to a cannabis microbusiness if it includes conditions that require (1) an application for a building permit for any construction or tenant improvements for the proposed use to be submitted within forty-five days of approval of the cannabis conditional use permit, (2) that any physical construction in reliance on the building permit be commenced within sixty days after the issuance of the building permit, and (3) that the cannabis microbusiness commence its operations within one hundred eighty days of the issuance of a building permit. If the applicant fails to satisfy the requirements for the fortyfive-day, sixty-day, or one hundred eighty-day period, the cannabis conditional use permit shall automatically become null and void, unless the applicant files an application for an extension prior to the expiration of the applicable deadline and thereafter obtains that extension from the Community Development Director on the basis that the extension is warranted by special circumstances and that the applicant would be irreparably injured by the denial of an extension. In addition, if after commencement of construction, work is discontinued for a period of one hundred eighty days, the cannabis conditional use permit shall become null and void.
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17.53.210 - Other provisions.
Cannabis Consumption on Premises. Smoking, vaporizing, ingesting, or otherwise consuming cannabis and cannabis products at a premises is prohibited. Premises as used in this subsection includes the actual building, as well as any accessory structures, common areas and parking areas.
No person shall give, sell, distribute, or otherwise transfer any cannabis product in any manner not consistent with the approved cannabis conditional use permit or that violates local or state law.
Permittees must cooperate with City staff and Police Department personnel who are conducting inspections or investigations relevant to the enforcement of laws and regulations related to this Chapter.
Permittees must comply with all state laws and regulations that pertain to cannabis businesses including, but not limited to, the MAUCRSA, and any regulations promulgated by a licensing authority.
(Ord. No. 1523, § 3G, 7-10-18; Ord. No. 1565, § 13, 7-14-20; Ord. No. 1577, § 2, 9-28-21) Editor's note— Ord. No. 1577, § 22, adopted July 14, 2020, renumbered § 17.53.200 to be 17.53.210 to provide for the addition of a new § 17.53.200
17.53.220 - Indemnification.
Indemnification. To the fullest extent permitted by law, the City shall not assume any liability whatsoever, with respect to approving any permit pursuant to this Chapter or the operation of any cannabis business approved by such permit pursuant to this Chapter. As a condition of approval of a permit granted under this Chapter, the applicant shall:
Indemnify and hold the City harmless from any and all claims, damages, legal or enforcement actions, including, but not limited to, any actions or claims associated with violation of federal law associated with the operation of the cannabis business as provided in this chapter.
Maintain insurance in the amounts and of the types that are acceptable to the City pursuant to guidelines and policies set forth by the City.
Name the City as an additionally insured on all City required insurance policies.
Defend, at its sole expense, any action against the City, its agents, officers, and employees related to the approval of a permit or the operation of the cannabis business. 6/30/26, 2:14 PM Banning, CA Code of Ordinances
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Reimburse the City for any court costs and attorney fees that the City may be required to pay as a result of any legal challenge (or federal enforcement action) related to the City's approval of a permit. The City may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve the operator of its obligation hereunder. (Ord. No. 1523, § 3G, 7-10-18; Ord. No. 1565, § 13, 7-14-20; Ord. No. 1577, § 22, 9-28-21) Editor's note— Ord. No. 1577, § 22, adopted July 14, 2020, renumbered § 17.53.210 to be 17.53.220 to provide for the addition of a new § 17.53.200.
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Chapter 17.54 - CANNABIS RETAILER CONDITIONAL USE PERMITS
17.54.010 - Definitions.
For the purpose of this Chapter, the following words and phrases shall be defined as follows:
"Applicant" means an owner applying for a cannabis retailer conditional use permit pursuant to this Chapter.
"Bureau" means the Bureau of Cannabis Control within the California Department of Consumer Affairs.
"Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis" also means the separated resin, whether crude or purified, obtained from cannabis. "Cannabis" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. For the purpose of this Chapter, "cannabis" does not mean "industrial hemp" as defined by Section 11018.5 of the Health and Safety Code.
"Cannabis business" means a cannabis retailer.
"Cannabis microbusiness" means a commercial cannabis business comprised of at least three out of the following four uses on the same premises: (1) cannabis retailer, (2) a manufacturing facility, (3) a cultivation facility with canopy space of less than ten thousand square feet, and (4) a cannabis distribution facility. To qualify as a cannabis microbusiness, the cannabis business must engage in a minimum of three out of the four above referenced uses. Any term use in this definition that is not defined herein shall have the same definition as set forth in Section 17.53.010.
"Cannabis products" has the same meaning as in Section 11018.1 of the Health and Safety Code.
"Cannabis retailer" means a cannabis business that engages in the retail sale and delivery of cannabis or cannabis products to customers.
"City" means the City of Banning.
"City Manager" means the City Manager or his/her designee. 6/30/26, 2:17 PM Banning, CA Code of Ordinances
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"Convicted" or "Conviction" means a plea or verdict of guilty or a conviction following a plea of nolo contendere was entered, but does not include any plea, verdict, or conviction that is expunged pursuant to California law or a similar federal or state law where the expungement was granted. "Commercial cannabis activity" includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery or sale of cannabis and cannabis products, or engaging in any other cannabis activity that requires a State license issued by a licensing authority.
"Financial interest" shall have the meaning set forth in Section 5004 of Title 16 of the California Code of Regulations, as the same may be amended from time to time. "Licensing authority" means the Bureau of Cannabis Control; CalCannabis Cultivation Licensing, a division of the California Department of Food and Agriculture (CDFA); the California Department of Public Health's Manufactured Cannabis Safety Branch; or any other State cannabis licensing authority.
"MAUCRSA" means the Medicinal and Adult-Use Cannabis Regulation and Safety Act. "Owner" means any of the following:
A person with any ownership interest, unless the interest is solely a security, lien, or encumbrance.
The chief executive officer of a nonprofit or other entity.
A member of the board of directors of a nonprofit.
An individual who will be participating in the direction, control, or management of the person applying for a permit. An owner who is an individual participating in the direction, control, or management of the commercial cannabis business includes any of the following:
A partner of a cannabis business that is organized as a partnership.
A member of a limited liability company of a cannabis business that is organized as a limited liability company.
An officer or director of a cannabis business that is organized as a corporation. "Permit" means a cannabis retailer conditional use permit issued pursuant to this Chapter. "Permittee" means any person holding a cannabis conditional use permit under this Chapter. "Person" includes any individual, firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular. "Premises" means the designated structure or structures and land specified in the application that is owned, leased, or otherwise held under the control of the applicant where the cannabis business will be conducted.
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"Significant discrepancy" means a difference in actual inventory compared to records pertaining to inventory of at least one thousand dollars. For purposes of determining a discrepancy, the acquisition price of the cannabis goods shall be used to determine the value of cannabis goods in a permittee's inventory.
(Ord. No. 1531, § 3G, 11-13-18; Ord. No. 1577, § 24, 9-28-21)
17.54.020 - Cannabis retailer conditional use permit required.
Except as expressly authorized pursuant to this Title (Title 17, Zoning), all commercial cannabis activity is prohibited in the City. Notwithstanding the foregoing, the City shall not prohibit any commercial cannabis activity for which the City is preempted by State law from prohibiting.
Consistent with Section 5416 of Title 16 of the California Code of Regulations, or any successor section, cannabis retail deliveries are permitted from lawful and permitted retailers in the City and from retailers located outside the City that are lawfully operating and permitted by the county or city in which they are located.
Prior to initiating operations and as a continuing requisite to operating a cannabis business, the person(s) wishing to operate a cannabis business shall:
Obtain and maintain a validly issued cannabis conditional use permit approved by the City Council after recommendation by the Planning Commission, and comply with all conditions of approval.
Obtain and maintain a State license to engage in the specific cannabis business being operated on the premises.
Obtain and maintain a cannabis retailer regulatory permit as required by Chapter 5.33 of this Code.
Obtain and maintain a business license or any other license or permit required by this Code.
A cannabis microbusiness with a retail component is not subject to the requirements of this Chapter 17.54 and is instead regulated pursuant to Chapter 17.53. (Ord. No. 1531, § 3G, 11-13-18; Ord. No. 1565, § 15, 7-14-20; Ord. No. 1577, § 25, 9-28-21)
17.54.030 - Cannabis retailer conditional use permit—Application fees and terms.
No cannabis retailer conditional use permit application shall be processed unless the applicant pays the application fee deposit in the amount to be established by resolution of the City Council.
No cannabis retailer conditional use permit shall be issued unless the applicant pays the nonrefundable permit fee in the amounts to be established by resolution of the City Council. 6/30/26, 2:17 PM Banning, CA Code of Ordinances
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Each cannabis retailer premises shall require a separate cannabis retailer conditional use permit. Two cannabis retailer premises in the City may not operate under one cannabis retailer conditional use permit.
No holder of a cannabis retailer conditional use permit for one premises shall have an ownership interest in any other cannabis retailer lawfully or unlawfully operating in the City. Accordingly, no cannabis retailer conditional use permit shall be issued for an applicant, business entity, or person that has an ownership interest in any other cannabis retailer in the City and no cannabis retailer conditional use permit shall be issued if the applicant, owner or person with a direct financial interest in the cannabis business also has an ownership or other direct financial interest in any other commercial cannabis retailer that is operating in the City or that has obtained a conditional use permit. (Ord. No. 1531, § 3G, 11-13-18; Ord. No. 1539, § 3, 1-8-19)
17.54.040 - Cannabis retailer conditional use permit application requirements.
An applicant shall file the following information with the City at the time of application for a cannabis retailer conditional use permit:
A completed cannabis retailer conditional use permit application, together with the application fee in an amount to be established by resolution of the City Council.
Proof of a cannabis regulatory permit jointly approved by the City Manager and Chief of Police.
The owner(s) identified on the cannabis retailer conditional use permit application shall be same owner(s) as listed on the cannabis retailer regulatory permit issued pursuant to Chapter 5.33.
An operating plan for the proposed cannabis business that includes:
A general description of the types of products and/or services to be sold or provided by the cannabis business.
A site plan, drawn to scale and professionally prepared by a licensed civil engineer or architect, of the parcel of property on which the proposed cannabis business will be located.
The site plan shall include the outline of all structures, driveways, parking and landscape areas, and boundaries of the parcel.
A floor plan, drawn to scale and professionally prepared by a licensed civil engineer or architect, designating all interior dimensions of the premises, the proposed use of all spaces, identification of limited access areas, areas of ingress and egress, and all security camera locations.
An evaluation of accessibility by the physically disabled to and within the building and identification of any planned accessibility improvements to comply with all state and federal disability access laws, including, but not limited to, Title 24 of the California Code of Regulations and the Americans with Disabilities Act. The evaluation must be professionally prepared by a licensed civil engineer or architect.
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A business plan describing how the cannabis business will operate in accordance with the Banning Municipal Code, state law, and other applicable regulations. The business plan must include plans for cash handling and transportation of cannabis and cannabis products to and from the premises.
A list of all owners, employees, independent contractors, and volunteers.
Neighborhood Context Map. An accurate straight-line drawing depicting the boundaries of the premises, the boundaries of all other properties within 600 feet of the premises, and the uses of those properties, specifically including, but not limited to, any use identified in Business and Professions Code section 26054(b), and any park. The map must also identify any residentially zoned parcel that is located within 200 feet of the premises. The map must be professionally prepared by a licensed civil engineer or architect.
Security Plan. A detailed security plan outlining the measures that will be taken to ensure the safety of persons and property on the premises. The security plan must be prepared by a qualified professional.
Lighting Plan. A lighting plan showing existing and proposed exterior and interior lighting levels that would be the minimum necessary to provide adequate security lighting for the use.
The name, phone number, and email address of an on-site community relations representative or staff member or other representative to whom the City can provide notice if there are operating problems associated with the cannabis business or refer members of the public who may have complaints or concerns regarding the cannabis business. This information shall be available to neighboring businesses and residences located within one hundred feet of the cannabis business, as measured in a straight line without regard to intervening structures. (Ord. No. 1531, § 3G, 11-13-18)
17.54.050 - Additional application requirements.
Each cannabis business shall obtain a separate conditional use permit.
The applicant shall submit proof that the applicant is, or will be, entitled to possession of the premises for which application is made.
The applicant shall submit proof of the nature of the cannabis business's organizational status, such as articles of incorporation, by-laws, partnership agreements, and other documentation which may be required by the City.
(Ord. No. 1531, § 3G, 11-13-18)
17.54.060 - Procedures and findings for approval of cannabis retailer conditional use permit. 6/30/26, 2:17 PM Banning, CA Code of Ordinances
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A cannabis retailer conditional use permit shall be processed in accordance with the procedures set forth in Chapter 17.52, Conditional Use Permits, with the following exceptions:
Any provision that requires the approval by the Planning Commission with appeal to the City Council shall be replaced with the requirement that the Planning Commission make a recommendation on the cannabis retailer conditional use permit and that the approval of such permit shall be made by the City Council.
Sections 17.52.020 (Application Procedures), 17.52.070 (Expiration), and 17.52.080 (Modifications) shall not apply.
Any procedures pertaining to noticing and the setting of a public hearing before the Planning Commission shall also apply to the City Council.
An applicant for a cannabis retailer conditional use permit shall comply with the California Environmental Quality Act ("CEQA"). No cannabis retailer conditional use permit shall be granted until the requisite CEQA review has been conducted.
(Ord. No. 1531, § 3G, 11-13-18; Ord. No. 1565, § 16, 7-14-20)
17.54.070 - Approval of cannabis retailer conditional use permit with conditions.
Upon approval of a cannabis conditional use permit, the City Council may impose conditions in excess of the requirements set forth in this Chapter including, but not limited to, conditions relating to hours of operation, the operation of any cannabis business, restrictions relating to the deployment or use of the types of equipment used on the premises, and set back requirements.
The City may grant a cannabis conditional use permit prior to the applicant having obtained a state license from a licensing authority; however, no approved cannabis business may receive a certificate of occupancy nor operate in the City prior to possessing the requisite state and local licenses and permits.
All cannabis businesses must pay all applicable taxes pursuant to all federal, state, and local laws.
Cannabis businesses shall comply with all cannabis state laws and regulations. (Ord. No. 1531, § 3G, 11-13-18)
17.54.080 - Separation requirements and other limitations.
Only one cannabis retailer for every 10,000 residents may lawfully operate in the City, with any fraction of that ratio being rounded down to the nearest whole number.
No cannabis business shall be located within a 200-foot radius of any residential zoning district.
No cannabis business shall be located within a 600-foot radius of any day care center, youth center, public or private school providing instruction in kindergarten or any of grades 1—12, or park. The 600-foot distance requirement does not include any private school in which education 6/30/26, 2:17 PM Banning, CA Code of Ordinances
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is primarily conducted in a private home or a family day care home. The distances specified in this subsection shall be the horizontal distance measured in a straight line without regard to intervening structures, from the property line of the lot on which the cannabis business is located to the nearest property line of those uses described in this subsection. (Ord. No. 1531, § 3G, 11-13-18; Ord. No. 1539, § 4, 1-8-19)
17.54.090 - Premises.
The building where the commercial cannabis activity occurs must be a minimum of 800 square feet in size.
All cannabis businesses shall be conducted only in the interior of enclosed structures, facilities and buildings and all operations including the storage or cultivation of cannabis plants at any stage of growth shall not be visible from the exterior of any structure, facility, or building. There shall be no outdoor storage of any kind associated with the cannabis business.
Loading areas and loading docks shall be located on the side or rear of the lot, and shall be screened by solid, decorative walls.
Hours of operation shall be as approved with the Conditional Use Permit.
Cannabis businesses shall only be conducted on properties that are fully compliant with all Banning Municipal Code requirements, including required development standards such as parking, landscaping, etc.
All entrances into the premises shall be locked at all times with entry controlled by the permittee's managers and staff.
The main entrance shall be maintained clear of barriers, landscaping, and other obstructions.
Inside of the main entrance, there shall be a lobby to receive persons into the site and to verify whether they are allowed on the premises.
All commercial cannabis activity in any premises shall be separated from the main entrance and lobby, and cannabis and cannabis products shall be secured by a lock accessible only to managers and staff of the permittee.
A permittee shall not, without an approved amendment to the cannabis retailer conditional use permit, make a physical change, alteration, or modification of the premises that alters the premises or the use of the premises from the premises diagram filed with the permit application.
Material or substantial changes, alterations or modifications requiring approval include, but are not limited to, the removal, creation, or relocation of a common entryway, doorway, passage, or a means of public entry or exit, when such common entryway, doorway or passage alters or changes limited-access areas within the premises.
A permittee shall not sublet the premises.
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3. Inspections. The City shall have the right to enter all cannabis businesses from time to time upon 24-hour's notice for the purpose of making reasonable inspections to observe and enforce compliance with this Chapter. Such inspections shall be limited to observing the licensed premises for purposes of determining whether the cannabis business is being operated or maintained in compliance with this Code, state law, and other applicable laws and regulations.
Any cannabis business licensed pursuant to this Chapter may be required to demonstrate, upon demand by the City that the source and quantity of any cannabis or cannabis products found upon the licensed premises is in full compliance with any applicable local or state law or regulation.
(Ord. No. 1531, § 3G, 11-13-18)
17.54.100 - Personnel and visitors.
All agents, officers, or other persons acting for or employed by a cannabis business shall display a laminated or plastic-coated identification badge issued by the cannabis business at all times while engaging in commercial cannabis activity. The identification badge shall, at a minimum, include the cannabis business's "Doing business as" name and city business license number, the employee's first name, an employee number exclusively assigned to that employee for identification purposes, and a color photograph of the employee that clearly shows the full front of the employee's face and that is at least 1 inch in width and 1.5 inches in height.
Employees and Volunteers Age Requirement. A cannabis business shall not employ an individual less than twenty-one (21) years of age, nor may a cannabis business permit an individual less than twenty-one (21) years of age to volunteer at the cannabis business.
Visitors. Limited access areas of a cannabis business shall not be open to the general public. Any individual permitted to enter a limited access area who is not a person that has undergone a background check in accordance with Chapter 5.33 of this Code and is not listed on the premises' worker list shall be considered a visitor. Notwithstanding the foregoing, state and local employees, or their official designees, shall not be considered a visitor provided the individual is on the licensed premises for purposes of official government business.
Visitors Identification and Record Requirements. Prior to permitting a visitor into a limited access area, a cannabis business must check the individual's valid government issued identification. The visitor shall be required to sign the cannabis business's visitor log, which must include the individual's name, date of entry, and purpose for entry.
Visitors Must Be at Least Twenty-One (21) Years of Age. A cannabis business may not permit a visitor who is less than twenty-one (21) years of age to enter a limited access area.
Visitors Prohibited Conduct. A visitor shall not be permitted to engage in any commercial cannabis activity while on the premises.
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A manager shall be on the site at all times that any other person, except a security guard, is on the site.
(Ord. No. 1531, § 3G, 11-13-18)
17.54.110 - Security.
The premises of a cannabis business must comply with all of the following security requirements:
Main Entrance and Lobby. The premises shall have a building with a main entrance that is clearly visible from the public street or sidewalk. The main entrance shall be maintained clear of barriers, landscaping, and other obstructions. The premises shall have an area designed for the secure receipt of cannabis and cannabis goods from a licensed distributor.
Commercial-Grade Locks. All points of ingress and egress to a premises shall ensure the use of commercial-grade, nonresidential door locks or window locks.
A permittee shall hire or contract for 24-hour security personnel to provide security services for the premises. All security personnel hired or contracted for by the cannabis business shall comply with Chapters 11.4 and 11.5 of Division 3 of the Business and Professions Code.
Video Surveillance. The premises must be equipped with a video surveillance system that meets all of the requirements set forth in this subsection.
Each premises shall have a digital audio/video surveillance system with a minimum camera resolution of 1280 x 720 pixels.
The surveillance-system storage device or the cameras shall be transmission control protocol (TCP) capable of being accessed through the internet.
The video surveillance system shall at all times be able to effectively and clearly record images of the area under surveillance and shall capture audio such that all sounds are intelligible.
Each camera shall be permanently mounted and in a fixed location. Each camera shall be placed in a location that allows the camera to clearly record activity occurring within 20 feet of all points of entry and exit on the premises, and allows for the clear and certain identification of any person and activities in all areas required to be filmed under subsection 5 below.
Areas that shall be recorded on the audio/video surveillance system include the following:
Areas where cannabis goods are weighed, packed, stored, loaded, and unloaded for transportation, prepared, or moved within the premises; Limited-access areas;
Security rooms;
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Areas storing a surveillance-system storage device with at least one camera recording the access points to the secured surveillance recording area; Entrances and exits to the premises;
Waste containers.
Cameras shall record continuously 24 hours per day and at a minimum of 15 frames per second (FPS).
The physical media or storage device on which surveillance recordings are stored shall be secured in a manner to protect the recording from tampering, fire, or theft.
Surveillance recordings shall be kept for a minimum of 90 days.
Surveillance recordings shall be monitored by a third party surveillance company.
Surveillance recordings are subject to inspection by the City, and shall be kept in a manner that allows the City to view and obtain copies of the recordings at the licensed premises upon not less than 24 hours advance notice. The permittee shall also send or otherwise provide copies of the recordings to the City upon reasonable notice by the City.
Recorded images shall clearly and accurately display the time and date. Time is to be measured in accordance with the United States National Institute Standards and Technology standards.
The video surveillance system shall be equipped with a failure notification system that provides notification to the permittee of any interruption or failure of the video surveillance system or video surveillance-system storage device.
The video surveillance system shall be equipped with a battery backup system capable of sustaining system operations in the case of an energy failure.
Alarm System. The premises shall have an audible interior and exterior security alarm system installed on all perimeter entry points and perimeter windows.
The alarm system shall be installed, maintained, monitored, and responded to by a security company licensed by the Department of Consumer Affairs, Bureau of Security and Investigative Services.
Upon request, a permittee shall make available to the City all information related to the alarm system.
Secure Storage of Product. Cannabis and cannabis products possessed by a cannabis business shall be kept and stored in a secured manner at all times.
Lighting. The business entrance(s) and all window areas of any cannabis business shall be illuminated during evening hours. The cannabis business shall comply with the City's lighting standards regarding fixture type, wattage, illumination levels, and shielding. (Ord. No. 1531, § 3G, 11-13-18)
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17.54.120 - Track and trace.
All permittees shall comply with the track and trace system established by the State of California and as further described in Sections 5048 through 5052, inclusive, of Title 16 of the California Code of Regulations, as the same may be amended from time to time.
(Ord. No. 1531, § 3G, 11-13-18)
17.54.130 - Signage.
The premises must comply with the following signage requirements:
Business signage shall be limited to the name of the cannabis business only, shall be in compliance with the City's sign code, and shall contain no advertising of any companies, brands, products, goods, or services.
A sign shall be posted in a conspicuous place near each point of public access which shall be not less than twelve (12) inches wide and twelve (12) inches long, composed of letters not less than one inch in height, stating "All Activities Monitored by Video Camera." Limited access areas shall be clearly identified by the posting of a sign which shall be not less than twelve inches wide and twelve inches long, composed of letters not less than one-half inch in height, which shall state, "Limited Access Area—Authorized Personnel Only." A sign shall be posted stating "Smoking, vaporizing, ingesting, or otherwise consuming cannabis or cannabis products on these premises, in their vicinity, or in any public place is prohibited and a violation of the Banning Municipal Code." (Ord. No. 1531, § 3G, 11-13-18)
17.54.140 - Cannabis waste management.
Cannabis waste disposal shall be conducted as follows:
Cannabis Waste. Cannabis waste must be made unusable and unrecognizable prior to leaving the licensed premises by grinding it and incorporating it with fifty percent non-medicinal cannabis waste.
Cannabis waste must be placed in either a trash enclosure or a trash receptacle for which either is locked with a commercial grade lock that is only accessible by the owner, manager, or employee of the cannabis business and any waste disposal company that provide waste disposal services for the cannabis business.
The permittee shall comply with Chapter 13.20, Industrial Wastewater Collection and Treatment of the Banning Municipal Code.
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(Ord. No. 1531, § 3G, 11-13-18)
17.54.150 - General sanitary requirements.
A cannabis business must ensure that its premises is maintained in a sanitary manner and activities on its premises are conducted in a sanitary manner.
All facilities of a cannabis business must have adequate and sufficient access to bathrooms and hand-washing facilities with running water at a suitable temperature. (Ord. No. 1531, § 3G, 11-13-18)
17.54.160 - Odor control.
A cannabis business must have a ventilation and filtration system installed that shall prevent cannabis odors from exiting the interior of the structure and shall comply with all related Building Code requirements.
The ventilation and filtration system must be approved by the Building Official and installed prior to the commencement of business activities on the premises.
(Ord. No. 1531, § 3G, 11-13-18; Ord. No. 1565, § 18, 7-14-20)
17.54.170 - Operating regulations.
Limited Hours of Operation. A cannabis retailer may only be open to the public and engage in sales between the hours of 8:00 (eight) a.m. and 10:00 (ten) p.m.
Product Not Visible To Public. The display of cannabis and cannabis products for sale shall not be visible from outside the licensed premises.
Age Restricted Entry. A cannabis retailer may not permit an individual less than twenty-one years of age into the licensed premises, except a cannabis retailer with an M-license (allowing for the sale of medicinal cannabis and cannabis products) from the state may permit an individual aged eighteen years or older into the licensed premises if the cannabis retailer verifies the individual is a qualified patient with a physician's recommendation or a primary caregiver, as those terms are defined under State law.
Cannabis Paraphernalia Sales. Cannabis retailers may sell or otherwise provide equipment, supplies, and paraphernalia used to consume cannabis and cannabis products. 6/30/26, 2:17 PM Banning, CA Code of Ordinances
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Electronic Point-of-Sale System Required. Cannabis retailers must have an electronic point of sale system that is either part of their seed to sale software or integrates with their seed to sale software. The electronic point of sale system must be capable of producing an electronic or automatic paper record for all transactions associated with any product sold, rented, or otherwise provided to the customer.
No Sales of Expired Product. Cannabis retailers may not sell any expired products, cannabis or cannabis products. Cannabis retailers shall not alter, edit, or adjust in any manner an expiration date on any item or product once affixed by its manufacturer.
Handling of Edible Cannabis Products. Cannabis retailers that possesses edible cannabis products shall comply with the provisions of all relevant state and local laws regarding the storage, handling, and sale of food.
Sale of Untested Products. All cannabis and cannabis products sold by a cannabis retailer must be tested by a State licensed testing laboratory prior to sale to a purchaser in accordance with the MAUCRSA.
Consumption of Cannabis and Cannabis Products on Premises. Cannabis and cannabis products shall not be smoked, vaporized, ingested or otherwise consumed on the licensed premises of a cannabis retailer. Premises as used in this subsection includes the actual building, as well as any accessory structures, common areas and parking areas.
Tamper-Evident, Child-Resistant Packaging Required. A cannabis retailer shall not deliver or sell cannabis products that are not packaged or labeled in a resealable, tamper-evident, childresistant package. The cannabis and shall include a unique identifier for the purposes of identifying and tracking cannabis and cannabis products.
Cannot Be Attractive to Children. Cannabis packaging and labeling shall not be designed to appeal to children, including, but not limited to, cartoon characters or similar images.
State-Mandated Warnings and Information. All cannabis and cannabis product labels and inserts shall include the state-mandated warnings and information contained in Business and Professions Code Section 26120(c).
(Ord. No. 1531, § 3G, 11-13-18; Ord. No. 1565, § 19, 20, 7-14-20)
17.54.180 - Other provisions.
No person shall give, sell, distribute, or otherwise transfer any cannabis product in any manner not consistent with the approved cannabis conditional use permit or that violates local or state law.
Permittees must cooperate with City staff and Police Department personnel who are conducting inspections or investigations relevant to the enforcement of laws and regulations related to this Chapter.
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5. Permittees must comply with all state laws and regulations that pertain to cannabis businesses including, but not limited to, the MAUCRSA, and any regulations promulgated by a licensing authority.
Minimum square footage of the building shall be 800 square feet unless otherwise provided by the State.
(Ord. No. 1531, § 3G, 11-13-18)
17.54.190 - Indemnification.
Indemnification. To the fullest extent permitted by law, the City shall not assume any liability whatsoever, with respect to approving any permit pursuant to this Chapter or the operation of any cannabis business approved by such permit pursuant to this Chapter. As a condition of approval of a permit granted under this Chapter, the applicant shall:
Indemnify and hold the City harmless from any and all claims, damages, legal or enforcement actions, including, but not limited to, any actions or claims associated with violation of federal law associated with the operation of the cannabis business as provided in this chapter.
Maintain insurance in the amounts and of the types that are acceptable to the City pursuant to guidelines and policies set forth by the City.
Name the City as an additionally insured on all City required insurance policies.
Defend, at its sole expense, any action against the City, its agents, officers, and employees related to the approval of a permit or the operation of the cannabis business.
Reimburse the City for any court costs and attorney fees that the City may be required to pay as a result of any legal challenge (or federal enforcement action) related to the City's approval of a permit. The City may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve the operator of its obligation hereunder.
(Ord. No. 1531, § 3G, 11-13-18)
17.54.200 - Expiration.
Notwithstanding any other provision of this Code, a retailer conditional use permit shall only be issued if it includes conditions that require (1) an application for a building permit for any construction or tenant improvements for the proposed use to be submitted within forty-five days of approval of the retailer conditional use permit, (2) that any physical construction in reliance on the building permit be commenced within sixty days after the issuance of the building permit, and (3) that the retailer commence its operations within one hundred eighty days of the issuance of a building permit. If the applicant fails to satisfy the requirements for the forty-five-day, sixty-day, or one hundred eighty-day period, the retailer conditional use 6/30/26, 2:17 PM Banning, CA Code of Ordinances
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permit shall automatically become null and void, unless the applicant files an application for an extension prior to the expiration of the applicable deadline and thereafter obtains that extension from the Community Development Director on the basis that the extension is warranted by special circumstances and that the applicant would be irreparably injured by the denial of an extension. In addition, if after commencement of construction, work is discontinued for a period of one hundred eighty days, the Conditional Use Permit shall become null and void.
(Ord. No. 1565, § 17, 7-14-20; Ord. No. 1577, § 26, 9-28-21) 6/30/26, 2:17 PM Banning, CA Code of Ordinances
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Zone DC GC HSC PO I AI BP IMR
Single-family dwellings, new P X X X X X X X
Accessory Dwelling Unit P X X X X X X X
Other Uses
Commercial or
telecommunications antennae
X C C C C C C C
Public utility facilities X P P P P P P P
Emergency shelters X X X X X P X X
Cannabis Commercial Indoor
Cultivation
X X X X C X C X
Cannabis Personal Cultivation X X X X X X X X
Cannabis Manufacturing Level 1 X X X X C X X X
Cannabis Retailer X X C X X X X X
Cannabis Testing Laboratory X X X X C X X X
Cannabis Distribution Facility X X X X C X X X
Cannabis Microbusiness X X X X C X C X
Other Cannabis Uses X X X X X X X X
12 9
7 9
8 9
10 11
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1 Surface mining permit required. See Chapter 17.100.
2 Mobile phones, televisions, video, audio systems, and digital cameras. 3 Refer to Section 17.12.050(B) for conditional use permit requirements. 4 A government office shall include administrative functions as well as those activities that will involve onsite customer patronage. A government office that is only administrative in nature, involving no customer patronage, can be considered a professional office.
5 When undertaken in conjunction with on-site retail as a primary use. 6 Existing mixed residential/commercial uses that are legal and nonconforming with respect to Conditional Use Permits may be reoccupied.
7 Cannabis Personal Cultivation is prohibited except in a house, an apartment unit, a mobile home, or other similar dwelling that is a legal non-conforming use and that otherwise complies with Chapter 5.34 of this Code.
8 Cannabis Retailers shall require approval of a Cannabis Conditional Use Permit by the City Council, after recommendation by the Planning Commission, and shall be subject to the requirements of Chapter 17.54. 9 Cannabis Commercial Indoor Cultivation, Cannabis Manufacturing Level 1, and Cannabis Testing Laboratory uses shall require approval of a Cannabis Conditional Use Permit by the City Council, after recommendation by the Planning Commission, and shall be subject to the requirements of Chapter 17.53. 10 A Cannabis Distribution Facility shall require approval of a Cannabis Conditional Use Permit by the City Council, after recommendation by the Planning Commission, and shall be subject to the requirements of Chapter 17.53.
11 A Cannabis Microbusiness shall require approval of a Cannabis Conditional Use Permit by the City Council, after recommendation by the Planning Commission, and shall be subject to the requirements of Chapter 17.53.
12 New Single-Family Residential Dwellings shall be prohibited on (East/West) Ramsey Street and (North/ South) San Gorgonio Avenue.
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City of Banning
Community Development Department
MEMORANDUM
DATE: July 7, 2026
TO: Matthew Bassi, Interim Community Development Director FROM: Mark Staples, Planning Manager
RE: Existing Cannabis Businesses in Banning
The following is a summary of the existing cannabis retail businesses in Banning:
CANNABIS RETAILERS
1. 1034 W. Ramsey St. – Harvest Corner (CUP 20-8001): City Council approval on June 23, 2020 (Currently Operating and has an Active Business License)
2. 1474 W. Ramsey St. – Black Sun Medicinals (CUP 19-8010): City Council approval on January 14, 2020 (Currently Operating and has an Active Business License)
3. 2372 W Ramsey St. – Nourish Earth Inc. (CUP 19-8006): City Council approval on January 14, 2020 (Currently Operating and has an Active Business License) The following is a summary of the existing industrial cannabis cultivators and manufacturers:
CANNABIS CULTIVATORS (Indoor Grow Businesses)
1. 820 S Hathaway St – Green Grow Farms (CUP 20-8010): City Council Approval on December 8, 2020 (Currently Operating and has an Active Business License)
2. 313 S. Galleher St. #101/102, SJ Agrigrow (CUP 21-8012): City Council Approval on Sept. 28, 2021 (Under Construction and Not Yet Operating)
3. 301 S. Galleher St – Flower Dept, LLC (CUP 24-0107): City Council Approval on Sept. 23, 2025 (Under Construction and Not Yet Operating)
CANNABIS MANUFACTURER
1. 195 E Lincoln St. – Tres Jotas Properties, LP (CUP 22-8003): City Council Approved Sept. 27, 2022 (Currently Operating and has an Active Business License) Note: This is a Type 6 non-volatile solvent manufacturing or mechanical extraction (i.e. do not produce flammable gas or vapor, ethanol, carbon dioxide, etc. OR utilizes mechanical extraction with pressure, heat, or cold to extract)
986
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Elizabeth Gibbs, City Manager
PREPARED BY: Ralph Wright, Parks and Recreation Director MEETING DATE: July 14, 2026
SUBJECT: Consideration of a fee waiver request by the Stagecoach Day's Association in the Not to Exceed amount of $38,000
STAFF RECOMMENDATION:
That the City Council review the request and determine if they would like to approve a fee waiver of additional in-kind services for the Annual Stagecoach Day's Event.
BACKGROUND:
The City of Banning and the Stagecoach Days Association have an approved Memorandum of Understanding that delineates both the City's and the Stagecoach Days Association's responsibilities for the Annual Stagecoach Days event, held in September each year. The existing MOU allows the City to provide in-kind services at no charge to assist with the event, totaling $7,500. This amount was reduced from $10,000 that was the cap in previous MOUs for the event. The reduction was agreed upon because the City increased direct payment to Stagecoach Days Association to assist with bleacher costs.
At the November 12, 2025, meeting of the City Council, the Banning City Council adopted Resolution 2025-156, a Resolution updating the City's Master Fee Schedule. The revised fees became effective on January 15, 2026. The updated Master Fee Schedule included additional staffing fees for Special Event Permits. These included an hourly rate for Police Officers required for certain Special Events. The new fees included all associated department costs allocated as part of an hourly fee for services. In the past, the Police Department and other departments absorbed costs beyond the direct hourly overtime costs associated with in-kind services.
With the newly adopted fees, the true staffing costs are now being charged for Special Events. The total cost for in-kind services supporting the Stagecoach Parade and Stagecoach Days events at Dysart Park was originally estimated at just over $45,000.
The estimated total for Parade - $17,816
The estimated total for Events at Dysart Park on Friday and Saturday is $27,432 The total estimated City costs for all Stagecoach Days events are $45,248 After reviewing the parade route, the Police Department recommended modifying it to come down San Gorgonio rather than running on Ramsey to reduce the number of officers required and use non-sworn officers for assistance, thereby reducing the estimated total staffing hours and costs. These changes would reduce the total estimated costs to $30,920.
The Stagecoach Days Association has stated that they would rather the parade run as it has in the past, down Ramsey. Although the parade is included as a requirement in the approved MOU, the Stagecoach 987
Days Association has inquired whether they could not offer the parade this year to reduce the total time and costs of their event.
Attachment 1 is included in this report and breaks down the original estimated staffing requirements and the revised estimates.
JUSTIFICATION:
Chapter 3.40.010 of the Banning Municipal Code establishes the protocol for waiving fees for non-profit organizations that provide valuable public services to the community. Per this chapter, fee waiver requests above $1,000 require authorization and approval of the Banning City Council.
The Stagecoach Days Association has submitted a letter dated July 1, 2026 requesting a waiver of City fees applicable to their planned 2026 Stagecoach Days PRCA Rodeo and Parade.
The Annual Stagecoach Days event is a Signature Event for the City of Banning and has been supported substantially by the City as part of the existing MOU and for many years.
FISCAL IMPACT:
Increasing the amount of waived fees for in-kind services for the 2026 event would place a significant financial burden on the affected City departments, particularly as the City develops reduced budgets for Fiscal Year 2026/2027. These departments are primarily funded by the City’s General Fund.
The existing MOU authorizes the City to waive up to $7,500 in fees for services provided in support of the event. Based on the highest staffing-cost estimate, the total cost would exceed the authorized waiver by approximately $38,000. Unless an additional waiver is approved, the Stagecoach Days Association would be responsible for these costs.
ATTACHMENTS:
1. Att 1 - Estimated City Services for Stagecoach Days Event_2026.pdf
2. BMC_-_Chapter_3.40.010_-_Waiverof_fees_for_Non_Profit_organizations.pdf
3. Executed_Stagecoach_Days_MOU_06_22_25.pdf
4. Fee Waiver Request 2026 Stagecaoch Days.pdf
988
Original - In Kind Services Estimate - Stagecoach Days Sept 11 & 12, 2026 In Kind allowance per MOU - $7,500 PARADE Event 10 am to 12pm
Original
Estimate
Hours Rate
Up to 16 officers max 4 hours 64 $180.00 Max Total $11,520.00 Public Works 7 staff members max 4 hours 28 $212.00 Max Total $5,936.00 Street Sweeping Special Run for parade route $360.00
PARADE TOTAL $17,816.00
Rodeo and full event at Dysart
FRIDAY 5pm to 1am
4 hours 4 $212.00 $848.00
Fire review and inspection Permit and inspection $1,500.00 Driver 9 hours each day 18 $132.00 $2,376.00
1 person at 4 hours 4 $212.00 $848.00
Police in Event 5 officers at 8 hours 40 $180.00 $7,200.00 3 people 7 hours 21 $136.00 $2,856.00
SATURDAY 4pm to 1am
1 person at 4 hours 4 $212.00 $848.00
Police in Event 5 officers at 9 hours 45 $180.00 $8,100.00 3 people 7 hours 21 $136.00 $2,856.00
RODEO EVENT TOTAL $27,432.00
Total Estimated City Service Costs $45,248.00
Amount above Allocation in MOU $37,748.00
Rec Staff - Parking, Gate and
ticket booth assistance
Police Officer Assistance -
Engineering for stage and Bleacher
Transit - Shuttle Bus
Public Works for Road closure set
up/take down
Rec Staff - Parking, Gate and
ticket booth assistance
Public Works for Road closure set
up/take down
EXHIBIT A - City Services Estimate
989
Revised - In Kind Services Estimate - Stagecoach Days Sept 11 & 12, 2026 In Kind allowance per MOU - $7,500 PARADE Event 10 am to 12pm Adjusted Parade Route
Original
Estimate
Hours Rate
8 sworn officers for 3 hours 24 $180.00 Total $4,320.00 3 non-sworn personnel for 3 hours 9 $156.00 $1,404.00
Public Works 7 staff members max 4 hours 28 $212.00 Total $5,936.00 Street Sweeping Special Run for parade route $360.00
PARADE TOTAL $12,020.00
Rodeo and full event at Dysart
FRIDAY 5pm to 1am
4 hours 4 $212.00 $848.00
Fire review and inspection Permit and inspection $1,500.00 Driver 9 hours each day 9 $132.00 $1,188.00
1 staff member for 4 hours 4 $212.00 $848.00
Police in Event 4 Sworn Officers officers at 7.5 hours 30 $180.00 $5,400.00 3 Recreation leaders - 7 Hours 21 $40.00 $840.00
SATURDAY 4pm to 1am
Driver 9 hours each day 9 $132.00 $1,188.00
1 staff member for 4 hours 4 $212.00 $848.00
Police in Event 4 Sworn Officers officers at 7.5 hours 30 $180.00 $5,400.00 3 Recreation leaders - 7 Hours 21 $40.00 $840.00
RODEO EVENT TOTAL $18,900.00
Total Estimated City Service Costs $30,920.00
Amount above Allocation in MOU $23,420.00
Police Officer Assistance -
Rec Staff - Parking, Gate and
ticket booth assistance
Public Works for Road closure set
up/take down
Rec Staff - Parking, Gate and
ticket booth assistance
Public Works for Road closure set
up/take down
Engineering for stage and Bleacher
Transit - Shuttle Bus
Transit - Shuttle Bus
990
Created: 2024-11-12 10:03:17 [EST]
(Supp. No. 57, 6-24)