Agenda packet, regular meeting, third session — Banning City Council, March 26, 2024 (part 2 of 3)

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Laurie Sampson, Assistant City Manager
Derek Thesier, Acting Police Chief
MEETING DATE: March 26, 2024
SUBJECT: Receive and File Police Department Statistics for the Month of February 2024.

RECOMMENDATION:

Receive and file Police Department statistics for the month of February 2024.

BACKGROUND:

The Banning Police Department provides statistics to the public and City Council upon request.

JUSTIFICATION:

Statistics tell a city how many police officers need to be on the street, what crimes are being committed, and reveal increases and decreases in specific crimes. Also, cities get funding in part on their crime rates. If a federal crime bill passed, the Government needs to know which cities could benefit the most from those funds, and some cities have been rewarded financially for drastically lowering rates of crime.

FISCAL IMPACT:

None
ALTERNATIVES:

Providing statistics keeps the Council, staff, and residents apprised of current police activities. If the statistics are not presented to the Council on a regular basis, then they should be provided on another platform.

ATTACHMENTS:

1. STATS-FEBRUARY.pdf
328
329

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Laurie Sampson, Assistant City Manager
Todd Hopkins, CALFIRE Division Chief
MEETING DATE: March 26, 2024
SUBJECT: Receive and File Fire Protection Services Statistics for the Month of February 2024
RECOMMENDATION:

Receive and file Fire Department statistics for the month of February 2024.

BACKGROUND:

City Council has requested CalFire’s Riverside County Division, which provides fire protection services in the City of Banning, provide specific reports to the public and City Council on a monthly basis.

JUSTIFICATION:

Many fire and EMS departments store and analyze statistical data, which can provide a detailed analysis of the types of responses their organization is called to assist. This information is critical to elevating the level of service provided by the fire department.

FISCAL IMPACT:

None
ALTERNATIVES:

Providing statistics keeps the Council, staff, and residents apprised of current fire and paramedic activities. If the statistics are not presented to the Council on a regular basis, then they should be provided on another platform.

ATTACHMENTS:

1. Fire Statistics - February 2024
330
Bill Weiser
Jurisdiction Summary for City of Banning
Fire Chief
Riverside County Fire Department/ CAL FIRE
2/1/2024 to 2/29/2024
Incident Response Activity
*At least 1 Resource Dispatched
Incident Type #
Com Fire 1
False Alarm 17
Haz Mat 1
Medical 354
Other Fire 2
Public Service Assist 42
Res Fire 1
Ringing Alarm 1
Standby 3
Traffic Collision 23
Vehicle Fire 1
Wildland Fire 2
Incident Total 448
Average Enroute to On-Scene Time
*Units Responding Charlie, Delta, Bravo, Echo, Code 3
19 206 105
2 5.11 62.05
<5 Minutes +5 Minutes
+10 Minutes +20 Minutes
Average Min % 0 to 5 Min
Enroute Time: Unit has been acknowledged as responding.

On-Scene Time: Unit has been acknowledged as being On-Scene.

Transport
*Based on Units with a Transport time
0 Total: 0
Mutual Aid
*Unit responses
Jurisdiction Units Responses
Engine 410
Total: 410
Mutual Aid Given
Engine 222
Total: 222
Mutual Aid Received
21 Breathing Support 1
Brush 9
Chief 11
Engine 80
Environmental Health 1
PIO 1
Squad 48
Total: 172
3/1/2024 1:41:16PM Page 1 of 2 331
Truck Report
recorded 0 responses in from 2/1/2024 1:40:09 PM to 2/29/2024 1:40:09 PM Significant Incidents
CAL Fire/ Riverside County Firefighters responded to a reported structure fire at the above address. First unit at scene reported a single story, single family dwelling with light smoke showing from the exterior. Crews encountered heavy hoarder conditions while trying to gain entry.

Once crews were able to gain entry, they were able to contain the fire to the kitchen area with smoke damage in the entire structure.

Building and safety was notified and responded to the incident. 24CARRU024743
2/16/2024 6:49:00AM
3/1/2024 1:41:16PM Page 2 of 2 332

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Art Vela, Public Works Director
MEETING DATE: March 26, 2024
SUBJECT: Public Works Capital Improvement Project Tracking List RECOMMENDATION:

Receive and file.

BACKGROUND:

There are several planning, environmental, design and construction contracts that have been approved by City Council and/or the City Manager’s office that are being managed by the Public Works Department. In an effort to keep the City Council and the public informed of the progress made and current status of each project, staff has prepared and will continue to update the attached Public Works CIP Tracking List. The list will be presented to City Council on a monthly basis.

JUSTIFICATION:

This recurring item is provided to keep City Council and the public apprised of progress on certain projects.

FISCAL IMPACT:

Not applicable.

ALTERNATIVES:

Not applicable.

ATTACHMENTS:

1. CIP Tracking Update.pdf
333
Category Project # Project Name Phase % Completed Tasks Completed Current Tasks Future Tasks Tentative Completion Date Project Budget Streets 2023-17 Hargrave Grade Separation PA&ED 0% FAR Grant Application FAR Agreement. Preparation of RFP for environment/design services
Bidding for environmental/design services 12/30/27 $ 5,000,000 Streets 2024-01 Citywide Street Overlay and Slurry Seal PS&E and Construction
15% Streets Selection and Cost Estimates Prepare Final Documents for Bid Bidding, Awarding Construction Contract 9/1/24 $ 1,513,000 Streets Highland Springs Avenue Interchange PA&ED 10% Highway Safety Manaul segmentation existing condition; aerial topo mapping; traffic volume report; Environmental Purpose/Need Statement; Air/Noise memos;
Geometric development; utility agency data
collection; Traffic Operations Analysis Report;
Enviro. Technical Reports;
Design Standard Risk Assessment; Value
Analysis Report; Geometric Approval
Document; R/W Data Sheets; Transp.

Management Plan
8/1/25 $ 2,900,000
Streets 2020-04 Sun Lakes Blvd Extension CEQA, PS&E 50% Council has approved a redesign in order to comply with Kinder Morgan's requirements.

Revise Street Alignment and Update Storm Drain
Layout
Revise Environmental documentation and
Perform Sediment Transport Analysis
8/1/24 $ 1,248,026
Streets - Traffic Signalization of 8th Street/I-10
Interchange
Design/Permits 90% Design well underway. Submittal of encroachment permit application to Caltrans. Caltrans approval on TOAR and
concepts.

Design drawings have been resubmitted to
Caltrans and awaiting a response.

Resubmitted to Caltrans if needed. Caltrans
encroachment permit issuance.
6/1/24 $ 1,081,000
Streets 2022-05 HSIP Cycle 10 Omar/Ramsey
Intersection Improvements
Design 95% Project Approved for Funding by the State. Proposal solicitation. Contract award.
90% Plans sent to WEBB for corrections Final Plans, Specs and Cost Estimate 6/1/24 $ 59,698 Streets 2023-04 HSIP Cycle 10 Ramsey Street
Pedestrian Safety Improvements
Design 90% Project Approved for Funding by the State. Project Awarded.
90% Plans sent to STC for corrections Final Plans, Specs and Cost Estimate 6/1/24 $ 64,780 Streets 2023-09 HSIP Upgrade 17 Traffic Signals
Hardware
PS&E 5% Project approved for funding by Caltrans RFP sent to Purchasing for Advertising Award Contract 6/30/24 $ 433,900 Streets 2023-10 HSIP Pedestrian Crossings Upgrades
at 19 Intersection
PS&E 2% Project approved for funding by Caltrans Working on RFP Send to purchsing for advertizing 6/30/24 $ 585,000 Streets 2023-11 HSIP Wilson St & 12 St Intersection
Upgrade
PS&E 2% Project approved for funding by Caltrans Working on RFP Send to purchsing for advertizing 6/30/24 $ 277,000 Streets 2023-05 San Gorgonio/UPRR Pedestrian
Crossing
Design 65% Amendment 2 CC Approval. 65% Plans complete CASC revision of plans per UPRR request 90% Plans Submittal 6/1/24 $ 230,000 Streets 2022-10 LED Message Board Sign Design 10% Received Proposal from BOA Architecture. City Council approval.

Conceptual Drawings Review by Downtown Ad
Hoc Committee
30% Plans Submittal On Hold $ 64,700
2021-06 CNG Station Design/Const 5% Project kicked off, reviewed submittals for key equipment with long lead times
Developing stie plan; utility coordination. Finalize site plan/layout; proceed with design; equipment procurement.
6/1/24 $ 3,900,000
Water 2018-02W New Domestic Water Well C8 (Phase
1: Pilot well drilling and testing)
Construction 100% Notice of Completion Filed Release of Retention Completed $ 2,399,601 Wastewater 2022-01WW Wastewater Treatment Plant and
Recycled Water Improvments
Planning/Design 20% Treatment tech research and selection; BOR grant applications; Feasibility Study
Develop RFQ for Progressive Design Build
delivery; identifying/selection of funding options.

Shortlist contractors from the RFQ process;
development and solicitation of RFP.
6/1/25 $ 1,576,432
Wastewater 2020-08WW WWTP Equalization Basin Design/CEQA 55% City Council has approved a redesign related to value engineering. Re-design has been kicked off.
60% design in progress. Submittal and review of 60% design drawings 9/1/24 $ 362,866 Water 2023-02W Barbour Water Line Replacement Design 90% City Review of Alignemnent and Profile 90% plans submitted to ERSC for review Final Plans, Specs and Cost Estimate 6/30/24 $ 111,521 Water 2023-15 Ramsey Street Water Line Design 20% Contract awarded and kick off meeting held. Preliminary Design 60% design submittal 8/30/24 $ 250,000 Water 2022-07W Well M12A (Phase I Pilot well drilling
and testing)
Construction 15% Conductor casing installed; commenced drilling of pilot borehole and reached depth of 1,003 feet; began airlifting and taking water samples.

Well testing and development Mechanical well development; pumping and surging; well testing; well disinfection and
demobilization.
2/1/25 $ 2,254,005
Water 2017-15W Water Main Replacement Location 3 Design 10% Original Design Completed. Kick off meeting for redesign Final Revised Design 6/30/24 $ 20,000 Facility 2023-16 Opportunity Village Sound Wall Design 5% Project kicked off. Surveying and utility research. Soundwall material research
Prepare and submit 30% design. 9/1/24 $ 103,486
Facility 2023-14 Dump Site Electronic Gate Construction 0% Bid Docs Bidding Award Contract 8/1/24 $ 65,000 Facility 2023-06 Lions Park Non-Potable Water Conversion
Design 0% Completed development of RFP Waiting on PO Kick off meeting 8/1/24 $ 98,500 Category Project # Project Phase % Completed Tasks Completed Current Tasks Future Tasks Tentative Completion Date Project Budget Non-potable Non-potable Reservoir at WWTP Design 95% Kickoff Meeting; Reservoir Sizing Calculations; 30% Design; 60% Design
90% Plans and Specs 100% PS&E 4/1/24 DIF Credits, TBD
Non-potable Recycled Water Booster Station at
WWTP
Design 95% Kickoff Meeting; Conceptual Design; Verification of Lions Park peak demands, 30% Design; 60% Design
90% Plans and Specs, hydraulic analysis and
control strategy, pump configuration and pipe
sizing adjustments
100% PS&E 4/1/24 DIF Credits, TBD
Non-potable Booster Station and Reservoir on
Lincoln
Design 95% Kickoff Meeting; Conceptual Design; Verification of expected operating pressures and demands, 30%
Design; 60% Design
adjustments to pump configurations and control
strategy
100% PS&E 4/1/24 DIF Credits, TBD

PUBLIC WORKS CAPITAL IMPROVEMENT PROJECTS (CIP) TRACKING SHEET

PUBLIC WORKS CAPITAL IMPROVEMENT PROJECTS (CIP) - FUNDED BY TRI POINTE, ELIGIBLE FOR DIF CREDITS 334

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Adam Rush, Community Development Director
MEETING DATE: March 26, 2024
SUBJECT: Receive and File Code Enforcement Update and Statistics for the Month of February 2024
RECOMMENDATION:

Receive and file Code Enforcement statistics for the month of February 2024.

BACKGROUND:

The City’s Code Enforcement Division (“Code”) is currently staffed three full-time officers that are responsible for enforcement of the City’s Municipal Code with cases that range from lack of a business license, to unsafe buildings, to street vendors and much more. Within the Code Enforcement Division, the City employs two Code Enforcement Officers, responsible for managing and organizing over 900 open cases, and a Supervising Officer. In addition to the typical code enforcement duties and responsibilities (e.g., unsafe buildings, unpermitted land use, no business license, construction without permit, and unregistered food vendors, just to name a few) Code Enforcement is also responsible for compliance with Fire Hazard/Weed Abatement. This Program includes the investigations, patrol, noticing, enforcement, and remediation of over 650 vacant lots, of potential fire hazards, the invoicing costs to the property owners for service rendered by the city’s contractors. The Weed Abatement Officer notifies all property owners for the Summer and Fall fire seasons, which leaves two officers for Nuisance Complaints, which is before the traditional fire season begins. These duties, while important, reduce their ability to handle the day-to-day functions of other Code Enforcement duties by half. Code Enforcement activities typically do not recoup the cost associated with labor, nuisance abatement, and legal fees to name a few, through the collection of administrative citations and penalties. Revenue from code cases can be delayed months or years given the manner in which fines and penalties are assessed and ultimately collected, which will be mitigated by the Introduction of the Lien Reimbursement Ordinance.

Further, the City is missing out on a potential revenue source associated with the Abandoned Vehicle Abatement (AVA) program administered by the California Highway Patrol and Riverside County. Code Enforcement requires additional staffing to enforce AVA Compliance.

MONTH YEAR-TO-DATE (YTD)
Cases Investigated 87 135
Cases Closed 57 146
All Open Cases 34 80
Citations Paid $0 $0
Notices to Abate 4 4
Red Tagged Properties 2 4
Apply or Release Lien/Pendency 2 4
335
Civic Plus Inquiries 2 46
Public Records Request 7 33
JUSTIFICATION:

The Code Enforcement Division is fully staffed with two Code Officers and one Code Supervisor.

The current open case load, in combination with additional responsibilities such as: (1) Ramsey Street Beautification; (2) Enforcement of Unpermitted Mobile Food Vendors (3) Shopping Cart Retrieval; (4) Maintenance of Abandoned Buildings; and (5) Initiation of Litigation Proceedings for chronically non-compliant public nuisances and unsafe structures.

Three Code Enforcement Officers completed a weeklong continuing education training in Monterey, CA in November to keep their California Association of Code Enforcement Officers (CACEO) certifications current and active.

Receivership lawsuits are being drafted for thirteen (13) additional non-compliant properties that pose serious threats to the public health, safety, and welfare.

FISCAL IMPACT:

Preparation of this report did not incur any additional costs.

ALTERNATIVES:

None
336

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Laurie Sampson, Assistant City Manager
MEETING DATE: March 26, 2024
SUBJECT: Receive and File Contracts Approved Under the City Manager’s Signature Authority and Inventory Reports
RECOMMENDATION:

Receive and file.

BACKGROUND:

Per Purchasing Policy B-30, 3-105(5), written notification by the Purchasing Officer of all City Manager approved contracts will be provided quarterly to the City Council for review, and 16-107(3), The City Manager, or his designated representative, shall make a monthly written report to the City Council as to all Change Orders approved by the City Manager during the month, and of all possible future Change Orders that may appear probable prior to the next monthly report. At a minimum, the City Manager shall provide the Council with the name and nature of the contract, all Change Orders approved during that month, the reason for the Change Orders, the cumulative amount of the Change Orders for that contract, and any additional information the Council requests.

JUSTIFICATION:

While the policy requires contracts signed under the City Manager’s signature authority be submitted to City Council on a quarterly basis, it is staff’s intent to submit these reports on a monthly basis to provide continuity with other monthly reports submitted to Council.

FISCAL IMPACT:

None
ALTERNATIVES:

Failure to provide this report to the City Council would result in the City being out of compliance with Purchasing Policy B-30,3-105(5).

ATTACHMENTS:

1. 2024 - February contract report for Mar 2024 CC mtg.pdf 337
City Manager
Approval
Date
Vendor Name Description of Item/Service Contact Award
Total
Department/
Division Comments
2/14/2024 West & Associates Water Supply Assessment Sunset Crossroads
$ 7,700.00 PW - Engineering
2/6/2024 AB Fence Lions Park Field 3 Backstop $ 2,810.00 CS - Parks CUPCCAA 2/5/2024 SoCal West Coast
Electric Inc
Install Electricity to four new pallet
shelter at Opportunity Village
$ 5,294.00 PW - Engineering CUPCCAA
2/12/2024 Blais and Associates Grant Writing Svcs for WWTP CA SWRCB SRF Application
$ 24,675.00 PW-Wastewater
2/15/2024 Land Engineering
Consultants
Water Main Replacement Design $ 20,000.00 PW-Water
2/19/2024 Most Dependable
Fountains, Inc.
440 SMSS ADA Drinking Fountains $ 34,580.12 Parks & Rec CUPCCAA 2/20/2024 Vision Security Systems Cameras and Security for Opp Village $ 18,792.74 CM CUPCCAA 2/21/2024 Desert View Power 1383 PCA Sale Agreement $ 20,000.00 PW - Refuse 2/20/2024 ESRI ArcGIS subscription with Smartgov $ 1,530.00 CD - Planning SAAS 2/29/2024 TurboData Parking Citations Processing $ 3,000.00 Police Dept SAAS 2/29/2027 Wildlife Services Gopher and Squirrel Services at Parks $ 6,250.00 CS - Parks Contracts Approved Within City Manager Signature Authority FOR MONTH OF FEBRUARY 2024
338
Date Vendor Name Description of Item/Service Contact Award Total Change Order Comments
2/6/2024 TKE Engineering Amendment No 1 Design Svsc for the Barbour Street Water Main
Replacement
$ 111,521.25 $ - Term Extension only
Change Orders Approved Within City Manager Signature Authority FOR MONTH OF FEBRUARY 2024
339
Date Vendor Name Description of Item/Service Contact Award Total Department
2/7/2024 All Phase Concrete Vault Base & Cover 60" x
102"
30,499.39 Electric
FEBRUARY 2024
INVENTORY PURCHASES OVER $25K
340

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Kevin Sin, Senior Civil Engineer
Art Vela, Director of Public Works
MEETING DATE: March 26, 2024
SUBJECT: Consideration of Completion of Various Improvements Related to the Atwell Specific Plan Development and Authorization the 90% Bond Exoneration
RECOMMENDATION:

Accept as complete various improvements related to the Atwell Specific Plan Development and authorize a 90% bond exoneration.

BACKGROUND:

On December 10, 2019, City Council adopted Resolution 2019-154 approving Final Tract Map No. 37474 (PA 3), releasing the map for recordation; authorizing staff to sign the subdivision improvement agreement and final tract map; and accepting the Performance and Labor and Material Bond for public improvements.

On December 10, 2019, City Council adopted Resolution 2019-151 approving Final Tract Map No. 37298-1, releasing the map for recordation; authorizing staff to sign the subdivision improvement agreement and final tract map; and accepting the Performance and Labor and Material Bond for public improvements.

On September 8, 2020, City Council adopted Resolution 2020-114 approving Final Tract Map Nos. 37390, 37390-1, 37390-2 and 37390-F (PA 6, PA 7 and PA 8), releasing the maps for recordation; authorizing staff to sign the subdivision improvement agreements and final tract maps; and accepting various Performance and Labor and Material Bonds for public improvements.

As conditions of approval for the Atwell Specific Plan development, Tri Pointe Homes was required to sign subdivision improvement agreements and to submit bonds to assure the City that the required public improvements are constructed according to City standards and specifications.

These public improvements included street and monumentation associated with tracts 37390-1 and 37390-2 (PA 6 and PA 7); tract 37474 (PA 3); and tract 37298-1 of the Atwell Specific Plan Development.

JUSTIFICATION:

Staff has verified through inspections that the required public improvements were completed per City standards and specifications and recommends that City Council accept the improvements as complete and authorize a 90% bond exoneration for the following bonds:
341
Bond # Bond Amount Improvements
CMS331808 $1,172,081.15 PA 3 Street
CMS331807 $1,649,464.90 Tr 37298-1 Off-site Wilson Street CMS331840 $50,082.50 Tr 37298-1 Backbone Monumentation
CMS0339957 $29,957.50 PA 6 Monumentation
CMS0339956 $35,161.25 PA 7 Monumentation
The remaining 10% of the bond amounts will remain for a period of 12 months (maintenance period) at which point the 10% balance will be released and the improvements will become City owned and maintained improvements.

FISCAL IMPACT:

Not applicable
ALTERNATIVES:

Do not accept staff’s recommendation and provide staff with additional direction.

ATTACHMENTS:

1. Atwell Tr 37474 (PA3) SIA and Bonds.pdf

2. Atwell Tract 37298-1 SIA and Bonds.pdf

3. Atwell Tract 37390-1 SIA and Bonds.pdf

4. Atwell Tract 37390-2 SIA and Bonds.pdf

5. Tr 37474 (PA3) Street Imp Plan.pdf

6. Tr 37298-1 Off-site Wwilson St Imp Plan.pdf
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11303-0014\2299407v5.doc 1

CITY OF BANNING

SUBDIVISION IMPROVEMENT AGREEMENT
* * * * * * SUBDIVISION REFERENCE DATA * * * * * *
[ ] FINAL TRACT MAP NO. 37390-1 (“Final Map” herein)
[ ] PARCEL MAP NO. (“Parcel Map” herein)

NAME OR TRACT NUMBER OF
SUBDIVISION (“Subdivision”
herein):

ATWELL - 37390-1

NAME AND ADDRESS OF
SUBDIVIDER(S):

PARDEE HOMES
1250 CORONA POINTE CT, #600
CORONA, CA 92881

CITY COUNCIL RESOLUTION
OF APPROVAL NO.
(“Resolution of Approval” herein)

DATE(S) THAT IMPROVEMENT PLANS WERE APPROVED BY THE CITY ENGINEER:

IMPROVEMENT/PLAN NO.:

Sewer Improvement Plans -Approved 3/12/2020
Street Improvement Plans -Approved 5/12/2020
Water Improvement Plans -Approved 5/04/2020
Monumentation Plans -Approved 8/19/2020
ESTIMATED TOTAL COSTS: IMPROVEMENTS $ 2,341,209.68
GRADING $
MONUMENTATION $ 29,957.50
TOTAL: $ 2,371,167.18

FORM OF IMPROVEMENT
SECURITY:
[ ] AAA Corporate surety bonds

NAME AND ADDRESS OF
CORPORATE SURETY (if
applicable):
[ ] Deposit of money
RLI Insurance Company
(Name of Corporate Entity)
6303 Owensmouth Ave, 10th Floor
(Street Address)
Woodland Hills, CA 91367
436
11303-0014\2299407v5.doc 2
SURETY BOND NUMBERS (if
applicable): - PA 6 Monumentation Bond #CMS0339957
- PA 6 Sewer Improvements Bond#CMS0339958
- PA 6 Street Improvements Bond#CMS0339959
- PA 6 Water Improvements Bond#CMS0339960

EFFECTIVE DATE OF
AGREEMENT: (to be inserted by City)
COMPLETION PERIOD: All improvements of Tract _____ (including the complete water and sewer system in ______ Street) with the exception of the roadway (street) improvements on ______ Street, shall be completed within two years from the Effective Date of the Agreement. _______ Street roadway (street) construction (so that ______ Street is a continuous route from __________ to _______________) shall be constructed prior to the Certificate of Occupancy for development of lots ____and ____ of Tract _____.
* * * * * * * * * * * * * * * * * * * * * *
437

TABLE OF CONTENTS
Page
-i- 11303-0014\2299407v5.doc

1. SUBDIVIDER’S OBLIGATION TO CONSTRUCT IMPROVEMENTS .........2

2. INSPECTION OF WORK AND FINAL ACCEPTANCE ..................................4

3. GUARANTEE AND WARRANTY OF THE IMPROVEMENTS.....................5

4. TIME EXTENSIONS ...........................................................................................5

5. IMPROVEMENT SECURITY.............................................................................6

6. REDUCTION OR RELEASE OF IMPROVEMENT SECURITY .....................7

7. INDEMNIFICATION OF CITY BY SUBDIVIDER ..........................................9

8. INSURANCE......................................................................................................11

9. OWNERSHIP OF THE IMPROVEMENTS......................................................16

10. PREPARATION AND RECORDATION OF CC&RS .....................................17

11. DEFAULT AND BREACH BY THE SUBDIVIDER AND REMEDIES
OF THE CITY ....................................................................................................17

12. RELATIONSHIP OF THE PARTIES................................................................19

13. ASSIGNMENT...................................................................................................19

14. NOTICES............................................................................................................20

15. ENTIRE AGREEMENT.....................................................................................20

16. SEVERABILITY................................................................................................20

17. INCORPORATION OF SUBDIVISION REFERENCE DATA
AND RECITALS................................................................................................20

18. GOVERNING LAW...........................................................................................20

19. EFFECTIVE DATE OF THE AGREEMENT ...................................................21 438
11303-0014\2299407v5.doc

SUBDIVISION IMPROVEMENT AGREEMENT
THIS SUBDIVISION IMPROVEMENT AGREEMENT (“Agreement”) is made and entered into by and between the City of Banning, a municipal corporation (“City”), and the Subdivider whose name and address is set forth above in the Subdivision Reference Data.

RECITALS
A. Subdivider has presented to the City for approval and recordation a Final Map, identified above in the Subdivision Reference Data, of a proposed subdivision pursuant to the Subdivision Map Act of the State of California and the City’s ordinances and regulations as such ordinances and regulations are vested under the development agreement recorded in the official records of the County of Riverside on July 17, 2012 as Document No. 2012-0332888 (“Development Agreement”) relating to the filing, approval and recordation of subdivision maps (collectively referred to herein as the “Subdivision Laws”).

B. A tentative map of the Subdivision was previously approved by City, subject to the Subdivision Laws and to the City’s standard requirements as vested under the Development Agreement and conditions of approval contained in the City Council’s Resolution of Approval, a copy of which is on file in the Office of the City Clerk and which is incorporated herein by this reference.

C. The Subdivision Laws establish, as a condition precedent to the approval of a Final Map, that the Subdivider comply with the City Council’s Resolution of Approval and either (i) complete, in compliance with applicable City standards, all of the improvements and land development work required by the Subdivision Laws and the City Council’s Resolution of Approval; or (ii) enter into a secured agreement with the City to complete the improvements and land development work within a period of time specified by the City.

D. In consideration of approval of the Final Map for the Subdivision by the City Council, Subdivider desires to enter into this Agreement whereby Subdivider promises to install and complete, at its sole expense, except as otherwise provided in a credit/reimbursement agreement as provided for in the Development Agreement, all public improvement work required by the City as set forth on the Improvement Plans (as defined below) for the proposed Subdivision. Subdivider has secured this Agreement by improvement security required by the Subdivision Laws and approved by the City. In any conflict between the terms in this Agreement and the Development Agreement, the Development Agreement shall be the controlling document.

E. Improvement Plans, and related specifications, numbered as designated above in the Subdivision Reference Data, for the construction, installation and completion of the Improvements identified in Schedule A hereto, have been prepared by the Subdivider, approved by the City Engineer, and are on file in the office of the City Engineer. Said Improvement Plans, and related specifications, subsequently modified by 439
11303-0014\2299407v5.doc
the mutual written agreement of the parties, are hereby referred to as the “Improvement Plans” and are incorporated herein by this reference. Any improvement to be constructed pursuant to the Improvement Plan is hereby referred to individually as an “Improvement” and collectively as the “Improvements”.

NOW, THEREFORE, in consideration of the approval and recordation by the City Council of the Final Map of the Subdivision, Subdivider and City agree as follows:

1. SUBDIVIDER’S OBLIGATION TO CONSTRUCT IMPROVEMENTS
A. Subdivider shall, at its sole expense, unless otherwise provided in a credit/reimbursement agreement as provided for in the Development Agreement, and in compliance with the provisions of the Subdivision Laws, the Improvement Plans, conditions of approval of the Tentative Map, and all applicable City standards and fees, and in a good and workmanlike fashion, furnish, construct, install and guarantee (as set forth in Section 3) the Improvements, Grading, and Monumentation described on the tentative map and in the City Council’s Resolution of Approval relating thereto (collectively, the “Improvements”).

B. To the extent necessary to construct the Improvements, as determined by the City Engineer, the Subdivider shall acquire and dedicate, or pay the reasonable, documented cost of acquisition by City of, all rights-of-way, easements and other interests in real property for the construction or installation of the Improvements, free and clear of all liens and encumbrances. If the Subdivider is unable to acquire such rights-of-way, easements and other interests in real property by negotiation, then Subdivider shall, within 120 days of Final Map approval, enter into a condemnation agreement with City pursuant to Government Code Section 66462.5, by which the City will commence the process for the acquisition of the rights-of-way, easements or other real property.

C. Subject to any time extensions granted in accordance with Section 4, Subdivider shall complete all Improvements within its respective “Completion Period” specified in the Subdivision Reference Data; provided, however, that if the City Engineer reasonably determines in good faith that accelerated construction of the Improvements is essential in order to protect the public health, welfare and safety, the City Engineer shall give Subdivider not less than fifteen (15) business days' prior written notice to commence or accelerate installation and construction of such Improvements, or any portion thereof. The notice shall be in writing, and shall describe the work to be done by Subdivider, the time within which the work will commence, the period within which the work will be completed and identify the reasons that such early commencement is essential in order to protect the public health, welfare and safety. All or any portions of said Improvements may be required to be constructed or completed at a specified time, providing the foregoing criteria is met. If the Subdivider objects to the commencement or acceleration of the Improvements as specified by the City Engineer, Subdivider may appeal the decision of the City Engineer to the City Council. Any such appeal shall be filed with the City Clerk within 10 days after receipt by Subdivider of the written notice from the City Engineer.
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D. If the Improvements to be constructed by Subdivider include monumentation, such monumentation shall be installed not later than thirty (30) days after the City’s acceptance of all other Improvements pursuant to Section 2. As used herein, “monumentation” shall mean the setting of survey monuments and tie points in accordance with the Subdivision Laws, and the delivery to the City Engineer of tie notes for said points.

E. Subdivider shall , at its sole expense, unless otherwise provided in a credit/reimbursement agreement as provided for in the Development Agreement, replace or repair all public improvements, public utility facilities, and surveying or subdivision monuments which are destroyed or damaged as a result of any work performed by Subdivider under this Agreement during or after the Completion Period.

Any such replacement or repair shall be subject to the approval of the City Engineer.

F. In addition to, and separate from, the indemnity obligations contained in Section 9 of this Agreement, and without limiting the City’s remedies under general construction defect law, Subdivider shall be responsible for the care, repair and maintenance of the applicable portion of the Improvements until the latter of the following time periods: (i) the Improvements or applicable portion thereof is accepted in writing by the City; or (ii) the expiration of the required one-year guarantee and warranty period as specified herein; or (iii) the expiration of any applicable period of time requiring the care, repair and maintenance of the applicable Improvement specified in the Development Agreement (not including the term of any Development Agreement).

Neither City, nor its officers, agents and employees, shall have any liability for any accident, loss or damage to the Improvements and that may result from the construction of the Improvements prior to their completion and written acceptance by the City G. In addition to, and separate from: (1) the indemnity obligations contained in Section 7 of this Agreement, (2) the care, repair and maintenance provisions under paragraph E of this Section 1 of this Agreement; and (3) the warranty and guarantee provisions of Section 3 of this Agreement, Subdivider shall repair and correct, or be liable to the City for any cost to repair and correct, any defect in the construction of the Improvements that is identified by City within in accordance with general construction defect law ten (10) years after City’s acceptance of the Improvement, provided the City provides written notice to Subdivider of the existence of the defect within that the time period under law, and the defect is caused directly or indirectly by the design, construction, functionality, installation, assembly or workmanship of Subdivider. Nothing contained in this paragraph is intended to limit or otherwise waive any right or cause of action under applicable construction defect law that City may assert against Subdivider.

H. Subdivider shall, at its sole expense, unless otherwise provided in a credit/reimbursement agreement as provided for in the Development Agreement, obtain all necessary permits and licenses for the construction and installation of the Improvements, give all necessary notices, and pay all applicable fees required by City ordinance or resolution and all taxes required by law.
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I. Not less than seven (7) days prior to commencement of work on the Improvements, Subdivider shall give written notice to the City Engineer of the date fixed for such commencement of work in order that the City Engineer shall have adequate time to schedule all necessary inspections.

J. SUBDIVIDER shall pay all applicable City fees and costs stipulated in the latest fee resolution as adopted by the City Council from time to time as required for the development of the SUBDIVISION including but not limited to the following:

1. Building Permit Fees --- to be paid at the time of building permit issuance;

2. Final Map Plan Check Fees --- to be paid at time of
submittal of final map for plan check and resubmittal of revised final map for plan check;

3. Final Map Moratorium Fees --- to be paid from cash
deposit established at time of filing final map;

4. Plan Check and Review Fees --- to be paid from cash
deposit established at time of filing improvement plans for plan check;

5. Encroachment Permit Fees --- to be paid at time of
application for encroachment permit;

6. Inspection Fees --- to be paid from cash deposit established at time of construction permit issuance; and

7. Grading Permit Fee --- to be paid from cash deposit
established at time of grading permit issuance.

K. Subdivider shall provide City with final Record Drawings of all plans developed for the Subdivision, showing all changes and as built conditions as specified in the Tentative Tract Map Conditions of Approval, and shall provide electronic image files of those final Record Drawings consistent with electronic image file size and type specifications of the City prior to the acceptance of improvements and release of bonds or other security.

B. Upon completion of the work on all or any category of the Improvements, the Subdivider may request a final inspection by the City Engineer.

Within forty-five (45) days of receipt of the written letter request, the City Engineer shall 442
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inspect the Improvements and provide written notice to Subdivider of the list of items which have been found to be incomplete and the list of items which have been found to be complete. If the City Engineer determines that all or any specified category of the Improvements have been completed in accordance with this Agreement and in compliance with the Improvement Plans and all applicable City standards, then the City Engineer shall acknowledge that determination in a report to the City Council. If the Improvements that are completed are to be dedicated to or owned by the City (Improvements within City right of way and property for public use), the City Engineer’s determination shall be submitted to the City Council for final acceptance by the City, unless such power to accept has been delegated by the City Council to the City Engineer or some other officer of the City, in which case the final acceptance shall be subject to the approval of that specified official. If the Improvements that are completed are to be dedicated to or owned by a public entity other than the City, the Subdivider’s written request shall be submitted to the applicable public entity or other owner, for final acceptance. Subdivider shall bear all costs of inspection and determination of completeness in accordance with City’s formally adopted and applicable fees and rates.

C. Acceptance of all or any specified category of the Improvements by the City Council shall be made upon recommendation and certification of the City Engineer following inspection of said Improvements pursuant to subparagraph B above.

The City Council shall act upon the City Engineer’s recommendation that such public Improvements have been completed unless such power to accept has been delegated by the City Council to the City Engineer or some other officer of the City, in which case the final acceptance shall be subject to the approval of that specified official. Acceptance by the City or by the governing body of the entity that is to accept dedication or ownership of the public improvements shall not constitute a waiver by the City or such other public entity of any defects in the public Improvements.

3. GUARANTEE AND WARRANTY OF THE IMPROVEMENTS
A. If, within a period of one year following acceptance by the City of the applicable Improvements specified in Schedule A, any Improvements or part of any Improvements specified in Section A furnished, installed or constructed by the Subdivider, or any of the work performed under this Agreement by Subdivider, fails to comply with any requirements of this Agreement, or the Subdivision Laws, or the Improvement Plans and related specifications, the Subdivider shall, without delay and without cost to the City, repair, replace or reconstruct any defective or otherwise unsatisfactory part or parts of the Improvements. Subdivider’s obligations hereunder shall include the repair, replacement or reconstruction of all irrigation systems and all trees, shrubs, ground cover and landscaping for such one year.

B. Should the Subdivider fail or refuse to act promptly or in accordance with subparagraph A above, or should the exigencies of the situation require repair, replacement, or reconstruction to be undertaken before the Subdivider can be notified and can perform the necessary work, then the City may, in its discretion, make the necessary repairs or replacements or perform the necessary reconstruction and draw upon the Subdivider’s improvement security to reimburse itself for the costs incurred. If 443
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the Subdivider’s improvement security does not cover the total cost of such repair, replacement, or reconstruction, the Subdivider shall reimburse the City for any excess costs incurred.

C. The security furnished for the faithful performance of the Subdivider’s obligation to construct and install the Improvements described herein shall include the Subdivider’s liability and obligation hereunder to provide the one-year guarantee and warranty of the Improvements.

4. TIME EXTENSIONS
A. Upon a showing by the Subdivider of good cause therefor, the duration of the Completion Period for the Improvements (or any of them) may be extended by the City Engineer in writing. As used herein, “good cause” may include, without limitation, delay resulting from, arising out of or relating to an act of the City; acts of God or force majeure, strikes, boycotts or similar job actions by employees or labor organizations which prevent the conduct of the work; findings made by a governmental entity that the site of a particular Improvement is of archeological significance or requires further permitting and approval; and/or actions or failure to act of native American monitor(s); and, the order of any court.

B. A time extension may be granted without notice to any surety or sureties of the Subdivider and shall not affect the validity of this Agreement nor release the surety or sureties on any bond given as an improvement security pursuant to this Agreement.

C. As a condition of any time extension provided for herein, the City Engineer, may require the Subdivider to furnish new or modified improvement security guaranteeing performance of this Agreement, as extended, in an increased amount as necessary to compensate for any projected increase in the Estimated Total Cost of Improvements, as determined by the City Engineer.

5. IMPROVEMENT SECURITY
A. Prior to City’s execution of this Agreement, Subdivider shall provide as security to the City:

1. For Performance and Guarantee: Security in an amount equal to one hundred percent (100%) of the Estimated Total Cost of the Improvements, excluding Grading, as set forth above in the Subdivision Reference Data. The security shall be issued by a bonding company licensed to issue bonds in the State of California and having a Best rating of AAA or better.

With this security, the form of which shall be subject to City Attorney’s prior approval, the Subdivider assures faithful performance under this Agreement and guarantees the Improvements for one year after the completion and acceptance of the applicable portion of such Improvements, against any defective workmanship or materials or any unsatisfactory performance, pursuant to Section 3 hereof. 444
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2. For Payment: Security in an amount equal to one hundred percent (100%) of the Estimated Total Cost of the Improvements, excluding Grading, as set forth above in the Subdivision Reference Data. The security shall be issued by a bonding company licensed to issue bonds in the State of California and having a Best rating of AAA or better. With this security, the form of which shall be subject to City Attorney’s prior approval, the Subdivider guarantees payment to contractors, subcontractors, and persons renting equipment or furnishing labor or materials to them or to the Subdivider.

B. If the improvement security is a corporate surety bond and, in the opinion of the City, any surety or sureties thereon become insufficient, because (i) the surety becomes insolvent; (ii) the surety's bond rating is downgraded; (iii) the surety declares bankruptcy; or (iv) the surety is no longer deemed to be an admitted surety in California by the California Department of Insurance, or (v) the form of the surety or the amount is found by City to be in error or materially insufficient, the Subdivider shall renew or replace any such surety bond with good and sufficient surety or sureties within thirty (30) days after receiving from City written demand therefor.

C. The amount of security for performance, payment and warranty obligations provided by this section shall not include the cost of monumentation, as required by Government Code Section 66497 so long as a separate cash deposit or security acceptable to the City Engineer for the estimated cost of monumentation has been submitted to the City.

D. Improvement security consisting of corporate surety bonds, in a form accepted by the City Attorney, shall be filed with the City Engineer and then kept on file with the City Clerk. If a corporate surety bond is replaced by another approved bond, the replacement shall be submitted to the City Engineer and, upon filing with the City Clerk, shall be deemed to have been made a part of and incorporated into this Agreement. Upon submission to the City Engineer and then filing with the City Clerk of a replacement bond, the former improvement security shall be released following written approval of the City Engineer.

E. Modifications of the Improvement Plans and related specifications, and modifications of the Improvements, not exceeding ten percent (10%) of the original Estimated Total Cost of the Improvements, shall not relieve or release any improvement security furnished by Subdivider pursuant to this Agreement. If any such modifications exceed ten percent (10%) of the Estimated Total Cost of the Improvements, Subdivider shall furnish additional improvement security for performance and guarantee, and for payment, as required by subparagraph A above, for one hundred percent (100%) of the revised Estimated Total Cost of the Improvements.

F. Subject to any time extensions granted in accordance with Section 4 herein, the Subdivider shall be in default if the Subdivider has not completed all improvements within two years from the Execution Date of the Agreement and has not repaired any defects in the completed Improvements within the one-year guarantee and warranty period.
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Alternatively, in the event of a default by the Subdivider pursuant to Section 10, and after written notice to Subdivider and reasonable opportunity to cure, City, at its sole option, shall have the right, without limiting any other rights and/or remedies available to City at law or in equity, to draw upon or utilize the improvement security furnished herewith to construct and install the Improvements itself. If City exercises this right, the release of any unused portion of such improvement security shall be in accordance with the procedures outlined in Section 6 herein, including any retention necessary for the one-year guarantee period.

6. REDUCTION OR RELEASE OF IMPROVEMENT SECURITY
A. All public Improvements (Improvements that are to be owned or dedicated to the City or other public entity as distinguished from those owned by a private community association) shall be first completed, deemed completed by the City Engineer and then accepted as complete by the City prior to release of sureties. All private Improvements (Improvements that are to be owned by a private community association and not dedicated or owned by the City or other public entity) shall be first completed and then accepted as complete in writing by the City Engineer.

B. Partial releases or reductions in the Subdivider’s improvement (performance) security may be authorized prior to the City’s acceptance of all Improvements required hereunder, as follows:

1. At the time that the Subdivider believes that the obligation to perform the work for which security was required is complete, the Subdivider may notify the City in writing of the completed work, including a list of work completed. Upon receipt of the written notice, the City shall review and comment or approve the completion of the required work within forty-five (45) days. If the City does not agree that all work has been completed in accordance with the plans and specifications for the Improvements, it shall supply a list of all remaining work to be completed within this 45-day period.

2. Within forty-five (45) days of receipt of the list of remaining work from the local agency, the Subdivider may then provide cost estimates for all remaining work for review and approval by the City. Upon receipt of the cost estimates, the City shall then have forty-five (45) days to review, comment, and approve, modify, or disapprove those cost estimates. The City shall not be required to engage in this process of partial release more than once between the start of work and completion and acceptance of all work; however, nothing in this section prohibits the City from allowing for multiple and phased partial releases as it otherwise deems appropriate.

3. If the City approves the cost estimate, the City shall release all performance security except for security in an amount up to two hundred percent (200%) of the cost estimate of the remaining work. The process allowing for a partial release of performance security shall occur when the cost estimate of the remaining work does not exceed twenty percent (20%) of the total original 446
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performance security unless the City allows for a release at an earlier time.

Substitute bonds or other security may be used as a replacement for the performance security, subject to the approval of the City. If substitute bonds or other security is used as a replacement for the performance security released, the release shall not be effective unless and until the City receives and approves that form of replacement security. A reduction in the performance security, authorized under this section, is not, and shall not be deemed to be, an acceptance by the City of the completed improvements in and of itself, and the risk of loss or damage to the Improvements and the obligation to maintain the Improvements shall remain the sole responsibility of the Subdivider until the applicable required public Improvements have been accepted by the City in writing and all other required improvements have been fully completed in accordance with the plans and specifications for the improvements.

4. The Subdivider shall complete the works of Improvement until all remaining items are accepted by the City.

5. Upon the completion of the Improvements, the Subdivider, or his or her assigns, shall be notified in writing by the City within forty-five (45) days.

6. Within sixty (60) days of the issuance of the notification by the City Engineer, any remaining performance security, except ten percent (10%) of the original amount of the security to guarantee and warrant the Improvements for the one-year guarantee and warranty period, shall be released within sixty (60) days of the issuance of the written statement of completion.

C. Security securing the payment to the contractor, his or her subcontractors and to persons furnishing labor, materials or equipment shall, after passage of the time within which claims of lien are required to be recorded pursuant to Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code and after acceptance of the work, be reduced to an amount equal to the total claimed by all stop notice claimants for whom stop notices have been filed with the City, and if no claims have been filed, the security shall be released in full.

D. The partial release provisions of this Section 6 shall not apply to any required guarantee and warranty period required by Section 66499.9 for the guarantee or warranty nor to the amount of the security deemed necessary by the local agency for the guarantee and warranty period nor to costs and reasonable expenses and fees, including reasonable attorneys' fees. Security furnished to guarantee and warrant the Improvements against any defective work or labor done or defective materials furnished, shall be released within thirty (30) days after the completion of the one-year period following completion and acceptance of all Improvements.

E. If Subdivider’s obligations relating to any Improvements are subject to the approval of another governmental agency, the City shall not release the improvement (performance) security therefor until the obligations are performed to the 447
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satisfaction of such other governmental agency. Such agency shall have sixty (60) days after receipt of written notice from the Subdivider of the Subdivider’s performance of the obligation to register its satisfaction or dissatisfaction. If at the end of that period it has not registered its satisfaction or dissatisfaction, it shall be conclusively deemed that the Subdivider’s performance of the obligation was done to its satisfaction, and such improvement security shall be promptly released.

F. In the event the time periods for action by the City specified in this Section conflict with a shorter or longer time period for such actions as provided in Government Code Section 66499.7, the time periods in Government Code Section 66499.7 shall control.

7. INDEMNIFICATION OF CITY BY SUBDIVIDER
A. Neither the City, nor its officers, agents and employees, shall be liable or responsible for any accident, injury, loss or damage to either property or person attributable to or arising out of the defective design, construction, functionality, installation assembly or improper maintenance including, without limitation, the use of defective methods, materials or workmanship (collectively “Subdivider’s Faults”) of the Improvements by Subdivider, its officers, employees and agents. Subdivider shall indemnify, hold harmless and defend the City, its officers, agents and employees, from and against any and all losses, claims, costs, expenses, liabilities, damages, actions, causes of action and judgments, including attorneys’ fees, arising directly or indirectly out of or attributable to Subdivider’s Faults.

B. Subdivider’s obligations under this Section 7 are not conditioned or dependent upon whether the City, or its officers, agents and employees, prepared, supplied or reviewed any Improvement Plans or related specifications in connection with the Subdivision or the Improvements, or has insurance or other indemnification covering any of these matters.

C. Subdivider’s obligation to indemnify, hold harmless and defend the City under this Section 7 shall extend to injuries to persons and damages to or alleged taking of property resulting from the Subdivider’s Faults, and the Improvements required herein, and shall likewise extend to claims asserted by adjacent property owners based upon the diversion of waters caused by the Subdivider’s defective design or defective construction of public drainage systems, streets, and other public facilities or improvements. Except for a City Directive as defined below, the City’s acceptance of the Improvements shall not constitute an assumption by the City of any responsibility or liability for any damage or alleged taking of property referenced herein. City shall not be responsible or liable for the design or construction of the Subdivision or the Improvements constructed or installed pursuant to the approved Improvement Plans or the Final Map, regardless of any act or omission by the City in approving the Improvement Plans or the Final Map, unless the particular Improvement design was required by the City over the written objection of the Subdivider, which objection stated that the Improvement design was potentially dangerous or defective and set forth an alternative design (a “City Directive”). After City’s acceptance of the Improvements, the 448
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Subdivider shall remain obligated to correct or eliminate all dangerous conditions created by defects in design, construction or Subdivider’s Faults (other than those required by a City Directive); provided, however, that Subdivider shall not be responsible for routine maintenance as specified in Section 1(F) of this Agreement. Subdivider’s indemnity obligations hereunder shall remain in effect for ten (10) years following acceptance of the respective Improvement(s) by the City Council. Subdivider acknowledges and agrees that Subdivider shall be responsible and liable for the Subdivider’s Faults with respect to the Improvements and other work done pursuant to this Agreement, unless same is due to a City Directive. City shall not be liable for any acts or omissions in approving, reviewing, checking, correcting or modifying any Improvement Plans or related specifications, or in inspecting, reviewing or approving any work or construction of Improvements, unless same is due to a City Directive. The Subdivider’s improvement security shall not be required to secure the Subdivider’s obligations under this subparagraph C beyond the one-year guarantee and warranty period, unless the City Engineer provides notice to Subdivider prior to the expiration of the one-year period of the existence of, or continued existence of, defects in the improvements, in which case the portion of the improvement security to guarantee and warranty the improvements against defective work shall not be released and shall remain in place until the City Engineer provides written confirmation that the defects have been cured and corrected.

The indemnity shall be effective retroactively to the earliest recordation date of the Final Map.

D. Subdivider shall pay and satisfy any judgment, award or decree that may be rendered against City, its officers, officials, employees, agents, representatives and volunteers (collectively hereinafter “City and City Personnel”) to the extent of the indemnity provided above, in any such suit, action, or other legal proceeding, provided City gives Subdivider prompt written notice of such claim and allows Subdivider to undertake the defense thereof, and provided further that City cooperates in any such suit, action, or other legal proceeding, but shall retain its right to reject a settlement that the City deems, in its sole and absolute discretion, to be contrary to the interests of the City.

E. Subdivider’s obligation to indemnify shall not be restricted to Insurance proceeds, if any, received by the City and City Personnel.

F. Subdivider, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against City and City Personnel to the extent of the indemnity above provided.

8. INSURANCE
The following coverages will be provided by Subdivider and maintained on behalf of City and in accordance with the requirements set forth herein. If Subdivider performs construction activities through a general contractor, some or all of these insurance requirements for the period of construction may be satisfied by the general contractor’s insurance coverages. In such case, Subdivider shall maintain during this same construction period, and after the construction period, the coverages shown below 449
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as “Insurance After Construction.” In addition, Subdivider may elect to obtain, for all or any portion of the Project, an “Owner-Controlled Wrap Up” insurance policy in satisfaction of the insurance requirements for general contractors and subcontractors provided it satisfies all of the insurance requirements below for general contractors and subcontractors. Throughout these specifications, the word “Subdivider” refers to the Party responsible to provide the coverages as specified and, depending on context, may refer either to Subdivider or to a separate General Contractor.

A. Insurance During Construction. Subdivider shall provide the following insurance during construction of the Improvements. Insurance requirements may be met through insurance provided by Subdivider’s General Contractor:

1. Commercial General Liability Insurance. Commercial
General Liability Insurance (primary) shall be provided on ISO-CGL Form No.

CG 00 01 or equivalent coverage, including provisions for defense of additional insureds. Policy limits shall be no less than two million dollars ($2,000,000) per occurrence for all coverages and five million dollars ($5,000,000) general aggregate. City and its officers, employees and agents shall be added as additional insureds using ISO Form CG 20 10 11 85 or other revision of the CG 20 10 form if available from the insurer and reasonably acceptable to the City, not limiting coverage for the additional insured to “ongoing operations” or in any way excluding coverage for completed operations. Coverage shall apply on a primary non-contributing basis in relation to any other insurance or self-insurance, primary or excess, available to City or any officer, employee or agent of City.

Coverage shall not be limited to the vicarious liability or supervisory role of any additional insured. Coverage shall contain no contractors’ limitation or other endorsement limiting the scope of coverage for liability arising from pollution, explosion, collapse, or underground property damage.

2. Umbrella Liability Insurance. Umbrella Liability Insurance (or, at Subdivider’s election, Excess Liability Insurance) (over primary) shall apply to bodily injury/property damage, personal injury/advertising injury, at a minimum. Coverage shall be at least as broad as any underlying coverage.

Coverage shall be provided on a “pay on behalf” basis. There shall be no cross liability exclusion and no contractor’s limitation endorsement. Policy limits shall be not less than five million dollars ($5,000,000) per occurrence and in the aggregate, including any limits required in the underlying policies. The policy shall have a starting date no later than and an ending date no earlier than those of the underlying coverages. The Named Insured (Subdivider or General Contractor as appropriate) may determine the layering of primary and excess liability insurance provided that if such layering differs from that described here, the actual coverage program meets the minimum total required limits and complies with all other requirements listed here.

3. Business Auto Coverage. Business Auto Coverage shall be written on ISO Business Auto Coverage Form CA 00 01 or the equivalent, including symbol (1) (any Auto). If Subdivider (or Contractor) does not own any 450
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vehicles, this requirement may be satisfied by a non-owned vehicle endorsement to the general and umbrella liability policies. Limits shall be no less than one million dollars ($1,000,000) per accident. This policy shall be scheduled as underlying insurance to the umbrella policy required above for a total limit of no less than five million dollars ($5,000,000) each accident.

4. Workers’ Compensation/Employer’s Liability. Workers’ Compensation/Employer’s Liability shall provide workers’ compensation statutory benefits as required by law. Employer’s liability limits shall be no less than one million dollars ($1,000,000) per accident or disease. Employer’s liability coverage shall be scheduled under the umbrella or excess liability policy described above. This policy shall be endorsed to waive any right of subrogation with respect to City, its officers, employees or agents.

5. Builder’s Risk Insurance. Builder’s Risk Insurance
covering all real and personal property for “all risks” of loss or “comprehensive perils” coverage including but not limited to the perils of earth movement, including earthquake (if required by Subdivider’s lender or if available at commercially reasonable rates) and flood for all Improvements.

B. Insurance After Construction. Upon completion of construction of the Improvements, and for the required one-year guarantee and warranty period for Improvements and the required 10-year indemnification period, Subdivider at Subdivider’s expense shall maintain or cause to be maintained the following insurance:

1. Commercial Property Insurance. Commercial Property
Insurance covering the Improvements. Coverage shall be at least as broad as the Insurance Services Offices broad causes of loss form CP 10 20, and reasonably approved of in writing by the City. Coverage shall be sufficient to insure 100% of the replacement value and there shall be no coinsurance provisions. The policy shall include an inflation guard endorsement, 100% rents coverage, contents coverage, coverage for personal property of others, ordinance or law and increased cost of construction coverage. Subdivider also agrees to provide builder’s all-risk insurance using an inland marine form during the period of any major alteration or improvement, using the broadest form available.

The insurance coverage for the peril of earthquake required for this project is subject to availability on the open market at commercially reasonable premium cost, as determined by mutual agreement between Subdivider and City. If such earthquake insurance coverage should, after diligent effort by Subdivider, be unobtainable at such mutually determined commercially reasonable premium cost, then Subdivider shall obtain the maximum insurance reasonably obtainable at commercially reasonable premium cost (if any) and give notice to City of the extent of Subdivider’s inability to obtain, in full, the required insurance, and in such event, Subdivider’s obligation to procure and maintain such insurance may be excused, subject to City’s verification of inability to obtain the required insurance. Subdivider and City agree that a premium cost of 451
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earthquake insurance coverage of up to 150% of the premium cost paid by Subdivider for such coverage on the Effective Date (to be adjusted over time based on the Consumer Price Index,) shall constitute a commercially reasonable premium cost. Non-availability at commercially reasonable premium cost must be documented by a letter from Subdivider’s insurance broker or agent indicating a good faith effort to place the required insurance and showing, at a minimum, the names of the insurance carriers and the declinations or quotations received from each.

2. Commercial General Liability Insurance. Commercial
General Liability Insurance (primary) shall be provided on ISO-CGL form No.

CG 00 01 or equivalent coverage, including provisions for defense of additional insureds. Policy limits shall be no less than two million dollars ($2,000,000) per occurrence for all coverages and five million dollars ($5,000,000) general aggregate. City and its officers, employees and agents shall be added as additional insureds using ISO form CG 20 10 or equivalent if available from the insurer and reasonably acceptable to the City. Coverage shall apply on a primary noncontributing basis in relation to any other insurance or self-insurance, primary or excess, available to City or any officer, employee or agent of City until the warranty period specified in this Agreement expires.

3. Umbrella Liability Insurance. Umbrella Liability Insurance (or, at Subdivider’s election, Excess Liability Insurance) (over primary) shall apply to bodily injury/property damage, personal injury/advertising injury, at a minimum. Coverage shall be at least as broad as any underlying coverage.

Coverage shall be provided on a “pay on behalf” basis. There shall be no cross liability exclusion. Policy limits shall be not less than five million dollars ($5,000,000) per occurrence and in the aggregate, including any limits required in the underlying policies. The policy shall have a starting date no later than and an ending date no earlier than those of the underlying coverages. Subdivider may determine the layering of primary and excess liability insurance provided that if such layering differs from that described here, the actual coverage program meets the minimum total required limits.

Unless otherwise agreed, this policy shall be endorsed to waive any right of subrogation as respects City, its employees or agents.

5. Business Auto Coverage. Business Auto Coverage for
vehicles owned, operated or maintained in any way connected with the project, shall be written on ISO Business Auto Coverage form CA 00 01 or the equivalent, including symbol (1) (any Auto). If Subdivider (or Contractor) does not own any vehicles, this requirement may be satisfied by a non-owned vehicle endorsement 452
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20 10 11 85. Certificate(s) are to reflect that the insurer will provide 30 days’ notice of any cancellation of coverage and policies are to have a “cancellation endorsement” to the same effect. Subdivider agrees to provide copies of any endorsements modifying coverage in any way upon request from City.

8. Subdivider shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage.

9. Any actual or alleged failure on the part of City or any other additional insured under these requirements to obtain proof of insurance required under this Agreement in no way waives any right or remedy of City or any additional insured, in this or any other regard.

10. Subdivider agrees to require all subcontractors or other parties (but not including a general contractor) hired for this project to construct the Improvements to purchase and maintain insurance for general liability (minimum limit $1,000,000 per occurrence), automobile liability ($1,000,000 per accident) and workers’ compensation (statutory benefits). Prior to the issuance of the Certificate of Completion for each Phase, Subdivider shall, upon request by City, provide the City with copies of all insurance policies, certificates and endorsements related to such Phase.

11. Subdivider agrees to monitor and review all coverage required by this Section and assumes all responsibility for ensuring that such coverage is provided as required here. Subdivider agrees to obtain certificates evidencing such coverage. Subdivider agrees that upon request, all agreements with subcontractors or others with whom Subdivider contracts with on behalf of City, and all certificates of insurance obtained in compliance with this paragraph will be submitted to City for review upon request by City. Failure of City to request copies of such documents will not impose any liability on City, or its employees.

12. Subdivider agrees to require that no contract used by any general contractor or subcontractor in connection with construction of the Improvements, or contracts Subdivider enters into on behalf of City, will reserve the right to charge back to City the cost of insurance required by this Agreement.

13. Where appropriate (such as in the case of automobile insurance coverages), coverage will not be limited to the specific location designated as the Property.

14. Subdivider agrees to provide notice to City of any claim or loss against Subdivider that includes City as a defendant promptly after Subdivider receives written notice or obtains knowledge thereof. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. 453
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City agrees to provide similar notice to Subdivider of any such claims it is notified of respecting the Property.

15. Subdivider agrees not to attempt to avoid its defense and indemnity obligations to City, and its officers, employees, agents by using as a defense Subdivider’s statutory immunity under workers’ compensation and similar statutes.

16. Subdivider agrees to ensure that coverage provided to meet these requirements is applicable separately to each insured and that there will be no cross liability exclusions that preclude coverage for suits between Subdivider and City or between City and any other insured or Named Insured under the policy, or between City and any Party associated with City or its employees.

17. If Subdivider or any contractor or subcontractor is a Limited Liability Company, general liability coverage must apply so that the Limited Liability Company and its Managers, Members, Affiliates, and their employees are insureds.

18. Subdivider shall require General Contractor to maintain commercial general liability, and if necessary, commercial umbrella liability insurance with a limit of not less than $15,000,000 for each occurrence, until the warranty period specified in this Agreement expires.

19. Subdivider agrees to obtain and provide to City evidence of professional liability coverage for Architects, Engineers or other design professionals working on the Improvements. The limit of liability required is subject to City approval, but in no event to be less than $1,000,000 per claim and in the aggregate, and Subdivider shall use reasonable efforts to require and cause such professionals to maintain coverage with respect to each occurrence for at least three years following substantial completion of the work and, in the event Subdivider is unable to do so, Subdivider shall promptly inform the City of the scope of such efforts and the reasons that it was unable to do so. If Subdivider requests that the City approve a lower limit for any particular design professional Subdivider seeks to employ on the Improvements, City will evaluate each such request based on City’s perception of liability exposure associated with the work that would be performed by that design professional.

20. To the extent a particular coverage or policy form or specification is not reasonably available from Subdivider's insurer or would result in an additional premium that is extraordinary or unreasonably disproportionate to the premium for the policy as a whole, then Subdivider shall provide substantially similar coverage reasonably acceptable to City for which the cost is not extraordinary or unreasonably disproportionate.
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9. OWNERSHIP OF THE IMPROVEMENTS
A. Ownership of all or any category of the Improvements constructed and installed by the Subdivider pursuant to this Agreement and shown on the Map to be dedicated to the public shall vest, as applicable, in the City (or other specified governmental agency) upon acceptance of said Improvements by the City. The acceptance of the Improvements shall either be shown by a certificate on the Final Map or by subsequent resolution accepting the Improvements adopted by the City pursuant to Government Code Section 66477.2 and recorded with the County Recorder or by other writing.

B. The Subdivider shall at all times prior to the acceptance of the Improvements by the City, give good and adequate warning to the public of each and every dangerous and defective condition caused by the construction of the Improvements and shall take all steps reasonably necessary to protect the public from such dangerous or defective conditions. The Subdivider agrees and understands that until acceptance of the Improvements by the City in writing, each Improvement and Improvement area that is offered for dedication shall be under the charge of the Subdivider, and the Subdivider may close all or a portion of any street or area whenever necessary to protect the public during the construction of the Improvements.

10. PREPARATION AND RECORDATION OF CC&RS.

A. The Subdivider shall establish a Homeowners Association for the residential areas of the Final Map owned by Subdivider, and to pay all costs associated with the creation of the associations.

B. The Subdivider shall prepare and record Covenants, Conditions, and Restrictions (CC&Rs) which obligate each homeowners association to provide for maintenance of the shared facilities, improvements, and landscaping within the boundaries of the associations in perpetuity in accordance with the Development Agreement and conditions of approval. The CC&Rs shall describe the homeowners association and the City's responsibilities and rights, and shall be subject to the approval of the City prior to recordation.

C. The Subdivider shall implement applicable provisions of the Mitigation Monitoring and Reporting Program.

11. DEFAULT AND BREACH BY THE SUBDIVIDER AND REMEDIES

OF THE CITY
A. Upon the occurrence of any of the following events, the Subdivider shall be deemed to be in default under this Agreement:

1. Subject to any time extensions granted in accordance with Section 4, failure to complete construction and installation of the Improvements or any of them by the completion date set forth above in the Subdivision Reference Data;
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2. Failure to promptly correct or cure any defect in the Improvements or any of them (other than a City Directive) during the one-year guarantee and warranty period as required by Section 3.A or failure to commence correction or cure of any such defect or failure to diligently prosecute same to completion, in each instance following receipt by Subdivider of written notice that such defect exists;

3. Subject to any time extensions granted in accordance with Section 4, failure to perform substantial construction work of the Improvements or any of them, after commencement of work on same, for a period of thirty (30) days after Subdivider’s receipt of written notice thereof from the City;

4. Insolvency, appointment of a receiver, or the filing of any petition in bankruptcy, whether voluntary or involuntary, and such is not cured or discharged within a period of thirty (30) days;

5. Commencement of a foreclosure action against the
Subdivision or any portion thereof, or any conveyance by the Subdivider in lieu or in avoidance of foreclosure, within thirty (30) days after receipt by Subdivider of written notice thereof from the City; or

6. Failure to perform any other obligations in accordance with the terms and provisions of this Agreement within thirty (30) days after receipt by Subdivider of written notice thereof from the City.

B. City reserves to itself all remedies available to it at law or in equity for any breach of Subdivider’s obligations under this Agreement. City shall have the right, without limitation of other rights or remedies, after written notice to Subdivider and a reasonable opportunity for Subdivider to cure any such alleged default, to draw upon or utilize any improvement security furnished hereunder to complete the Improvements or otherwise mitigate City’s damages in the event of Subdivider’s default.

C. Following Subdivider’s receipt of written notice of alleged default and failure by Subdivider to promptly commence the cure of any alleged default and to diligently prosecute such cure to completion, the City may serve written notice of any such default upon the surety on any corporate surety bond furnished as improvement security hereunder, and request that said surety take over and complete the Improvements herein specified. If such surety, within thirty (30) days after service of such notice of default, does not give the City written notice of its intention to perform this Agreement, or does not commence such performance within thirty (30) days after notice to the City of such intention to perform, the City may take over the work and prosecute the same to completion, by contract or by any other method the City deems advisable, for the account and at the expense of the Subdivider and its surety.

D. Subdivider acknowledges that the Estimated Total Costs and Improvement Security amounts set forth herein may not reflect the actual cost of construction or installation of the Improvements, and, consequently, City’s damages for 456
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Subdivider’s default shall be measured by the actual cost of completing the required Improvements. If the damages incurred by the City in taking over and completing the Improvements exceeds the principal amount of the improvement security, then the Subdivider shall reimburse the City in the amount of such excess damages.

E. Following Subdivider’s receipt of written notice of alleged default and failure by Subdivider to promptly commence the cure of any alleged default and to diligently prosecute such cure to completion, City may, without liability for so doing, take possession of, and utilize in completing the Improvements, such materials, appliances, plant and other property belonging to Subdivider as may be on the site of the work and necessary for the performance of the work. Subdivider hereby consents to such entry by the City and its representatives, including contractors, following written notice to Subdivider upon the real property in the Subdivision owned by Subdivider and necessary for City to enter or access under this Agreement, in the event the City elects to maintain or complete the work on the Improvements following Subdivider’s default.

F. Subdivider acknowledges and agrees that approval of the Final Map for the Subdivision conferred substantial rights upon the Subdivider, including the right to sell, lease or finance lots within the Subdivision, and that such approval constitutes the final act necessary to permit the division of land within the Subdivision.

As a result, City will be damaged to the extent of the cost of construction or installation of the Improvements upon Subdivider’s failure to perform its obligations under this Agreement, which failure is not promptly remedied by sureties or by Subdivider.

G. The City’s failure to take an enforcement action with respect to a default, or to declare a default or breach, shall not be construed as a waiver of that default or breach or any subsequent default or breach of the Subdivider.

H. If City sues to compel Subdivider’s performance of this Agreement, or to recover damages or costs incurred in completing or maintaining the work on the Improvements, and is the prevailing party, Subdivider agrees to pay all reasonable attorneys’ fees and other costs and expenses of litigation incurred by the City in connection therewith, even if Subdivider subsequently resumes and completes the work.

12. RELATIONSHIP OF THE PARTIES
Neither Subdivider, nor any of Subdivider’s contractors, employees or agents, are or shall be deemed to be, agents of the City in connection with the performance of Subdivider’s obligations under this Agreement.

13. ASSIGNMENT
A. Subdivider shall not assign this Agreement, or any portion thereof without the prior written consent of the City in accordance with the Development Agreement. Any attempted or purported assignment in violation of this subparagraph A shall be null and void and shall have no force or effect. 457
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B. The sale or other disposition of the Subdivision shall not relieve Subdivider of its obligations hereunder. If Subdivider intends to sell the Subdivision, or any portion thereof (except for the sale of individual lots with homes to individual purchasers), to any other person or entity, the Subdivider may request an assignment or novation of this Agreement and a substitution of improvement security. Upon the City’s approval of the assignment or novation and substitution of improvement security, the Subdivider may request a release or reduction of the improvement security furnished pursuant to this Agreement.

14. NOTICES
All notices required or provided for in this Agreement shall be in writing and delivered in person or by mail, postage prepaid, and addressed as follows:

If to the City: Art Vela
Director of Public Works/City Engineer
City of Banning
99 E. Ramsey Drive
Banning, California 92220
If to the Subdivider: To the address set forth above in the Subdivision Reference Data, or to such other
address as may subsequently be designated
in written notice to the City.

Notice shall be effective on the date that it is delivered in person, or, if mailed, three (3) days after the date of deposit in the United States Mail.

15. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties with respect to its subject matter. All modifications, amendments, or waivers of any terms of this Agreement shall be in writing and signed by the duly authorized representatives of the parties. In the case of the City, the duly authorized representative, unless otherwise specified herein, shall be the City Engineer.

16. SEVERABILITY
The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect.

17. INCORPORATION OF SUBDIVISION REFERENCE DATA AND

RECITALS
The Subdivision Reference Data and the Recitals are incorporated into this Agreement.
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18. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.

19. EFFECTIVE DATE OF THE AGREEMENT
This Agreement shall be and become effective as of the date that it is executed by a duly authorized officer or employee of the City, it being the intention of the parties that the Subdivider shall first execute this Agreement and thereafter submit it to the City. The City shall insert the effective date in the Subdivision Reference Data in all counterparts of this Agreement and shall transmit a fully executed counterpart to the Subdivider.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers, thereunto duly authorized, as of the dates set forth below their respective signatures.
[Note: All signatures must be
acknowledged by a notary public and
the acknowledgement must be attached.

If signed by a Corporation, the
signatures of two Corporate officers are
required, unless a resolution of the
Corporation’s Board of Directors is
provided indicating that the signature of
the one signatory is sufficient to bind
the Corporation.]

SUBDIVIDER
By:

Print Name: Michael Taylor
Title: Division President
Date:

CITY

CITY OF BANNING
_____________________________
MAYOR
ATTEST:
(SEAL)

CITY CLERK
Approved as to form:

CITY ATTORNEY
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[This page for acknowledgments.]
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CITY OF BANNING

SUBDIVISION IMPROVEMENT AGREEMENT
* * * * * * SUBDIVISION REFERENCE DATA * * * * * *
[ ] FINAL TRACT MAP NO. 37390-2 (“Final Map” herein)
[ ] PARCEL MAP NO. (“Parcel Map” herein)

NAME OR TRACT NUMBER OF
SUBDIVISION (“Subdivision”
herein):

ATWELL - 37390-2

NAME AND ADDRESS OF
SUBDIVIDER(S):

PARDEE HOMES
1250 CORONA POINTE CT, #600
CORONA, CA 92881

CITY COUNCIL RESOLUTION
OF APPROVAL NO.
(“Resolution of Approval” herein)

DATE(S) THAT IMPROVEMENT PLANS WERE APPROVED BY THE CITY ENGINEER:

IMPROVEMENT/PLAN NO.:

Sewer Improvement Plans -Approved 6/04/2020
Street Improvement Plans -Approved 6/04/2020
Water Improvement Plans -Approved 6/09/2020
Monumentation Plans -Approved 8/19/2020
ESTIMATED TOTAL COSTS: IMPROVEMENTS $ 2,831,876.15
GRADING $
MONUMENTATION $ 35,161.25
TOTAL: $2,867,037.40

FORM OF IMPROVEMENT
SECURITY:
[ ] AAA Corporate surety bonds

NAME AND ADDRESS OF
CORPORATE SURETY (if
applicable):
[ ] Deposit of money
RLI Insurance Company
(Name of Corporate Entity)
6303 Owensmouth Ave, 10th Floor
(Street Address)
Woodland Hills, CA 91367
475
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SURETY BOND NUMBERS (if
applicable): - PA 7 Monumentation Bond #CMS0339956
- PA 7 Sewer Improvements Bond#CMS0339953
- PA 7 Street Improvements Bond#CMS0339954
- PA 7 Water Improvements Bond#CMS0339955