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2003-873276RECORDING REQUESTED BY ) When Recorded Mail To: ) ~j District Clerk ) San Dieguito Water District ) 505 South. Vulcan Ave. ) Encinitas, CA 92024' For the Benefit of the District ono, 2003-087 2 JUL 22,-. 200-3 4:1.5 P111 OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH, COUNTY RECORDER FEES: 0.00 NOTICE OF COMPLETION Assessor's Parcel Nos. 254-614-01,02,05 & 257-020-01 Agreement No. A-0050 1. Toll CA IV. L.P., on the 27th day of June, 2001, enter into a "Lien Covenant Regarding Real Property: Improvements Required as Condition on Final Approval of Subdivision of Real Property" with the San Dieguito Water District. The Agreement detailed the requirements for the construction and installation of 1,588 feet of 8-inch PVC water main, along with new services and appurtenances, within the roads known as Shasta Drive and Spyglass Court in the City of Encinitas. 2. Said Covenant, including the plans and specifications for said improvements, is on file in the Office of the Clerk of the Board of Directors. 3. Said improvements were completed by the owners and accepted by the San Dieguito Water District Board of Directors on the 26th day of March, 2003. 4. Subdivision Bond No. 929231744 from The Continental Insurance Company in the amount of $106,500.00 may be released at this time. The District will retain a Certificate Deposit in the amount of $35,500.00, which shall be released at the end of the one-year warranty period. 5. All requirements of said Covenant have hereby been satisfied except for warranty. 6. Neither acceptance of said improvements by the Board of Directors nor this Notice constitute a waiver of any defects in the work of the construction or installation of said improvements. Dated: dJ :2 6 SAN DIEGUITO WATER DISTRICT I _00i (i ",4~ -Q-1- Clerk of the Board I, Deborah Cervone, Clerk of the San Dieguito Water District, a political subdivision of the City of Encinitas, County of San Diego, State of California, which is the owner of the public work described within the Notice of Completion executed by said San Dieguito Water District, do hereby certify that I have read the same and know the contents thereof and that the facts therein stated are true to the best of my own knowledge. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. I make this, verification for and on behalf of the San Dieguito Water District. Date. L L~A- cx:-X~~ D eborah Cervone, Board Clerk STATE OF CALIFORNIA) ) ss County of San Diego) On %I w'A~ , 200 , before me,?~j OA . / EGG i-Oue XeV~/0U,6Z/C personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is re subscribed tot the within instrument and acknowledged to me that she ey executed the same in hi a heir authorized capacity(ies), and that by hi her/ eir signature(s) on the instrument the person(s) or the entity upon behalf of which, the person(s) acted, executed the instrument. WITNESS my hand and official seal. RANDA G. MILLJOUR t Notary P lic Commission $1389205 4 a Notary Public • CaliforniaN > San Diego County A My commission Exp. Jan. 6. 2007 CITY OF ENCINITAS SAN DIEGUITO WATER DISTRICT AGENDA REPORT Meeting Date: March 26, 2003 TO: Board of Directors VIA: Kerry L. Miller, District 1~ r t ~ k PoR YO Lin H. Wurbs, Public W r it tor Fpom city C/erkCoA,0S FROM: SDWD Engineering & Planning Department Bill O'Donnell, Senior Engine SUBJECT: Consideration of Acceptance of Public Water Improvements and Authorization to File a "Notice of Completion" for Improvements Constructed by Toll CA IV, L.P. for Property Located on the East Side of Quail Gardens Drive within Encinitas Ranch (APNs 254-614-01,02,05 and 257-020-01). BACKGROUND: On June 27, 2001, the San Dieguito Water District entered into a "Lien Covenant Regarding Real Property: Improvements Required as Condition on Final Approval of Subdivision of Real Property" with Toll CA IV, L.P., owner of property located along the east side of Quail Gardens Drive. The Covenant detailed the requirements for the construction and installation of certain public water improvements. ANALYSIS: The potable water improvements were installed in accordance with District approved plans and specifications, under District inspection. A 25% retention of security will be held for one year to cover warranty of potable water improvements. FISCAL AND STAFF IMPACTS: Future expenses will be incurred for maintenance of the new water improvements. Funds to cover the cost of said maintenance are collected through the sale of water. RECOMMENDATION: Accept public water improvements and authorize the District Manager or their designee to file a "Notice of Completion" for improvements constructed by Toll CA IV, L.P., located along the east side of Quail Gardens Drive. June 9, 2004 A DIEGUITO WATER 505 S. VULCAN AVENUE ENCINITAS, CALIFORNIA 92024-3633 Bank of America 231 S. La Salle Street, 17"' Floor Chicago, IL 60697 DISTRICT (760) 633-2650 FAX (760) 633-2627 TDD (760) 633-2700 Re: . Release of Letter of Credit No. 7406309 for Water Improvements for a Subdivision Developed by Toll CA IV, L.P., Agreement No. A-0050 To Whom It May Concern: Relea d to Print Name Date Water improvements constructed by Toll CA IV, L.P., for a project located on the eastside of Quail Gardens Drive have been completed to the satisfaction of the San Dieguito Water District. Therefore, the District has determined that Letter of Credit No. 7406309 in the amount of $35,500.00 may be released at this time. If you have any question, please contact me at (760) 633-2862 Sincerely, Ga L Assistant Engineer Enclosed C6 recycled paper April 2, 2003 SAN DIEGUITO 505 S. VULCAN AVENUE ENCINITAS, CALIFORNIA 92024-3633 The Continental Insurance Company Paoli, PA WATER DISTRICT Re: Release of Subdivision Bond No. 929231744 Held for Improvements for a Subdivision Developed by Toll CA IV, L.P 0050. To Whom It May Concern: (760) 633-2650 FAX (760) 633-2627 TDD (760) 633-2700 Security for Water Agreement No. A- Water improvements constructed by Toll CA IV, L.P. for a project located on the east side of Quail Gardens Drive have been completed to the satisfaction of the San Dieguito Water District. Therefore, the District has determined that Subdivision Bond No. 929231744 in the amount of $106,500.00 may be released at this time. If you have any questions, please call me at (760) 633-2862. Sincerely, JGa Lee Assistant Engineer Enclosure F Rel ased 4 Print Name Date -2--675 t~ recycled paper CITY OF ENCINITAS SAN DIEGUITO WATER DISTRICT AGENDA REPORT Meeting Date: June 27, 2001 TO: Board of Directors VIA: Kerry L. Miller, District Secretary ' - / PORYOURREC®RDS Lin H. Wurbs, Public Works Director J GG ✓ Ft'Orr)CjtYCIerk FROM: SDWD Engineering & Planning Department Bill O'Donnell, Water Utility Plannev© SUBJECT: Authorization to Enter Into a "Lien Covenant Regarding Real Property: Improvements Required as Condition on Final Approval of Subdivision of Real Property" with Toll CA IV, L.P.; Accept Easements as Part of the Final Map; and Approve the Water Improvement Plan for Property Located on the East Side of Quail Gardens Drive within Encinitas Ranch (APNs 254-614-01,02,05 & 257-020- 01). BACKGROUND: On May 17, 2001, the Planning Commission approved Tentative Map No. 00-128 consisting of a 78-lot subdivision of land. The owner is in the process of finalizing the map and is prepared to enter into a Lien Covenant with the District. ANALYSIS: In order to meet water requirements for the project, 1,588 feet of PVC water main, along with new services and appurtenances, are required to be installed to provide domestic and fire-flow needs. The District's work force is not geared to install projects of this size without creating hardships on normal operations. For this reason, the District has requested that the owner enter into a Lien Covenant with the District in which the owner agrees to provide a properly licensed contractor to install water improvements under District inspection. The District has been provided with the required information for this project. The owner agrees to bear all costs for improvements, grant all necessary easements, and abide by District rules, regulations and specifications. FISCAL, AND STAFF IMPACT: The Lien Covenant requires all inspection services provided by the District to be paid for by the owner. Future District expenses will be incurred for the maintenance of the new water improvements, once they are accepted. Funding for said maintenance is covered through the sale of water. RECOMMENDATION: Authorize the District Manager or their designee to enter into a "Lien Covenant Regarding Real Property: Improvements Required as Condition on Final Approval of Subdivision of Real Property" with Toll CA IV, L.P.; accept easements as part of the final map; and approve the water improvement plan for property located on the east side of Quail Gardens Drive within Encinitas Ranch. Recording requested by: When Recorded Mail To: District Clerk San Dieguito Water District 505 S. Vulcan Avenue Encinitas, CA 92024 SPACE ABOVE FOR RECORDER'S USE LIEN COVENANT REGARDING REAL PROPERTY: IMPROVEMENTS REQUIRED AS CONDITION ON FINAL APPROVAL OF SUBDIVISION OF REAL PROPERTY. Assessor's Parcel Project No.:TM 00-128 Nos. 254-614-01,02,05 & 257-020-01 Agreement No.:A-0050 A. Toll CA IV, L.P., a A California Limited Partnership ("SUBDIVIDER" hereinafter) is the owner of real property which is commonly known as South Mesa 7000s (APNs 254-614-01,02,05 & 257-020- 01 ("PROPERTY" hereinafter) and which is described as follows: See Attachment A which is' attached hereto and made a part hereof. B. The tentative subdivision of the PROPERTY was approved with the final approval subject to certain conditions requiring the construction of improvements by SUBDIVIDER. SUBDIVIDER has applied for final approval of the subdivision but has not constructed the required improvements. In consideration of the final approval of the subdivision of the PROPERTY by the San Dieguito Water District ("DISTRICT" hereinafter), SUBDIVIDER hereby covenants and agrees for the benefit of DISTRICT, to do the following: See Attachment B which is attached hereto and made a part hereof. C. This Covenant shall run with the land and be binding upon and inure to the benefit of the future owners, encumbrances, successors, heirs, personal representatives, transferees and assigns of the respective parties. D. SUBDIVIDER agrees that SUBDIVIDER's duties and obligations under this Covenant are a lien upon the PROPERTY. Upon notice and opportunity to respond, DISTRICT may add to the property tax bill of the PROPERTY any past due financial obligation owing to DISTRICT by way of this Covenant. E. If either party is required to incur costs to enforce the provisions of this Covenant, the prevailing party shall be entitled to full reimbursement of all costs, including reasonable attorneys' fees, from the other party. g:sdwd\eng\forms\liencov.doc F. Failure of SUBDIVIDER to comply with the terms of this Covenant shall constitute consent to the filing by DISTRICT of a Notice of Violation of Covenant. G. Upon SUBDIVIDER's satisfactory completion of SUBDIVIDER's duties and obligations contained herein, SUBDIVIDER may request and DISTRICT shall execute a Satisfaction of Covenant. H. By action of the Board of Directors, DISTRICT may assign to a person or persons impacted by the performance of this Covenant, the right to enforce this Covenant against SUBDIVIDER. ACCEPTED AND AGREED. Dated SUBDIVIDER - ifornia Limited Partnership (Notarization of SUBDIVIDER signature is attached.) SAN DIEGUITO WATER DISTRICT Dated 9 /qb3 (Notarization not required) by 0 a ►2~ ~1-1 IDistrict Manager g:sdwd\eng\forms\liencov.doc CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of On ~!1 1 Date personally appeared C, to be the person whose nameX is/a' subscribed to the within instrument and acknowledged to me that he/Xti>< executed the same in his/bef/th.Rrr authorized capacity and that by his/f}ef/tbeif signatur6Xon the instrument the person; or REBECCA Q Gtr the entity upon behalf of which the person Comm Won # 1281211 NoftY Pdit- acted, executed the instrument. owwcow* WCCll 'LH9*1tOd41.~11 TNESS my hand and icial s OID I" j ~ Place Notary Seal Above X W~L k u- J-& Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent remo val and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer - Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Top of thumb here 0 1999 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 - www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 Xpersonally known to me ❑ proved to me on the basis of satisfactory evidence ATTACHMENT A TO LIEN COVENANT REGARDING REAL PROPERTY: IMPROVEMENTS REQUIRED AS CONDITION ON FINAL APPROVAL OF SUBDIVISION OF REAL PROPERTY. PROJECT NO. TM 00-128 PROPERTY DESCRIPTION BEING A SUBDIVISION OF LOTS 4, 5, AND LOT 17 OF CITY OF ENCINITAS TRACT NO. 99-137 IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 13998, RECORDED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY JULY 11, 2000. g:sdwd\eng\forms\liencov.doc ATTACHMENT B TO LIEN COVENANT REGARDING REAL PROPERTY: IMPROVEMENTS REQUIRED AS CONDITION ON FINAL APPROVAL OF SUBDIVISION OF REAL PROPERTY. PROJECT NO. TM 00-128 SUBDIVIDER'S DUTIES AND OBLIGATIONS SUBDIVIDER: Toll CA I.V., L.P., a A California Limited Partnership Tract or Parcel Map Number : TM 00-128 Name of Subdivision: South Mesa 7000s 1.0 PROJECT REQUIREMENTS 1.01 No facilities will be installed prior to the acceptance by the District: A) Good and Sufficient Security. B) Acceptable Certificate of Insurance. .1.02 Developer to provide compaction testing per the requirements of the San Dieguito Water District. 1.03 Developer to provide for construction staking and surveying for the proposed water facilities. 1.04 SUBDIVIDER shall, at SUBDIVIDER'S expense, obtain all necessary permits and licenses for the construction of the water improvements and give all necessary notices and pay all fees and taxes required by law. 1.05 All public water facilities shall be installed by a Class A or Class C-34 licensed contractor. 1.06 The plans provided for in this "Covenant" conform to the current standards of the DISTRICT. The SUBDIVIDER will be required to conform to the standards applicable on the date upon which construction is commenced on the development if construction is not commenced within six months of the date of the execution hereof by the DISTRICT. 1.07 SUBDIVIDER shall convey to DISTRICT easements, using the DISTRICT Form of Easement covering the property in which the water facilities are located at all instances where the facilities are not located in a dedicated street. Owner shall have his Engineer provide DISTRICT with a legal description and a 8 1/2" x 11" plat of easements. g:sdwd\eng\forms\liencov.doc 1.08 SUBDIVIDER agrees at SUBDIVIDER's own cost and expense to furnish all the labor, equipment and materials to perform and complete, in accordance with the plans and specifications and to the satisfaction and approval of the District Engineer, all of the improvements referred to below: A) $ B) $ C) $ D) $ E) $ F) $ G) $ H) $ I) $ J) loo Contingencies $ Total Cost Estimate: $ TBD 1.09 IMPROVEMENT SECURITY: A) 1000 of Cost Estimate 1.10 MISCELLANEOUS COSTS: $ TBD $ -0- 1.11 CAPACITY CREDIT: (OFFSETS NEW CAPACITY FEES ONLY) Account Number SDWD SDCWA A) _ B) _ C) _ D) Total Capacity Credit$< 0 0 > 1.12 SDWD METER FEES: Installation Capacity A) -1~ meter 41 ea $ 10,250.00 $ 115,579.00 B) $ $ C) $ $ D) $ $ E) $ $ Capacity Credit (Refer to Sec. 1.11) 0 > Totals $ 10,250.00 $ 115,579.00 Total Meter Fees: $ 125,829.00 1.13 SDCWA CAPACITY FEES: Capacity A) A -11~ meter 41 ea $ 82,164.00 2 B) $ Capacity Credit (Refer to Sec. 1.11) > Total Capacity Fees: $ 115,579.00 g:sdwd\eng\forms\liencov.doc 1.14 CAPACITY FEE: (FIRE) A) B) 1.15 INSPECTION DEPOSIT: Total Capacity Fees: $ -0- 1.16 DEPOSITS & FEES: $ 3,700.00 Engineering Fees $ -0- SDWD Meter Fees $ 125,829.00 SDCWA Capacity Fees $ 115,579.00 Fire Capacity Fees $ -0- Inspection Deposit $ 3,700.00 *TOTAL ESTIMATED'DEPOSITS & FEES REQUIRED: $ 245,108.00 1.17 The water meter fees, including installation and capacity, are established from time to time by the Board of Directors of the DISTRICT and the San Diego County Water Authority. The SUBDIVIDER will by required to conform to the installation and capacity fees which are applicable on the date of payment. Construction will not be allowed to commence until all water fees have been received. 1.18 The above figures for deposits are estimates only and may vary accordingly. Upon completion of installation, cost will be computed and billing or refund will be issued to SUBDIVIDER. 1.19 In the event a 90-day period elapses from the date of recordation of the Covenant, the above estimated deposits and fees must be revised and are subject to condition of agreement with DISTRICT. 1.20 Filing of the Notice of Completion shall not be accomplished until the following requirements have been complied with: A) All work has been completed in accordance with the plans and specifications, all gate wells have been set flush with the street surface, and meter boxes set to finish grade; B) A set of original plans (sepia prints), corrected to conform with the work as constructed, has been submitted to the DISTRICT, 2.0 PROGRESS OF WORK 2.1 Time is of the essence with this Covenant. SUBDIVIDER shall commence substantial construction of the improvements required by this Covenant not later than June 26, 2002 and shall complete the improvements no later than June 26, 2004. In the event good cause exists, as determined by the District Engineer, the time for commencement of construction or completion of the improvements hereunder may be extended. Any such extension may be granted without notice to SUBDIVIDER's Surety or Sureties, if any, and shall in no way g:sdwd\eng\forms\liencov.doc affect the validity of this Covenant or release the Surety or Sureties on any security given for the faithful performance of this Covenant. The District Engineer shall be the sole and final judge as to whether or not good cause has been shown to entitle SUBDIVIDER to an extension. As a condition of such extensions, the District Engineer may require SUBDIVIDER to furnish new security guaranteeing performance of this Covenant, as extended, in an increased amount as necessary to compensate for any increase in construction costs as determined by the District Engineer. 2.2 If any of the public improvements are to be constructed or installed on land not owned by SUBDIVIDER, no construction or installation shall be commenced prior to the acquisition and acceptance by DISTRICT of appropriate property interests. SUBDIVIDER shall pay the actual costs of acquisition of such property interests. 2.3 SUBDIVIDER shall, at SUBDIVIDER's expense, obtain all necessary permits and licenses for the construction of the improvements and give all necessary notices and pay all fees and taxes required by law. 2.4 SUBDIVIDER shall notify the District Engineer in writing at least .15 -days prior to the commencement of work hereunder. No construction work shall begin until authorized by DISTRICT. 2.5 SUBDIVIDER shall not be entitled to obtain occupancy permits for the'buildings constructed on any lot created by the subdivision until all required improvements have been provided to the satisfaction of the District Engineer. 2.6 SUBDIVIDER shall at all times maintain safe construction facilities, and provide safe access, for inspection by DISTRICT, to all parts of the work and to the shops wherein the work is in preparation. 2.7 SUBDIVIDER shall give good and adequate warning to the public to each and every existing danger relating to the construction of the improvements, and shall protect the public from such dangers. 3.0 INSPECTION/ACCEPTANCE OF IMPROVEMENTS 3.1 The District Engineer or his duly authorized representative, upon request of SUBDIVIDER, shall inspect, at SUBDIVIDER's expense, the improvements herein agreed to be constructed and installed by SUBDIVIDER. If determined to be in accordance with applicable DISTRICT standards and the other terms of this Covenant, the District Engineer shall approve the improvements and recommend the acceptance of the public improvements by DISTRICT through resolution of the DISTRICT Board of Directors. 3.2 The SUBDIVIDER agrees to pay for each inspection of the improvements required by the District Engineer. 3.3 Approval of the improvements and acceptance of the public improvements by District, shall not constitute a waiver by DISTRICT of any defects in the improvements. 3.4 Until such time as the improvements required by this Covenant are fully completed by SUBDIVIDER, approved by the District Engineer and the, public improvements are accepted by DISTRICT, gesdwd\eng\forms\liencov.doc SUBDIVIDER will be responsible for the care, maintenance, repair and replacement of such public improvements. 4.0 GUARANTEE/WARRANTY 4.1 ONE YEAR.- SUBDIVIDER hereby guarantees and warrants the public improvements constructed pursuant to this Covenant for a period of one year after final acceptance of said work to include design, work, labor and materials furnished. If within the one year period, any public improvement or part of any public improvement furnished, installed or constructed, or caused to be furnished, installed or constructed by SUBDIVIDER, fails to fulfill any of the requirements of this Covenant or otherwise fails to function to the satisfaction of the DISTRICT, SUBDIVIDER shall without delay and without any cost to DISTRICT, repair, replace or reconstruct any failing part or parts of the public improvement. 4.2 TEN YEARS. For ten years following the acceptance by DISTRICT of the public improvements, SUBDIVIDER shall remain obligated to cure all identified defects in the design, construction, materials of the public improvements. 5.0 SECURITY 5.1 FOR CONSTRUCTION OF IMPROVEMENTS A. Prior to the sale or transfer of all or any portion of this Subdivision, or prior to the issuance of any development permits for this Subdivision, SUBDIVIDER shall furnish to DISTRICT good and sufficient security in the form of a cash deposit, a letter of credit or other security as approved by the District Engineer in the amount of 1000 of the then-current estimate of construction costs of the improvements to assure faithful performance of this Covenant. B. In the event that changes, alterations or additions to the improvement plans and specifications or to the improvements add 10% or more to the original estimated costs of the improvements, SUBDIVIDER shall provide additional security in a form satisfactory to DISTRICT in an amount equal to 100' of the total estimated increase in the construction cost of the improvements. The amount of the additional security may be adjusted by the amount of work completed and any prior, partial releases of security. 5.2 FOR ONE YEAR GUARANTEE /WARRANTY. SUBDIVIDER shall furnish to DISTRICT good and sufficient security, in the form of a cash deposit, letter of credit or other security as approved by the District Engineer, in the amount of 250 of the estimated total cost of the public improvements, to secure SUBDIVIDER's guarantee and warranty specified herein for a period of one year following the acceptance by DISTRICT of the public improvements. 6.0 CURING OF DEFAULTS 6.1 In the event that SUBDIVIDER fails to perform any duty or obligation imposed by this Covenant, SUBDIVIDER hereby authorizes DISTRICT, at DISTRICT's option, to perform such duty or g:sdwd\eng\forms\liencov.doc obligation twenty l20) days after DISTRICT mails written notice of default to SUBDIVIDER and SUBDIVIDER fails to cure such default. SUBDIVIDER agrees to pay the actual costs of such performance by DISTRICT. The security posted by SUBDIVIDER pursuant to this Covenant may be used by DISTRICT for the completion of such performance, but shall not limit SUBDIVIDER's liability. 6.2 In the event of SUBDIVIDER'S uncured default, DISTRICT may take over the work and prosecute the same to completion, by contract or by any other method DISTRICT may deem advisable, for the account and at the expense of SUBDIVIDER. SUBDIVIDER shall be liable to DISTRICT for the actual costs or damages occasioned DISTRICT thereby. Without liability for so doing, DISTRICT may take possession of the construction site and the work. In completing the work, DISTRICT may utilize such materials, appliances, plants and other property belonging to SUBDIVIDER as may be on the site of the work and necessary therefore. 6.3 Should the exigencies of the case require repairs, replacements, or work to be done before SUBDIVIDER can be notified and given seven days to perform, DISTRICT may, at DISTRICT's option and without liability, make the necessary repairs or replacements or perform the necessary work and SUBDIVIDER shall pay to DISTRICT the actual costs of so doing. 7.0 HOLD HARMLESS 7.1 SUBDIVIDER agrees to indemnify and hold DISTRICT and DISTRICT's officers, officials, employees and agents harmless from, and against any and all liabilities, claims, demands, causes of action, losses, damages and costs, including all costs of defense thereof, arising out of, or in any manner connected directly or indirectly with, any acts or omissions of SUBDIVIDER or SUBDIVIDER's agents, employees, subcontractors, officials, officers or representatives. Upon demand, SUBDIVIDER shall, at its own expense, defend DISTRICT and DISTRICT's officers, officials, employees and agents, from and against any and all such liabilities, claims, demands, causes of action, losses, damages and costs. 7.2 - SUBDIVIDER's obligation herein includes, but is not limited to, alleged defects in the plans, specifications and design of the improvements; but does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of a defect in the plans, specifications or design that is a result of a change required by DISTRICT to the SUBDIVIDER's proposed plans, specifications or design so long as such change is objected to, in writing, by the SUBDIVIDER, and the writing is filed with the District Engineer more than ten days prior to the commencement of work. 7.3 . SUBDIVIDER's obligation herein includes, but is not limited to, alleged defects in the construction of the improvements; alleged defects in the materials furnished in the construction of the improvements; alleged injury to persons or property; alleged inverse condemnation of property or a consequence of the design, construction, or maintenance of the work or the improvements; and any accident, loss or damage to the g:sdwd\eng\forms\liencov.doc work or the improvements prior to the acceptance of same by DISTRICT. 7.4 By approving the improvement plans, specifications and design; by inspecting or approving the improvements; or by accepting the public improvements, DISTRICT shall not have waived the projections afforded herein to DISTRICT and DISTRICT's officers, officials, employees and agents or diminished the obligation of SUBDIVIDER who shall remain obligated in the same degree to indemnify and hold DISTRICT and DISTRICT's officers, officials, employees and agents, harmless as provided above. 7.5 SUBDIVIDER's obligation herein does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of DISTRICT's intentional wrongful acts, DISTRICT's violations of law, or DISTRICT's sole active negligence. 8.0. INSURANCE 8.1 The SUBDIVIDER shall obtain and maintain a policy of motor vehicle liability, public liability, general liability and property damage insurance from an insurance company approved by DISTRICT and authorized to do business in the State of California, in an insurable amount of not less than one million dollars ($1,000,000.00) for each occurrence. The insurance policy shall provide that the policy shall remain in force during the life of this COVENANT and shall not be canceled, terminated, or allowed to expire without thirty (30) days prior written notice to DISTRICT from the insurance company. 8.2 DISTRICT shall be named as an additional insured on SUBDIVIDER's policies. 8.3 SUBDIVIDER shall provide a Certificate of Workers' Compensation insurance to the DISTRICT. 8.4 SUBDIVIDER shall furnish certificates of said insurance to DISTRICT prior to commencement of work under this COVENANT. 9.0 NOTICES 9.1 Any notices to be given under this COVENANT, or otherwise, shall be served by certified mail. 9.2 For the purposes hereof, unless otherwise provided in writing by the parties hereto, the address of DISTRICT and the proper person to receive any such notice on its behalf is: District Engineer San Dieguito Water District 505 S. Vulcan Avenue Encinitas, CA 92024 and the address of SUBDIVIDER and the proper person to receive any such notice on its behalf is: g:sdwd\eng\forms\liencov.doc Toll Brothers 2100 W. Orangewood Ave., Suite 180 Orange, California 92868 10.0 SUBDIVIDER'S CERTIFICATION OF AWARENESS OF IMMIGRATION REFORM AND CONTROL ACT OF 1986 SUBDIVIDER certifies that SUBDIVIDER is aware of the requirements of the Immigration Reform and Control Act of 1986 (8 USC H 1101-1525) and will comply with these requirements, including but not limited to verifying the eligibility for employment of all agents, employees, subcontractors and consultants that are included in, satisfy the duties and obligations contained herein. _11.0 PREVAILING WAGES 11.1 SUBDIVIDER has been alerted to the requirements of California Labor Code section 1770 et seq., which would required the payment of prevailing wage rates and the performance of other requirements if it were determined that this Covenant constitutes a public works contract. SUBDIVIDER has also been advised and understands that the Office of the Attorney General of the State of California has rendered an Opinion (No. 86-803) concluding that prevailing wages must be paid by a private developer where a public agency retains control over construction of the project and the facilities are ultimately dedicated to the public agency. SUBDIVIDER has further been advised that the California Department of Industrial Relations presently disagrees. with the position taken by the office of the Attorney General in Opinion No. 86-803. 11.1 It shall be the sole responsibility of the SUBDIVIDER to determine whether to pay prevailing wages for any or all work required by this Covenant. As a material part of this Covenant, SUBDIVIDER agrees to assume all risk and liability arising from SUBDIVIDER's decision not to pay prevailing wages for work required by this,Covenant. 11.2 As a further material part of this Covenant, SUBDIVIDER agrees to hold harmless and indemnify the DISTRICT and its officers, employees, consultants, and agents from any and all claims, liability, loss, costs, damages, expenses, fines, and penalties of whatever type or nature, including all costs of defense and attorney's fees, arising from any alleged failure of the SUBDIVIDER, or SUBDIVIDER's contractors or subcontractors, to comply with the prevailing wage laws of the State of California. If the DISTRICT or any of the indemnified parties are named as a party in any dispute arising from the failure of SUBDIVIDER or SUBDIVIDER's contractors or subcontractors to pay prevailing wages, SUBDIVIDER agrees that the DISTRICT and the other g:sdwd\eng\forms\liencov.doc indemnified parties may appoint their own independent counsel, and SUBDIVIDER agrees to pay all attorney's fees and defense costs of the DISTRICT and the other indemnified parties as billed, in addition to all other damages, fines, penalties, and losses incurred by the DISTRICT and the other indemnified parties as a result of the action. 12.0 GENERAL PROVISIONS 12.1 Neither. SUBDIVIDER nor any of SUBDIVIDER's agents or contractors are or shall be considered to be agents of DISTRICT in connection with the performance of SUBDIVIDER's duties and obligations under this Covenant. 12.2 Sale or other disposition of the PROPERTY will not relieve SUBDIVIDER from the duties and obligations set forth herein. 12.3 SUBDIVIDER shall provide the improvements as an independent contractor and in pursuit of SUBDIVIDER's independent calling, and not as an employee of DISTRICT. SUBDIVIDER shall not be under control of the DISTRICT except as to the result to be accomplished. SUBDIVIDER may confer with DISTRICT as required to perform this Covenant. 12.4 No verbal agreement or conversation with any officer, official, agent or employee of DISTRICT, either before, during or after the execution of this Covenant, shall effect or modify any of the terms or obligations herein contained. g:sdwd\eng\forms\liencov.doc