Article 68. Drainage Districts of California Public Contract Code >> Division 2. >> Part 3. >> Chapter 1.5. >> Article 68.

The provisions of this article shall apply to contracts by drainage districts as provided for in Chapter 354 of the Statutes of 1919.

By resolution or resolutions the board of supervisors may order the work to be done, and if it does so it shall fix a time for receiving proposals or bids for doing the work, and shall direct the clerk to give notice, inviting sealed proposals or bids. Such notice shall include a statement that the work is to be done under the provisions of the Drainage District Improvement Act of 1919 and according to the plans and specifications on file, except insofar as such plans and specifications were changed by the board of supervisors in conclusion of the hearing on the resolution of intention in said act provided; to which said act, to the resolution of intention and all proceedings had thereunder the attention of bidders is hereby directed, and which are by this reference made part of said notice.

The notice inviting sealed proposals or bids shall be published by at least two insertions in the newspaper or newspapers designated in the resolution of intention, and (though it need not be simultaneously) a copy or copies of the same shall be posted and kept posted for five days, at or near the chamber door of the board of supervisors. All proposals or bids shall be accompanied by a check, payable to the county, certified by a responsible bank in an amount not less than 10 percent of the aggregate of the proposal or bid, or by a bond in such amount running to the county, signed by the bidder, with two sureties qualifying before an officer competent to administer oaths, each in said amount over and above all statutory exemptions, or executed by some bonding company acceptable to said board of supervisors. Said proposals or bids shall be delivered to the clerk of said board.

The board shall, in open session, open and examine and declare the same. No proposal or bid shall be considered unless accompanied by such check or such bond in terms satisfactory to the board. The board may reject any and all proposals or bids should it deem it for the public good, and shall reject all proposals or bids other than the lowest regular proposal or bid of any responsible bidder, and may award the contract for said work to the lowest responsible bidder at the price named in his or her bid. A notice of such award, attested by the clerk of the board of supervisors shall be transmitted to the successful bidder by mail by the clerk of the board of supervisors, and shall also be published and posted in a manner herein provided as to the notice inviting proposals or bids. The check or bond accompanying such accepted proposal or bid shall be kept by the clerk of said board until the contract for doing said work, as hereinafter provided, has been entered into. Checks or bonds of unsuccessful bidders shall be returned by the clerk of said board. If said successful bidder fails, neglects or refuses for 15 days after being awarded the contract to execute the same, the certified check accompanying his bid, and the amount thereof shall be declared forfeited to the county, and may be collected by it and paid into the interest and sinking fund of the district, and any bond forfeited may be prosecuted, and the amount thereof collected and paid into said fund. Before being entitled to a contract the bidder to whom the award thereof has been made must advance and pay to the clerk of the board of supervisors, the costs and expenses of publishing and posting the resolutions, notices and orders required under this act to be made, which have been made, given, posted, or published in the proceeding.

Any person interested in the said proceeding may at any time within 10 days from the first publication of the notice of award file with the clerk of the board of supervisors a statement in writing specifying any particulars in which he or she may be aggrieved by the said proposed work and any and all objections he or she may have to the regularity or legality of the proceedings theretofore had or taken. The failure to file such written statement shall constitute and be a complete waiving of each and every objection to the proceedings theretofore had or taken and an estoppel and bar to any and all claims that the same or any portion thereof have been or are irregular, illegal, defective, erroneous, or faulty; provided, that the resolution of intention provided for in Section 6 of Chapter 354 of the Statutes of 1919 has been adopted and published.

If for 20 days after the first publication of the notice of award, the awardee fails, neglects, or refuses to execute a contract for the same, the board of supervisors may direct the clerk of the board to give notice as in the first instance, inviting sealed proposals or bids, and thereupon after receiving bids shall award the contract as in the first instance; and the said board shall proceed in the same manner in the case of the default of a second or subsequent awardee.

The chairman of the board of supervisors is hereby authorized, in the name of the county to execute the contract with the awardee thereof, and to receive and approve all bonds required by this act on the part of the awardee, and shall, by the terms of said contract, fix the time for the beginning of the work, which shall not be more than 20 days from the date thereof. The contract shall provide that the work shall be prosecuted with diligence until completed, and shall fix a time for such completion. Such time of completion may be extended from time to time by the board of supervisors, in its discretion, and by resolution, entered by the clerk in the minutes of said board, a copy of which shall by said clerk be endorsed upon or annexed to the contract.

Before the execution of such contract, a bond shall be executed and filed, running to the county, in an amount not less than one-half of the contract price of the work, signed by the contractor and two or more sureties, who, unless surety companies, shall qualify before an officer entitled to administer the oath, in a sum aggregately equal to the amount of the bond, each surety in the amount for which he or she becomes surety. Such bond shall be conditioned for the faithful execution of the contract by the contractor, and for the payment by him or her for all labor and materials furnished for or in the doing of the work. The form and sufficiency of said bond shall be passed upon by some member of the board of supervisors, and such bond shall inure as well to the benefit of any and all persons furnishing labor or materials for the work as to that of the county.

By said contract the county shall undertake that the board of supervisors will, upon the fulfillment and performance of the contract on the part of the contractor, and under the provisions of the Drainage District Improvement Act of 1919 take all steps, in or by said act authorized to be taken, to effect the issuing by the county treasurer of the bonds in said act authorized to be issued, and provide a fund for their payment, as in or by said act prescribed. The contract shall state that in no case shall the county be liable thereunder, nor any officer thereof be beholden thereunder except for the discharge of official duty under the law.

If the contractor shall fail to begin in good faith the work provided for in said contract within the time in said contract set forth, or shall fail thereafter to prosecute said work in a workmanlike and diligent manner, or shall fail in any other respect to carry out the terms of said contract, then the board of supervisors shall cause written notice to be served upon said contractor, specifying the particular areas in which he or she is not fulfilling the requirements of said contract, and if for a period of three days thereafter said contractor shall fail to remedy the defects set forth in said notice, and to prosecute said work thereafter with diligence and in a workmanlike manner, then the board of supervisors shall either take over said contract and complete said work, or shall relet said contract, without the necessity of advertising for bids, and cause the work to be completed, and shall declare the bond given by said contractor forfeited and order suit brought thereon, and all moneys collected therefrom shall be paid into the interest and sinking fund of the district.

If the contractor fails to pay for any labor or material furnished for or in the doing of said work by any person, such person may within 90 days after the making of the final order hereinafter referred to, file with the county treasurer a verified statement of such facts, and such person may thereafter, within six months after the filing of such statement, bring an action on said bond in his or her own name, or if the person has assigned his or her claim, the action may be brought in the name of the assignee; provided, however, that the right of the county to recover on said bond shall be superior to the rights of any such person to recover thereon; provided, moreover, that if such statement shall be filed before the expiration of 20 days from the making of such final order, then the county treasurer shall be authorized to withhold from the contractor sufficient of the bonds, issued as herein provided, to satisfy said claim, and costs, which can reasonably be anticipated.

(a) As soon as in good faith may be done, there shall be filed with the clerk of the board of supervisors a declaration that the work has been completed according to the contract, together with an itemized statement of all the incidental costs and expenses of the work and the cost of the proceedings inclusive of the estimated cost of publishing the notice of final hearing hereinafter provided. The aggregate amount of such items shall be stated, and also the amount due under the contract; and also the gross sum for a bond issue representing the entire amount thereof, as claimed by the contractor. The said declaration and statements shall be signed and verified by the engineer of construction and by the contractor or by some person cognizant of the facts signing on his or her behalf and stating why he or she, instead of the contractor, so signs and verifies. Either signer may except from his or her signature and verification any amount or item to which he or she does not assent. The chairman of the board of supervisors shall fix a time for a hearing, to be known as the final hearing, for the purpose of determining whether the work shall be accepted as completed according to the contract, and for determining the aggregate amount for which bonds shall be issued representing the total costs of the work and the incidental costs and expenses of the work and the proceedings, all of which have been charged to and are payable by the contractor. Notice of such hearing shall be given and may, in form, and shall, in substance be as follows (filling the blanks):

NOTICE OF FINAL HEARING. In the matter of Drainage District Improvement No. ____. Notice is hereby given that a final hearing in the above named matter will be had at the hour of ____m. on the ____ day of ____, 19__, at the chamber of the Board of Supervisors of the County of ____, State of California, for the purpose of determining whether the work done under the contract with _________________________________________________ under Resolution of Intention No. ____ in Drainage Improvement District No. ____ of the County of ____ shall be accepted as being performed according to the contract, and for determining the aggregate amount for which bonds shall issue representing the cost of such work, including the incidental costs and expenses of the work and the proceedings, of which a statement has been filed with the Clerk of said Board of Supervisors of the County of ____ to which statement the attention of all persons interested is hereby directed. _____________________________________ _____ of the Board of Supervisors of the County of ________ Attest: _____________________________________ Clerk of said Board of Supervisors

(b) Such notice shall be signed by the chairman of the board of supervisors and attested by the clerk of the board of supervisors and published by at least two insertions in the newspaper or newspapers designated in the resolution of intention, and a copy or copies thereof posted and kept posted for two days at or near the chamber door of the board of supervisors, the first day of such publication and that of such posting (they need not be simultaneous) to be not less than five days before the day in said notice specified for the hearing. Proof of such publication shall be made by affidavit or affidavits, and the same shall be filed. If a quorum is not present at the time specified in the notice of the hearing, the members of the board then present may continue the hearing; and at all stages the hearing may, by resolution entered in the minutes, be continued from time to time. At any time before the day in said notice specified for the hearing any property owner may file written objection to the acceptance of the work on the ground that the work has not been completed or done according to the contract, specifying in ordinary language the particulars in which the work has not been so completed or done. Any person interested in the proceeding, as of the interest of the contractor, shall be presumed to take issue with such objection and shall be heard accordingly. Questions as to the incidental costs or expenses of the work or the proceedings may be raised orally by any property owner within the district. Evidence may be adduced as to any of the matters to be determined, and in such order as the board may direct. If, when the matter has been fully heard, whether under, or in the absence of, objections, the board of supervisors is of the opinion that the work has not been completed or done according to the contract, it shall in writing specify what must be done in order to complete the work, and shall, by an order or resolution to be entered in its minutes, continue the further hearing of the whole matter to a specified day, expressly stating that such continuance is for the purpose of enabling the contractor to complete his or her contract. On said continued hearing, the objections to the work filed before the day of the first hearing shall continue in force, and evidence shall be received, if offered, as to what has been done by way of completing the contract in the particulars specified in the order of the board on the said continuance of the hearing. If, upon such continued hearing, the board is of the opinion that the work is still uncompleted in the particulars as to which it was ordered to be completed, it shall be discretional with said board to order or refuse a second continuance of the hearing. If the board does order such second continuance, it shall be ordered in the same manner, with like effect as upon the first continuance, and likewise as to a second and any other or further continuance. Objections to any item of incidental costs and expenses shall pend and be heard on said day, or at any continued hearing had as above in this section provided. Every continuance of said hearing for the purpose of enabling the contractor to complete his or her contract or the work shall continue or revive such powers in the proceeding as the board of supervisors had under the provisions of this act, at the time of the filing of the contractor's declaration that the work was completed, as above provided, and also operate to extend the time for the completion of said contract in such manner that its completion within the time to which the hearing is continued, shall be as valid performance of such contract as if completed at the time of filing such declaration.

Whenever upon the hearing in Section 21011 provided, whether original or continued, the board shall be of the opinion that the work has been completed and done according to the contract, said board shall by resolution to be entered upon its minutes so declare, and shall in said resolution declare that the work is accepted and the amount of the contract price for doing the work and the amount of the incidental costs and expenses of the work and proceedings and the aggregate amount for which bonds are to be issued and shall make final order that bonds be issued therefor as hereinafter provided. The decision and determination of said board at the hearing provided for in Section 21011 shall, as to all matters determined at said hearing and as to all errors, informalities, irregularities, or omissions which said board might have avoided or remedied during the progress of the proceedings, or which it can at that time remedy, be final and conclusive upon all persons entitled to be heard before said board on said matters, and no assessment or tax levied for the payment of the bonds, and the interest thereon, to be issued for said work and expenses, shall be held invalid by any court for any error, informality, omission, or other defect in the proceedings where the resolution of intention has been actually published as in this act provided, before the said board shall have ordered the work to be done.

(a) Whenever any court of competent jurisdiction shall determine that any contract purporting to have been made, or any proceedings, steps or actions purporting to have been taken, or any bond or bonds issued under this act, is or are void, invalid or unenforceable, or shall for any cause enjoin the issuance of any bonds proposed to be issued under this act, or shall enjoin the performance of the work or improvement or the making of an assessment upon the lands within the district, or shall quiet title of any lot or parcel of land against the lien of any such bonds or assessments, said court shall also determine whether any work has been done or improvements have been made in good faith by any contractor under said invalid contract or proceeding or under any contract pursuant to which bonds were issued, or are proposed to be issued, and if so what part, if any, of said work or improvement was of such kind as might have been ordered under the provisions of this act. If the court shall find that any work or improvement of such kind as might have been ordered under this act has been done or performed in good faith by any contractor under or in pursuance to a contract purporting to have been made under the provisions of this act, then the said court shall direct the board of supervisors, who conducted the proceeding, to take proceedings as in this section provided for the issuing of new bonds to cover the reasonable value of said work or improvement. The board of supervisors may also without any decree of court, upon written application of a contractor, who may have done or performed in good faith any work or improvement pursuant to a contract purporting to have been made under this act, or of the assignee of such contractor, after the work or improvement shall have been accepted, determine that the proceeding authorizing said work or improvement or the acceptance thereof are for any reason invalid, and direct that new proceedings be initiated as provided in this section for the issuance of bonds to cover the reasonable value of so much of said work or improvement as is of a kind which might have been ordered and performed under this act.
  (b) It is hereby declared to be the true intent and meaning of this section to make the cost and expenses of all work or improvements made or to be made through an attempted compliance with the provisions of this act payable by the lands benefited or to be benefited by such work or improvement, by the issuance of new bonds to defray the expenses thereof, but that all payments of principal or interest on void or unenforceable assessments or bonds shall be credited to the property against which they were assessed or attempted to be assessed.
  (c) Upon a decree of court or an order of the board of supervisors having been made as above provided, said board shall cause to be made by the county surveyor, or some other county officer or by some other competent person appointed by it for that purpose, a report for a proposed new bond issue. Said report shall set forth a description of the work or improvement done or performed by said contractor or his or her assignee pursuant to the contract referred to in said decree of court or order of the board, which work or improvement has been found by said court or said board to be of such kind as might have been ordered under this act, and shall state the reasonable value of said work or improvement (which shall not exceed the aggregate of the original contract price for said work or improvement, together with the incidental expenses of the original proceedings for said work or improvement, and if the work or improvement has been accepted it shall also include interest upon said total from the date of the original acceptance of said work or improvement by the board of supervisors at the same rate proposed for the new bond issue). Said report shall contain a description of the district benefited by said improvement. In the event that the original proceedings contemplated an assessment upon lands within the district in accordance with the provisions of Section 12 of Chapter 354 of the Statutes of 1919 of this act then said report shall contain a proposed assessment of each separate parcel of land within the district benefited by said improvement, which assessment shall conform as nearly as may be with the report required by Section 12 of Chapter 354 of the Statutes of 1919 hereof, and shall be accompanied by a map or plat as therein provided.
  (d) In the event any payments have been made on the principal or interest of any bonds previously issued, which have been declared invalid, by the payment of any special assessment taxes, by the owners of land within the assessment district, the amounts of such payments shall be ascertained and deducted from the amount for which new bonds are to be issued under this section and said report shall set forth the amount of the payments made and state that a credit or offset is to be made for said amount in the issuance of such new bonds.
  (e) Upon the filing of said report the board of supervisors shall fix a day, hour, and place, for a hearing thereon, which time shall not be less than 20 days after the time of filing said report, and shall direct the clerk of the board to give notice of the filing of the report and of the hearing. The clerk shall thereupon cause notice of the time and place of such hearing to be given by publication in the newspaper designated in the resolution of intention by at least two insertions therein not more than eight days apart. When, before the day of hearing specified in said notice, 20 days, including Sundays and holidays, have elapsed since the first publication of said notice the board of supervisors shall have acquired power to proceed with such hearing. Said notice shall state the fact of the filing of said report and shall contain (a) a general description of the location and extent of the work or improvement sufficient to identify the same; (b) a description of the district benefited by said work or improvement as contained in said report; (c) either a statement that said report contains an assessment proposed to be levied on each separate parcel of land within said district to retire the bonds proposed to be issued and to pay the interest thereon for each year during which said assessment shall continue, or a description of the zones, if any, into which such district is to be divided, and a statement of the percentage to be raised from the land in each of such zones each year for the payment of the installments of principal and interest on the bonds proposed to be issued; (d) a statement of the reasonable value of the work or improvement together with the incidental expenses of the original proceedings and the amount of interest, if any, upon said total; (e) the amount of the payments of principal or interest made upon the bonds previously issued, if any, and the credit or offset to be deducted in the issuance of such new bonds; (f) the total amount of the proposed new bond issue and a description of the bonds proposed to be issued, which bonds shall be as nearly as possible the same as to maturity, rate of interest, and other particulars as the bonds described in the original proceedings for said work or improvement, correcting any errors or irregularities, that may have existed in the bonds in said original proceedings.
  (f) Said notice shall advise all persons interested that at the time fixed for the hearing of the report or at the time to which the hearing may be continued any person may appear and be heard upon any of the matters set forth in the report. The board of supervisors shall have power to confirm said report and to revise, correct, or modify the same in respect to any of the matters therein contained either as to the amount or character of the work or improvement done or the reasonable value thereof, the extent of the district to be benefited thereby, the amount of assessment levied upon any particular parcel of land within such district, the zones, if any, into which said district is divided, the percentages to be raised in each or any of said zones, the amount of deductions or offsets by reason of payments of principal or interest upon previously issued bonds, the amount of the bonds proposed to be issued, the maturity or rate of the interest thereon, or as to any other matter set forth in said report.
  (g) At the conclusion of the hearing the board of supervisors shall adopt a resolution declaring its findings and determinations in the matter, which shall be final and conclusive upon all persons in all proceedings as to all matters so found and determined. If no changes are made in the matters set forth in said report it shall be sufficient in said resolution to declare that said report is confirmed and that bonds shall be issued as therein provided, but if any changes are made such changes shall be set forth and it may be declared that said report is confirmed as so modified by the changes set forth. The clerk of the board of supervisors shall transmit an attested copy of said resolution to the treasurer and upon receipt of the same the treasurer shall immediately proceed to issue the bonds as therein ordered, which said bonds shall be dated as of the date of the adoption of said resolution. Said bonds shall be issued and signed in all respects by the same officers and in the same manner and form as if issued pursuant to the provisions of Section 16 of Chapter 354 of the Statutes of 1919. Said bonds by their issuance shall be conclusive evidence of the regularity of all proceedings prior thereto under this act and after the same are issued no assessment or tax levied or collected for the purpose of paying the principal or interest on said bonds shall be held illegal or set aside or refunded by reason of any error, informality, irregularity, omission, or defect in any of the proceedings prior to the issuance of said bonds, nor shall any action or proceedings be thereafter commenced or maintained to cancel or set aside said bonds or prevent the payment thereof or the levy, collection or enforcement of any assessment or taxes for such payment.