Bill Text: CA SB189 | 2009-2010 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Mechanics liens.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2010-09-30 - Chaptered by Secretary of State. Chapter 697, Statutes of 2010. [SB189 Detail]
Download: California-2009-SB189-Amended.html
Bill Title: Mechanics liens.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2010-09-30 - Chaptered by Secretary of State. Chapter 697, Statutes of 2010. [SB189 Detail]
Download: California-2009-SB189-Amended.html
BILL NUMBER: SB 189 AMENDED
BILL TEXT
AMENDED IN SENATE JANUARY 14, 2010
AMENDED IN SENATE DECEMBER 15, 2009
INTRODUCED BY Senator Lowenthal
FEBRUARY 18, 2009
An act to amend Sections 7034, 7071.5, 7071.10, 7159, 7159.1,
7159.5, 7159.14, 7164, 8513, and 17577.5 of the Business and
Professions Code, to amend Sections 1917.166, 1917.615, 3059, 3060,
3319, 3320, and 3321 of, to add Title 1.4C (commencing with
Section 1749.70) to Part 4 of Division 3 of, to add Part 6
(commencing with Section 8000) to Division 4 of, to repeal Chapter 8
(commencing with Section 3081.1) of Title 14 of Part 4 of Division 3
of, and to repeal Title 15 (commencing with Section 3082)
of Part 4 of Division 3 of, and to repeal Part 8 (commencing
with Section 7100) of Division 4 of, the the
Civil Code, to amend Sections 86, 410.42, 708.760, 1203.61, 1281.5,
and 1800 of the Code of Civil Procedure, to amend Sections 17307.5
and 81133.5 of the Education Code, to amend Sections 7480, 14975,
15820.105, 27287, 66499.2, and 66499.7 of, and to repeal Section
27361.9 of, the Government Code, to amend Sections 5463, 16017.5,
19825, and 34218 of the Health and Safety Code, to amend Section
11751.82 of the Insurance Code, to amend Section 218.5 of the Labor
Code, to amend Sections 4107.7, 7103, 10222, 10822, 20104, 20134,
20461, 20496, 20682.5, 20688.4, 20813, 20815.3, 20991, 21061, 21071,
21081, 21091, 21101, 21111, 21121, 21131, 21141, 21151, 21161, 21171,
21181, 21196, 21212, 21231, 21241, 21251, 21261, 21271, 21311,
21321, 21331, 21341, 21351, 21361, 21371, 21381, 21391, 21401, 21411,
21421, 21431, 21441, 21451, 21461, 21491, 21501, 21511, 21521,
21531, 21541, 21572, 21581, 21591, 21601, 21622, and 21631 of, the
Public Contract Code, and to amend Section 136.5 of the Streets and
Highways Code, relating to mechanics liens.
LEGISLATIVE COUNSEL'S DIGEST
SB 189, as amended, Lowenthal. Mechanics liens.
The California Constitution provides that mechanics, persons
furnishing materials, artisans, and laborers of every class have a
lien upon the property upon which they have bestowed labor or
furnished material for the value of the labor done and material
furnished. The California Constitution also requires the Legislature
to provide, by law, for the speedy and efficient enforcement of those
liens.
Existing statutory law governs works of improvement, including
design professionals' liens and mechanics liens. These provisions
govern the conditions required to enforce a lien and for a mechanic's
lien to be deemed valid, and define the use of the terms
"materialman" and "original contractor" for purposes of the mechanics'
lien law.
This bill would revise and recast those statutory provisions and
make both substantive and technical changes. The bill would also
replace the terms "original contractor" and "materialman" with the
terms "direct contractor" and "material supplier," respectively. The
bill would specifically authorize the submission of notices by means
of electronic communication with respect to mechanics liens. The bill
would also set forth additional requirements governing the form of
security for bonds and would set forth the security required for
large projects with a contract price of greater than $1,000,000 for
the owner of a less than fee interest in property or $5,000,000 for
the owner of the fee interest in the property.
The bill would enact separate provisions governing private works
of improvement and public works of improvement. The bill would revise
and recast provisions governing design professionals' liens,
mechanics liens, notices of cessation, payment bonds, and retention
payments. The bill would make related and conforming changes. Because
the bill would expand the class of persons who are required to
submit affidavits, the bill would expand the scope of the crime of
perjury, thereby imposing a state-mandated local program. The bill
would also provide that any other act enacted during the 2010
calendar year that takes effect on or before January 1, 2011, and
that amends, adds, or repeals any section that is amended, added, or
repealed by this act, as specified, shall prevail over this act.
The bill would become operative on January 1, 2012.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7034 of the Business and Professions Code is
amended to read:
7034. (a) No contractor that is required to be licensed under
this chapter shall insert in any contract, or be a party, with a
subcontractor that is licensed under this chapter to any contract
which contains, a provision, clause, covenant, or agreement which is
void or unenforceable under Section 2782 of the Civil Code.
(b) No contractor that is required to be licensed under this
chapter shall require a waiver of lien rights from any subcontractor,
employee, or supplier in violation of Section 8160 or 9250 of the
Civil Code.
SEC. 2. Section 7071.5 of the Business and Professions Code is
amended to read:
7071.5. The contractor's bond required by this article shall be
executed by an admitted surety in favor of the State of California,
in a form acceptable to the registrar and filed with the registrar by
the licensee or applicant. The contractor's bond shall be for the
benefit of the following:
(a) A homeowner contracting for home improvement upon the
homeowner's personal family residence damaged as a result of a
violation of this chapter by the licensee.
(b) A property owner contracting for the construction of a
single-family dwelling who is damaged as a result of a violation of
this chapter by the licensee. That property owner shall only recover
under this subdivision if the single-family dwelling is not intended
for sale or offered for sale at the time the damages were incurred.
(c) A person damaged as a result of a willful and deliberate
violation of this chapter by the licensee, or by the fraud of the
licensee in the execution or performance of a construction contract.
(d) An employee of the licensee damaged by the licensee's failure
to pay wages.
(e) A person or entity, including a laborer described in
subdivision (b) of Section 8020 or subdivision (b) of Section 9012 of
the Civil Code, to which a portion of the compensation of an
employee of a licensee is paid by agreement with that employee or the
collective bargaining agent of that employee, damaged as the result
of the licensee's failure to pay fringe benefits for its employees,
including, but not limited to, employer payments described in Section
1773.1 of the Labor Code and regulations thereunder (without regard
to whether the work was performed on a private or public work).
Damage to a person or entity under this subdivision is limited to
actual employer payments required to be made on behalf of employees
of the licensee, as part of the overall compensation of those
employees, which the licensee fails to pay.
SEC. 3. Section 7071.10 of the Business and Professions Code is
amended to read:
7071.10. The qualifying individual's bond required by this
article shall be executed by an admitted surety insurer in favor of
the State of California, in a form acceptable to the registrar and
filed with the registrar by the qualifying individual. The qualifying
individual's bond shall not be required in addition to the
contractor's bond when, as set forth under paragraph (1) of
subdivision (b) of Section 7068, the individual proprietor has
qualified for the license by his or her personal appearance, or the
qualifier is a general partner as set forth under paragraph (2) of
subdivision (b) of Section 7068. The qualifying individual's bond
shall be for the benefit of the following persons:
(a) A homeowner contracting for home improvement upon the
homeowner's personal family residence damaged as a result of a
violation of this chapter by the licensee.
(b) A property owner contracting for the construction of a
single-family dwelling who is damaged as a result of a violation of
this chapter by the licensee. That property owner shall only recover
under this subdivision if the single-family dwelling is not intended
for sale or offered for sale at the time the damages were incurred.
(c) A person damaged as a result of a willful and deliberate
violation of this chapter by the licensee, or by the fraud of the
licensee in the execution or performance of a construction contract.
(d) An employee of the licensee damaged by the licensee's failure
to pay wages.
(e) A person or entity, including a laborer described in
subdivision (b) of Section 8020 or subdivision (b) of Section 9012 of
the Civil Code, to which a portion of the compensation of an
employee of a licensee is paid by agreement with that employee or the
collective bargaining agent of that employee, that is damaged as the
result of the licensee's failure to pay fringe benefits for its
employees including, but not limited to, employer payments described
in Section 1773.1 of the Labor Code and regulations adopted
thereunder (without regard to whether the work was performed on a
public or private work). Damage to a person or entity under this
subdivision is limited to employer payments required to be made on
behalf of employees of the licensee, as part of the overall
compensation of those employees, which the licensee fails to pay.
SEC. 4. Section 7159 of the Business and Professions Code is
amended to read:
7159. (a) (1) This section identifies the projects for which a
home improvement contract is required, outlines the contract
requirements, and lists the items that shall be included in the
contract, or may be provided as an attachment.
(2) This section does not apply to service and repair contracts
that are subject to Section 7159.10, if the contract for the
applicable services complies with Sections 7159.10 to 7159.14,
inclusive.
(3) This section does not apply to the sale, installation, and
servicing of a fire alarm sold in conjunction with an alarm system,
as defined in subdivision (n) of Section 7590.1, if all costs
attributable to making the fire alarm system operable, including sale
and installation costs, do not exceed five hundred dollars ($500),
and the licensee complies with the requirements set forth in Section
7159.9.
(4) This section does not apply to any costs associated with
monitoring a burglar or fire alarm system.
(5) Failure by the licensee, his or her agent or salesperson, or
by a person subject to be licensed under this chapter, to provide the
specified information, notices, and disclosures in the contract, or
to otherwise fail to comply with any provision of this section, is
cause for discipline.
(b) For purposes of this section, "home improvement contract"
means an agreement, whether oral or written, or contained in one or
more documents, between a contractor and an owner or between a
contractor and a tenant, regardless of the number of residence or
dwelling units contained in the building in which the tenant resides,
if the work is to be performed in, to, or upon the residence or
dwelling unit of the tenant, for the performance of a home
improvement, as defined in Section 7151, and includes all labor,
services, and materials to be furnished and performed thereunder, if
the aggregate contract price specified in one or more improvement
contracts, including all labor, services, and materials to be
furnished by the contractor, exceeds five hundred dollars ($500).
"Home improvement contract" also means an agreement, whether oral or
written, or contained in one or more documents, between a
salesperson, whether or not he or she is a home improvement
salesperson, and an owner or a tenant, regardless of the number of
residence or dwelling units contained in the building in which the
tenant resides, which provides for the sale, installation, or
furnishing of home improvement goods or services.
(c) In addition to the specific requirements listed under this
section, every home improvement contract and any person subject to
licensure under this chapter or his or her agent or salesperson shall
comply with all of the following:
(1) The writing shall be legible.
(2) Any printed form shall be readable. Unless a larger typeface
is specified in this article, text in any printed form shall be in at
least 10-point typeface and the headings shall be in at least
10-point boldface type.
(3) (A) Before any work is started, the contractor shall give the
buyer a copy of the contract signed and dated by both the contractor
and the buyer. The buyer's receipt of the copy of the contract
initiates the buyer's rights to cancel the contract pursuant to
Sections 1689.5 to 1689.14, inclusive, of the Civil Code.
(B) The contract shall contain on the first page, in a typeface no
smaller than that generally used in the body of the document, both
of the following:
(i) The date the buyer signed the contract.
(ii) The name and address of the contractor to which the
applicable "Notice of Cancellation" is to be mailed, immediately
preceded by a statement advising the buyer that the "Notice of
Cancellation" may be sent to the contractor at the address noted on
the contract.
(4) A statement that, upon satisfactory payment being made for any
portion of the work performed, the contractor, prior to any further
payment being made, shall furnish to the person contracting for the
home improvement or swimming pool work a full and unconditional
release from any claim or mechanic's lien pursuant to Section 8410 of
the Civil Code for that portion of the work for which payment has
been made.
(5) A change-order form for changes or extra work shall be
incorporated into the contract and shall become part of the contract
only if it is in writing and signed by the parties prior to the
commencement of any work covered by a change order.
(6) The contract shall contain, in close proximity to the
signatures of the owner and contractor, a notice stating that the
owner or tenant has the right to require the contractor to have a
performance and payment bond.
(7) If the contract provides for a contractor to furnish joint
control, the contractor shall not have any financial or other
interest in the joint control.
(8) The provisions of this section are not exclusive and do not
relieve the contractor from compliance with any other applicable
provision of law.
(d) A home improvement contract and any changes to the contract
shall be in writing and signed by the parties to the contract prior
to the commencement of work covered by the contract or an applicable
change order and, except as provided in paragraph (8) of subdivision
(a) of Section 7159.5, shall include or comply with all of the
following:
(1) The name, business address, and license number of the
contractor.
(2) If applicable, the name and registration number of the home
improvement salesperson that solicited or negotiated the contract.
(3) The following heading on the contract form that identifies the
type of contract in at least 10-point boldface type: "Home
Improvement."
(4) The following statement in at least 12-point boldface type:
"You are entitled to a completely filled in copy of this agreement,
signed by both you and the contractor, before any work may be
started."
(5) The heading: "Contract Price," followed by the amount of the
contract in dollars and cents.
(6) If a finance charge will be charged, the heading: "Finance
Charge," followed by the amount in dollars and cents. The finance
charge is to be set out separately from the contract amount.
(7) The heading: "Description of the Project and Description of
the Significant Materials to be Used and Equipment to be Installed,"
followed by a description of the project and a description of the
significant materials to be used and equipment to be installed. For
swimming pools, the project description required under this paragraph
also shall include a plan and scale drawing showing the shape, size,
dimensions, and the construction and equipment specifications.
(8) If a downpayment will be charged, the details of the
downpayment shall be expressed in substantially the following form,
and shall include the text of the notice as specified in subparagraph
(C):
(A) The heading: "Downpayment."
(B) A space where the actual downpayment appears.
(C) The following statement in at least 12-point boldface type:
"THE DOWNPAYMENT MAY NOT EXCEED $1,000 OR 10 PERCENT OF THE
CONTRACT PRICE, WHICHEVER IS LESS."
(9) If payments, other than the downpayment, are to be made before
the project is completed, the details of these payments, known as
progress payments, shall be expressed in substantially the following
form, and shall include the text of the statement as specified in
subparagraph (C):
(A) A schedule of progress payments shall be preceded by the
heading: "Schedule of Progress Payments."
(B) Each progress payment shall be stated in dollars and cents and
specifically reference the amount of work or services to be
performed and materials and equipment to be supplied.
(C) The section of the contract reserved for the progress payments
shall include the following statement in at least 12-point boldface
type:
"The schedule of progress payments must specifically describe each
phase of work, including the type and amount of work or services
scheduled to be supplied in each phase, along with the amount of each
proposed progress payment. IT IS AGAINST THE LAW FOR A CONTRACTOR TO
COLLECT PAYMENT FOR WORK NOT YET COMPLETED, OR FOR MATERIALS NOT YET
DELIVERED. HOWEVER, A CONTRACTOR MAY REQUIRE A DOWNPAYMENT."
(10) The contract shall address the commencement of work to be
performed in substantially the following form:
(A) A statement that describes what constitutes substantial
commencement of work under the contract.
(B) The heading: "Approximate Start Date."
(C) The approximate date on which work will be commenced.
(11) The estimated completion date of the work shall be referenced
in the contract in substantially the following form:
(A) The heading: "Approximate Completion Date."
(B) The approximate date of completion.
(12) If applicable, the heading: "List of Documents to be
Incorporated into the Contract," followed by the list of documents
incorporated into the contract.
(13) The heading: "Note about Extra Work and Change Orders,"
followed by the following statement:
"Extra Work and Change Orders become part of the contract once the
order is prepared in writing and signed by the parties prior to the
commencement of work covered by the new change order. The order must
describe the scope of the extra work or change, the cost to be added
or subtracted from the contract, and the effect the order will have
on the schedule of progress payments."
(e) Except as provided in paragraph (8) of subdivision (a) of
Section 7159.5, all of the following notices shall be provided to the
owner as part of the contract form as specified or, if otherwise
authorized under this subdivision, may be provided as an attachment
to the contract:
(1) A notice concerning commercial general liability insurance.
This notice may be provided as an attachment to the contract if the
contract includes the following statement: "A notice concerning
commercial general liability insurance is attached to this contract."
The notice shall include the heading "Commercial General Liability
Insurance (CGL)," followed by whichever of the following statements
is both relevant and correct:
(A) "(The name on the license or "This contractor') does not carry
commercial general liability insurance."
(B) "(The name on the license or "This contractor') carries
commercial general liability insurance written by (the insurance
company). You may call (the insurance company) at __________ to check
the contractor's insurance coverage."
(C) "(The name on the license or "This contractor') is
self-insured."
(2) A notice concerning workers' compensation insurance. This
notice may be provided as an attachment to the contract if the
contract includes the statement: "A notice concerning workers'
compensation insurance is attached to this contract." The notice
shall include the heading "Workers' Compensation Insurance" followed
by whichever of the following statements is correct:
(A) "(The name on the license or "This contractor') has no
employees and is exempt from workers' compensation requirements."
(B) "(The name on the license or "This contractor') carries
workers' compensation insurance for all employees."
(3) A notice that provides the buyer with the following
information about the performance of extra or change-order work:
(A) A statement that the buyer may not require a contractor to
perform extra or change-order work without providing written
authorization prior to the commencement of work covered by the new
change order.
(B) A statement informing the buyer that extra work or a change
order is not enforceable against a buyer unless the change order also
identifies all of the following in writing prior to the commencement
of work covered by the new change order:
(i) The scope of work encompassed by the order.
(ii) The amount to be added or subtracted from the contract.
(iii) The effect the order will make in the progress payments or
the completion date.
(C) A statement informing the buyer that the contractor's failure
to comply with the requirements of this paragraph does not preclude
the recovery of compensation for work performed based upon legal or
equitable remedies designed to prevent unjust enrichment.
(4) A notice with the heading "Mechanics Lien Warning" written as
follows:
"MECHANICS LIEN WARNING:
Anyone who helps improve your property, but who is not paid, may
record what is called a mechanics lien on your property. A mechanics
lien is a claim, like a mortgage or home equity loan, made against
your property and recorded with the county recorder.
Even if you pay your contractor in full, unpaid subcontractors,
suppliers, and laborers who helped to improve your property may
record mechanics liens and sue you in court to foreclose the lien. If
a court finds the lien is valid, you could be forced to pay twice or
have a court officer sell your home to pay the lien. Liens can also
affect your credit.
To preserve their right to record a lien, each subcontractor and
material supplier must provide you with a document called a
'Preliminary Notice.' This notice is not a lien. The purpose of the
notice is to let you know that the person who sends you the notice
has the right to record a lien on your property if he or she is not
paid.
BE CAREFUL. The Preliminary Notice can be sent up to 20 days
after the subcontractor starts work or the supplier provides
material. This can be a big problem if you pay your contractor before
you have received the Preliminary Notices.
You will not get Preliminary Notices from your prime contractor or
from laborers who work on your project. The law assumes that you
already know they are improving your property.
PROTECT YOURSELF FROM LIENS. You can protect yourself from liens
by getting a list from your contractor of all the subcontractors and
material suppliers that work on your project. Find out from your
contractor when these subcontractors started work and when these
suppliers delivered goods or materials. Then wait 20 days, paying
attention to the Preliminary Notices you receive.
PAY WITH JOINT CHECKS. One way to protect yourself is to pay with
a joint check. When your contractor tells you it is time to pay for
the work of a subcontractor or supplier who has provided you with a
Preliminary Notice, write a joint check payable to both the
contractor and the subcontractor or material supplier.
For other ways to prevent liens, visit CSLB's Internet Web site at
www.cslb.ca.gov or call CSLB at 800-321-CSLB (2752).
REMEMBER, IF YOU DO NOTHING, YOU RISK HAVING A LIEN PLACED ON YOUR
HOME. This can mean that you may have to pay twice, or face the
forced sale of your home to pay what you owe."
(5) The following notice shall be provided in at least 12-point
typeface:
"Information about the Contractors' State License Board (CSLB):
CSLB is the state consumer protection agency that licenses and
regulates construction contractors.
Contact CSLB for information about the licensed contractor you are
considering, including information about disclosable complaints,
disciplinary actions, and civil judgments that are reported to CSLB.
Use only licensed contractors. If you file a complaint against a
licensed contractor within the legal deadline (usually four years),
CSLB has authority to investigate the complaint. If you use an
unlicensed contractor, CSLB may not be able to help you resolve your
complaint. Your only remedy may be in civil court, and you may be
liable for damages arising out of any injuries to the unlicensed
contractor or the unlicensed contractor's employees.
For more information:
Visit CSLB's Internet Web site at www.cslb.ca.gov
Call CSLB at 800-321-CSLB (2752)
Write CSLB at P.O. Box 26000, Sacramento, CA 95826."
(6) (A) The notice set forth in subparagraph (B) and entitled
"Three-Day Right to Cancel," shall be provided to the buyer unless
the contract is:
(i) Negotiated at the contractor's place of business.
(ii) Subject to the "Seven-Day Right to Cancel," as set forth in
paragraph (7).
(iii) Subject to licensure under the Alarm Company Act (Chapter
11.6 (commencing with Section 7590)), provided the alarm company
licensee complies with Sections 1689.5, 1689.6, and 1689.7 of the
Civil Code, as applicable.
(B) "Three-Day Right to Cancel
You, the buyer, have the right to cancel this contract within
three business days. You may cancel by e-mailing, mailing, faxing, or
delivering a written notice to the contractor at the contractor's
place of business by midnight of the third business day after you
received a signed and dated copy of the contract that includes this
notice. Include your name, your address, and the date you received
the signed copy of the contract and this notice.
If you cancel, the contractor must return to you anything you paid
within 10 days of receiving the notice of cancellation. For your
part, you must make available to the contractor at your residence, in
substantially as good condition as you received them, goods
delivered to you under this contract or sale. Or, you may, if you
wish, comply with the contractor's instructions on how to return the
goods at the contractor's expense and risk. If you do make the goods
available to the contractor and the contractor does not pick them up
within 20 days of the date of your notice of cancellation, you may
keep them without any further obligation. If you fail to make the
goods available to the contractor, or if you agree to return the
goods to the contractor and fail to do so, then you remain liable for
performance of all obligations under the contract."
(C) The "Three-Day Right to Cancel" notice required by this
paragraph shall comply with all of the following:
(i) The text of the notice is at least 12-point boldface type.
(ii) The notice is in immediate proximity to a space reserved for
the owner's signature.
(iii) The owner acknowledges receipt of the notice by signing and
dating the notice form in the signature space.
(iv) The notice is written in the same language, e.g., Spanish, as
that principally used in any oral sales presentation.
(v) The notice may be attached to the contract if the contract
includes, in at least 12-point boldface type, a checkbox with the
following statement: "The law requires that the contractor give you a
notice explaining your right to cancel. Initial the checkbox if the
contractor has given you a "Notice of the Three-Day Right to Cancel.'
"
(vi) The notice shall be accompanied by a completed form in
duplicate, captioned "Notice of Cancellation," which also shall be
attached to the agreement or offer to purchase and be easily
detachable, and which shall contain the following statement written
in the same language, e.g., Spanish, as used in the contract:
""Notice of Cancellation''
/enter date of transaction/
______________________________
(Date)
"You may cancel this transaction, without any penalty or
obligation, within three business days from the above date.
If you cancel, any property traded in, any payments made by you
under the contract or sale, and any negotiable instrument executed by
you will be returned within 10 days following receipt by the seller
of your cancellation notice, and any security interest arising out of
the transaction will be canceled.
If you cancel, you must make available to the seller at your
residence, in substantially as good condition as when received, any
goods delivered to you under this contract or sale, or you may, if
you wish, comply with the instructions of the seller regarding the
return shipment of the goods at the seller's expense and risk.
If you do make the goods available to the seller and the seller
does not pick them up within 20 days of the date of your notice of
cancellation, you may retain or dispose of the goods without any
further obligation. If you fail to make the goods available to the
seller, or if you agree to return the goods to the seller and fail to
do so, then you remain liable for performance of all obligations
under the contract."
To cancel this transaction, mail or deliver a
signed and dated copy of this cancellation
notice, or any other written notice, or send a
telegram
to_____________________________________________,
/name of seller/
at______________________________________________
/address of seller's place of
business/
not later than midnight of_____________________.
(Date)
I hereby cancel this transaction. _____________
(Date)
____________________________________
(Buyer's signature)
(7) (A) The following notice entitled "Seven-Day Right to Cancel"
shall be provided to the buyer for any contract that is written for
the repair or restoration of residential premises damaged by any
sudden or catastrophic event for which a state of emergency has been
declared by the President of the United States or the Governor, or
for which a local emergency has been declared by the executive
officer or governing body of any city, county, or city and county:
"Seven-Day Right to Cancel
You, the buyer, have the right to cancel this contract within
seven business days. You may cancel by e-mailing, mailing, faxing, or
delivering a written notice to the contractor at the contractor's
place of business by midnight of the seventh business day after you
received a signed and dated copy of the contract that includes this
notice. Include your name, your address, and the date you received
the signed copy of the contract and this notice.
If you cancel, the contractor must return to you anything
you paid within 10 days of receiving the notice of cancellation. For
your part, you must make available to the contractor at your
residence, in substantially as good condition as you received them,
goods delivered to you under this contract or sale. Or, you may, if
you wish, comply with the contractor's instructions on how to return
the goods at the contractor's expense and risk. If you do make the
goods available to the contractor and the contractor does not pick
them up within 20 days of the date of your notice of cancellation,
you may keep them without any further obligation. If you fail to make
the goods available to the contractor, or if you agree to return the
goods to the contractor and fail to do so, then you remain liable
for performance of all obligations under the contract."
(B) The "Seven-Day Right to Cancel" notice required by this
subdivision shall comply with all of the following:
(i) The text of the notice is at least 12-point boldface type.
(ii) The notice is in immediate proximity to a space reserved for
the owner's signature.
(iii) The owner acknowledges receipt of the notice by signing and
dating the notice form in the signature space.
(iv) The notice is written in the same language, e.g., Spanish, as
that principally used in any oral sales presentation.
(v) The notice may be attached to the contract if the contract
includes, in at least 12-point boldface type, a checkbox with the
following statement: "The law requires that the contractor give you a
notice explaining your right to cancel. Initial the checkbox if the
contractor has given you a "Notice of the Seven-Day Right to Cancel.'
"
(vi) The notice shall be accompanied by a completed form in
duplicate, captioned "Notice of Cancellation," which shall also be
attached to the agreement or offer to purchase and be easily
detachable, and which shall contain the following statement written
in the same language, e.g., Spanish, as used in the contract:
""Notice of Cancellation''
/enter date of
transaction/
______________________________
(Date)
"You may cancel this transaction, without any penalty or
obligation, within seven business days from the above date.
If you cancel, any property traded in, any payments made by you
under the contract or sale, and any negotiable instrument executed by
you will be returned within 10 days following receipt by the seller
of your cancellation notice, and any security interest arising out of
the transaction will be canceled.
If you cancel, you must make available to the seller at your
residence, in substantially as good condition as when received, any
goods delivered to you under this contract or sale, or you may, if
you wish, comply with the instructions of the seller regarding the
return shipment of the goods at the seller's expense and risk.
If you do make the goods available to the seller and the seller
does not pick them up within 20 days of the date of your notice of
cancellation, you may retain or dispose of the goods without any
further obligation. If you fail to make the goods available to the
seller, or if you agree to return the goods to the seller and fail to
do so, then you remain liable for performance of all obligations
under the contract."
To cancel this transaction, mail or deliver a
signed and dated copy of this cancellation
notice, or any other written notice, or send a
telegram
to_____________________________________________,
/name of seller/
at______________________________________________
/address of seller's place of
business/
not later than midnight of_____________________.
(Date)
I hereby cancel this transaction. _____________
(Date)
____________________________________
(Buyer's signature)
SEC. 5. Section 7159.1 of the Business and Professions Code is
amended to read:
7159.1. (a) In any contract for the sale of home improvement
goods or services offered by door-to-door sale that contains or is
secured by a lien on real property, the contract shall be accompanied
by the following notice in 18-point boldfaced type:
"WARNING TO BUYER: IF YOU SIGN THE CONTRACT WHICH ACCOMPANIES THIS
NOTICE, YOU WILL BE PUTTING UP YOUR HOME AS SECURITY. THIS MEANS
THAT YOUR HOME COULD BE SOLD WITHOUT YOUR PERMISSION AND WITHOUT ANY
COURT ACTION IF YOU MISS ANY PAYMENT REQUIRED BY THIS CONTRACT."
This notice shall be written in the same language as the rest of
the contract. It shall be on a separate piece of paper from the rest
of the contract and shall be signed and dated by the buyer. The home
improvement contractor or home improvement salesperson shall deliver
to the buyer at the time of the buyer's signing and dating of the
notice a legible copy of the signed and dated notice. A security
interest created in any contract described in this section that does
not provide the notice as required by this section shall be void and
unenforceable.
(b) This section shall not apply to any of the following:
(1) Any contract that is subject to Chapter 1 (commencing with
Section 1801) of Title 2 of Part 4 of Division 3 of the Civil Code.
(2) A mechanics lien established pursuant to Chapter 4 (commencing
with Section 8400) of Part 6 of Division 4 of the Civil Code.
(3) Any contract that is subject to subdivision (a) of Section
7159.2.
SEC. 6. Section 7159.5 of the Business and Professions Code is
amended to read:
7159.5. This section applies to all home improvement contracts,
as defined in Section 7151.2, between an owner or tenant and a
contractor, whether a general contractor or a specialty contractor,
that is licensed or subject to be licensed pursuant to this chapter
with regard to the transaction.
(a) Failure by the licensee or a person subject to be licensed
under this chapter, or by his or her agent or salesperson, to comply
with the following provisions is cause for discipline:
(1) The contract shall be in writing and shall include the agreed
contract amount in dollars and cents. The contract amount shall
include the entire cost of the contract, including profit, labor, and
materials, but excluding finance charges.
(2) If there is a separate finance charge between the contractor
and the person contracting for home improvement, the finance charge
shall be set out separately from the contract amount.
(3) If a downpayment will be charged, the downpayment may not
exceed one thousand dollars ($1,000) or 10 percent of the contract
amount, whichever is less.
(4) If, in addition to a downpayment, the contract provides for
payments to be made prior to completion of the work, the contract
shall include a schedule of payments in dollars and cents
specifically referencing the amount of work or services to be
performed and any materials and equipment to be supplied.
(5) Except for a downpayment, the contractor may neither request
nor accept payment that exceeds the value of the work performed or
material delivered.
(6) Upon any payment by the person contracting for home
improvement, and prior to any further payment being made, the
contractor shall, if requested, obtain and furnish to the person a
full and unconditional release from any potential lien claimant claim
or mechanics lien pursuant to Section 8410 of the Civil Code for any
portion of the work for which payment has been made. The person
contracting for home improvement may withhold all further payments
until these releases are furnished.
(7) If the contract provides for a payment of a salesperson's
commission out of the contract price, that payment shall be made on a
pro rata basis in proportion to the schedule of payments made to the
contractor by the disbursing party in accordance with paragraph (4).
(8) A contractor furnishing a performance and payment bond, lien
and completion bond, or a bond equivalent or joint control approved
by the registrar covering full performance and payment is exempt from
paragraphs (3), (4), and (5), and need not include, as part of the
contract, the statement regarding the downpayment specified in
subparagraph (C) of paragraph (8) of subdivision (d) of Section 7159,
the details and statement regarding progress payments specified in
paragraph (9) of subdivision (d) of Section 7159, or the Mechanics
Lien Warning specified in paragraph (4) of subdivision (e) of Section
7159. A contractor furnishing these bonds, bond equivalents, or a
joint control approved by the registrar may accept payment prior to
completion. If the contract provides for a contractor to furnish
joint control, the contractor shall not have any financial or other
interest in the joint control.
(b) A violation of paragraph (1), (3), or (5) of subdivision (a)
by a licensee or a person subject to be licensed under this chapter,
or by his or her agent or salesperson, is a misdemeanor punishable by
a fine of not less than one hundred dollars ($100) nor more than
five thousand dollars ($5,000), or by imprisonment in a county jail
not exceeding one year, or by both that fine and imprisonment.
(1) An indictment or information against a person who is not
licensed but who is required to be licensed under this chapter shall
be brought, or a criminal complaint filed, for a violation of this
section, in accordance with paragraph (4) of subdivision (d) of
Section 802 of the Penal Code, within four years from the date of the
contract or, if the contract is not reduced to writing, from the
date the buyer makes the first payment to the contractor.
(2) An indictment or information against a person who is licensed
under this chapter shall be brought, or a criminal complaint filed,
for a violation of this section, in accordance with paragraph (2) of
subdivision (d) of Section 802 of the Penal Code, within two years
from the date of the contract or, if the contract is not reduced to
writing, from the date the buyer makes the first payment to the
contractor.
(3) The limitations on actions in this subdivision shall not apply
to any administrative action filed against a licensed contractor.
(c) Any person who violates this section as part of a plan or
scheme to defraud an owner or tenant of a residential or
nonresidential structure, including a mobilehome or manufactured
home, in connection with the offer or performance of repairs to the
structure for damage caused by a natural disaster, shall be ordered
by the court to make full restitution to the victim based on the
person's ability to pay, as defined in subdivision (e) of Section
1203.1b of the Penal Code. In addition to full restitution, and
imprisonment authorized by this section, the court may impose a fine
of not less than five hundred dollars ($500) nor more than
twenty-five thousand dollars ($25,000), based upon the defendant's
ability to pay. This subdivision applies to natural disasters for
which a state of emergency is proclaimed by the Governor pursuant to
Section 8625 of the Government Code, or for which an emergency or
major disaster is declared by the President of the United States.
SEC. 7. Section 7159.14 of the Business and Professions Code is
amended to read:
7159.14. (a) This section applies to a service and repair
contract as defined in Section 7159.10. A violation of this section
by a licensee or a person subject to be licensed under this chapter,
or by his or her agent or salesperson, is cause for discipline.
(1) The contract may not exceed seven hundred fifty dollars
($750).
(2) The contract shall be in writing and shall state the agreed
contract amount, which may be stated as either a fixed contract
amount in dollars and cents or, if a time and materials formula is
used, as an estimated contract amount in dollars and cents.
(3) The contract amount shall include the entire cost of the
contract including profit, labor, and materials, but excluding
finance charges.
(4) The actual contract amount of a time and materials contract
may not exceed the estimated contract amount without written
authorization from the buyer.
(5) The prospective buyer must have initiated contact with the
contractor to request work.
(6) The contractor may not sell the buyer goods or services beyond
those reasonably necessary to take care of the particular problem
that caused the buyer to contact the contractor.
(7) No payment may be due before the project is completed.
(8) A service and repair contractor may charge only one service
charge. For purposes of this chapter, a service charge includes such
charges as a service or trip charge, or an inspection fee.
(9) A service and repair contractor charging a service charge must
disclose in all advertisements that there is a service charge and,
when the customer initiates the call for service, must disclose the
amount of the service charge.
(10) The service and repair contractor must offer to the customer
any parts that were replaced.
(11) Upon any payment by the buyer, the contractor shall, if
requested, obtain and furnish to the buyer a full and unconditional
release from any potential lien claimant claim or mechanics lien
pursuant to Section 8410 of the Civil Code for any portion of the
work for which payment has been made.
(b) A violation of paragraph (1), (2), (3), (4), (5), (6), or (8)
of subdivision (a) by a licensee or a person subject to be licensed
under this chapter, or by his or her agent or salesperson, is a
misdemeanor punishable by a fine of not less than one hundred dollars
($100) nor more than five thousand dollars ($5,000), or by
imprisonment in a county jail not exceeding one year, or by both that
fine and imprisonment.
(1) An indictment or information against a person who is not
licensed but who is required to be licensed under this chapter shall
be brought, or a criminal complaint filed, for a violation of this
section, in accordance with paragraph (4) of subdivision (d) of
Section 802 of the Penal Code, within four years from the date of the
contract or, if the contract is not reduced to writing, from the
date the buyer makes the first payment to the contractor.
(2) An indictment or information against a person who is licensed
under this chapter shall be brought, or a criminal complaint filed,
for a violation of this section, in accordance with paragraph (2) of
subdivision (d) of Section 802 of the Penal Code, within two years
from the date of the contract or, if the contract is not reduced to
writing, from the date the buyer makes the first payment to the
contractor.
(3) The limitations on actions in this subdivision shall not apply
to any administrative action filed against a licensed contractor.
(c) Any person who violates this section as part of a plan or
scheme to defraud an owner or tenant of a residential or
nonresidential structure, including a mobilehome or manufactured
home, in connection with the offer or performance of repairs to the
structure for damage caused by a natural disaster, shall be ordered
by the court to make full restitution to the victim based on the
person's ability to pay, as defined in subdivision (e) of Section
1203.1b of the Penal Code. In addition to full restitution, and
imprisonment authorized by this section, the court may impose a fine
of not less than five hundred dollars ($500) nor more than
twenty-five thousand dollars ($25,000), based upon the defendant's
ability to pay. This subdivision applies to natural disasters for
which a state of emergency is proclaimed by the Governor pursuant to
Section 8625 of the Government Code, or for which an emergency or
major disaster is declared by the President of the United States.
SEC. 8. Section 7164 of the Business and Professions Code is
amended to read:
7164. (a) Notwithstanding Section 7044, every contract and any
changes in a contract, between an owner and a contractor, for the
construction of a single-family dwelling to be retained by the owner
for at least one year shall be evidenced in writing signed by both
parties.
(b) The writing shall contain the following:
(1) The name, address, and license number of the contractor.
(2) The approximate dates when the work will begin and be
substantially completed.
(3) A legal description of the location where the work will be
done.
(4) A statement with the heading "Mechanics Lien Warning" as
follows:
"MECHANICS LIEN WARNING:
Anyone who helps improve your property, but who is not paid, may
record what is called a mechanics lien on your property. A mechanics
lien is a claim, like a mortgage or home equity loan, made against
your property and recorded with the county recorder.
Even if you pay your contractor in full, unpaid subcontractors,
suppliers, and laborers who helped to improve your property may
record mechanics liens and sue you in court to foreclose the lien. If
a court finds the lien is valid, you could be forced to pay twice or
have a court officer sell your home to pay the lien. Liens can also
affect your credit.
To preserve their right to record a lien, each subcontractor and
material supplier must provide you with a document called a
'Preliminary Notice.' This notice is not a lien. The purpose of the
notice is to let you know that the person who sends you the notice
has the right to record a lien on your property if he or she is not
paid.
BE CAREFUL. The Preliminary Notice can be sent up to 20 days
after the subcontractor starts work or the supplier provides
material. This can be a big problem if you pay your contractor before
you have received the Preliminary Notices.
You will not get Preliminary Notices from your prime contractor or
other persons you contract with directly or from laborers who work
on your project. The law assumes that you already know they are
improving your property.
PROTECT YOURSELF FROM LIENS. You can protect yourself from liens
by getting a list from your contractor of all the subcontractors and
material suppliers that work on your project. Find out from your
contractor when these subcontractors started work and when these
suppliers delivered goods or materials. Then wait 20 days, paying
attention to the Preliminary Notices you receive.
PAY WITH JOINT CHECKS. One way to protect yourself is to pay with
a joint check. When your contractor tells you it is time to pay for
the work of a subcontractor or supplier who has provided you with a
Preliminary Notice, write a joint check payable to both the
contractor and the subcontractor or material supplier.
For other ways to prevent liens, visit CSLB's Web site at
www.cslb.ca.gov or call CSLB at 800-321-CSLB (2752).
REMEMBER, IF YOU DO NOTHING, YOU RISK HAVING A LIEN PLACED ON YOUR
HOME. This can mean that you may have to pay twice, or face the
forced sale of your home to pay what you owe."
(5) (A) A statement prepared by the board through regulation that
emphasizes the value of commercial general liability insurance and
encourages the owner to verify the contractor's insurance coverage
and status.
(B) A check box indicating whether or not the contractor carries
commercial general liability insurance, and if that is the case, the
name and the telephone number of the insurer.
(c) The writing may also contain other matters agreed to by the
parties to the contract. The writing shall be legible and shall
clearly describe any other document which is to be incorporated into
the contract. Prior to commencement of any work, the owner shall be
furnished a copy of the written agreement, signed by the contractor.
The provisions of this section are not exclusive and do not relieve
the contractor from compliance with all other applicable provisions
of law.
(d) Every contract subject to the provisions of this section shall
contain, in close proximity to the signatures of the owner and
contractor, a notice in at least 10-point bold type or in all capital
letters, stating that the owner has the right to require the
contractor to have a performance and payment bond and that the
expense of the bond may be borne by the owner.
(e) The requirements in paragraph (5) of subdivision (b) shall
become operative three months after the board adopts the regulations
referenced in subparagraph (A) of paragraph (5) of subdivision (b).
(f) This section shall become operative on January 1, 2006.
SEC. 9. Section 8513 of the Business and Professions Code is
amended to read:
8513. (a) The board shall prescribe a form entitled "Notice to
Owner" that shall describe, in nontechnical language and in a clear
and coherent manner using words with common and everyday meaning, the
pertinent provisions of this state's mechanics' lien laws and the
rights and responsibilities of an owner of property and a registered
pest control company thereunder. Each company registered under this
chapter, prior to entering into a contract with an owner for work for
which a company registration is required, shall give a copy of this
"Notice to Owner" to the owner, his or her agent, or the payer.
(b) No company that is required to be registered under this
chapter shall require or request a waiver of lien rights from any
subcontractor, employee, or supplier.
(c) Each company registered under this chapter that acts as a
subcontractor for another company registered under this chapter
shall, within 20 days of commencement of any work for which a company
registration is required, give the preliminary notice in accordance
with Chapter 2 (commencing with Section 8200) of Part 6 of Division 4
of the Civil Code, to the owner, his or her agent, or the payer.
(d) Each company registered under this chapter that acts as a
prime contractor for work for which a company registration is
required shall, prior to accepting payment for the work, furnish to
the owner, his or her agent, or the payer a full and unconditional
release from any claim of mechanics lien by any subcontractor
entitled to enforce a mechanics' lien pursuant to Section 8172 of the
Civil Code.
(e) Each company registered under this chapter that subcontracts
to another company registered under this chapter work for which a
company registration is required shall furnish to the subcontractor
the name of the owner, his or her agent, or the payer.
(f) The provisions of this section shall be applicable only to
those registered companies, as defined in Section 8506.1, operating
pursuant to a Branch 1 or Branch 3 registration.
(g) A violation of the provisions of this section is a ground for
disciplinary action.
SEC. 10. Section 17577.5 of the Business and Professions Code is
amended to read:
17577.5. (a) No contract or offer for the sale, lease, or rental
of a home water treatment device and no purchase money loan, as
defined in subdivision (b), shall provide for a lien on real
property. Any lien taken in violation of this section is void and
unenforceable.
(b) For the purpose of this section, "purchase money loan" means a
loan or an advance under an open-end credit account if both of the
following occur:
(1) The primary purpose of the loan or the primary purpose of
establishing the open-end credit account is to finance all or a
portion of the purchase price or any of the lease or rental payments
for a water treatment device.
(2) The creditor knows the primary purpose of the loan or the
primary purpose of establishing the open-end credit account when the
loan is initially made or the open-end credit account is established.
(c) The creditor shall be deemed to know that the primary purpose
of the loan or the primary purpose of establishing the open-end
credit account is the primary purpose described in paragraph (1) of
subdivision (b) if any of the following occur:
(1) The consumer's application for credit or any other document in
the creditor's possession before the loan is made or the open-end
account is established indicates the primary purpose of the loan or
the open-end credit account.
(2) The seller, lessor, or renter arranges or guarantees the loan
or open-end account, or participates in the preparation of the
consumer's application for credit or other loan documents, or
receives from the creditor a loan commission, brokerage, or referral
fee.
(d) For the purpose of this section, "open-end credit" has the
same meaning as used in Section 226.2 of Title 12 of the Code of
Federal Regulations.
(e) This section does not apply to mechanics liens established
pursuant to Chapter 4 (commencing with Section 8400) of Part 6 of
Division 4 of the Civil Code.
SEC. 11. Title 1.4C (commencing with Section
1749.70) is added to Part 4 of Division 3 of the Civil Code, to read:
TITLE 1.4C. AUTOMATIC CHECKOUT SYSTEM
1749.70. This title shall be known and may be cited as the
Rosenthal-Roberti Item Pricing Act.
1749.71. (a) Every retail grocery store or grocery department
within a general retail merchandise store which uses a point-of-sale
system shall cause to have a clearly readable price indicated on 85
percent of the total number of packaged consumer commodities offered
for sale which are not exempt pursuant to subdivision (b).
The management of any such retail grocery store or grocery
department shall determine the number of consumer commodities
normally offered for sale on a daily basis, shall determine the
consumer commodities to be exempted pursuant to this subdivision, and
shall maintain a list of those consumer commodities exempt pursuant
to this subdivision. The list shall be made available to a designated
representative of the appropriate local union, the members of which
are responsible for item pricing, in those stores or departments that
have collective bargaining agreements, seven days prior to an item
or items being exempted pursuant to this subdivision. In addition,
the list shall be available and posted in a prominent place in the
store seven days prior to an item or items being exempted pursuant to
this subdivision.
(b) The provisions of this section shall not apply to any of the
following:
(1) Any consumer commodity which was not generally item-priced on
January 1, 1977, as determined by the Department of Food and
Agriculture pursuant to subdivision (c) of Section 12604.5 of the
Business and Professions Code, as in effect July 8, 1977.
(2) Any unpackaged fresh food produce, or to consumer
commodities which are under three cubic inches in size, weigh less
than three ounces, and are priced under forty cents ($0.40).
(3) Any consumer commodity offered as a sale item or as a special.
(4) Any business which has as its only regular employees the owner
thereof, or the parent, spouse, or child of the owner, or, in
addition thereto, not more than two other regular employees.
(5) Identical items within a multi-item package.
(6) Items sold through a vending machine.
(c) For the purposes of this section:
(1) "Consumer commodity" includes all of the following:
(A) Food, including all material whether solid, liquid, or mixed,
and whether simple or compound, which is used or intended for
consumption by human beings or domestic animals normally kept as
household pets, and all substances or ingredients added to any
material for any purpose. This definition shall not apply to
individual packages of cigarettes or individual cigars.
(B) Napkins, facial tissues, toilet tissues, foil wrapping,
plastic wrapping, paper toweling, and disposable plates and cups.
(C) Detergents, soaps, and other cleaning agents.
(D) Pharmaceuticals, including nonprescription drugs, bandages,
female hygiene products, and toiletries.
(2) "Grocery department" means an area within a general retail
merchandise store which is engaged primarily in the retail sale of
packaged food, rather than food prepared for immediate consumption on
or off the premises.
(3) "Grocery store" means a store engaged primarily in the retail
sale of packaged food, rather than food prepared for consumption on
the premises.
(4) "Point-of-sale system" means any computer or electronic system
used by a retail establishment such as, but not limited to,
Universal Product Code scanners, price lookup codes, or an electronic
price lookup system as a means for determining the price of the item
being purchased by a consumer.
(5) "Sale item" or "special" means any consumer commodity offered
in good faith for a period of 14 days or less, on sale at a price
below the normal price that item is usually sold for in that store.
The Department of Food and Agriculture shall determine the normal
length of a sale held for consumer commodities generally item priced
on January 1, 1977, in stores regulated pursuant to this chapter, and
that period shall be used for the purposes of this subdivision. The
department's determination as to the normal length of a sale shall be
binding for the purposes of this section, but each such
determination shall not exceed seven days.
1749.72. (a) The intentional violation of Section 1749.71 is
punishable by a civil penalty of not less than twenty-five dollars
($25) nor more than five hundred dollars ($500).
(b) Failure to have a clearly readable price indicated on 12 units
of the same item required to be item-priced of the same commodity
shall constitute a presumption of intent to violate Section 1749.71.
(c) Every additional 12 units of the same item required to be
item-priced that fail to have a price indicated on them shall
constitute a presumption of intent to violate Section 1749.71.
(d) Each day that a violation continues shall also constitute a
separate violation after notification thereof to the manager or
assistant manager of the retail grocery store or the grocery
department of the general retail merchandise store and shall
constitute a presumption of intent to violate Section 1749.71.
(e) Notwithstanding any other provision of law, any person may
bring an action to enjoin a violation of Section 1749.71.
1749.73. Any person, firm, corporation, or association who
violates Sections 1749.71 and 1749.72 shall be liable to any person
injured for any losses and expenses thereby incurred, and for the sum
of fifty dollars ($50) in addition thereto. The remedy set forth
herein is applicable only to actions brought in the name of, and on
behalf of, a single plaintiff and shall not be applicable in multiple
plaintiff or class actions.
1749.74. Improper pricing on the shelf or on the item due to
unintentional error shall not constitute a violation of this title.
1749.75. The remedies set forth in Sections 1749.72 and 1749.73
are the exclusive remedies available to any person, state or local
agency, or law enforcement official.
1749.76. It is the intention of the Legislature that this title
shall occupy the field with regard to item pricing and shall preempt
all local ordinances, rules, or regulations concerning item pricing.
SEC. 12. SEC. 11. Section 1917.166 of
the Civil Code is amended to read:
1917.166. The lien of a shared appreciation loan, including the
principal amount and all interest, whether accrued or to be accrued,
and all amounts of contingent deferred interest, shall attach from
the time of the recordation of the deed of trust securing the loan,
and the lien, including the lien of the interest accrued or to be
accrued and of the contingent deferred interest, shall have priority
over any other lien or encumbrance affecting the property secured by
the shared appreciation instrument, recorded after the time of
recordation of the shared appreciation instrument. However, nothing
in this section or Section 1917.165 shall preclude a junior lien or
encumbrance subordinate to the obligation of the shared appreciation
loan. In no case may a junior lien achieve priority over the lien
securing the obligation of the shared appreciation loan, provided
that nothing in this section shall be construed to supersede Section
8450.
SEC. 13. SEC. 12. Section 1917.615
of the Civil Code is amended to read:
1917.615. The lien of a shared appreciation loan for seniors,
including the total loan obligation, shall attach from the time of
the recordation of the deed of trust securing the loan, and the lien,
including the lien of the total loan obligation accrued or to be
accrued, shall have priority over any other lien or encumbrance
affecting the property secured by the shared appreciation instrument
and recorded after the time of recordation of the shared appreciation
instrument. However, nothing in this section or Section 1917.614
shall preclude a junior lien or encumbrance subordinate to the total
loan obligation of the shared appreciation loan for seniors. In no
case may a junior lien achieve priority over the lien securing the
total loan obligation of the shared appreciation loan, provided that
nothing in this section shall be construed to supersede Section 8450.
SEC. 14. SEC. 13. Section 3059 of
the Civil Code is amended to read:
3059. The liens of mechanics, for materials and services upon
real property, are regulated by Chapter 4 (commencing with Section
8400) of Part 6 of Division 4.
SEC. 15. SEC. 14. Section 3060 of the
Civil Code is amended to read:
3060. (a) As used in this section, "mine" means a mining claim or
real property worked on as a mine.
(b) Any person who performs labor in a mine, either in its
development or in working on it by the subtractive process, or
furnishes materials to be used or consumed in it, has a lien upon the
mine and the works owned and used by the owners for milling or
reducing the ores from the mine, for the value of the work or labor
done or materials furnished by each, whether done or furnished at the
instance of the owner of the mine, or the owner's agent, and every
contractor, subcontractor, superintendent, or other person having
charge of any mining or work or labor performed in and about the
mine, either as lessee or under a working bond or contract thereon
shall be held to be the agent of the owner for the purposes of this
section. The liens provided for by this section shall be enforced in
the same manner as those provided for by Part 6 (commencing with
Section 8000) of Division 4.
SEC. 16. SEC. 15. Chapter 8
(commencing with Section 3081.1) of Title 14 of Part 4 of Division 3
of the Civil Code is repealed.
SEC. 17. SEC. 16. Title 15
(commencing with Section 3082) of Part 4 of Division 3 of the Civil
Code is repealed.
SEC. 18. SEC. 17. Section 3319 of
the Civil Code is amended to read:
3319. (a) In each written contract for private works of
improvement entered into on or after January 1, 1996, the contracting
party and the design professional may agree to contractual
provisions that include a late payment penalty, in lieu of any
interest otherwise due. The terms of the late payment penalty shall
be specifically set forth in the written contract.
(b) The penalty authorized pursuant to subdivision (a) shall be
separate from, and in addition to, the design professionals liens
provided by Chapter 3 (commencing with Section 8300) of Part 6 of
Division 4, mechanics liens provided by Chapter 4 (commencing with
Section 8400) of Part 6 of Division 4, and stop payment notices
provided by Chapter 5 (commencing with Section 8500) of Part 6 of
Division 4.
(c) None of the rights or obligations created or permitted by this
section between design professionals and contracting parties shall
apply to construction loan funds held by a lender pursuant to a
construction loan agreement.
(d) For purposes of this section, the following definitions apply:
(1) "Contracting party" means any person or entity entering into a
written contract with a design professional for professional design
services for a private work of improvement.
(2) "Design professional" means a person licensed as an architect
pursuant to Chapter 3 (commencing with Section 5500) of Division 3 of
the Business and Professions Code, registered as a professional
engineer pursuant to Chapter 7 (commencing with Section 6700) of
Division 3 of the Business and Professions Code, or licensed as a
land surveyor pursuant to Chapter 15 (commencing with Section 8700)
of Division 3 of the Business and Professions Code.
SEC. 19. SEC. 18. Section 3320 of
the Civil Code is amended to read:
3320. (a) In each contract for public works of improvement,
entered into on or after January 1, 1996, the public agency shall pay
to the prime design professional any progress payment within 30 days
of receipt of a written demand for payment in accordance with the
contract, and the final retention payment within 45 days of receipt
of a written demand for payment in accordance with the contract. If
the public agency disputes in good faith any portion of the amount
due, it may withhold from the payment an amount not to exceed 150
percent of the disputed amount. The disputed amount withheld is not
subject to any penalty authorized by this section.
(b) If any amount is wrongfully withheld or is not timely paid in
violation of this section, the prime design professional shall be
entitled to a penalty of 11/2 percent for the improperly withheld
amount, in lieu of any interest otherwise due, per month for every
month that payment is not made. In any action for the collection of
amounts withheld in violation of this section, the prevailing party
is entitled to his or her reasonable attorney's fees and costs.
(c) The penalty described in subdivision (b) is separate from, and
in addition to, the design professionals' remedies for a public
works contract provided in Title 2 (commencing with Section 9000) of
Part 6 of Division 4.
(d) This section does not apply to state agency contracts subject
to Section 927.6 of the Government Code.
(e) None of the rights or obligations created by this section
between prime design professionals and public agencies apply to
construction loan funds held by a lender pursuant to a construction
loan agreement.
(f) For purposes of this section:
(1) "Public agency" means the state, any county, any city, any
city and county, any district, any public authority, any public
agency, any municipal corporation, or other political subdivision or
political corporation of the state.
(2) "Design professional" means a person licensed as an architect
pursuant to Chapter 3 (commencing with Section 5500) of Division 3 of
the Business and Professions Code, registered as a professional
engineer pursuant to Chapter 7 (commencing with Section 6700) of
Division 3 of the Business and Professions Code, or licensed as a
land surveyor pursuant to Chapter 15 (commencing with Section 8700)
of Division 3 of the Business and Professions Code.
(3) "Prime design professional" means a design professional with a
written contract directly with the public agency.
SEC. 20. SEC. 19. Section 3321 of
the Civil Code is amended to read:
3321. (a) In each contract for public works of improvement, a
prime design professional shall pay to each subconsultant design
professional the amount due him or her from the payment received, not
later than 15 days after receipt of each progress payment or final
retention payment. If the prime design professional disputes in good
faith any portion of the amount due, he or she may withhold from the
payment an amount not to exceed 150 percent of the disputed amount.
The disputed amount withheld shall not be subject to any penalty
authorized by this section.
(b) If any amount is wrongfully withheld or is not timely paid in
violation of this section, the subconsultant design professional
shall be entitled to a penalty of 11/2 percent of the improperly
withheld amount, in lieu of any interest otherwise due, per month,
for each month that payment is not made. In any action for the
collection of amounts withheld in violation of this section, the
prevailing party shall be entitled to his or her reasonable attorney'
s fees and costs.
(c) The penalty described in subdivision (b) shall be separate
from, and in addition to, the design professionals' remedies for a
public works contract provided in Title 2 (commencing with Section
9000) of Part 6 of Division 4.
(d) None of the rights or obligations created by this section
between prime design professionals and subconsultant design
professionals shall apply to construction loan funds held by a lender
pursuant to a construction loan agreement.
(e) For purposes of this section:
(1) "Public agency" means the state, any county, any city, any
city and county, any district, any public authority, any public
agency, any municipal corporation, or other political subdivision or
political corporation of the state.
(2) "Design professional" means a person licensed as an architect
pursuant to Chapter 3 (commencing with Section 5500) of Division 3 of
the Business and Professions Code, registered as a professional
engineer pursuant to Chapter 7 (commencing with Section 6700) of
Division 3 of the Business and Professions Code, or licensed as a
land surveyor pursuant to Chapter 15 (commencing with Section 8700)
of Division 3 of the Business and Professions Code.
(3) "Prime design professional" means a design professional having
a written contract directly with the public agency.
(4) "Subconsultant design professional" means a design
professional having a written contract with a prime design
professional.
SEC. 21. Part 8 (commencing with Section 7100)
of Division 4 of the Civil Code is repealed.
SEC. 22. SEC. 20. Part 6 (commencing
with Section 8000) is added to Division 4 of the Civil Code, to
read:
PART 6. WORKS OF IMPROVEMENT
TITLE 1. Private Work of Improvement
CHAPTER 1. DEFINITIONS AND GENERAL PROVISIONS
Article 1. Definitions
8000. Unless the provision or context otherwise requires, the
definitions in this article govern the construction of this title.
8002. "Claimant" means a person that has a right under this title
to record a claim of lien, give a stop payment notice, or assert a
claim against a payment bond.
8006. "Construction lender" means either of the following:
(a) A mortgagee or beneficiary under a deed of trust lending funds
for payment of construction costs for all or part of a work of
improvement, or the assignee or successor in interest of the
mortgagee or beneficiary.
(b) An escrow holder or other person holding funds provided by an
owner, lender, or another person as a fund for payment of
construction costs for all or part of a work of improvement.
8008. "Contract" means an agreement that provides for all or part
of a work of improvement. The term includes a contract change.
8010. "Contract price" means the price agreed to in a direct
contract for a work of improvement, including a contract change. If
the parties have not agreed to a price for the work of improvement,
the contract price is the reasonable value of the work provided for
the work of improvement.
8011. "Contractor" includes a direct contractor, subcontractor,
or both.
8012. "Design professional" means a person licensed as an
architect pursuant to Chapter 3 (commencing with Section 5500) of
Division 3 of the Business and Professions Code, licensed as a
landscape architect pursuant to Chapter 3.5 (commencing with Section
5615) of Division 3 of the Business and Professions Code, registered
as a professional engineer pursuant to Chapter 7 (commencing with
Section 6700) of Division 3 of the Business and Professions Code, or
licensed as a land surveyor pursuant to Chapter 15 (commencing with
Section 8700) of Division 3 of the Business and Professions Code who
provides services pursuant to a written contract with a landowner for
the design, engineering, or planning of a work of improvement.
8013. "Direct contract" means a contract between an owner and a
direct contractor that provides for all or part of a work of
improvement. The term includes a contract change.
8014. "Direct contractor" means a contractor that has a direct
contractual relationship with an owner. A reference in another
statute to a "prime contractor" in connection with the provisions in
this title means a "direct contractor."
8016. A person "knows" or "has knowledge" of information if the
person knows or should have known that information.
8018. "Labor, service, equipment, or material" includes, but is
not limited to, labor, skills, services, material, supplies,
equipment, appliances, power, and surveying provided for a work of
improvement.
8020. (a) "Laborer" means a person who, acting as an employee,
performs labor, or bestows skill or other necessary services, on a
work of improvement.
(b) "Laborer" includes a person or entity to which a portion of a
laborer's compensation for a work of improvement, including, but not
limited to, employer payments described in Section 1773.1 of the
Labor Code and implementing regulations, is paid by agreement with
that laborer or the collective bargaining agent of that laborer.
(c) A person or entity described in subdivision (b) that has
standing under applicable law to maintain a direct legal action, in
its own name or as an assignee, to collect any portion of
compensation owed for a laborer for a work of improvement, shall have
standing to enforce any rights or claims of the laborer under this
title, to the extent of the compensation agreed to be paid to the
person or entity for labor on that improvement. This subdivision is
intended to give effect to the longstanding public policy of this
state to protect the entire compensation of a laborer on a work of
improvement, regardless of the form in which that compensation is to
be paid.
8022. "Lending institution" includes a commercial bank, savings
and loan institution, credit union, or other organization or person
engaged in the business of financing loans.
8024. "Lien" means a lien under this title and includes a lien of
a design professional under Section 8302, a lien for a work of
improvement under Section 8400, and a lien for a site improvement
under Section 8402.
8026. "Material supplier" means a person that provides material
or supplies to be used or consumed in a work of improvement.
8028. "Owner" means:
(a) With respect to a work of improvement, a person that contracts
for the work of improvement.
(b) With respect to property on which a work of improvement is
situated or planned, a person that owns the fee or a lesser interest
in the property, including, but not limited to, an interest as lessee
or as vendee under a contract of purchase.
(c) A successor in interest of a person described in subdivision
(a) or (b).
8030. "Payment bond" means a bond given under Chapter 6
(commencing with 8600).
8032. "Person" means an individual, corporation, public entity,
business trust, estate, trust, partnership, limited liability
company, association, or other entity.
8034. "Preliminary notice" means the notice provided for in
Chapter 2 (commencing with Section 8200).
8036. "Public entity" means the state, Regents of the University
of California, a county, city, district, public authority, public
agency, and any other political subdivision or public corporation in
the state.
8038. (a) "Reputed construction lender" means a person that a
claimant reasonably and in good faith believes is a construction
lender.
(b) "Reputed direct contractor" means a person that a claimant
reasonably and in good faith believes is a direct contractor.
(c) "Reputed owner" means a person that a claimant reasonably and
in good faith believes is an owner.
8040. "Site" means the property on which a work of improvement is
situated or planned.
8042. "Site improvement" means any of the following work on
property:
(a) Demolition or removal of improvements, trees, or other
vegetation.
(b) Drilling test holes.
(c) Grading, filling, or otherwise improving the property or a
street, highway, or sidewalk in front of or adjoining the property.
(d) Construction or installation of sewers or other public
utilities.
(e) Construction of areas, vaults, cellars, or rooms under
sidewalks.
(f) Any other work or improvements in preparation of the site for
a work of improvement.
8044. (a) "Stop payment notice" means the notice given under
Chapter 5 (commencing with Section 8500). A reference in another
statute to a "stop notice" in connection with the remedies provided
in this title means a stop payment notice.
(b) A stop payment notice may be bonded or unbonded. A "bonded
stop payment notice" is a notice given with a bond under Section
8532. An "unbonded stop payment notice" is a notice not given with a
bond under Section 8532.
(c) Except to the extent this title distinguishes between a bonded
and an unbonded stop payment notice, a reference in this title to a
stop payment notice includes both a bonded and an unbonded notice.
8046. "Subcontractor" means a contractor that does not have a
direct contractual relationship with an owner. The term includes a
contractor that has a contractual relationship with a direct
contractor or with another subcontractor.
8048. "Work" means labor, service, equipment, or material
provided to a work of improvement.
8050. (a) "Work of improvement" includes, but is not limited to:
(1) Construction, alteration, repair, demolition, or removal, in
whole or in part, of, or addition to, a building, wharf, bridge,
ditch, flume, aqueduct, well, tunnel, fence, machinery, railroad, or
road.
(2) Seeding, sodding, or planting of property for landscaping
purposes.
(3) Filling, leveling, or grading of property.
(b) Except as otherwise provided in this title, "work of
improvement" means the entire structure or scheme of improvement as a
whole, and includes site improvement.
Article 2. Miscellaneous Provisions
8051. (a) This title is operative on January 1, 2012.
(b) Except as otherwise provided in this section, this title
applies to a contract for a work of improvement executed before, on,
or after the operative date.
(c) The effectiveness of a notice given or other action taken on a
work of improvement before the operative date is governed by the
applicable law in effect before the operative date and not by this
title.
(d) A provision of this title, insofar as it is substantially the
same as a previously existing provision relating to the same subject
matter, shall be construed as a restatement and continuation thereof
and not as a new enactment.
8052. This title applies only to a work of improvement that is
not governed by Title 2 (commencing with Section 9000) of this part.
8054. Except as otherwise provided in this title, Part 2
(commencing with Section 307) of the Code of Civil Procedure provides
the rules of practice in proceedings under this title.
8056. For purposes of this title, "day" means a calendar day.
8058. (a) If this title provides for filing a contract, plan, or
other paper with the county recorder, the provision is satisfied by
filing the paper in the office of the county recorder of the county
in which the work of improvement or part of it is situated.
(b) If this title provides for recording a notice, claim of lien,
release of lien, payment bond, or other paper, the provision is
satisfied by filing the paper for record in the office of the county
recorder of the county in which the work of improvement or part of it
is situated.
(c) The county recorder shall number, index, and preserve a
contract, plan, or other paper presented for filing under this title,
and shall number, index, and transcribe into the official records,
in the same manner as a conveyance of real property, a notice, claim
of lien, payment bond, or other paper recorded under this title.
(d) The county recorder shall charge and collect the fees provided
in Article 5 (commencing with Section 27360) of Chapter 6 of Part 3
of Division 2 of Title 3 of the Government Code for performing duties
under this section.
8060. No act of an owner in good faith and in compliance with a
provision of this title shall be construed to prevent a direct
contractor's performance of the contract, or exonerate a surety on a
performance or payment bond.
8062. An owner may give a notice or execute or file a
document under this title on behalf of a co-owner if the owner acts
on the co-owner's behalf and includes in the notice or document the
name and address of the co-owner on whose behalf the owner acts.
8064. An act that may be done by or to a person under this title
may be done by or to the person's agent to the extent the act is
within the scope of the agent's authority.
8066. (a) This title does not apply to a transaction governed by
the Oil and Gas Lien Act, Chapter 2.5 (commencing with Section
1203.50) of Title 4 of Part 3 of the Code of Civil Procedure.
(b) This title does not apply to or change improvement security
under the Subdivision Map Act, Division 2 (commencing with Section
66410) of Title 7 of the Government Code.
(c) This title does not apply to a transaction governed by
Sections 20457 to 20464, inclusive, of the Public Contract Code.
Article 3. Notice
8100. (a) Notice under this title shall be in writing.
(b) Written notice under this title may be given by electronic
communication to the extent authorized under Section 8112.
8102. (a) Notice under this title shall, in addition to any other
information required by statute for that type of notice, include all
of the following information to the extent known to the person
giving the notice:
(1) The name and address of the owner or reputed owner.
(2) The name and address of the direct contractor.
(3) The name and address of the construction lender, if any.
(4) A description of the site sufficient for identification,
including the street address of the site, if any. If a sufficient
legal description of the site is given, the effectiveness of the
notice is not affected by the fact that the street address is
erroneous or is omitted.
(5) The name, address, and relationship to the parties of the
person giving the notice.
(6) If the person giving the notice is a claimant:
(A) A general statement of the work provided.
(B) The name of the person to or for whom the work is provided.
(C) A statement or estimate of the claimant's demand, if any,
after deducting all just credits and offsets.
(b) Notice is not invalid by reason of any variance from the
requirements of this section if the notice is sufficient to
substantially inform the person given notice of the information
required by this section and other information required in the
notice.
8104. (a) A direct contractor or subcontractor that employs a
laborer and fails to pay the full compensation due the laborer,
including any employer payments described in Section 1773.1 of the
Labor Code and implementing regulations, shall not later than the
date the compensation became delinquent, give the laborer, the
laborer's bargaining representative, if any, the construction lender
or reputed construction lender, if any, and the owner or reputed
owner, notice that includes all of the following information, in
addition to the information required by Section 8102:
(1) The name and address of the laborer, and of any person or
entity described in subdivision (b) of Section 8020 to which employer
payments are due.
(2) The total number of straight time and overtime hours worked by
the laborer on each job.
(3) The amount then past due and owing.
(b) Failure to give the notice required by subdivision (a)
constitutes grounds for disciplinary action under the Contractors'
State License Law, Chapter 9 (commencing with Section 7000) of
Division 3 of the Business and Professions Code.
8106. Except as otherwise provided by statute, notice under this
title shall be given by any of the following means:
(a) Personal delivery.
(b) Mail in the manner provided in Section 8110.
(c) Leaving the notice and mailing a copy in the manner provided
in Section 415.20 of the Code of Civil Procedure for service of
summons and complaint in a civil action.
8108. Except as otherwise provided by this part, notice under
this title shall be given to the person to be notified at the person'
s residence, the person's place of business, or at any of the
following addresses:
(a) If the person to be notified is an owner, the owner's address
shown on the direct contract, the building permit, or a construction
trust deed.
(b) If the person to be notified is a construction lender, the
construction lender's address shown on the construction loan
agreement or construction trust deed.
(c) If the person to be notified is a direct contractor or a
subcontractor, the contractor's address shown on the building permit,
on the contractor's contract, or on the records of the Contractors'
State License Board.
(d) If the person to be notified is a claimant, the claimant's
address shown on the claimant's contract, preliminary notice, claim
of lien, stop payment notice, or claim against a payment bond, or on
the records of the Contractors' State License Board.
(e) If the person to be notified is a surety on a bond, the surety'
s address shown on the bond for service of notices, papers, and other
documents, or on the records of the Department of Insurance.
8110. Except as otherwise provided by this title, notice by mail
under this title shall be given by registered or certified mail,
express mail, or overnight delivery by an express service carrier.
8112. (a) As used in this section, "electronic record" has the
meaning provided in Section 1633.2.
(b) A notice under this title may be given to a person in the form
of an electronic record if the person has agreed in writing to
receive the notice in the form of an electronic record.
(c) If a person that has agreed to receive a notice in the form of
an electronic record is a consumer within the meaning of Section
7006 of Title 15 of the United States Code, the person's agreement
shall satisfy the requirements of Section 7001 of Title 15 of the
United States Code relating to consumer consent to an electronic
record.
8114. A notice required by this title to be posted shall be
displayed in a conspicuous location at the site and at the main
office of the site, if one exists.
8116. Notice under this title is complete and deemed to have been
given at the following times:
(a) If given by personal delivery, when delivered.
(b) If given by mail, when deposited in the mail or with an
express service carrier in the manner provided in Section 1013 of the
Code of Civil Procedure.
(c) If given by leaving the notice and mailing a copy in the
manner provided in Section 415.20 of the Code of Civil Procedure for
service of summons in a civil action, five days after mailing.
(d) If given by posting, when displayed.
(e) If given by recording, when recorded in the office of the
county recorder.
(f) If given in the form of an electronic record, when the
electronic record is transmitted.
8118. (a) Proof that notice was given to a person in the manner
required by this title shall be made by a proof of notice declaration
that states all of the following:
(1) The type or description of the notice given.
(2) The date, place, and manner of notice, and facts showing that
notice was given in the manner required by statute.
(3) The name and address of the person to which notice was given,
and, if appropriate, the title or capacity in which the person was
given notice.
(b) If the notice is given by mail, the declaration shall be
accompanied by one of the following:
(1) Documentation provided by the United States Postal Service
showing that payment was made to mail the notice using registered or
certified mail, or express mail.
(2) Documentation provided by an express service carrier showing
that payment was made to send the notice using an overnight delivery
service.
(3) A return receipt, delivery confirmation, signature
confirmation, tracking record, or other proof of delivery or
attempted delivery provided by the United States Postal Service, or a
photocopy of the record of delivery and receipt maintained by the
United States Postal Service, showing the date of delivery and to
whom delivered, or in the event of nondelivery, by the returned
envelope itself.
(4) A tracking record or other documentation provided by an
express service carrier showing delivery or attempted delivery of the
notice.
(c) If notice is given in the form of an electronic record, the
declaration shall also state that the document was served
electronically and that no notice of nontransmission was received,
and shall be accompanied by the recipient's written agreement to
receive the notice in the form of an electronic record.
Article 4. Construction Documents
8130. (a) A written direct contract shall provide a space for the
owner to enter the following information:
(1) The owner's name, address, and place of business, if any.
(2) The name and address of the construction lender, if any. This
paragraph does not apply to a home improvement contract or swimming
pool contract subject to Article 10 (commencing with Section 7150) of
Chapter 9 of Division 3 of the Business and Professions Code.
(b) A written contract entered into between a direct contractor
and subcontractor, or between subcontractors, shall provide a space
for the name and address of the owner, direct contractor, and
construction lender, if any.
8132. (a) A public entity that issues building permits shall, in
its application form for a building permit, provide space and a
designation for the applicant to enter the name, branch designation,
if any, and address of the construction lender and shall keep the
information on file open for public inspection during the regular
business hours of the public entity.
(b) If there is no known construction lender, the applicant shall
note that fact in the designated space.
(c) Failure of the applicant to indicate the name and address of
the construction lender on the application does not relieve a person
required to give the construction lender preliminary notice from that
duty.
8134. (a) A mortgage, deed of trust, or other instrument securing
a loan, any of the proceeds of which may be used for a work of
improvement, shall bear the designation "Construction Trust Deed"
prominently on its face and shall state all of the following:
(1) The name and address of the construction lender.
(2) The name and address of the owner of the property described in
the instrument.
(3) A legal description of the property that secures the loan and,
if known, the street address of the property.
(b) Failure to comply with subdivision (a) does not affect the
validity of the mortgage, deed of trust, or other instrument.
(c) Failure to comply with subdivision (a) does not relieve a
person required to give preliminary notice from that duty.
(d) The county recorder of the county in which the instrument is
recorded shall indicate in the general index of the official records
of the county that the instrument secures a construction loan.
Article 5. Bonds
8140. The Bond and Undertaking Law, Chapter 2 (commencing with
Section 995.010) of Title 14 of Part 2 of the Code of Civil
Procedure, applies to a bond given under this title, except to the
extent this title prescribes a different rule or is inconsistent.
8142. None of the following releases a surety from liability on a
bond given under this title:
(a) A change to a contract, plan, specification, or agreement for
a work of improvement or for work provided for a work of improvement.
(b) A change to the terms of payment or an extension of the time
for payment for a work of improvement.
(c) A rescission or attempted rescission of a contract, agreement,
or bond.
(d) A condition precedent or subsequent in the bond purporting to
limit the right of recovery of a claimant otherwise entitled to
recover pursuant to a contract, agreement, or bond.
(e) In the case of a bond given for the benefit of claimants, the
fraud of a person other than the claimant seeking to recover on the
bond.
8144. (a) A bond given under this title shall be construed most
strongly against the surety and in favor of the beneficiary.
(b) A surety is not released from liability to the beneficiary by
reason of a breach of the direct contract or on the part of any
obligee named in the bond.
(c) Except as otherwise provided by statute, the sole conditions
of recovery on the bond are that the claimant is a person described
in Article 1 (commencing with Section 8400) of Chapter 4, and has not
been paid the full amount of the claim.
Article 6. Completion
8150. (a) For the purpose of this title, completion of a work of
improvement occurs at the earliest of the following times:
(1) Actual completion of the work of improvement.
(2) Occupation or use by the owner accompanied by cessation of
labor.
(3) Cessation of labor for a continuous period of 60 days.
(4) Recordation of a notice of cessation after cessation of labor
for a continuous period of 30 days.
(b) Notwithstanding subdivision (a), if a work of improvement is
subject to acceptance by a public entity, completion occurs on
acceptance.
8152. (a) An owner may record a notice of completion on or within
15 days after the date of completion of a work of improvement.
(b) The notice of completion shall be signed and verified by the
owner.
(c) The notice shall comply with Section 8102, and shall also
include all of the following information:
(1) If the notice is given only of completion of a contract for a
particular portion of the work of improvement as provided in Section
8154, the name of the direct contractor under that contract and a
general statement of the work provided pursuant to the contract.
(2) If signed by the owner's successor in interest, the name and
address of the successor's transferor.
(3) The nature of the interest or estate of the owner.
(4) The date of completion. An erroneous statement of the date of
completion does not affect the effectiveness of the notice if the
true date of completion is 15 days or less before the date of
recordation of the notice.
(d) A notice of completion that does not comply with the
provisions of this section is not effective.
8153. A notice of completion in otherwise proper form, verified
and containing the information required by this title, shall be
accepted by the recorder for recording and is deemed duly recorded
without acknowledgment.
8154. If a work of improvement is made pursuant to two or more
direct contracts, each covering a portion of the work of improvement:
(a) The owner may record a notice of completion of a direct
contract for a portion of the work of improvement. On recordation of
the notice of completion, for the purpose of Sections 8412 and 8414,
a direct contractor is deemed to have completed the contract for
which the notice of completion is recorded and a claimant other than
a direct contractor is deemed to have ceased providing work.
(b) If the owner does not record a notice of completion under this
section, the period for recording a claim of lien is that provided
in Sections 8412 and 8414.
8155. (a) An owner may record a notice of cessation if there has
been a continuous cessation of labor on a work of improvement for at
least 30 days prior to the recordation that continues through the
date of the recordation.
(b) The notice shall be signed and verified by the owner.
(c) The notice shall comply with the requirements of Article 4
(commencing with Section 8100), and shall also include all of the
following information:
(1) The date on or about which labor ceased.
(2) A statement that the cessation has continued until the
recordation of the notice.
8156. (a) An owner that records a notice of completion or
cessation shall, within 10 days of the date the notice of completion
or cessation is filed for record, give a copy of the notice to all of
the following persons:
(1) A direct contractor.
(2) A claimant that has given the owner preliminary notice.
(b) The copy of the notice shall be given in compliance with the
requirements of Article 3 (commencing with Section 8100).
(c) If the owner fails to give notice to a person as required by
subdivision (a), the notice is ineffective to shorten the time within
which that person may record a claim of lien under Sections 8412 and
8414. The ineffectiveness of the notice is the sole liability of the
owner for failure to give notice to a person under subdivision (a).
(d) This section does not apply to any of the following owners:
(1) A person that occupies the property as a personal residence,
if the dwelling contains four or fewer residential units.
(2) A person that has a security interest in the property.
(3) A person that obtains an interest in the property pursuant to
a transfer described in subdivision (b), (c), or (d) of Section
1102.2.
Article 7. Waiver and Release
8160. An owner, direct contractor, or subcontractor may not, by
contract or otherwise, waive, affect, or impair any other claimant's
rights under this title, whether with or without notice, and any term
of a contract that purports to do so is void and unenforceable
unless and until the claimant executes and delivers a waiver and
release under this article.
8162. A claimant's waiver and release does not release the owner,
construction lender, or surety on a payment bond from a lien or
claim unless both of the following conditions are satisfied:
(a) The waiver and release is in substantially the form provided
in this article and is signed by the claimant.
(b) If the release is a conditional release, there is evidence of
payment to the claimant. Evidence of payment may be (1) the claimant'
s endorsement on a single or joint payee check that has been paid by
the financial institution on which it was drawn or (2) written
acknowledgment of payment by the claimant.
8164. An oral or written statement purporting to waive, release,
impair or otherwise adversely affect a lien or claim is void and
unenforceable and does not create an estoppel or impairment of the
lien or claim unless either of the following conditions is satisfied:
(a) The statement is pursuant to a waiver and release under this
article.
(b) The claimant has actually received payment in full for the
claim.
8166. (a) A claimant may reduce the amount of, or release in its
entirety, a stop payment notice. The reduction or release shall be in
writing and may be given in a form other than a waiver and release
form provided in this article.
(b) The writing shall identify whether it is a reduction of the
amount of the stop payment notice, or a release of the notice in its
entirety. If the writing is a reduction, it shall state the amount of
the reduction, and the amount to remain withheld after the
reduction.
(c) A claimant's reduction or release of a stop payment notice has
the following effect:
(1) The reduction or release releases the claimant's right to
enforce payment of the claim stated in the notice to the extent of
the reduction or release.
(2) The reduction or release releases the person given the notice
from the obligation to withhold funds pursuant to the notice to the
extent of the reduction or release.
(3) The reduction or release does not preclude the claimant from
giving a subsequent stop payment notice that is timely and proper.
(4) The reduction or release does not release any right of the
claimant other than the right to enforce payment of the claim stated
in the stop payment notice to the extent of the reduction or release.
8168. This article does not affect the enforceability of either
an accord and satisfaction concerning a good faith dispute or an
agreement made in settlement of an action pending in court if the
accord and satisfaction or agreement and settlement make specific
reference to the lien or claim.
8170. If a claimant is required to execute a waiver and release
in exchange for, or in order to induce payment of, a progress payment
and the claimant is not, in fact, paid in exchange for the waiver
and release or a single payee check or joint payee check is given in
exchange for the waiver and release, the waiver and release shall be
in substantially the following form:
Conditional Waiver and Release on Progress
Payment
NOTICE: This document waives the claimant's
lien and certain other rights effective on
receipt of payment. A person should not rely on
this document unless satisfied that the
claimant has received payment.
Identifying Information
Name of Claimant: ______________________________
Name of Customer: ______________________________
Job Location: __________________________________
Owner: _________________________________________
Through Date: __________________________________
Conditional Waiver and Release
This document waives and releases lien, stop
payment notice, and payment bond rights the
claimant has for labor and service provided,
and equipment and material delivered, to the
customer on this job through the Through Date
of this document. This document is
effective only on the claimant's receipt of
payment from the financial institution on which
the following check is drawn:
Maker of Check:_________________________________
Amount of Check: $______________________________
Check Payable to:_______________________________
Exceptions
This document does not affect any of the
following:
(1) Retentions.
(2) Extras for which the claimant has not
received payment.
(3) The following progress payments for which
the claimant has previously given a conditional
waiver and release but has not received payment:
Date(s) of waiver and release:__________________
Amount(s) of unpaid progress payment(s): $______
This document does not affect contract rights,
including (A) a right based on rescission,
abandonment, or breach of contract, and (B) the
right to recover compensation for work not
compensated by the payment.
Signature
Claimant's Signature: __________________________
Claimant's Title: ______________________________
Date of Signature: ____________________________
8172. If the claimant is required to execute a waiver and release
in exchange for, or in order to induce payment of, a progress
payment and the claimant asserts in the waiver it has, in fact, been
paid the progress payment, the waiver and release shall be in
substantially the following form, with the text of the "Notice to
Claimant" in at least as large a type as the largest type otherwise
in the form:
Unconditional Waiver and Release on Progress
Payment
NOTICE TO CLAIMANT: This document waives and
releases rights unconditionally and states that
you have been paid for giving up those rights.
This document is enforceable against you if you
sign it, even if you have not been paid.
If you have not been paid, use a conditional
waiver and release form.
Identifying Information
Name of Claimant: ______________________________
Name of Customer: ______________________________
Job Location: __________________________________
Owner: _________________________________________
Through Date: __________________________________
Unconditional Waiver and Release
This document waives and releases lien, stop
payment notice, and payment bond rights the
claimant has for labor and service provided,
and equipment and material delivered, to the
customer on this job through the Through Date
of this document.
The claimant has received the following
progress payment:
$ _________________________________
Exceptions
This document does not affect any of the
following:
(1) Retentions.
(2) Extras for which the claimant has not
received payment. This document does not
affect contract rights, including (A) a right
based on rescission, abandonment, or breach of
contract, and (B) the right to recover
compensation for work not compensated by the
payment.
Signature
Claimant's Signature: __________________________
Claimant's Title: ______________________________
Date of Signature: ____________________________
8174. If the claimant is required to execute a waiver and release
in exchange for, or in order to induce payment of, a final payment
and the claimant is not, in fact, paid in exchange for the waiver and
release or a single payee check or joint payee check is given in
exchange for the waiver and release, the waiver and release shall be
in substantially the following form:
Conditional Waiver and Release on Final Payment
NOTICE: This document waives the claimant's
lien and certain other rights effective on
receipt of payment. A person should not rely on
this document unless satisfied that the
claimant has received payment.
Identifying Information
Name of Claimant: ______________________________
Name of Customer: ______________________________
Job Location: __________________________________
Owner: _________________________________________
Conditional Waiver and Release
This document waives and releases lien, stop
payment notice, and payment bond rights the
claimant has for labor and service provided,
and equipment and material delivered to the
customer on this job. This document is
effective only on the claimant's receipt of
payment from the financial institution on which
the following check is drawn:
Maker of Check: ________________________________
Amount of Check: $______________________________
Check Payable to: ______________________________
Exceptions
This document does not affect any of the
following:
(1) Disputed claims for extras in the amount
of: $ __________________________________________
(2) The following progress payments for which
the claimant has previously given a conditional
waiver and release but has not received payment:
Date(s) of waiver and release: _________________
Amount(s) of unpaid progress payment(s): $ _____
Signature
Claimant's Signature: __________________________
Claimant's Title: ______________________________
Date of Signature: ____________________________
8176. If the claimant is required to execute a waiver and release
in exchange for, or in order to induce payment of, a final payment
and the claimant asserts in the waiver it has, in fact, been paid the
final payment, the waiver and release shall be in substantially the
following form, with the text of the "Notice to Claimant" in at least
as large a type as the largest type otherwise in the form:
Unconditional Waiver and Release on Final
Payment
NOTICE TO CLAIMANT: This document waives and
releases rights unconditionally and states that
you have been paid for
giving up those rights.
This document is enforceable against you if you
sign it, even if you have not been paid.
If you have not been paid, use a conditional
waiver and release form.
Identifying Information
Name of Claimant: ______________________________
Name of Customer: ______________________________
Job Location: __________________________________
Owner: _________________________________________
Unconditional Waiver and Release
This document waives and releases lien, stop
payment notice, and payment bond rights the
claimant has for all labor and service
provided, and equipment and material delivered,
to the customer on this job. The claimant has
been paid in full.
Exception
This document does not affect the following:
Disputed claims for extras in the amount of: $ _
Signature
Claimant's Signature: __________________________
Claimant's Title: ______________________________
Date of Signature: ____________________________
CHAPTER 2. PRELIMINARY NOTICE
8200. (a) Except as otherwise provided by statute, before
recording a lien claim, giving a stop payment notice, or asserting a
claim against a payment bond, a claimant shall give preliminary
notice to the following persons:
(1) The owner or reputed owner.
(2) The direct contractor or reputed direct contractor to which
the claimant provides work, either directly or through one or more
subcontractors.
(3) The construction lender or reputed construction lender, if
any.
(b) The notice shall comply with the requirements of Article 3
(commencing with Section 8100) of Chapter 1.
(c) Compliance with this section is a necessary prerequisite to
the validity of a lien claim or stop payment notice under this title.
(d) Compliance with this section or with Section 8612 is a
necessary prerequisite to the validity of a claim against a payment
bond under this title.
(e) Notwithstanding the foregoing subdivisions:
(1) A laborer is not required to give preliminary notice.
(2) A claimant with a direct contractual relationship with an
owner or reputed owner is required to give preliminary notice only to
the construction lender or reputed construction lender, if any.
8202. (a) The preliminary notice shall comply with the
requirements of Section 8102, and shall also include:
(1) A general description of the work to be provided.
(2) An estimate of the total price of the work provided and to be
provided.
(3) The following statement in boldface type:
NOTICE TO PROPERTY OWNER
EVEN THOUGH YOU HAVE PAID YOUR CONTRACTOR IN
FULL, if the person or firm that has given you
this notice is not paid in full for
labor, service, equipment, or material provided
or to be provided to your construction project,
a lien may be placed on your property.
Foreclosure of the lien may lead to loss of all
or part of your property. You may wish to
protect yourself against this by (1) requiring
your contractor to provide a signed release by
the person or firm that has given you this
notice before making payment to your
contractor, or (2) any other method that is
appropriate under the circumstances.
This notice is required by law to be served by
the undersigned as a statement of your legal
rights. This notice is not intended to reflect
upon the financial condition of the contractor
or the person employed by you on the
construction project.
If you record a notice of cessation or
completion of your construction project, you
must within 10 days after recording, send a
copy of the notice of completion to your
contractor and the person or firm that has
given you this notice. The notice must be sent
by registered or certified mail. Failure to
send the notice will extend the deadline to
record a claim of lien. You are not required to
send the notice if you are a residential
homeowner of a dwelling containing four or
fewer units.
(b) If preliminary notice is given by a subcontractor that has not
paid all compensation due to a laborer, the notice shall include the
name and address of the laborer and any person or entity described
in subdivision (b) of Section 8020 to which payments are due.
(c) If an invoice for material or certified payroll contains the
information required by this section and Section 8102, a copy of the
invoice or payroll, given in compliance with the requirements of
Article 3 (commencing with Section 8100) of Chapter 1, is sufficient.
8204. (a) A preliminary notice shall be given not later than 20
days after the claimant has first furnished work on the work of
improvement. If work has been provided by a claimant who did not give
a preliminary notice, that claimant shall not be precluded from
giving a preliminary notice at any time thereafter. The claimant
shall, however, be entitled to record a lien, give a stop payment
notice, and assert a claim against a payment bond only for work
performed within 20 days prior to the service of the preliminary
notice, and at any time thereafter.
(b) A licensed architect, licensed landscape architect, registered
engineer, or licensed land surveyor who has furnished services for
the design of the work of improvement and who gives a preliminary
notice not later than 20 days after the work of improvement has
commenced shall be deemed to have complied with Section 8200 with
respect to the design services furnished, or to be furnished.
8206. (a) Except as provided in subdivision (b), a claimant need
give only one preliminary notice to each person to which notice must
be given under this chapter with respect to all work provided by the
claimant for a work of improvement.
(b) If a claimant provides work pursuant to contracts with more
than one subcontractor, the claimant shall give a separate
preliminary notice with respect to work provided pursuant to each
contract.
(c) A preliminary notice that contains a general description of
work provided by the claimant through the date of the notice also
covers work provided by the claimant after the date of the notice
whether or not they are within the scope of the general description
contained in the notice.
8208. A direct contractor shall make available to any person
seeking to give preliminary notice the following information:
(a) The name and address of the owner.
(b) The name and address of the construction lender, if any.
8210. If a construction loan is obtained after commencement of a
work of improvement, the owner shall give notice of the name and
address of the construction lender to each person that has given the
owner preliminary notice.
8212. An agreement made or entered into by an owner whereby the
owner agrees to waive the rights conferred on the owner by this
chapter is void and unenforceable.
8214. The county recorder may cause to be destroyed all documents
filed under subdivision (o) of former Section 3097 as that section
read on January 1, 2008.
8216. If the contract of any subcontractor on a particular work
of improvement provides for payment to the subcontractor of more than
four hundred dollars ($400), the failure of that subcontractor,
licensed under the Contractors' State License Law (Chapter 9
(commencing with Section 7000) of Division 3 of the Business and
Professions Code), to give the notice provided for in this chapter,
constitutes grounds for disciplinary action under the Contractors'
State License Law.
CHAPTER 3. DESIGN PROFESSIONALS LIEN
8300. Notwithstanding Section 8028, for purposes of this chapter
"owner" means a fee owner of a site.
8302. (a) A design professional has, from the date of recordation
of a claim of lien under this chapter, a lien on the site
notwithstanding the absence of commencement of the planned work of
improvement, if the owner who contracted for the design professional'
s services is also the owner of the site at the time of recordation
of the claim of lien.
(b) The lien of the design professional is for the amount of the
design professional's fee for services provided under the contract or
the reasonable value of those services, whichever is less. The
amount of the lien is reduced by the amount of any deposit or prior
payment under the contract.
(c) A design professional may not record a claim of lien, and a
lien may not be created, under this chapter unless a building permit
or other governmental approval in furtherance of the work of
improvement has been obtained in connection with or utilizing the
services provided by the design professional.
8304. A design professional is not entitled to a lien under this
chapter unless all of the following conditions are satisfied:
(a) The work of improvement for which the design professional
provided services has not commenced.
(b) The owner defaults in a payment required under the contract or
refuses to pay the demand of the design professional made under the
contract.
(c) Not less than 10 days before recording a claim of lien, the
design professional gives the owner notice making a demand for
payment, and stating that a default has occurred under the contract
and the amount of the default.
(d) The design professional records a claim of lien. The claim of
lien shall include all of the following information:
(1) The name of the design professional.
(2) The amount of the claim.
(3) The current owner of record of the site.
(4) A legal description of the site.
(5) Identification of the building permit or other governmental
approval for the work of improvement.
8306. (a) On recordation of the claim of lien, a lien is created
in favor of the named design professional.
(b) The lien automatically expires and is null and void and of no
further force or effect on the occurrence of either of the following
events:
(1) The commencement of the work of improvement for which the
design professional provided services.
(2) The expiration of 90 days after recording the claim of lien,
unless the design professional commences an action to enforce the
lien within that time.
(c) If the owner partially or fully satisfies the lien, the design
professional shall execute and record a document that evidences a
partial or full satisfaction and release of the lien, as applicable.
8308. (a) Except as provided in subdivision (b), no provision of
this title applies to a lien created under this chapter.
(b) The following provisions of this title apply to a lien created
under this chapter:
(1) This chapter.
(2) Article 1 (commencing with Section 8000) of Chapter 1.
(3) Section 8424.
(4) Article 6 (commencing with Section 8460) of Chapter 4.
(5) Article 7 (commencing with Section 8480) of Chapter 4.
(6) Article 8 (commencing with Section 8490) of Chapter 4.
8310. This chapter does not affect the ability of a design
professional to obtain a lien for a work of improvement under Section
8400.
8312. A design professional shall record a claim of lien under
this chapter no later than 90 days after the design professional
knows or has reason to know that the work of improvement will not be
commenced.
8314. The creation of a lien under this chapter does not affect
the ability of the design professional to pursue other remedies.
8316. (a) No lien created under this chapter affects or takes
priority over the interest of record of a purchaser, lessee, or
encumbrancer, if the interest of the purchaser, lessee, or
encumbrancer in the property was duly recorded before recordation of
the claim of lien.
(b) No lien created under this chapter affects or takes priority
over an encumbrance of a construction lender that funds the loan for
the work of improvement for which the design professional provided
services.
8318. A design professional may not obtain a lien under this
chapter for services provided for a work of improvement relating to a
single-family, owner-occupied residence for which the expected
construction cost is less than one hundred thousand dollars
($100,000).
CHAPTER 4. MECHANICS LIEN
Article 1. Who is Entitled to Lien
8400. A person that provides work authorized for a work of
improvement, including, but not limited to, the following persons,
has a lien right under this chapter:
(a) Direct contractor.
(b) Subcontractor.
(c) Material supplier.
(d) Equipment lessor.
(e) Laborer.
(f) Design professional.
8402. A person that provides work authorized for a site
improvement has a lien right under this chapter.
8404. Work is authorized for a work of improvement or for a site
improvement in any of the following circumstances:
(a) It is provided at the request of or agreed to by the owner.
(b) It is provided or authorized by a direct contractor,
subcontractor, architect, project manager, or other person having
charge of all or part of the work of improvement or site improvement.
Article 2. Conditions to Enforcing a Lien
8410. A claimant may enforce a lien only if the claimant has
given preliminary notice to the extent required by Chapter 2
(commencing with Section 8200) and made proof of notice.
8412. A direct contractor may not enforce a lien unless the
contractor records a claim of lien after the contractor completes the
direct contract, and before the earlier of the following times:
(a) Ninety days after completion of the work of improvement.
(b) Sixty days after the owner records a notice of completion or
cessation.
8414. A claimant other than a direct contractor may not enforce a
lien unless the claimant records a claim of lien within the
following times:
(a) After the claimant ceases to provide work.
(b) Before the earlier of the following times:
(1) Ninety days after completion of the work of improvement.
(2) Thirty days after the owner records a notice of completion or
cessation.
8416. (a) A claim of lien shall be in writing, signed and
verified by the claimant, containing all of the following:
(1) A statement of the claimant's demand after deducting all just
credits and offsets.
(2) The name of the owner or reputed owner, if known.
(3) A general statement of the kind of work provided by the
claimant.
(4) The name of the person by whom the claimant was employed or to
whom the claimant furnished work.
(5) A description of the site sufficient for identification.
(6) The claimant's address.
(7) A proof of service affidavit completed and signed by the
person serving the claim of lien pursuant to Section 8418. The
affidavit shall show the date, place, and manner of service, and
facts showing that the service was made in compliance with Section
8418. The affidavit shall show the name and address of the person or
persons upon whom the claim of lien was served, and, if appropriate,
the title or capacity in which he or she was served.
(8) The following statement, printed in at least 10-point boldface
type. The letters of the last sentence shall be printed in uppercase
type, excepting the Internet Web site address of the Contractors'
State License Board, which shall be printed in lowercase type:
""NOTICE OF MECHANICS LIEN
ATTENTION!
Upon the recording of the enclosed claim of
lien with the county recorder's office of the
county where the property is located, your
property is subject to the filing of a legal
action seeking a court-ordered foreclosure sale
of the real property on which the lien has been
recorded. That legal action must be filed with
the court no later than 90 days after the date
the claim of lien is recorded.
The party identified in the claim of lien may
have provided labor or materials for
improvements to your property and may not have
been paid for these items. You are receiving
this notice because it is a required step in
filing a mechanics lien foreclosure action
against your property. The foreclosure action
will seek a sale of your property in order to
pay for unpaid labor, materials, or
improvements provided to your property. This
may affect your ability to borrow against,
refinance, or sell the property until the
mechanics lien is released.
BECAUSE THE LIEN AFFECTS YOUR PROPERTY, YOU
MAY WISH TO SPEAK WITH YOUR CONTRACTOR
IMMEDIATELY, OR CONTACT AN ATTORNEY, OR FOR
MORE INFORMATION ON MECHANICS LIENS GO TO THE
CONTRACTORS' STATE LICENSE BOARD WEB SITE AT
www.cslb.ca.gov.''
(b) A claim of lien in otherwise proper form, verified and
containing the information required in subdivision (a), shall be
accepted by the recorder for recording and shall be deemed duly
recorded without acknowledgment.
8418. (a) The claim of lien described in Section 8416 shall be
served on the owner or reputed owner. Service shall be made as
follows:
(1) For an owner or reputed owner to be notified who resides in or
outside this state, by registered mail, certified mail, or
first-class mail, evidenced by a certificate of mailing, postage
prepaid, addressed to the owner or reputed owner at the owner's or
reputed owner's residence or place of business address or at the
address shown by the building permit on file with the authority
issuing a building permit for the work, or as otherwise provided in
Section 8134.
(2) If the owner or reputed owner cannot be served by this method,
then the notice may be given by registered mail, certified mail, or
first-class mail, evidenced by a certificate of mailing, postage
prepaid, addressed to the construction lender or to the original
contractor.
(b) Service by registered mail, certified mail, or first-class
mail, evidenced by a certificate of mailing, postage prepaid, is
complete at the time of the deposit of that first-class, certified,
or registered mail.
(c) Failure to serve the claim of lien as prescribed by this
section shall cause the claim of lien to be unenforceable as a matter
of law.
8422. (a) Except as provided in subdivision (b), erroneous
information contained in a claim of lien relating to the claimant's
demand, credits and offsets deducted, the work provided, or the
description of the site, does not invalidate the claim of lien.
(b) Erroneous information contained in a claim of lien relating to
the claimant's demand, credits and offsets deducted, or the work
provided, invalidates the claim of lien if the court determines
either of the following:
(1) The claim of lien was made with intent to slander title or
defraud.
(2) An innocent third party, without notice, actual or
constructive, became the bona fide owner of the property after
recordation of the claim of lien, and the claim of lien was so
deficient that it did not put the party on further inquiry in any
manner.
8424. (a) An owner of property subject to a recorded claim of
lien or a direct contractor or subcontractor affected by the claim of
lien that disputes the correctness or validity of the claim may
obtain release of the property from the claim of lien by recording a
lien release bond. The principal on the bond may be the owner of the
property, the direct contractor, or the subcontractor.
(b) The bond shall be conditioned on payment of any judgment and
costs the claimant recovers on the lien. The bond shall be in an
amount equal to 150 percent of the amount of the claim of lien or 150
percent of the amount allocated in the claim of lien to the property
to be released. The bond shall be executed by an admitted surety
insurer.
(c) The bond may be recorded either before or after commencement
of an action to enforce the lien. On recordation of the bond, the
property is released from the claim of lien and from any action to
enforce the lien.
(d) A person that obtains and records a lien release bond shall
give notice to the claimant. The notice shall comply with the
requirements of Article 3 (commencing with Section 8100) of Chapter 1
and shall include a copy of the bond. Failure to give the notice
required by this section does not affect the validity of the bond,
but the statute of limitations for an action on the bond is tolled
until notice is given. The claimant shall commence an action on the
bond within six months after notice is given.
Article 3. Amount of Lien
8430. (a) The lien is a direct lien for the lesser of the
following amounts:
(1) The reasonable value of the work provided by the claimant.
(2) The price agreed to by the claimant and the person that
contracted for the work.
(b) The lien is not limited in amount by the contract price for
the work of improvement except as provided in Section 8602.
(c) This section does not preclude the claimant from including in
a claim of lien work performed as a result of rescission,
abandonment, or breach of the contract. If there is a rescission,
abandonment, or breach of the contract, the amount of the lien may
not exceed the reasonable value of the work provided by the claimant.
8432. (a) A lien does not extend to work, whether or not the work
is authorized by a direct contractor or subcontractor, if the work
is not included in a direct contract, and the claimant had actual
knowledge or constructive notice of the provisions of that contract
before providing the work.
(b) The filing of a contract with the county recorder, before the
commencement of a work of improvement, is constructive notice of the
provisions of the contract to a person providing work on that work of
improvement.
8434. A direct contractor or a subcontractor may enforce a lien
only for the amount due pursuant to that contractor's contract after
deducting all lien claims of other claimants for work provided and
embraced within that contract.
Article 4. Property Subject to Lien
8440. Subject to Section 8442, a lien attaches to the work of
improvement and to the property on which the work of improvement is
situated, including as much space about the work of improvement as is
required for the convenient use and occupation of the work of
improvement.
8442. The following interests in property to which a lien
attaches are subject to the lien:
(a) The interest of a person that contracted for the work of
improvement.
(b) The interest of a person that did not contract for the work of
improvement, if work for which the lien is claimed was provided with
the knowledge of the person. This subdivision does not apply to the
interest of a person that gives notice of nonresponsibility under
Section 8444.
8444. (a) An owner of property on which a work of improvement is
situated that did not contract for the work of improvement may give
notice of nonresponsibility.
(b) A notice of nonresponsibility shall be signed and verified by
the owner.
(c) The notice shall comply with the requirements of Article 3
(commencing with Section 8100) of Chapter 1.
(d) The notice shall also include all of the following
information:
(1) The nature of the owner's title or interest.
(2) The name of a purchaser under contract, if any, or lessee, if
known.
(3) A statement that the person giving the notice is not
responsible for claims arising from the work of improvement.
(e) A notice of nonresponsibility is not effective unless, within
10 days after the person giving notice has knowledge of the work of
improvement, the person both posts and records the notice.
8446. A claimant may record one claim of lien on two or more
works of improvement, subject to the following conditions:
(a) The works of improvement have or are reputed to have the same
owner, or the work was contracted for by the same person for the
works of improvement whether or not they have the same owner.
(b) The claimant in the claim of lien designates the amount due
for each work of improvement. If the claimant contracted for a lump
sum payment for work provided for the works of improvement and the
contract does not segregate the amount due for each work of
improvement separately, the claimant may estimate an equitable
distribution of the amount due for each work of improvement based on
the proportionate amount of work provided for each. If the claimant
does not designate the amount due for each work of improvement, the
lien is subordinate to other liens.
(c) If there is a single structure on property of different
owners, the claimant need not segregate the proportion of work
provided for the portion of the structure situated on property of
each owner. In the lien enforcement action the court may, if it
determines it equitable to do so, designate an equitable distribution
of the lien among the property of the owners.
(d) The lien does not extend beyond the amount designated as
against other creditors having liens, by judgment, mortgage, or
otherwise, on either the works of improvement or the property on
which the works of improvement are situated.
8448. (a) As used in this section, "separate residential unit"
means one residential structure, including a residential structure
containing multiple condominium units, together with any common area,
garage, or other appurtenant improvements.
(b) If a work of improvement consists of the construction of two
or more separate residential units:
(1) Each unit is deemed a separate work of improvement, and
completion of each unit is determined separately for purposes of the
time for recording a claim of lien on that unit. This paragraph does
not affect any lien right under Section 8402 or 8446.
(2) Material provided for the work of improvement is deemed to be
provided for use or consumption in each separate residential unit in
which the material is actually used or consumed; but if the claimant
is unable to segregate the amounts used or consumed in separate
residential units, the claimant has the right to all the benefits of
Section 8446.
Article 5. Priorities
8450. (a) A lien under this chapter, other than a lien provided
for in Section 8402, has priority over a lien, mortgage, deed of
trust, or other encumbrance on the work of improvement or the
property on which the work of improvement is situated, that (1)
attaches after commencement of the work of improvement or (2) was
unrecorded at the commencement of the work of improvement and of
which the claimant had no notice.
(b) Subdivision (a) is subject to the exception provided for in
Section 8452.
8452. A mortgage or deed of trust, otherwise subordinate to a
lien under Section 8450, has priority over a lien for work provided
after recordation of a payment bond that satisfies all of the
following requirements:
(a) The bond refers to the mortgage or deed of trust.
(b) The bond is in an amount not less than 75 percent of the
principal amount of the mortgage or deed of trust.
8454. If a site improvement is provided for in a direct
contract separate from the direct contract for the remainder of the
work of improvement, the site improvement is deemed a separate work
of improvement and commencement of the site improvement is not
commencement of the remainder of the work of improvement.
8456. (a) This section applies to a construction loan secured by
a mortgage or deed of trust that has priority over a lien under this
chapter.
(b) An optional advance of funds by the construction lender that
is used for construction costs has the same priority as a mandatory
advance of funds by the construction lender, provided that the total
of all advances does not exceed the amount of the original
construction loan.
8458. (a) Except as provided in subdivision (b), a lien provided
for in Section 8402 has priority over:
(1) A mortgage, deed of trust, or other encumbrance that attaches
after commencement of the site improvement.
(2) A mortgage, deed of trust, or other encumbrance that was
unrecorded at the commencement of the site improvement and of which
the claimant had no notice.
(3) A mortgage, deed of trust, or other encumbrance that was
recorded before commencement of the site improvement, if given for
the sole or primary purpose of financing the site improvement. This
subdivision does not apply if the loan proceeds are, in good faith,
placed in the control of the lender pursuant to a binding agreement
with the borrower to the effect that (A) the proceeds are to be
applied to the payment of claimants and (B) no portion of the
proceeds will be paid to the borrower in the absence of satisfactory
evidence that all claims have been paid or that the time for
recording a claim of lien has expired and no claim of lien has been
recorded.
(b) A mortgage or deed of trust, otherwise subordinate under
subdivision (a), has priority over a lien provided for in Section
8402 if a payment bond in an amount not less than 50 percent of the
principal amount of the mortgage or deed of trust is recorded before
completion of the work of improvement.
Article 6. Enforcement of Lien
8460. (a) The claimant shall commence an action to enforce a lien
within 90 days after recordation of the claim of lien. If the
claimant does not commence an action to enforce the lien within that
time, the claim of lien expires and is unenforceable.
(b) Subdivision (a) does not apply if the claimant and owner agree
to extend credit, and notice of the fact and terms of the extension
of credit is recorded (1) within 90 days after recordation of the
claim of lien or (2) more than 90 days after recordation of the claim
of lien but before a purchaser or encumbrancer for value and in good
faith acquires rights in the property. In that event the claimant
shall commence an action to enforce the lien within 90 days after the
expiration of the credit, but in no case later than one year after
completion of the work of improvement. If the claimant does not
commence an action to enforce the lien within that time, the claim of
lien expires and is unenforceable.
8461. After commencement of an action to enforce a lien, the
plaintiff shall record in the office of the county recorder of the
county, or of the several counties in which the property is situated,
a notice of the pendency of the action, as provided in Title 4.5
(commencing with Section 405) of Part 2 of the Code of Civil
Procedure, on or before 20 days after the commencement of the action.
Only from the time of recording that notice shall a purchaser or
encumbrancer of the property affected thereby be deemed to have
constructive notice of the pendency of the action, and in that event
only of its pendency against parties designated by their real names.
8462. Notwithstanding Section 583.420 of the Code of Civil
Procedure, the court may dismiss an action to enforce a lien that is
not brought to trial within two years after commencement of the
action.
8464. In addition to any other costs allowed by law, the court in
an action to enforce a lien shall allow as costs to each claimant
whose lien is established the amount paid to verify and record the
claim of lien, whether the claimant is a plaintiff or defendant.
8466. If there is a deficiency of proceeds from the sale of
property on a judgment for enforcement of a lien, a deficiency
judgment may be entered against a party personally liable for the
deficiency in the same manner and with the same effect as in an
action to foreclose a mortgage.
8468. (a) This chapter does not affect any of the following
rights of a claimant:
(1) The right to maintain a personal action to recover a debt
against the person liable, either in a separate action or in an
action to enforce a lien.
(2) The right to a writ of attachment. In an application for a
writ of attachment, the claimant shall refer to this section. The
claimant's recording of a claim of lien does not affect the right to
a writ of attachment.
(3) The right to enforce a judgment.
(b) A judgment obtained by the claimant in a personal action
described in subdivision (a) does not impair or merge the claim of
lien, but any amount collected on the judgment shall be credited on
the amount of the lien.
8470. In an action to enforce a lien for work provided to a
contractor:
(a) The contractor shall defend the action at the contractor's own
expense. During the pendency of the action the owner may withhold
from the direct contractor the amount of the lien claim.
(b) If the judgment in the action is against the owner or the
owner's property, the owner may deduct the amount of the judgment and
costs from any amount owed to the direct contractor. If the amount
of the judgment and costs exceeds the amount owed to the direct
contractor, or if the owner has settled with the direct contractor in
full, the owner may recover from the direct contractor, or the
sureties on a bond given by the direct contractor for faithful
performance of the direct contract, the amount of the judgment and
costs that exceed the contract price and for which the direct
contractor was originally liable.
Article 7. Release Order
8480. (a) The owner of property subject to a claim of lien may
petition the court for an order to release the property from the
claim of lien if the claimant has not commenced an action to enforce
the lien within the time provided in Section 8460.
(b) This article does not bar any other cause of action or claim
for relief by the owner of the property, including, but not limited
to, the filing of a complaint with the Contractors' State License
Board. A release order does not bar any other cause of action or
claim for relief by the claimant, other than an action to enforce the
claim of lien that is the subject of the release order.
(c) A petition for a release order under this article may be
joined with a pending action to enforce the claim of lien that is the
subject of the petition. No other action or claim for relief may be
joined with a petition under this article.
(d) Notwithstanding Section 8054, Chapter 2.5 (commencing with
Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure
does not apply to a proceeding under this article.
8482. An owner of property may not petition the court for a
release order under this article unless at least 10 days before
filing the petition the owner gives the claimant notice demanding
that the claimant execute and record a release of the claim of lien.
The notice shall comply with the requirements of Article 3
(commencing with Section 8100) of Chapter 1, and shall state the
grounds for the demand.
8484. A petition for a release order shall be verified and shall
allege all of the following:
(a) The date of recordation of the claim of lien. A certified copy
of the claim of lien shall be attached to the petition.
(b) The county in which the claim of lien is recorded.
(c) The book and page or series number of the place in the
official records where the claim of lien is recorded.
(d) The legal description of the property subject to the claim of
lien.
(e) The facts on which the petition is based. If the petition is
based on expiration of the time to enforce the lien, the petition
shall state whether an extension of credit has been granted under
Section 8460, if so to what date, and shall allege that the time for
commencement of an action to enforce the lien has expired.
(f) That the owner has given the claimant notice under Section
8482 demanding that the claimant execute and record a release of the
lien and that the claimant is unable or unwilling to do so or cannot
with reasonable diligence be found.
(g) Whether an action to enforce the lien is pending.
(h) Whether the owner has filed for relief in bankruptcy or there
is another restraint that prevents the claimant from commencing an
action to enforce the lien.
8486. (a) On the filing of a petition for a release order, the
clerk shall set a hearing date. The date shall be not more than 30
days after the filing of the petition. The court may continue the
hearing only on a showing of good cause, but in any event the court
shall rule and make any necessary orders on the petition not later
than 60 days after the filing of the petition.
(b) The petitioner shall serve a copy of the petition and a notice
of hearing on the claimant at least 15 days before the hearing.
Service shall be made in the same manner as service of summons, or by
certified or registered mail, postage prepaid, return receipt
requested, addressed to the claimant as provided in Section 8108.
(c) Notwithstanding Section 8116, when service is made by mail,
service is complete on the fifth day following deposit of the
petition and notice in the mail.
8488. (a) At the hearing both (1) the petition and (2) the issue
of compliance with the service and date for hearing requirements of
this article are deemed controverted by the claimant. The petitioner
has the initial burden of producing evidence on those matters. The
petitioner has the burden of proof as to the issue of compliance with
the service and date for hearing requirements of this article. The
claimant has the burden of proof as to the validity of the lien.
(b) If judgment is in favor of the petitioner, the court shall
order the property released from the claim of lien.
(c) The prevailing party is entitled to reasonable attorney's
fees.
Article 8. Removal of Claim of Lien from Record
8490. (a) A court order dismissing a cause of action to enforce a
lien or releasing property from a claim of lien, or a judgment that
no lien exists, shall include all of the following information:
(1) The date of recordation of the claim of lien.
(2) The county in which the claim of lien is recorded.
(3) The book and page or series number of the place in the
official records where the claim of lien is recorded.
(4) The legal description of the property.
(b) A court order or judgment under this section is equivalent to
cancellation of the claim of lien and its removal from the record.
(c) A court order or judgment under this section is a recordable
instrument. On recordation of a certified copy of the court order or
judgment, the property described in the order or judgment is released
from the claim of lien.
(d) This section does not apply to a court order dismissing an
action to enforce a lien that is expressly stated to be without
prejudice.
8494. If a claim of lien expires and is unenforceable under
Section 8460, or if a court order or judgment is recorded under
Section 8490, the claim of lien does not constitute actual or
constructive notice of any of the matters contained, claimed,
alleged, or contended in the claim of lien, or create a duty of
inquiry in any person thereafter dealing with the affected property.
CHAPTER 5. STOP PAYMENT NOTICE
Article 1. General Provisions
8500. The rights of all persons furnishing work for any work of
improvement, with respect to any fund for payment of construction
costs, are governed exclusively by this chapter, and no person may
assert any legal or equitable right with respect to the fund, other
than a right created by a written contract between that person and
the person holding the fund, except pursuant to the provisions of
this chapter.
8502. (a) A stop payment notice shall comply with the
requirements of Section 8102, and shall be signed and verified by the
claimant.
(b) The notice shall include a general description of work to be
provided, and an estimate of the total amount in value of the work to
be provided.
(c) The amount claimed in the notice may include only the amount
due the claimant for work provided through the date of the notice.
8504. A claimant that willfully gives a false stop payment notice
or that willfully includes in the notice a demand to withhold for
work that has not been provided forfeits all right to participate in
the distribution of the funds withheld and all right to a lien under
Chapter 4 (commencing with Section 8400).
8506. (a) A stop payment notice to an owner shall be given to the
owner or to the owner's architect, if any.
(b) A stop payment notice to a construction lender holding
construction funds shall not be effective unless given to the manager
or other responsible officer or person at the office or branch of
the lender administering or holding the construction funds.
(c) A stop payment notice shall comply with the requirements of
Article 3 (commencing with Section 8100) of Chapter 1.
8508. A stop payment notice is not valid unless both of the
following conditions are satisfied:
(a) The claimant gave preliminary notice to the extent required by
Chapter 2 (commencing with Section 8200).
(b) The claimant gave the stop payment notice before expiration of
the time within which a claim of lien must be recorded under Chapter
4 (commencing with Section 8400).
8510. (a) A person may obtain release of funds withheld pursuant
to a stop payment notice by giving the person withholding the funds a
release bond.
(b) A release bond shall be given by an admitted surety insurer
and shall be conditioned for payment of any amount not exceeding the
penal obligation of the bond that the claimant recovers on the claim,
together with costs of suit awarded in the action. The bond shall be
in an amount equal to 125 percent of the amount claimed in the stop
payment notice.
(c) On receipt of a release bond, the person withholding funds
pursuant to the stop payment notice shall release them.
Article 2. Stop Payment Notice to Owner
8520. (a) A person that has a lien right under Chapter 4
(commencing with Section 8400), other than a direct contractor, may
give the owner a stop payment notice.
(b) The owner may give notice, in compliance with the requirements
of Article 3 (commencing with Section 8100) of Chapter 1, demanding
that a person that has a lien right under Chapter 4 (commencing with
Section 8400) give the owner a stop payment notice. If the person
fails to give the owner a bonded or unbonded stop payment notice, the
person forfeits the right to a lien under Chapter 4 (commencing with
Section 8400).
8522. (a) Except as provided in subdivision (b), on receipt of a
stop payment notice an owner shall withhold from the direct
contractor or from any person acting under authority of a direct
contractor a sufficient amount due or to become due to the direct
contractor to pay the claim stated in the notice.
(b) The owner may, but is not required to, withhold funds if the
owner has previously recorded a payment bond under Section 8602. If
the owner does not withhold funds, the owner shall, within 30 days
after receipt of the stop payment notice, give notice to the claimant
that a payment bond has been recorded and provide the claimant a
copy of the bond. The notice shall comply with the requirements of
Article 3 (commencing with Section 8100) of Chapter 1.
Article 3. Stop Payment Notice to Construction Lender
8530. A person that has a lien right under Chapter 4 (commencing
with Section 8400) may give a construction lender a stop payment
notice.
8532. A claimant may give a construction lender a stop payment
notice accompanied by a bond in an amount equal to 125 percent of the
amount of the claim. The bond shall be conditioned that if the
defendant recovers judgment in an action to enforce payment of the
claim stated in the stop payment notice or to enforce a claim of lien
recorded by the claimant, the claimant will pay all costs that are
awarded the owner, direct contractor, or construction lender, and all
damages to the owner, direct contractor, or construction lender that
result from the stop payment notice or recordation of the claim of
lien, not exceeding the amount of the bond.
8534. (a) A construction lender that objects to the sufficiency
of sureties on the bond given with a bonded stop payment notice shall
give notice to the claimant of the objection, within 20 days after
the bonded stop payment notice is given. The notice shall comply with
the requirements of Article 3 (commencing with Section 8100) of
Chapter 1.
(b) The claimant may within 10 days after notice of the objection
is given substitute for the initial bond a bond executed by an
admitted surety insurer. If the claimant does not substitute a bond
executed by an admitted surety insurer, the construction lender may
disregard the bonded stop payment notice and release all funds
withheld in response to that notice.
8536. (a) Except as provided in subdivision (b), on receipt of a
stop payment notice a construction lender shall withhold from the
borrower or other person to whom the lender or the owner is obligated
to make payments or advancement out of the construction fund
sufficient funds to pay the claim stated in the notice.
(b) The construction lender may, at its option, elect not to
withhold funds in any of the following circumstances:
(1) The stop payment notice is unbonded.
(2) The stop payment notice is given by a claimant other than a
direct contractor, and a payment bond is recorded before the lender
is given any stop payment notice.
8538. (a) The claimant may make a written request for notice of
an election by the construction lender under Section 8536 not to
withhold funds. The request shall be made at the time the claimant
gives the construction lender the stop payment notice and shall be
accompanied by a preaddressed, stamped envelope.
(b) If the construction lender elects not to withhold funds under
Section 8536, the lender shall, within 30 days after making the
election, give notice of that fact to a claimant who has requested
notice of the election under subdivision (a). The notice shall comply
with the requirements of Article 3 (commencing with Section 8100) of
Chapter 1. If the basis of the election is the recordation of a
payment bond under Section 8600, the construction lender shall
include a copy of the bond with the notice.
(c) A construction lender is not liable for failure to include a
copy of the bond with the notice under this section if all of the
following conditions are satisfied:
(1) The failure was not intentional and resulted from a bona fide
error.
(2) The lender maintains reasonable procedures to avoid an error
of that type.
(3) The lender corrected the error not later than 20 days after
the date the lender discovered the violation.
Article 4. Priorities
8540. (a) Funds withheld pursuant to a stop payment notice shall
be distributed in the following order of priority:
(1) First, to pay claims of persons that have given a bonded stop
payment notice. If funds are insufficient to pay the claims of those
persons in full, the funds shall be distributed pro rata among the
claimants in the ratio that the claim of each bears to the aggregate
of all claims for which a bonded stop payment notice is given.
(2) Second, to pay claims of persons that have given an unbonded
stop payment notice. If funds are insufficient to pay the claims of
those persons in full, the funds shall be distributed among the
claimants in the ratio that the claim of each bears to the aggregate
of all claims for which an unbonded stop payment notice is given.
(b) Pro rata distribution under this section shall be made among
the persons entitled to share in the distribution without regard to
the order in which the person has given a stop payment notice or
commenced an enforcement action.
8542. Notwithstanding Section 8540:
(a) If funds are withheld pursuant to a stop payment notice given
to a construction lender by a direct contractor or subcontractor, the
direct contractor or subcontractor may recover only the net amount
due the direct contractor or subcontractor after deducting any funds
that are withheld by the construction lender pursuant to the claims
of subcontractors and material suppliers that have given a stop
payment notice for work done on behalf of the direct contractor or
subcontractor.
(b) In no event is the construction lender required to withhold,
pursuant to a stop payment notice, more than the net amount provided
in subdivision (a). Notwithstanding any other provision of this
chapter, a construction lender is not liable for failure to withhold
more than that net amount on receipt of a stop payment notice.
8544. The rights of a claimant who gives a construction lender a
stop payment notice are not affected by an assignment of construction
loan funds made by the owner or direct contractor, and the stop
payment notice has priority over the assignment, whether the
assignment is made before or after the stop payment notice is given.
Article 5. Enforcement of Claim Stated in Stop Payment Notice
8550. (a) A claimant shall commence an action to enforce payment
of the claim stated in a stop payment notice not earlier than 10 days
after the date the claimant gives the notice and not later than 90
days after expiration of the time within which a stop payment notice
must be given. The action may not be brought to trial or judgment
entered before expiration of the time prescribed in this subdivision.
(b) If a claimant does not commence an action to enforce payment
of the claim stated in a stop payment notice within the time
prescribed in subdivision (a), the notice ceases to be effective and
the person withholding funds pursuant to the notice shall release
them.
(c) Within five days after commencement of an action to enforce
payment of the claim stated in a stop payment notice, the claimant
shall give notice of commencement of the action to the persons to
whom the stop payment notice was given. The notice shall comply with
the requirements of Article 3 (commencing with Section 8100) of
Chapter 1.
8552. If more than one claimant has given a stop payment notice:
(a) Any number of claimants may join in the same enforcement
action.
(b) If claimants commence separate actions, the court first
acquiring jurisdiction may order the actions consolidated.
(c) On motion of the owner or construction lender the court shall
require all claimants to be impleaded in one action, to the end that
the rights of all parties may be adjudicated in the action.
8554. Notwithstanding Section 583.420 of the Code of Civil
Procedure, the court may dismiss an action to enforce payment of the
claim stated in a stop payment notice that is not brought to trial
within two years after commencement of the action.
8556. A stop payment notice ceases to be effective, and a person
withholding funds pursuant to the notice shall release them, in
either of the following circumstances:
(a) An action to enforce payment of the claim stated in the stop
payment notice is dismissed, unless expressly stated to be without
prejudice.
(b) Judgment in an action to enforce payment of the claim stated
in the stop payment notice is against the claimant.
8558. (a) In an action to enforce payment of the claim stated in
a bonded stop payment notice, the prevailing party is entitled to a
reasonable attorney's fee in addition to costs and damages.
(b) The court, on notice and motion by a party, shall determine
who is the prevailing party or that there is no prevailing party for
the purpose of this section, regardless of whether the action
proceeds to final judgment. The prevailing party is the party that
recovers greater relief in the action, subject to the following
limitations:
(1) If the action is voluntarily dismissed or dismissed pursuant
to a settlement, there is no prevailing party.
(2) If the defendant tenders to the claimant the full amount to
which the claimant is entitled, and deposits in court for the
claimant the amount so tendered, and alleges those facts in the
answer and the allegation is determined to be true, the defendant is
deemed to be the prevailing party.
8560. If the claimant is the prevailing party in an action to
enforce payment of the claim stated in a bonded stop payment notice,
any amount awarded on the claim shall include interest at the legal
rate calculated from the date the stop payment notice is given.
CHAPTER 6. PAYMENT BOND
8600. (a) This section applies if, before the commencement of
work, the owner in good faith files a direct contract with the county
recorder, and records a payment bond of the direct contractor in an
amount not less than 50 percent of the price stated in the direct
contract.
(b) If the conditions of subdivision (a) are satisfied, the court
shall, where equitable to do so, restrict lien enforcement under this
title to the aggregate amount due from the owner to the direct
contractor and shall enter judgment against the direct contractor and
surety on the bond for any deficiency that remains between the
amount due to the direct contractor and the whole amount due to
claimants.
8602. Section 8600 does not preclude an owner from requiring a
performance bond, payment bond, or other security as protection
against a direct contractor's failure to perform the direct contract
or to make full payment for all work provided pursuant to the
contract.
8604. If a lending institution requires that a payment bond be
given as a condition of lending money to finance a work of
improvement, and accepts in writing as sufficient a bond given in
fulfillment of the requirement, the lending institution may not
thereafter object to the borrower as to the validity of the bond or
refuse to make the loan based on an objection to the bond if the bond
is given by an admitted surety insurer.
8606. (a) A payment bond under this title shall be conditioned
for the payment in full of the claims of all claimants and shall by
its terms inure to the
benefit of all claimants so as to give a claimant a right of action
to enforce the liability on the bond. The bond shall be given by an
admitted surety insurer.
(b) An owner, direct contractor, or subcontractor may be the
principal on the bond.
(c) A claimant may enforce the liability on the bond in an action
to enforce a lien under this part or in a separate action on the
bond.
8608. (a) This title does not give a claimant a right to recover
on a direct contractor's payment bond given under this chapter unless
the claimant provided work to the direct contractor either directly
or through one or more subcontractors, pursuant to a direct contract.
(b) Nothing in this section affects the stop payment notice right
of, and relative priorities among, design professionals and holders
of secured interests in the property.
8609. Any provision in a payment bond attempting by contract to
shorten the period prescribed in Section 337 of the Code of Civil
Procedure for the commencement of an action on the bond shall not be
valid under either of the following circumstances:
(a) If the provision attempts to limit the time for commencement
of an action on the bond to a shorter period than six months from the
completion of any work of improvement.
(b) As applied to any action brought by a claimant, unless the
bond is recorded before the work of improvement is commenced.
8610. Notwithstanding Section 8609, if a payment bond under this
title is recorded before completion of a work of improvement, an
action to enforce the liability on the bond may not be commenced
later than six months after completion of the work of improvement.
8612. (a) In order to enforce a claim against a payment bond
under this title, a claimant shall give the preliminary notice
provided in Chapter 2 (commencing with Section 8200).
(b) If preliminary notice was not given as provided in Chapter 2
(commencing with Section 8200), a claimant may enforce a claim by
giving written notice to the surety and the bond principal within 15
days after recordation of a notice of completion. If no notice of
completion has been recorded, the time for giving written notice to
the surety and the bond principal is extended to 75 days after
completion of the work of improvement.
CHAPTER 7. SECURITY FOR LARGE PROJECT
Article 1. Application of Chapter
8700. (a) This chapter applies if any of the following conditions
is satisfied:
(1) The owner of the fee interest in property contracts for a work
of improvement on the property with a contract price greater than
five million dollars ($5,000,000).
(2) The owner of a less than fee interest in property contracts
for a work of improvement on the property with a contract price
greater than one million dollars ($1,000,000).
(b) For the purpose of this section:
(1) The owner of the fee interest in property is not deemed to be
the owner of a less than fee interest by reason of a mortgage, deed
of trust, ground lease, or other lien or encumbrance or right of
occupancy that encumbers the fee interest.
(2) A lessee of property is deemed to be the owner of a fee
interest in the property if all of the following conditions are
satisfied:
(A) The initial term of the lease is at least 35 years.
(B) The lease covers one or more lawful parcels under the
Subdivision Map Act, Division 2 (commencing with Section 66410) of
Title 7 of the Government Code, and any applicable local ordinance
adopted under that act, in their entirety, including, but not limited
to, a parcel approved pursuant to a certificate of compliance
proceeding.
8702. This chapter does not apply to any of the following works
of improvement:
(a) A single-family residence, including a single-family residence
located within a subdivision, and any associated fixed work that
requires the services of a general engineering contractor as defined
in Section 7056 of the Business and Professions Code. As used in this
subdivision, "single-family residence" means a real property
improvement used or intended to be used as a dwelling unit for one
family.
(b) A housing development eligible for a density bonus under
Section 65915 of the Government Code.
8704. This chapter does not apply to any of the following owners:
(a) A qualified publicly traded company or a wholly owned
subsidiary of a qualified publicly traded company, if the obligations
of the subsidiary pursuant to the contract for the work of
improvement are guaranteed by the parent. As used in this
subdivision, "qualified publicly traded company" means a company
having a class of equity securities listed for trading on the New
York Stock Exchange, the American Stock Exchange, or the NASDAQ stock
market, and the nonsubordinated debt securities of which are rated
as "investment grade" by either Fitch ICBA, Inc., Moody's Investor
Services, Inc., Standard & Poor's Ratings Services, or a similar
statistical rating organization that is nationally recognized for
rating the creditworthiness of a publicly traded company. If at any
time before final payment of all amounts due pursuant to the contract
the nonsubordinated debt securities of the qualified publicly traded
company are downgraded to below "investment grade" by any of those
rating organizations, the owner is no longer exempt from this
chapter.
(b) A qualified private company or a wholly owned subsidiary of a
qualified private company, if the obligations of the subsidiary
pursuant to the contract for the work of improvement are guaranteed
by the parent. As used in this subdivision, "qualified private
company" means a company that has no equity securities listed for
trading on the New York Stock Exchange, the American Stock Exchange,
or the NASDAQ stock market, and that has a net worth determined in
accordance with generally accepted accounting principles in excess of
fifty million dollars ($50,000,000). If at any time before final
payment of all amounts due pursuant to the contract the net worth of
the qualified private company is reduced below that level, the owner
is no longer exempt from this chapter.
Article 2. Security Requirement
8710. An owner shall provide the direct contractor all of the
following:
(a) Security for the owner's payment obligation pursuant to the
contract. The security shall be used only if the owner defaults on
the payment obligation to the direct contractor. This subdivision
does not apply to an owner that is the majority owner of the direct
contractor.
(b) A copy, certified by the county recorder, of any recorded
mortgage or deed of trust that secures the construction loan of a
lending institution for the work of improvement, disclosing the
amount of the loan.
8712. If an owner fails to provide or maintain the security
required by this chapter, the direct contractor may give the owner
notice demanding security. The notice shall comply with the
requirements of Article 3 (commencing with Section 8100) of Chapter
1. If the owner does not provide or maintain the security within 10
days after notice demanding security is given, the direct contractor
may suspend work until the owner provides or maintains the security.
8714. It is against public policy to waive the provisions of this
chapter by contract.
8716. This chapter does not affect any statute providing a
subcontractor the right to record a claim of lien, give a stop
payment notice, assert a claim against a payment bond, or receive
prompt payment, including the direct contractor's payment
responsibilities under Section 7108.5 of the Business and Professions
Code.
Article 3. Form of Security
8720. An owner shall provide security by any of the following
means:
(a) A bond that satisfies Section 8722.
(b) An irrevocable letter of credit that satisfies Section 8724.
(c) An escrow account that satisfies Section 8726.
8722. A bond under this chapter shall satisfy all of the
following requirements:
(a) The bond shall be executed by an admitted surety insurer that
is either listed in the Department of the Treasury's Listing of
Approved Sureties (Department Circular 570) or that has an A.M. Best
rating of A or better and has an underwriting limitation, under
Section 12090 of the Insurance Code, greater than the amount of the
bond.
(b) The bond shall be in an amount not less than 15 percent of the
contract price for the work of improvement or, if the work of
improvement is to be substantially completed within six months after
the commencement of work, not less than 25 percent of the contract
price.
(c) The bond shall be conditioned for payment on default by the
owner of any undisputed amount pursuant to the contract that is due
and payable for more than 30 days.
8724. An irrevocable letter of credit under this chapter shall
satisfy all of the following requirements:
(a) The letter of credit shall be issued by a financial
institution, as defined in Section 5107 of the Financial Code,
inuring to the benefit of the direct contractor.
(b) The letter of credit shall be in an amount not less than 15
percent of the contract price for the work of improvement or, if the
work of improvement is to be substantially completed within six
months after the commencement of work, not less than 25 percent of
the contract price.
(c) The maturity date and other terms of the letter of credit
shall be determined by agreement between the owner, the direct
contractor, and the financial institution, except that the owner
shall maintain the letter of credit in effect until the owner has
satisfied its payment obligation to the direct contractor.
8726. An escrow account under this chapter shall satisfy all of
the following requirements:
(a) The account shall be designated as a "construction security
escrow account."
(b) The account shall be located in this state and maintained with
an escrow agent licensed under the Escrow Law, Division 6
(commencing with Section 17000) of the Financial Code, or with any
person exempt from the Escrow Law under paragraph (1) or (3) of
subdivision (a) of Section 17006 of the Financial Code.
(c) The owner shall deposit funds in the account in the amount
provided in Section 8728. This chapter does not require a
construction lender to agree to deposit proceeds of a construction
loan in the account.
(d) The owner shall grant the direct contractor a perfected, first
priority security interest in the account and in all funds deposited
by the owner in the account and in their proceeds, established to
the reasonable satisfaction of the direct contractor, which may be by
a written opinion of legal counsel for the owner.
(e) The funds on deposit in the account shall be the sole property
of the owner, subject to the security interest of the direct
contractor. The owner and the direct contractor shall instruct the
escrow holder to hold the funds on deposit in the account for the
purpose of perfecting the direct contractor's security interest in
the account and to disburse those funds only on joint authorization
of the owner and the direct contractor, or pursuant to a court order
that is binding on both of them.
8728. The following provisions govern a deposit to or
disbursement from a construction security escrow account under this
chapter:
(a) Before the commencement of work the owner shall make an
initial deposit to the account in an amount not less than 15 percent
of the contract price for the work of improvement or, if the work of
improvement is to be substantially completed within six months after
the commencement of work, not less than 25 percent of the contract
price.
(b) If the contract provides for a retention to be withheld from a
periodic payment to the direct contractor, the owner shall deposit
to the account the amount withheld as retention at the time the owner
makes the corresponding payment to the direct contractor from which
the retention is withheld.
(c) The amount required to be maintained on deposit shall not
exceed the total amount remaining to be paid to the direct contractor
pursuant to the contract or as adjusted by agreement between the
owner and the direct contractor. If the amount on deposit equals or
exceeds the total amount remaining to be paid to the direct
contractor, the owner and the direct contractor shall authorize
disbursement to the direct contractor for progress payments then due
the direct contractor, but a party is not obligated to authorize
disbursement that would cause the amount remaining on deposit
following the disbursement to be less than the total amount remaining
to be paid to the direct contractor.
(d) The owner and the direct contractor shall authorize the
disbursement to the owner of any funds remaining on deposit after the
direct contractor has been paid all amounts due pursuant to the
contract. The owner and the direct contractor shall authorize the
disbursement of funds on deposit pursuant to a court order that is
binding on both of them. The owner and the direct contractor may
agree in the contract to additional conditions for the disbursement
of funds on deposit, except that the conditions may not cause the
amount remaining on deposit to be less than the amount required under
this section.
8730. If the contract price for a work of improvement is not a
fixed price, the amount of security provided under this chapter shall
be the guaranteed maximum price or, if there is no guaranteed
maximum price, the owner's and direct contractor's good faith
estimate of the reasonable value of the work to be provided pursuant
to the contract.
CHAPTER 8. PROMPT PAYMENT
Article 1. Progress Payment
8800. (a) Except as otherwise agreed in writing by the owner and
direct contractor, the owner shall pay the direct contractor, within
30 days after notice demanding payment pursuant to the contract, any
progress payment due as to which there is no good faith dispute
between them. The notice given shall comply with the requirements of
Article 3 (commencing with Section 8100) of Chapter 1.
(b) If there is a good faith dispute between the owner and direct
contractor as to a progress payment due, the owner may withhold from
the progress payment an amount not in excess of 150 percent of the
disputed amount.
(c) An owner that violates this section is liable to the direct
contractor for a penalty of 2 percent per month on the amount
wrongfully withheld, in place of any interest otherwise due. In an
action for collection of the amount wrongfully withheld, the
prevailing party is entitled to costs and a reasonable attorney's
fee.
(d) This section does not supersede any requirement of Article 2
(commencing with Section 8810) relating to the withholding of a
retention.
8802. (a) This section applies to a contract between a public
utility and a direct contractor for all or part of a work of
improvement.
(b) Unless the direct contractor and a subcontractor otherwise
agree in writing, within 21 days after receipt of a progress payment
from the public utility the direct contractor shall pay the
subcontractor the amount allowed the direct contractor on account of
the work performed by the subcontractor to the extent of the
subcontractor's interest in the work. If there is a good faith
dispute over all or part of the amount due on a progress payment from
the direct contractor to a subcontractor, the direct contractor may
withhold an amount not in excess of 150 percent of the disputed
amount.
(c) A direct contractor that violates this section is liable to
the subcontractor for a penalty of 2 percent of the disputed amount
due per month for every month that payment is not made. In an action
for collection of the amount wrongfully withheld, the prevailing
party is entitled to costs and a reasonable attorney's fee.
(d) This section does not limit or impair a contractual,
administrative, or judicial remedy otherwise available to a
contractor or subcontractor in a dispute involving late payment or
nonpayment by the contractor or deficient performance or
nonperformance by the subcontractor.
Article 2. Retention Payment
8810. This article governs a retention payment withheld by an
owner from a direct contractor or by a direct contractor from a
subcontractor.
8812. (a) If an owner withholds a retention from a direct
contractor, the owner shall, within 45 days after completion of the
work of improvement, pay the retention to the contractor.
(b) If part of a work of improvement ultimately will become the
property of a public entity, the owner may condition payment of a
retention allocable to that part on acceptance of the part by the
public entity.
(c) If there is a good faith dispute between the owner and direct
contractor as to a retention payment due, the owner may withhold from
final payment an amount not in excess of 150 percent of the disputed
amount.
8814. (a) If a direct contractor has withheld a retention from a
subcontractor, the direct contractor shall, within 10 days after
receiving all or part of a retention payment, pay the subcontractor
its share of the payment.
(b) If a retention received by the direct contractor is
specifically designated for a particular subcontractor, the direct
contractor shall pay the retention payment to the designated
subcontractor, if consistent with the terms of the subcontract.
(c) If a good faith dispute exists between the direct contractor
and a subcontractor, the direct contractor may withhold from the
retention to the subcontractor an amount not in excess of 150 percent
of the estimated value of the disputed amount.
8816. (a) If the direct contractor gives the owner, or a
subcontractor gives the direct contractor, notice that work in
dispute has been completed in accordance with the contract, the owner
or direct contractor shall within 10 days give notice advising the
notifying party of the acceptance or rejection of the disputed work.
Both notices shall comply with the requirements of Article 3
(commencing with Section 8100) of Chapter 1.
(b) Within 10 days after acceptance of disputed work, the owner or
direct contractor shall pay the portion of the retention relating to
the disputed work.
8818. If an owner or direct contractor does not make a retention
payment within the time required by this article:
(a) The owner or direct contractor is liable to the person to
which payment is owed for a penalty of 2 percent per month on the
amount wrongfully withheld, in place of any interest otherwise due.
(b) In an action for collection of the amount wrongfully withheld,
the prevailing party is entitled to costs and reasonable attorney's
fees.
8820. It is against public policy to waive the provisions of this
article by contract.
8822. This article does not apply to a retention payment withheld
by a lender pursuant to a construction loan agreement.
Article 3. Stop Work Notice
8830. "Stop work notice" means notice given under this article by
a direct contractor to an owner that the contractor will stop work
if the amount owed the contractor is not paid within 10 days after
notice is given.
8832. If a direct contractor is not paid the amount due pursuant
to a written contract within 35 days after the date payment is due
under the contract, and there is no dispute as to the satisfactory
performance of the contractor, the contractor may give the owner a
stop work notice. The notice shall comply with the requirements of
Article 3 (commencing with Section 8100) of Chapter 1.
8834. A direct contractor that gives an owner a stop work notice
shall give the following additional notice:
(a) At least five days before giving the stop work notice, the
contractor shall post notice of intent to give a stop work notice.
The notice shall comply with the requirements of Article 3
(commencing with Section 8100) of Chapter 1.
(b) At the same time the contractor gives the stop work notice,
the contractor shall give a copy of the stop work notice to all
subcontractors with whom the contractor has a direct contractual
relationship on the work of improvement.
8836. Within five days after receipt of a stop work notice from a
direct contractor, the owner shall give a copy of the notice to the
construction lender, if any. The copy of the notice shall be given in
compliance with the requirements of Article 3 (commencing with
Section 8100) of Chapter 1.
8838. (a) The direct contractor or the direct contractor's
surety, or a subcontractor or a subcontractor's surety, is not liable
for delay or damage that the owner or a subcontractor may suffer as
a result of the direct contractor giving a stop work notice and
subsequently stopping work for nonpayment, if the notice and posting
requirements of this article are satisfied.
(b) A direct contractor's or subcontractor's liability to a
subcontractor or material supplier after the direct contractor stops
work under this article is limited to the amount the subcontractor or
material supplier could otherwise recover under this title for work
provided up to the date the subcontractor or material supplier ceases
work, subject to the following exceptions:
(1) The direct contractor's or subcontractor's liability continues
for work provided up to and including the 10-day notice period and
not beyond.
(2) This subdivision does not limit liability for custom work,
including materials that have been fabricated, manufactured, or
ordered to specifications that are unique to the job.
8840. On resolution of the claim in the stop work notice or the
direct contractor's cancellation of the stop work notice, the
contractor shall post, and give subcontractors with whom the
contractor has a direct contractual relationship on the work of
improvement, notice of the resolution or cancellation. The notice
shall comply with the requirements of Article 3 (commencing with
Section 8100) of Chapter 1.
8842. A direct contractor's right to stop work under this article
is in addition to other rights the direct contractor may have under
the law.
8844. (a) If payment of the amount claimed is not made within 10
days after a stop work notice is given, the direct contractor, the
direct contractor's surety, or an owner may in an expedited
proceeding in the superior court in the county in which the private
work of improvement is located, seek a judicial determination of
liability for the amount due.
(b) The expedited proceeding shall be set for hearing or trial at
the earliest possible date in order that it shall be quickly heard
and determined, and shall take precedence over all other cases except
older matter of the same character and other matters to which
special precedence has been given.
8846. It is against public policy to waive the provisions of this
article by contract.
8848. (a) This article applies to a contract entered into on or
after January 1, 1999.
(b) This article does not apply to a retention withheld by a
lender pursuant to a construction loan agreement.
TITLE 2. PUBLIC WORK OF IMPROVEMENT
CHAPTER 1. DEFINITIONS
9000. Unless the provision or context otherwise requires, the
definitions in this chapter govern the construction of this title.
9002. "Claimant" means a person that has a right under this title
to give a stop payment notice or assert a claim against a payment
bond.
9004. "Design professional" means a person licensed as an
architect pursuant to Chapter 3 (commencing with Section 5500) of
Division 3 of the Business and Professions Code, licensed as a
landscape architect pursuant to Chapter 3.5 (commencing with Section
5615) of Division 3 of the Business and Professions Code, registered
as a professional engineer pursuant to Chapter 7 (commencing with
Section 6700) of Division 3 of the Business and Professions Code, or
licensed as a land surveyor pursuant to Chapter 15 (commencing with
Section 8700) of Division 3 of the Business and Professions Code.
9006. "Direct contractor" means a contractor that has a direct
contractual relationship with a public entity. With respect to the
amount due or to become due to a direct contractor, the term includes
the direct contractor's assignee.
9008. "Funds" means warrant, check, money, or bonds (if bonds are
to be issued in payment of the public works contract).
9010. "Labor, service, equipment, or material" includes, but is
not limited to, labor, skills, services, material, supplies,
equipment, appliances, power, and surveying, provided pursuant to a
public works contract.
9012. (a) "Laborer" means a person who, acting as an employee,
performs labor, or bestows skill or other necessary services,
pursuant to a public works contract.
(b) "Laborer" includes a person or entity to which a portion of a
laborer's compensation for a public works contract, including, but
not limited to, employer payments described in Section 1773.1 of the
Labor Code and implementing regulations, is paid by agreement with
that laborer or the collective bargaining agent of that laborer.
(c) A person or entity described in subdivision (b) that has
standing under applicable law to maintain a direct legal action, in
its own name or as an assignee, to collect any portion of
compensation owed for a laborer for work pursuant to a public works
contract, shall have standing to enforce any rights or claims of the
laborer under this title, to the extent of the compensation agreed to
be paid to the person or entity for that work. This subdivision is
intended to give effect to the longstanding public policy of this
state to protect the entire compensation of a laborer, regardless of
the form in which that compensation is to be paid.
9014. "Payment bond" means a payment bond required by Section
9550.
9016. "Person" means an individual, corporation, public entity,
business trust, estate, trust, partnership, limited liability
company, association, or other entity.
9018. "Preliminary notice" means the notice provided for in
Chapter 3 (commencing with Section 9300).
9020. (a) "Public entity" has the meaning provided in Section
1100 of the Public Contract Code and includes all of the following:
(1) The Regents of the University of California.
(2) An officer authorized to act for a public entity.
(b) A reference in this title to a public entity means the public
entity that awarded the public works contract.
9022. "Public works contract" has the meaning provided in Section
1101 of the Public Contract Code.
9024. "Site" means the property on which a public works contract
is performed or is to be performed.
9026. "Stop payment notice" means a notice given under Chapter 4
(commencing with Section 9350). A reference in another statute to a
"stop notice" in connection with
the remedies provided in this title means a stop
payment notice.
9028. "Subcontractor" means a contractor that does not have a
direct contractual relationship with a public entity. The term
includes a contractor who has a contractual relationship with a
direct contractor or with another subcontractor.
9030. "Work" means labor, service, equipment, or material
provided pursuant to a public works contract.
9032. (a) "Work of improvement" includes, but is not limited to:
(1) Construction, alteration, repair, demolition, or removal, in
whole or in part, of, or addition to, a building, wharf, bridge,
ditch, flume, aqueduct, well, tunnel, fence, machinery, railroad, or
road.
(2) Seeding, sodding, or planting of property for landscaping
purposes.
(3) Filling, leveling, or grading of property.
(b) Except as otherwise provided in this title, "work of
improvement" means the entire structure or scheme of improvement as a
whole, and includes site improvement.
CHAPTER 2. GENERAL PROVISIONS
Article 1. Miscellaneous Provisions
9050. (a) This title is operative on January 1, 2012.
(b) Except as otherwise provided in this section, this title
applies to a public works contract executed before, on, or after the
operative date.
(c) The effectiveness of a notice given or other action taken on a
public works contract before the operative date is governed by the
applicable law in effect before the operative date and not by this
title.
(d) A provision of this title, insofar as it is substantially the
same as a previously existing provision relating to the same subject
matter, shall be construed as a restatement and continuation thereof
and not as a new enactment.
9052. (a) This title applies to a public works contract awarded
by a public entity.
(b) This title does not apply to a transaction governed by
Sections 20457 to 20464, inclusive, of the Public Contract Code.
9054. (a) This title does not apply to or change improvement
security under the Subdivision Map Act, Division 2 (commencing with
Section 66410) of Title 7 of the Government Code.
(b) The Bond and Undertaking Law, Chapter 2 (commencing with
Section 995.010) of Title 14 of Part 2 of the Code of Civil
Procedure, applies to a bond given under this title, except to the
extent this title prescribes a different rule or is inconsistent.
9056. (a) Except as provided in subdivision (b), any of the
following persons that have not been paid in full may give a stop
payment notice to the public entity or assert a claim against a
payment bond:
(1) A person that provides work for a public works contract, if
the work is authorized by a direct contractor, subcontractor,
architect, project manager, or other person having charge of all or
part of the public works contract.
(2) A laborer.
(3) A person described in Section 4107.7 of the Public Contract
Code.
(b) A direct contractor may not give a stop payment notice or
assert a claim against a payment bond under this title.
9058. Except as otherwise provided in this title, Part 2
(commencing with Section 307) of the Code of Civil Procedure provides
the rules of practice in proceedings under this title.
9060. For purposes of this title, the term "day" means a calendar
day.
9062. An act that may be done by or to a person under this title
may be done by or to the person's agent to the extent the act is
within the scope of the agent's authority.
9064. None of the following releases a surety from liability on a
bond given under this title:
(a) A change to a contract, plan, specification, or agreement for
a public works contract or for work provided for a public works
contract.
(b) A change to the terms of payment or an extension of the time
for payment for a public works contract.
(c) A rescission or attempted rescission of a contract, agreement,
or bond.
(d) A condition precedent or subsequent in the bond purporting to
limit the right of recovery of a claimant otherwise entitled to
recover pursuant to a contract, agreement, or bond.
(e) In the case of a bond given for the benefit of claimants, the
fraud of a person other than the claimant seeking to recover on the
bond.
Article 2. Notice
9100. (a) Notice under this title shall be in writing. Writing
includes printing and typewriting.
(b) Written notice under this title may be given by electronic
communication to the extent authorized under Section 9112.
9102. (a) Notice under this title shall, in addition to any other
information required by statute for that type of notice, include all
of the following information to the extent known to the person
giving the notice:
(1) The name and address of the public entity.
(2) The name and address of the direct contractor.
(3) A description of the site sufficient for identification,
including the street address of the site, if any. If a sufficient
legal description of the site is given, the effectiveness of the
notice is not affected by the fact that the street address is
erroneous or is omitted.
(4) The name, address, and relationship to the parties of the
person giving the notice.
(5) If the person giving the notice is a claimant:
(A) A general statement of the labor, service, equipment, or
material provided or to be provided by the claimant.
(B) The name of the person that contracted for the labor, service,
equipment, or material provided or to be provided.
(C) A statement or estimate of the claimant's demand, if any,
after deducting all just credits and offsets.
(b) Notice is not invalid by reason of any variance from the
requirements of this section if the notice is sufficient to
substantially inform the person given notice of the information
required by this section and other information required in the
notice.
9104. (a) A direct contractor or subcontractor that employs a
laborer and fails to pay the full compensation due the laborer,
including any employer payments described in Section 1773.1 of the
Labor Code and implementing regulations, shall not later than the
date the compensation became delinquent, give the laborer, the
laborer's bargaining representative, if any, and the public entity,
notice that includes all of the following information, in addition to
the information specified in Section 9102:
(1) The name and address of the laborer, and of any person or
entity described in subdivision (b) of Section 9012 to which employer
payments are due.
(2) The total number of straight time and overtime hours worked by
the laborer on each job.
(3) The amount then past due and owing.
(b) Failure to give the notice required by subdivision (a)
constitutes grounds for disciplinary action under the Contractors'
State License Law, Chapter 9 (commencing with Section 7000) of
Division 3 of the Business and Professions Code.
9106. Except as otherwise provided by statute, notice under this
title shall be given by any of the following means:
(a) Personal delivery.
(b) Mail in the manner provided in Section 9112.
(c) Leaving the notice and mailing a copy in the manner provided
in Section 415.20 of the Code of Civil Procedure for service of
summons and complaint in a civil action.
9108. Except as otherwise provided under this title, notice under
this title shall be given to the person to be notified at the
following addresses:
(a) If the person to be notified is the public entity, at the
office of the public entity or at another address specified by the
public entity in the contract or elsewhere for service of notices,
papers, and other documents.
(b) If the person to be notified is a direct contractor or a
subcontractor, at the contractor's residence or place of business, or
at the contractor's address shown on the building permit, on the
contractor's contract, or on the records of the Contractors' State
License Board.
(c) If the person to be notified is a claimant, at the claimant's
residence or place of business, or at the claimant's address shown on
the claimant's contract, preliminary notice, stop payment notice, or
claim against a payment bond, or on the records of the Contractors'
State License Board.
(d) If the person to be notified is the surety on a bond, at the
surety's residence or place of business, or at the surety's address
shown on the bond for service of notices, papers, and other
documents, or on the records of the Department of Insurance.
9110. Notice given by mail under this title shall be given by
registered or certified mail, express mail, or overnight delivery by
an express service carrier.
9112. (a) As used in this section, "electronic record" has the
meaning provided in Section 1633.2 of the Civil Code.
(b) A notice under this title may be given to a person in the form
of an electronic record if the person has agreed in writing to
receive the notice in the form of an electronic record.
(c) If a person that has agreed to receive a notice in the form of
an electronic record is a consumer within the meaning of Section
7006 of Title 15 of the United States Code, the person's agreement
shall satisfy the requirements of Section 7001 of Title 15 of the
United States Code relating to consumer consent to an electronic
record.
9114. Notice under this title is complete and deemed to have been
given at the following times:
(a) If given by personal delivery, when delivered.
(b) If given by mail, when deposited in the mail or with an
express service carrier in the manner provided in Section 1013 of the
Code of Civil Procedure.
(c) If given by leaving the notice and mailing a copy in the
manner provided in Section 415.20 of the Code of Civil Procedure for
service of summons in a civil action, five days after mailing.
(d) If given in the form of an electronic record, when the
electronic record is transmitted.
9116. (a) Proof that notice was given to a person in the manner
required by this title shall be made by a proof of notice declaration
that states all of the following:
(1) The type or description of the notice given.
(2) The date, place, and manner of notice and facts showing that
notice was given in the manner required by statute.
(3) The name and address of the person to which notice was given,
and, if appropriate, the title or capacity in which the person was
given notice.
(b) If the notice is given by mail, the declaration shall be
accompanied by one of the following:
(1) Documentation provided by the United States Postal Service
showing that payment was made to mail the notice using registered or
certified mail, or express mail.
(2) Documentation provided by an express service carrier showing
that payment was made to send the notice using an overnight delivery
service.
(3) A return receipt, delivery confirmation, signature
confirmation, tracking record, or other proof of delivery or
attempted delivery provided by the United States Postal Service, or a
photocopy of the record of delivery and receipt maintained by the
United States Postal Service, showing the date of delivery and to
whom delivered, or in the event of nondelivery, by the returned
envelope itself.
(4) A tracking record or other documentation provided by an
express service carrier showing delivery or attempted delivery of the
notice.
(c) If notice is given in the form of an electronic record, the
declaration shall also state that the document was served
electronically and that no notice of nontransmission was received,
and shall be accompanied by the recipient's written agreement to
receive the notice in the form of an electronic record.
Article 3. Completion
9200. For the purpose of this title, completion of a work of
improvement occurs at the earliest of the following times:
(a) Acceptance of the work of improvement by the public entity.
(b) Cessation of labor on the work of improvement for a continuous
period of 60 days. This subdivision does not apply to a contract
awarded under the State Contract Act, Part 2 (commencing with Section
10100) of Division 2 of the Public Contract Code.
9202. (a) A public entity may record a notice of cessation if
there has been a continuous cessation of labor for at least 30 days
prior to the recordation that continues through the date of the
recordation.
(b) The notice shall be signed and verified by the public entity
or its agent.
(c) The notice shall comply with the requirements of Article 2
(commencing with Section 9100), and shall also include all of the
following information:
(1) The date on or about which the labor ceased.
(2) A statement that the cessation has continued until the
recordation of the notice.
9204. (a) A public entity may record a notice of completion on or
within 15 days after the date of completion of a work of
improvement.
(b) The notice shall be signed and verified by the public entity
or its agent.
(c) The notice shall comply with the requirements of Article 2
(commencing with Section 9100), and shall also include the date of
completion. An erroneous statement of the date of completion does not
affect the effectiveness of the notice if the true date of
completion is 15 days or less before the date of recordation of the
notice.
9208. (a) A notice of cessation or completion is recorded when
filed for record in the office of the county recorder of the county
in which the public works contract or part of it is performed. A
notice of completion in otherwise proper form containing the
information required by Section 9204 shall be accepted by the
recorder for recording and is deemed duly recorded without
acknowledgment.
(b) The county recorder shall number, index, and preserve a notice
of cessation or completion presented for filing under this title,
and shall number, index, and transcribe into the official records, in
the same manner as a conveyance of real property, a notice of
completion or cessation recorded under this title.
(c) The county recorder shall charge and collect the fees provided
in Article 5 (commencing with Section 27360) of Chapter 6 of Part 3
of Division 2 of Title 3 of the Government Code for performing duties
under this section.
Article 4. Waiver and Release
9250. (a) A public entity or direct contractor may not, by
contract or otherwise, waive, affect, or impair a claimant's rights
under this title, whether with or without notice, except with the
claimant's written consent, and any term of a contract that purports
to do so is void and unenforceable.
(b) A claimant's written consent is void and unenforceable unless
and until the claimant executes and delivers a waiver and release
under this article.
9252. A claimant's waiver and release does not release the public
entity or surety on a payment bond from a claim unless both of the
following conditions are satisfied:
(a) The waiver and release is in substantially the form provided
in this article and is signed by the claimant.
(b) If the release is a conditional release, there is evidence of
payment to the claimant. Evidence of payment may be either of the
following:
(1) The claimant's endorsement on a single or joint payee check
that has been paid by the financial institution on which it was
drawn.
(2) Written acknowledgment of payment by the claimant.
9254. An oral or written statement purporting to waive, release,
impair, or otherwise adversely affect a claim is void and
unenforceable and does not create an estoppel or impairment of the
claim unless either of the following conditions is satisfied:
(a) The statement is pursuant to a waiver and release under this
article.
(b) The claimant has actually received payment in full for the
claim.
9256. (a) A claimant may reduce the amount of, or release in its
entirety, a stop payment notice. The reduction or release shall be in
writing and may be given in a form other than a waiver and release
form provided in this article.
(b) The writing shall identify whether it is a reduction of the
amount of the stop payment notice, or a release of the notice in its
entirety. If the writing is a reduction, it shall state the amount of
the reduction, and the amount to remain withheld after the
reduction.
(c) A claimant's reduction or release of a stop payment notice has
the following effect:
(1) The reduction or release releases the claimant's right to
enforce payment of the claim stated in the notice to the extent of
the reduction or release.
(2) The reduction or release releases the public entity from the
obligation to withhold funds pursuant to the notice to the extent of
the reduction or release.
(3) The reduction or release does not preclude the claimant from
giving a subsequent stop payment notice that is timely and proper.
(4) The reduction or release does not release any right of the
claimant other than the right to enforce payment of the claim stated
in the stop payment notice to the extent of the reduction or release.
9258. This article does not affect the enforceability of either
an accord and satisfaction concerning a good faith dispute or an
agreement made in settlement of an action pending in court if the
accord and satisfaction or agreement and settlement make specific
reference to the claim.
9260. If a claimant is required to execute a waiver and release
in exchange for, or in order to induce payment of, a progress payment
and the claimant is not, in fact, paid in exchange for the waiver
and release or a single payee check or joint payee check is given in
exchange for the waiver and release, the waiver and release shall be
in substantially the following form:
Conditional Waiver and Release on Progress
Payment
NOTICE: This document waives certain rights of
the claimant effective on receipt of payment. A
person should not rely on this document unless
satisfied that the claimant has
received payment.
Identifying Information
Name of Claimant: _____________________________
Name of Customer: _____________________________
Job Location: _________________________________
Public Entity: ________________________________
Through Date: _________________________________
Conditional Waiver and Release
This document waives and releases stop payment
notice and payment bond rights the
claimant has for labor and service provided,
and equipment and material delivered, to the
customer on this job through the Through Date
of this document. This document is effective
only on the claimant's receipt of payment from
the financial institution on which the
following check is drawn:
Maker of Check: _______________________________
Amount of Check: $ ____________________________
Check Payable to: _____________________________
Exceptions
This document does not affect any of the
following:
(1) Retentions.
(2) Extras for which the claimant has not
received payment.
(3) The following progress payments for which
the claimant has previously given a conditional
waiver and release but has not received payment:
Date(s) of waiver and release: ________________
Amount(s) of unpaid progress payment(s): $ ____
(4) Contract rights, including (A) a right
based on rescission, abandonment, or breach of
contract, and (B) the right to recover
compensation for work not compensated
by the payment.
Signature
Claimant's Signature: _________________________
Claimant's Title: _____________________________
Date of Signature: ____________________________
9262. If the claimant is required to execute a waiver and release
in exchange for, or in order to induce payment of, a progress
payment and the claimant asserts in the waiver it has, in fact, been
paid the progress payment, the waiver and release shall be in
substantially the following form, with the text of the "Notice to
Claimant" in at least as large a type as the largest type otherwise
in the form:
Unconditional Waiver and Release on Progress
Payment
NOTICE TO CLAIMANT: This document waives and
releases rights unconditionally and states that
you have been paid for giving up those
rights. This document is enforceable against
you if you sign it, even if you have not been
paid. If you have not been paid, use a
conditional waiver and release form.
Identifying Information
Name of Claimant: _____________________________
Name of Customer: _____________________________
Job Location: _________________________________
Public Entity: ________________________________
Through Date: _________________________________
Unconditional Waiver and Release
This document waives and releases stop payment
notice and payment bond rights the claimant has
for labor and service provided, and equipment
and material delivered, to the customer on this
job through the Through Date of this document.
The claimant has received the following
progress
payment: $ _____________________________________
Exceptions
This document does not affect any of the
following:
(1) Retentions.
(2) Extras for which the claimant has not
received payment.
(3) Contract rights, including (A) a right
based on rescission, abandonment, or breach of
contract, and (B) the right to recover
compensation for work not compensated by the
payment.
Signature
Claimant's Signature: _________________________
Claimant's Title: _____________________________
Date of Signature: ____________________________
9264. If the claimant is required to execute a waiver and release
in exchange for, or in order to induce payment of, a final payment
and the claimant is not, in fact, paid in exchange for the waiver and
release or a single payee check or joint payee check is given in
exchange for the waiver and release, the waiver and release shall be
in substantially the following form:
Conditional Waiver and Release on Final Payment
NOTICE: This document waives certain rights of
the claimant effective on receipt of payment. A
person should not rely on this document unless
satisfied that the claimant has
received payment.
Identifying Information
Name of Claimant: _____________________________
Name of Customer:______________________________
Job Location:__________________________________
Public Entity:_________________________________
Conditional Waiver and Release
This document waives and releases stop payment
notice and payment bond rights the claimant has
for all labor and service provided, and
equipment and material delivered, to the
customer on this job. This document is
effective only on the claimant's receipt of
payment from the financial institution on which
the following check is drawn:
Maker of Check: _______________________________
Amount of Check: $ ____________________________
Check Payable to: _____________________________
Exceptions
This document does not affect any of the
following:
(1) Disputed claims for extras in the amount
of: $ __________________________________________
(2) The following progress payments for which
the claimant has previously given a conditional
waiver and release but has not received payment:
Date(s) of waiver and release: ________________
Amount(s) of unpaid progress payment(s): ______
Signature
Claimant's Signature: _________________________
Claimant's Title: _____________________________
Date of Signature: ____________________________
9266. If the claimant is required to execute a waiver and release
in exchange for, or in order to induce payment of, a final payment
and the claimant asserts in the waiver that he or she has, in fact,
been paid the final payment, the waiver and release shall be in
substantially the following form, with the text of the "Notice to
Claimant" in at least as large a type as the largest type otherwise
in the form:
Unconditional Waiver and Release on Final
Payment
NOTICE TO CLAIMANT: This document waives and
releases rights unconditionally and states that
you have been paid for giving up those rights.
This document is enforceable against you if you
sign it, even if you have not been paid. If you
have not been paid, use a conditional waiver
and release form.
Identifying Information
Name of Claimant: _____________________________
Name of Customer: _____________________________
Job Location: _________________________________
Public Entity: ________________________________
Unconditional Waiver and Release
This document waives and releases stop
payment notice and payment bond rights the
claimant has for all labor and service
provided, and equipment and material delivered,
to the customer on this job. The claimant has
been paid in full.
Exception
This document does not affect the following:
Disputed claims for extras in the amount of: $
________________________________________________
Signature
Claimant's Signature: _________________________
Claimant's Title: _____________________________
Date of Signature: ____________________________
CHAPTER 3. PRELIMINARY NOTICE
9300. (a) Except as otherwise provided by statute, before giving
a stop payment notice or asserting a claim against a payment bond, a
claimant shall give preliminary notice to the following persons:
(1) The public entity.
(2) The direct contractor to which the claimant provides work.
(b) Notwithstanding subdivision (a):
(1) A laborer is not required to give preliminary notice.
(2) A claimant that has a direct contractual relationship with a
direct contractor is not required to give preliminary notice.
(c) Compliance with this section is a necessary prerequisite to
the validity of a stop payment notice under this title.
(d) Compliance with this section or with Section 9562 is a
necessary prerequisite to the validity of a claim against a payment
bond under this title.
9302. (a) Except as provided in subdivision (b), preliminary
notice shall be given in compliance with the requirements of Article
2 (commencing with Section 9100) of Chapter 2.
(b) If the public works contract is for work constructed by the
Department of Public Works or the Department of General Services of
the state, preliminary notice to the public entity shall be given to
the disbursing officer of the department constructing the work.
9304. A claimant may give a stop payment notice or assert a claim
against a payment bond only for work provided within 20 days before
giving preliminary notice and at any time thereafter.
9306. If the contract of any subcontractor on a particular work
of improvement provides for payment to the subcontractor of more than
four hundred dollars ($400), the failure of that subcontractor,
licensed under the Contractors' State License Law (Chapter 9
(commencing with Section
7000) of Division 3 of the Business and Professions Code), to give
the notice provided for in this chapter, constitutes grounds for
disciplinary action under the Contractors' State License Law.
CHAPTER 4. STOP PAYMENT NOTICE
Article 1. General Provisions
9350. The rights of all persons furnishing work pursuant to a
public works contract, with respect to any fund for payment of
construction costs, are governed exclusively by this chapter, and no
person may assert any legal or equitable right with respect to that
fund, other than a right created by direct written contract between
the person and the person holding the fund, except pursuant to the
provisions of this chapter.
9352. (a) A stop payment notice shall comply with the
requirements of Section 9102, and shall be signed and verified by the
claimant.
(b) The notice shall include a general description of work to be
provided, and an estimate of the total amount in value of the work to
be provided.
(c) The amount claimed in the notice may include only the amount
due the claimant for work provided through the date of the notice.
9354. (a) Except as provided in subdivision (b), a stop payment
notice shall be given in compliance with the requirements of Article
2 (commencing with Section 9100) of Chapter 2.
(b) A stop payment notice shall be given to the public entity by
giving the notice to the following person:
(1) In the case of a public works contract of the state, the
director of the department that awarded the contract.
(2) In the case of a public works contract of a public entity
other than the state, the office of the controller, auditor, or other
public disbursing officer whose duty it is to make payment pursuant
to the contract, or the commissioners, managers, trustees, officers,
board of supervisors, board of trustees, common council, or other
body by which the contract was awarded.
9356. A stop payment notice is not effective unless given before
the earlier of the following times:
(a) Ninety days after cessation or completion.
(b) Thirty days after recordation of a notice of cessation or
completion.
9358. (a) The public entity shall, on receipt of a stop payment
notice, withhold from the direct contractor sufficient funds due or
to become due to the direct contractor to pay the claim stated in the
stop payment notice and to provide for the public entity's
reasonable cost of any litigation pursuant to the stop payment
notice.
(b) The public entity may satisfy its duty under this section by
refusing to release funds held in escrow under Section 10263 or 22300
of the Public Contract Code.
9360. (a) This chapter does not prohibit payment of funds to a
direct contractor if a stop payment notice is not received before the
disbursing officer actually surrenders possession of the funds.
(b) This chapter does not prohibit payment of any amount due to a
direct contractor in excess of the amount necessary to pay the total
amount of all claims stated in stop payment notices received by the
public entity at the time of payment plus any interest and court
costs that might reasonably be anticipated in connection with the
claims.
9362. (a) Not later than 10 days after each of the following
events, the public entity shall give notice to a claimant that has
given a stop payment notice of the time within which an action to
enforce payment of the claim stated in the stop payment notice must
be commenced:
(1) Completion of a public works contract, whether by acceptance
or cessation.
(2) Recordation of a notice of cessation or completion.
(b) The notice shall comply with the requirements of Article 2
(commencing with Section 9100) of Chapter 2.
(c) A public entity need not give notice under this section unless
the claimant has paid the public entity ten dollars ($10) at the
time of giving the stop payment notice.
9364. (a) A public entity may, in its discretion, permit the
direct contractor to give the public entity a release bond. The bond
shall be executed by an admitted surety insurer, in an amount equal
to 125 percent of the claim stated in the stop payment notice,
conditioned for the payment of any amount the claimant recovers in an
action on the claim, together with court costs if the claimant
prevails.
(b) On receipt of a release bond, the public entity shall not
withhold funds from the direct contractor pursuant to the stop
payment notice.
(c) The surety on a release bond is jointly and severally liable
to the claimant with the sureties on any payment bond given under
Chapter 5 (commencing with Section 9550).
Article 2. Summary Proceeding for Release of Funds
9400. A direct contractor may obtain release of funds withheld
pursuant to a stop payment notice under the summary proceeding
provided in this article on any of the following grounds:
(a) The claim on which the notice is based is not a type for which
a stop payment notice is authorized under this chapter.
(b) The claimant is not a person authorized under Section 9056 to
give a stop payment notice.
(c) The amount of the claim stated in the stop payment notice is
excessive.
(d) There is no basis for the claim stated in the stop payment
notice.
9402. The direct contractor shall serve on the public entity an
affidavit, together with a copy of the affidavit, in compliance with
the requirements of Article 2 (commencing with Section 9100) of
Chapter 2, that includes all of the following information:
(a) An allegation of the grounds for release of the funds and a
statement of the facts supporting the allegation.
(b) A demand for the release of all or the portion of the funds
that are alleged to be withheld improperly or in an excessive amount.
(c) A statement of the address of the contractor within the state
for the purpose of permitting service by mail on the contractor of
any notice or document.
9404. The public entity shall serve on the claimant a copy of the
direct contractor's affidavit, together with a notice stating that
the public entity will release the funds withheld, or the portion of
the funds demanded, unless the claimant serves on the public entity a
counteraffidavit on or before the time stated in the notice. The
time stated in the notice shall be not less than 10 days nor more
than 20 days after service on the claimant of the copy of the
affidavit. The notice shall comply with the requirements of Article 2
(commencing with Section 9100) of Chapter 2.
9406. (a) A claimant that contests the direct contractor's
affidavit shall serve on the public entity a counteraffidavit
alleging the details of the claim and describing the specific basis
on which the claimant contests or rebuts the allegations of the
contractor's affidavit. The counteraffidavit shall be served within
the time stated in the public entity's notice, together with proof of
service of a copy of the counteraffidavit on the direct contractor.
The service of the counteraffidavit on the public entity and the copy
of the affidavit on the direct contractor shall comply with the
requirements of Article 2 (commencing with Section 9100).
(b) If no counteraffidavit with proof of service is served on the
public entity within the time stated in the public entity's notice,
the public entity shall immediately release the funds, or the portion
of the funds demanded by the affidavit, without further notice to
the claimant, and the public entity is not liable in any manner for
their release.
(c) The public entity is not responsible for the validity of an
affidavit or counteraffidavit under this article.
9408. (a) If a counteraffidavit, together with proof of service,
is served under Section 9406, either the direct contractor or the
claimant may commence an action for a declaration of the rights of
the parties.
(b) After commencement of the action, either the direct contractor
or the claimant may move the court for a determination of rights
under the affidavit and counteraffidavit. The party making the motion
shall give not less than five days' notice of the hearing to the
public entity and to the other party.
(c) The notice of hearing shall comply with the requirements of
Article 2 (commencing with Section 9100). Notwithstanding Section
9114, when notice of the hearing is made by mail, the notice is
complete on the fifth day following deposit of the notice in the
mail.
(d) The court shall hear the motion within 15 days after the date
of the motion, unless the court continues the hearing for good cause.
9410. (a) The affidavit and counteraffidavit shall be filed with
the court by the public entity and shall constitute the pleadings,
subject to the power of the court to permit an amendment in the
interest of justice. The affidavit of the direct contractor shall be
deemed controverted by the counteraffidavit of the claimant, and both
shall be received in evidence.
(b) At the hearing, the direct contractor has the burden of proof.
9412. (a) No findings are required in a summary proceeding under
this article.
(b) If at the hearing no evidence other than the affidavit and
counteraffidavit is offered, the court may, if satisfied that
sufficient facts are shown, make a determination on the basis of the
affidavit and counteraffidavit. If the court is not satisfied that
sufficient facts are shown, the court shall order the hearing
continued for production of other evidence, oral or documentary, or
the filing of other affidavits and counteraffidavits.
(c) At the conclusion of the hearing, the court shall make an
order determining whether the demand for release is allowed. The
court's order is determinative of the right of the claimant to have
funds further withheld by the public entity.
(d) The direct contractor shall serve a copy of the court's order
on the public entity in compliance with the requirements of Article 2
(commencing with Section 9100).
9414. A determination in a summary proceeding under this article
is not res judicata with respect to a right of action by the claimant
against either the principal or surety on a payment bond or with
respect to a right of action against a party personally liable to the
claimant.
Article 3. Distribution of Funds Withheld
9450. If funds withheld pursuant to a stop payment notice are
insufficient to pay in full the claims of all persons who have given
a stop payment notice, the funds shall be distributed among the
claimants in the ratio that the claim of each bears to the aggregate
of all claims for which a stop payment notice is given, without
regard to the order in which the notices were given or enforcement
actions were commenced.
9452. Nothing in this chapter impairs the right of a claimant to
recover from the direct contractor or the contractor's sureties in an
action on a payment bond under Chapter 5 (commencing with Section
9550) any deficit that remains unpaid after the distribution under
Section 9450.
9454. A person that willfully gives a false stop payment notice
to the public entity or that willfully includes in the notice work
not provided for the public works contract for which the stop payment
notice is given forfeits all right to participate in the
distribution under Section 9450.
9456. (a) A stop payment notice takes priority over an assignment
by a direct contractor of any amount due or to become due pursuant
to a public works contract, including contract changes, whether made
before or after the giving of a stop payment notice, and the
assignment has no effect on the rights of the claimant.
(b) Any garnishment of an amount due or to become due pursuant to
a public works contract by a creditor of a direct contractor under
Article 8 (commencing with Section 708.710) of Chapter 6 of Division
2 of Title 9 of Part 2 of the Code of Civil Procedure and any
statutory lien on that amount is subordinate to the rights of a
claimant.
Article 4. Enforcement of Payment of Claim Stated in Stop
Payment Notice
9500. (a) A claimant may not enforce payment of the claim stated
in a stop payment notice unless the claimant has complied with all of
the following conditions:
(1) The claimant has given preliminary notice to the extent
required by Chapter 3 (commencing with Section 9300).
(2) The claimant has given the stop payment notice within the time
provided in Section 9356.
(b) The claim filing procedures of Part 3 (commencing with Section
900) of Division 3.6 of Title 1 of the Government Code do not apply
to an action under this article.
9502. (a) The claimant shall commence an action against the
public entity and the direct contractor to enforce payment of the
claim stated in a stop payment notice not earlier than 10 days after
the date the claimant gives the stop payment notice.
(b) The claimant shall commence an action against the public
entity and the direct contractor to enforce payment of the claim
stated in a stop payment notice not later than 90 days after
expiration of the time within which a stop payment notice must be
given.
(c) An action under this section may not be brought to trial or
judgment entered before expiration of the time provided in
subdivision (b).
(d) If a claimant does not commence an action to enforce payment
of the claim stated in a stop payment notice within the time provided
in subdivision (b), the notice ceases to be effective and the public
entity shall release funds withheld pursuant to the notice.
9504. Within five days after commencement of an action to enforce
payment of the claim stated in a stop payment notice, the claimant
shall give notice of commencement of the action to the public entity
in the same manner that a stop payment notice is given.
9506. If more than one claimant has given a stop payment notice:
(a) Any number of claimants may join in the same enforcement
action.
(b) If claimants commence separate actions, the court that first
acquires jurisdiction may order the actions consolidated.
(c) On request of the public entity, the court shall require that
all claimants be impleaded in one action and shall adjudicate the
rights of all parties in the action.
9508. Notwithstanding Section 583.420 of the Code of Civil
Procedure, the court may dismiss an action to enforce payment of the
claim stated in a stop payment notice that is not brought to trial
within two years after commencement of the action.
9510. A stop payment notice ceases to be effective, and the
public entity shall release funds withheld, in either of the
following circumstances:
(a) An action to enforce payment of the claim stated in the stop
payment notice is dismissed, unless expressly stated to be without
prejudice.
(b) Judgment in an action to enforce payment of the claim stated
in the stop payment notice is against the claimant.
CHAPTER 5. PAYMENT BOND
9550. (a) A direct contractor that is awarded a public works
contract involving an expenditure in excess of twenty-five thousand
dollars ($25,000) shall, before commencement of work, give a payment
bond to and approved by the public entity.
(b) A public entity shall state in its call for bids that a
payment bond is required for a public works contract involving an
expenditure in excess of twenty-five thousand dollars ($25,000).
(c) A payment bond given and approved under this section will
permit performance of and provide coverage for work pursuant to a
public works contract that supplements the contract for which the
bond is given, if the requirement of a new bond is waived by the
public entity.
(d) For the purpose of this section, a design professional is not
deemed a direct contractor and is not required to give a payment
bond.
(e) This section does not apply to a public works contract with a
"state entity" as defined in subdivision (d) of Section 7103 of the
Public Contract Code.
9552. If a payment bond is not given and approved as required by
Section 9550:
(a) The public entity awarding the public works contract shall not
audit, allow, or pay a claim of the direct contractor pursuant to
the contract.
(b) A claimant shall receive payment of a claim pursuant to a stop
payment notice in the manner provided by Chapter 4 (commencing with
Section 9350).
9554. (a) A payment bond shall be in an amount not less than 100
percent of the total amount payable pursuant to the public works
contract. The bond shall be in the form of a bond and not a deposit
in lieu of a bond. The bond shall be executed by an admitted surety
insurer.
(b) The payment bond shall provide that if the direct contractor
or a subcontractor fails to pay any of the following, the surety will
pay the obligation and, if an action is brought to enforce the
liability on the bond, a reasonable attorney's fee, to be fixed by
the court:
(1) A person authorized under Section 9056 to assert a claim
against a payment bond.
(2) Amounts due under the Unemployment Insurance Code with respect
to work or labor performed pursuant to the public works contract.
(3) Amounts required to be deducted, withheld, and paid over to
the Employment Development Department from the wages of employees of
the contractor and subcontractors under Section 13020 of the
Unemployment Insurance Code with respect to the work and labor.
(c) The payment bond shall by its terms inure to the benefit of
any person authorized under Section 9056 to assert a claim against a
payment bond so as to give a right of action to that person or that
person's assigns in an action to enforce the liability on the bond.
(d) The direct contractor may require that a subcontractor give a
bond to indemnify the direct contractor for any loss sustained by the
direct contractor because of any default of the subcontractor under
this section.
9556. (a) A payment bond shall be construed most strongly against
the surety and in favor of the beneficiary.
(b) A surety is not released from liability to the beneficiary by
reason of a breach of the public works contract between the public
entity and the direct contractor or on the part of any obligee named
in the bond.
(c) Except as otherwise provided by statute, the sole conditions
of recovery on the bond are that the claimant is a person authorized
under Section 9056 to assert a claim against a payment bond, and has
not been paid the full amount of the claim.
9558. A claimant may commence an action to enforce the liability
on the bond at any time after the claimant ceases to provide work,
but not later than six months after the period in which a stop
payment notice may be given under Section 9356.
9560. (a) In order to enforce a claim against a payment bond, a
claimant shall give the preliminary notice provided in Chapter 3
(commencing with Section 9300).
(b) If preliminary notice was not given as provided in Chapter 3
(commencing with Section 9300), a claimant may enforce a claim by
giving written notice to the surety and the bond principal within 15
days after recordation of a notice of completion. If no notice of
completion has been recorded, the time for giving written notice to
the surety and the bond principal is extended to 75 days after
completion of the work of improvement.
9562. Notice to the principal and surety under Section 9560 shall
comply with the requirements of Article 2 (commencing with Section
9100) of Chapter 2.
9564. (a) A claimant may maintain an action to enforce the
liability of a surety on a payment bond whether or not the claimant
has given the public entity a stop payment notice.
(b) A claimant may maintain an action to enforce the liability on
the bond separately from and without commencement of an action
against the public entity.
(c) In an action to enforce the liability on the bond, the court
shall award the prevailing party a reasonable attorney's fee.
9566. (a) A claimant does not have a right to recover on a
payment bond unless the claimant provided work to the direct
contractor either directly or through one or more subcontractors
pursuant to a public works contract.
(b) Nothing in this section affects the stop payment notice rights
of, and relative priorities among, design professionals.
SEC. 23. SEC. 21. Section 86 of the
Code of Civil Procedure is amended to read:
86. (a) The following civil cases and proceedings are limited
civil cases:
(1) A case at law in which the demand, exclusive of interest, or
the value of the property in controversy amounts to twenty-five
thousand dollars ($25,000) or less. This paragraph does not apply to
a case that involves the legality of any tax, impost, assessment,
toll, or municipal fine, except an action to enforce payment of
delinquent unsecured personal property taxes if the legality of the
tax is not contested by the defendant.
(2) An action for dissolution of partnership where the total
assets of the partnership do not exceed twenty-five thousand dollars
($25,000); an action of interpleader where the amount of money or the
value of the property involved does not exceed twenty-five thousand
dollars ($25,000).
(3) An action to cancel or rescind a contract when the relief is
sought in connection with an action to recover money not exceeding
twenty-five thousand dollars ($25,000) or property of a value not
exceeding twenty-five thousand dollars ($25,000), paid or delivered
under, or in consideration of, the contract; an action to revise a
contract where the relief is sought in an action upon the contract if
the action otherwise is a limited civil case.
(4) A proceeding in forcible entry or forcible or unlawful
detainer where the whole amount of damages claimed is twenty-five
thousand dollars ($25,000) or less.
(5) An action to enforce and foreclose a lien on personal property
where the amount of the lien is twenty-five thousand dollars
($25,000) or less.
(6) An action to enforce and foreclose, or a petition to release,
a lien arising under the provisions of Chapter 4 (commencing with
Section 8400) of Part 6 of Division 4 of the Civil Code, or to
enforce and foreclose an assessment lien on a common interest
development as defined in Section 1351 of the Civil Code, where the
amount of the liens is twenty-five thousand dollars ($25,000) or
less. However, if an action to enforce the lien affects property that
is also affected by a similar pending action that is not a limited
civil case, or if the total amount of liens sought to be foreclosed
against the same property aggregates an amount in excess of
twenty-five thousand dollars ($25,000), the action is not a limited
civil case.
(7) An action for declaratory relief when brought pursuant to
either of the following:
(A) By way of cross-complaint as to a right of indemnity with
respect to the relief demanded in the complaint or a cross-complaint
in an action or proceeding that is otherwise a limited civil case.
(B) To conduct a trial after a nonbinding fee arbitration between
an attorney and client, pursuant to Article 13 (commencing with
Section 6200) of Chapter 4 of Division 3 of the Business and
Professions Code, where the amount in controversy is twenty-five
thousand dollars ($25,000) or less.
(8) An action to issue a temporary restraining order or
preliminary injunction; to take an account, where necessary to
preserve the property or rights of any party to a limited civil case;
to make any order or perform any act, pursuant to Title 9
(commencing with Section 680.010) of Part 2 (enforcement of
judgments) in a limited civil case; to appoint a receiver pursuant to
Section 564 in a limited civil case; to determine title to personal
property seized in a limited civil case.
(9) An action under Article 3 (commencing with Section 708.210) of
Chapter 6 of Division 2 of Title 9 of Part 2 for the recovery of an
interest in personal property or to enforce the liability of the
debtor of a judgment debtor where the interest claimed adversely is
of a value not exceeding twenty-five thousand dollars ($25,000) or
the debt denied does not exceed twenty-five thousand dollars
($25,000).
(10) An arbitration-related petition filed pursuant to either of
the following:
(A) Article 2 (commencing with Section 1292) of Chapter 5 of Title
9 of Part 3, except for uninsured motorist arbitration proceedings
in accordance with Section 11580.2 of the Insurance Code, if the
petition is filed before the arbitration award becomes final and the
matter to be resolved by arbitration is a limited civil case under
paragraphs (1) to (9), inclusive, of subdivision (a) or if the
petition is filed after the arbitration award becomes final and the
amount of the award and all other rulings, pronouncements, and
decisions made in the award are within paragraphs (1) to (9),
inclusive, of subdivision (a).
(B) To confirm, correct, or vacate a fee arbitration award between
an attorney and client that is binding or has become binding,
pursuant to Article 13 (commencing with Section 6200) of Chapter 4 of
Division 3 of the Business and Professions Code, where the
arbitration award is twenty-five thousand dollars ($25,000) or less.
(b) The following cases in equity are limited civil cases:
(1) A case to try title to personal property when the amount
involved is not more than twenty-five thousand dollars ($25,000).
(2) A case when equity is pleaded as a defensive matter in any
case that is otherwise a limited civil case.
(3) A case to vacate a judgment or order of the court obtained in
a limited civil case through extrinsic fraud, mistake, inadvertence,
or excusable neglect.
SEC. 24. SEC. 22. Section 410.42 of
the Code of Civil Procedure is amended to read:
410.42. (a) The following provisions of a contract between the
contractor and a subcontractor with principal offices in this state,
for the construction of a public or private work of improvement in
this state, shall be void and unenforceable:
(1) A provision which purports to require any dispute between the
parties to be litigated, arbitrated, or otherwise determined outside
this state.
(2) A provision which purports to preclude a party from commencing
such a proceeding or obtaining a judgment or other resolution in
this state or the courts of this state.
(b) For purposes of this section, "construction" means any work or
services performed on, or materials provided for, a work of
improvement, as defined in Section 8050 of the Civil Code, and for
which a lien may be claimed pursuant to Section 8400 of the Civil
Code (whether or not a lien is in fact claimed) or for which such a
lien could be claimed but for Section 8052 of the Civil Code.
SEC. 25. SEC. 23. Section 708.760 of
the Code of Civil Procedure is amended to read:
708.760. (a) If the judgment debtor named in the abstract
or certified copy of the judgment filed pursuant to this article is a
contractor upon a public work, the cost of which is to be paid out
of public moneys voted, appropriated, or otherwise set apart for such
purpose, only so much of the contract price shall be deemed owing
and unpaid within the meaning of Section 708.740 or 708.750 as may
remain payable under the terms of the contractor's contract, upon the
completion thereof, after deducting sums due and to become due to
persons described in Section 9056 of the Civil Code. In ascertaining
the sums due or to become due to such persons, only claims which are
filed against the moneys due or to become due to the judgment debtor
in accordance with Chapter 4 (commencing with Section 9350) of Title
2 of Part 6 of Division 4 of the Civil Code shall be considered.
(b) The Controller, auditor, or other public disbursing officer
whose duty it is to make payments under the provisions of the
contract may not deposit an amount with the court pursuant to this
article until the contract is completed, but may deposit an amount
with the court to satisfy the claim of the judgment debtor before the
payments specified in subdivision (a) are made so long as a
sufficient amount is retained for the satisfaction of the claims of
persons described in Section 9056 of the Civil Code.
SEC. 26. SEC. 24. Section 1203.61 of
the Code of Civil Procedure is amended to read:
1203.61. (a) Any lien provided for by this chapter shall be
enforced in the same manner as provided in Chapter 4 (commencing with
Section 8400) of Part 6 of Division 4 of the Civil Code. The action
shall be filed within 180 days from the time of the recording of the
lien. If a credit is given and notice of the fact and terms of the
credit is filed in the office of the county recorder subsequent to
the filing of the lien and prior to the expiration of the 180-day
period, then the lien continues in force until 180 days after the
expiration of the credit, but no lien continues in force by reason of
any agreement to give credit for a longer time than one year from
the time the work is completed. If the proceedings to enforce the
lien are not prosecuted to trial within two years after commencement,
the court may in its discretion dismiss the action for want of
prosecution, and in all cases the dismissal of the action (unless it
is expressly stated that it is without prejudice) or a judgment in
the action that no lien exists is equivalent to the cancellation and
removal from the record of the lien.
(b) As against any purchaser or encumbrancer for value and in good
faith whose rights are acquired subsequent to the expiration of the
180-day period following the filing of the lien, no giving of credit
or extension of the lien or time to enforce the lien shall be
effective unless evidenced by a notice or agreement filed for record
in the office of the county recorder prior to the acquisition of the
rights of the purchaser or encumbrancer.
SEC. 27. SEC. 25. Section 1281.5 of
the Code of Civil Procedure is amended to read:
1281.5. (a) Any person who proceeds to record and enforce a claim
of lien by commencement of an action pursuant to Chapter 4
(commencing with Section 8400) of Part 6 Division 4 of the Civil
Code, does not thereby waive any right of arbitration the person may
have pursuant to a written agreement to arbitrate, if, in filing an
action to enforce the claim of lien, the claimant does either of the
following:
(1) Includes an allegation in the complaint that the claimant does
not intend to waive any right of arbitration, and intends to move
the court, within 30 days after service of the summons and complaint,
for an order to stay further proceedings in the action.
(2) At the same time that the complaint is filed, the claimant
files an application that the action be stayed pending the
arbitration of any issue, question, or dispute that is claimed to be
arbitrable under the agreement and that is relevant to the action to
enforce the claim of lien.
(b) Within 30 days after service of the summons and complaint, the
claimant shall file and serve a motion and notice of motion pursuant
to Section 1281.4 to stay the action pending the arbitration of any
issue, question, or dispute that is claimed to be arbitrable under
the agreement and that is relevant to the action to enforce the claim
of lien. The failure of a claimant to comply with this subdivision
is a waiver of the claimant's right to compel arbitration.
(c) The failure of a defendant to file a petition pursuant to
Section 1281.2 at or before the time the defendant answers the
complaint filed pursuant to subdivision (a) is a waiver of the
defendant's right to compel arbitration.
SEC. 28. SEC. 26. Section 1800 of
the Code of Civil Procedure is amended to read:
1800. (a) As used in this section, the following terms have the
following meanings:
(1) "Insolvent" means:
(A) With reference to a person other than a partnership, a
financial condition such that the sum of the person's debts is
greater than all of the person's property, at a fair valuation,
exclusive of both of the following:
(i) Property transferred, concealed, or removed with intent to
hinder, delay, or defraud the person's creditors.
(ii) Property that is exempt from property of the estate pursuant
to the election of the person made pursuant to Section 1801.
(B) With reference to a partnership, financial condition such that
the sum of the partnership's debts are greater than the aggregate
of, at a fair valuation, both of the following:
(i) All of the partnership's property, exclusive of property of
the kind specified in clause (i) of subparagraph (A).
(ii) The sum of the excess of the value of each general partner's
separate property, exclusive of property of the kind specified in
clause (ii) of subparagraph (A), over the partner's separate debts.
(2) "Inventory" means personal property leased or furnished, held
for sale or lease, or to be furnished under a contract for service,
raw materials, work in process, or materials used or consumed in a
business, including farm products such as crops or livestock, held
for sale or lease.
(3) "Insider" means:
(A) If the assignor is an individual, any of the following:
(i) A relative of the assignor or of a general partner of the
assignor.
(ii) A partnership in which the assignor is a general partner.
(iii) A general partner of the assignor.
(iv) A corporation of which the assignor is a director, officer,
or person in control.
(B) If the assignor is a corporation, any of the following:
(i) A director of the assignor.
(ii) An officer of the assignor.
(iii) A person in control of the assignor.
(iv) A partnership in which the assignor is a general partner.
(v) A general partner of the assignor.
(vi) A relative of a general partner, director, officer, or person
in control of the assignor.
(C) If the assignor is a partnership, any of the following:
(i) A general partner in the assignor.
(ii) A relative of a general partner in, general partner of, or
person in control of the assignor.
(iii) A partnership in which the assignor is a general partner.
(iv) A general partner of the assignor.
(v) A person in control of the assignor.
(D) An affiliate of the assignor or an insider of an affiliate as
if the affiliate were the assignor.
(E) A managing agent of the assignor.
As used in this paragraph, the following terms have the following
meanings:
"Relative" means an individual related by affinity or
consanguinity within the third degree as determined by the common
law, or an individual in a step or adoptive relationship within the
third degree.
An "affiliate" means a person that directly or indirectly owns,
controls, or holds, with power to vote, 20 percent or more of the
outstanding voting securities of the assignor, or 20 percent or more
of whose outstanding voting securities are directly or indirectly
owned, controlled, or held with power to vote by the assignor,
excluding securities held in a fiduciary or agency capacity without
sole discretionary power to vote, or held solely to secure a debt if
the holder has not in fact exercised the power to vote, or a person
who operates the business of the assignor under a lease or operating
agreement or whose business is operated by the assignor under a lease
or operating agreement.
(4) "Judicial lien" means a lien obtained by judgment, levy,
sequestration, or other legal or equitable process or proceeding.
(5) "New value" means money or money's worth in goods, services,
or new credit, or release by a transferee of property previously
transferred to the transferee in a transaction that is neither void
nor voidable by the assignor or the assignee under any applicable
law, but does not include an obligation substituted for an existing
obligation.
(6) "Receivable" means a right to payment, whether or not the
right has been earned by performance.
(7) "Security agreement" means an agreement that creates or
provides for a security interest.
(8) "Security interest" means a lien created by an agreement.
(9) "Statutory lien" means a lien arising solely by force of a
statute on specified circumstances or conditions, or lien of distress
for rent, whether or not statutory, but does not include a security
interest or judicial lien, whether or not the interest or lien is
provided by or is dependent on a statute and whether or not the
interest or lien is made fully effective by statute.
(10) "Transfer" means every mode, direct or indirect, absolute or
conditional, voluntary or involuntary, or disposing of or parting
with property or with an interest in property, including retention of
title as a security interest.
(b) Except as provided in subdivision (c), the assignee of any
general assignment for the benefit of creditors, as defined in
Section 493.010, may recover any transfer of property of the assignor
that is all of the following:
(1) To or for the benefit of a creditor.
(2) For or on account of an antecedent debt owed by the assignor
before the transfer was made.
(3) Made while the assignor was insolvent.
(4) Made on or within 90 days before the date of the making of the
assignment or made between 90 days and one year before the date of
making the assignment if the creditor, at the time of the transfer,
was an insider and had reasonable cause to believe the debtor was
insolvent at the time of the transfer.
(5) Enables the creditor to receive more than another creditor of
the same class.
(c) The assignee may not recover under this section a transfer as
follows:
(1) To the extent that the transfer was both of the following:
(A) Intended by the assignor and the creditor to or for whose
benefit the transfer was made to be a contemporaneous exchange for
new value given to the assignor.
(B) In fact a substantially contemporaneous exchange.
(2) To the extent that the transfer was all of the following:
(A) In payment of a debt incurred in the ordinary course of
business or financial affairs of the assignor and the transferee.
(B) Made in the ordinary course of business or financial affairs
of the assignor and the transferee.
(C) Made according to ordinary business terms.
(3) Of a security interest in property acquired by the assignor
that meets both of the following:
(A) To the extent the security interest secures new value that was
all of the following:
(i) Given at or after the signing of a security agreement that
contains a description of the property as collateral.
(ii) Given by or on behalf of the secured party under the
agreement.
(iii) Given to enable the assignor to acquire the property.
(iv) In fact used by the assignor to acquire the property.
(B) That is perfected within 20 days after the security interest
attaches.
(4) To or for the benefit of a creditor, to the extent that, after
the transfer, the creditor gave new value to or for the benefit of
the assignor that meets both of the following:
(A) Not secured by an otherwise unavoidable security interest.
(B) On account of which new value the assignor did not make an
otherwise unavoidable transfer to or for the benefit of the creditor.
(5) Of a perfected security interest in inventory or a receivable
or the proceeds of either, except to the extent that the aggregate of
all the transfers to the transferee caused a reduction, as of the
date of the making of the assignment and to the prejudice of other
creditors holding unsecured claims, of any amount by which the debt
secured by the security interest exceeded the value of all security
interest for the debt on the later of the following:
(A) Ninety days before the date of the making of the assignment.
(B) The date on which new value was first given under the security
agreement creating the security interest.
(6) That is the fixing of a statutory lien.
(7) That is payment to a claimant, as defined in Section 8002 or
Section 9002 of the Civil Code, in exchange for the claimant's waiver
or release of any potential or asserted claim of lien, stop payment
notice, or right to recover on a payment bond, or any combination
thereof.
(8) To the extent that the transfer was a bona fide payment of a
debt to a spouse, former spouse, or child of the debtor, for alimony
to, maintenance for, or support of, the spouse or child, in
connection with a separation agreement, divorce decree, or other
order of a court of record, or a determination made in accordance
with state or territorial law by a governmental unit, or property
settlement agreement; but not to the extent that either of the
following occurs:
(A) The debt is assigned to another entity voluntarily, by
operation of law or otherwise, in which case the assignee may not
recover that portion of the transfer that is assigned to the state or
any political subdivision of the state pursuant to Part D of Title
IV of the Social Security Act (42 U.S.C. Sec. 601 et seq.) and passed
on to the spouse, former spouse, or child of the debtor.
(B) The debt includes a liability designated as alimony,
maintenance, or support, unless the liability is actually in the
nature of alimony, maintenance, or support.
(d) An assignee of any general assignment for the benefit of
creditors, as defined in Section 493.010, may avoid a transfer of
property of the assignor transferred to secure reimbursement of a
surety that furnished a bond or other obligation to dissolve a
judicial lien that would have been avoidable by the assignee under
subdivision (b). The liability of the surety under the bond or
obligation shall be discharged to the extent of the value of the
property recovered by the assignee or the amount paid to the
assignee.
(e) (1) For the purposes of this section:
(A) A transfer of real property other than fixtures, but including
the interest of a seller or purchaser under a contract for the sale
of real property, is perfected when a bona fide purchaser of the
property from the debtor, against whom applicable law permits the
transfer to be perfected, cannot acquire an interest that is superior
to the interest of the transferee.
(B) A transfer of a fixture or property other than real property
is perfected when a creditor on a simple contract cannot acquire a
judicial lien that is superior to the interest of the transferee.
(2) For the purposes of this section, except as provided in
paragraph (3), a transfer is made at any of the following times:
(A) At the time the transfer takes effect between the transferor
and the transferee, if the transfer is perfected at, or within 10
days after, the time, except as provided in subparagraph (B) of
paragraph (3) of subdivision (c).
(B) At the time the transfer is perfected, if the transfer is
perfected after the 10 days.
(C) Immediately before the date of making the assignment if the
transfer is not perfected at the later of:
(i) The making of the assignment.
(ii) Ten days after the transfer takes effect between the
transferor and the transferee.
(3) For the purposes of this section, a transfer is not made until
the assignor has acquired rights in the property transferred.
(f) For the purposes of this section, the assignor is presumed to
have been insolvent on and during the 90 days immediately preceding
the date of making the assignment.
(g) An action by an assignee under this section must be commenced
within one year after making the assignment.
SEC. 29. SEC. 27. Section 17307.5 of
the Education Code is amended to read:
17307.5. (a) Notwithstanding any provision of law to the
contrary, including, but not limited to, Title 2 (commencing with
Section 9000) of Part 6 of Division 4 of the Civil Code, the
Department of General Services may issue a stop work order when
construction work on a public school is not being performed in
accordance with existing law and would compromise the structural
integrity of the building, thereby endangering the public safety. The
Department of General Services shall allow construction of
incidental and minor nonstructural additions or nonstructural
alterations without invoking its stop work authority.
(b) A school district, county superintendent of schools, county
board of education, or other public board, body, or officer whose
construction work on a public school is subject to a stop work order
issued pursuant to subdivision (a) shall not be held liable in any
action filed against the public board, body, or officer for stopping
work as required by the stop work order, or for any delays caused by
compliance with the stop work order, except to the extent that an
error or omission by the public board, body, or officer is the basis
for the issuance of the stop work order.
SEC. 30. SEC. 28. Section 81133.5 of
the Education Code is amended to read:
81133.5. (a) Notwithstanding any provision of law to the
contrary, including, but not limited to, Title 2 (commencing with
Section 9000) of Part 6 of Division 4 of the Civil Code, the
Department of General Services may issue a stop work order when
construction work on a community college is not being performed in
accordance with existing law and would compromise the structural
integrity of the building, thereby endangering the public safety. The
Department of General Services shall allow construction of
incidental and minor nonstructural additions or nonstructural
alterations without invoking its stop work authority.
(b) A community college district or other public board, body, or
officer whose construction work on a community college is subject to
a stop work order issued pursuant to subdivision (a) shall not be
held liable in any action filed against the public board, body, or
officer for stopping work as required by the stop work order, or for
any delays caused by compliance with the stop work order, except to
the extent that an error or omission by the public board, body, or
officer is that basis for the issuance of the stop work order.
SEC. 31. SEC. 29. Section 7480 of
the Government Code, as amended by Section 1 of Chapter 234 of the
Statutes of 2008, is amended to read:
7480. Nothing in this chapter shall prohibit any of the
following:
(a) The dissemination of any financial information that is not
identified with, or identifiable as being derived from, the financial
records of a particular customer.
(b) When any police or sheriff's department or district attorney
in this state certifies to a bank, credit union, or savings
association in writing that a crime report has been filed that
involves the alleged fraudulent use of drafts, checks, access cards,
or other orders drawn upon any bank, credit union, or savings
association in this state, the police or sheriff's department or
district attorney, a county adult protective services office when
investigating the financial abuse of an elder or dependent adult, or
a long-term care ombudsman when investigating the financial abuse of
an elder or dependent adult, may request a bank, credit union, or
savings association to furnish, and a bank, credit union, or savings
association shall furnish, a statement setting forth the following
information with respect to a customer account specified by the
requesting party for a period 30 days prior to, and up to 30 days
following, the date of occurrence of the alleged illegal act
involving the account:
(1) The number of items dishonored.
(2) The number of items paid that created overdrafts.
(3) The dollar volume of the dishonored items and items paid which
created overdrafts and a statement explaining any credit arrangement
between the bank, credit union, or savings association and customer
to pay overdrafts.
(4) The dates and amounts of deposits and debits and the account
balance on these dates.
(5) A copy of the signature card, including the signature and any
addresses appearing on a customer's signature card.
(6) The date the account opened and, if applicable, the date the
account closed.
(7) Surveillance photographs and video recordings of persons
accessing the crime victim's financial account via an automated
teller machine (ATM) or from within the financial institution for
dates on which illegal acts involving the account were alleged to
have occurred. Nothing in this paragraph does any of the following:
(A) Requires a financial institution to produce a photograph or
video recording if it does not possess the photograph or video
recording.
(B) Affects any existing civil immunities as provided in Section
47 of the Civil Code or any other provision of law.
(8) A bank, credit union, or savings association that provides the
requesting party with copies of one or more complete account
statements prepared in the regular course of business shall be deemed
to be in compliance with paragraphs (1), (2), (3), and (4).
(c) When any police or sheriff's department or district attorney
in this state certifies to a bank, credit union, or savings
association in writing that a crime report has been filed that
involves the alleged fraudulent use of drafts, checks, access cards,
or other orders drawn upon any bank, credit union, or savings
association doing business in this state, the police or sheriff's
department or district attorney, a county adult protective services
office when investigating the financial abuse of an elder or
dependent adult, or a long-term care ombudsman when investigating the
financial abuse of an elder or dependent adult, may request, with
the consent of the accountholder, the bank, credit union, or savings
association to furnish, and the bank, credit union, or savings
association shall furnish, a statement setting forth the following
information with respect to a customer account specified by the
requesting party for a period 30 days prior to, and up to 30 days
following, the date of occurrence of the alleged illegal act
involving the account:
(1) The number of items dishonored.
(2) The number of items paid that created overdrafts.
(3) The dollar volume of the dishonored items and items paid which
created overdrafts and a statement explaining any credit arrangement
between the bank, credit union, or savings association and customer
to pay overdrafts.
(4) The dates and amounts of deposits and debits and the account
balance on these dates.
(5) A copy of the signature card, including the signature and any
addresses appearing on a customer's signature card.
(6) The date the account opened and, if applicable, the date the
account closed.
(7) Surveillance photographs and video recordings of persons
accessing the crime victim's financial account via an automated
teller machine (ATM) or from within the financial institution for
dates on which illegal acts involving this account were alleged to
have occurred. Nothing in this paragraph does any of the following:
(A) Requires a financial institution to produce a photograph or
video recording if it does not possess the photograph or video
recording.
(B) Affects any existing civil immunities as provided in Section
47 of the Civil Code or any other provision of law.
(8) A bank, credit union, or savings association doing business in
this state that provides the requesting party with copies of one or
more complete account statements prepared in the regular course of
business shall be deemed to be in compliance with paragraphs (1),
(2), (3), and (4).
(d) For purposes of subdivision (c), consent of the accountholder
shall be satisfied if an accountholder provides to the financial
institution and the person or entity seeking disclosure, a signed and
dated statement containing all of the following:
(1) Authorization of the disclosure for the period specified in
subdivision (c).
(2) The name of the agency or department to which disclosure is
authorized and, if applicable, the statutory purpose for which the
information is to be obtained.
(3) A description of the financial records that are authorized to
be disclosed.
(e) (1) The Attorney General, a supervisory agency, the Franchise
Tax Board, the State Board of Equalization, the Employment
Development Department, the Controller or an inheritance tax referee
when administering the Prohibition of Gift and Death Taxes (Part 8
(commencing with Section 13301) of Division 2 of the Revenue and
Taxation Code), a police or sheriff's department or district
attorney, a county adult protective services office when
investigating the financial abuse of an elder or dependent adult, a
long-term care ombudsman when investigating the financial abuse of an
elder or dependent adult, a county welfare department when
investigating welfare fraud, a county auditor-controller or director
of finance when investigating fraud against the county, or the
Department of Corporations when conducting investigations in
connection with the enforcement of laws administered by the
Commissioner of Corporations, from requesting of an office or branch
of a financial institution, and the office or branch from responding
to a request, as to whether a person has an account or accounts at
that office or branch and, if so, any identifying numbers of the
account or accounts.
(2) No additional information beyond that specified in this
section shall be released to a county welfare department without
either the accountholder's written consent or a judicial writ, search
warrant, subpoena, or other judicial order.
(3) A county auditor-controller or director of finance who
unlawfully discloses information he or she is authorized to request
under this subdivision is guilty of the unlawful disclosure of
confidential data, a misdemeanor, which
shall be punishable as set forth in Section 7485.
(f) The examination by, or disclosure to, any supervisory agency
of financial records that relate solely to the exercise of its
supervisory function. The scope of an agency's supervisory function
shall be determined by reference to statutes that grant authority to
examine, audit, or require reports of financial records or financial
institutions as follows:
(1) With respect to the Commissioner of Financial Institutions by
reference to Division 1 (commencing with Section 99), Division 1.5
(commencing with Section 4800), Division 2 (commencing with Section
5000), Division 5 (commencing with Section 14000), Division 7
(commencing with Section 18000), Division 16 (commencing with Section
33000), and Division 16 (commencing with Section 33000), of the
Financial Code.
(2) With respect to the Controller by reference to Title 10
(commencing with Section 1300) of Part 3 of the Code of Civil
Procedure.
(3) With respect to the Administrator of Local Agency Security by
reference to Article 2 (commencing with Section 53630) of Chapter 4
of Part 1 of Division 2 of Title 5 of the Government Code.
(g) The disclosure to the Franchise Tax Board of (1) the amount of
any security interest that a financial institution has in a
specified asset of a customer or (2) financial records in connection
with the filing or audit of a tax return or tax information return
that are required to be filed by the financial institution pursuant
to Part 10 (commencing with Section 17001), Part 11 (commencing with
Section 23001), or Part 18 (commencing with Section 38001), of the
Revenue and Taxation Code.
(h) The disclosure to the State Board of Equalization of any of
the following:
(1) The information required by Sections 6702, 6703, 8954, 8957,
30313, 30315, 32383, 32387, 38502, 38503, 40153, 40155, 41122,
41123.5, 43443, 43444.2, 44144, 45603, 45605, 46404, 46406, 50134,
50136, 55203, 55205, 60404, and 60407 of the Revenue and Taxation
Code.
(2) The financial records in connection with the filing or audit
of a tax return required to be filed by the financial institution
pursuant to Part 1 (commencing with Section 6001), Part 2 (commencing
with Section 7301), Part 3 (commencing with Section 8601), Part 13
(commencing with Section 30001), Part 14 (commencing with Section
32001), and Part 17 (commencing with Section 37001), of Division 2 of
the Revenue and Taxation Code.
(3) The amount of any security interest a financial institution
has in a specified asset of a customer, if the inquiry is directed to
the branch or office where the interest is held.
(i) The disclosure to the Controller of the information required
by Section 7853 of the Revenue and Taxation Code.
(j) The disclosure to the Employment Development Department of the
amount of any security interest a financial institution has in a
specified asset of a customer, if the inquiry is directed to the
branch or office where the interest is held.
(k) The disclosure by a construction lender, as defined in Section
8006 of the Civil Code, to the Registrar of Contractors, of
information concerning the making of progress payments to a prime
contractor requested by the registrar in connection with an
investigation under Section 7108.5 of the Business and Professions
Code.
(l) Upon receipt of a written request from a local child support
agency referring to a support order pursuant to Section 17400 of the
Family Code, a financial institution shall disclose the following
information concerning the account or the person named in the
request, whom the local child support agency shall identify, whenever
possible, by social security number:
(1) If the request states the identifying number of an account at
a financial institution, the name of each owner of the account.
(2) Each account maintained by the person at the branch to which
the request is delivered, and, if the branch is able to make a
computerized search, each account maintained by the person at any
other branch of the financial institution located in this state.
(3) For each account disclosed pursuant to paragraphs (1) and (2),
the account number, current balance, street address of the branch
where the account is maintained, and, to the extent available through
the branch's computerized search, the name and address of any other
person listed as an owner.
(4) Whenever the request prohibits the disclosure, a financial
institution shall not disclose either the request or its response, to
an owner of the account or to any other person, except the officers
and employees of the financial institution who are involved in
responding to the request and to attorneys, employees of the local
child support agencies, auditors, and regulatory authorities who have
a need to know in order to perform their duties, and except as
disclosure may be required by legal process.
(5) No financial institution, or any officer, employee, or agent
thereof, shall be liable to any person for (A) disclosing information
in response to a request pursuant to this subdivision, (B) failing
to notify the owner of an account, or complying with a request under
this paragraph not to disclose to the owner, the request or
disclosure under this subdivision, or (C) failing to discover any
account owned by the person named in the request pursuant to a
computerized search of the records of the financial institution.
(6) The local child support agency may request information
pursuant to this subdivision only when the local child support agency
has received at least one of the following types of physical
evidence:
(A) Any of the following, dated within the last three years:
(i) Form 599.
(ii) Form 1099.
(iii) A bank statement.
(iv) A check.
(v) A bank passbook.
(vi) A deposit slip.
(vii) A copy of a federal or state income tax return.
(viii) A debit or credit advice.
(ix) Correspondence that identifies the child support obligor by
name, the bank, and the account number.
(x) Correspondence that identifies the child support obligor by
name, the bank, and the banking services related to the account of
the obligor.
(xi) An asset identification report from a federal agency.
(B) A sworn declaration of the custodial parent during the 12
months immediately preceding the request that the person named in the
request has had or may have had an account at an office or branch of
the financial institution to which the request is made.
(7) Information obtained by a local child support agency pursuant
to this subdivision shall be used only for purposes that are directly
connected with the administration of the duties of the local child
support agency pursuant to Section 17400 of the Family Code.
(m) (1) As provided in paragraph (1) of subdivision (c) of Section
666 of Title 42 of the United States Code, upon receipt of an
administrative subpoena on the current federally approved interstate
child support enforcement form, as approved by the federal Office of
Management and Budget, a financial institution shall provide the
information or documents requested by the administrative subpoena.
(2) The administrative subpoena shall refer to the current federal
Office of Management and Budget control number and be signed by a
person who states that he or she is an authorized agent of a state or
county agency responsible for implementing the child support
enforcement program set forth in Part D (commencing with Section 651)
of Subchapter IV of Chapter 7 of Title 42 of the United States Code.
A financial institution may rely on the statements made in the
subpoena and has no duty to inquire into the truth of any statement
in the subpoena.
(3) If the person who signs the administrative subpoena directs a
financial institution in writing not to disclose either the subpoena
or its response to any owner of an account covered by the subpoena,
the financial institution shall not disclose the subpoena or its
response to the owner.
(4) No financial institution, or any officer, employee, or agent
thereof, shall be liable to any person for (A) disclosing information
or providing documents in response to a subpoena pursuant to this
subdivision, (B) failing to notify any owner of an account covered by
the subpoena or complying with a request not to disclose to the
owner, the subpoena or disclosure under this subdivision, or (C)
failing to discover any account owned by the person named in the
subpoena pursuant to a computerized search of the records of the
financial institution.
(n) The dissemination of financial information and records
pursuant to any of the following:
(1) Compliance by a financial institution with the requirements of
Section 2892 of the Probate Code.
(2) Compliance by a financial institution with the requirements of
Section 2893 of the Probate Code.
(3) An order by a judge upon a written ex parte application by a
peace officer showing specific and articulable facts that there are
reasonable grounds to believe that the records or information sought
are relevant and material to an ongoing investigation of a felony
violation of Section 186.10 or of any felony subject to the
enhancement set forth in Section 186.11.
(A) The ex parte application shall specify with particularity the
records to be produced, which shall be only those of the individual
or individuals who are the subject of the criminal investigation.
(B) The ex parte application and any subsequent judicial order
shall be open to the public as a judicial record unless ordered
sealed by the court, for a period of 60 days. The sealing of these
records may be extended for 60-day periods upon a showing to the
court that it is necessary for the continuance of the investigation.
Sixty-day extensions may continue for up to one year or until
termination of the investigation of the individual or individuals,
whichever is sooner.
(C) The records ordered to be produced shall be returned to the
peace officer applicant or his or her designee within a reasonable
time period after service of the order upon the financial
institution.
(D) Nothing in this subdivision shall preclude the financial
institution from notifying a customer of the receipt of the order for
production of records unless a court orders the financial
institution to withhold notification to the customer upon a finding
that the notice would impede the investigation.
(E) Where a court has made an order pursuant to this paragraph to
withhold notification to the customer under this paragraph, the peace
officer or law enforcement agency who obtained the financial
information shall notify the customer by delivering a copy of the ex
parte order to the customer within 10 days of the termination of the
investigation.
(4) No financial institution, or any officer, employee, or agent
thereof, shall be liable to any person for any of the following:
(A) Disclosing information to a probate court pursuant to Sections
2892 and 2893.
(B) Disclosing information in response to a court order pursuant
to paragraph (3).
(C) Complying with a court order under this subdivision not to
disclose to the customer, the order, or the dissemination of
information pursuant to the court order.
(o) Disclosure by a financial institution to a peace officer, as
defined in Section 830.1 of the Penal Code, pursuant to the
following:
(1) Paragraph (1) of subdivision (a) of Section 1748.95 of the
Civil Code, provided that the financial institution has first
complied with the requirements of paragraph (2) of subdivision (a)
and subdivision (b) of Section 1748.95 of the Civil Code.
(2) Paragraph (1) of subdivision (a) of Section 4002 of the
Financial Code, provided that the financial institution has first
complied with the requirements of paragraph (2) of subdivision (a)
and subdivision (b) of Section 4002 of the Financial Code.
(3) Paragraph (1) of subdivision (a) of Section 22470 of the
Financial Code, provided that any financial institution that is a
finance lender has first complied with the requirements of paragraph
(2) of subdivision (a) and subdivision (b) of Section 22470 of the
Financial Code.
(p) When the governing board of the Public Employees' Retirement
System or the State Teachers' Retirement System certifies in writing
to a financial institution that a benefit recipient has died and that
transfers to the benefit recipient's account at the financial
institution from the retirement system occurred after the benefit
recipient's date of death, the financial institution shall furnish
the retirement system with the name and address of any coowner,
cosigner, or any other person who had access to the funds in the
account following the date of the benefit recipient's death, or if
the account has been closed, the name and address of the person who
closed the account.
(q) When the retirement board of a retirement system established
under the County Employees Retirement Law of 1937 certifies in
writing to a financial institution that a retired member or the
beneficiary of a retired member has died and that transfers to the
account of the retired member or beneficiary of a retired member at
the financial institution from the retirement system occurred after
the date of death of the retired member or beneficiary of a retired
member, the financial institution shall furnish the retirement system
with the name and address of any coowner, cosigner, or any other
person who had access to the funds in the account following the date
of death of the retired member or beneficiary of a retired member, or
if the account has been closed, the name and address of the person
who closed the account.
(r) When the Franchise Tax Board certifies in writing to a
financial institution that (1) a taxpayer filed a tax return that
authorized a direct deposit refund with an incorrect financial
institution account or routing number that resulted in all or a
portion of the refund not being received, directly or indirectly, by
the taxpayer; (2) the direct deposit refund was not returned to the
Franchise Tax Board; and (3) the refund was deposited directly on a
specified date into the account of an accountholder of the financial
institution who was not entitled to receive the refund, then the
financial institution shall furnish to the Franchise Tax Board the
name and address of any coowner, cosigner, or any other person who
had access to the funds in the account following the date of direct
deposit refund, or if the account has been closed, the name and
address of the person who closed the account.
SEC. 32. SEC. 30. Section 7480 of
the Government Code, as amended by Section 2 of Chapter 234 of the
Statutes of 2008, is amended to read:
7480. Nothing in this chapter shall prohibit any of the
following:
(a) The dissemination of any financial information that is not
identified with, or identifiable as being derived from, the financial
records of a particular customer.
(b) When any police or sheriff's department or district attorney
in this state certifies to a bank, credit union, or savings
association in writing that a crime report has been filed that
involves the alleged fraudulent use of drafts, checks, access cards,
or other orders drawn upon any bank, credit union, or savings
association in this state, the police or sheriff's department or
district attorney, a county adult protective services office when
investigating the financial abuse of an elder or dependent adult, or
a long-term care ombudsman when investigating the financial abuse of
an elder or dependent adult, may request a bank, credit union, or
savings association to furnish, and a bank, credit union, or savings
association shall furnish, a statement setting forth the following
information with respect to a customer account specified by the
requesting party for a period 30 days prior to, and up to 30 days
following, the date of occurrence of the alleged illegal act
involving the account:
(1) The number of items dishonored.
(2) The number of items paid that created overdrafts.
(3) The dollar volume of the dishonored items and items paid which
created overdrafts and a statement explaining any credit arrangement
between the bank, credit union, or savings association and customer
to pay overdrafts.
(4) The dates and amounts of deposits and debits and the account
balance on these dates.
(5) A copy of the signature card, including the signature and any
addresses appearing on a customer's signature card.
(6) The date the account opened and, if applicable, the date the
account closed.
(7) Surveillance photographs and video recordings of persons
accessing the crime victim's financial account via an automated
teller machine (ATM) or from within the financial institution for
dates on which illegal acts involving the account were alleged to
have occurred. Nothing in this paragraph does any of the following:
(A) Requires a financial institution to produce a photograph or
video recording if it does not possess the photograph or video
recording.
(B) Affects any existing civil immunities as provided in Section
47 of the Civil Code or any other provision of law.
(8) A bank, credit union, or savings association that provides the
requesting party with copies of one or more complete account
statements prepared in the regular course of business shall be deemed
to be in compliance with paragraphs (1), (2), (3), and (4).
(c) When any police or sheriff's department or district attorney
in this state certifies to a bank, credit union, or savings
association in writing that a crime report has been filed that
involves the alleged fraudulent use of drafts, checks, access cards,
or other orders drawn upon any bank, credit union, or savings
association doing business in this state, the police or sheriff's
department or district attorney, a county adult protective services
office when investigating the financial abuse of an elder or
dependent adult, or a long-term care ombudsman when investigating the
financial abuse of an elder or dependent adult, may request, with
the consent of the accountholder, the bank, credit union, or savings
association to furnish, and the bank, credit union, or savings
association shall furnish, a statement setting forth the following
information with respect to a customer account specified by the
requesting party for a period 30 days prior to, and up to 30 days
following, the date of occurrence of the alleged illegal act
involving the account:
(1) The number of items dishonored.
(2) The number of items paid that created overdrafts.
(3) The dollar volume of the dishonored items and items paid which
created overdrafts and a statement explaining any credit arrangement
between the bank, credit union, or savings association and customer
to pay overdrafts.
(4) The dates and amounts of deposits and debits and the account
balance on these dates.
(5) A copy of the signature card, including the signature and any
addresses appearing on a customer's signature card.
(6) The date the account opened and, if applicable, the date the
account closed.
(7) Surveillance photographs and video recordings of persons
accessing the crime victim's financial account via an automated
teller machine (ATM) or from within the financial institution for
dates on which illegal acts involving this account were alleged to
have occurred. Nothing in this paragraph does any of the following:
(A) Requires a financial institution to produce a photograph or
video recording if it does not possess the photograph or video
recording.
(B) Affects any existing civil immunities as provided in Section
47 of the Civil Code or any other provision of law.
(8) A bank, credit union, or savings association doing business in
this state that provides the requesting party with copies of one or
more complete account statements prepared in the regular course of
business shall be deemed to be in compliance with paragraphs (1),
(2), (3), and (4).
(d) For purposes of subdivision (c), consent of the accountholder
shall be satisfied if an accountholder provides to the financial
institution and the person or entity seeking disclosure, a signed and
dated statement containing all of the following:
(1) Authorization of the disclosure for the period specified in
subdivision (c).
(2) The name of the agency or department to which disclosure is
authorized and, if applicable, the statutory purpose for which the
information is to be obtained.
(3) A description of the financial records that are authorized to
be disclosed.
(e) (1) The Attorney General, a supervisory agency, the Franchise
Tax Board, the State Board of Equalization, the Employment
Development Department, the Controller or an inheritance tax referee
when administering the Prohibition of Gift and Death Taxes (Part 8
(commencing with Section 13301) of Division 2 of the Revenue and
Taxation Code), a police or sheriff's department or district
attorney, a county adult protective services office when
investigating the financial abuse of an elder or dependent adult, a
long-term care ombudsman when investigating the financial abuse of an
elder or dependent adult, a county welfare department when
investigating welfare fraud, a county auditor-controller or director
of finance when investigating fraud against the county, or the
Department of Corporations when conducting investigations in
connection with the enforcement of laws administered by the
Commissioner of Corporations, from requesting of an office or branch
of a financial institution, and the office or branch from responding
to a request, as to whether a person has an account or accounts at
that office or branch and, if so, any identifying numbers of the
account or accounts.
(2) No additional information beyond that specified in this
section shall be released to a county welfare department without
either the accountholder's written consent or a judicial writ, search
warrant, subpoena, or other judicial order.
(3) A county auditor-controller or director of finance who
unlawfully discloses information he or she is authorized to request
under this subdivision is guilty of the unlawful disclosure of
confidential data, a misdemeanor, which shall be punishable as set
forth in Section 7485.
(f) The examination by, or disclosure to, any supervisory agency
of financial records that relate solely to the exercise of its
supervisory function. The scope of an agency's supervisory function
shall be determined by reference to statutes that grant authority to
examine, audit, or require reports of financial records or financial
institutions as follows:
(1) With respect to the Commissioner of Financial Institutions by
reference to Division 1 (commencing with Section 99), Division 1.5
(commencing with Section 4800), Division 2 (commencing with Section
5000), Division 5 (commencing with Section 14000), Division 7
(commencing with Section 18000), Division 15 (commencing with Section
31000), and Division 16 (commencing with Section 33000), of the
Financial Code.
(2) With respect to the Controller by reference to Title 10
(commencing with Section 1300) of Part 3 of the Code of Civil
Procedure.
(3) With respect to the Administrator of Local Agency Security by
reference to Article 2 (commencing with Section 53630) of Chapter 4
of Part 1 of Division 2 of Title 5 of the Government Code.
(g) The disclosure to the Franchise Tax Board of (1) the amount of
any security interest that a financial institution has in a
specified asset of a customer or (2) financial records in connection
with the filing or audit of a tax return or tax information return
that are required to be filed by the financial institution pursuant
to Part 10 (commencing with Section 17001), Part 11 (commencing with
Section 23001), or Part 18 (commencing with Section 38001), of the
Revenue and Taxation Code.
(h) The disclosure to the State Board of Equalization of any of
the following:
(1) The information required by Sections 6702, 6703, 8954, 8957,
30313, 30315, 32383, 32387, 38502, 38503, 40153, 40155, 41122,
41123.5, 43443, 43444.2, 44144, 45603, 45605, 46404, 46406, 50134,
50136, 55203, 55205, 60404, and 60407 of the Revenue and Taxation
Code.
(2) The financial records in connection with the filing or audit
of a tax return required to be filed by the financial institution
pursuant to Part 1 (commencing with Section 6001), Part 2 (commencing
with Section 7301), Part 3 (commencing with Section 8601), Part 13
(commencing with Section 30001), Part 14 (commencing with Section
32001), and Part 17 (commencing with Section 37001), of Division 2 of
the Revenue and Taxation Code.
(3) The amount of any security interest a financial institution
has in a specified asset of a customer, if the inquiry is directed to
the branch or office where the interest is held.
(i) The disclosure to the Controller of the information required
by Section 7853 of the Revenue and Taxation Code.
(j) The disclosure to the Employment Development Department of the
amount of any security interest a financial institution has in a
specified asset of a customer, if the inquiry is directed to the
branch or office where the interest is held.
(k) The disclosure by a construction lender, as defined in Section
8006 of the Civil Code, to the Registrar of Contractors, of
information concerning the making of progress payments to a prime
contractor requested by the registrar in connection with an
investigation under Section 7108.5 of the Business and Professions
Code.
(l) Upon receipt of a written request from a local child support
agency referring to a support order pursuant to Section 17400 of the
Family Code, a financial institution shall disclose the following
information concerning the account or the person named in the
request, whom the local child support agency shall identify, whenever
possible, by social security number:
(1) If the request states the identifying number of an account at
a financial institution, the name of each owner of the account.
(2) Each account maintained by the person at the branch to which
the request is delivered, and, if the branch is able to make a
computerized search, each account maintained by the person at any
other branch of the financial institution located in this state.
(3) For each account disclosed pursuant to paragraphs (1) and (2),
the account number, current balance, street address of the branch
where the account is maintained, and, to the extent available through
the branch's computerized search, the name and address of any other
person listed as an owner.
(4) Whenever the request prohibits the disclosure, a financial
institution shall not disclose either the request or its response, to
an owner of the account or to any other person, except the
officers and employees of the
financial institution who are involved in responding to the request
and to attorneys, employees of the local child support agencies,
auditors, and regulatory authorities who have a need to know in order
to perform their duties, and except as disclosure may be required by
legal process.
(5) No financial institution, or any officer, employee, or agent
thereof, shall be liable to any person for (A) disclosing information
in response to a request pursuant to this subdivision, (B) failing
to notify the owner of an account, or complying with a request under
this paragraph not to disclose to the owner, the request or
disclosure under this subdivision, or (C) failing to discover any
account owned by the person named in the request pursuant to a
computerized search of the records of the financial institution.
(6) The local child support agency may request information
pursuant to this subdivision only when the local child support agency
has received at least one of the following types of physical
evidence:
(A) Any of the following, dated within the last three years:
(i) Form 599.
(ii) Form 1099.
(iii) A bank statement.
(iv) A check.
(v) A bank passbook.
(vi) A deposit slip.
(vii) A copy of a federal or state income tax return.
(viii) A debit or credit advice.
(ix) Correspondence that identifies the child support obligor by
name, the bank, and the account number.
(x) Correspondence that identifies the child support obligor by
name, the bank, and the banking services related to the account of
the obligor.
(xi) An asset identification report from a federal agency.
(B) A sworn declaration of the custodial parent during the 12
months immediately preceding the request that the person named in the
request has had or may have had an account at an office or branch of
the financial institution to which the request is made.
(7) Information obtained by a local child support agency pursuant
to this subdivision shall be used only for purposes that are directly
connected with the administration of the duties of the local child
support agency pursuant to Section 17400 of the Family Code.
(m) (1) As provided in paragraph (1) of subdivision (c) of Section
666 of Title 42 of the United States Code, upon receipt of an
administrative subpoena on the current federally approved interstate
child support enforcement form, as approved by the federal Office of
Management and Budget, a financial institution shall provide the
information or documents requested by the administrative subpoena.
(2) The administrative subpoena shall refer to the current federal
Office of Management and Budget control number and be signed by a
person who states that he or she is an authorized agent of a state or
county agency responsible for implementing the child support
enforcement program set forth in Part D (commencing with Section 651)
of Subchapter IV of Chapter 7 of Title 42 of the United States Code.
A financial institution may rely on the statements made in the
subpoena and has no duty to inquire into the truth of any statement
in the subpoena.
(3) If the person who signs the administrative subpoena directs a
financial institution in writing not to disclose either the subpoena
or its response to any owner of an account covered by the subpoena,
the financial institution shall not disclose the subpoena or its
response to the owner.
(4) No financial institution, or any officer, employee, or agent
thereof, shall be liable to any person for (A) disclosing information
or providing documents in response to a subpoena pursuant to this
subdivision, (B) failing to notify any owner of an account covered by
the subpoena or complying with a request not to disclose to the
owner, the subpoena or disclosure under this subdivision, or (C)
failing to discover any account owned by the person named in the
subpoena pursuant to a computerized search of the records of the
financial institution.
(n) The dissemination of financial information and records
pursuant to any of the following:
(1) Compliance by a financial institution with the requirements of
Section 2892 of the Probate Code.
(2) Compliance by a financial institution with the requirements of
Section 2893 of the Probate Code.
(3) An order by a judge upon a written ex parte application by a
peace officer showing specific and articulable facts that there are
reasonable grounds to believe that the records or information sought
are relevant and material to an ongoing investigation of a felony
violation of Section 186.10 or of any felony subject to the
enhancement set forth in Section 186.11.
(A) The ex parte application shall specify with particularity the
records to be produced, which shall be only those of the individual
or individuals who are the subject of the criminal investigation.
(B) The ex parte application and any subsequent judicial order
shall be open to the public as a judicial record unless ordered
sealed by the court, for a period of 60 days. The sealing of these
records may be extended for 60-day periods upon a showing to the
court that it is necessary for the continuance of the investigation.
Sixty-day extensions may continue for up to one year or until
termination of the investigation of the individual or individuals,
whichever is sooner.
(C) The records ordered to be produced shall be returned to the
peace officer applicant or his or her designee within a reasonable
time period after service of the order upon the financial
institution.
(D) Nothing in this subdivision shall preclude the financial
institution from notifying a customer of the receipt of the order for
production of records unless a court orders the financial
institution to withhold notification to the customer upon a finding
that the notice would impede the investigation.
(E) Where a court has made an order pursuant to this paragraph to
withhold notification to the customer under this paragraph, the peace
officer or law enforcement agency who obtained the financial
information shall notify the customer by delivering a copy of the ex
parte order to the customer within 10 days of the termination of the
investigation.
(4) No financial institution, or any officer, employee, or agent
thereof, shall be liable to any person for any of the following:
(A) Disclosing information to a probate court pursuant to Sections
2892 and 2893.
(B) Disclosing information in response to a court order pursuant
to paragraph (3).
(C) Complying with a court order under this subdivision not to
disclose to the customer, the order, or the dissemination of
information pursuant to the court order.
(o) Disclosure by a financial institution to a peace officer, as
defined in Section 830.1 of the Penal Code, pursuant to the
following:
(1) Paragraph (1) of subdivision (a) of Section 1748.95 of the
Civil Code, provided that the financial institution has first
complied with the requirements of paragraph (2) of subdivision (a)
and subdivision (b) of Section 1748.95 of the Civil Code.
(2) Paragraph (1) of subdivision (a) of Section 4002 of the
Financial Code, provided that the financial institution has first
complied with the requirements of paragraph (2) of subdivision (a)
and subdivision (b) of Section 4002 of the Financial Code.
(3) Paragraph (1) of subdivision (a) of Section 22470 of the
Financial Code, provided that any financial institution that is a
finance lender has first complied with the requirements of paragraph
(2) of subdivision (a) and subdivision (b) of Section 22470 of the
Financial Code.
(p) When the governing board of the Public Employees' Retirement
System or the State Teachers' Retirement System certifies in writing
to a financial institution that a benefit recipient has died and that
transfers to the benefit recipient's account at the financial
institution from the retirement system occurred after the benefit
recipient's date of death, the financial institution shall furnish
the retirement system with the name and address of any coowner,
cosigner, or any other person who had access to the funds in the
account following the date of the benefit recipient's death, or if
the account has been closed, the name and address of the person who
closed the account.
(q) When the retirement board of a retirement system established
under the County Employees Retirement Law of 1937 certifies in
writing to a financial institution that a retired member or the
beneficiary of a retired member has died and that transfers to the
account of the retired member or beneficiary of a retired member at
the financial institution from the retirement system occurred after
the date of death of the retired member or beneficiary of a retired
member, the financial institution shall furnish the retirement system
with the name and address of any coowner, cosigner, or any other
person who had access to the funds in the account following the date
of death of the retired member or beneficiary of a retired member, or
if the account has been closed, the name and address of the person
who closed the account.
(r) When the Franchise Tax Board certifies in writing to a
financial institution that (1) a taxpayer filed a tax return that
authorized a direct deposit refund with an incorrect financial
institution account or routing number that resulted in all or a
portion of the refund not being received, directly or indirectly, by
the taxpayer; (2) the direct deposit refund was not returned to the
Franchise Tax Board; and (3) the refund was deposited directly on a
specified date into the account of an accountholder of the financial
institution who was not entitled to receive the refund, then the
financial institution shall furnish to the Franchise Tax Board the
name and address of any coowner, cosigner, or any other person who
had access to the funds in the account following the date of direct
deposit refund, or if the account has been closed, the name and
address of the person who closed the account.
SEC. 33. SEC. 31. Section 14975 of
the Government Code is amended to read:
14975. Notwithstanding the provisions of Section 9550 of the
Civil Code, the contractor under any contract made under this chapter
need not provide a payment bond before the commencement of the work
but must provide a payment bond as otherwise required by law prior to
payment under the contract.
SEC. 34. SEC. 32. Section 15820.105
of the Government Code is amended to read:
15820.105. (a) Plans and specifications for the project shall
comply with applicable building codes.
(b) The project is hereby deemed to be governed by Title 2
(commencing with Section 9000) of Part 6 of Division 4 of the Civil
Code.
(c) The provisions of Chapter 1 (commencing with Section 1720) of
Part 7 of Division 2 of the Labor Code shall apply to all public
works contracts entered into for the project.
(d) Other than as provided in this section and Sections 15820.101
to 15820.104, inclusive, private sector methods may be used to
deliver the project. Specifically, the procurement and contracting
for the delivery of the project is not subject to the State Contract
Act (Part 2 (commencing with Section 10100) of Division 2 of the
Public Contract Code) or any other provision of California law
governing public procurement or public works projects.
SEC. 35. SEC. 33. Section 27287 of
the Government Code is amended to read:
27287. Unless it belongs to the class provided for in either
Sections 27282 to 27286, inclusive, or Section 1202 or 1203, of the
Civil Code, or is a fictitious mortgage or deed of trust as provided
in Section 2952 or 2963 of the Civil Code, or is a fictitious oil and
gas lease as provided in Section 1219 of the Civil Code, or is a
claim of lien under Section 8416 of the Civil Code or a notice of
completion under Section 8152 or 9204 of the Civil Code, before an
instrument can be recorded its execution shall be acknowledged by the
person executing it, or if executed by a corporation, by its
president or secretary or other person executing it on behalf of the
corporation, or, except for any quitclaim deed or grant deed other
than a trustee's deed or a deed of reconveyance, mortgage, deed of
trust, or security agreement, proved by subscribing witness or as
provided in Sections 1198 and 1199 of the Civil Code, and the
acknowledgment or proof certified as prescribed by law.
SEC. 36. SEC. 34. Section 27361.9 of
the Government Code is repealed.
SEC. 37. SEC. 35. Section 66499.2 of
the Government Code is amended to read:
66499.2. A bond or bonds by one or more duly authorized corporate
sureties for the security of laborers and material suppliers shall
be in substantially the following form:
Whereas, The Board of Supervisors of the County of ____ (or City
Council of the City of ____), State of California, and ____
(hereinafter designated as "the principal") have entered into an
agreement whereby the principal agrees to install and complete
certain designated public improvements, which agreement, dated ____,
20_, and identified as project ____, is hereby referred to and made a
part hereof; and
Whereas, Under the terms of the agreement, the principal is
required before entering upon the performance of the work, to file a
good and sufficient payment bond with the County of ____ (or the City
of ____) to secure the claims to which reference is made in Title 2
(commencing with Section 9000) of Part 6 of Division 4 of the Civil
Code.
Now, therefore, the principal and the undersigned as corporate
surety, are held firmly bound unto the County of ____ (or the City of
____) and all contractors, subcontractors, laborers, material
suppliers, and other persons employed in the performance of the
agreement and referred to in Title 2 (commencing with Section 9000)
of Part 6 of Division 4 of the Civil Code in the sum of ____ dollars
($____), for materials furnished or labor thereon of any kind, or for
amounts due under the Unemployment Insurance Act with respect to
this work or labor, that the surety will pay the same in an amount
not exceeding the amount hereinabove set forth, and also in case suit
is brought upon this bond, will pay, in addition to the face amount
thereof, costs and reasonable expenses and fees, including reasonable
attorney's fees, incurred by county (or city) in successfully
enforcing this obligation, to be awarded and fixed by the court, and
to be taxed as costs and to be included in the judgment therein
rendered.
It is hereby expressly stipulated and agreed that this bond shall
inure to the benefit of any and all persons, companies, and
corporations entitled to file claims under Title 2 (commencing with
Section 9000) of Part 6 of Division 4 of the Civil Code, so as to
give a right of action to them or their assigns in any suit brought
upon this bond.
Should the condition of this bond be fully performed, then this
obligation shall become null and void, otherwise it shall be and
remain in full force and effect.
The surety hereby stipulates and agrees that no change, extension
of time, alteration, or addition to the terms of the agreement or the
specifications accompanying the same shall in any manner affect its
obligations on this bond, and it does hereby waive notice of any such
change, extension, alteration, or addition.
In witness whereof, this instrument has been duly executed by the
principal and surety above named, on ____, 20__.
SEC. 38. SEC. 36. Section 66499.7 of
the Government Code is amended to read:
66499.7. The security furnished by the subdivider shall be
released in whole or in part in the following manner:
(a) Security given for faithful performance of any act or
agreement shall be released upon the performance of the act or final
completion and acceptance of the required work. The legislative body
may provide for the partial release of the security upon the partial
performance of the act or the acceptance of the work as it
progresses, consistent with the provisions of this section. The
security may be a surety bond, a cash deposit, a letter of credit,
escrow account, or other form of performance guarantee required as
security by the legislative body that meets the requirements as
acceptable security pursuant to law. If the security furnished by the
subdivider is a documentary evidence of security such as a surety
bond or a letter of credit, the legislative body shall release the
documentary evidence and return the original to the issuer upon
performance of the act or final completion and acceptance of the
required work. In the event that the legislative body is unable to
return the original documentary evidence to the issuer, the security
shall be released by written notice sent by certified mail to the
subdivider and issuer of the documentary evidence within 30 days of
the acceptance of the work. The written notice shall contain a
statement that the work for which the security was furnished has been
performed or completed and accepted by the legislative body, a
description of the project subject to the documentary evidence and
the notarized signature of the authorized representative of the
legislative body.
(b) 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 local agency in writing of the completed
work, including a list of work completed. Upon receipt of the written
notice, the local agency shall have 45 days to review and comment or
approve the completion of the required work. If the local agency
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.
(c) Within 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 local agency. Upon
receipt of the cost estimates, the local agency shall then have 45
days to review, comment, and approve, modify, or disapprove those
cost estimates. No local agency shall 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 a local agency from allowing for a partial release
as it otherwise deems appropriate.
(d) If the local agency approves the cost estimate, the local
agency shall release all performance security except for security in
an amount up to 200 percent 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 20 percent of the total original performance security
unless the local agency 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 local
agency. 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 local agency 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 local agency of the
completed improvements, 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 all required
public improvements have been accepted by the local agency and all
other required improvements have been fully completed in accordance
with the plans and specifications for the improvements.
(e) The subdivider shall complete the works of improvement until
all remaining items are accepted by the local agency.
(f) Upon the completion of the improvements, the subdivider, or
his or her assigns, shall be notified in writing by the local agency
within 45 days.
(g) Within 45 days of the issuance of the notification by the
local agency, the release of any remaining performance security shall
be placed upon the agenda of the legislative body of the local
agency for approval of the release of any remaining performance
security. If the local agency delegates authority for the release of
performance security to a public official or other employee, any
remaining performance security shall be released within 60 days of
the issuance of the written statement of completion.
(h) 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 Article 2 (commencing
with Section 8410) of Chapter 4 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 claimants for whom claims of lien have
been recorded and notice thereof given in writing to the legislative
body, and if no claims have been recorded, the security shall be
released in full.
(i) The release 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.
(j) The legislative body may authorize any of its public officers
or employees to authorize release or reduction of the security in
accordance with the conditions hereinabove set forth and in
accordance with any rules that it may prescribe.
(k) This section shall remain in effect only until January 1,
2011, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2011, deletes or extends
that date.
SEC. 39. SEC. 37. Section 5463 of
the Health and Safety Code is amended to read:
5463. Any health officer or governing board of any city, county,
sanitary district, or other district having the power to operate and
maintain a sewerage system, having served written notice upon the
owner or reputed owner of land upon which there is a dwelling house,
and the owner or reputed owner, after 30 days, having refused,
neglected, or failed to connect the dwelling house, together with all
toilets, sinks, and other plumbing therein, properly vented, and in
a sanitary manner, with the adjoining street sewer, may construct the
same at a reasonable cost, and the person doing that work at the
request of the health officer or governing board has a lien upon that
real estate for his or her work done and materials furnished, and
the work done and materials furnished shall be held to have been done
and furnished at the instance of the owner or reputed owner, or
person claiming or having any interest therein. The governing board
may pay all or any part of the cost or price of such connection to
the person or persons who furnished labor, materials, or equipment
for the same, and, to the extent the governing board pays the cost or
price of the connection, it shall succeed to and have all the
rights, including the lien provided for above, of the person or
persons against the real estate and against the owner or reputed
owner thereof.
As an alternative power to the enforcement of the lien provided
for in this section, the governing body of the public agency
performing the work of connection to the public sewer may, by order
entered upon its minutes, declare that the amount of the costs of the
work and the administrative expenses incurred by the governing body
incident to the proceedings, together with other charges uniformly
applicable within the jurisdiction of the governing body for the
connection of the premises to the public sewer, shall be transmitted
to the assessor and tax collector of the public agency, whereupon it
shall be the duty of those officers to add the amount of the
assessment to the next regular bill for taxes levied against the lot
or parcel of land.
The liens provided for by this section shall be enforced in the
same manner as those provided for by Part 6 (commencing with Section
8000) of Division 4, of the Civil Code.
The governing board may also use the procedures in Section 5474
for levying the costs incurred for the construction of the
improvements for the connection of the premises to the public sewer.
SEC. 40. SEC. 38. Section 16017.5 of
the Health and Safety Code is amended to read:
16017.5. (a) Notwithstanding any provision of law to the
contrary, including, but not limited to, Part 6 (commencing with
Section 8000) of Division 4 of the Civil Code, the Department of
General Services may issue a stop work order when construction work
on an essential services facility is not being performed in
accordance with existing law and would compromise the structural
integrity of the building, thereby endangering the public safety. The
Department of General Services shall allow construction of
incidental and minor nonstructural additions or nonstructural
alterations without invoking its stop work authority.
(b) A public board, body, or officer whose construction work on an
essential services facility is subject to a stop work order issued
pursuant to subdivision (a) shall not be held liable in any action
filed against the public board, body, or officer for stopping work as
required by the stop work order, or for any delays caused by
compliance with the stop work order, except to the extent that an
error or omission by the public board, body, or officer is the basis
for the issuance of the stop work order.
SEC. 41. SEC. 39. Section 19825 of
the Health and Safety Code is amended to read:
19825. (a) Every city, county, or city and county, whether
general law or chartered, that requires the issuance of a permit as a
condition precedent to the construction, alteration, improvement,
demolition, or repair of any building or structure, shall require the
execution of a permit application, in substantially the same form
set forth under this subdivision, and require any individual who
executes the Owner-Builder Declaration to present documentation
sufficient to identify the property owner and, as necessary, verify
the signature of the property owner. A city, county, or city and
county may require additional information on the permit application.
PERMIT
APPLICATION
BUILDING PROJECT IDENTIFICATION
Applicant's Mailing Address _____________________
_____________________
Property Location
or Address _____________________
_____________________
Property Owner's Name _____________________
Property Owner's Telephone _____________________
No.
Licensed Design Professional
(Architect or Engineer) in _____________________
charge of the project
Mailing Address of Licensed _____________________
Design Professional
_____________________
License No.__________
LICENSED CONTRACTOR'S DECLARATION
I hereby affirm under penalty of perjury that I
am licensed under provisions of Chapter 9
(commencing with Section 7000) of Division 3 of
the Business and Professions Code, and my license
is in full force and effect.
License Class _______________ License No. _________
Date ________________________ Contractor Signature
_____________________
OWNER-BUILDER DECLARATION
I hereby affirm under penalty of perjury that I
am exempt from the Contractors' State License Law
for the reason(s) indicated below by the
checkmark(s) I have placed next to the applicable
item(s) (Section 7031.5, Business and Professions
Code: Any city or county that requires a permit to
construct, alter, improve, demolish, or repair any
structure, prior to its issuance, also requires
the applicant for the permit to file a signed
statement that he or she is licensed pursuant to
the provisions of the Contractors' State License
Law (Chapter 9 (commencing with Section 7000) of
Division 3 of the Business and Professions Code)
or that he or she is exempt from licensure and the
basis for the alleged exemption. Any violation of
Section 7031.5 by any applicant for a permit
subjects the applicant to a civil penalty of not
more than five hundred dollars ($500).):
(_) I, as owner of the property, or my employees
with wages as their sole compensation, will do (_)
all of or (_) portions of the work, and the
structure is not intended or offered for sale
(Section 7044, Business and Professions Code: The
Contractors' State License Law does not apply to
an owner of property who, through employees' or
personal effort, builds or improves the property,
provided that the improvements are not intended or
offered for sale. If, however, the building or
improvement is sold within one year of completion,
the Owner-Builder will have the burden of proving
that it was not built or improved for the purpose
of sale.).
(_) I, as owner of the property, am exclusively
contracting with licensed Contractors to
construct the project (Section 7044, Business
and Professions Code: The Contractors' State
License Law does not apply to an owner of
property who builds or improves thereon, and who
contracts for the projects with a licensed
Contractor pursuant to the Contractors' State
License Law.).
(_) I am exempt from licensure under the
Contractors' State License Law for the following
reason:
__________________________________________________
By my signature below I acknowledge that, except
for my personal residence in which I must have
resided for at least one year prior to completion
of the improvements covered by this permit, I
cannot legally sell a structure that I have
built as an owner-builder if it has not been
constructed in its entirety by licensed
contractors. I understand that a copy of the
applicable law, Section 7044 of the Business and
Professions Code, is available upon request when
this application is submitted or at the following
Web site: http://www.leginfo.ca.gov/calaw.html.
Date _____________________
Signature of Property Owner or Authorized
Agent
__________________________________________________
WORKERS' COMPENSATION DECLARATION
WARNING: FAILURE TO SECURE WORKERS' COMPENSATION
COVERAGE IS UNLAWFUL, AND SHALL SUBJECT AN
EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES UP
TO ONE HUNDRED THOUSAND DOLLARS ($100,000), IN
ADDITION TO THE COST OF COMPENSATION, DAMAGES AS
PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE,
INTEREST, AND ATTORNEY'S FEES.
I hereby affirm under penalty of perjury one of
the following declarations:
____ I have and will maintain a certificate of
consent to self-insure for workers' compensation,
issued by the Director of Industrial Relations as
provided for by Section 3700 of the Labor Code,
for the performance of the work for which this
permit is issued.
Policy No. ____________________
____ I have and will maintain workers'
compensation insurance, as required by Section
3700 of the Labor Code, for the performance
of the work for which this permit is issued. My
workers' compensation insurance carrier and
policy number are:
Carrier____________Policy Number Expiration Date
Name of Agent _________________ Phone # __________
____ I certify that, in the performance of the
work for which this permit is issued, I shall not
employ any person in any manner so as to become
subject to the workers' compensation laws of
California, and agree that, if I should
become subject to the workers' compensation
provisions of Section 3700 of the Labor Code, I
shall forthwith comply with those provisions.
____________
Signature of ______
__________ Date
Applicant
DECLARATION REGARDING CONSTRUCTION LENDING AGENCY
I hereby affirm under penalty of perjury that
there is a construction lending agency for the
performance of the work for which this permit is
issued (Section 8132, Civil Code).
Lender's Name __________________________________
Branch Designation _____________________________
Lender's Address _______________________________
By my signature below, I certify to each of the
following:
I am the property owner or authorized to act on
the property owner's behalf.
I have read this application and the information
I have provided is correct.
I agree to comply with all applicable city and
county ordinances and state laws relating to
building construction.
I authorize representatives of this city or
county to enter the above-identified property for
inspection purposes.
Signature of Property Owner or Authorized
Agent ____________________________________________
Date ____________________________
(b) When the Permit Application and the Owner-Builder Declaration
have been executed by a person other than the property owner, prior
to issuing the permit, the following shall be completed by the
property owner and returned to the agency responsible for issuing the
permit:
AUTHORIZATION OF AGENT TO ACT ON PROPERTY
OWNER'S BEHALF
Excluding the Notice to Property Owner, the
execution of which I understand is my personal
responsibility, I hereby authorize the following
person(s) to act as my agent(s) to apply
for, sign, and file the documents necessary to
obtain an Owner-Builder Permit for my project.
Scope of Construction Project (or Description of
Work):
_________________________________________________
Project Location or Address: ____________________
Name of Authorized
Agent: __________________________________________
Address of Authorized
Agent: __________________________________________
Phone Number of Authorized
Agent: __________________________________________
I declare under penalty of perjury that I am the
property owner for the address listed above and I
personally filled out the above information and
certify its accuracy.
Property Owner's Signature:_________________Date:
Note: A copy of the owner's driver's license, form
notarization, or other verification acceptable to
the agency is required to be presented when the
permit is issued to verify the property owner's
signature.
(c) When the Owner-Builder Declaration required under subdivision
(a) is executed, a Notice to Property Owner also shall be executed by
the property owner in substantially the same form set forth under
this section. The Notice to Property Owner shall appear on the
official letterhead of the issuer and shall be provided to the
applicant by one of the following methods chosen by the permitting
authority: regular mail, electronic format, or given directly to the
applicant at the time the application for the permit is made. Except
as otherwise provided, the Notice to Property Owner pursuant to this
section shall be completed and signed by the property owner and
returned prior to issuance of the permit. An agent of the owner shall
not execute this notice unless the property owner obtains the prior
approval of the permitting authority. A permit shall not be issued
unless the property owner complies with this section.
NOTICE TO PROPERTY OWNER
Dear Property Owner:
An application for a building permit has been
submitted in your name listing yourself as the
builder of the property improvements specified at
_______________.
We are providing you with an Owner-Builder
Acknowledgment and Information Verification Form
to make you aware of your responsibilities and
possible risk you may incur by having this permit
issued in your name as the Owner-Builder.
We will not issue a building permit until you
have read, initialed your understanding of each
provision, signed, and returned this form to us at
our official address indicated. An agent of the
owner cannot execute this notice unless you, the
property owner, obtain the prior approval of the
permitting
authority.
OWNER'S ACKNOWLEDGMENT AND VERIFICATION OF
INFORMATION
DIRECTIONS: Read and initial each statement below
to signify you understand or verify this
information.
____1. I understand a frequent practice of
unlicensed persons is to have the property owner
obtain an ""Owner-Builder'' building permit that
erroneously implies that the property owner is
providing his or her own labor and material
personally. I, as an Owner-Builder, may be
held liable and subject to serious financial risk
for any injuries sustained by an unlicensed person
and his or her employees while working on my
property. My homeowner's insurance may not provide
coverage for those injuries. I am willfully acting
as an Owner-Builder and am aware of the limits of
my insurance coverage for injuries to workers on
my property.
____2. I understand building permits are not
required to be signed by property owners unless
they are responsible for the construction and are
not hiring a licensed Contractor to assume this
responsibility.
____3. I understand as an ""Owner-Builder'' I am
the responsible party of record on the permit. I
understand that I may protect myself from
potential financial risk by hiring a licensed
Contractor and having the permit filed in
his or her name instead of my own.
____4. I understand Contractors are required by
law to be licensed and bonded in California and to
list their license numbers on permits and
contracts.
____5. I understand if I employ or otherwise
engage any persons, other than California licensed
Contractors, and the total value of my
construction is at least five hundred dollars
($500), including labor and materials, I may be
considered an ""employer'' under state and federal
law.
____6. I understand if I am considered an
""employer'' under state and federal law, I must
register with the state and federal government,
withhold payroll taxes, provide workers'
compensation disability insurance, and contribute
to unemployment compensation for each
""employee.'' I also understand my failure to
abide by these laws may subject me to serious
financial risk.
____7. I understand under California Contractors'
State License Law, an Owner-Builder who builds
single-family residential structures cannot
legally build them with the intent to offer them
for sale, unless all work is performed by licensed
subcontractors and the number of structures does
not exceed four within any calendar year, or all
of the work is performed under contract with a
licensed general building Contractor.
____8. I understand as an Owner-Builder if I sell
the property for which this permit is issued, I
may be held liable for any financial or personal
injuries sustained by any subsequent
owner(s) that result from any latent construction
defects in the workmanship or materials.
____9. I understand I may obtain more information
regarding my obligations as an ""employer'' from
the Internal Revenue Service, the United States
Small Business Administration, the California
Department of Benefit Payments, and the California
Division of Industrial Accidents. I also
understand I may contact the California
Contractors' State License Board (CSLB) at 1-800-
321-CSLB (2752) or www.cslb.ca.gov for more
information about licensed contractors.
____10. I am aware of and consent to an Owner-
Builder building permit applied for in my name,
and understand that I am the party legally and
financially responsible for proposed construction
activity at the following address:
___________________________________________________
____11. I agree that, as the party legally and
financially responsible for this proposed
construction activity, I will abide by all
applicable laws and requirements that govern Owner-
Builders as well as employers.
____ 12. I agree to notify the issuer of this form
immediately of any additions, deletions, or
changes to any of the information I have provided
on this form.
Licensed contractors are regulated by laws
designed to protect the public. If you contract
with someone who does not have a license, the
Contractors' State License Board may be
unable to assist you with any financial loss you
may sustain as a result of a complaint. Your only
remedy against unlicensed Contractors may be in
civil court. It is also important for you to
understand that if an unlicensed Contractor or
employee of that individual or firm is injured
while working on your property, you may be held
liable for damages. If you obtain a permit as
Owner-Builder and wish to hire Contractors, you
will be responsible for verifying whether or not
those Contractors are properly licensed and the
status of their workers' compensation insurance
coverage.
Before a building permit can be issued, this form
must be completed and signed by the property owner
and returned to the agency responsible for issuing
the permit.
Note: A copy of the property owner's driver's
license, form notarization, or other verification
acceptable to the agency is required to be
presented when the permit is issued to
verify the property owner's signature.
Signature of Property Owner ______ Date: __________
SEC. 42. SEC. 40. Section 34218 of
the Health and Safety Code is amended to read:
34218. Chapter 5 (commencing with Section 9550) of Title 2 of
Part 6 of Division 4 of the Civil Code applies to any housing project
constructed under this chapter. Notwithstanding the provisions of
this section, a housing authority may require a 20 percent cash
escrow or a 25 percent irrevocable letter of credit or the payment
bond required by this section if the contract is for work undertaken
pursuant to the Comprehensive Improvement Assistance Program
established by Section 14 of the United States Housing Act of 1937,
as amended (42 U.S.C.A. Secs. 1437d and 1437 l ), or the
Public Housing Modernization Act established by Section 5(c)(3)(C) of
the United States Housing Act of 1937, as amended (42 U.S.C.A. Secs.
1437d and 1437 l ).
SEC. 43. SEC. 41. Section 11751.82
of the Insurance Code is amended to read:
11751.82. (a) An insurer under a wrap-up insurance policy shall
report workers' compensation losses and payroll information for each
contractor and subcontractor to its rating organization on a timely
basis and in accordance with the uniform statistical plan. Within 10
days, upon request, the insurer shall provide to each contractor and
subcontractor copies of the report covering workers' compensation
losses and payroll information for that contractor or subcontractor.
(b) For the purposes of this section, a "wrap-up insurance policy"
is an insurance policy, or series of policies, written to cover
risks associated with a work of improvement, as defined in Section
8050 of the Civil Code, and covering two or more of the contractors
or subcontractors that work on that work of improvement.
SEC. 44. SEC. 42. Section 218.5 of
the Labor Code is amended to read:
218.5. In any action brought for the nonpayment of wages, fringe
benefits, or health and welfare or pension fund contributions, the
court shall award reasonable attorney's fees and costs to the
prevailing party if any party to the action requests attorney's fees
and costs upon the initiation of the action. This section shall not
apply to an action brought by the Labor Commissioner. This section
shall not apply to a surety issuing a bond pursuant to Chapter 9
(commencing with Section 7000) of Division 3 of the Business and
Professions Code or to an action to enforce a mechanics lien brought
under Chapter 4 (commencing with Section 8400) of Part 6 of Division
2 of the Civil Code.
This section does not apply to any action for which attorney's
fees are recoverable under Section 1194.
SEC. 45. SEC. 43. Section 4107.7 of
the Public Contract Code is amended to read:
4107.7. If a contractor who enters into a contract with a public
entity for investigation, removal or remedial action, or disposal
relative to the release or presence of a hazardous material or
hazardous waste fails to pay a subcontractor registered as a
hazardous waste hauler pursuant to Section 25163 of the Health and
Safety Code within 10 days after the investigation, removal or
remedial action, or disposal is completed, the subcontractor may
serve a stop notice upon the public entity in accordance with Chapter
4 (commencing with Section 9350) of Title 2 of Part 6 of Division 4
of the Civil Code.
SEC. 46. SEC. 44. Section 7103 of
the Public Contract Code is amended to read:
7103. (a) (1) Every original contractor that is awarded a
contract by a state entity, as defined in subdivision (d), involving
an expenditure in excess of twenty-five thousand dollars ($25,000)
for any public work shall, before entering upon the performance of
the work, file a payment bond with and approved by the officer or
state entity that awarded the contract. The bond shall be in a sum
not less than 100 percent of the total amount payable by the terms of
the contract.
(2) The state entity shall state in its call for bids for any
contract that a payment bond is required in the case of such an
expenditure.
(b) A payment bond filed and approved in accordance with this
section shall be sufficient to enter upon the performance of work
under a duly authorized contract that supplements the contract for
which the payment bond was filed if the requirement of a new bond is
waived by the state entity.
(c) For purposes of this section, providers of architectural,
engineering, and land surveying services pursuant to a contract with
a state entity for a public work shall not be deemed an original
contractor and shall not be required to post or file the payment bond
required in subdivisions (a) and (b).
(d) For purposes of this section, "state entity" means every state
office department, division, bureau, board, or commission, but does
not include the Legislature, the courts, any agency in the judicial
branch of government, or the University of California. All other
public entities shall be governed by Section 9550 of the Civil Code.
(e) For purposes of this section, "public work" includes the
erection, construction, alteration, repair, or improvement of any
state structure, building, road, or other state improvement of any
kind.
SEC. 47. SEC. 45. Section 10222 of
the Public Contract Code is amended to read:
10222. (a) Each bond shall equal at least one-half of the
contract price, except as otherwise provided in Section 9554 of the
Civil Code, in the California Toll Bridge Authority Act (Chapter 1
(commencing with Section 30000) of Division 7 of the Streets and
Highways Code), or in subdivision (b).
(b) Notwithstanding subdivision (a), for projects with a contract
price greater than two hundred fifty million dollars ($250,000,000),
the Department of Transportation shall have the discretion to specify
that the payment bond shall equal not less than one-half of the
contract price or five hundred million dollars ($500,000,000),
whichever is less.
SEC. 48. SEC. 46. Section 10822 of
the Public Contract Code is amended to read:
10822. Each bond shall be in a sum equal to at least one-half of
the contract price, except as otherwise provided in Section 9554 of
the Civil Code.
SEC. 49. SEC. 47. Section 20104 of
the Public Contract Code is amended to read:
20104. (a) (1) This article applies to all public works claims of
three hundred seventy-five thousand dollars ($375,000) or less which
arise between a contractor and a local agency.
(2) This article shall not apply to any claims resulting from a
contract between a contractor and a public agency when the public
agency has elected to resolve any disputes pursuant to Article 7.1
(commencing with Section 10240) of Chapter 1 of Part 2.
(b) (1) "Public work" means "public works contract" as defined in
Section 1101 but does not include any work or improvement contracted
for by the state or the Regents of the University of California.
(2) "Claim" means a separate demand by the contractor for (A) a
time extension, (B) payment of money or damages arising from work
done by, or on behalf of, the contractor pursuant to the contract for
a public work and payment of which is not otherwise expressly
provided for or the claimant is not otherwise entitled to, or (C) an
amount the payment of which is disputed by the local agency.
(c) The provisions of this article or a summary thereof shall be
set forth in the plans or specifications for any work which may give
rise to a claim under this article.
(d) This article applies only to contracts entered into on or
after January 1, 1991.
SEC. 50. SEC. 48. Section
20134 of the Public Contract Code is amended to read:
20134. (a) In cases of emergency, when repair or replacements are
necessary to permit the continued conduct of county operations or
services, the board of supervisors, by majority consent, may proceed
at once to replace or repair any and all structures without adopting
the plans, specifications, strain sheets, or working details or,
subject to Chapter 2.5 (commencing with Section 22050), giving notice
for bids to let contracts. If notice for bids to let contracts will
not be given, the board shall comply with Chapter 2.5 (commencing
with Section 22050). The work may be done by day labor under the
direction of the board, by contract, or by a combination of the two.
If the work is done wholly or in part by contract, the contractor
shall be paid the actual cost of the use of machinery and tools and
of material, and labor and of workers' compensation insurance
expended by him or her in doing the work, plus not more than 15
percent to cover all profits and administration. No more than the
lowest current market prices shall be paid for materials whenever
possible.
(b) In a county of the first, second, third, or fourth class,
which is under court order to relieve jail overcrowding or in which
the sheriff certifies that the inmate capacity of the county jail
system is exceeded by more than 20 percent and that the
overpopulation is likely to continue and poses a threat to public
safety, health, and welfare, the board of supervisors may contract
for the construction or expansion of jail facilities without the
formality of obtaining bids, adopting plans and specifications, or
complying with other requirements of this article, except as required
by this subdivision. The person to whom the contract is awarded
shall execute a bond for faithful performance in accordance with
Section 20129. Any plans and specifications adopted by the board may
only be altered or changed in accordance with Section 20135 and all
contracts awarded pursuant to this subdivision may only be altered or
changed in accordance with Sections 20136, 20137, and 20138. The
award of the contract shall be made after a public hearing on the
basis of a request for proposals advertised in accordance with
Section 6062 or 6062a of the Government Code. The contract may be
awarded only to a contractor who has responded to the request for
proposals and who is licensed to do the work in accordance with
Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code. The contract shall be upon terms which
the board determines are necessary for the expeditious completion of
the work. A contract shall not be entered into unless at least three
proposals to do the work have been evaluated by a competitive
process established by the board. If the board does not select the
lowest bid, it shall make a finding stating the reasons that the
lowest bid was not selected.
(c) In any county that has agreed to permit the transfer of
prisoners or parole violators under Section 2910 or 2910.5 of the
Penal Code or of wards under Section 1753.3 of the Welfare and
Institutions Code, the board of supervisors may contract for the
construction or expansion of the facilities to be used for that
purpose without the formality of obtaining bids, adopting plans and
specifications, or complying with other requirements of this article,
except as required by this subdivision. The person to whom the
contract is awarded shall execute a bond for faithful performance in
accordance with Section 20129. Any plans and specifications adopted
by the board may only be altered or changed in accordance with
Section 20135 and all contracts awarded pursuant to this subdivision
may only be altered or changed in accordance with Sections 20136,
20137, and 20138. The award of the contract shall be made after a
public hearing on the basis of a request for proposals advertised in
accordance with Section 6062 or 6062a of the Government Code. The
contract may be awarded only to a contractor who has responded to the
request for proposals and who is licensed to do the work in
accordance with Chapter 9 (commencing with Section 7000) of Division
3 of the Business and Professions Code. The contract shall be upon
terms which the board determines are necessary for the expeditious
completion of the work. A contract shall not be entered into unless
at least three proposals to do the work have been evaluated by a
competitive process established by the board and the lowest bid is
selected.
(d) Proposed
construction or expansion of jail or return-to-custody facilities as
authorized under subdivision (b) or (c) shall not commence in a
county of the third class without the affirmative vote of a majority
of the city council of the incorporated city within which the
construction or expansion is proposed.
(e) The board of supervisors may waive the requirements of Title 2
(commencing with Section 9000) of Part 6 of Division 4 of the Civil
Code for work performed pursuant to subdivision (b) or (c).
(f) If any county that is under court order to relieve
overcrowding in a county juvenile facility, as defined by subdivision
(c) of Section 4481 of the Penal Code or in which the chief
probation officer certifies that the juvenile detention capacity of
the county juvenile facilities is exceeded by more than 20 percent
and that the overpopulation is likely to continue and poses a threat
to public safety, health, and welfare, the board of supervisors may
contract for the construction or expansion of county juvenile
facilities without the formality of obtaining bids, adopting plans
and specifications, or complying with other requirements of this
article, except as required by this subdivision. The person to whom
the contract is awarded shall execute a bond for faithful performance
in accordance with Section 20129. Any plans and specifications
adopted by the board may only be altered or changed in accordance
with Section 20135 and all contracts awarded pursuant to this
subdivision may only be altered or changed in accordance with
Sections 20136, 20137, and 20138. The award of the contract shall be
made after a public hearing on the basis of a request for proposals
advertised in accordance with Section 6062 or 6062a of the Government
Code. The contract may be awarded only to a contractor who has
responded to the request for proposals and who is licensed to do the
work in accordance with Chapter 9 (commencing with Section 7000) of
Division 3 of the Business and Professions Code. The contract shall
be upon terms which the board determines are necessary for the
expeditious completion of the work. A contract shall not be entered
into unless at least three proposals to do the work have been
evaluated by a competitive process established by the board. If the
board does not select the lowest bidder, it shall make a finding
stating the reasons that the lowest bidder was not selected.
(g) In a county of the third class in which there are no available
courtrooms to accommodate all authorized judicial positions or in
which the board of supervisors certifies that there is a significant
need to expeditiously construct new court and court support
facilities, the board of supervisors may contract for the
construction or expansion of court and court support facilities
without the formality of obtaining bids, adopting plans and
specifications, or complying with other requirements of this article,
except as required by this subdivision. The person to whom the
contract is awarded shall execute a bond for faithful performance in
accordance with Section 20129. Any plans and specifications adopted
by the board may only be altered or changed in accordance with
Section 20135 and all contracts awarded pursuant to this subdivision
may only be altered or changed in accordance with Sections 20136,
20137, and 20138. The award of the contract shall be made after a
public hearing on the basis of a request for proposals advertised in
accordance with Section 6062 or 6062a of the Government Code. The
contract may be awarded only to a contractor who has responded to the
request for proposals and who is licensed to do the work in
accordance with Chapter 9 (commencing with Section 7000) of Division
3 of the Business and Professions Code. The contract shall be upon
terms which the board determines are necessary for the expeditious
completion of the work. A contract shall not be entered into unless
at least three proposals to do the work have been evaluated by a
competitive process established by the board and the lowest bid is
selected. This subdivision shall remain in effect until December 31,
1994.
SEC. 51. SEC. 49. Section 20461 of
the Public Contract Code is amended to read:
20461. No assignment by the contractor of the whole or any part
of the money, assessment, partial assessment, any reassessment and
any bonds which may be issued to represent any assessment or
reassessment, due or to be due under the contract, or for "extras" in
connection therewith, whether made before or after a verified claim
is filed pursuant to this chapter, shall take priority over the
claims, and the assignment shall have no binding force insofar as the
rights of the claimants, or their assigns, are concerned. None of
the provisions of Title 2 (commencing with Section 9000) of Part 6 of
Division 4 of the Civil Code shall be applicable to any assessment,
partial assessment, reassessment, bonds, moneys or funds payable to
the contractor or assignee under this division or to any matter
contained in this chapter.
SEC. 52. SEC. 50. Section 20496 of
the Public Contract Code is amended to read:
20496. The provisions of Part 6 (commencing with Section 41010)
of Division 2 are hereby expressly made applicable to the
construction of works and improvements under this article.
SEC. 53. SEC. 51. Section 20682.5 of
the Public Contract Code is amended to read:
20682.5. (a) A district may construct or complete any building,
structure, or improvement with its own forces or by contract without
bidding when the cost does not exceed twenty-five thousand dollars
($25,000).
(b) All contracts for the construction or completion of any
building, structure, or improvement, when the cost exceeds
twenty-five thousand dollars ($25,000), shall be contracted for and
let to the lowest responsible bidder after notice. If two or more
bids are the same and the lowest, the district board may accept the
one it chooses.
(c) The district shall publish a notice inviting bids for any
contract for which competitive bidding is required at least one time
in a newspaper of general circulation in the district at least 10
days before the time specified for receiving bids. The notice
inviting bids shall set a date for opening the bids and distinctly
state the work to be done.
(d) If the general manager recommends and the board of directors
determines that the publication of advertisements of the notice in
trade journals and papers in lieu of publication pursuant to
subdivision (c) will increase the number of business enterprises
receiving that notice, the board of directors may by resolution
declare that those notices shall be published in trade journals and
papers at least 10 days prior to the time specified for receiving
bids.
(e) If plans and specifications are prepared describing the work,
all bidders shall be afforded an opportunity to examine the plans and
specifications, and the plans and specifications shall be attached
to and become part of the contract, if one is awarded.
(f) At its discretion, the board of directors may reject any bids
presented and readvertise.
(g) In the case of an emergency, the board of directors may act
pursuant to Chapter 2.5 (commencing with Section 22050).
(h) The board of directors may, subject to Chapter 5 (commencing
with Section 9550) of Title 2 of Part 6 of Division 4 of the Civil
Code, require the posting of those bonds it deems desirable as a
condition to the filing of a bid or the letting of a contract.
(i) The district shall keep cost records of the work in the manner
provided in Chapter 1 (commencing with Section 4000) of Division 5
of Title 1 of the Government Code.
(j) As an alternate to the procedures required by this section, a
district may rely on the Uniform Public Construction Cost Accounting
Act, Chapter 2 (commencing with Section 22000) of Part 3 of Division
2.
SEC. 54. SEC. 52. Section 20688.4 of
the Public Contract Code is amended to read:
20688.4. An agency shall require each successful bidder to file
with it good and sufficient bonds, to be approved by it. The bonds
shall be conditioned upon the faithful performance of the contract
and upon the payment of all claims for labor and material in
connection with the contract. The bonds shall contain the terms and
conditions set forth in Chapter 5 (commencing with Section 9550) of
Title 2 of Part 6 of Division 4 of the Civil Code and are subject to
the provisions of that chapter.
SEC. 55. SEC. 53. Section 20813 of
the Public Contract Code is amended to read:
20813. (a) All contracts for the construction or completion of
any building, structure, or improvement, when the expenditure
required for the work exceeds ten thousand dollars ($10,000), shall
be contracted for and let to the lowest responsible bidder after
notice. If two or more bids are the same and the lowest, the district
board may accept the one it chooses.
(b) The notice inviting bids shall set a date for the opening of
bids. The first publication or posting of the notice shall be at
least 10 days before the date of opening the bids. Notice shall be
published at least twice, not less than five days apart, in a
newspaper of general circulation in the district, or if there is
none, it shall be posted in at least three public places in the
district. The notice shall distinctly state the work to be done.
(c) In its discretion, the district board may reject any bids
presented and readvertise.
(d) In the case of an emergency, the district board may act
pursuant to Chapter 2.5 (commencing with Section 22050).
(e) The district board may, subject to the provisions of Chapter 5
(commencing with Section 9550) of Title 2 of Part 6 of Division 4 of
the Civil Code, require the posting of those bonds it deems
desirable as a condition to the filing of a bid or the letting of a
contract.
(f) Cost records of the work shall be kept in the manner provided
in Chapter 1 (commencing with Section 4000) of Division 5 of Title 1
of the Government Code.
SEC. 56. SEC. 54. Section 20815.3 of
the Public Contract Code is amended to read:
20815.3. (a) A district shall publish notice inviting bids for
any contract for which competitive bidding is required at least one
time in a newspaper of general circulation in the district at least
one week before the time specified for receiving bids. The notice
shall distinctly state the work to be done.
(b) In its discretion, the board of directors may do any of the
following:
(1) Reject all bids and readvertise.
(2) By a four-fifths vote, elect to purchase the materials or
supplies in the open market.
(3) By a four-fifths vote, elect to construct the building,
structure, or improvement by force account.
(c) In the case of an emergency, the board of directors may act
pursuant to Chapter 2.5 (commencing with Section 22050).
(d) The board of directors may, subject to the provisions of
Chapter 5 (commencing with Section 9550) of Title 2 of Part 6 of
Division 4 of the Civil Code, require the posting of those bonds it
deems as a condition to the filing of a bid or the letting of a
contract.
(e) The district shall keep cost records of the work pursuant to
Chapter 1 (commencing with Section 4000) of Division 5 of Title 1 of
the Government Code.
SEC. 57. SEC. 55. Section 20991 of
the Public Contract Code is amended to read:
20991. All contracts for any improvement or unit of work, except
as provided in this article, estimated to cost in excess of
twenty-five thousand dollars ($25,000), shall be let to the lowest
responsible bidder in the manner provided in this article. The board
of supervisors of the district shall advertise by five or more
insertions in a daily newspaper of general circulation, or by two or
more insertions in a weekly newspaper of general circulation, printed
and published in the district, inviting sealed proposals for the
construction of the improvement or work. The board shall require the
successful bidder or bidders to file with the board good and
sufficient bonds, to be approved by the board, conditioned upon the
faithful performance of the contract and upon the payment of all
claims for labor and material. The bonds shall contain the terms and
conditions set forth in Chapter 5 (commencing with Section 9550) of
Title 2 of Part 6 of Division 4 of the Civil Code and shall be
subject to the provisions of that chapter. The board shall have the
right to reject any bid not suitable to the best interests of the
district. In the event all proposals are rejected or no proposals are
received pursuant to advertisement, or the estimated cost of the
work does not exceed ten thousand dollars ($10,000), or the work
consists of channel protection, dam protection, temporary work,
maintenance work, or emergency work, the board of supervisors may,
without advertising for bids, have the work done by force account.
Emergency work may also be done by negotiated contract without
advertising for bids. In case of an emergency, if notice for bids to
let contracts will not be given, the board shall comply with Chapter
2.5 (commencing with Section 22050).
SEC. 58. SEC. 56. Section 21061 of
the Public Contract Code is amended to read:
21061. (a) All contracts for any improvement or unit of work,
except as provided in this article, estimated to cost in excess of
twenty-five thousand dollars ($25,000), shall be let to the lowest
responsible bidder in the manner provided in this article.
(b) The board of supervisors of the district shall advertise by
five or more insertions in a daily newspaper of general circulation,
or by two or more insertions in a weekly newspaper of general
circulation, printed and published in the district, inviting sealed
proposals for the construction of the improvement or work. The board
shall require the successful bidder or bidders to file with the board
good and sufficient bonds, to be approved by the board, conditioned
upon the faithful performance of the contract and upon the payment of
all claims for labor and material, the bonds to contain the terms
and conditions set forth in Chapter 5 (commencing with Section 9550)
of Title 2 of Part 6 of Division 4 of the Civil Code and to be
subject to that chapter.
(c) The board may also reject any bid not suitable to the best
interests of the district. If all proposals are rejected or no
proposals are received pursuant to advertisement therefor, or the
work consists of channel protection, dam protection, temporary work,
maintenance work, or of emergency work, the board of supervisors may,
without advertising for bids, have the work done by force account.
Emergency work may also be done by negotiated contract without
advertising for bids or requiring bonds. In case of an emergency, if
notice for bids to let contracts will not be given, the board shall
comply with Chapter 2.5 (commencing with Section 22050).
(d) The board of supervisors, acting as the board of the district,
may, by ordinance, resolution, or board order, authorize the flood
control engineer or other county officer to order changes or
additions in work being performed under a construction contract. When
so authorized, any change or addition in the work shall be ordered
in writing by the flood control engineer, or other designated
officer, and the extra cost for any change or addition to the work so
ordered shall not exceed five thousand dollars ($5,000) when the
total amount of the original contract does not exceed fifty thousand
dollars ($50,000), nor 10 percent of the amount of any original
contract that exceeds fifty thousand dollars ($50,000), but does not
exceed two hundred fifty thousand dollars ($250,000). For contracts
whose original cost exceeds two hundred fifty thousand dollars
($250,000), the extra cost for any change or addition to the work so
ordered shall not exceed twenty-five thousand dollars ($25,000), plus
5 percent of the amount of the original contract costs in excess of
two hundred fifty thousand dollars ($250,000). In no event shall any
such change or alteration exceed one hundred fifty thousand dollars
($150,000).
SEC. 59. SEC. 57. Section 21071 of
the Public Contract Code is amended to read:
21071. (a) All contracts for any improvement or unit of work
except as provided in this article estimated to cost in excess of ten
thousand dollars ($10,000) shall be let to the lowest responsible
bidder in the manner provided in this article. The board of
supervisors of the district shall advertise by three insertions in a
daily newspaper of general circulation or two insertions in a weekly
newspaper of general circulation printed and published in the
district inviting sealed proposals for the construction of, the
improvement or work before any contract shall be made for the
improvement or work, and may let by contract separately any part of
the work or improvement. The board shall require the successful
bidder to file with the board good and sufficient bonds to be
approved by the board conditioned upon the faithful performance of
the contract and upon the payment of their claims for labor and
material in connection with the contract. The bonds shall contain the
terms and conditions set forth in Chapter 5 (commencing with Section
9550) of Title 2 of Part 6 of Division 4 of the Civil Code and be
subject to the provisions of that chapter. The board shall also have
the right to reject any and all bids. If all proposals are rejected
or no proposals are received pursuant to the advertisement, the
estimated cost of the work does not exceed the sum of ten thousand
dollars ($10,000), or the work consists of channel protection,
maintenance work, or emergency work when necessary in order to
protect life and property from impending flood damage, the board of
supervisors may, without advertising for bids, have the work done by
force account or negotiated contract.
(b) The district shall have the power to purchase in the open
market without advertising for bids, materials, supplies, equipment,
and other personal property for use in any work either under contract
or by force account if the costs do not exceed ten thousand dollars
($10,000). It shall be the duty of the purchasing agent of Ventura
County, as the ex officio purchasing agent of the Ventura County
Watershed Protection District, unless otherwise ordered by the board
of supervisors, to purchase for the district all materials, supplies,
equipment, and other personal property necessary to carry out the
purposes of this article, and to engage independent contractors to
perform sundry services for the district, if the aggregate cost of
such work, exclusive of materials to be furnished by the district,
does not exceed ten thousand dollars ($10,000).
(c) The purchasing agent shall make all purchases and contracts
upon proper requisition, signed by the engineer-manager of the
district, or his or her authorized representative.
(d) If the work consists of the maintenance or alteration of
existing facilities, including electrical, painting, and roofing if
the cost of labor and materials for the work according to the
engineer's estimate will exceed five thousand dollars ($5,000), and
if the work is not of the type of work referred to in this section,
the maintenance and alteration work shall be performed under a
contract or contracts that shall be let to the lowest responsible
bidder or bidders in the manner described in this section.
SEC. 60. SEC. 58. Section 21081 of
the Public Contract Code is amended to read:
21081. All contracts for any improvement or unit of work, when
the cost, according to the estimate of the engineer, will exceed five
thousand dollars ($5,000), shall be let to the lowest responsible
bidder or bidders in the manner provided in this article. The board
shall first determine whether the contract shall be let as a single
unit for the whole of the work, or shall be divided into severable
parts, or both, according to the best interests of the district. The
board shall call for bids and advertise the call by three insertions
in a daily newspaper of general circulation or by two insertions in a
weekly newspaper of general circulation printed and published in the
district inviting sealed proposals for the construction or
performance of the improvement or work before any contract is made.
The call for bids shall state whether the work is to be performed as
a unit or divided into severable specific parts, or both, as stated
in the call. The board may let the work by single contract for the
whole or it may divide such work into severable parts by separate
contracts, as stated in such call, according to the best interests of
the district. The board shall require the successful bidder or
bidders to file with the board good and sufficient bonds to be
approved by the board conditioned upon the faithful performance of
the contract and upon the payment of their claims for labor and
material, the bonds to contain the terms and conditions set forth in
Title 2 (commencing with Section 9000) of Part 6 of Division 4 of the
Civil Code and to be subject to the provisions of that title. The
board shall also have the right to reject any bid. In the event all
proposals are rejected or no proposals are received pursuant to
advertisement, or the estimated cost of such work does not exceed
five thousand dollars ($5,000), or the work consists of channel
protection, maintenance work, or emergency work, the board of
supervisors may, without advertising for bids, have the work done by
force account. The district may purchase in the open market, without
advertising for bids, materials and supplies for use in any work
either under contract or by force account.
SEC. 61. SEC. 59. Section 21091 of
the Public Contract Code is amended to read:
21091. All contracts for any improvement or unit of work, except
as otherwise provided in this act, estimated to cost in excess of
fifteen thousand dollars ($15,000) shall be let to the lowest
responsible bidder in the manner provided in this article. The board
of supervisors of the district shall advertise by three insertions in
a daily newspaper of general circulation or two insertions in a
weekly newspaper of general circulation printed and published in the
district inviting sealed proposals for the construction of the
improvement or work before any contract is made, and may let by
contract separately any part of the work or improvement. The board
shall require the successful bidder to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of their
claims for labor and material. The bonds shall contain the terms and
conditions set forth in Sections 10223 and 10224, and Section 9554 of
the Civil Code and be subject to those sections. The board shall
also have the right to reject any bid. If all proposals are rejected
or no proposals are received pursuant to advertisement, or where the
estimated cost of the work does not exceed fifteen thousand dollars
($15,000), or the work consists of channel protection, maintenance
work, or emergency work, the board of supervisors may, without
advertising for bids, have the work done by force account. In case of
an emergency, if notice for bids to let contracts will not be given,
the board shall comply with Chapter 2.5 (commencing with Section
22050). The district may purchase in the open market, without
advertising for bids, materials and supplies for use in any
improvement or unit of work either under contract or by force
account.
SEC. 62. SEC. 60. Section 21101 of
the Public Contract Code is amended to read:
21101. All contracts for any improvement or unit of work, when
the cost, according to the estimate of the engineer, will exceed five
thousand dollars ($5,000), shall be let to the lowest responsible
bidder or bidders in the manner provided in this article. The board
shall first determine whether the contract shall be let as a single
unit for the whole of the work, or shall be divided into parts, or
both, according to the best interests of the district. The board
shall call for bids and advertise the call by three insertions in a
daily newspaper of general circulation or two insertions in a weekly
newspaper of general circulation printed and published in the
district inviting sealed proposals for the construction or
performance of the improvement or work before any contract shall be
made. The call for bids shall state whether the work is to be
performed as a unit or is to be divided into severable specific
parts, or both, as stated in the call. The board may let the work by
single contract for the whole as a unit or it may divide the work
into severable parts by separate contracts, as stated in the call,
according to the best interests of the district. The board shall
require the successful bidder or bidders to file with the board good
and sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of their
claims for labor and material, the bonds to contain the terms and
conditions set forth in Title 2 (commencing with Section 9000) of
Part 6 of Division 4 of the Civil Code and to be subject to the
provisions of that title. The board shall also have the right to
reject any bid. In the event all proposals are rejected or no
proposals are received pursuant to advertisement, or the estimated
cost of the work does not exceed five thousand dollars ($5,000), or
the work consists of channel protection, maintenance work, or
emergency work, the board of supervisors may, without advertising for
bids, have the work done by force account. In case of an emergency,
if notice for bids to let contracts will not be given, the board
shall comply with Chapter 2.5 (commencing with Section 22050). The
district shall have the power to purchase in the open market without
advertising for bids, materials and supplies for use in any work
either under contract or by force account.
SEC. 63. SEC. 61. Section 21111 of
the Public Contract Code is amended to read:
21111. (a) All contracts for the construction of any unit of
work, except as provided in this article, estimated to cost in excess
of ten thousand dollars ($10,000) shall be let to the lowest
responsible bidder in the manner provided in this article. The board
of directors of the agency shall advertise by three insertions in a
daily newspaper of general circulation or two insertions in a weekly
newspaper of general circulation published in the agency's
jurisdiction inviting sealed proposals for the construction of the
work before any contract shall be made, and may let by contract
separately any part of the work. The board shall require the
successful bidder to file with the board
good and sufficient bonds to be approved by the board
conditioned upon the faithful performance of the contract and upon
the payment of the claims for labor and material. The faithful
performance bond shall contain terms and conditions as the board may
specify, and the payment bond shall be subject to the provisions of,
and shall contain the terms and conditions set forth in Title 2
(commencing with Section 9000) of Part 6 of Division 4 of the Civil
Code, as applicable. The board shall also have the right to reject
any bid, in which case the board may advertise for new bids. In the
event no proposals are received pursuant to advertisement, or where
the estimated cost of the work does not exceed ten thousand dollars
($10,000), or the work consists of emergency work, the board of
directors by unanimous vote of all members present may, without
advertising for bids, have the work done by force account. In case of
an emergency, if notice for bids to let contracts will not be given,
the board shall comply with Chapter 2.5 (commencing with Section
22050). The agency may purchase in the open market, and may authorize
the Purchasing Agent of the County of Santa Barbara to purchase,
without advertisement for bids, materials and supplies for use in any
work either under contract or by force account.
(b) If the work to be performed by or on behalf of the agency does
not involve an expenditure of ten thousand dollars ($10,000) or
more, or if the work consists of emergency work, the agency may
require a faithful performance bond. The agency may require a payment
bond on work performed on behalf of the agency which does not
involve an expenditure of more than ten thousand dollars ($10,000).
SEC. 64. SEC. 62. Section 21121 of
the Public Contract Code is amended to read:
21121. (a) All contracts for any improvement or unit of work, if
the cost according to the estimate of the engineer, exceeds five
thousand dollars ($5,000), shall be let to the lowest responsible
bidder or bidders.
(b) The board shall first determine whether the contract shall be
let as a single unit for the whole of the work, or shall be divided
into severable parts, or both, according to the best interests of the
agency.
(c) The board shall call for bids and advertise the call by three
insertions in a daily newspaper of general circulation or by two
insertions in a weekly newspaper of general circulation printed and
published in the territory of the agency inviting sealed proposals
for the construction or performance of the improvement or work before
any contract is entered into. The call for bids shall state whether
the work is to be performed as a unit or shall be divided into
severable specific parts, or both, as stated in the call. The board
may let the work by single contract or it may divide the work into
severable parts by separate contracts, as stated in the call,
according to the best interests of the agency.
(d) The board shall require the successful bidder or bidders to
file with the board good and sufficient bonds to be approved by the
board conditioned upon the faithful performance of the contract and
upon the payment of their claims for labor and material in connection
with the contract. The bonds shall contain the terms and conditions
set forth in Title 2 (commencing with Section 9000) of Part 6 of
Division 4 of the Civil Code and are subject to the provisions of
that title.
(e) The board may reject any bid. The board of supervisors may,
without advertising for bids, have the work done by force account if
any of the following requirements are met:
(1) All the projects are rejected.
(2) No proposals are received in response to the advertisement.
(3) The estimated cost of the work does not exceed five thousand
dollars ($5,000).
(4) The work consists of channel protection, maintenance work, or
emergency work. In case of an emergency, if notice for bids to let
contracts will not be given, the board shall comply with Chapter 2.5
(commencing with Section 22050).
(f) The agency may purchase in the open market, without
advertising for bids, materials and supplies for use in any work
either under contract or by force account.
(g) The Monterey County Board of Supervisors may grant to the
board of directors, appointed pursuant to Section 49 of the Monterey
County Water Resources Agency Act (Chapter 1159 of the Statutes of
1990), any of the powers or duties granted to the Monterey County
Board of Supervisors by this section.
SEC. 65. SEC. 63. Section 21131 of
the Public Contract Code is amended to read:
21131. (a) All contracts for the construction of any unit of
work, except as provided in this article, estimated to cost in excess
of two thousand five hundred dollars ($2,500) shall be let to the
lowest responsible bidder in the manner provided in this article. The
board shall advertise by three placements in a daily newspaper of
general circulation or two insertions in a weekly newspaper of
general circulation published in the district inviting sealed
proposals for the construction of the work before any contract is
made, and may let by contract separately any part of the work. The
board shall require the successful bidder to file with the board good
and sufficient bonds to be approved by the board conditioned upon
the faithful performance of the contract and upon the payment of the
claims for labor and material in connection therewith, the bonds to
contain the terms and conditions set forth in Title 2 (commencing
with Section 9000) of Part 6 of Division 4 of the Civil Code, and to
be subject to the provisions of that title. The board may reject any
bid, in which case the board may advertise for new bids.
(b) In the event no proposals are received pursuant to
advertisement therefor, or where the work consists of emergency work,
the board of directors, by unanimous vote of all members present,
may, without advertising for bids, have the work done by force
account. In case of an emergency, if notice for bids to let contracts
will not be given, the board shall comply with Chapter 2.5
(commencing with Section 22050).
(c) The district may purchase in the open market without
advertisement for bids, materials and supplies for use in any work
either under contract or by force account; provided, however, that
materials and supplies for use in any new construction work or
improvement, except work authorized and required under circumstances
referred to in subdivision (b), may not be purchased if the cost
exceeds two thousand five hundred dollars ($2,500), without
advertising for bids and awarding the contract to the lowest
responsible bidder.
(d) This section does not apply to a contract entered into with
the United States or the State of California or other governmental
agency under the authority of Section 3 of Chapter 2126 of the
Statutes of 1959, or to a contract authorized by a vote of the
electorate of the district.
(e) The district may rent or otherwise contract for equipment with
or without an operator and use it on works of the district, if the
contract is approved by the board.
SEC. 66. SEC. 64. Section 21141 of
the Public Contract Code is amended to read:
21141. (a) All contracts for the construction of any unit of
work, except as provided in this article, estimated to cost in excess
of two thousand dollars ($2,000) shall be let to the lowest
responsible bidder in the manner provided in this article. The board
shall advertise by three insertions in a daily newspaper of general
circulation or two insertions in a weekly newspaper of general
circulation published in the district inviting sealed proposals for
the construction of the work before any contract shall be made, and
may let by contract separately any part of the work. The board shall
require the successful bidder to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of the
claims for labor and material, the bonds to contain the terms and
conditions set forth in Title 2 (commencing with Section 9000) of
Part 6 of Division 4 of the Civil Code, and to be subject to the
provisions of that title. The board shall also have the right to
reject any bid, in which case the board may advertise for new bids.
(b) In the event no proposals are received pursuant to
advertisement, where the estimated cost of the work does not exceed
the sum of two thousand dollars ($2,000), or where the work consists
of emergency work, the board of directors, by unanimous vote of all
members present, may, without advertising for bids, have the work
done by force account. In case of an emergency, if notice for bids to
let contracts will not be given, the board shall comply with Chapter
2.5 (commencing with Section 22050).
(c) The district may purchase in the open market, without
advertisement for bids, materials and supplies for use in any work
either under contract or by force account; provided, however, that
materials and supplies for use in any new construction work or
improvement, except work referred to in subdivision (b), may not be
purchased if the cost exceeds two thousand five hundred dollars
($2,500), without advertising for bids and awarding the contract
therefor to the lowest responsible bidder.
(d) The provisions of this section have no application to a
contract entered into with the United States under the authority of
Section 3, or to a contract authorized by a vote of the electorate of
the district.
SEC. 67. SEC. 65. Section 21151 of
the Public Contract Code is amended to read:
21151. All contracts for any improvement or unit of work when the
cost according to the estimate of the engineer will exceed
twenty-five thousand dollars ($25,000), with or without the
furnishing of materials or supplies, shall be let to the lowest
responsible bidder or bidders in the manner provided in this article.
Construction of improvements or works shall not be staged to avoid
the bidding process. The board shall first determine whether the
contract shall be let as a single unit for the whole of the work, or
shall be divided into severable parts, or both, according to the best
interests of the district. The board shall call for bids and
advertise the call by inviting sealed proposals for the construction
or performance of the improvement or work before any contract is
made. The board shall invite the bids by publishing a notice of the
call for bids pursuant to Section 6062 or 6066 of the Government Code
in a newspaper of general circulation in the county. The call for
bids shall state whether the work is to be performed as a unit or
shall be divided into severable specific parts, or both, as stated in
the call. The board may let the work by single contract or it may
divide the work into severable parts by separate contracts, as stated
in the call, according to the best interests of the district. The
board shall require the successful bidder or bidders to file with the
board good and sufficient bonds to be approved by the board
conditioned upon the faithful performance of the contract and upon
the payment of their claims for labor and material, the bonds to
contain the terms and conditions set forth in Title 2 (commencing
with Section 9000) of Part 6 of Division 4 of the Civil Code and to
be subject to the provisions of that title. The board shall also have
the right to reject any bid. In the event the engineer's estimate is
twenty-five thousand dollars ($25,000) or less, or in the event no
proposals are received pursuant to advertisement therefor, or in the
event the work consists of channel protection or maintenance work, or
emergency work, the board of supervisors may, without advertising
for bids, have the work done by day labor under the direction of the
board, by contract, or by a combination of the two. In case of an
emergency, if notice for bids to let contracts will not be given, the
board shall comply with Chapter 2.5 (commencing with Section 22050).
The district may acquire in the open market without advertising for
bids, materials, equipment, and supplies for use in any work or for
any other purpose.
SEC. 68. SEC. 66. Section 21161 of
the Public Contract Code is amended to read:
21161. (a) Any improvement or unit of work not performed by
district personnel and estimated by the engineer to cost in excess of
twenty-five thousand dollars ($25,000) shall be done by contract.
All contracts shall be let to the lowest responsible bidder or
bidders in the manner provided in this article. The board shall first
determine whether the contract shall be let as a single unit for the
whole of the work, or shall be divided into severable parts, or
both, according to the best interests of the district. The board
shall call for bids and advertise the call by three insertions in a
daily newspaper of general circulation or by two insertions in a
weekly newspaper of general circulation printed and published in the
district inviting sealed proposals for the construction or
performance of the improvement or work before any contract is made.
The call for bids shall state whether the work is to be performed as
a unit for the whole thereof or shall be divided into severable
specific parts, or both, as stated in the call. The board may let the
work by single contract or it may divide the work into severable
parts by separate contracts, as stated in the call, according to the
best interests of the district. The board shall require the
successful bidder or bidders to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of their
claims for labor and material, the bonds to contain the terms and
conditions set forth in Title 2 (commencing with Section 9000) of
Part 6 of Division 4 of the Civil Code and to be subject to the
provisions of that title. The board shall also have the right to
reject any bid. In the event all proposals are rejected or no
proposals are received pursuant to advertisement, or the estimated
cost of the work does not exceed five thousand dollars ($5,000), or
the work consists of channel protection, maintenance work, or
emergency work, the board may, without advertising for bids, have the
work done by force account. In case of an emergency, if notice for
bids to let contracts will not be given, the board shall comply with
Chapter 2.5 (commencing with Section 22050). The district may
purchase in the open market, without advertising for bids, materials
and supplies for use in any work either under contract or by force
account.
(b) The provisions of this section requiring competitive bidding
and the award of contracts to the lowest responsible bidder are
inapplicable to the extent the improvement or unit of work is to be
performed on its own facilities by a public utility subject to the
jurisdiction of the California Public Utilities Commission.
SEC. 69. SEC. 67. Section 21171 of
the Public Contract Code is amended to read:
21171. (a) All contracts for any improvement or unit of work when
the cost, according to the estimate of the engineer, will exceed two
thousand dollars ($2,000), shall be let to the lowest responsible
bidder or bidders in the manner provided in this article. The board
shall first determine whether the contract shall be let as a single
unit for the whole of the work, or shall be divided into severable
parts, or both, according to the best interests of the district. The
board shall call for bids and advertise the call by three insertions
in a daily newspaper of general circulation or by two insertions in a
weekly newspaper of general circulation printed and published in the
district inviting sealed proposals for the construction or
performance of the improvement or work before any contract is made.
The call for bids shall state whether the work is to be performed as
a unit for the whole thereof or shall be divided into severable
specific parts, or both, as stated in the call. The board may let the
work by single contract as a unit or it may divide the work into
severable parts by separate contracts, as stated in the call,
according to the best interests of the district. The board shall
require the successful bidder or bidders to file with the board good
and sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of their
claims for labor and material, the bonds to contain the terms and
conditions set forth in Title 2 (commencing with Section 9000) of
Part 6 of Division 4 of the Civil Code and to be subject to the
provisions of that title. The board shall also have the right to
reject any bid.
(b) In the event all proposals are rejected or no proposals are
received pursuant to advertisement, or the estimated cost of the work
does not exceed two thousand dollars ($2,000), or the work consists
of channel protection, maintenance work, or emergency work, the board
of supervisors may, without advertising for bids, have the work done
by force account. In case of an emergency, if notice for bids to let
contracts will not be given, the board shall comply with Chapter 2.5
(commencing with Section 22050).
(c) The district may purchase in the open market, without
advertising for bids, materials and supplies for use in any work
either under contract or by force account; provided, however, that
materials and supplies for use in any new construction work or
improvements, except work referred to in subdivision (b), may not be
purchased if the cost exceeds two thousand five hundred dollars
($2,500), without advertising for bids and awarding the contract to
the lowest responsible bidder.
SEC. 70. SEC. 68. Section 21181 of
the Public Contract Code is amended to read:
21181. (a) All contracts for any improvement or unit of work when
the cost according to the estimate of the engineer, will exceed four
thousand dollars ($4,000), shall be let to the lowest responsible
bidder or bidders in the manner provided in this article. The board
shall first determine whether the contract shall be let as a single
unit or shall be divided into severable parts, or both, according to
the best interests of the district. The board shall call for bids and
advertise the call in the district pursuant to Section 6066 of the
Government Code inviting sealed proposals for the construction or
performance of the improvement or before any contract is made. The
call for bids shall state whether the work is to be performed as a
unit or shall be divided into severable specific parts, or both, as
stated in the call. The board may let the work by single contract or
it may divide the work into severable parts by separate contracts, as
stated in the call, according to the best interests of the district.
The board shall require the successful bidder or bidders to file
with the board good and sufficient bonds to be approved by the board
conditioned upon the faithful performance of the contract and upon
the payment of their claims for labor and material, the bonds to
contain the terms and conditions set forth in Title 2 (commencing
with Section 9000) of Part 6 of Division 4 of the Civil Code and to
be subject to the provisions of that title. The board shall also have
the right to reject any bid.
(b) In the event no proposals are received pursuant to
advertisement or the estimated cost of the work does not exceed four
thousand dollars ($4,000), or the work consists of channel
protection, maintenance work, or emergency work, the board of
supervisors may, without advertising for bids, have the work done by
day labor, under the direction of the board, by contract, or by the
combination of the two. In case of an emergency, if notice for bids
to let contracts will not be given, the board shall comply with
Chapter 2.5 (commencing with Section 22050).
(c) The district may acquire in the open market, without
advertising for bids, materials, equipment, and supplies for use in
any work or for any other purpose; provided, however, that materials
and supplies for use in any new construction work or improvement,
except work referred to in subdivision (b), may not be purchased if
the cost exceeds two thousand five hundred dollars ($2,500), without
advertising for bids and awarding the contract to the lowest
responsible bidder.
SEC. 71. SEC. 69. Section 21196 of
the Public Contract Code is amended to read:
21196. (a) All contracts for the construction of any unit of
work, except as provided in this article, estimated to cost in excess
of two thousand five hundred dollars ($2,500) shall be let to the
lowest responsible bidder in the manner provided in this article. The
board of directors of the district shall call for bids and advertise
the call by three insertions in a daily newspaper of general
circulation or two insertions in a weekly newspaper of general
circulation published in the district inviting sealed proposals for
the construction of the work before any contract is made, and may let
by contract separately any part of the work. The board shall require
the successful bidder to file with the board good and sufficient
bonds to be approved by the board conditioned upon the faithful
performance of the contract and upon the payment of the claims for
labor and material, the bonds to contain the terms and conditions set
forth in Title 2 (commencing with Section 9000) of Part 6 of
Division 4 of the Civil Code and to be subject to the provisions of
that title. The board shall also have the right to reject any bid, in
which case the board may advertise for new bids.
(b) In the event no proposals are received pursuant to
advertisement, or where the estimated cost of the work does not
exceed two thousand five hundred dollars ($2,500), or the work
consists of emergency work, the board of directors by unanimous vote
of all members present, may, without advertising for bids, have the
work done by force account. In case of an emergency, if notice for
bids to let contracts will not be given, the board shall comply with
Chapter 2.5 (commencing with Section 22050). The district may
purchase in the open market, without advertisement for bids,
materials and supplies for use in any work either under contract or
by force account.
(c) The provisions of this section have no application to a
contract entered into with the United States under the authority of
the Solano County Flood Control and Water Conservation District Act,
or to a contract authorized by a vote of the electorate of the
district.
SEC. 72. SEC. 70. Section 21212 of
the Public Contract Code is amended to read:
21212. (a) All contracts for the construction of any unit of
work, except as provided in this article, estimated to cost in excess
of three thousand dollars ($3,000), shall be let to the lowest
responsible bidder in the manner provided in this article. The board
of directors of the agency shall advertise pursuant to Section 6066
of the Government Code in a newspaper of general circulation
published in the agency's jurisdiction inviting sealed proposals for
the construction of the work before any contract is made, and may let
by contract separately any part of the work. The board shall require
the successful bidder to file with the board good and sufficient
bonds to be approved by the board conditioned upon the faithful
performance of the contract and upon the payment of any claims for
labor and material and containing the terms and conditions set forth
in Title 2 (commencing with Section 9000) of Part 6 of Division 4 of
the Civil Code and to be subject to the provisions of that title. The
board shall also have the right to reject any bid, in which case the
board may advertise for new bids.
(b) In the event no proposals are received pursuant to
advertisement, or where the estimated cost of the work does not
exceed three thousand dollars ($3,000), or the work consists of
emergency work, the board of directors, by unanimous vote of all
members present, may, without advertising for bids, have the work
done by force account. In case of an emergency, if notice for bids to
let contracts will not be given, the board shall comply with Chapter
2.5 (commencing with Section 22050).
(c) The agency may purchase in the open market without
advertisement for bids, materials and supplies for use in any work
either under contract or by force account.
(d) The provisions of this section have no application to a
contract entered into with the United States under the authority of
Section 6 of Chapter 10 of the Statutes of the 1952 First
Extraordinary Session, or to a contract authorized by a vote of the
electorate of the agency.
SEC. 73. SEC. 71. Section 21231 of
the Public Contract Code is amended to read:
21231. Any improvement or unit of work when the cost, according
to the estimate of the engineer, will exceed five thousand dollars
($5,000), shall be done by contract let to the lowest responsible
bidder or bidders in the manner provided in this article. The board
shall first determine whether the contract will be let as a single
unit, or will be divided into severable parts, or both, according to
the best interests of the district. The board shall call for bids and
advertise the call pursuant to Section 6066 of the Government Code
in the district, inviting sealed proposals for the construction or
performance of the improvement or before any contract is made. The
call for bids shall state whether the work is to be performed as a
unit or shall be divided into separate specific parts, or both, as
stated in the call. The board may let the work by single contract or
it may divide the work into severable parts by separate contracts, as
stated in the call, according to the best interests of the district.
The board shall require the successful bidder or bidders to file
with the board good and sufficient bonds to be approved by the board
conditioned upon the faithful performance of the contract and upon
the payment of their claims for labor and material, the bonds to
contain the terms and conditions set forth in Title 2 (commencing
with Section 9000) of Part 6 of Division 4 of the Civil Code and to
be subject to the provisions of that title. The board shall also have
the right to reject any bid. In the event no proposals are received
pursuant to advertisement, or the estimated cost of the work does not
exceed five thousand dollars ($5,000), or the work consists of
channel protection, maintenance work, or emergency work, the board of
supervisors may, without advertising for bids, have the work done by
day labor, under the direction of the board, by contract, or by a
combination of the two. In case of an emergency, if notice for bids
to let contracts will not be given, the board shall comply with
Chapter 2.5
(commencing with Section 22050). The district may acquire in the open
market without advertising for bids, materials, equipment and
supplies for use in any work or for any other purpose; provided,
however, that materials and supplies for use in any new construction
work or improvement, except work referred to in the preceding
sentence, may not be purchased if the cost exceeds five thousand
dollars ($5,000), without advertising for bids and awarding the
contract to the lowest responsible bidder.
SEC. 74. SEC. 72. Section 21241 of
the Public Contract Code is amended to read:
21241. All contracts for any improvement or unit of work when the
cost, according to the estimate of the engineer, will exceed two
thousand dollars ($2,000), shall be let to the lowest responsible
bidder or bidders in the manner provided in this article. The board
shall first determine whether the contract shall be let as a single
unit or shall be divided into severable parts, or both, according to
the best interests of the zone. The board shall call for bids and
advertise the call pursuant to Section 6066 of the Government Code in
the district inviting sealed proposals for the construction or
performance of the improvement or work before any contract is made.
The call for bids shall state whether the work is to be performed as
a unit or shall be divided into severable specific parts, or both, as
stated in the call. The board may let the work by single contract or
it may divide the work into severable parts by separate contracts,
as stated in the call, according to the best interests of the
district. The board shall require the successful bidder or bidders to
file with the board good and sufficient bonds to be approved by the
board conditioned upon the faithful performance of the contract and
upon the payment of their claims for labor and material, the bonds to
contain the terms and conditions set forth in Title 2 (commencing
with Section 9000) of Part 6 of Division 4 of the Civil Code and to
be subject to the provisions of that title. The board shall also have
the right to reject any bid. In the event no proposals are received
pursuant to advertisement, or the estimated cost of the work does not
exceed two thousand dollars ($2,000), or the work consists of
emergency work, the board of supervisors may, without advertising for
bids, have the work done by day labor, under the direction of the
board, by contract, or by a combination of the two. In case of an
emergency, if notice for bids to let contracts will not be given, the
board shall comply with Chapter 2.5 (commencing with Section 22050).
The board may acquire in the open market, without advertising for
bids, materials, equipment, and supplies for use in any work or for
any other purpose; provided, however, that materials and supplies for
use in any new construction work or improvement, except work
referred to in the preceding sentence, may not be purchased if the
cost exceeds two thousand five hundred dollars ($2,500), without
advertising for bids and awarding the contract to the lowest
responsible bidder.
SEC. 75. SEC. 73. Section 21251 of
the Public Contract Code is amended to read:
21251. (a) (1) All contracts for any improvement or unit of work,
if the cost according to the estimate of the engineer will exceed
thirty thousand dollars ($30,000), shall be let to the lowest
responsible bidder or bidders as provided in this article. The board
shall first determine whether the contract shall be let as a single
unit or divided into severable parts, or both.
(2) All contracts for any improvement or unit of work, if the cost
according to the estimate of the engineer is thirty thousand dollars
($30,000) or less, may be let without advertising for bids in
accordance with procedures adopted by the board.
(b) The board shall call for bids and advertise the call pursuant
to Section 6063 of the Government Code in the district, inviting
sealed proposals for the construction or performance of the
improvement or work before any contract is made. The call for bids
shall state whether the work is to be performed as one unit or
divided into severable specific parts.
(c) The work may be let under a single contract or several
contracts, or both, as stated in the call. The board shall require
the successful bidder or bidders to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of their
claims for labor and material. The bonds shall comply with Title 2
(commencing with Section 9000) of Part 6 of Division 4 of the Civil
Code. The board may reject any bid.
(d) If all proposals are rejected or no proposals are received, or
the estimated cost of the work does not exceed five thousand dollars
($5,000), or the work consists of channel protection, maintenance
work, or emergency work, the board may have the work done by force
account without advertising for bids. In case of an emergency, if
notice for bids to let contracts will not be given, the board shall
comply with Chapter 2.5 (commencing with Section 22050).
(e) The district may purchase in the open market, without
advertising for bids, materials and supplies for use in any work
either under contract or by force account.
SEC. 76. SEC. 74. Section 21261 of
the Public Contract Code is amended to read:
21261. All contracts for any improvement or unit of work when the
cost, according to the estimate of the engineer, will exceed two
thousand dollars ($2,000), shall be let to the lowest responsible
bidder or bidders in the manner provided in this article. The board
shall first determine whether the contract shall be let as a single
unit for the work, or shall be divided into severable parts, or both,
according to the best interests of the district. The board shall
call for bids and advertise the call pursuant to Section 6066 of the
Government Code in the district inviting sealed proposals for the
construction or performance of the improvement or work before any
contract is made. The call for bids shall state whether the work is
to be performed as a unit or shall be divided into severable specific
parts, or both, as stated in the call. The board may let the work by
single contract or it may divide the work into severable parts by
separate contracts, as stated in the call, according to the best
interests of the district. The board shall require the successful
bidder or bidders to file with the board good and sufficient bonds to
be approved by the board conditioned upon the faithful performance
of the contract and upon the payment of their claims for labor and
material, the bonds to contain the terms and conditions set forth in
Title 2 (commencing with Section 9000) of Part 6 of Division 4 of the
Civil Code and to be subject to the provisions of that title. The
board shall also have the right to reject any bid. In the event all
proposals are rejected or no proposals are received pursuant to
advertisement, or the estimated cost of the work does not exceed two
thousand dollars ($2,000), or the work consists of channel
protection, maintenance work, or emergency work, the board of
supervisors may, without advertising for bids, have the work done by
force account. In case of an emergency, if notice for bids to let
contracts will not be given, the board shall comply with Chapter 2.5
(commencing with Section 22050). The district may purchase in the
open market, without advertising for bids, materials and supplies for
use in any work either under contract or by force account.
SEC. 77. SEC. 75. Section 21271 of
the Public Contract Code is amended to read:
21271. All improvement and units of work to be performed by or
for the district shall be performed in accordance with the following
procedures and requirements:
(a) If the work consists of the protection or maintenance of
channels, storm drains, dams or other flood control works, or
emergency work, the board of directors may, without advertising for
bids therefor, have the work done by day labor under the direction of
the board, by contract, or by a combination of the two. In case of
an emergency, if notice for bids to let contracts will not be given,
the board shall comply with Chapter 2.5 (commencing with Section
22050).
(b) If the work consists of the construction of new flood control
channels, storm drains, dams, or other unit or units of work, and if
the cost of the work, according to the estimate of the engineer, will
exceed ten thousand dollars ($10,000), and if the work is not the
type of work referred to in subdivision (a) or (c) of this section,
the new construction shall be performed under a contract or contracts
which shall be let to the lowest responsible bidder or bidders in
the manner provided in subdivision (d) of this section.
(c) If the work consists of the maintenance or alteration of
existing facilities, including electrical, painting, and roofing
work, and if the cost of labor and materials for the work according
to the engineer's estimate, will exceed three thousand five hundred
dollars ($3,500), and if the work is not the type of work referred to
in subdivision (a) or (b) of this section, the maintenance and
alteration work shall be performed under a contract or contracts
which shall be let to the lowest responsible bidder or bidders in the
manner provided in subdivision (d) of this section.
(d) The board shall first determine whether the work shall be let
as a single unit or shall be divided into severable parts, or both,
according to the best interests of the district. The board shall call
for bids and advertise the call pursuant to Section 6066 of the
Government Code in the district inviting sealed proposals for the
construction or performance of the work before any contract is made.
The call for bids shall state whether the work is to be performed as
a unit or shall be divided into severable, specific parts, or both,
as stated in the call. The board may let the work by single contract
or it may divide the work into severable parts by separate contracts,
as stated in the call, according to the best interests of the
district. The board shall require the successful bidder or bidders to
file with the board good and sufficient bond to be approved by the
board conditioned upon the faithful performance of the contract and
upon the payment of the claims for labor and material. The faithful
performance bond shall contain the terms and conditions as the board
may specify, and the payment bond shall contain the terms and
conditions set forth in, and shall be subject to, the provisions of
Title 2 (commencing with Section 9000) of Part 6 of Division 4 of the
Civil Code. If the work to be performed on behalf of the district
does not involve an expenditure of fifteen thousand dollars ($15,000)
or more, the district may require a faithful performance bond or a
payment bond. The board shall also have the right to reject any bid.
(e) If no proposals are received pursuant to advertisement, or if
the estimated cost of work of the type referred to in subdivision (b)
of this section does not exceed ten thousand dollars ($10,000), or
if the estimated cost of work of the type referred to in subdivision
(c) of this section does not exceed three thousand five hundred
dollars ($3,500), the board of directors may, without advertising for
bids, have the work done by day labor, under the direction of the
board, by contract, or by combination of the two. If any change or
alteration in a contract awarded under the provisions of this section
for work of the type referred to in subdivision (b) or (c) is deemed
necessary and the cost does not exceed 10 percent of the original
contract price, the board may authorize the contractor to proceed
with the change or alteration without the formality of obtaining
bids.
(f) Notwithstanding the foregoing provisions, the district shall
have the power to acquire in the open market, and may authorize the
Purchasing Agents of the County of Santa Barbara to acquire in the
open market, without advertising for bids, materials, equipment and
supplies for use in any work or for any other purpose; provided,
however, that materials and supplies for use in any new construction
work or improvement, except work referred to in subdivision (a) of
this section, may not be purchased without advertising for bids and
awarding the contract to the lowest responsible bidder if the cost
exceeds two thousand five hundred dollars ($2,500), unless the
purchase is made by the county purchasing agent at the request of the
district, in which case the cost shall not exceed six thousand five
hundred dollars ($6,500).
SEC. 78. SEC. 76. Section 21311 of
the Public Contract Code is amended to read:
21311. (a) All contracts for any improvement or unit of work when
the cost, according to the estimate of the engineer, will exceed two
thousand dollars ($2,000), shall be let to the lowest responsible
bidder or bidders in the manner provided in this article. The board
shall first determine whether the contract shall be let as a single
unit, or shall be divided into severable parts, or both, according to
the best interests of the district. The board shall call for bids
and advertise the call by three insertions in a daily newspaper of
general circulation or by two insertions in a weekly newspaper of
general circulation printed and published in the district inviting
sealed proposals for the construction or performance of the
improvement or work before any contract is made. The call for bids
shall state whether the work is to be performed as a unit or shall be
divided into severable specific parts, or both, as stated in the
call. The board may let the work by single contract for the whole as
a unit or it may divide the work into severable parts by separate
contracts, as stated in the call, according to the best interests of
the district. The board shall require the successful bidder or
bidders to file with the board good and sufficient bonds to be
approved by the board conditioned upon the faithful performance of
the contract and upon the payment of their claims for labor and
material, the bonds to contain the terms and conditions set forth in
Title 2 (commencing with Section 9000) of Part 6 of Division 4 of the
Civil Code and to be subject to the provisions of that title. The
board shall also have the right to reject any bid.
(b) In the event no proposals are received pursuant to
advertisement, or the estimated cost of the work does not exceed two
thousand dollars ($2,000), or the work consists of channel
protection, maintenance work, or emergency work, the board of
supervisors may, without advertising for bids, have the work done by
day labor, under the direction of the board, by contract, or by a
combination of the two. In case of an emergency, if notice for bids
to let contracts will not be given, the board shall comply with
Chapter 2.5 (commencing with Section 22050).
(c) The district may acquire in the open market, without
advertising for bids, materials, equipment, and supplies for use in
any work or for any other purpose; provided, however, that materials
and supplies for use in any new construction work or improvement,
except work referred to in subdivision (b), shall not be purchased if
the cost exceeds two thousand five hundred dollars ($2,500), without
advertising for bids and awarding the contract to the lowest
responsible bidder.
SEC. 79. SEC. 77. Section 21321 of
the Public Contract Code is amended to read:
21321. (a) All contracts for any improvement or unit of work,
when the cost according to the estimate of the engineer will exceed
thirty thousand dollars ($30,000), shall be let to the lowest
responsible bidder or bidders as provided in this article. The board
shall first determine whether the contract shall be let as a single
unit, or divided into severable parts. The board shall advertise for
bids by three insertions in a daily newspaper of general circulation
or by two insertions in a weekly newspaper of general circulation
printed and published in the agency's jurisdiction, inviting sealed
proposals for the construction or performance of the improvement or
work. The call for bids shall state whether the work shall be
performed in one unit or divided into parts. The work may be let
under a single contract or several contracts, as stated in the call.
The board shall require the successful bidders to file with the
board good and sufficient bonds to be approved by the board
conditioned upon the faithful performance of the contract and upon
the payment of their claims for labor and material. The bonds shall
comply with Title 2 (commencing with Section 9000) of Part 6 of
Division 4 of the Civil Code.
(b) The board may reject any bid. In the event all proposals are
rejected or no proposals are received, or the estimated cost of the
work does not exceed five thousand dollars ($5,000), or the work
consists of channel protection, maintenance, or emergency work, the
board may have the work done by force account without advertising for
bids. In case of an emergency, if notice for bids to let contracts
will not be given, the board shall comply with Chapter 2.5
(commencing with Section 22050). In the event that no proposals are
received, or if only one responsive proposal is received, the board
may negotiate a contract for construction or performance of the work
or improvement or substantially similar work or improvement. However,
if only one responsive proposal is received, the contract must be
negotiated with the bidder.
(c) The agency may purchase in the open market without advertising
for bids, materials and supplies for use in any work, either under
contract or by force account.
(d) Sections 4300 to 4305, inclusive, of the Government Code do
not apply to the agency's Middle Fork American River Project.
(e) This section applies to all proposals or contracts whether or
not received or entered into prior to the effective date of the
amendment of this provision made at the 1963 Regular Session of the
Legislature.
SEC. 80. SEC. 78. Section 21331 of
the Public Contract Code is amended to read:
21331. (a) All contracts for the construction of any unit of
work, except as provided in this article, estimated to cost in excess
of three thousand five hundred dollars ($3,500) shall be let to the
lowest responsible bidder in the manner provided in this article. The
board shall advertise by three insertions in a daily newspaper of
general circulation or two insertions in a weekly newspaper of
general circulation published in the district inviting sealed
proposals for the construction of the work before any contract shall
be made, and may let by contract separately any part of the work. The
board shall require the successful bidder to file with the board
good and sufficient bonds to be approved by the board conditioned
upon the faithful performance of the contract and upon the payment of
all claims for labor and material, the bonds to contain the terms
and conditions set forth in Title 2 (commencing with Section 9000) of
Part 6 of Division 4 of the Civil Code, and to be subject to the
provisions of that title. The board shall also have the right to
reject any bid, in which case the board may advertise for new bids.
(b) In the event no proposals are received pursuant to
advertisement, where the estimated cost of the work does not exceed
five thousand dollars ($5,000), or where the work consists of
emergency work, the board of directors, by unanimous vote of all
members present, may, without advertising for bids, have the work
done by force account. In case of an emergency, if notice for bids to
let contracts will not be given, the board shall comply with Chapter
2.5 (commencing with Section 22050).
(c) The district may purchase in the open market, without
advertisement for bids, materials and supplies for use in any work
either under contract or by force account; provided, however, that
materials and supplies for use in any new construction work or
improvement, except work referred to in subdivision (b), may not be
purchased if the cost exceeds five thousand dollars ($5,000), without
advertising for bids and awarding the contract to the lowest
responsible bidder.
(d) The provisions of this section have no application to a
contract entered into with the United States under the authority of
Section 3 of Chapter 1280 of the Statutes of 1957, or to a contract
authorized by a vote of the electorate of the district.
SEC. 81. SEC. 79. Section 21341 of
the Public Contract Code is amended to read:
21341. (a) All contracts for the construction of any unit of
work, except as provided in this article, estimated to cost in excess
of five thousand dollars ($5,000) shall be let to the lowest
responsible bidder. The board shall advertise by three insertions in
a daily newspaper of general circulation or two insertions in a
weekly newspaper of general circulation published by the agency
inviting sealed proposals for the construction of the work before any
contract is made, and may let by contract separately any part of the
work. The board shall require the successful bidder to file with the
board good and sufficient bonds to be approved by the board
conditioned upon the faithful performance of the contract and upon
the payment of the claims for labor and material, the bonds to
contain the terms and conditions set forth in Title 2 (commencing
with Section 9000) of Part 6 of Division 4 of the Civil Code, and to
be subject to the provisions of that title. The board shall also have
the right to reject any bid, in which case the board may advertise
for new bids. In the event no proposals are received pursuant to
advertisement or where the estimated cost of the work does not exceed
five thousand dollars ($5,000), or where the work consists of
emergency work, the board, by unanimous vote of all members present,
may, without advertising for bids, have the work done by force
account. In case of an emergency, if notice for bids to let contracts
will not be given, the board shall comply with Chapter 2.5
(commencing with Section 22050). The agency may purchase in the open
market, without advertisement for bids, materials and supplies for
use in any work either under contract or by force account.
(b) The provisions of this section have no application to a
contract entered into with the United States under the authority of
Section 59 of Chapter 1512 of the Statutes of 1957, or to a contract
authorized by a vote of the electorate of the agency.
SEC. 82. SEC. 80. Section 21351 of
the Public Contract Code is amended to read:
21351. All contracts for any improvement or unit of work, when
the cost according to the estimate of the engineer will exceed five
thousand dollars ($5,000), shall be let to the lowest responsible
bidder or bidders as provided in this article. The board shall first
determine whether the contract shall be let as a single unit, or
divided into severable parts. The board shall advertise for bids by
three insertions in a daily newspaper of general circulation or by
two insertions in a weekly newspaper of general circulation printed
and published by the agency, inviting sealed proposals for the
construction or performance of the improvement or work. The call for
bids shall state whether the work shall be performed in one unit or
divided into parts. The work may be let under a single contract or
several contracts, as stated in the call. The board shall require the
successful bidders to file with the board good and sufficient bonds
to be approved by the board conditioned upon the faithful performance
of the contract and upon the payment of their claims for labor and
material. The bonds shall comply with Title 2 (commencing with
Section 9000) of Part 6 of Division 4 of the Civil Code. The board
may reject any bid. In the event all proposals are rejected or no
proposals are received, or the estimated cost of the work does not
exceed five thousand dollars ($5,000), or the work consists of
channel protection, maintenance work, or emergency work, the board
may have the work done by force account without advertising for bids.
In case of an emergency, if notice for bids to let contracts will
not be given, the board shall comply with Chapter 2.5 (commencing
with Section 22050). The board may purchase in the open market
without advertising for bids, materials and supplies for use in any
work, either under contract or by force account. In awarding any
contract or authorizing any work, the board shall comply with the
provisions of Article 2 (commencing with Section 1770) of Chapter 1
of Part 7 of Division 2 of the Labor Code.
SEC. 83. SEC. 81. Section 21361 of
the Public Contract Code is amended to read:
21361. All contracts for any improvement or unit of work, when
the cost according to the estimate of the engineer will exceed five
thousand dollars ($5,000), shall be let to the lowest responsible
bidder or bidders as provided in this article. The board shall first
determine whether the contract shall be let as a single unit, or
divided into severable parts. The board shall advertise for bids by
three insertions in a daily newspaper of general circulation or by
two insertions in a weekly newspaper of general circulation printed
and published in the agency's jurisdiction, inviting sealed proposals
for the construction or performance of the improvement or work. The
call for bids shall state whether the work shall be performed in one
unit or divided into parts. The work may be let under a single
contract or several contracts, as stated in the call. The board shall
require the successful bidders to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of their
claims for labor and material. The bonds shall comply with Title 2
(commencing with Section 9000) of Part 6 of Division 4 of the Civil
Code. The board may reject any bid. In the event all proposals are
rejected or no proposals are received, or the estimated cost of the
work does not exceed five thousand dollars ($5,000), or the work
consists of channel protection, maintenance work, or emergency work,
the board of supervisors may have the work done by force account
without advertising for bids. In case of an emergency, if notice for
bids to let contracts will not be given, the board shall comply with
Chapter 2.5 (commencing with Section 22050). The district may
purchase in the open market without advertising for bids, materials
and supplies for use in any work, either under contract or by force
account.
SEC. 84. SEC. 82. Section 21371 of
the Public Contract Code is amended to read:
21371. All contracts for any improvement
or unit of work, when the cost according to the estimate of the
engineer will exceed five thousand dollars ($5,000), shall be let to
the lowest responsible bidder or bidders as provided in this article.
The board shall first determine whether the contract shall be let as
a single unit, or divided into severable parts. The board shall
advertise for bids by three insertions in a daily newspaper of
general circulation or by two insertions in a weekly newspaper of
general circulation printed and published in the agency's
jurisdiction, inviting sealed proposals for the construction or
performance of the improvement or work. The call for bids shall state
whether the work shall be performed in one unit or divided into
parts. The work may be let under a single contract or several
contracts, as stated in the call. The board shall require the
successful bidders to file with the board good and sufficient bonds
to be approved by the board conditioned upon the faithful performance
of the contract and upon the payment of their claims for labor and
material. The bonds shall comply with Title 2 (commencing with
Section 9000) of Part 6 of Division 4 of the Civil Code. The board
may reject any bid. In the event all proposals are rejected or no
proposals are received, or the estimated cost of the work does not
exceed five thousand dollars ($5,000), or the work consists of
emergency work, the board may have the work done by force account
without advertising for bids. In case of an emergency, if notice for
bids to let contracts will not be given, the board shall comply with
Chapter 2.5 (commencing with Section 22050). The district may
purchase in the open market without advertising for bids, materials
and supplies for use in any work, either under contract or by force
account.
SEC. 85. SEC. 83. Section 21381 of
the Public Contract Code is amended to read:
21381. All contracts for any improvement or unit of work, except
as provided in this article, estimated to cost in excess of five
thousand dollars ($5,000) shall be let to the lowest responsible
bidder in the manner provided in this article. The board of
supervisors of the district shall advertise by three insertions in a
daily newspaper of general circulation or two insertions in a weekly
newspaper of general circulation printed and published in the
district inviting sealed proposals for the construction of the
improvement or work before any contract shall be made, and may let by
contract separately any part of said work or improvement. The board
shall require the successful bidder to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of their
claims for labor and material, the bonds to contain the terms and
conditions set forth in Title 2 (commencing with Section 9000) of
Part 6 of Division 4 of the Civil Code and to be subject to the
provisions of that part. The board shall also have the right to
reject any bid. In the event all proposals are rejected or no
proposals are received pursuant to advertisement, or where the
estimated cost of the work does not exceed five thousand dollars
($5,000), or the work consists of channel protection, maintenance
work, or emergency work, the board of supervisors may, without
advertising for bids, have the work done by force account. In case of
an emergency, if notice for bids to let contracts will not be given,
the board shall comply with Chapter 2.5 (commencing with Section
22050). The district may purchase in the open market without
advertising for bids, materials and supplies for use in any work
either under contract or by force account.
SEC. 86. SEC. 84. Section 21391 of
the Public Contract Code is amended to read:
21391. (a) All contracts for the construction of any unit of
work, except as provided in this article, estimated to cost in excess
of two thousand dollars ($2,000) shall be let to the lowest
responsible bidder in the manner provided in this article. The board
shall advertise by three insertions in a daily newspaper of general
circulation or two insertions in a weekly newspaper of general
circulation published in the district, inviting sealed proposals for
the construction of the work before any contract shall be made, and
may let by contract separately any part of the work. The board shall
require the successful bidder to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of all
claims for labor and material, the bonds to contain the terms and
conditions set forth in Title 2 (commencing with Section 9000) of
Part 6 of Division 4 of the Civil Code, and to be subject to the
provisions of that title. The board shall also have the right to
reject any and all bids, in which case the board may advertise for
new bids.
(b) In the event no proposals are received pursuant to
advertisement therefor, where the estimated cost of the work does not
exceed two thousand dollars ($2,000), or where the work consists of
emergency work necessary in order to protect life and property, the
board of directors, by unanimous vote of all members present, may,
without advertising for bids, have the work done by force account. In
case of an emergency, if notice for bids to let contracts will not
be given, the board shall comply with Chapter 2.5 (commencing with
Section 22050).
(c) The district may purchase in the open market without
advertisement for bids, materials and supplies for use in any work
either under contract or by force account; provided, however, that
materials and supplies for use in any new construction work or
improvement, except work referred to in subdivision (b), may not be
purchased if the cost exceeds two thousand five hundred dollars
($2,500), without advertising for bids and awarding the contract to
the lowest responsible bidder.
(d) The provisions of this section have no application to a
contract entered into with the United States under the authority of
Section 3 of Chapter 2114 of the Statutes of 1959, or to a contract
authorized by a vote of the electorate of the district.
SEC. 87. SEC. 85. Section 21401 of
the Public Contract Code is amended to read:
21401. (a) All contracts for the construction of any unit of
work, except as provided in this article, estimated to cost in excess
of two thousand dollars ($2,000) shall be let to the lowest
responsible bidder in the manner provided in this article. The board
shall advertise by three insertions in a daily newspaper of general
circulation or two insertions in a weekly newspaper of general
circulation published in the district inviting sealed proposals for
the construction of the work before any contract shall be made, and
may let by contract separately any part of the work. The board shall
require the successful bidder to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of all
claims for labor and material, the bonds to contain the terms and
conditions set forth in Title 2 (commencing with Section 9000) of
Part 6 of Division 4 of the Civil Code, and to be subject to the
provisions of that title. The board shall also have the right to
reject any bids, in which case the board may advertise for new bids.
(b) In the event no proposals are received pursuant to
advertisement, where the estimated cost of the work does not exceed
two thousand dollars ($2,000), or where work consists of emergency
work, the board of directors, by unanimous vote of all members
present, may, without advertising for bids, have the work done by
force account. In case of an emergency, if notice for bids to let
contracts will not be given, the board shall comply with Chapter 2.5
(commencing with Section 22050).
(c) The district may purchase in the open market without
advertisement for bids, materials and supplies for use in any work
either under contract or by force account; provided, however, that
materials and supplies for use in any new construction work or
improvement, except work referred to in subdivision (b), may not be
purchased if the cost exceeds two thousand five hundred dollars
($2,500), without advertising for bids and awarding the contract to
the lowest responsible bidder.
(d) The provisions of this section have no application to a
contract entered into with the United States under the authority of
Section 3 of Chapter 2121 of the Statutes of 1959, or to a contract
authorized by a vote of the electorate of the district.
SEC. 88. SEC. 86. Section 21411 of
the Public Contract Code is amended to read:
21411. All contracts for any improvement or unit of work, when
the cost according to the estimate of the engineer will exceed five
thousand dollars ($5,000) shall be let to the lowest responsible
bidder or bidders as provided in this article. The board shall first
determine whether the contract shall be let as a single unit, or
divided into severable parts. The board shall advertise for bids by
three insertions in a daily newspaper of general circulation or by
two insertions in a weekly newspaper of general circulation printed
and published in the agency's jurisdiction, inviting sealed proposals
for the construction or performance of the improvement or work. The
call for bids shall state whether the work shall be performed in one
unit or divided into parts. The work may be let under a single
contract or several contracts, as stated in the call. The board shall
require the successful bidders to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of their
claims for labor and material. The bonds shall comply with Title 2
(commencing with Section 9000) of Part 6 of Division 4 of the Civil
Code. The board may reject any bid. In the event all proposals are
rejected or no proposals are received, or the estimated cost of the
work does not exceed five thousand dollars ($5,000), or the work
consists of channel protection, maintenance work, or emergency work,
the board may have the work done by force account without advertising
for bids. In case of an emergency, if notice for bids to let
contracts will not be given, the board shall comply with Chapter 2.5
(commencing with Section 22050). In that event a majority vote of all
board members shall be required. The board may purchase in the open
market, without advertising for bids, materials and supplies for use
in any work, either under contract or by force account.
SEC. 89. SEC. 87. Section 21421 of
the Public Contract Code is amended to read:
21421. (a) All contracts for the construction of any unit of
work, except as provided in this article, estimated to cost in excess
of two thousand dollars ($2,000), shall be let to the lowest
responsible bidder in the manner provided in this article. The board
shall advertise by three insertions in a daily newspaper of general
circulation or two insertions in a weekly newspaper of general
circulation published in the district inviting sealed proposals for
the construction of the work before any contract shall be made, and
may let by contract separately any part of the work. The board shall
require the successful bidder to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of all
claims for labor and material, the bonds to contain the terms and
conditions set forth in Title 2 (commencing with Section 9000) of
Part 6 of Division 4 of the Civil Code, and to be subject to the
provisions of that title. The board shall also have the right to
reject any bid, in which case the board may advertise for new bids.
(b) In the event no proposals are received pursuant to
advertisement, where the estimated cost of the work does not exceed
two thousand dollars ($2,000), or where the work consists of
emergency work, the board of directors, by unanimous vote of all
members present, may, without advertising for bids, have the work
done by force account. In case of an emergency, if notice for bids to
let contracts will not be given, the board shall comply with Chapter
2.5 (commencing with Section 22050).
(c) The district may purchase in the open market without
advertisement for bids, materials and supplies for use in any work
either under contract or by force account; provided, however, that
materials and supplies for use in any new construction work or
improvement, except work referred to in subdivision (b), may not be
purchased if the cost exceeds two thousand five hundred dollars
($2,500), without advertising for bids and awarding the contract to
the lowest responsible bidder.
(d) The provisions of this section have no application to a
contract entered into with the United States under the authority of
Section 3 of Chapter 2123 of the Statutes of 1959, or to a contract
authorized by a vote of the electorate of the district.
SEC. 90. SEC. 88. Section 21431 of
the Public Contract Code is amended to read:
21431. (a) All contracts for the construction of any unit of
work, except as provided in this article, estimated to cost in excess
of two thousand dollars ($2,000), shall be let to the lowest
responsible bidder in the manner provided in this article. The board
shall advertise by three insertions in a daily newspaper of general
circulation or two insertions in a weekly newspaper of general
circulation published in the district inviting sealed proposals for
the construction of the work before any contract shall be made, and
may let by contract separately any part of the work. The board shall
require the successful bidder to file with the board good and
sufficient bonds to be approved by the board conditioned upon the
faithful performance of the contract and upon the payment of all
claims for labor and material, the bonds to contain the terms and
conditions set forth in Title 2 (commencing with Section 9000) of
Part 6 of Division 4 of the Civil Code, and to be subject to the
provisions of that title. The board shall also have the right to
reject any bid, in which case the board may advertise for new bids.
(b) In the event no proposals are received pursuant to
advertisement, where the estimated cost of the work does not exceed
two thousand dollars ($2,000), the board of directors, by unanimous
vote of all members present, may without advertising for bids, have
the work done by force account. In case of an emergency, if notice
for bids to let contracts will not be given, the board shall comply
with Chapter 2.5 (commencing with Section 22050).
(c) The district may purchase in the open market without
advertisement for bids, materials and supplies for use in any work
either under contract or by force account; provided, however, that
materials and supplies for use in any new construction work or
improvement, except work referred to in subdivision (b), may not be
purchased if the cost exceeds two thousand five hundred dollars
($2,500), without advertising for bids and awarding the contract to
the lowest responsible bidder.
(d) The provisions of this section have no application to a
contract entered into with the United States under the authority of
Section 3 of Chapter 2127 of the Statutes of 1959, or to a contract
authorized by a vote of the electorate of the district.
SEC. 91. SEC. 89. Section 21441 of
the Public Contract Code is amended to read:
21441. (a) All contracts for any improvement or unit of work,
when the cost according to the estimate of the engineer will exceed
five thousand dollars ($5,000) shall be let to the lowest responsible
bidder or bidders as provided in this article. The board shall first
determine whether the contract shall be let as a single unit, or
divided into severable parts. The board shall advertise for bids by
three insertions in a daily newspaper of general circulation or by
two insertions in a weekly newspaper of general circulation printed
and published in the authority, inviting sealed proposals for the
construction or performance of the improvement work. The call for
bids shall state whether the work shall be performed in one unit or
divided into parts. The work may be let under a single contract or
several contracts, as stated in the call. The board shall require the
successful bidders to file with the board good and sufficient bonds
to be approved by the board conditioned upon the faithful performance
of the contract and upon the payment of their claims for labor and
material. The bonds shall comply with Title 2 (commencing with
Section 9000) of Part 6 of Division 4 of the Civil Code. The board
may reject any bid. In the event all proposals are rejected or no
proposals are received, or the estimated cost of the work does not
exceed five thousand dollars ($5,000), or the work consists of
channel protection, maintenance work, or emergency work, the board
may have the work done by force account without advertising for bids.
(b) In case of an emergency, if notice for bids to let contracts
will not be given, the board shall comply with Chapter 2.5
(commencing with Section 22050). The authority may purchase in the
open market without advertising for bids, materials, and supplies for
use in any work, either under contract or by force account.
SEC. 92. SEC. 90. Section 21451 of
the Public Contract Code is amended to read:
21451. All contracts for any improvement or unit of work, when
the cost according to the estimate of the engineer will exceed twelve
thousand five hundred dollars ($12,500), shall be let to the lowest
responsible bidder or bidders as provided in this article. The board
shall first determine whether the contract shall be let as a single
unit or divided into severable parts. The board shall advertise for
bids by three insertions in a daily newspaper of general circulation
or by two insertions in a weekly newspaper of general circulation
printed and published in the agency, inviting sealed proposals for
the construction or performance of the improvement or work. The call
for bids shall state whether the work shall be performed in one unit
or divided into parts. The work may be let under a single contract or
several contracts, as stated in the call. The board shall require
the successful bidders to file with the board good and sufficient
bonds to be approved by the board conditioned upon the faithful
performance of the contract and upon the payment of their claims for
labor and material. The payment bonds shall comply with Chapter 5
(commencing with Section 9550) of Title 2 of Part 6 of Division 4 of
the Civil Code. The board may reject any bid. If all proposals are
rejected or no proposals are received, or the estimated cost of the
work does not exceed twelve thousand five hundred dollars ($12,500),
or the work consists of channel protection, maintenance work, or
emergency work, the board may have the work done by force account
without advertising for bids. In case of an emergency, if notice for
bids to let contracts will not be given, the board shall comply with
Chapter 2.5 (commencing with Section 22050). The agency may purchase
in the open market without advertising for bids, materials and
supplies for use in any work, either under contract or by force
account.
SEC. 93. SEC. 91. Section 21461 of
the Public Contract Code is amended to read:
21461. All contracts for any improvement or unit of work, when
the cost according to the estimate of the engineer will exceed five
thousand dollars ($5,000), shall be let to the lowest responsible
bidder or bidders as provided in this article. The board shall first
determine whether the contract shall be let as a single unit, or
divided into severable parts. The board shall advertise for bids by
three insertions in a daily newspaper of general circulation or by
two insertions in a weekly newspaper of general circulation printed
and published in the agency, inviting sealed proposals for the
construction or performance of the improvement or work. The call for
bids shall state whether the work shall be performed in one unit or
divided into parts. The work may be let under a single contract or
several contracts, as stated in such call. The board shall require
the successful bidders to file with the board good and sufficient
bonds to be approved by the board conditioned upon the faithful
performance of the contract and upon payment of their claims for
labor and material. The bonds shall comply with Title 2 (commencing
with Section 9000) of Part 6 of Division 4 of the Civil Code. The
board may reject any and all bids. In the event all proposals are
rejected or no proposals are received, or the estimated cost of the
work does not exceed five thousand dollars ($5,000), or the work
consists of channel protection, maintenance work, or emergency work,
the board of supervisors may have the work done by force account
without advertising for bids. In case of an emergency, if notice for
bids to let contracts will not be given, the board shall comply with
Chapter 2.5 (commencing with Section 22050). The district may
purchase in the open market without advertising for bids, materials
and supplies for use in any work, either under contract or by force
account.
SEC. 94. SEC. 92. Section 21491 of
the Public Contract Code is amended to read:
21491. (a) All contracts for any improvement or unit of work,
when the cost according to the estimate of the engineer will exceed
ten thousand dollars ($10,000), shall be let to the lowest
responsible bidder or bidders as provided in this article. The board
shall first determine whether the contract shall be let as a single
unit, or divided into severable parts. The board shall advertise for
bids by three insertions in a daily newspaper of general circulation
or by two insertions in a weekly newspaper of general circulation
printed and published in the agency, inviting sealed proposals for
the construction or performance of the improvement or work. The call
for bids shall state whether the work shall be performed in one unit
or divided into parts. The work may be let under a single contract or
several contracts, as stated in such call. The board shall require
the successful bidders to file with the board good and sufficient
bonds to be approved by the board conditioned upon the faithful
performance of the contract and upon the payment of their claims for
labor and material. The bonds shall comply with Title 2 (commencing
with Section 9000) of Part 6 of Division 4 of the Civil Code. The
board may reject any bid.
(b) In the event all proposals are rejected or no proposals are
received, or the estimated cost of the work does not exceed ten
thousand dollars ($10,000), or the work consists of channel
protection, maintenance work, or emergency work, the board may have
the work done by force account without advertising for bids. In case
of an emergency, if notice for bids to let contracts will not be
given, the board shall comply with Chapter 2.5 (commencing with
Section 22050).
(c) The agency may purchase in the open market without advertising
for bids, materials and supplies for use in any work, either under
contract or by force account; provided, however, that materials and
supplies for use in any new construction work or improvement, except
work referred to in subdivision (b), may not be purchased if the cost
exceeds ten thousand dollars ($10,000), without advertising for bids
and awarding the contract to the lowest responsible bidder.
SEC. 95. SEC. 93. Section 21501 of
the Public Contract Code is amended to read:
21501. (a) All contracts for any improvement or unit of work,
when the cost according to the estimate of the engineer will exceed
fifteen thousand dollars ($15,000), shall be let to the lowest
responsible bidder or bidders as provided in this article. The board
shall first determine whether the contract shall be let as a single
unit, or divided into severable parts. The board shall advertise for
bids by three insertions in a daily newspaper of general circulation
or by two insertions in a weekly newspaper of general circulation
printed and published in the agency, inviting sealed proposals for
the construction or performance of the improvement or work. The call
for bids shall state whether the work shall be performed in one unit
or divided into parts. The work may be let under a single contract or
several contracts, as stated in such call. The board shall require
the successful bidders to file with the board good and sufficient
bonds to be approved by the board conditioned upon the faithful
performance of the contract and upon the payment of their claims for
labor and material. The bonds shall comply with Chapter 5 (commencing
with Section 9550) of Title 2 of Part 6 of Division 4 of the Civil
Code. The board may reject any and all bids.
(b) The board may have work done by force account without
advertising for bids or by informal bidding procedures in any of the
following situations:
(1) All proposals are rejected.
(2) No proposals are received.
(3) The estimated cost of the work does not exceed fifteen
thousand dollars ($15,000) until January 1, 1989. After January 1,
1989, the estimated cost of the work shall not exceed ten thousand
dollars ($10,000).
(4) The work consists of channel protection.
(5) The work consists of maintenance work, except that informal
bidding procedures may be used only where the estimated cost does not
exceed twenty-five thousand dollars ($25,000).
(6) The work consists of emergency work. In case of an emergency,
if notice for bids to let contracts will not be given, the board
shall comply with Chapter 2.5 (commencing with Section 22050).
(c) The agency may purchase in the open market without advertising
for bids, materials and supplies for use in any work, either under
contract or by force account, except that, materials and supplies for
use in any new construction work or improvement, except work
referred to in subdivision (b), may not be purchased, if the cost
exceeds fifteen thousand dollars ($15,000), without advertising for
bids and awarding the contract to the lowest responsible bidder.
(d) As used in this section, "informal bidding procedures" means
that the board shall, at a minimum, award a contract to the lowest
responsible bidder after publishing a notice which generally
describes the work to be performed and invites written bids in a
newspaper of general circulation in the agency once a week for two
successive weeks. The board shall obtain a minimum of three written
bids.
SEC. 96. SEC. 94. Section 21511 of the
Public Contract Code is amended to read:
21511. (a) All contracts for any improvement or unit of work,
when the cost according to the estimate of the engineer will exceed
fifty thousand dollars ($50,000), shall be let to the lowest
responsible bidder or bidders as provided in this article. The board
shall first determine whether the contract shall be let as a single
unit or divided into severable parts. The board shall advertise for
bids by three insertions in a daily newspaper of general circulation
or by two insertions in a weekly newspaper of general circulation
printed and published in the agency, inviting sealed proposals for
the construction or performance of the improvement or work. The call
for bids shall state whether the work shall be performed in one unit
or divided into parts. The work may be let under a single contract or
several contracts, as stated in the call. The board shall require
the successful bidders to file with the board good and sufficient
bonds to be approved by the board conditioned upon the faithful
performance of the contract and upon the payment of their claims for
labor and material. The bonds shall comply with Title 2 (commencing
with Section 9000) of Part 6 of Division 4 of the Civil Code. The
board may reject any and all bids.
(b) In the event all proposals are rejected or no proposals are
received, or the estimated cost of the work does not exceed ten
thousand dollars ($10,000), or the work consists of channel
protection, maintenance work, or emergency work, the board may have
the work done by force account without advertising for bids. In case
of an emergency, if notice for bids to let contracts will not be
given, the board shall comply with Chapter 2.5 (commencing with
Section 22050).
(c) The agency may purchase in the open market without advertising
for bids, materials and supplies for use in any work, either under
contract or by force account. However, materials and supplies for use
in any new construction work or improvement, except work referred to
in subdivision (b), may not be purchased, if the cost exceeds fifty
thousand dollars ($50,000), without advertising for bids and awarding
the contract to the lowest responsible bidder.
SEC. 97. SEC. 95. Section 21521 of
the Public Contract Code is amended to read:
21521. All contracts for any improvement or unit of work, when
the cost according to the estimate of the engineer will exceed five
thousand dollars ($5,000) shall be let to the lowest responsible
bidder or bidders as provided in this article. The board shall first
determine whether the contract shall be let as a single unit, or
divided into severable parts. The board shall advertise for bids by
three insertions in a daily newspaper of general circulation or by
two insertions in a weekly newspaper of general circulation printed
and published in the agency, inviting sealed proposals for the
construction or performance of the improvement or work. The call for
bids shall state whether the work shall be performed in one unit or
divided into parts. The work may be let under a single contract or
several contracts, as stated in the call. The board shall require the
successful bidders to file with the board good and sufficient bonds
to be approved by the board conditioned upon the faithful performance
of the contract and upon the payment of their claims for labor and
material. The bonds shall comply with Title 2 (commencing with
Section 9000) of Part 6 of Division 4 of the Civil Code. The board
may reject any bid. In the event all proposals are rejected or no
proposals are received, or the estimated cost of the work does not
exceed five thousand dollars ($5,000), or the work consists of
channel protection, maintenance work, or emergency work, the board
may have the work done by force account without advertising for bids.
In case of an emergency, if notice for bids to let contracts will
not be given, the board shall comply with Chapter 2.5 (commencing
with Section 22050). In that event a majority vote of all board
members shall be required. The board may purchase in the open market
without advertising for bids, materials and supplies for use in any
work, either under contract or by force account.
SEC. 98. SEC. 96. Section 21531 of
the Public Contract Code is amended to read:
21531. (a) The Castaic Lake Water Agency shall have power to
prescribe methods for the construction of works and for the letting
of contracts for the construction of works, structures, or equipment,
or the performance or furnishing of labor, materials, or supplies,
necessary or convenient for carrying out any of the purposes of this
act or for the acquisition or disposal of any real or personal
property; provided, that all contracts for any improvement or unit of
work, when the cost according to the estimate of the engineer will
exceed five thousand dollars ($5,000), shall be let to the lowest
responsible bidder or bidders as provided in this article. The board
shall first determine whether the contract shall be let as a single
unit or divided into severable parts. The board shall advertise for
bids by three insertions in a daily newspaper of general circulation
published in the agency or by two insertions in a nondaily newspaper
of general circulation published in the agency or, if no newspaper is
published in the agency, in any newspaper of general circulation
distributed in the agency, inviting sealed proposals for the
construction or performance of the improvement or work. The call for
bids shall state whether the work shall be performed in one unit or
divided into parts. The work may be let under a single contract or
several contracts, as stated in the call. The board shall require the
successful bidders to file with the board good and sufficient bonds
to be approved by the board conditioned upon the faithful performance
of the contract and upon the payment of their claims for labor and
material. The bonds shall comply with Title 2 (commencing with
Section 9000) of Part 6 of Division 4 of the Civil Code. The board
may reject any bid.
(b) In the event all proposals are rejected or no proposals are
received, or the estimated cost of the work does not exceed five
thousand dollars ($5,000), or the work consists of channel
protection, maintenance work, or emergency work, the board may have
the work done by force account without advertising for bids. In case
of an emergency, if notice for bids to let contracts will not be
given, the board shall comply with Chapter 2.5 (commencing with
Section 22050).
(c) The agency may purchase in the open market without advertising
for bids, materials and supplies for use in any work, either under
contract or by force account; provided, however, that materials and
supplies for use in any new construction work or improvement, except
work referred to in subdivision (b), may not be purchased if the cost
exceeds five thousand dollars ($5,000), without advertising for bids
and awarding the contract to the lowest responsible bidder.
SEC. 99. SEC. 97. Section 21541 of
the Public Contract Code is amended to read:
21541. (a) The Crestline-Lake Arrowhead Water Agency shall have
power to prescribe methods for the construction of works and for the
letting of contracts for the construction of works, structures, or
equipment, or the performance or furnishing of labor, materials, or
supplies, necessary or convenient for carrying out any of the
purposes of this act or for the acquisition or disposal of any real
or personal property. However, all contracts for the construction of
any improvement or unit of work, when the cost, according to the
estimate of the engineer, will exceed twenty-five thousand dollars
($25,000), shall be let to the lowest responsible bidder or bidders
as provided in this article. The board shall first determine whether
the contract shall be let as a single unit or divided into severable
parts. The board shall advertise for bids by three insertions in a
daily newspaper of general circulation or by two insertions in a
weekly newspaper of general circulation printed and published in the
agency, inviting sealed proposals for the construction or performance
of the improvement or work. The call for bids shall state whether
the work shall be performed in one unit or divided into parts. The
work may be let under a single contract or several contracts, as
stated in the call.
The board shall require the successful bidders to file with the
board good and sufficient bonds to be approved by the board
conditioned upon the faithful performance of the contract and upon
the payment of their claims for labor and material. The bonds shall
comply with Title 2 (commencing with Section 9000) of Part 6 of
Division 4 of the Civil Code. The board may reject any bid.
(b) In the event all proposals are rejected or no proposals are
received, or the estimated cost of the work does not exceed five
thousand dollars ($5,000), or the work consists of channel
protection, maintenance work, or emergency work, the board may have
the work done by force account without advertising for bids. In case
of an emergency, if notice for bids to let contracts will not be
given, the board shall comply with Chapter 2.5 (commencing with
Section 22050).
(c) The agency may purchase in the open market without advertising
for bids, materials and supplies for use in any work, either under
contract or by force account. However, materials and supplies for use
in any new construction work or improvement, except work referred to
in subdivision (b), may not be purchased if the cost exceeds
twenty-five thousand dollars ($25,000), without advertising for bids
and awarding the contract to the lowest responsible bidder.
SEC. 100. SEC. 98. Section 21572 of
the Public Contract Code is amended to read:
21572. Any improvement or unit of work, except as provided in
this article, estimated to cost in excess of five thousand dollars
($5,000), shall be done by contract and let to the lowest responsible
bidder in the manner provided in this article. The board of
directors of the agency shall advertise by three insertions in a
daily newspaper of general circulation or two insertions in a weekly
newspaper of general circulation published in the agency, inviting
sealed proposals for the construction of the work before any contract
shall be made, and may let by contract separately any part of the
work. The board shall require the successful bidder to file with the
board good and sufficient bonds to be approved by the board,
conditioned upon the faithful performance of the contract, and upon
the payment of the claims for labor and material, the bonds to
contain the terms and conditions set forth in Title 2 (commencing
with Section 9000) of Part 6 of Division 4 of the Civil Code, and to
be subject to the provisions of that title. The board shall also have
the right to reject any and all bids, and readvertise for new bids,
or by a two-thirds vote may elect to undertake the work by force
account. In the event no proposals are received pursuant to
advertisement, or where the estimated cost of such work does not
exceed five thousand dollars ($5,000), the board of directors by
unanimous vote of all members present may without advertising for
bids have the work done by force account. In case of an emergency, if
notice for bids to let contracts will not be given, the board shall
comply with Chapter 2.5 (commencing with Section 22050). The agency
may purchase in the open market without advertisement for bids,
materials and supplies for use in any work either under contract or
by force account.
SEC. 101. SEC. 99. Section 21581 of
the Public Contract Code is amended to read:
21581. (a) Any improvement or unit of work when the cost
according to the estimate of the engineer will exceed five thousand
dollars ($5,000), shall be done by contract and shall be let to the
lowest responsible bidder or bidders in the manner provided in this
article. The board shall first determine whether the contract shall
be let as a single unit or shall be divided into severable parts, or
both, according to the best interests of the district. The board
shall call for bids and advertise the call by three insertions in a
daily newspaper of general circulation or by two insertions in a
weekly newspaper of general circulation printed in the district
inviting sealed proposals for the construction or performance of the
improvement or work before any contract is made. The call for bids
shall state whether the work is to be performed as a unit or shall be
divided into severable specific parts, or both, as stated in the
call. The board may let the work by single contract for the whole or
it may divide the work into severable parts by separate contracts, as
stated in the call, according to the best interests of the district.
The board shall require the successful bidder or bidders to file
with the board a good and sufficient bond to be approved by the board
conditioned upon the payment of their claims for labor and material,
the bond to contain the terms and conditions set forth in Title 2
(commencing with Section 9000) of Part 6 of Division 4 of the Civil
Code and to be subject to the provisions of that title. The board
shall also have the right to reject any and all bids and readvertise
for new bids, or by a two-thirds vote may elect to undertake the work
by force account.
(b) In the event no proposals are received pursuant to
advertisement, or the estimated cost of the work does not exceed five
thousand dollars ($5,000), or the work consists of channel
protection, maintenance work, or emergency work, the board of
supervisors may, without advertising for bids, have the work done by
employees of the district, by day labor, under the direction of the
board, by contract, or by any combination of those methods. In case
of an emergency, if notice for bids to let contracts will not be
given, the board shall comply with Chapter 2.5 (commencing with
Section 22050).
(c) The district may acquire in the open market without
advertising for bids, materials, equipment, and supplies for use in
any work or for any other purpose; provided, however, that materials
and supplies for use in any new construction work or improvement,
except work referred to in subdivision (b), may not be purchased if
the cost exceeds five thousand dollars ($5,000), without advertising
for bids and awarding the contract to the lowest responsible bidder.
SEC. 102. SEC. 100. Section 21591 of
the Public Contract Code is amended to read:
21591. (a) Any improvement or unit of work, when the cost,
according to the estimate of the engineer, will exceed twenty-five
thousand dollars ($25,000), shall be done by contract and shall be
let to the lowest responsible bidder or bidders as provided in this
article. The board shall first determine whether the contract shall
be let as a single unit or divided into severable parts. The board
shall advertise for bids by three insertions in a daily newspaper of
general circulation or by two insertions in a weekly newspaper of
general circulation printed and published in the agency, if there is
a newspaper printed and published in the agency, inviting sealed
proposals for the construction or performance of the improvement or
work. The call for bids shall state whether the work shall be
performed in one unit or divided into parts. The work may be let
under a single contract or several contracts, as stated in the call.
The board shall require the successful bidders to file with the board
good and sufficient bonds to be approved by the board conditioned
upon the faithful performance of the contract and upon the payment of
their claims for labor and material. The bonds shall comply with
Title 2 (commencing with Section 9000) of Part 6 of Division 4 of the
Civil Code. The board may reject any and all bids and readvertise,
or by a two-thirds vote may elect to undertake work by force account.
(b) If no proposals are received, or the estimated cost of the
work does not exceed twenty-five thousand dollars ($25,000), or the
work consists of channel protection, maintenance work, or emergency
work, the board may have the work done by force account without
advertising for bids. In case of an emergency, if notice for bids to
let contracts will not be given, the board shall comply with Chapter
2.5 (commencing with Section 22050).
(c) The agency may purchase in the open market without advertising
for bids, materials and supplies for use in any work, either under
contract or by force account; provided, however, that materials and
supplies for use in any new construction work or improvement, except
work referred to in subdivision (b), may not be purchased if the cost
exceeds twenty-five thousand dollars ($25,000), without advertising
for bids and awarding the contract to the lowest responsible bidder.
SEC. 103. SEC. 101. Section 21601 of
the Public Contract Code is amended to read:
21601. Any improvement or unit of work, when the cost, according
to the estimate of the engineer, will exceed five thousand dollars
($5,000), shall be done by contract and let to the lowest responsible
bidder or bidders as provided in this article. The board shall first
determine whether the contract shall be let as a single unit or
divided into severable parts. The board shall advertise for bids by
three insertions in a daily newspaper of general circulation, or by
two insertions in a weekly newspaper of general circulation, printed
and published in the agency, inviting sealed proposals for the
construction or performance of the improvement or work. The call for
bids shall state whether the work shall be performed in one unit or
divided into parts. The work may be let under a single contract or
several contracts, as stated in the call. The board shall require the
successful bidders to file with the board good and sufficient bonds
to be approved by the board conditioned upon the faithful performance
of the contract and upon payment of their claims for labor and
material. The bonds shall comply with Title 2 (commencing with
Section 9000) of Part 6 of Division 4 of the Civil Code. The board
may reject any and all bids and readvertise, or, by a two-thirds
vote, may elect to undertake the work by force account. If no
proposals are received, the estimated cost of the work does not
exceed five thousand dollars ($5,000), or the work consists of
channel protection, maintenance work, or emergency work, the board of
supervisors may have the work done by force account without
advertising for bids. In case of an emergency, if notice for bids to
let contracts will not be given, the board shall comply with Chapter
2.5 (commencing with Section 22050). The district may purchase in the
open market without advertising for bids, materials, and supplies
for use in any work, either under contract or by force account.
SEC. 104. SEC. 102. Section 21622 of
the Public Contract Code is amended to read:
21622. The board shall require the successful bidder or bidders
to file with the board, good and sufficient bonds, to be approved by
the board conditioned upon the faithful performance of the contract
and upon the payment of their claims for labor and material in
connection therewith. Such contracts shall be subject to the
provisions of Title 2 (commencing with Section 9000) of Part 6 of
Division 4 of the Civil Code.
SEC. 105. SEC. 103. Section 21631 of
the Public Contract Code is amended to read:
21631. (a) Any improvement or unit of work when the cost,
according to the estimate of the engineer, will exceed six thousand
five hundred dollars ($6,500), shall be done by contract and shall be
let to the lowest responsible bidder or bidders in the manner
provided in this article. The board shall first determine whether the
contract shall be let as a single unit, or shall be divided into
severable parts, or both, according to the best interests of the
district. The board shall call for bids and advertise the call by
three insertions in a daily newspaper of general circulation or by
two insertions in a weekly newspaper of general circulation printed
in the district inviting sealed proposals for the construction or
performance of the improvement or work before any contract is made.
The call for bids shall state whether the work is to be performed as
a unit or shall be divided into severable parts, or both, as stated
in the call. The board may let the work by single contract or it may
divide the work into severable parts by separate contracts, as stated
in the call, according to the best interests of the district. The
board shall require the successful bidder or bidders to file with the
board a good and sufficient bond, to be approved by the board,
conditioned upon the payment of their claims for labor and material.
The bond shall contain the terms and conditions set forth in Title 2
(commencing with Section 9000) of Part 6 of Division 4 of the Civil
Code and be subject to the provisions of that title. The board may
reject any and all bids and readvertise for new bids, or by a
two-thirds vote may elect to undertake the work by force account.
(b) If no proposals are received pursuant to advertisement or the
estimated cost of the work does not exceed six thousand five hundred
dollars ($6,500), or the work consists of channel protection,
maintenance work, or emergency work, the board of supervisors may,
without advertising for bids, have the work done by employees of the
district, by day labor, under the direction of the board, by
contract, or by a combination of those methods. In case of an
emergency, if notice for bids to let contracts will not be given, the
board shall comply with Chapter 2.5 (commencing with Section 22050).
(c) The district may acquire in the open market, without
advertising for bids, materials, equipment, and supplies for use in
any work or for any other purpose; provided, however, that materials
and supplies for use in any new construction work or improvement,
except that work referred to in subdivision (b), may not be purchased
if the cost exceeds six thousand five hundred dollars ($6,500),
without advertising for bids and awarding the contract to the lowest
responsible bidder.
SEC. 106. SEC. 104. Section 136.5 of
the Streets and Highways Code is amended to read:
136.5. (a) The contracts referred to in Sections 135, 136, and
136.1 are not subject to the State Contract Act (Part 2 (commencing
with Section 10100) of Division 2 of the Public Contract Code).
Except for emergency work of the type described in subdivision (b),
whenever the estimated amount of a contract exceeds two thousand five
hundred dollars ($2,500), it shall be awarded to the lowest
responsible bidder, after competitive bidding on any reasonable
notice that the department may prescribe. Posting of notice for five
days in a public place in the district office within which the work
is to be done, or the equipment used, is sufficient. Those contracts
shall be subject to the applicable payment bond provisions of Chapter
5 (commencing with Section 9550) of Title 2 of Part 6 of Division 4
of the Civil Code. The department may require faithful performance
bonds when considered necessary. The advertisement for each contract
shall state whether or not a bond shall be required.
(b) In cases of emergency work necessitated by the imminence or
occurrence of a landslide, flood, storm damage, accident, or other
casualty, tools or equipment may be rented for a period of not to
exceed 60 days without competitive bidding, and the department may
waive the requirements of Chapter 5 (commencing with Section 9550) of
Title 2 of Part 6 of Division 2 of the Civil Code to the extent that
a contractor may commence performance of the work under the contract
for the rental of tools or equipment prior to filing a payment bond
with the department. In that case, no payment shall be made to the
contractor until a payment bond covering all work of the contract is
filed with the department.
SEC. 107. SEC. 105. (a) This act is
operative on January 1, 2012.
(b) Except as otherwise provided in this section, this act applies
to a contract for a work of improvement executed before, on, or
after the operative date.
(c) The effectiveness of a notice given, or other action taken,
before the operative date is governed by the applicable law in effect
before the operative date and not by this act.
SEC. 108. SEC. 106. Any section of
any act enacted by the Legislature during the 2010 calendar year that
takes effect on or before January 1, 2011, and that amends, amends
and renumbers, amends and repeals, adds, repeals and adds, or repeals
a section that is amended, amended and renumbered, amended and
repealed, added, repealed and added, or repealed by this act, shall
prevail over this act, whether that act is chaptered before or after
this act.
SEC. 109. SEC. 107. No reimbursement
is required by this act pursuant to Section 6 of Article XIII B of
the California Constitution because the only costs that may be
incurred by a local agency or school district will be incurred
because this act creates a new crime or infraction, eliminates a
crime or infraction, or changes the penalty for a crime or
infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California Constitution.
