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CALIFORNIA STATUTES AND CODES
SECTIONS 20410-20464
PUBLIC CONTRACT CODE
SECTION 20410-20464
20410. The provisions of this article shall apply to contracts by legislative bodies for the doing of work or the furnishing of materials, supplies and equipment, as provided for in the Improvement Act of 1911, Division 7 (commencing with Section 5000) of the Streets and Highways Code. 20411. Before the legislative body awards any contract for doing any work or for furnishing materials, supplies and equipment or any portion thereof, authorized by this division, the legislative body shall pass a resolution ordering the work. 20412. Notice shall be posted inviting sealed proposals or bids for doing such work, or for furnishing materials, supplies and equipment or any portion thereof. Notice inviting such proposals, and referring to the specifications on file, shall be published, but if there is no newspaper published in the city, then it shall only be posted. The time fixed for the opening of the bids shall be not less than 10 days from the time of the first publication or posting of the notice. Said notices shall state the estimated cost of any acquisition, which estimated cost is required to be advanced as a part of the incidental expenses referred to in Section 5256 of the Streets and Highways Code, at the time of entering into the contract. 20413. All bids for construction work shall be presented under sealed cover and shall be accompanied by one of the following forms of bidder's security: (a) Cash. (b) A cashier's check made payable to the city. (c) A certified check made payable to the city. (d) A bidder's bond executed by an admitted surety insurer, made payable to the city. The security shall be in an amount equal to at least 10 percent of the amount of the bid. No bid shall be considered unless one of the forms of bidder's security is enclosed with it. Upon an award to the lowest bidder, the security of an unsuccessful bidder shall be returned in a reasonable period of time, but in no event shall that security be held by the city beyond 60 days from the time the award is made. 20414. The proposals or bids shall be delivered to the clerk, or any other officer designated by the legislative body, and the legislative body shall, in open session publicly open, examine and declare the same. If the legislative body by resolution so provides the proposals or bids may be opened, examined and declared by an officer designated in the resolution. Any such resolution shall require that the proposals or bids be opened at a public meeting called by the officer designated who shall report the results of the bidding to the legislative body at the next regular meeting after the opening of the bids. In the event of such resolution the notice inviting bids shall state the time and place of said public meeting and the officer so designated. No proposal or bid shall be considered unless accompanied by the check or bond satisfactory to the legislative body. 20415. The legislative body may reject any and all proposals or bids should it deem this for the public good, and also the bid of any party who has been delinquent or unfaithful in any former contract with the city, and shall reject all proposals or bids other than the lowest regular proposal or bid of any responsible bidder, and may award the contract for said work or improvement to the lowest responsible bidder at the prices named in his bid. If the bids are rejected the legislative body shall thereupon return to each bidder the check or bond which accompanied his bid. 20416. Whenever the total amount bid by the lowest responsible bidder plus the estimated amount of incidental costs would result in assessments under this division which exceed by more than 15 percent the engineer's estimate of cost of the proposed work to be assessed, as stated in the "Notice of Improvement" referred to in Section 5193 of the Streets and Highways Code, the legislative body shall direct the clerk to give notice by mail of such increase over the estimated cost. 20417. If the bids are rejected or no bids are received the legislative body may readvertise for proposals or bids for the performance of the work as in the first instance, without further proceedings, and thereafter proceed in the manner provided in this chapter. 20418. The check or bond accompanying any proposal or bid which is accepted shall be held by the clerk until the contract for doing the work has been entered into, either by the lowest bidder or by the owners of three-fourths part of the frontage, whereupon the certified check or bond shall be returned to the bidder. If the bidder fails, neglects or refuses to enter into the contract to perform the work, the certified check accompanying his bid and the amount therein mentioned, shall be declared to be forfeited to the city and shall be collected by it and paid into the general fund, and any bond forfeited may be prosecuted, and the amount due thereon collected and paid into the general fund. 20419. If any local, state or national agency or authority contributes the labor, or labor and any portion of the materials, supplies or equipment necessary for the construction of any improvement authorized under this division, the contract shall be for only those items which are not contributed by any such agency or authority. If proposals or bids are invited only for the furnishing of materials, supplies and equipment or any portion thereof not furnished by such agency or authority, the notice shall contain a statement to the effect that the legislative body may cancel the order for any undelivered materials, supplies or equipment by giving the successful bidder 24 hours notice of the cancellation, in which event the successful bidder will be entitled to compensation for only so much of the material, supplies and equipment as has been used prior to the giving of such notice of cancellation at the prescribed unit rates stated in the contract, and that the contractor shall agree to accept the return of any and all materials and supplies not used prior to the giving of such notice. 20420. Notice of the award of the contract shall be published by the clerk. The clerk shall, upon payment of the statutory fee prescribed therefor, record a notice of the award of contract in the office of the county recorder. Said recordation shall constitute notice to all persons that all property within the boundaries of the proposed assessment district shall be assessed at the time of the confirmation of the assessment under Chapter 16 (commencing at Section 5360) of Part 3 of Division 7 of the Streets and Highways Code to pay the costs of the improvement in proportion to the benefits which the property receives from the improvement, notwithstanding the acquisition of the property by the state or any of its agencies, or by any county, city, municipality or other public or municipal corporation. Said notice shall be substantially as follows: NOTICE OF AWARD OF CONTRACT IN PROPOSED ASSESSMENT DISTRICT Pursuant to the requirements of Section 5248 of the Streets and Highways Code, notice is hereby given that a contract has been awarded by_________________________________ (Legislative body) to _____________________________________________ (Contractor) for_____________________________________________ (Nature of improvement) in___________________ District No. __________________ (Improvement or assessment) and relating to the following described real property: (The real property in the assessment district may be described by: a. Stating its exterior boundaries; or b. Giving a description thereof according to any official or recorded map; or c. Referring to a plat or map filed with the clerk of the legislative body, which shall indicate by a boundary line the extent of the territory included in the assessment district, and shall govern for all details as to the extent of the assessment district.) This shall constitute notice to all persons that all property within the boundaries of the proposed assessment district shall be assessed at the time of the confirmation of the assessment under Chapter 16 (commencing at Section 5360) of Part 3 of Division 7 of the Streets and Highways Code to pay the costs of the improvement in proportion to the benefits which said property receives from the improvement, notwithstanding the acquisition of any such property by the state or any of its agencies, or by any county, city, municipality or other public or municipal corporation. Reference is made to the minutes of the action taken by____________________________________________ (Legislative body) on file in my office for full particulars. Dated:___________________ ____________________ (Clerk of _________) 20421. The owners of three-fourths of the area of lands liable to be assessed, or their agents (who shall make oath that they are the owners or agents) are not required to present sealed proposals or bids, but may within 10 days after the first publication, or first posting if there is no publication, of the notice of the award of the contract, elect to take the work and enter into a written contract to do the whole work at the price at which the contract has been awarded. All work done under the written contract is subject to regulations which may be prescribed by ordinance of the legislative body. 20422. If the owners fail to elect to take the work, and to enter into a written contract therefor within 10 days, or to commence the work within 15 days after the date of the written contract, and to prosecute the work with diligence to completion, the superintendent of streets shall enter into a contract with the original bidder to whom the contract was awarded, and at the prices specified in his or her bid. 20423. If the original bidder neglects, fails or refuses, for 25 days after the first publication of the notice of the award of the contract, to enter into the contract, the legislative body, without further proceedings, shall again advertise for and receive proposals or bids, as in the first instance, and award the contract for the work to the then lowest regular bidder. 20424. If no bids are received in response to this second call for bids, the legislative body may again advertise for and receive bids under the same proceedings at any time and let the contract to the then lowest bidder, and such delay shall in no way affect the validity of any of the proceedings or assessments levied thereunder. 20425. The bids of all persons and the election of all owners who have previously failed to enter into the contract shall be rejected in any bidding or election subsequent to the first for the same work. 20426. All contractors, contracting owners included, shall, at the time of executing any contract for the work, execute a bond to the satisfaction and approval of the superintendent of streets and payable to the city, in a sum not less than 25 percent of the amount of the contract, conditioned upon the faithful performance of the contract. 20427. At any time prior to publication and posting notice inviting bids, the legislative body by resolution, may determine that in the event that the contractor, contracting owners included, does not complete the work within the time limit specified in the contract or within such further time as the legislative body shall have authorized, the contractor or contracting owners, as the case may be, shall pay to the city liquidated damages in the amount fixed by the legislative body in said resolution. The amount so fixed is valid as liquidated damages unless manifestly unreasonable under the circumstances existing at the time the contract was made. If such determination is made, the plans or specifications and the contract shall contain provisions in accordance therewith. Any moneys received by the city on account of such liquidated damages shall be applied as follows: (1) If received prior to confirmation of the assessment, such moneys shall be applied as a contribution against the assessment. (2) If received after the confirmation of the assessment, such moneys shall be applied in the manner provided in Section 5132.1 of the Streets and Highways Code for the disposition of excess acquisition funds. (3) If a contribution has theretofore been made or ordered by any agency, the legislative body may order a refund to the contributing agency in the proportion which said contribution bears to the total costs and expenses of the work. 20428. If the owner or contractor who may have taken any contract does not complete the work within the time limited in the contract, or within such further time as the legislative body may give him, or abandons or fails to proceed with the work, the legislative body may declare him in default and may either relet all or any portion of the work, or it may complete the work by direct purchase of labor and materials, and the owner or contractor shall pay to the city the entire cost of completing the work before the warrant is delivered to the owner or contractor. Notice of the declaration of default shall be given by the clerk of the legislative body to the owner or contractor by personal service or by mail. Upon receipt of such notice, the owner or contractor shall forthwith quit the work, and shall receive no payment for any work performed thereafter, unless ordered by the legislative body to resume the work. 20429. Before being entitled to a contract, the bidder to whom the award was made, or the owners who have elected to take the contract, must advance to the superintendent of streets, for payment by him, the cost of publication of the notices, resolutions, orders and matters required under the proceedings prescribed in this division, and of such other notice as may be deemed requisite by the legislative body, together with all other incidental expenses incurred up to the time of entering into the contract, including the estimated cost of any acquisition which the legislative body may determine to be payable at said time, but limited to the amount specified in the notice inviting bids pursuant to Section 5241 of the Streets and Highways Code. All other acquisition costs shall be payable at the time of the delivery to the contractor, or his agent, or assigns, of the warrant, assessment and diagram as provided in Section 5375 of the Streets and Highways Code. The legislative body may waive the payment in advance of all or any part of the incidental expenses and acquisition costs by resolution adopted not later than the time of ordering the work. The waiver must appear in the notice inviting bids. 20430. If the work is abandoned by the city before work is actually started or before any materials, supplies or equipment have been furnished or used, the incidental expenses incurred previous to such abandonment shall be paid out of the city treasury, but such expense for which the city is liable and which shall have been paid by it may be charged as incidental expenses against the district benefited in any new proceeding had or taken for any work which includes substantially the same work as that which was included in the abandoned proceedings. 20431. At any time within 10 days from the date of the first publication of the notice of award of the contract, any owner of, or other persons having any interest in, any lot or land liable to assessment, who claims that any of the previous acts or proceedings relating to the work are irregular, defective, erroneous or faulty, may file with the clerk a written notice specifying in what respect the said acts and proceedings are irregular, defective, erroneous or faulty. The notice shall state that it is made pursuant to this section. 20432. All objections to any act or proceeding occurring prior to the time within which such objections are permitted to be filed in relation to the work, not made in writing and in the manner and at the time specified, shall be waived, if the resolution of intention to do the work has been actually published, as provided in this division. 20433. If in the opinion of the legislative body the public interest will not be served by allowing the property owners to take the contract it may so provide in the resolution of intention. 20434. An action to determine the validity of proceedings relating to the work and the validity of any contract entered or to be entered into pursuant thereto may be brought by the legislative body or by the contractor pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure. For such purpose proceedings shall be deemed to be in existence upon the award of the contract. An action may be commenced and concluded by the legislative body before the publication of the notice inviting bids, and for such purpose the proceedings shall be deemed to be in existence upon the adoption of the resolution ordering the work. 20435. In such action, all findings, conclusions and determinations of the legislative body which conducted the proceedings shall be conclusive in the absence of actual fraud. 20436. If an action is commenced under the provisions of this chapter to determine the validity of any contract or proposed contract, and the contract has not been signed, the contractor shall not be obligated to sign the same until a judgment sustaining the validity of the proceedings and the proposed contract has become final. If the contractor has signed and executed the contract, he shall not be obligated to begin work until a judgment sustaining the validity of the proceedings and the contract has become final. If a judgment is entered holding the contract invalid, the contractor shall be discharged and relieved of all obligation under the contract, and he and his sureties shall be discharged and relieved of all obligation upon any bond required by law in connection with such contract. 20436.5. Notwithstanding any other provisions of law, the action authorized by this chapter shall not be brought by any person other than the legislative body or the contractor, nor shall the action be brought after the date fixed for the beginning of work. 20437. The superintendent of streets is hereby authorized in his official capacity to make all written contracts, and to receive all bonds authorized by this division and to do any other act, either expressly or impliedly required by this division, that pertains to the street department. 20438. He shall fix the time for the commencement, which shall not be more than 45 days from the date of the contract, and for the completion of the work under each contract entered into by him. The work shall be prosecuted with diligence from day to day thereafter to completion. 20439. He may extend the time fixed for completion of the work from time to time, under the direction of the legislative body. All applications for extensions of time, if in writing, must be filed in the office of the clerk before the expiration of the original time fixed in the contract, or of the time granted by extension, as the case may be. An extension of time may be granted by the legislative body after the expiration of the time originally fixed in the contract or as previously extended, and the extension so granted shall be deemed to commence and be effective from the date of such expiration. Any extension of time shall not release the sureties upon any bond required under this division. 20440. The work, in all cases, shall be done under the direction and to the satisfaction of the superintendent of streets and the materials used shall comply with the specifications and be to the satisfaction of the superintendent of streets and all contracts made therefor shall contain a provision to that effect unless the legislative body by resolution adopted within 10 days after the passage of the resolution ordering the work directs that the work shall be done under the direction of the engineer and the materials used shall comply with the specifications and be to the satisfaction of the engineer, instead of the superintendent of streets, and in such case the contract shall contain a provision to that effect. 20441. The legislative body also may by resolution adopted within 10 days after the passage of the resolution ordering the work provide and direct that the assessment thereafter to be made in the proceeding shall be made and signed by the engineer instead of by the superintendent of streets. 20442. The contract shall contain express notice that, in no case, except where it is otherwise provided by law or by charter will the city, or any officer thereof, be liable for any portion of the expense, nor for any delinquency of persons or property assessed. 20443. The legislative body may, by ordinance, prescribe general rules directing the superintendent of streets or the engineer, as the case may be, and the contractor as to the materials to be used, and the mode of executing the work, under all contracts thereafter made. The assessment and apportionment of the expenses of all such work shall be made by the superintendent of streets or the engineer, as the case may be, in the mode provided by this division. 20444. If any fiscal agent of the United States government contributes any money or materials to be used in the construction of any work provided for in this division, the requirements of the agency contributing such money or materials may be incorporated in the contract. 20445. If a contribution of labor or of labor and any portion of materials, supplies or equipment is to be made by any local, state or national agency or authority, the contract shall contain a provision that the legislative body may cancel the order for any undelivered materials, supplies or equipment by giving the contractor 24 hours notice of said cancellation, and require the contractor to accept the return of the unused materials and supplies, in which event the contractor will be entitled to compensation for only so much of the materials, supplies and equipment as has been used prior to the giving of such notice. The contract shall also contain a provision that no materials, supplies or equipment shall be delivered until a delivery permit signed by the superintendent of streets has been received by the contractor. 20446. "Changes" as used in this chapter shall include corrections, alterations, modifications, additions, omissions, increases or decreases. 20447. Unless the power to proceed shall have ceased at the conclusion of the hearing on the resolution of intention because of a majority protest, at any time before the confirmation of the assessment the legislative body may make changes in, to or from the boundaries of the proposed assessment district, the work proposed to be done, or any act, determination or provision made, or permitted to be made, by the legislative body under and pursuant to this division, which act, determination or provision does not affect the jurisdiction of the legislative body to order the work or improvement; provided, that after the award of the contract no such changes shall be made without the written consent of the contractor or the bidder to whom the contract shall have been awarded. The legislative body shall not change the boundaries to include any territory which will not, in its judgment, be benefited by the work. 20448. At the hearing on the resolution of intention, the legislative body, without further notice and hearing, may order any changes, as defined in Sections 20446 and 20447, except changes to include additional territory in the assessment district. Any changes to include additional territory and all changes after the hearing on the resolution of intention shall be ordered only as provided in this chapter. 20449. Before ordering any changes made, the legislative body shall adopt a resolution briefly describing the changes proposed to be made, stating the amount of the estimated increase or decrease in the cost of the work by reason of the proposed changes and giving notice of a time and place when and where any interested person having any objection to the changes proposed to be made may appear before the legislative body and show cause why the changes should not be ordered. The resolution shall also contain the name and telephone number of a local department or agency designated by the legislative body to answer inquiries regarding the hearing proceedings. Such notice shall be omitted if the hearing of objections is not required as provided hereunder. The resolution may describe the changes by referring to maps, plats, plans, profiles, detailed drawings, or specifications on file in the office of the clerk or engineer, which shall indicate the changes proposed to be made and which shall govern for all details thereof. The resolution shall be published pursuant to Section 6061 of the Government Code, at least 10 days prior to the date of the hearing. The hearing of objections shall not be required if the legislative body, when considering passage of the resolution, finds and determines by a four-fifth's vote of all members thereof, that all of the owners of lots or lands liable to be assessed, or their agents, who shall make oath that they are such agents, have signed and filed a petition waiving the hearing, with the clerk, on or before the fifth day prior to the day that the resolution is considered for passage, declaring that they do not have any objections to the proposed changes and requesting that the hearing of objections shall not be required. 20450. If a resolution required under Section 20449 proposes to include additional territory in the assessment district, at least 15 days prior to the hearing fixed therein, the clerk shall mail a copy of the resolution to all persons owning real property within the additional territory whose names and addresses appear on the last equalized assessment roll or as known to the clerk. This section shall not apply if the hearing of objections is not required pursuant to Section 20449. 20451. Written objections to the proposed changes may be filed with the clerk by any interested person at any time not later than the time set for the hearing. The legislative body shall hear and pass upon the objections at the time appointed, or at any time to which the hearing thereof may be adjourned, and its decision thereon shall be final and conclusive. If no written objections to the changes have been delivered to the clerk up to the hour set for hearing thereon, or if the objections have been heard and found by the legislative body to be insufficient or have been overruled or denied, immediately thereupon the legislative body by an affirmative vote of four-fifths of its members shall acquire jurisdiction to order the changes made. If the hearing of objections is not required, pursuant to Section 20449, immediately upon passage of the resolution the legislative body shall acquire jurisdiction to order the changes made. The decisions and determinations of the legislative body ordering the changes shall be final and conclusive upon all persons entitled to appeal thereupon to the legislative body. 20452. (a) No changes, except as provided in Section 20453, shall be made pursuant to this chapter that will increase the estimated assessable cost by more than 20 percent of the total estimated cost of the work as determined from either of the following: (1) The engineer's estimate, if the change is ordered prior to the award of the contract. (2) The successful bid, if the change is ordered after the award of the contract. (b) Any changes made pursuant to subdivision (a) shall also be subject to the limitations, if any, contained in any law applicable to the proceedings that imposes limitations upon the amount by which the estimated cost of the work or improvement may be increased by reason of those changes. 20453. Changes may exceed the 20-percent limitation in cost when the legislative body orders such changes. That portion of the added cost which exceeds the 20-percent limitation shall be paid by the city. 20454. Any changes made pursuant to this chapter shall not release or discharge the sureties upon any bond required under this division. 20455. (a) After construction has begun, the legislative body, or the superintendent of streets if authorized by the legislative body, may order changes in the work without the necessity of a hearing. The order shall be in writing, and the amount of any change 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). (b) 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). (c) The limitations on the cost of changes permitted by this section shall not apply where (1) the change is requested in writing by the owner of property subject to assessment for the improvement under construction and the nature of the change requested is such that the cost thereof will be assessed exclusively against the property of the person requesting the change, or (2) the change in the work will not adversely affect the benefiting property and any increase in the cost resulting from the changes will be paid by the city and will not be assessed against the property within the assessment district. 20456. Subject to the limitations of Section 20455, the contract may include a provision to determine a fair and equitable price for changes in the work, including, but not limited to, arbitration or cost plus a fixed fee. 20457. Every contractor, to whom is awarded any contract for street work under this division, shall at the time of signing and executing the contract, file with the superintendent of streets a good and sufficient bond, approved by the street superintendent in a sum not less than one-half of the total amount payable by the terms of the contract. 20458. The bond shall provide that the contractor or subcontractor shall pay for any materials, provisions, provender, or other supplies or use of implements or machinery used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind. 20459. Any person furnishing materials, provisions, provender or other supplies used in, upon, for or about the performance of the work contracted to be executed or performed, or any person renting or hiring teams or implements, or machinery for, or contributing to, the work to be done, or any person who performs work or labor upon the same, or any person who supplies both work and materials and whose claim has not been paid by the contractor or by the subcontractors of the contractor may, at any time within 30 days from the date of the recordation of the assessment file with the superintendent of streets a verified statement of his claim, together with a statement that the same, or some part thereof, has not been paid. 20460. Each person whose claim has not been paid by the contractor or his subcontractors, shall have a first lien upon and against the assessment, any partial assessment, any reassessment and any bonds which may be issued to represent any assessment or reassessment, which lien may be enforced by action brought within three months after the date of the filing of the verified statement in the superior court of the county in which such work is done. 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 him or to be due him 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 such claims, and such assignment shall have no binding force insofar as the rights of the claimants, or their assigns, are concerned. None of the provisions of Title 15 (commencing with Section 3082), Part 4, Division 3, of the Civil Code, shall be applicable to any assessment, partial assessment, reassessment, bonds, moneys or funds payable to the contractor or his assignee under this division or to any matter contained in this chapter. 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 3 (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. 20462. If any contractor disputes the correctness or validity of any claim filed pursuant to this chapter, the city or superintendent of streets may permit the contractor to deliver to the city or superintendent of streets a bond satisfactory to said city or superintendent of streets executed by the contractor and some corporation authorized to issue surety bonds in a penal sum equal to one and one-fourth times the amount of the claim. 20463. The bond shall guarantee the payment of any sum which the claimant may recover on the claim together with his costs of suit in the action, if he shall recover therein. If such bond is filed, the city, any officer thereof, or superintendent of streets shall not withhold any moneys or funds, assessment, partial assessment, any reassessment and any bonds which may be issued to represent any assessment or reassessment from the contractor on account of the claim. The sureties upon the bond shall be jointly and severally liable to the claimant with the sureties upon the contractor's original labor and material bond posted by the contractor. 20464. Suit against the sureties on the bond of the contractor filed pursuant to this chapter may be brought by any claimant, or his assigns, at any time after the claimant has ceased to perform labor or furnish materials or both and until the expiration of six months after the period in which verified claims may be filed. The filing of a verified claim shall not be a condition precedent to the maintenance of such action against the sureties on the bond and an action on the bond may be maintained separately from and without the filing of an action against the city or officer by whom the contract was awarded. Upon the trial of the action, the court shall award to the prevailing party a reasonable attorney's fee, to be taxed as costs, and to be included in the judgment therein rendered.
SECTION 20410-20464
20410. The provisions of this article shall apply to contracts by legislative bodies for the doing of work or the furnishing of materials, supplies and equipment, as provided for in the Improvement Act of 1911, Division 7 (commencing with Section 5000) of the Streets and Highways Code. 20411. Before the legislative body awards any contract for doing any work or for furnishing materials, supplies and equipment or any portion thereof, authorized by this division, the legislative body shall pass a resolution ordering the work. 20412. Notice shall be posted inviting sealed proposals or bids for doing such work, or for furnishing materials, supplies and equipment or any portion thereof. Notice inviting such proposals, and referring to the specifications on file, shall be published, but if there is no newspaper published in the city, then it shall only be posted. The time fixed for the opening of the bids shall be not less than 10 days from the time of the first publication or posting of the notice. Said notices shall state the estimated cost of any acquisition, which estimated cost is required to be advanced as a part of the incidental expenses referred to in Section 5256 of the Streets and Highways Code, at the time of entering into the contract. 20413. All bids for construction work shall be presented under sealed cover and shall be accompanied by one of the following forms of bidder's security: (a) Cash. (b) A cashier's check made payable to the city. (c) A certified check made payable to the city. (d) A bidder's bond executed by an admitted surety insurer, made payable to the city. The security shall be in an amount equal to at least 10 percent of the amount of the bid. No bid shall be considered unless one of the forms of bidder's security is enclosed with it. Upon an award to the lowest bidder, the security of an unsuccessful bidder shall be returned in a reasonable period of time, but in no event shall that security be held by the city beyond 60 days from the time the award is made. 20414. The proposals or bids shall be delivered to the clerk, or any other officer designated by the legislative body, and the legislative body shall, in open session publicly open, examine and declare the same. If the legislative body by resolution so provides the proposals or bids may be opened, examined and declared by an officer designated in the resolution. Any such resolution shall require that the proposals or bids be opened at a public meeting called by the officer designated who shall report the results of the bidding to the legislative body at the next regular meeting after the opening of the bids. In the event of such resolution the notice inviting bids shall state the time and place of said public meeting and the officer so designated. No proposal or bid shall be considered unless accompanied by the check or bond satisfactory to the legislative body. 20415. The legislative body may reject any and all proposals or bids should it deem this for the public good, and also the bid of any party who has been delinquent or unfaithful in any former contract with the city, and shall reject all proposals or bids other than the lowest regular proposal or bid of any responsible bidder, and may award the contract for said work or improvement to the lowest responsible bidder at the prices named in his bid. If the bids are rejected the legislative body shall thereupon return to each bidder the check or bond which accompanied his bid. 20416. Whenever the total amount bid by the lowest responsible bidder plus the estimated amount of incidental costs would result in assessments under this division which exceed by more than 15 percent the engineer's estimate of cost of the proposed work to be assessed, as stated in the "Notice of Improvement" referred to in Section 5193 of the Streets and Highways Code, the legislative body shall direct the clerk to give notice by mail of such increase over the estimated cost. 20417. If the bids are rejected or no bids are received the legislative body may readvertise for proposals or bids for the performance of the work as in the first instance, without further proceedings, and thereafter proceed in the manner provided in this chapter. 20418. The check or bond accompanying any proposal or bid which is accepted shall be held by the clerk until the contract for doing the work has been entered into, either by the lowest bidder or by the owners of three-fourths part of the frontage, whereupon the certified check or bond shall be returned to the bidder. If the bidder fails, neglects or refuses to enter into the contract to perform the work, the certified check accompanying his bid and the amount therein mentioned, shall be declared to be forfeited to the city and shall be collected by it and paid into the general fund, and any bond forfeited may be prosecuted, and the amount due thereon collected and paid into the general fund. 20419. If any local, state or national agency or authority contributes the labor, or labor and any portion of the materials, supplies or equipment necessary for the construction of any improvement authorized under this division, the contract shall be for only those items which are not contributed by any such agency or authority. If proposals or bids are invited only for the furnishing of materials, supplies and equipment or any portion thereof not furnished by such agency or authority, the notice shall contain a statement to the effect that the legislative body may cancel the order for any undelivered materials, supplies or equipment by giving the successful bidder 24 hours notice of the cancellation, in which event the successful bidder will be entitled to compensation for only so much of the material, supplies and equipment as has been used prior to the giving of such notice of cancellation at the prescribed unit rates stated in the contract, and that the contractor shall agree to accept the return of any and all materials and supplies not used prior to the giving of such notice. 20420. Notice of the award of the contract shall be published by the clerk. The clerk shall, upon payment of the statutory fee prescribed therefor, record a notice of the award of contract in the office of the county recorder. Said recordation shall constitute notice to all persons that all property within the boundaries of the proposed assessment district shall be assessed at the time of the confirmation of the assessment under Chapter 16 (commencing at Section 5360) of Part 3 of Division 7 of the Streets and Highways Code to pay the costs of the improvement in proportion to the benefits which the property receives from the improvement, notwithstanding the acquisition of the property by the state or any of its agencies, or by any county, city, municipality or other public or municipal corporation. Said notice shall be substantially as follows: NOTICE OF AWARD OF CONTRACT IN PROPOSED ASSESSMENT DISTRICT Pursuant to the requirements of Section 5248 of the Streets and Highways Code, notice is hereby given that a contract has been awarded by_________________________________ (Legislative body) to _____________________________________________ (Contractor) for_____________________________________________ (Nature of improvement) in___________________ District No. __________________ (Improvement or assessment) and relating to the following described real property: (The real property in the assessment district may be described by: a. Stating its exterior boundaries; or b. Giving a description thereof according to any official or recorded map; or c. Referring to a plat or map filed with the clerk of the legislative body, which shall indicate by a boundary line the extent of the territory included in the assessment district, and shall govern for all details as to the extent of the assessment district.) This shall constitute notice to all persons that all property within the boundaries of the proposed assessment district shall be assessed at the time of the confirmation of the assessment under Chapter 16 (commencing at Section 5360) of Part 3 of Division 7 of the Streets and Highways Code to pay the costs of the improvement in proportion to the benefits which said property receives from the improvement, notwithstanding the acquisition of any such property by the state or any of its agencies, or by any county, city, municipality or other public or municipal corporation. Reference is made to the minutes of the action taken by____________________________________________ (Legislative body) on file in my office for full particulars. Dated:___________________ ____________________ (Clerk of _________) 20421. The owners of three-fourths of the area of lands liable to be assessed, or their agents (who shall make oath that they are the owners or agents) are not required to present sealed proposals or bids, but may within 10 days after the first publication, or first posting if there is no publication, of the notice of the award of the contract, elect to take the work and enter into a written contract to do the whole work at the price at which the contract has been awarded. All work done under the written contract is subject to regulations which may be prescribed by ordinance of the legislative body. 20422. If the owners fail to elect to take the work, and to enter into a written contract therefor within 10 days, or to commence the work within 15 days after the date of the written contract, and to prosecute the work with diligence to completion, the superintendent of streets shall enter into a contract with the original bidder to whom the contract was awarded, and at the prices specified in his or her bid. 20423. If the original bidder neglects, fails or refuses, for 25 days after the first publication of the notice of the award of the contract, to enter into the contract, the legislative body, without further proceedings, shall again advertise for and receive proposals or bids, as in the first instance, and award the contract for the work to the then lowest regular bidder. 20424. If no bids are received in response to this second call for bids, the legislative body may again advertise for and receive bids under the same proceedings at any time and let the contract to the then lowest bidder, and such delay shall in no way affect the validity of any of the proceedings or assessments levied thereunder. 20425. The bids of all persons and the election of all owners who have previously failed to enter into the contract shall be rejected in any bidding or election subsequent to the first for the same work. 20426. All contractors, contracting owners included, shall, at the time of executing any contract for the work, execute a bond to the satisfaction and approval of the superintendent of streets and payable to the city, in a sum not less than 25 percent of the amount of the contract, conditioned upon the faithful performance of the contract. 20427. At any time prior to publication and posting notice inviting bids, the legislative body by resolution, may determine that in the event that the contractor, contracting owners included, does not complete the work within the time limit specified in the contract or within such further time as the legislative body shall have authorized, the contractor or contracting owners, as the case may be, shall pay to the city liquidated damages in the amount fixed by the legislative body in said resolution. The amount so fixed is valid as liquidated damages unless manifestly unreasonable under the circumstances existing at the time the contract was made. If such determination is made, the plans or specifications and the contract shall contain provisions in accordance therewith. Any moneys received by the city on account of such liquidated damages shall be applied as follows: (1) If received prior to confirmation of the assessment, such moneys shall be applied as a contribution against the assessment. (2) If received after the confirmation of the assessment, such moneys shall be applied in the manner provided in Section 5132.1 of the Streets and Highways Code for the disposition of excess acquisition funds. (3) If a contribution has theretofore been made or ordered by any agency, the legislative body may order a refund to the contributing agency in the proportion which said contribution bears to the total costs and expenses of the work. 20428. If the owner or contractor who may have taken any contract does not complete the work within the time limited in the contract, or within such further time as the legislative body may give him, or abandons or fails to proceed with the work, the legislative body may declare him in default and may either relet all or any portion of the work, or it may complete the work by direct purchase of labor and materials, and the owner or contractor shall pay to the city the entire cost of completing the work before the warrant is delivered to the owner or contractor. Notice of the declaration of default shall be given by the clerk of the legislative body to the owner or contractor by personal service or by mail. Upon receipt of such notice, the owner or contractor shall forthwith quit the work, and shall receive no payment for any work performed thereafter, unless ordered by the legislative body to resume the work. 20429. Before being entitled to a contract, the bidder to whom the award was made, or the owners who have elected to take the contract, must advance to the superintendent of streets, for payment by him, the cost of publication of the notices, resolutions, orders and matters required under the proceedings prescribed in this division, and of such other notice as may be deemed requisite by the legislative body, together with all other incidental expenses incurred up to the time of entering into the contract, including the estimated cost of any acquisition which the legislative body may determine to be payable at said time, but limited to the amount specified in the notice inviting bids pursuant to Section 5241 of the Streets and Highways Code. All other acquisition costs shall be payable at the time of the delivery to the contractor, or his agent, or assigns, of the warrant, assessment and diagram as provided in Section 5375 of the Streets and Highways Code. The legislative body may waive the payment in advance of all or any part of the incidental expenses and acquisition costs by resolution adopted not later than the time of ordering the work. The waiver must appear in the notice inviting bids. 20430. If the work is abandoned by the city before work is actually started or before any materials, supplies or equipment have been furnished or used, the incidental expenses incurred previous to such abandonment shall be paid out of the city treasury, but such expense for which the city is liable and which shall have been paid by it may be charged as incidental expenses against the district benefited in any new proceeding had or taken for any work which includes substantially the same work as that which was included in the abandoned proceedings. 20431. At any time within 10 days from the date of the first publication of the notice of award of the contract, any owner of, or other persons having any interest in, any lot or land liable to assessment, who claims that any of the previous acts or proceedings relating to the work are irregular, defective, erroneous or faulty, may file with the clerk a written notice specifying in what respect the said acts and proceedings are irregular, defective, erroneous or faulty. The notice shall state that it is made pursuant to this section. 20432. All objections to any act or proceeding occurring prior to the time within which such objections are permitted to be filed in relation to the work, not made in writing and in the manner and at the time specified, shall be waived, if the resolution of intention to do the work has been actually published, as provided in this division. 20433. If in the opinion of the legislative body the public interest will not be served by allowing the property owners to take the contract it may so provide in the resolution of intention. 20434. An action to determine the validity of proceedings relating to the work and the validity of any contract entered or to be entered into pursuant thereto may be brought by the legislative body or by the contractor pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure. For such purpose proceedings shall be deemed to be in existence upon the award of the contract. An action may be commenced and concluded by the legislative body before the publication of the notice inviting bids, and for such purpose the proceedings shall be deemed to be in existence upon the adoption of the resolution ordering the work. 20435. In such action, all findings, conclusions and determinations of the legislative body which conducted the proceedings shall be conclusive in the absence of actual fraud. 20436. If an action is commenced under the provisions of this chapter to determine the validity of any contract or proposed contract, and the contract has not been signed, the contractor shall not be obligated to sign the same until a judgment sustaining the validity of the proceedings and the proposed contract has become final. If the contractor has signed and executed the contract, he shall not be obligated to begin work until a judgment sustaining the validity of the proceedings and the contract has become final. If a judgment is entered holding the contract invalid, the contractor shall be discharged and relieved of all obligation under the contract, and he and his sureties shall be discharged and relieved of all obligation upon any bond required by law in connection with such contract. 20436.5. Notwithstanding any other provisions of law, the action authorized by this chapter shall not be brought by any person other than the legislative body or the contractor, nor shall the action be brought after the date fixed for the beginning of work. 20437. The superintendent of streets is hereby authorized in his official capacity to make all written contracts, and to receive all bonds authorized by this division and to do any other act, either expressly or impliedly required by this division, that pertains to the street department. 20438. He shall fix the time for the commencement, which shall not be more than 45 days from the date of the contract, and for the completion of the work under each contract entered into by him. The work shall be prosecuted with diligence from day to day thereafter to completion. 20439. He may extend the time fixed for completion of the work from time to time, under the direction of the legislative body. All applications for extensions of time, if in writing, must be filed in the office of the clerk before the expiration of the original time fixed in the contract, or of the time granted by extension, as the case may be. An extension of time may be granted by the legislative body after the expiration of the time originally fixed in the contract or as previously extended, and the extension so granted shall be deemed to commence and be effective from the date of such expiration. Any extension of time shall not release the sureties upon any bond required under this division. 20440. The work, in all cases, shall be done under the direction and to the satisfaction of the superintendent of streets and the materials used shall comply with the specifications and be to the satisfaction of the superintendent of streets and all contracts made therefor shall contain a provision to that effect unless the legislative body by resolution adopted within 10 days after the passage of the resolution ordering the work directs that the work shall be done under the direction of the engineer and the materials used shall comply with the specifications and be to the satisfaction of the engineer, instead of the superintendent of streets, and in such case the contract shall contain a provision to that effect. 20441. The legislative body also may by resolution adopted within 10 days after the passage of the resolution ordering the work provide and direct that the assessment thereafter to be made in the proceeding shall be made and signed by the engineer instead of by the superintendent of streets. 20442. The contract shall contain express notice that, in no case, except where it is otherwise provided by law or by charter will the city, or any officer thereof, be liable for any portion of the expense, nor for any delinquency of persons or property assessed. 20443. The legislative body may, by ordinance, prescribe general rules directing the superintendent of streets or the engineer, as the case may be, and the contractor as to the materials to be used, and the mode of executing the work, under all contracts thereafter made. The assessment and apportionment of the expenses of all such work shall be made by the superintendent of streets or the engineer, as the case may be, in the mode provided by this division. 20444. If any fiscal agent of the United States government contributes any money or materials to be used in the construction of any work provided for in this division, the requirements of the agency contributing such money or materials may be incorporated in the contract. 20445. If a contribution of labor or of labor and any portion of materials, supplies or equipment is to be made by any local, state or national agency or authority, the contract shall contain a provision that the legislative body may cancel the order for any undelivered materials, supplies or equipment by giving the contractor 24 hours notice of said cancellation, and require the contractor to accept the return of the unused materials and supplies, in which event the contractor will be entitled to compensation for only so much of the materials, supplies and equipment as has been used prior to the giving of such notice. The contract shall also contain a provision that no materials, supplies or equipment shall be delivered until a delivery permit signed by the superintendent of streets has been received by the contractor. 20446. "Changes" as used in this chapter shall include corrections, alterations, modifications, additions, omissions, increases or decreases. 20447. Unless the power to proceed shall have ceased at the conclusion of the hearing on the resolution of intention because of a majority protest, at any time before the confirmation of the assessment the legislative body may make changes in, to or from the boundaries of the proposed assessment district, the work proposed to be done, or any act, determination or provision made, or permitted to be made, by the legislative body under and pursuant to this division, which act, determination or provision does not affect the jurisdiction of the legislative body to order the work or improvement; provided, that after the award of the contract no such changes shall be made without the written consent of the contractor or the bidder to whom the contract shall have been awarded. The legislative body shall not change the boundaries to include any territory which will not, in its judgment, be benefited by the work. 20448. At the hearing on the resolution of intention, the legislative body, without further notice and hearing, may order any changes, as defined in Sections 20446 and 20447, except changes to include additional territory in the assessment district. Any changes to include additional territory and all changes after the hearing on the resolution of intention shall be ordered only as provided in this chapter. 20449. Before ordering any changes made, the legislative body shall adopt a resolution briefly describing the changes proposed to be made, stating the amount of the estimated increase or decrease in the cost of the work by reason of the proposed changes and giving notice of a time and place when and where any interested person having any objection to the changes proposed to be made may appear before the legislative body and show cause why the changes should not be ordered. The resolution shall also contain the name and telephone number of a local department or agency designated by the legislative body to answer inquiries regarding the hearing proceedings. Such notice shall be omitted if the hearing of objections is not required as provided hereunder. The resolution may describe the changes by referring to maps, plats, plans, profiles, detailed drawings, or specifications on file in the office of the clerk or engineer, which shall indicate the changes proposed to be made and which shall govern for all details thereof. The resolution shall be published pursuant to Section 6061 of the Government Code, at least 10 days prior to the date of the hearing. The hearing of objections shall not be required if the legislative body, when considering passage of the resolution, finds and determines by a four-fifth's vote of all members thereof, that all of the owners of lots or lands liable to be assessed, or their agents, who shall make oath that they are such agents, have signed and filed a petition waiving the hearing, with the clerk, on or before the fifth day prior to the day that the resolution is considered for passage, declaring that they do not have any objections to the proposed changes and requesting that the hearing of objections shall not be required. 20450. If a resolution required under Section 20449 proposes to include additional territory in the assessment district, at least 15 days prior to the hearing fixed therein, the clerk shall mail a copy of the resolution to all persons owning real property within the additional territory whose names and addresses appear on the last equalized assessment roll or as known to the clerk. This section shall not apply if the hearing of objections is not required pursuant to Section 20449. 20451. Written objections to the proposed changes may be filed with the clerk by any interested person at any time not later than the time set for the hearing. The legislative body shall hear and pass upon the objections at the time appointed, or at any time to which the hearing thereof may be adjourned, and its decision thereon shall be final and conclusive. If no written objections to the changes have been delivered to the clerk up to the hour set for hearing thereon, or if the objections have been heard and found by the legislative body to be insufficient or have been overruled or denied, immediately thereupon the legislative body by an affirmative vote of four-fifths of its members shall acquire jurisdiction to order the changes made. If the hearing of objections is not required, pursuant to Section 20449, immediately upon passage of the resolution the legislative body shall acquire jurisdiction to order the changes made. The decisions and determinations of the legislative body ordering the changes shall be final and conclusive upon all persons entitled to appeal thereupon to the legislative body. 20452. (a) No changes, except as provided in Section 20453, shall be made pursuant to this chapter that will increase the estimated assessable cost by more than 20 percent of the total estimated cost of the work as determined from either of the following: (1) The engineer's estimate, if the change is ordered prior to the award of the contract. (2) The successful bid, if the change is ordered after the award of the contract. (b) Any changes made pursuant to subdivision (a) shall also be subject to the limitations, if any, contained in any law applicable to the proceedings that imposes limitations upon the amount by which the estimated cost of the work or improvement may be increased by reason of those changes. 20453. Changes may exceed the 20-percent limitation in cost when the legislative body orders such changes. That portion of the added cost which exceeds the 20-percent limitation shall be paid by the city. 20454. Any changes made pursuant to this chapter shall not release or discharge the sureties upon any bond required under this division. 20455. (a) After construction has begun, the legislative body, or the superintendent of streets if authorized by the legislative body, may order changes in the work without the necessity of a hearing. The order shall be in writing, and the amount of any change 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). (b) 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). (c) The limitations on the cost of changes permitted by this section shall not apply where (1) the change is requested in writing by the owner of property subject to assessment for the improvement under construction and the nature of the change requested is such that the cost thereof will be assessed exclusively against the property of the person requesting the change, or (2) the change in the work will not adversely affect the benefiting property and any increase in the cost resulting from the changes will be paid by the city and will not be assessed against the property within the assessment district. 20456. Subject to the limitations of Section 20455, the contract may include a provision to determine a fair and equitable price for changes in the work, including, but not limited to, arbitration or cost plus a fixed fee. 20457. Every contractor, to whom is awarded any contract for street work under this division, shall at the time of signing and executing the contract, file with the superintendent of streets a good and sufficient bond, approved by the street superintendent in a sum not less than one-half of the total amount payable by the terms of the contract. 20458. The bond shall provide that the contractor or subcontractor shall pay for any materials, provisions, provender, or other supplies or use of implements or machinery used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind. 20459. Any person furnishing materials, provisions, provender or other supplies used in, upon, for or about the performance of the work contracted to be executed or performed, or any person renting or hiring teams or implements, or machinery for, or contributing to, the work to be done, or any person who performs work or labor upon the same, or any person who supplies both work and materials and whose claim has not been paid by the contractor or by the subcontractors of the contractor may, at any time within 30 days from the date of the recordation of the assessment file with the superintendent of streets a verified statement of his claim, together with a statement that the same, or some part thereof, has not been paid. 20460. Each person whose claim has not been paid by the contractor or his subcontractors, shall have a first lien upon and against the assessment, any partial assessment, any reassessment and any bonds which may be issued to represent any assessment or reassessment, which lien may be enforced by action brought within three months after the date of the filing of the verified statement in the superior court of the county in which such work is done. 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 him or to be due him 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 such claims, and such assignment shall have no binding force insofar as the rights of the claimants, or their assigns, are concerned. None of the provisions of Title 15 (commencing with Section 3082), Part 4, Division 3, of the Civil Code, shall be applicable to any assessment, partial assessment, reassessment, bonds, moneys or funds payable to the contractor or his assignee under this division or to any matter contained in this chapter. 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 3 (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. 20462. If any contractor disputes the correctness or validity of any claim filed pursuant to this chapter, the city or superintendent of streets may permit the contractor to deliver to the city or superintendent of streets a bond satisfactory to said city or superintendent of streets executed by the contractor and some corporation authorized to issue surety bonds in a penal sum equal to one and one-fourth times the amount of the claim. 20463. The bond shall guarantee the payment of any sum which the claimant may recover on the claim together with his costs of suit in the action, if he shall recover therein. If such bond is filed, the city, any officer thereof, or superintendent of streets shall not withhold any moneys or funds, assessment, partial assessment, any reassessment and any bonds which may be issued to represent any assessment or reassessment from the contractor on account of the claim. The sureties upon the bond shall be jointly and severally liable to the claimant with the sureties upon the contractor's original labor and material bond posted by the contractor. 20464. Suit against the sureties on the bond of the contractor filed pursuant to this chapter may be brought by any claimant, or his assigns, at any time after the claimant has ceased to perform labor or furnish materials or both and until the expiration of six months after the period in which verified claims may be filed. The filing of a verified claim shall not be a condition precedent to the maintenance of such action against the sureties on the bond and an action on the bond may be maintained separately from and without the filing of an action against the city or officer by whom the contract was awarded. Upon the trial of the action, the court shall award to the prevailing party a reasonable attorney's fee, to be taxed as costs, and to be included in the judgment therein rendered.
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