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Definition of "Open Public Street," Etc. – Powers of Supervisors – Use of General Law Procedures.
Improvement – Classes Included.
Preliminary Order of Expediency.
Order Declaring Intention to Recommend.
Different Kinds of Work May be Included in One Proceeding.
Official Grade – Proceedings on Change.
Declaration of Intention Shall Designate District Benefited.
Portion of Expense Paid Out of Treasury.
Order Declaring Intention-Proceedings.
Protests – Decision of Director.
Action on Protest – Recommendation – Diagram.
Recommendation That Work be Done.
Proceedings by Supervisors – Delay, Extent of – Work Ordered by Ordinance.
Abandonment of Proceedings – Renewal.
Description of Assessment District Required.
Plans and Specifications Prepared.
Notice Inviting Bids – Procedure.
Bids and Award – Procedure.
Owners' Election to do Work.
Irregularities – Protest – Failure to Protest.
Failure of Awardee to Enter Into Contract.
Contract – Approval and Execution.
Contracts in Triplicate.
Noncompletion in Time – Re-Award – Liability.
Material and Labor Claims.
Liens – Enforcement.
Assignment Not to Defeat Claims.
Disputed Claim – Bond to Release.
Suits Against Surety.
Certificate of Completion – Supervision of Director.
Method of Assessment – Work Done by Owner.
Warrant – Form – Recordation – Lien.
Objection to Assessment.
Notice of Appeal.
Hearing of Appeal.
Jurisdiction of Supervisors.
Delivery of Warrant, Etc.
Warrant Authorizes Collection, Return Of.
Suit on Warrant – Parties – Time Limitations.
Suit to Void Assessment – Time Limitation.
Release of Assessment – Lost Warrant – Effect of Records.
Subdivision of Property – Proportionate Assessment.
Delinquent Assessments – Notification – Entry on Tax Bill.
Assessments Payable in Installments – Interest.
Installment Payments – Form of Bonds.
Effect of Failure to Execute Bond.
Bonds and Coupons – Recordation.
Deed to Purchaser if no Redemption.
Redemption – Disposition of Funds.
Director to Keep Record of Bonds.
Nonexecution or Invalid Bond – Lien Rights.
Bond May be Executed after Expiration of Time.
Assessment Exceeding $200.
Reassessment – Circumstances Under Which Made.
Reassessment – Procedure.
Substitute for Director of Public Works or City Engineer.
Notices and Affidavits – Service – Publication.
Duty of Director Regarding Publication, Posting, Etc.
"Incidental Expenses," Definition of – Demands.
"Street" and "Places," Definitions of.
Postponements of Hearings not to Affect Jurisdiction – Notice.
Irregularities not to Invalidate Proceedings.
Pending Proceeding – Construction.
All streets, avenues, lanes, alleys, courts, places, public ways, property, rights of way, tidelands and submerged lands, in the City and County of San Francisco, now open or dedicated or which hereafter may be opened or dedicated to public use, and any property in said City and County for the immediate possession and use of which, as right of way required for public use, an order has or shall have been obtained pursuant to Sections 14 and 14½, Article I, California Constitution, and all tidelands and submerged lands which have been or hereafter may be granted by the State of California to said City and County, shall be deemed and held to be open public streets, avenues, lanes, alleys, courts, places, public ways, property or rights of way owned by said City and County, for the purposes of this Article, and the Board of Supervisors of said City and County is hereby empowered to establish and change the grades of all said ways, properties and rights of way and fix the width thereof, and is hereby invested with jurisdiction to order to be done therein, thereover or thereon, either singly or in any combination, pursuant to the proceedings hereafter described, or pursuant to general law, including the Improvement Act of 1911 and the Municipal Improvement Act of 1913, and any and all of the work or improvements mentioned in this Article or in such general laws, and to issue bonds as authorized hereby or by such general laws including Improvement Act of 1911 and Improvement Bond Act of 1915. The words, public ways, when used in this Article shall be deemed to include all the existing and future property of said City and County hereinabove mentioned. The word, Supervisors, when used in this Article, will refer to the Board of Supervisors of the City and County of San Francisco.
(Amended by Ord. 201-81, App. 4/24/81)
The Supervisors, pursuant to the procedure in this Article prescribed, are hereby empowered to order the whole or any portion or portions, in either length or width, of any one or more of said public ways to be improved by or have constructed therein, thereover or thereon either singly or in any combination, any of the following work:
(a) The grading or regrading, paving or repaving, planking or replanking, macadamizing or remacadamizing, graveling or regraveling, oiling or re-oiling, piling or repiling, capping or recapping, repairing or reconstruction thereof;
(b) The filling of excavations therein;
(c) The construction or reconstruction of sidewalks, crosswalks, steps, safety zones, platforms, seats, statuary, fountains, parks and parkways, culverts, bridges, curbs, gutters, tunnels, subways or viaducts;
(d) Sanitary sewers or instrumentalities of sanitation, together with the necessary outlets, cesspools, manholes, lamp holes, catch basins, flush tanks, septic tanks, disposal plants, connecting sewers, side sewers, ditches, drains, conduits, tunnels, channels and other appurtenances;
(e) Drains, tunnels, sewers, conduits, culverts and channels for drainage purposes, with necessary outlets, cesspools, manholes, lamp holes, catch basins, flush tanks, septic tanks, disposal plants, connecting sewers, side sewers, ditches, drains, conduits, channels and appurtenances;
(f) Viaducts, conduits, water pipes, water connections and appurtenances and subways;
(g) Poles, posts, wires, pipes, conduits, tunnels, lamps and other suitable or necessary appliances for the purpose of lighting said public ways or other property owned by said City and County;
(h) Pipes, hydrants and appliances for fire protection;
(i) Breakwaters, levees, bulkheads, retaining walls and walls of rock or other material to protect said public ways and other property in said City and County from overflow by water;
(j) Retaining walls, embankments and other structures necessary or suitable in connection with any of the work in this Section mentioned;
(k) The planting of trees, shrubs or any other ornamental vegetation;
(l) The installation of appliances for regulating traffic of pedestrians and vehicles and all other traffic, together with all requisite cables, wires, conduits and all other instrumentalities necessary or proper for the operation of such appliances;
(m) All other work necessary or suitable to improve the whole or any portion of said public ways;
(n) All other work auxiliary to any of the work above mentioned, which may be necessary or convenient for the performance of the same.
Exhibit Plan or Plans. When, in the judgment of the Director of Public Works of said City and County, public interest or convenience requires that any of the work mentioned in this Article be done, the expense of the whole or any part of which is to be assessed upon private property, and said Director deems the same expedient, he may by written order declare such expediency and briefly describe such work. Said Director shall cause to be preserved in the office of the Department of Public Works in permanent and appropriate form a written record of all acts pursuant to the procedure prescribed in this Article including all orders made by him hereunder, so that at all times during business hours there shall be open to the public a complete written record of all acts pursuant hereto. All orders of said Director pursuant hereto shall be identified by his signature. Upon making any such order of expediency, said Director shall cause to be prepared exhibit plan or plans, sufficient to give reasonable notice to the owners of the property liable to be assessed of the nature and extent of the proposed work.
(Amended by Ord. 321-69, App. 11/10/69)
At any time after the exhibit plan or plans for the contemplated work shall have been prepared, said Director may make an order declaring his intention to recommend to the Supervisors that they order to be done the work described in his order declaring the expediency thereof, or some part or modification of such work.
(a) Designation of Contemplated Work. Said order declaring his intention shall refer to the public way affected, by its lawful or official name, or the name by which it is commonly known. When the contemplated work is not upon a public street or thoroughfare, the order shall briefly describe the property or right of way on which the work is to be done. Said order will be sufficient if it states in general terms the kind of work contemplated, such as grading, paving, sewering or other improvements, gives in general the location of the proposed improvement and refers to the exhibit plan or plans therefor, for a description of the proposed work.
(b) Notice of Time of Hearing. Said order declaring the intention of said Director shall also contain a notice of the day, hour, and place when and where any and all persons having any objections to the proposed work may appear before said Director and show cause why said proposed work should not be done in accordance with said order declaring the intention of said Director. Said time shall not be less than 15 days or more than 30 days from the date of making said order of intention.
(Amended by Ord. 321-69, 11/10/69)
Said Director may include in one proceeding, under one order declaring his intention and in one contract, any of the different kinds of work mentioned in this Article on any number of public ways, contiguous or otherwise, and he may except therefrom any of such work already done.
The grade to which any work shall be done shall be such as may be shown on the exhibit plan or plans therefor, or it may be done on such a grade as may formally have been established by the Supervisors. If any official grade already has been established for any of the public ways proposed to be improved, it shall be lawful for the order of said Director declaring his intention, to provide that said work shall be done to new grades or grades different from those so established, and said order shall refer to exhibit plan or plans for the description of the grade at which the work is to be done. Any property owner whose property is to be assessed to pay the costs of the proposed work may at the time fixed in said order for hearing objections appear before said Director and object to the proposed grade or proposed modification of grade. A failure to make objection at such time shall be deemed to be a waiver of all objections to the proposed grade or proposed change of grade and shall operate as a bar to any claims for damages or any subsequent action looking to the prevention of the work or the recovery of damages on account of the performance of the work to such grade or changed grade. The provisions of this Section relative to grades are alternative and do not affect other provisions of law relative to change of grade.
(Amended by Ord. 321-69, App. 11/10/69)
Said Director shall make the expense of such work chargeable upon the district in his opinion benefited by such work. In his said order declaring his intention he shall describe such district and declare it to be the district which will be benefited by such work. Such district may be described in such order by stating the exterior boundaries thereof, or by giving a description thereof according to any official or recorded map or maps, or by referring to the maps or block books customarily used by the Assessor and Tax Collector for City and County assessment or tax collection purposes, or by referring to a plat or map which shall be on file in the office of said Director at the time of making the order declaring his intention; said last mentioned plat or map shall indicate by a boundary line the extent of the territory included in the proposed district, and, if referred to as hereinabove provided for, shall govern for all details as to the extent of such assessment district.
When two or more public ways, not contiguous or directly connected, are to be improved under the same proceeding, such number of districts may be provided for therein as shall be deemed by said Director to be expedient.
Said Director may, if he deem it advisable, and when there is an unexpended and unencumbered balance in any fund in the City and County Treasury which has been appropriated for such general purpose, and the written consent of the Chief Administrative Officer and Controller has been obtained, recommend to the Supervisors that not to exceed 2/3 of the expense of any of the work mentioned in this Article shall be paid out of said Treasury from such unexpended and unencumbered balance. Said Director shall state the fact of such intended recommendation in his order declaring his intention to recommend that the work be done, specifying in such order the amount so to be recommended for payment from the Treasury.
(a) Procedure. If the Supervisors follow the recommendation in whole or in part they shall appropriate for such purpose, in the ordinance ordering the work, the amount so recommended, or such part thereof as they shall consent to; provided, however, that no such appropriation shall be made until the provisions of Section 86 of the Charter of said City and County shall have been complied with. The amount so to be paid from the Treasury shall be payable at such time or times as shall be specified in the notice calling for sealed proposals for the work.
Whenever any of the expense of such work is so ordered to be paid out of the Treasury said Director in making up the assessment provided for in this Article, shall, unless the Supervisors in said ordinance otherwise provide, and except as otherwise provided in SubSection (d) of Section 215, of this Article, first deduct from the whole expense of such work the amount so ordered to be paid out of the Treasury, and shall assess the remainder of said expense upon the parcels of land liable to be assessed therefor in the manner provided in this Article.
(b) No Limitation. This Section shall not be construed as a limitation upon the power of the Supervisors to make an appropriation from the Treasury at any other time or in any other manner to pay not to exceed 2/3 of the cost of any work mentioned in this Article.
A copy of the order of said Director declaring his intention to recommend to the Supervisors that they order work to be done shall be published for one day in the official newspaper of said City and County. Such publication shall be made at least 10 days before the date fixed in said order for hearing thereon by said Director. A copy of said order shall be posted in the office of said Director at least 10 days before the date named in said order for action thereon by said Director.
(a) Notice Requirements. Said Director shall cause notices of the making of said order to be conspicuously posted along all the streets within the district chargeable for the expense of the work, at not more than 300 feet in distance apart, on each street so posted, but not less than three on each street in such district.
No proceeding shall ever be held invalid for failure to post any street or streets, as in this Section provided, if the provision of this Section has been substantially complied with. All posting hereby prescribed must be completed at least 10 days before the day set for hearing on said order of said Director declaring his intention.
Said notice shall be headed "Notice of Improvement" in letters of not less than one inch in height, and shall, in legible characters, state the fact of the adoption of such order of said Director declaring his intention, its date, and shall briefly describe the work proposed to be done, and shall refer to said order of said Director for further particulars. Said notices shall also set out the proposed district to be assessed to pay the expense of such work. Said district shall be described in the same manner in which it shall be described in the order of said Director declaring his intention as provided for in Section 191 of this Article. Said notices shall also state that it is proposed to assess the property within such district to pay the total or partial expense of such work, as the case may be. Said notices shall also state that all objections to the proposed work or district or otherwise must be filed, in writing, with said Director before the day fixed in his said order for action thereon, or must be made orally on said day, or on the day to which action on said order may be postponed. The day, hour and place fixed in said order for action thereon shall also be indicated in said notices.
(b) Mailing Requirements. The Secretary of the Department of Public Works shall cause to be mailed, at least 10 days prior to the hearing, postage prepaid, a copy of such order to each property owner whose name appears upon the assessment book of the City and County current at the time of the making of such order, and whose property is to be assessed for the proposed work or improvement. In case any lot, piece or parcel of land liable to be assessed for such work or improvement be assessed on such assessment book to "unknown owners," then no copy of such order need be mailed to the owner thereof.
The mailing of such copy of such order shall be to the address as the same appears upon the said assessment book as indicating the address of the owner of the property to be assessed for such work or improvement; and in case no such address appears upon said assessment book, then the mailing of such copy may be made either to an address designated in the last issue of the City directory having relation to a name corresponding to that of such owner, if such a name appear therein, or to an address obtainable from any other probably reliable source of information that may be conveniently available to the person performing such mailing to such owner may be made to the general delivery of the post office at the City and County.
The Supervisors, before ordering the contemplated work to be done or improvement made, may, if they deem it advisable, require an affidavit to be filed showing that the foregoing requirement for the mailing of such copies of the said order has been complied with. Such affidavit showing such mailing shall be conclusive of the facts therein recited.
Such requirement for such mailing of the copies of the order of intention shall not be deemed jurisdictional, and the failure of the said property owners, or any of them, to receive said copies of the said order, or any error or omission in relation to the said mailing of the same, shall in nowise affect the validity of the proceeding or prevent the Supervisors from acquiring jurisdiction to order the proposed work or improvement. Knowledge of the making of such order of intention acquired by any such owner, prior to the date of action thereon, in any manner other than by mailing to him a copy of such order, shall be deemed the equivalent of such mailing for all purposes to be subserved thereby.
At any time before the day fixed in said order of said Director for action thereon by said Director, any owner of, or person interested in, property liable to be assessed for the proposed work, or the duly authorized representative of such owner, or other person, in his behalf, may make written protest against the same or to the extent of the district to be assessed therefor, or both, or make any other protest with regard thereto. Such protest must be in writing, contain a description of the property in which each signer thereof is interested, sufficient to identify the same, set forth the nature of his interest therein, and delivered to the Department of Public Works of said City and County, the Secretary or a clerk of which shall endorse thereon the date of receipt thereof. No other protests or objections shall be considered by said Director, except oral protests made at the time at which said Director conducts the hearing mentioned in his said order. At the time set for hearing protests said Director may publicly postpone action on his said order from time to time, and all persons interested shall be deemed to have notice of such postponement and shall be governed thereby. The decision of said Director on all such protests shall be final and conclusive except in case of appeal to the Supervisors as in this Article hereinafter provided for.
If any protest against such proposed work or proposed district or any other protest be sustained by said Director, he shall not thereby be prevented from commencing proceedings anew hereunder which shall embrace the same work and/or the same district or any part or parts of either or both thereof; and new proceedings may be had the same as if all such prior proceedings, no matter how many times instituted, had never been commenced.
If no protests be made against such proposed district, or if all protests made against the same be overruled by said Director, said Director shall accompany his recommendation to the Supervisors that the proposed work be ordered, with a diagram on which shall be delineated each separate parcel of land with the limits of such assessment district, the approximate dimensions of each such parcel, and its relative location to the work proposed to be done. The correctness of such diagram shall be certified by the City Engineer. Instead of said diagram said Director may accompany his said recommendation to the Supervisors with a description of such proposed district.
If the protests to any proposed work or proposed district or other protests be all overruled, or if no protests be made, said Director shall, within five days from the date of his action upon his said order declaring his intention, make an order recommending to the Supervisors that they order such work to be done, and said Director shall cause a copy of said last mentioned order to be transmitted to the Supervisors.
(a) Appeal to Supervisors-Procedure. When any protests by persons having any interest in the property to be assessed have been overruled by said Director, an appeal may be taken separately by each such protestant to the Supervisors from the decision of such Director. Each such appeal shall be in writing, and shall be signed by each protestant participating therein with his place of residence set down opposite his signature and with a description of the property in which he is interested sufficient for identification of the same. Such appeal must be filed in the office of the Clerk of the Supervisors within 10 days from the date of said Director's order recommending to the Supervisors that the work be ordered done, and a copy of such appeal must be filed in the office of said Director of Public Works within two days after the date of filing such appeal with the Clerk of the Supervisors. No appeal shall be considered by the Supervisors unless the same be taken and perfected in the manner and within the time herein provided.
(b) Order Overruling Protests. When said Director has overruled all such protests, he shall within five days after the date of such action make his order reciting such action, and therein recommend to the Supervisors that they order the proposed work to be done and approve the proposed assessment district and transmit a copy of such order to the Supervisors.
(c) Hearing of Appeal-Notice. When an appeal or appeals shall have been taken as herein provided, the Supervisors shall fix a time for hearing the same. The Clerk of the Supervisors shall thereupon notify the persons filing such an appeal or appeals of the time fixed for the hearing by mailing a notice thereof, postage prepaid, addressed to each of said persons at his address as given in such notice of Appeal. The affidavit of said Clerk of said mailing shall be conclusive of the fact.
At the time so fixed for hearing the appeal, the Supervisors shall hear and pass upon the same. Such hearing may be continued from time to time and all persons interested shall be deemed to have notice thereof and shall be governed thereby.
The Supervisors, if they do not deny such appeal, may by resolution delay further proceedings in relation to the proposed work for not more than one year from the date of the adoption of such resolution. Upon petition of the appellants the Supervisors may continue with the proceedings from time to time during said period of delay.
Upon expiration of the period of delay so fixed by the Supervisors, said Director may again recommend to the Supervisors that the proposed work be done and the proposed district be confirmed, and thereupon the Supervisors, after notice to the appellants as provided for in Section 196 of this Article, shall order the work to be done and the boundaries of the proposed district confirmed or may declare an abandonment of all proceedings theretofore had in the manner.
The ordering of any proposed work and confirmation of any proposed district shall be by ordinance.
Said Director, at any stage of the proceedings for any proposed work, prior to action by the Supervisors upon his recommendation that they order the same done, may by order abandon any or all proceedings theretofore had in relation to such proposed work; and said Director may commence said proceedings anew and continue the same from any part of said proceedings not so abandoned. If said Director abandons any or all proceedings after his making an order of recommendation and before action thereon by the Supervisors, he shall cause notice of such fact forthwith to be transmitted to the Supervisors, and the Supervisors shall take no action upon the recommendation in such case.
If the Supervisors pass an ordinance ordering any proposed work pursuant to this Article, they may upon recommendation of said Director repeal such ordinance ordering work.
Said Director, from time to time after he has abandoned any proceedings for any proposed work pursuant to this Article, may institute and continue proceedings hereunder for the work theretofore proposed and abandoned, or for such work or modified work as he may determine the public interest or convenience requires, all in accordance with the procedure prescribed in this Article.
The ordinance ordering the work to be done and approving the assessment district shall contain a description of the assessment district similar to that contained in said order of said Director declaring his intention. In all other ordinances, resolutions, notices, orders and determinations, subsequent to said order of said Director declaring his intention and subsequent to the notices of hearing thereon, except the notices of recordation in the Department of Public Works of the assessment hereinafter provided for, it shall not be necessary to describe the assessment district, but it shall be sufficient to refer to said order of said Director declaring his intention for a description of the work and a description of the assessment district.
After the Supervisors, pursuant hereto, have passed an ordinance ordering work to be done, said Director shall cause specifications, or plans and specifications be prepared for the proposed work, as shown on the exhibit plan or plans.
(Added by Ord. 321-69, App. 11/10/69)
After the specifications, or plans and specifications have been prepared, said Director shall cause a notice to be published for two consecutive days in the official newspaper and posted conspicuously in his office for a period of not less than 10 days, inviting sealed proposals for the contemplated work.
(a) Time and Place for Receiving Bids. Said notice shall invite sealed proposals for the contemplated work to be delivered to said Director at his office, or at a place to be designated by him in said notice, on a day and during an hour to be specified therein, which shall be not less than 10 days after the date of last publication of said notice as hereinabove provided and after the first day of said posting of said notice. Said notice shall contain a description of the proposed work substantially similar to that contained in the order of said Director declaring his intention to recommend that the Supervisors order the same to be done. Said notice shall also contain a reservation of the right to reject any and all bids, and shall specify the period of time within which the work is to be completed after the date of execution of the contract therefor and the amount of the bond to be given by the awardee of the contract for faithful performance, public liability, and property damage of the same.
Reference to the specifications, or plans and specifications for the proposed work shall also be incorporated in and notice for further information concerning the details of the proposed work.
(Amended by Ord. 321-69, App. 11/10/69)
All proposals shall be made upon printed forms to be prepared by said Director and furnished gratuitously upon application.
Every proposal made shall be accompanied by a corporate surety bond or a check certified by a responsible bank, payable to the order of said City and County for an amount not less than 10 per centum of the aggregate of the proposal, and no proposal shall be considered unless accompanied by such bond or check.
No person, firm or corporation shall make, file or be interested in more than one bid for the same improvement. If on the opening of bids more than one bid appears in which the same person, firm or corporation is interested, all said last mentioned bids shall be rejected.
On the day and during the hour specified in said notice inviting sealed proposals, said Director shall be in his office, or in the place designated by him in said notice, and all bids shall be delivered to him within the hour named in said notice. No bid not so delivered to him shall be considered. Each bid as it shall be received shall be numbered and marked "Filed" by said Director and authenticated by his signature. At the expiration of the hour stated in said notice, said Director shall publicly open, examine and declare the same and an abstract of each bid shall be recorded in a public register to be kept by said Director for such purpose. Said Director shall immediately compare the bids with the record so made, and shall thereupon or at such other time not exceeding 20 days thereafter award the contract for the work to the lowest reliable and responsible bidder, except as otherwise herein provided. Notice of such award shall be caused to be posted for five days by said Director in some conspicuous place in the office of the Department of Public Works and such notice shall be published once in the official newspaper. Said Director may reject any and all bids and may reject the bid of any bidder who has been delinquent or unfaithful in any former contract with said City and County and must reject all bids other than the bid of the lowest reliable and responsible bidder; and, on accepting said lowest bid, he shall thereupon return to the proper parties the bonds or checks corresponding to the bids so rejected. If all the bids are rejected said Director shall return all the bonds or checks to the proper parties and may again invite sealed proposals for the proposed work as in the first instance.
The bond or check accompanying the accepted bid shall be held by said Director until the contract for doing said work as hereinafter provided has been entered into, either by said lowest bidder, or by owners as hereinafter provided, whereupon said corporate surety bond or certified check shall be returned to said bidder. If said bidder fails, neglects or refuses to enter into a contract to perform the work as in this ordinance hereinafter provided then the corporate surety bond or certified check accompanying his bid and the amount therein mentioned shall be declared by order of said Director to be forfeited to said City and County, and the proceeds thereof shall be collected by the Treasurer and paid into the treasury of said City and County and credited to the item or items of the annual appropriation for the improvement of streets and sewers, unless said Director, or the Supervisors on appeal, duly remit such forfeiture.
The owners of at least ¾ of the assessable area of the assessment district shall not be required to present sealed proposals, but may upon making an oath that they are such owners, within 10 days after the publication of the notice of award, elect to enter into a written contract with said director to do the whole work specified in said award at the price or prices at which the same has been awarded.
Should such owners not enter into such a contract for said work within said time the awardee to whom the contract has been awarded shall enter into a contract for said work within seven days after the expiration of the time within which said owners might have entered into a contract for the same.
At any time within five days from the date of the publication of the notice of award hereunder of a contract for work, any owner of, any other person having any interest in, any parcel of land liable to be assessed for such work, who claims that any of the previous acts or proceedings relating to said work are irregular, defective, erroneous or faulty, may file in the office of said Director of Public Works a written notice specifying in what respect or respects said acts or said proceedings are irregular, defective, erroneous or faulty. Said notice shall state that it is made pursuant to this Section, and shall contain the address of the person filing the same, and a description of the property owned by or in which he is interested sufficient to identify the same.
All objections to any act or proceeding occurring prior to the time within such objections are permitted to be filed in relation to said work, not made in writing and in the manner and at the time aforesaid, shall be deemed waived.
If the original awardee fails or refuses, for 17 days after the publication of the notice of award, to enter into the contract, when the same in due form has been presented to him for execution by said Director, then said Director, without further proceedings shall again advertise for and receive bids, as in the first instance, and award the contract for the work to the then lowest reliable and responsible bidder. Should no bids be received in response to such second call, said Director may again advertise for and receive bids under the same proceedings at any time within six months from the time set for the first reception of bids, and let the contract to the then lowest reliable and responsible bidder, and such delay shall in no way affect the validity of any of the proceedings or assessments levied thereunder. The bids of all persons and the election of all owners aforesaid, who have failed to enter into a contract as in this Article provided, shall be rejected in or upon any bidding subsequent to the first bidding for such work.
Every contract in this Article referred to shall be executed by said Director on behalf of said City and County. The Chief Administrative Officer of said City and County shall also approve by his signature every such contract which involves the expenditure of over $2,000. Whenever in any such contract the City and County is obligated to pay any portion of the contract price, the Controller also shall approve such contract by his signature.
Every contract entered into by said Director, pursuant to the provisions of this Article, shall be signed by the other contracting party. Every such contract shall be signed in triplicate by all parties. One of said triplicates, together with the specifications or plans and specifications, as the case may be, of the work to be done under such contract, shall be kept in the office of said Director; another of said triplicates, with such plans and specifications, shall be delivered to the contractor or contracting owners referred to in Section 202 of this Article, and the third triplicate shall be delivered to the Controller.
(a) Surety Bond or Certified Check Required. At the time of execution of the contract by the contractor, or said contracting owners, he or they, as the case may be, shall execute to said City and County, and deliver with the contract, a bond in a sum named in the notice calling for bids, executed by a surety company authorized to do business in this state, or they shall deposit with said Director a certified check upon some solvent bank for said amount, all for the faithful performance of the contract.
The contract shall specify the time within which the work shall be completed, which shall be the same as that specified in the notice inviting bids therefor. Said Director may by order grant extensions of time within which to complete the work.
(b) Extension of Time and Liquidated Damages. An extension of time may be granted after the expiration of the time fixed in the contract, or as extended as herein provided, and the extension so granted shall be deemed to commence and be effective from the date of such expiration.
Failure of said Director to grant an extension or extensions of time as herein provided for shall not affect the rights of the contractor beyond a reasonable deduction from the contract price for any damage sustained by reason of delay in the performance of the contract.
No such extension or extensions of time granted by said Director for completion of the work shall operate to relieve any surety or sureties on any bond from the liabilities assumed in or by such bond; nor shall any assignment of the contract qualify or change any such liability.
The contract shall provide for the payment of agreed liquidated damages by the reduction in the amount of assessment to the property owners within the assessment district for every calendar day after the expiration of the date fixed in the contract for completion of the work, or as extended as herein provided, during which such work shall not have been completed.
(Amended by Ord. 171-62, App. 6/27/62)
If the owners or the awardee, who have entered into such a contract, do not complete the same within the time limited in the contract, or such extended time as in this Article provided for, said Director may re-award the whole or the unfinished portion of said work, as the case may be, in accordance with the procedure in this Article prescribed for inviting proposals and awarding the contract. In such event, said owners or awardee shall be debarred from again entering into a contract to do said work or the unfinished portion thereof.
If said owners or the awardee fail or refuse to complete the contract entered into, and said Director re-awards the whole work or the incomplete portion thereof at a price in the aggregate exceeding that at which the work was originally awarded, the bond for faithful performance of the contract, in this Article hereinbefore provided for, shall be liable for any excess, resulting from such failure or refusal, of any assessment levied against any parcel of land for the expense of the work over what it would have been, had the original contract been performed; provided the original contract has not been canceled by ordinance of the Supervisors.
Every contractor, including contracting owners, to whom is awarded a contract for street work hereunder, shall upon the execution of such contract file with said Director a bond, approved by him, in a sum not less than ½ of the total amount payable under the contract; such bond shall be executed by an authorized corporate surety able to justify in the manner provided by law; such bond must provide that if the contractor, or his, its or their sub-contractors, fail to pay for any materials or provisions, or the reasonable rental value of items, implements or machinery used in, upon, for or about the performance of the work contracted to be done, or for any work or labor of any kind done directly thereon or therefor, that the surety will pay the same, to an amount not exceeding the sum specified in such bond.
Any laborer, materialman, person, company or corporation furnishing any of the items mentioned in Section 208 of this Article used in, upon, for or about, or contributing to, the performance of the work contracted to be done, and whose claim has not been paid may, at any time within 10 days from the date of recordation of the assessment in the Department of Public Works, file in said department a verified statement of his, its or their claim, together with a statement that the same or some part thereof has not been paid.
Every person and corporation entitled to the benefit of Sections 208 and 209 of this Article shall severally have a first lien against the assessment, any partial assessment, any reassessment and any bonds issued to represent any such assessment or reassessment, which lien may be enforced in the Superior Court. in and for said City and County, according to the custom and practice of such court. Such action must be commenced within 30 days from the date of filing such verified statement.
No assignment by the contractor of the whole or any part of the money or of such assessment, partial assessment, reassessment and/or bonds due or to become due him under the contract, or for extras in connection therewith, whether made before or after such verified claim is filed, shall be held to take priority over claims filed under Sections 209 and 210, inclusive, of this Article, and all such assignments shall have no effect in so far as claims hereunder are concerned.
If any person or corporation against whom any such claim is filed shall dispute its correctness or validity said Director may permit the contractor to whom the contract was awarded by said Director, or his assignee, to deliver to him a bond executed by a corporation authorized to issue surety bonds in the State of California, in a penal sum equal to 1¼ times the amount of such claim; said bond shall guarantee the payment of whatever sum such claimant may recover in an action on said claim. Upon the filing of such a bond, said Director may release such moneys, assessments, partial assessments, reassessments and/or bonds to which such contractor, or his assignees, otherwise shall be entitled. The sureties upon such last mentioned bond shall be jointly and severally liable, with the sureties upon the bond mentioned in Section 208 of this Article to such claimant.
Suits against the surety or sureties on the bonds mentioned in Sections 208 to 212, inclusive, of this Article 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 150 days after the period within which verified claims may be filed as in this Article provided. The filing of such a verified claim shall not be a condition precedent to the maintenance of an action against the surety or sureties on the bond mentioned in Section 208 of this Article and an action on said bond may be maintained independently of any other action whatsoever. Upon the trial of any action mentioned in Sections 208 to 213, inclusive, of this Article the court shall award to the prevailing party a reasonable attorney's fee to be taxed as costs.
All work in this Article provided for must be done under the supervision and to the satisfaction of said Director; and said Director shall require all materials used in such work to be in accordance with the specifications therefor; and all contracts provided for in this Article must contain a provision to the effect hereinbefore in this Section set forth, and also a provision to the effect that in no case, except where it is otherwise provided in this Article, or the Charter of said City and County, will said City and County or any department or official thereof, be liable for any portion of the expense of said work, or for any damages resulting in the course of the performance thereof, or for any delinquency of persons or of property assessed.
When any such work shall have been completed to the satisfaction of said Director, he shall so declare by certificate, which shall be made a permanent part of the records of his office, and thereupon he shall cause to be delivered to the contractor a duplicate of such certificate.
When any work in, upon or over any public way shall have been completed according to contract, as herein provided for, said Director shall make an assessment to cover the sum due for the work performed and specified in said contract (including all incidental expenses), in conformity with the provisions of this Article. The assessment shall briefly refer to the contract, the work contracted for and performed, and shall show the amount to be paid therefor, together with any incidental expenses, the amount of each assessment, the name of the owner of each lot (if known to said Director, and if not known the word "unknown" shall be written opposite the number of the lot and the amount assessed against it), and the number of each lot assessed; and said assessment shall have attached thereto a diagram exhibiting the public ways or public way crossings on, in or over which the work has been done, and showing the relative location of each distinct lot to the work done, numbered to correspond with the numbers in the assessment. A mistake in the name of the owner shall not invalidate any assessment.
All incidental expenses incurred in connection with the work must be paid to said Director before the issuance of the warrant, assessment and diagram herein provided for.
(a) Assessment on Frontage Basis in Certain Cases. Where any work mentioned in this Article (manholes, lampholes, cesspools, culverts, crosswalks, piling and capping excepted) is done on either or both sides of the center line of any street for one block or less and further work of the same class opposite to the work already done is ordered to be done to complete the unimproved portion of said street, the assessment to cover the total expense of said work so ordered shall be made upon the lots or portions of lots only fronting the portions of the work so ordered.
Where the sidewalk area of any portion of a street has been officially abolished in whole or reduced in part, and paving or other improvement of the roadway of such street has been extended to the inner line of the said area so abolished, the lot or lots fronting such abolished or reduced sidewalk area shall be additionally assessable for the costs and expenses of such extended paving or other improvement.
(b) Assessment According to Estimate of Benefits. Immediately after the contractor has fulfilled his contract to the satisfaction of said Director, the said Director shall proceed to estimate upon the lands, lots or portions of lots within said assessment district, as shown by the diagram provided for in Section 195 of this Article, the benefits arising from such work and to be received by each such lot, portion of such lot, piece or subdivision of land, and shall thereupon assess upon and against said lands in said assessment district the total amount of the expense of such work, together with all incidental expenses, and in so doing shall assess said total sum upon the pieces, parcels, lots or portions of lots, and subdivisions of land, in said district, benefited by said work, to-wit: Upon each respectively in proportion to the benefits received by each of said several lots, portions of lots or subdivisions of land.
(c) Where Portion of Street Occupied by Tracks. The expense of all work on such portion of any street required by law to be kept in order by any person, company or corporation having railroad tracks thereon, shall be borne and paid for by such person, company or corporation, and shall be included in the assessment in this Article hereinbefore provided for. The provisions of this Subsection shall be applicable to any street whereon railroad tracks have been constructed and are being maintained by the City and County; and the City and County shall pay for all street work which, if such tracks were owned by a private person or corporation, would have to be paid for by such private person or corporation.
(d) Public Lands. Whenever any parcel of land belonging to the United States, the State of California, said City and County, or any public agent, mandatory, board or institution, and being in use in the performance of a public function, shall be included within the district declared by said Director, in his order declaring his intention, to be the district to be assessed to pay the expense of such work, said Director may, in his said order, declare that such parcels of land, or any of them, shall be omitted from the assessment thereafter to be made to cover the expense of such work. In the event of such declaration of omission, then the total expense of all such work shall be assessed on the remaining lots lying within such assessment district, without regard to such omitted parcels of land. If, however, said Director shall, in his said order declaring his intention, declare that said parcels of land so owned as aforesaid, or any of them, shall be included in the assessment, or if no declaration be made respecting such parcels of land, or any of them, then the respective sums which shall be assessed against said parcels of land so owned and used shall be paid out of funds in the treasury of said City and County theretofore appropriated for the purpose of street improvement; provided, however, that such assessments shall not be payable out of funds in said treasury, unless the Chief Administrative Officer and Controller of said City and County, in writing, consent thereto before said Director shall make his said order declaring his intention; provided further that all of the provisions of Section 192 of this Article must be complied with; and provided further that any such sum or sums so assessed against parcels of land so owned and used shall not be payable out of such City and County funds, when such sum or sums are paid by the owners of or bodies controlling such parcels of land.
(e) Owners May Perform Grading. Any owner or owners of lots or lands fronting upon any street, the width and grade of which have been established by the Supervisors, may perform at his or their own expense (after obtaining permission from the Director of Public Works so to do but before said Director has made his order of intention to recommend grading inclusive of this) any grading upon said street, not beyond its grade as then established and thereupon may procure, at his or their own expense, a certificate from the City Engineer setting forth the number of cubic yards of cutting and filling made by him or them in said grading, and the proportions performed by each owner; provided, however, that, as to each lot, but one such certificate shall be issued for such grading; and thereafter such owner may file said certificate in the office of said Department of Public Works. Said certificate shall be recorded in a properly indexed book kept for that purpose in the office of said Department of Public Works. Whenever thereafter the Supervisors order the grading of said street, or any portion thereof, on which any grading certified as aforesaid has been done, the bids and contract must express the price by the cubic yard for grading, and such owner or owners, and his or their successors in interest, shall be entitled to credit on the assessment upon his or their lots and lands fronting on said street for grading thereof, to the amount of the cubic yards of cutting and filling set forth in his or their said certificate, at the prices named in the contract for said grading; or, if the grade meanwhile has been legally changed, only for so much of said certified work as would be required for grading to the grade as changed. Such owner or owners shall not be entitled to any credit that may be in excess of the assessment for grading upon the lots and lands owned by him or them, and proportionately assessed for the whole of said grading. Said Director shall include in the assessment for the whole of said grading upon the same grade the number of cubic yards of grading set forth in any and all certificates so recorded in said office, or for the whole of said grading to the changed grade, so much of said certified work as would be required for grading thereto, and shall enter corresponding credits, deducting the same as payments upon the amounts assessed against the lot and lands owned respectively by said certified owners and their successors in interest; but said Director shall not credit any sums in excess of the assessments for the whole of the grading, which are made upon any lots and lands fronting upon said street and belonging to any such certified owners or their successors in interest.
(f) Credit for Work Other Than Grading. When any owner or owners of any lots and lands fronting on any street shall have heretofore done, or shall hereafter do any work, except grading, such street, in front of any block at his or their expense, and the Supervisors shall subsequently order any work to be done of the same class in front of the same block the work so done at the expense of such owner or owners shall be excepted from the order ordering the work to be done; but the work so done at the expense of such owner or owners shall be upon the official grade, and in condition satisfactory to the Director of Public Works at the time said order is passed.
To said assessment shall be attached a warrant which shall be signed by said Director and countersigned by the acting Secretary of said Department of Public Works. Said warrant shall be substantially in the following form:
By virtue hereof the Department of Public Works of the City and County of San Francisco, by the authority vested in it, does authorize (name of contractor) his (or their) agents or assigns, to demand, and receive the several assessments upon the assessment diagram hereto attached, and this shall be his (or their) warrant for the same.
(Name of said Director), Director of Public Works.
Countersigned by (name of acting Secretary of Department of Public Works), Acting Secretary of the Department of Public Works.
Said warrant, assessment and diagram shall be recorded in both the office of said Department of Public Works and in the office of the Recorder of said City and County. When so recorded the several amounts assessed shall be and remain a lien upon the parcels of land assessed, respectively, and such lien shall so continue until it be fully paid and discharged of record. Such lien:
(a) Shall be subordinate to all special assessment liens previously imposed upon the same property, but shall have priority over all special assessment liens which may thereafter be created against said property;
(b) Shall be coequal to and independent of the lien for general ad valorem real property taxes;
(c) Shall be prior and superior to all other liens, claims and encumbrances except (i) easements constituting servitudes upon or burdens to said lands, (ii) water rights the record title to which is held separately from the title to said lands, and (iii) restrictions of record; and
(d) Shall not be subject to extinguishment by the sale of the property on account of the nonpayment of any taxes, except sale conducted to concurrently satisfy both unpaid ad valorem real property taxes and the unpaid special assessment.
(a) Bond for Installment Payments. When a property owner, as in this Article provided, gives a bond, in order that said assessment may be paid in installments, the unpaid balance of such bond shall continue to be a lien upon the parcel of land against which such bond shall be given until the expiration of two years after the date when the last installment payable under said bond shall become due. From the date of recordation of any warrant, assessment and diagram pursuant to the provisions, of this Article, all persons interested in such assessment and in all property against which it shall be a lien shall be deemed to have notice of the contents of such warrant, assessment and diagram.
(Amended by Ord. 91-81, App. 2/20/81)
No objection to the correctness or legality of the assessment or other act, determination or proceeding of said Director or of any board or officer, or otherwise, up to and including said recordation of the warrant, assessment and diagram, whether such objection appear upon the face of the warrant, assessment and diagram, or not, shall be made except by appeal to the Supervisors as in this Section hereinafter provided for.
Upon the recordation in the office of the Department of Public Works of an assessment, diagram and warrant, as in this Article provided for, said Director shall cause notice of the recordation of the assessment, diagram and warrant to be given. Said notice shall also specify the time and place, to be fixed by said Director, when and where the protests of all persons interested in the work done or in the assessment, diagram or warrant for payment of the cost of the same, or in any property affected thereby, will be heard by the Supervisors, and shall also state that said assessment, diagram and warrant will be open to public inspection at the office of the Department of Public Works during business hours. Such notice shall be posted in the office of said Department of Public Works for not less than 10 days before the time of hearing therein mentioned, and shall be published once in the official newspaper of said City and County not less than 10 days before the time fixed for such hearing. Such notice shall also be posted in the manner provided for in Section 193 of this Article at least 10 days before such hearing. All of the provisions of Section 193 shall be applicable to such posting. In said notice, reference shall be made to the order of said Director declaring his intention, for a description of the work done and no other description thereof shall be necessary. Said notice shall also contain the description of the assessment district contained in said order of said Director.
The owners, whether named in the assessment, diagram or warrant, or not, the contractor or his assigns, and all other persons interested in the work done, or in the assessment, diagram or warrant, or in any property affected thereby, feeling aggrieved by any act or determination of the said Director or of any board or officer in relation thereto, or who claim that the work has not been performed according to the contract in a good and substantial manner, or having or making any objection whatsoever to the correctness, fairness, reasonableness or legality of, or any other objection whatsoever to, the assessment, diagram or warrant or other act, determination or proceeding of the said Director or of any board or officer, or having or making any other objection whatsoever, shall, not later than the day before the day fixed for such hearing by the Supervisors, file in the office of the Clerk of said Supervisors notice of appeal and a copy thereof in the office of the Department of Public Works. Each such notice of appeal shall contain the name and address of the appellant, and, if he be interested in any property affected by the assessment, a description of the particular property in which he is interested, together with a statement of the nature of his interest therein. Each such notice shall also state the grounds upon which his grievance, claim or objection is based, in sufficient detail to make clear the nature of his grievance, claim or objection. If no appeal be filed with the Supervisors within the time and in the manner in this Section provided, then no hearing need be had by said Supervisors as in this Article provided for.
If, however, appeal be made as in this Article provided for, the Supervisors, at the time and place specified in said notice, shall consider all the appeals, protests, grievances, claims and objections filed in the manner and within the time in this Article specified, and shall hear all evidence, statements and argument offered in support thereof. Such hearing may be postponed by said Supervisors from time to time, and all persons shall be deemed to have notice of all such postponements and shall be governed thereby.
Upon such appeal the Supervisors may remedy and correct any error or informality in the proceedings and revise and correct any of the acts or determinations of said Director relative to said work; may confirm, amend, set aside, alter, modify or correct the assessment in such a manner as to them shall seem just, and may require the work to be completed according to their directions, and may instruct and direct said Director to correct the warrant, assessment or diagram in any particular, or to make and issue a new warrant, assessment and diagram to conform to their decisions in relation thereto, at their option.
All the decisions and determinations of the Supervisors, upon notice and hearing as in this Article provided for, shall be final and conclusive upon all persons as to all errors, informalities and irregularities whether they do or do not appear upon the face of the warrant, assessment or diagram.
No assessment, warrant or diagram, after the issuance of the same, and no proceedings prior thereto, shall be held invalid by any court, or otherwise, for any error, informality, or other defect in the same, when notice of the recordation in the office of the Department of Public Works of the assessment, diagram and warrant, and of hearing with regard thereto, has been actually published as provided in Sections 217 to 220, inclusive, of this Article.
When the time within which to appeal to the Supervisors, as in this Article provided for, has expired, said warrant, assessment and diagram shall be delivered to the contractor, or his agent or assigns, on demand, provided no appeal has been filed as in this Article provided for, but not until after the payment to said Director of the incidental expenses not previously paid. If an appeal to the Supervisors be taken within the time and in the manner in this Article provided for, then, upon the confirmation of a warrant, assessment and diagram, in connection with the work done, by the Supervisors, the same shall be delivered to the contractor, or his agents or assigns, on demand, after payment of the incidental expenses as provided in this Article. By virtue of said warrant so delivered said contractor, or his agents or assigns, shall be authorized to demand and receive the amounts of the several assessments made to cover the sum due for the work specified in the contract and assessment.
The warrant, after its delivery to the contractor or his assigns, shall constitute full authority to the contractor, his agent or assigns, to collect the said assessments, and they shall be free to make demands upon the owners by virtue of said warrant and to receive payment of said assessments and give receipts therefor. The warrant shall be returned to the Department of Public Works after its delivery to the contractor, or his assigns, with the written statement of all payments received upon the assessment, signed by the contractor, or his assigns, or some person on his or their behalf, and stating whether any of the assessment remains unpaid in whole or in part and the amount thereof. If the assessment is payable in installments as provided in Sections 225 to 236, inclusive, of this Article, then the fact that a bond has been given for such assessment shall be stated if such shall have been given. Thereupon the said Director shall cause the return so made to be recorded with the record of the warrant and assessment.
At any time after 35 days from the date of the warrant, or if an appeal has been taken to the Supervisors, then at any time after five days from the decision of the Supervisors in such appeal, or after the return of a warrant which has been corrected, altered or modified as herein provided, but not less than 35 days after the date of such last mentioned warrant, the contractor or his assignee may sue the owners of, and all other persons having an interest in or encumbrance upon, the land, lots or portions thereof, affected by the assessment, and recover the amount of any assessment remaining unpaid, with interest thereon at the rate set by the Director from the date of the assessment until paid.
(a) Amount of Recovery. In all cases of recovery under the provisions of this Article the plaintiff shall recover an amount equal to the unpaid assessment and accrued interest. The court may also award costs and reasonable attorney's fees. The court may award attorney's fee in addition to all taxable costs, notwithstanding the settlement or tender of settlement of the suit before recovery. The plaintiff shall also be entitled to recover as a cost of suit the expense of a title search or report, and all other necessary expenses of suit.
Said warrant, assessment and diagram shall be held prima facie evidence of the regularity and correctness of the assessment and of the prior proceedings and acts of said Director and Supervisors, and otherwise, upon which said warrant, assessment and diagram are based, and like evidence of the right of the plaintiff to recover the action.
(b) Evidence-Judgment-Enforcement. The court in which said suit shall be commenced shall have power to adjudge and decree a lien against the lots of land assessed, and to order them to be sold on execution, as in other cases of the sale of real estate by the process of such court, and with like right of redemption within one year of such sale, but not later. In all actions brought to enforce the lien of any assessment made pursuant to the provisions of this Article the proceedings therein shall be governed and regulated by the provisions of this Article and, when not in conflict with this Article, by the Codes of this State.
(Amended by Ord. 368-82, App. 7/30/82)
No suit or proceeding to set aside, avoid, annul or correct any assessment or reassessment, or to review any of the proceedings in connection therewith, or to question the validity thereof, or to enjoin the collection thereof, or the issuance of bonds representing, or secured by the same, shall be maintained unless it be commenced within 30 days after the recording of the warrant, diagram, and assessment or reassessment in the Department of Public Works, and thereafter all persons shall be barred from commencing any such action or from interposing as a defense any asserted invalidity of any such assessment or of bonds issued thereon or of any such reassessment or of bonds issued thereon. No proceedings had under this Article shall ever be held invalid on the ground that the public way, or any portion thereof, in, over or upon which the work or improvement, or any part thereof, is or shall be done, has not been, or shall not have been, lawfully dedicated or acquired, provided the same shall be lawfully dedicated or acquired, or an order of immediate possession and use thereof shall have been obtained, at any time before the entry of judgment in the suit involving such proceeding.
The said Director shall cause to be received at any time the amounts due upon any assessment and warrant issued, and shall also cause to be given a good and sufficient discharge therefor, unless written notice be given him that suit to foreclose an assessment has been filed.
The said Director shall cause to be released any assessment upon the books of the Department of Public Works on the payment of the amount of the assessment, with interest to date of payment, against any lot, or on the production to said Department of Public Works of the receipt of the party to whom the assessment and warrant were issued, or his assigns. If any warrant is lost, upon proof of such loss, a duplicate may be issued, upon which a return may be made with the same effect as if the original had been so returned. Upon the return of the assessment and warrant as provided in this Article, all amounts remaining due thereon shall draw interest at the rate set by the Director until paid. Said Director shall have full power to extend the time for the return of such warrant to said department.
The records kept by said Director or department shall have the same force and effect as other public records, and copies thereof, duly certified by said Director or the Secretary of said department, may be used in evidence with the same effect as the originals. The said records shall, during all office hours, be open to the inspection of any person wishing to examine them, free of charge.
(Amended by Ord. 368-82, App. 7/30/82)
In case any parcel of land against which any assessment has been levied has been subdivided or partitioned among several owners thereof, said Director of Public Works, on the written application of any owner thereof, shall make a proportionate division of such assessment and may amend the original assessment by a proportionate distribution of the assessment upon the several subdivisions of the parcel of land originally described. Such proportionate division of an assessment shall be without prejudice to the contractor or his assigns as to any assessment made in pursuance of the provisions of this Article. Such amended assessment shall bear date the same as the original assessment.
The contractor shall within 90 days of the issuance of the assessment submit to the Director of Public Works a list of all unpaid assessments, and it shall be the duty of said Director to notify the Tax Collector of each assessment that is delinquent, and the lot and block number against which such assessment is levied, and it shall be the duty of the Tax Collector to note such delinquency on each annual tax bill, in accordance with Section 107 of the Charter of the City and County of San Francisco.
An assessment imposed under the provisions of this Article may, in and by the assessment provided for in Section 215 of this Article, be made payable in installments.
Whenever assessments are made payable in installments as aforesaid, the assessment provided for in Section 215 of this Article shall state the number of annual installments in which the assessment may be paid and the rate of interest, not over the percentum per annum set by law by the State of California, to be charged on all deferred payments. The first installment shall be payable at the time provided for in Section 229 of this Article.
(Amended by Ord. 368-82, App. 7/30/82)
In case the owner or owners of any parcel of land against which an assessment is imposed desires to avail himself or themselves of the privilege of paying such assessment in installments, and for and in consideration of such privilege, such owner or owners, within 30 days from the date of the return of the warrant made as required by Section 222 of this Article, shall make payment to the Department of Public Works for the contractor or his assigns or other person duly authorized to receive the same, of an amount equivalent to an installment payment on such assessment determinable by the number of installments made payable thereon, which amount so paid shall be deemed a payment of the first installment such assessment under the terms of the bond hereinafter provided for, and in such bond shall be so designated. The interest payable under the terms of said bond shall be computed from the date of the assessment on which such bond is issued. Such owner or owners must, within not more than 30 days from the date of the payment hereinbefore provided for, execute and acknowledge before an officer authorized by law to take acknowledgments of the conveyances of real property, and file with the Department of Public Works, a bond in triplicate, substantially in the following form:
August 23, 1999 Bond for Street Assessment
State of California,
City and County of San Francisco.
City and County of San Francisco.
Whereas, by proceedings duly and regularly taken, the validity and regularity whereof is hereby acknowledged and admitted, an assessment has been imposed upon the following described property, to-wit: (Description of property), and the amount of such assessment so imposed amounts to the sum of (amount of assessment) dollars;
Now, therefore, the undersigned, for and in consideration of the privilege given to pay such assessment in installments, hereby acknowledge (himself, herself or themselves) indebted, and promise to pay to (name of contractor) or order, said assessment in the sums, and at the times and place hereinafter set forth, to-wit:
Installment One-Amounting to $____________,
Date of Payment: ____________.
Date of Payment: ____________.
Installment Two-Amounting to $____________,
within ____________ from the date hereof.
within ____________ from the date hereof.
Installment Three-Amounting to $ ,
within ____________ from the date hereof (each additional installment being set forth in the same manner and payable the appropriate time after the preceding numbered installment), together with interest on each of said installments at the rate of ____________ per centum per annum (being the rate fixed in the assessment issued by the Director of Public Works), until each such installment shall be paid.
within ____________ from the date hereof (each additional installment being set forth in the same manner and payable the appropriate time after the preceding numbered installment), together with interest on each of said installments at the rate of ____________ per centum per annum (being the rate fixed in the assessment issued by the Director of Public Works), until each such installment shall be paid.
Such interest shall be paid, as it accrues, on the dates for payment of said installments of principal. Said installments of principal and interest shall be payable at the office of the Director of Public Works at the City and County of San Francisco, in lawful money of the United States. In case (the undersigned) elect to pay all of said installments before maturity thereof (the undersigned) agree to pay, in addition to all other amounts due, six months' interest in advance.
In the event of default in the payment of any installment of principal or of interest according to the terms of this bond, then all of said installments of principal and all interest thereon shall become immediately due and payable and said Director is hereby authorized to sell the property herein described to pay the amount so due, together with the expenses of such sale.
Such sale shall be made by said Director in the manner and form provided by law for the sale of real property upon execution and after mailing to the undersigned a notice that proceedings to make such sale will be had unless payment of the amount due shall be made within 10 days from the mailing thereof. Such notice shall be deposited in the United States Post Office addressed to the addresses given in this bond or such other addresses as may be hereafter filed with said Director.
Or the person in legal ownership of this bond shall, in the event of such default, have the right to foreclose the lien created by the said assessment for any unpaid portion thereof the same as if no bond had been given, and such lien shall continue until such assessment and accrued interest are fully paid. The undersigned agree to pay all expenses of said foreclosure including a reasonable attorney's fee and cost of title search.
It is hereby expressly provided that a lien for the full amount of the sum obligated to be paid under this bond, principal, interest and costs, and expenses of foreclosure, is hereby created and acknowledged upon, in and to the real property described herein and the improvements thereon and appurtenances thereto.
This bond is dated ____________/____________/____________, 19____________.
In witness whereof ____________ set ____________ hand this ____________ day of ____________/____________/____________, 19____________.
If such bond is not executed within the time and in the manner hereinabove provided for, then the whole of the assessment on which such bond would be based shall thereupon be immediately due and payable.
Forms of such bond shall be furnished by the Department of Public Works and thereto shall be attached appropriate coupons for the payment of the installments of principal and the interest on such bond. Such coupons respectively shall be payable to bearer at the office of the Treasurer of said City and County 30 days after the respective dates for payment of principal installments and interest by those who have executed the bond to which the coupons shall be attached.
(a) Preparation and Recordation. Said Director of Public Works shall cause said bonds and coupons to be fully prepared for execution and shall supervise the execution thereof by the proper parties as hereinbefore provided for. When such bonds and attached coupons have been fully prepared and executed in the manner hereinbefore provided for and delivered to the Department of Public Works, one of said triplicates shall be recorded in the office of the Recorder of said City and County, who shall make no charge therefor; after recordation, said triplicate shall be retained in the office of said Department of Public Works; another of said triplicates shall be delivered to the contractor named therein and the other shall be delivered to the Treasurer of said City and County.
(b) Record of Payments. Said Director shall cause to be kept a record of all payments received by him on said bonds and the coupons attached thereto and of all penalties accruing thereon, and upon delivering such moneys to the Treasurer said Director shall report to the Treasurer the particular bonds and coupons and penalties to be credited with such payments, so that the Treasurer will know exactly on which bonds and coupons disbursements by him of such moneys shall be made.
Said Director shall also cause all such payments to be entered in an appropriate book of record in his office to the credit of the appropriate bond and assessment. And every such assessment shall remain a first lien upon the property affected until said assessment and the bond based thereon, and the accrued interest thereon and the penalties, if any, thereon shall be fully paid according to the terms of said bond.
(c) Execution of Bonds Evidence of Regularity. Said bonds, by their execution, shall be conclusive evidence of the regularity of all proceedings theretofore had under this Article.
(d) Certificate of Sale. Said Director is hereby authorized to make any sale authorized by any such bond and shall issue for each sale an original and duplicate certificate of sale in appropriate form, referring to this Article, describing the parcel or parcels of land sold and containing the name of the Purchaser. The original shall be delivered to the Purchaser and the duplicate shall be kept on file and record in the office of said Director.
If the property sold, as provided in the above proceedings, be not redeemed within one year after the sale, said Director shall then issue to the party named in the original certificate, or his assignee, a deed of the property described in said certificate, which said deed shall refer, in general terms, to the proceedings under which the same is issued, and shall contain a description of the property, following the description in the certificate; the grantee in such deed is immediately upon receipt thereof entitled to possession of the property described therein.
At any time before the expiration of one year from the date of the certificate of sale, any property sold under the provisions of the preceding Sections may be redeemed by any person having an interest in the property sold, by the payment to said Director of the amount for which property was sold, with an additional penalty of one percent per month of the amount for which the same was sold; all such redemption money shall be paid over by said Director to the Treasurer with a statement indicating the specific bond to which such money shall be credited, and the Treasurer shall pay all such redemption money to the holder of the proper original certificate of sale, upon delivering up the same and receipting for the amount received.
Said Director of Public Works shall cause to be kept a record of all bonds given as herein provided, wherein shall be entered the name of the person executing the same, a description of the land described therein, the number and amount of the installments, the time when the same are due, the date and the amount of all payments and the date of all payments to the City and County Treasurer for the holders of each bond.
In case it shall appear at any time that any bond made as herein provided has not been executed by the owner or owners of the property described therein, or that for any reason any such bond is invalid, or that a sale in accordance with its terms would not convey a full and clear title to such property, then the person entitled to collect and receipt for the payment of the original assessment, or his assigns, shall have the right to foreclose the lien thereof for any unpaid portion, as such lien was originally imposed and such lien shall continue until such original assessment is fully paid.
The bond provided for in Section 229 of this Article may be made, executed and filed in accordance with and subject to the requirements, terms and conditions in this Article prescribed for such bond, after the expiration of the time, as therein provided for, within which to make, execute and file such bond, if the contractor to whom an assessment, payable in installments, has been issued, or his assignee, or other owner of such assessment, shall consent to the making, executing and filing of such bond after such expiration of time, and such consent shall be expressed on the back or margin of such bond.
Anything in this Article to the contrary notwithstanding, said Director of Public Works may in the assessment and warrant provided for in Sections 215 and 216 of this Article make each assessment which exceeds $200 payable in annual installments. No such annual installment payment shall exceed five percent of the benefit conferred on said property on which the assessment is levied measured in terms of the cost of said street improvement plus interest on the outstanding balance due. As used in this Section the term "benefit conferred" shall refer to the cost of the improvement apportioned by the said Director pursuant to Section 215(b) of this Article.
The dates for payment of installments on an assessment shall not extend over a period of more than 10 years from the date when the first installment will be payable. The assessment made by said Director shall state the number of installments in which the assessment payable in installments may be paid, the respective dates for payment of the several installments, and the rate of interest, not to exceed the percentum per annum set by law by the State of California, to be charged on all deferred payments. The first installment shall be payable at the time provided for in Section 229 of this Article. Every assessment and accrued interest, however, may be paid in cash at any time, unless suit has been filed thereon or unless a bond has been executed thereon.
(a) Appeal Prerequisite to Court Action. No objection whatsoever relative to the making of such an assessment payable in installments as in this Section provided for, or relative to the amount of any such assessment or assessment installment, or relative to the time or manner of payment of any such assessment or assessment installment may be made in any manner or in any court or tribunal except by such party or parties as shall have appealed to the Supervisors in the manner provided for in Section 217 of this Article. All persons who have not so appealed to the Supervisors shall be deemed to have waived every objection in this Section referred to.
(b) Assessment Amended or Reassessment Made. Any assessment which violates any of the provisions of this Section or Section III of the Charter of said City and County may be amended or corrected, in the manner in this Article provided for the amendment or correction of an assessment, or a reassessment may be made as in this Article provided for, in order that such original assessment may be made to conform to this Section and Section III of said Charter.
(Amended by Ord. 368-82, App. 7-30-82)
Whenever any assessment heretofore made or issued or filed or which may be hereafter made, issued or filed pursuant to this Article or any other ordinance is or shall be void or unenforceable, for any cause, or if bonds shall have been or shall be, issued to represent or be secured by any assessments and such issuance shall not have been, or shall not be, effective through the curative provisions in relation thereto, then, in any of such events, a reassessment therefor may be issued. The true intent and meaning of this Section is to make the cost and expense of work or improvement made through an attempted compliance with this Article, payable by the real estate benefited by such work or improvement by making a reassessment therefor.
Such power of reassessing embraces both a full and a partial reassessment, and is not exhausted by a single attempted exercise thereof.
A reassessment shall be ordered by the Board of Supervisors under any one of four circumstances.
(a) Request of Holder. Where the owner or holder of any assessments, or bonds issued under this Article to represent or be secured by assessments, or the person who would own or hold any such assessment or bonds if the same were issued, requests the Supervisors to order a reassessment. In such event, if said Supervisors be of the opinion that the assessments or bonds in question are not enforceable, they shall order the making and issuing of a reassessment covering only the assessments owned or held by the petitioner, or the assessments represented or secured by the bonds owned or held by such petitioner, or which would be owned or held by petitioner if issued.
(b) Unenforceable Lien by Court Decree. Whenever any court of competent jurisdiction in any suit to foreclose the lien of any assessment or to enforce the obligation of any bond issue to represent or be secured by any assessments issued under this Article, has for any reason held such lien unenforceable, then it shall in and by its decree direct the making of a reassessment to cover the assessments involved in such suit.
(c) Voidance by Court Decree. Whenever any court of competent jurisdiction in any suit to set aside the lien of any assessment or of any bond representing any assessment, or in any suit to quiet title against the lien of any such assessment, or bond, or in any suit to enjoin the making, filing, conformation or issuance of any assessment or bond to pay for the cost and expense of any work done hereunder, shall in its judgment decree such assessments or bonds to be void, or unenforceable, or shall enjoin the making, filing or issuance of conformation of any such assessment or bond, then it shall, in and by its decree, direct the making of a reassessment to cover the assessments involved in such suit.
(d) Payment for Work Done Under Void Proceedings. Whenever any contractor or assignee of a contractor shall have done or performed any work or improvements pursuant to proceedings had and taken in attempted compliance with the provisions of this Article, and whenever prior to the issuance of any assessment, any court of competent jurisdiction in any suit to invalidate the contract or any of such proceedings shall for any reason declare said contract or other proceedings to be invalid, then such court shall, in and by its decree, direct the making of an assessment for the reasonable value of the work and improvement actually done and performed in good faith by the contractor, or such portion thereof as was of a kind that could lawfully have been ordered under the provisions of this Article.
The manner of making, issuing and enforcing the reassessments shall be as follows:
Said Director of Public Works shall, upon the entering of a decree of court directing a reassessment or upon the making of an order by the Supervisors directing a reassessment, proceed to make a reassessment in the following manner:
(a) Partial Reassessment. If the reassessment be a partial one only, then it shall not be necessary for the diagram to show any other lots than the ones covered by such partial reassessment.
(b) Full Reassessment. If it be a full reassessment, however, then said Director shall prepare and file with the reassessment a diagram showing the lots, pieces or parcels of land deemed by him to have been benefited by the work or improvement.
(c) Fixing Boundaries. Upon any reassessment as in this Article provided for, said Director and the Supervisors shall have unlimited power to fix the boundaries of the district to be charged with the expense of the work in accordance with the benefits of the work to property as such benefits, at the time of reassessment, shall appear to said Director or the Supervisors, and to make the boundaries of such district either the same as they theretofore were or different from the boundaries of the district specified in said Director's declaration of intention.
(d) Amount of Reassessment. It is the intent hereof that upon any such reassessment said Director and/or the Supervisors then shall have full power to determine what district and property have been benefited by the work and to make the reassessment accordingly. The reassessment shall assess upon and against each of the lots, pieces or parcels of land contained therein an amount arrived at as follows: The benefits derived, or to be derived by each of the said lots, pieces or parcels of land from the work or improvement, estimated as of the date of the filing in the office of the Department of Public Works of the original assessment, shall first be listed. Then there shall be added thereto interest thereon from the date of filing the original assessment in the Department of Public Works at the rate set by the Director, and the total sums shall constitute and be the amount of the proposed several assessments in such reassessment. The total of such reassessments, however, exclusive of interest, shall not exceed the cost and expenses of the work or improvement.
(e) Procedure. Such assessment need not be in any prescribed form, but shall refer to the original assessment filed, give the date of filing of said original assessment and state that it is made pursuant to the order of the Supervisors or decree of the court, as the case may be, and shall be accompanied by a diagram showing the lots to be reassessed and their relation to the work. It shall then be presented to the Supervisors, who shall fix a time for hearing before them. Such time must be at least 20 days after the reassessment is so presented. The Clerk of the Board of Supervisors shall then advertise the time of such hearing before the Supervisors by publishing a notice once in the official newspaper. Said Clerk shall also mail notice of such hearing as provided for in Section 193 of this Article. But this requirement as to mailing notice shall have no greater effect than that provided for in said Section 193 of this Article. And a description of the district shall be set forth in the notice.
(f) Hearing of Objections. At the time fixed for said hearing, or at such time or times to which the same may be thereafter adjourned, the Supervisors shall consider the objections to said reassessment and in their discretion informally direct the revision, correction or modification of such reassessment in such manner as is most equitable to apportion to each lot, piece or parcel of land hereby benefited the amount of the actual benefits derived from said improvement. When such reassessment shall have been revised, or corrected, or modified so as to comply with the judgment of said Supervisors, then they shall pass a resolution confirming the reassessment. The said Director of Public Works shall thereupon record the reassessment with a certificate at the end thereof by the Clerk of the Board of Supervisors. Said Director shall also note opposite the several assessments in the original assessment that have been displaced, the fact that the reassessment has been made, giving its date, and shall credit upon such reassessment all payments theretofore made upon the original assessment, or upon the bonds issued to represent the same, together with interest on such payments at the rate set by the Director, from and after the date of such payments. Such reassessment shall be collectible and payable in the same manner as an original assessment and shall be enforceable by suit in the same manner provided in this Article for enforcing an original assessment, and shall have the same weight in evidence. In the event that bonds shall have been issued under or upon the security of the original assessment, they shall also issue upon the reassessment for such sum as may be reassessed against the lots, pieces or parcels of land covered thereby.
(g) Cancellation of Original Assessment. When the reassessment is recorded the original assessment shall be cancelled by said Director so far as the reassessment affects the original assessment involved. New bonds shall not be issued until the original bonds are delivered up to the City and County Treasurer, who shall cancel the same. The lien of such reassessment shall hold its relative rank as to other special assessment liens as of the date of filing of the original assessment.
(h) Costs and Expenses. In the event such work or improvement made in attempted compliance with this Article is fully completed to the satisfaction of said Director, then it shall be the duty in any event of said Director to make and file an assessment for costs and expenses thereof so as to form the basis of a reassessment, even though such assessment should be unenforceable.
(Amended by Ord. 368-82, App. 7/30/82)
If the Director of Public Works, for any reason whatsoever, may not perform any of the duties or functions by this Article imposed upon him, or if it becomes inconvenient for him to perform any such duties or functions, then, in every such case, such duties and functions may be performed by the City Engineer in said Department of Public Works, as a substitute for said Director, or, in any such case, said duties and functions may be performed by anyone in said Department designated by the Chief Administrative Officer of said City and County. The duties and functions hereby imposed upon said City Engineer may be performed by anyone else in said Department designated by said Director. Whenever such a substitute shall act, either for said Director or for said City Engineer, the records of said Department shall include a written designation by said Chief Administrative Officer or said Director, as the case may be, appointing such substitute. Such designation shall indicate the period during which such substitute shall be authorized so to act. Such written designation shall be conclusive of all facts therein recited, and all acts of such substitutes, respectively, shall have the same validity as if they had been performed by said Director or said City Engineer, as the case may be.
Notice in writing required to be given by said Director may be served by any person over the age of 21 years, and the fact of such service may be verified by the oath of the person making it. Such oath may be taken before said Director or the acting Secretary of said Department of Public Works.
All notices and resolutions required by this Article to be published shall be published in the official newspaper.
All notices herein required to be served, whether by delivering, mailing or posting, may be so served by any citizen of the age of 21 years or over, and his affidavit thereof shall be prima facie evidence of such service. The affidavit of the publisher of the local newspaper or his clerk, of the publication of any notice required in this Article to be published, shall be prima facie evidence of such publishing.
Whenever any resolution, order, notice or determination is required to be published or posted, and the duty of posting or procuring the publication or posting of the same is not specifically enjoined upon any officer of the City and County, it shall be the duty of the Director of Public Works to procure the publication or posting, as the case may be. No proceeding or step herein shall be invalidated or affected by any error or mistake or departure herefrom as to the officer or person posting, or procuring the publication or posting, of any resolution, notice, order or determination hereunder when the same is actually published or posted for the time herein required.