48-2058

48-2058. Delivery of warrant and assessment to
contractor; demand for payment; release of assessments; review of
assessment

A. After the warrant and assessment are recorded, they shall be delivered to the
contractor, or to the sanitary district if it charges itself with the duty of making
demands for the payment, together with one of the diagrams. By virtue of the warrant,
the contractor or the district, as the case may be, may demand and receive the amount of
the several assessments.

B. The contractor, treasurer or other person nominated by the board, as the case
may be, shall call on the person assessed, either in person or by mail if the person can
conveniently be found, and demand payment, and if paid the contractor or treasurer or
other person nominated by the board shall provide a receipt. The receipt, when presented
to the district, constitutes an order to it to release the assessment.

C. The contractor, treasurer or other person nominated by the board shall promptly
notify the district of all payments made to him, whereupon the district shall release
assessments which have been fully paid. If the name of the owner of the lot is stated as
"unknown" on the assessment, the contractor or treasurer or other person nominated by the
board shall demand payment of a person in possession of the lot. If someone is in
possession, the demand may be made either by mail, if a mailing address for the person in
possession can be determined, or in person. If the premises are unoccupied or the person
in possession cannot be found, the demand is unnecessary.

D. The warrant shall be returned to the board within thirty days after its date
endorsed with "return", signed by the contractor or treasurer or other person nominated
by the board, as the case may be, verified on oath and stating the nature and character
of the demand, and whether any assessments remain wholly or partially unpaid, and the
amount of the unpaid assessment. In the absence of fraud or bad faith, the verified
statement of the person making the return is conclusive proof that the demand for payment
was made on each owner, each person in possession or each parcel of property as required
by this section. The board shall record the return so made in the margin of the record
of the warrant and assessment. After return of the assessment and warrant all amounts
remaining due draw interest at the rate of eight per cent a year until paid or, on the
issuance of bonds, at the rate specified in the bonds payable for the semiannual period
specified in the bonds notwithstanding that the installments of assessments may be due at
dates earlier than installments of interest are payable on the bonds.

E. On recording the assessment and warrant, the board shall fix a time when it will
hear and pass on the assessment and the proceedings taken, which shall not be fewer than
twenty days from the date of the recording. The board shall cause notice of the hearing
to be published for five days in a daily newspaper, or two times in a weekly or
semiweekly newspaper, of general circulation in the sanitary district and shall cause
notices of the time and place of the hearing to be mailed by first class mail, at least
twenty days before the hearing date, to all persons owning real property affected by the
assessments as their names and addresses appear on the last certified property tax
roll. If no address appears for a person on the last certified tax roll, no notice need
be mailed to that person. The chairman of the board shall make an affidavit of the
mailing and shall state that the persons to whom notices were mailed constitute all
persons whose names and addresses appear on the tax roll as owning property in the
improvement area. The affidavit is conclusive proof that notice was mailed to each
person to whom notice is required to be mailed. The failure to receive notice does not
constitute any jurisdictional defect invalidating a district proceeding or assessment if
notice has been sent pursuant to this section.

F. The owners, contractor and all other persons directly interested in the work or
in the assessment, who have any objection to the amount or legality of the assessment or
to any of the previous proceedings or who claim that the work has not been performed
according to the contract, may, before the time fixed for the hearing, file a written
notice briefly specifying the grounds of their objections. At the time fixed for the
hearing or at any time not later than ten days thereafter, to which the hearing may be
postponed, the board shall hear and pass on their objections. The decision of the board
is final and conclusive on all persons entitled to object as to all errors, informalities
and irregularities which the board may have remedied or avoided at any time during the
progress of the proceedings.

G. After the hearing, if the board of directors finds that the assessment has not
yet been fairly apportioned, it shall modify the amounts of the several assessments and
may order that the assessment be recomputed if it finds that the benefits to any lots do
not equal the amount of the lots' assessments. When recomputing the assessment, the
board shall levy the reassessments according to the benefits derived, notwithstanding the
fact that the reduction of any assessment may cause a corresponding increase in other
assessments, except that without the written consent of the owner of land to be assessed,
no assessment or assessments may be increased in a manner which causes the total
assessment for all work and expenses to exceed the total amount stated on the engineer's
official estimate.

H. At any time within one year after the date the district files the certificate of
completion as provided in section 48-2065, subsection G, any member of the board of
directors, any owner or any person claiming an interest in any lot which received an
assessment may file a written notice with the clerk stating that the work has not been
performed substantially according to the resolution of intention or the plans,
specifications and estimate. The notice shall state in particular the contractor's
failure to perform and may also state, if applicable, any requested reduction in the
assessment of any one or more parcels due solely to the failure of such performance. The
notice shall state the name and address of the person filing the notice and shall
describe the person's interest in land subject to assessment, if applicable.

I. On receipt of such a notice, the board of directors shall set a date for a
hearing on the notice. The board of directors shall give notice of the hearing to the
contractor, the contractor's surety, the person appointed to take charge of and
superintend the work and all persons whose names and addresses appear in the notice. In
addition, the clerk shall cause a notice of the hearing to be published twice in a
newspaper of general circulation in the county.

J. At the hearing, the board shall determine whether the work was completed
according to the resolution of intention, the plans and specifications and any
corrections or alterations of the plans deemed necessary. If the board determines that
the work has not been so completed, it shall order the contractor to complete the work
and shall set a reasonable time for completion and recess the hearing until the date set
for completion. If, at the date set to reconvene the hearing, the evidence shows that the
work is then completed, the board shall enter such findings on its minutes. If the board
determines that the contractor is making a good faith attempt to complete the work, it
may continue the completion date and recess the hearing to a later date. If, at the
hearing or at any recessed hearing, the board of directors finds that the contractor
refuses to complete or is incapable of completing the work, it shall order and the
district's attorney shall bring an action against the contractor and its surety to
collect such amounts or cause such performance as is necessary to complete the work.

K. If the board determines that for any reason the work cannot be completed and no
recovery can be made against the contractor or the contractor's surety, the board may
recompute the assessment, taking into consideration the effect the contractor's failure
to perform may have had on the actual benefits derived from the improvement and reduce
some or all assessments to reflect the reduced benefits. If the assessments are reduced,
the district shall assume as a contingent liability any difference between the amounts
thereafter received on the semiannual assessment payments and the amounts of principal
and interest thereafter due on the bonds. The assumption of such amount becomes a
general obligation of the district.

L. All decisions made concerning any notice filed pursuant to this section are
final and conclusive as to the persons filing the notice, the contractor and the
contractor's surety and as to the alleged defect in the work. After a ruling on any
alleged defect in the work, the board shall not entertain or hear a later notice
concerning the same defect, whether or not filed by a person other than the person filing
the original notice.

M. After the work is completed, the district shall file a recomputed assessment
based on the actual quantities determined by the engineer to have been constructed or
installed, or the actual cost of the acquisition, as the case may be, together with the
known incidental expenses paid to that date and the itemized estimated incidental
expenses remaining to be paid. The engineer need not recompute each individual
assessment but shall determine the amount of the increase or decrease to be assessed and
shall file a supplemental statement with the clerk stating the ratio of the difference
between the contractor's bid and the recapitulated amount and ordering that each
assessment be increased or decreased, as the case may be, by that ratio. If the total
assessment is decreased, the treasurer shall credit the amount of the decrease
proportionately on the assessments remaining unpaid and return to the owner, if the owner
can be located, that portion of each assessment previously paid in cash which represents
an excess payment.

N. At the hearing provided pursuant to subsection E of this section the board shall
receive and consider applications from individual lot or parcel owners for financial
assistance in paying assessments. The application shall be in a form approved by the
board and the applicant shall provide reasonable evidence that the applicant lacks the
financial capability to pay the full assessment or the annual assessment
installments. The board shall appropriate monies from any source to provide assistance
for any person by having the sanitary district pay the individual assessment and have the
applicant provide an instrument, secured by an encumbrance on the applicant's property,
which provides for repayment to the sanitary district on less burdensome terms than the
assessment or the annual assessment installments of the monies paid by the
district. This subsection applies only to applicants who own fewer than three parcels or
lots within the area to be assessed.