IC 36-9-36
Chapter 36. Barrett Law Funding for Counties and Municipalities
IC 36-9-36-1 Application of chapter
Sec. 1. This chapter applies to all units except townships. As added by P.L.98-1993, SEC.7.
IC 36-9-36-2 Authorized improvements
Sec. 2. (a) The following improvements may be made under this
chapter by a county:
(1) Sanitary sewers and sanitary sewer tap-ins.
(2) Sidewalks.
(3) Curbs.
(4) Streets.
(5) Storm sewers.
(6) Lighting.
(7) Emergency warning systems.
(8) Any other structures necessary or useful for the collection,
treatment, purification, and sanitary disposal of the liquid
waste, sewage, storm drainage, and other drainage of a
municipality.
(b) The following improvements may be made under this chapter
by a municipality:
(1) Sidewalks.
(2) Curbs.
(3) Streets.
(4) Alleys.
(5) Paved public places.
(6) Lighting.
(7) A water main extension for a municipality that owns and
operates a water utility.
(8) Emergency warning systems. As added by P.L.98-1993, SEC.7. Amended by P.L.31-2004, SEC.1;
P.L.42-2006, SEC.1.
IC 36-9-36-3 Limitations on authorized improvements; location of
improvement; water main extensions
Sec. 3. (a) The following apply to improvements made under this
chapter by a county:
(1) An improvement may be made only in unincorporated areas
that contain residential or business buildings.
(2) An improvement may not be made on a tract of land that:
(A) consists of at least ten (10) acres and contains only one
(1) building that is used for residential purposes; or
(B) is used solely for agricultural purposes.
(b) A water main extension made under this chapter by a
municipality may be made only within the corporate boundaries of
the municipality. As added by P.L.98-1993, SEC.7.
IC 36-9-36-4 Preliminary resolutions; cross-sections, plans, and specifications
Sec. 4. (a) If the works board of a unit wants to make an
improvement under this chapter, the works board must first do the
following:
(1) Adopt a preliminary resolution for the improvement.
(2) Adopt and place on file cross-sections, general plans, and
specifications for the work at the time the preliminary
resolution is adopted.
(b) This subsection does not apply to a county. The cross-sections,
plans, and specifications filed under subsection (a) must conform to
any paving standards adopted by the works board, unless engineering
practice justifies a different design. As added by P.L.98-1993, SEC.7.
IC 36-9-36-5 Estimate of costs; incidental, inspection, and engineering costs
Sec. 5. (a) If an improvement is to be paid for in whole or in part
by special assessments levied against the property to be benefited by
the improvement, the works board must adopt and file an estimate of
the cost of the public improvement.
(b) The estimate may include all incidental, inspection, and
engineering costs caused by the proposed improvement. However,
the estimate of the costs to be paid by special assessment may not
include the following:
(1) Salaries and expenses of the necessary and regularly
employed personnel of the engineering department of the unit.
(2) Ordinary operating costs of the department.
(c) If the works board finds that it is necessary to employ
additional engineering services for a particular improvement, the cost
of the additional service actually performed in connection with the
improvement may be included in the estimate. As added by P.L.98-1993, SEC.7.
IC 36-9-36-6 Incidental, inspection, and engineering costs; inclusion on
assessment roll
Sec. 6. (a) The incidental, inspection, and engineering costs that
are authorized by the preliminary resolution and included in the
estimate may be added to the cost of an improvement and included
in the assessment roll in the aggregate amount to be apportioned and
assessed against the benefited property.
(b) The amount of incidental, inspection, and engineering costs
included in the assessment roll may not exceed the amount of the
incidental, inspection, and engineering costs included in the estimate. As added by P.L.98-1993, SEC.7. IC 36-9-36-7 Incidental, inspection, and engineering costs; inclusion in
contracts; subrogation rights of contractor
Sec. 7. The following applies if the preliminary resolution
provides for the inclusion and assessment of incidental, inspection,
and engineering costs:
(1) The works board shall include in a contract for an
improvement a provision that requires all incidental, inspection,
and engineering costs to be advanced and paid by the contract
or to the board, upon the final acceptance of the improvement,
for payment by the board to persons entitled to the incidental,
inspection, and engineering costs.
(2) The contractor is then subrogated to all rights of the unit and
those persons to all the incidental, inspection, and engineering
costs subsequently included in and assessed upon the
assessment roll.
(3) The costs belong to the contractor as a part of the
assessments. As added by P.L.98-1993, SEC.7.
IC 36-9-36-8 Notice of hearing on preliminary resolution; publication; mailing
to property owners
Sec. 8. (a) Notice of a hearing on the preliminary resolution shall
be published in accordance with IC 5-3-1. The notice must state that
the works board has adopted the preliminary resolution and the time
and place at which the works board will do the following:
(1) Hear all interested persons.
(2) Decide whether the benefits to the property liable to be
assessed for the improvement will equal the estimated cost of
the improvement.
(b) A notice containing the information required under subsection
(a) shall be sent to each property owner affected by the proposed
improvement. The mailing of the notice complies with this
subsection if the mailing is to owners as the owners appear in the
records of the assessor of the county in which the property is located. As added by P.L.98-1993, SEC.7.
IC 36-9-36-9 Estimate of maximum cost
Sec. 9. (a) At least ten (10) days before the date fixed for a
hearing under section 8 of this chapter, the engineer of the unit shall
file with the works board an estimate of the maximum cost of the
improvement proposed by the works board.
(b) The estimate must include the following:
(1) The cost of the guarantee under section 25 of this chapter.
(2) The cost of the maintenance of the improvements for at least
three (3) years.
(c) A unit may not enter into a contract under the preliminary
resolution if the contract exceeds the engineer's estimate filed under
subsection (a). As added by P.L.98-1993, SEC.7.
IC 36-9-36-9.5 Assessments; installment payments
Sec. 9.5. (a) With respect to assessments imposed after June 30,
2001, the works board shall establish a procedure to permit owners
of real property in the unit to elect whether to pay assessments in:
(1) ten (10), twenty (20), or thirty (30) annual installments; or
(2) a number of monthly installments that corresponds to ten
(10), twenty (20), or thirty (30) annual installments.
(b) The works board shall establish the timing of the election
under subsection (a) to permit the works board to structure the
maturities of the principal of the bonds in a number of annual series
that is consistent with the installment periods elected by owners of
real property under subsection (a).
(c) A person who elects to pay the person's assessment in
installments under this section must, when directed by the works
board, enter into a written agreement stating that in consideration of
that privilege the person:
(1) will not make an objection to an illegality or irregularity
regarding the assessment against the person's property; and
(2) will pay the assessment as required by law with specified
interest.
(d) The agreement under subsection (c) shall be filed in the office
of the disbursing officer.
(e) The interest rate specified for the installments of the
assessment may be equal to or greater than the interest rate on bonds
issued under section 44 of this chapter.
(f) An assessment of less than one hundred dollars ($100) may not
be paid in installments. As added by P.L.62-2001, SEC.1.
IC 36-9-36-10 Hearing on preliminary resolution; determination of special
benefits accruing to property
Sec. 10. (a) At the hearing specified in the notice under section 8
of this chapter, the works board shall do the following:
(1) Hear interested persons.
(2) Decide whether the benefits that will accrue to the property
liable to be assessed for the improvement will equal the
maximum estimated cost of the improvement.
(b) If the works board finds that the benefits will not equal the
maximum estimated cost of the improvement, the board shall
determine the aggregate amount of special benefits that will accrue
to the property liable to be assessed for the improvement.
(c) Except as provided in sections 13 and 14 of this chapter, the
works board's determination concerning the aggregate amount of
special benefits that will accrue to the property liable to be assessed
for the improvement is final and conclusive.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-11 Levy of special assessments; improvement cost as maximum
amount of assessment; improvement cost payable by unit
Sec. 11. (a) The works board shall levy special assessments for
the amount determined under section 10 of this chapter if:
(1) the contract for the improvement is executed; and
(2) the improvement is made.
(b) The special assessments levied under this section may not
exceed the cost of the improvement.
(c) If the amount determined under section 10 of this chapter is
less than the contract price, the remainder of the cost of the
improvement is payable by the unit. As added by P.L.98-1993, SEC.7.
IC 36-9-36-12 Allowances against assessment and contract price
Sec. 12. (a) The works board shall make an allowance to the
owner of any property if:
(1) an improvement exists in front of the property before the
improvement is ordered; and
(2) the improvement conforms to the general plan.
(b) An allowance under subsection (a) shall be made from the
owner's assessment and from the total amount of the contract price. As added by P.L.98-1993, SEC.7.
IC 36-9-36-13 Confirmation, modification, or rescission of preliminary resolution
Sec. 13. (a) After the works board determines the amount of
special benefits that will accrue to the property liable to be assessed
for the improvement, the works board may do any of the following:
(1) Confirm the preliminary resolution.
(2) Modify the preliminary resolution.
(3) Rescind the preliminary resolution.
(b) Except as provided in section 14 of this chapter, the
preliminary resolution is final and conclusive on all parties if:
(1) the preliminary resolution is modified or confirmed under
this section; and
(2) the improvement is ordered. As added by P.L.98-1993, SEC.7.
IC 36-9-36-14 Remonstrances and appeals
Sec. 14. (a) A majority of the persons who own the property to be
assessed for the improvement may remonstrate against the
improvement or take an appeal. The remonstrance or appeal must be
made not later than ten (10) days after the hearing under section 10
of this chapter.
(b) If there is a remonstrance, the improvement may not be made
unless specifically ordered by an ordinance passed by a two-thirds
(2/3) vote of the unit's legislative body. An ordinance under this
subsection must be passed not later than sixty (60) days after the
remonstrance is made. As added by P.L.98-1993, SEC.7.
IC 36-9-36-15 Objections to final resolution; filing; bond; prior assessments
Sec. 15. (a) If the works board finally orders an improvement,
forty percent (40%) of the persons who own property abutting the
improvement and who are subject to assessment may file written
objections with the board. The written objections must:
(1) state at least one (1) of the following:
(A) The improvement is not needed by the public.
(B) The cost of the proposed improvement would be
excessive considering the character and value of the property
to be assessed.
(C) The cost of the proposed improvement will exceed the
benefits to the property to be assessed.
(D) The works board does not have the legal authority to
order the improvement.
(2) be filed not later than five (5) days after the making of the
final order.
(b) If the works board does not abandon the proposed
improvement, the following shall, not later than five (5) days after
the filing of the objections with the works board, file with the clerk
of the circuit or superior court of the county a copy of the order of
improvement and the objections:
(1) The auditor, in the case of a county.
(2) The clerk, in the case of a municipality.
(c) Objectors must file with their objections a bond with security
to the satisfaction of the court. The following apply to a bond filed
under this subsection:
(1) The bond shall be in a sum fixed by the court.
(2) The bond must be conditioned on the objectors paying all or
any part of the costs of the hearing as the court may order.
(d) In considering an objection described in subsection (a)(1)(A),
the court may at the hearing under section 16 of this chapter consider
the amount of the assessments made against the property for public
improvement during the preceding five (5) years. As added by P.L.98-1993, SEC.7.
IC 36-9-36-16 Court hearing on objections to final resolution
Sec. 16. (a) The court shall set a hearing as early as possible, but
not later than twenty (20) days after the filing of the objections with
the court. All interested parties shall appear in court without further
notice. The unit may not hold further proceedings concerning the
improvement until the matters presented by the objections are heard
and determined by the court. The matters shall be heard and
determined by the court without a jury.
(b) The court shall hear the evidence on the date fixed under
subsection (a). The court may confirm the order of the works board
or sustain the objections. The order of the court is conclusive, and all
subsequent proceedings concerning the improvement must conform
to the order.
(c) A special judge may be appointed if for any reason the regular
judge of the court cannot hear the objections within the twenty (20)
day time limit established by subsection (a). As added by P.L.98-1993, SEC.7.
IC 36-9-36-17 Construction or repair of sidewalks and curbs; notice to abutting
property owner of order requiring construction or repair
Sec. 17. (a) The works board may require the owners of abutting
property to construct or repair the owners' own sidewalks or curbs if
the works board:
(1) desires to improve or repair any sidewalks or curbs in the
unit; and
(2) adopts a final resolution to that effect.
(b) The works board must give notice of the order concerning the
construction or repair to the abutting property owners in person or by
mail. Mailing of notices to owners as the names of the owners appear
on the assessor's books of the county in which the land is located
complies with this requirement.
(c) A property owner has thirty (30) days from the date of the
notice to construct the sidewalks or curbs or make the repairs as
required by the notice.
(d) If a property owner fails to comply with the order, the works
board may have the sidewalk or curb constructed or repaired by an
independent contractor. As added by P.L.98-1993, SEC.7.
IC 36-9-36-18 Contracting by works board for construction or repair of sidewalk
or curb
Sec. 18. (a) The works board may let a general contract for the
making or repairing of all sidewalks or curbs of a specified material
within the unit. The contract shall include an agreed price per square
yard for the sidewalk construction.
(b) If the contract is for work in a municipality, the contract may
also specify the following:
(1) The price per cubic yard for excavation and filling.
(2) The price per lineal foot for curb.
(c) The letting of a contract under this section is governed by the
statutes regulating contractual authority of the unit. As added by P.L.98-1993, SEC.7.
IC 36-9-36-19 Levy and collection of assessments for construction or repair of
sidewalk or curb
Sec. 19. (a) Assessments for the construction or repair of
sidewalks or curbs shall be levied and collected according to this
chapter.
(b) The entire cost of the sidewalk or curb improvements or
repairs that the board undertakes by one (1) resolution shall be
assessed and apportioned against each lot or parcel of property
abutting on the improvement in the proportion the improved lineal
front footage of each lot or parcel of property bears to the entire
length of the improvement. As added by P.L.98-1993, SEC.7.
IC 36-9-36-20 Improvements on streets occupied by railroad tracks; procedure
Sec. 20. (a) This section does not apply to a county.
(b) If the track of a railroad, an interurban, or an interurban street
railroad occupies part of a street that is ordered improved under this
chapter, the works board may, on petition of the railroad, provide in
the plans and specifications for the improvement for a different
material and plan of construction for the part of the street occupied
by the railroad.
(c) If the railroad is bound by contract to improve or pay the cost
of improving the part of the street occupied by the railroad, the
railroad is entitled to construct all of that part of the improvement if
the railroad does the following:
(1) Elects to do so by written notice filed as follows:
(A) With the works board or other department of the unit
having power to order the improvement.
(B) At any time before the adoption of the final resolution or
ordinance providing for the improvement.
(2) On request of the works board or other department of the
unit, files with the board or other department a bond in the
amount and with the surety required by the works board or
other department. The bond must be conditioned on the
railroad's improvement of that part of the street:
(A) according to the plans and specifications;
(B) within the required time; and
(C) to the satisfaction of the engineer of the unit in charge of
the work.
(d) The works board may issue a written improvement order
requiring a railroad, an interurban, or an interurban street railroad to
comply with IC 8-6-12. As added by P.L.98-1993, SEC.7.
IC 36-9-36-21 Roadway grading; assessment
Sec. 21. (a) This section does not apply to a county.
(b) The works board may grade the roadway of a street and assess
the cost of the grading against the property specially benefited.
(c) The works board may let the contract under the statutes
regulating contractual authority of units. The unit shall levy and
collect the assessments for the grading according to this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-22 Advertisement for bids; opening and consideration of bids
Sec. 22. (a) If the works board finally orders an improvement, the
works board shall advertise for bids for the work as required by
IC 36-1-12.
(b) The advertisement must state the following:
(1) That on the date named, the unit will receive bids for the
improvement according to the resolution as modified or
confirmed.
(2) The part of the cost of the improvement, if any, that will be
paid by the unit.
(c) On the date named, all bids shall be publicly opened and
considered. As added by P.L.98-1993, SEC.7.
IC 36-9-36-23 Bid bond or deposit
Sec. 23. (a) If the works board finally orders an improvement and
has advertised for bids, the works board shall require each bidder to
deposit with the bidder's bid, at the bidder's option, either a bid bond
or a certified check to ensure the execution of the contract.
(b) The bid bond or certified check must be equal to the greater of
the following:
(1) An amount not less than two and one-half percent (2 1/2%)
of the engineer's estimate of the cost of the improvement.
(2) One hundred dollars ($100).
(c) The following applies if a bidder elects to deposit a bid bond:
(1) The bond must be payable to the works board with sufficient
sureties.
(2) The bond must be conditioned upon the bidder's execution
of a contract in accordance with the bidder's bid if accepted by
the works board.
(3) The bond must provide for forfeiture of the amount of the
bond upon the bidder's failure to execute the contract in
accordance with the bidder's bid.
(d) The works board shall do the following:
(1) Return all checks and bonds submitted by unsuccessful
bidders.
(2) Return a successful bidder's check or bond when the bidder
enters into a contract with the works board. As added by P.L.98-1993, SEC.7.
IC 36-9-36-24 Contracts; scope; actions to enjoin performance
Sec. 24. (a) The contract for an improvement must be for the
entire improvement.
(b) After the execution of a contract for an improvement, the
validity of the contract may be questioned only in an action to enjoin
the performance of the contract. This action must be brought:
(1) before the actual commencement of work under the contract,
for an improvement by a county; or
(2) before the later of the following, for an improvement by a
municipality:
(A) The actual commencement of work under the contract.
(B) Not later than ten (10) days after the execution of the
contract. As added by P.L.98-1993, SEC.7.
IC 36-9-36-25 Contractor's guarantee
Sec. 25. (a) A contractor for an improvement must guarantee the
contractor's workmanship and all materials used in the work.
(b) The guarantee required under subsection (a) must be in the
following form:
"The contractor warrants the contractor's workmanship and all
materials used in the work and agrees that during the guarantee
period specified the contractor will at the contractor's own
expense make all repairs that may become necessary by reason
of improper workmanship or defective materials. The
maintenance obligation, however, does not include repair of any
damage resulting from any force or circumstance beyond the
control of the contractor, nor is the contractor a guarantor of the
plans and specifications furnished by the (county, city, or
town).". As added by P.L.98-1993, SEC.7.
IC 36-9-36-26 Repairs by contractor
Sec. 26. (a) If repairs become necessary, the unit must give
written notice to the contractor to make the repairs. If the contractor
fails to begin the repairs not later than thirty (30) days after the
notice is received, the unit may do the following:
(1) Make the repairs using the unit's own employees or an
independent contractor.
(2) Recover from the contractor and the contractor's sureties the
reasonable cost of the repairs and the cost of the supervision
and inspection of the repairs.
(b) At the expiration of the guarantee period, the unit has sixty
(60) days in which to notify the contractor of any necessary repairs.
(c) This subsection does not apply to a county. If the repairs
necessary to be made at the expiration of the guarantee period
amount to more than one-half (1/2) the surface of one (1) block, the
entire pavement of the block shall be taken up and relaid in
accordance with the original specifications. As added by P.L.98-1993, SEC.7. IC 36-9-36-27 Monthly payments to contractor
Sec. 27. (a) A contractor for an improvement is entitled to
monthly estimates of the work done during each month. The
estimates shall be made by the engineer of the unit and approved by
the works board.
(b) The works board shall issue to the contractor certificates for
eighty-five percent (85%) of the amount due the contractor by the
estimates. The contractor is entitled to receive the amounts named in
the certificates in cash or improvement bonds to be collected or
issued by the unit. The certificates are negotiable instruments. As added by P.L.98-1993, SEC.7.
IC 36-9-36-28 Completed improvements; acceptance; cost estimates
Sec. 28. (a) An improvement that is completed according to
contract must be accepted by the works board.
(b) Upon the completion of an improvement according to contract,
the cost of the improvement shall be estimated according to the entire
length of the improvement. As added by P.L.98-1993, SEC.7.
IC 36-9-36-29 Assessments; abutting lands or lots; street and alley intersections
Sec. 29. (a) The total cost of an improvement as determined under
section 28(b) of this chapter, except for one-half (1/2) of the cost of
street and alley intersections, shall be assessed on the abutting land
or lots in the manner prescribed by this chapter.
(b) The remaining one-half (1/2) of the cost of street and alley
intersections shall be assessed on the land or lots abutting on the
streets or alleys that intersect the improved street or alley.
(c) Land and lots may be assessed for the following distances:
(1) One (1) block in either direction along the intersecting street
or alley if the intersecting street or alley crosses the improved
street or alley.
(2) One (1) block along the intersecting street or alley if the
intersecting street or alley enters but does not cross the
improved street or alley.
(d) For purposes of this section, the distance from the intersection
of:
(1) a street or an alley improved under this chapter; and
(2) another street or alley;
along the other street or alley to the street line of the next intersecting
street or alley is considered one (1) block. As added by P.L.98-1993, SEC.7.
IC 36-9-36-30 Assessments; basis; back lots; platted subdivisions
Sec. 30. (a) Lots, parcels, and tracts of land bordering on an
improvement shall be assessed on the basis set forth in this chapter,
without regard to the depth of the lots, parcels, or tracts back from
the front line of the improvement.
(b) After the final hearing before the works board concerning the
actual benefits to abutting and adjacent property, the works board
may assess other property behind the first lot if the following
conditions are met:
(1) The back lot is within one hundred fifty (150) feet of the
line of the improvement.
(2) The works board finds at the hearing that properties behind
the abutting lot and within one hundred fifty (150) feet of the
improvement are specially benefited by the improvement.
(c) Land and lots assessed under subsection (b) shall be assessed
only in the amount the lands or lots are specially benefited by the
improvement.
(d) Lots or land adjacent to the improvement are liable for the
payment of the assessment as set forth on the final assessment roll.
(e) This subsection applies only to counties. If an improvement is
constructed within a platted subdivision, the works board may assess
all or part of the lots in that subdivision or any other platted
subdivision connected to that platted subdivision by the
improvement. As added by P.L.98-1993, SEC.7.
IC 36-9-36-31 Preparation of assessment roll
Sec. 31. (a) As soon as a contract for an improvement has been
completed, the works board shall have an assessment roll prepared
for the property abutting on and adjacent to the improvement. The
property abutting on and adjacent to the improvement is liable to
assessment under this chapter.
(b) The assessment roll must include the following:
(1) The name of the owner of each parcel of property.
(2) A description of each parcel of property.
(3) The total assessment, if any, against each parcel of property.
The total assessment must be listed opposite each name and
description.
(c) A mistake in the name of the owner or the description of
property does not void the assessment or lien against the property. As added by P.L.98-1993, SEC.7.
IC 36-9-36-32 Presumptive finality of assessments; publication of notice
Sec. 32. (a) The following apply to the assessment indicated
against each lot, tract, or parcel of land on the assessment roll:
(1) The assessment is presumed to be the special benefit to the
lot, parcel, or tract of land.
(2) The assessment is the final and conclusive assessment
unless the assessment is changed under section 33 of this
chapter.
(b) Immediately after the assessment roll is completed and filed,
the works board shall publish a notice according to IC 5-3-1. The
notice must do the following:
(1) Describe the general character of the improvement.
(2) State that the assessment roll, with the names of owners and
descriptions of property subject to assessment and the amounts
of any presumptive assessments, is on file and may be inspected
at the works board's office.
(3) Name a time and date after the date of the last publication
on which the works board will do the following at the works
board's office:
(A) Receive and hear remonstrances against the amounts
assessed on the roll.
(B) Determine whether the lots or tracts of land have been or
will be benefited by the improvement in the following
amounts:
(i) The amounts listed on the assessment roll.
(ii) Amounts greater or lesser than the amounts listed on
the assessment roll.
(iii) Any amount at all.
(c) This subsection applies only to counties. The notice must also
describe the platted subdivision or the parts of the subdivision on
which there is property that is benefited and liable for assessment.
(d) This subsection applies only to municipalities. The notice
must also describe the following:
(1) The public way or public place on which the improvement
has been made.
(2) The terminals of the improvement.
(3) The public ways:
(A) that:
(i) intersect the improvement; or
(ii) are parallel to the improvement and within one
hundred fifty (150) feet of the improvement; and
(B) on which there is property that is benefited and liable for
assessment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-33 Remonstrance hearings; final determination of assessments
Sec. 33. (a) On the date fixed under section 32 of this chapter, the
works board shall receive and hear all remonstrances from the
owners of property described in the notice or the representatives of
the owners.
(b) After the hearing, the works board shall sustain or modify the
presumptive assessment as indicated on the assessment roll by
confirming, increasing, or reducing the presumptive assessment
against all or part of the property described in the roll. The works
board's decision must be based on the works board's findings
concerning the special benefits that the property has received or will
receive on account of the improvement.
(c) If any property liable for assessment is initially omitted from
the assessment roll or a presumptive assessment has not been made
against the property, the works board may place on the assessment
roll any special benefit that the omitted property has sustained or will
sustain by the improvement.
(d) The aggregate amount of assessments approved by the works
board under this section may not exceed the cost of the improvement
and must be equal to the aggregate amount of special benefits
determined by the board under section 10 of this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-34 Completion and delivery of assessment roll; appeals
Sec. 34. (a) The works board shall complete the assessment roll
and render the works board's decision by modifying or confirming
the roll. The assessment roll shall show the total amount of special
benefits opposite each name and a description of the property on the
roll. When completed, the assessment roll shall be delivered to the
following:
(1) The county assessor, for an improvement by a county.
(2) The municipal fiscal officer, for an improvement by a
municipality.
(b) The decision of the works board as to all benefits is final and
conclusive on all parties. However, an owner of an assessed lot or
parcel of land who has filed a written remonstrance with the board
may appeal to the circuit or superior court for the county. As added by P.L.98-1993, SEC.7.
IC 36-9-36-35 Delivery of primary assessment roll; payment of assessments to
disbursing officer
Sec. 35. (a) The works board shall deliver a certified copy of the
assessment roll completed under section 34 of this chapter to the
disbursing officer of the unit after the works board:
(1) approves and accepts the entire work under any contract;
and
(2) allows a final estimate.
(b) The duplicate assessment roll, to be known as the primary
assessment roll, must show the following:
(1) The amount due on each piece of property if paid in cash
within the time limit.
(2) The amount of waivers filed.
(c) The primary assessment roll must also have an appropriate
column in which payments may be properly credited by the
disbursing officer.
(d) This subsection does not apply to a county. All assessments,
regardless of whether the assessments are payable in installments, are
payable to the disbursing officer. The disbursing officer shall receive
the payments, give proper receipts, and enter the proper credit. As added by P.L.98-1993, SEC.7. IC 36-9-36-36 Assessment installments; notice when due
Sec. 36. (a) Upon receipt of the primary assessment roll, the
disbursing officer shall by mail notify each affected person of the
amount of the assessment against the person's property.
(b) The notice must state when the assessment is due, or when the
assessment installments are due. As added by P.L.98-1993, SEC.7. Amended by P.L.62-2001, SEC.2.
IC 36-9-36-37 Cash payment of assessments; interest on delinquencies
Sec. 37. (a) Except as provided in section 38 of this chapter, the
entire assessment is payable in cash without interest not later than
thirty (30) days after the approval of the assessment roll by the works
board if an agreement has not been signed and filed under section 36
of this chapter.
(b) If the assessment is not paid when due, the total assessment
becomes delinquent and bears interest at the rate prescribed by
IC 6-1.1-37-9(b) per year from the date of the final acceptance of the
completed improvement by the works board. As added by P.L.98-1993, SEC.7. Amended by P.L.172-1994, SEC.1;
P.L.67-2006, SEC.14; P.L.113-2010, SEC.154.
IC 36-9-36-38 Appeal of assessment; payment by property owner following court
certification
Sec. 38. (a) If a property owner appeals the assessment made
against the owner's property to the circuit court or superior court, the
clerk of the court shall certify the judgment of the court to the unit's
disbursing officer. The disbursing officer shall immediately notify
the property owner of the amount of the assessment fixed by the
court.
(b) The property owner has thirty (30) days from the date the
notice is sent to:
(1) pay the assessment in cash; or
(2) elect to pay the assessment in installments by entering into
an agreement under section 36 of this chapter.
(c) The unit shall then issue bonds in the amount of the
assessment fixed by the court. The bonds must bear the date of the
final acceptance of the work.
(d) The assessment bears interest as follows:
(1) From the date of the final acceptance of the work.
(2) At a specified rate per year that is not less than the interest
rate specified for installments under section 36 of this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-39 Appeal of assessment; payment of part ordered to be assessed
against unit
Sec. 39. The following applies to any part of the assessment that
the court orders to be assessed against the unit:
(1) The assessment bears interest:
(A) from the date of the final acceptance of the work; and
(B) at a specified rate per year that is not less than the
interest rate specified for installments under section 36 of
this chapter.
(2) The assessment may be paid by the unit in any manner
provided by law for paying other assessments against the unit
for similar work. As added by P.L.98-1993, SEC.7.
IC 36-9-36-40 Assessment liens
Sec. 40. (a) The unit has a lien against each parcel of real property
that is assessed for:
(1) the construction, maintenance, or repair of an improvement;
or
(2) the taking of lands for any purpose of the unit.
(b) The lien is established when the assessments are certified to
the disbursing officer for collection. The unit may bring a foreclosure
action to enforce the lien against a person who defaults in payment
of the assessment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-41 Installment payment procedure; proceeds constituting special fund
for payment of improvement; diversion prohibited
Sec. 41. (a) The disbursing officer of the unit shall do the
following:
(1) Receive the payment of assessment installments.
(2) Keep all accounts and give proper vouchers for the payment
of assessment installments.
(b) Proceeds arising from assessments for the payment of a
particular improvement may not be diverted to the payment of any
other improvement.
(c) The proceeds from assessments for the payment of a particular
improvement constitute a separate special fund for the following:
(1) The payment of contractors for the particular work, upon the
allowance of estimates by the works board.
(2) The security and payment of any bonds issued in
anticipation of the collection of the assessments for the
improvement, including debt service reserves to secure the
payment of the bonds.
(3) The payment of expenses incurred by the unit in performing
the unit's duties under this chapter, IC 36-9-37, IC 36-9-38, and
IC 36-9-39 (or under IC 36-9-18 through IC 36-9-21, before the
repeal of those provisions in 1993), including expenses, duties,
and costs associated with the issuance, sale, or payment of the
bonds. As added by P.L.98-1993, SEC.7. IC 36-9-36-42 Notice; payments to bond owner; process collectable by fiscal
officer
Sec. 42. If a bond owner receives a payment of interest or
principal, or both, that was to have been collected under this chapter
(or under IC 36-9-18 before its repeal in 1993) by the fiscal officer
of a unit, the bond owner shall notify the fiscal officer of the
payment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-43 Delinquent installments; acceleration; foreclosure of lien; notice of
delinquency
Sec. 43. (a) Failure to pay an installment of principal or interest
when the installment is due makes all installments of principal yet
unpaid due and payable immediately, unless the unpaid installment
of principal or interest is paid within the grace period provided.
(b) If the unit fails to collect an unpaid assessment or installment
when due, liability does not accrue against the unit. However, the
owner of the bonds or the person to whom the amount of the unpaid
assessment for the performance of the work is due and owing is
entitled to proceed in court to do the following:
(1) Enforce the lien or the unpaid assessment.
(2) Recover interest, costs, and reasonable attorney's fees.
(3) Have the proceeds of sale applied to the owner's or person's
claim.
(c) If a person defaults in the payment of an installment of
principal or interest, the disbursing officer shall mail a notice of the
delinquency to the person in accordance with IC 36-9-37 regardless
of whether a waiver has been signed. A notice mailed to the person
in whose name the lands are assessed, addressed to the person within
the unit, is sufficient notice. The person is not liable for attorney's
fees unless an action is actually brought on the assessment.
(d) An action to collect an unpaid assessment may not be brought
until the notice required by subsection (c) has been given.
(e) An action for foreclosure must be commenced not more than
five (5) years after the cause of action accrues. As added by P.L.98-1993, SEC.7.
IC 36-9-36-44 Bonds in anticipation of assessment proceeds; authorization
Sec. 44. (a) The works board may issue bonds in anticipation of
the collection of the assessments for an improvement. Except as
provided in subsections (b) and (c), the bonds shall be issued and
sold in the manner prescribed for other bonds of the unit. A unit
issuing bonds under this section is not required to attach coupons to
the bonds.
(b) The works board may provide for the issuance of the bonds
directly to the contractor in the works board's preliminary resolution
for the improvement. If direct issuance is authorized by the
resolution, the disbursing officer shall issue the bonds directly to the
contractor.
(c) The works board may by resolution choose to:
(1) sell the bonds by negotiated private sale to a financial
institution; and
(2) remit the proceeds of the sale to the contractor.
(d) The following applies after the issuance of bonds:
(1) An action to enjoin the collection of an assessment or to
challenge the validity of the bonds or the sale of the bonds may
not be brought.
(2) The validity of the assessment may not be questioned. As added by P.L.98-1993, SEC.7.
IC 36-9-36-45 Bonds; date; tax exemption
Sec. 45. (a) This section applies only to municipalities.
(b) Bonds issued in anticipation of the collection of assessments
for an improvement must bear the date of the completion of the
improvement under the contract and the acceptance of the
improvement by the works board. The bonds draw interest from that
date.
(c) The bonds are exempt from taxation for all purposes. As added by P.L.98-1993, SEC.7.
IC 36-9-36-46 Bonds; maturation; interest rate
Sec. 46. (a) The works board may provide in the preliminary
resolution that the bonds issued in anticipation of the collection of
the assessments shall be issued so as to mature not less than ten (10)
years and not more than thirty (30) years from the date of issuance.
(b) The interest on the bonds shall be payable semiannually from
the date of issue. The works board shall fix the rate of interest on the
bonds issued.
(c) Bonds issued in the manner described in subsection (a) shall
mature serially, so that some bonds mature each year until the final
maturity date of the issue is reached. The terms of the bonds may
allow early redemption of the bonds in the event of and to the extent
of prepayment of the assessments in anticipation of which the bonds
were issued.
(d) The works board must issue the bonds to mature as provided
under subsection (c) if a petition requesting the bonds to mature in
that manner is filed by a majority of the resident property owners
affected by the improvement not later than sixteen (16) days after the
resolution is first published. As added by P.L.98-1993, SEC.7. Amended by P.L.62-2001, SEC.3.
IC 36-9-36-47 Transfer of assessment liens to bond owners
Sec. 47. (a) Bonds issued in anticipation of the collection of
assessments convey and transfer to the owner of the bonds all
interests in the assessments and liens upon the respective lots or
parcels of land.
(b) The liens stand as security for the bonds and interest until the
bonds and interest are paid. A bond owner has full power to enforce
the lien by foreclosure in court as provided in this chapter if the bond
or interest is not paid when presented to the disbursing officer. As added by P.L.98-1993, SEC.7.
IC 36-9-36-48 Bond owners; foreclosure actions; procedure
Sec. 48. (a) Except as provided in subsection (b), sales to satisfy
the bonds and interest shall be made as provided in this chapter for
sales upon judgments or decrees foreclosing liens for assessments
levied for improvements.
(b) The first bondholder who brings a foreclosure action against
the property or any part of the property is entitled to have the
proceeds of the action applied pro rata to the payment of that
bondholder's own bonds and of bonds held by others.
(c) Only one (1) foreclosure action may be brought against one (1)
lot or parcel of land. However, all lots or parcels of land against
which the assessments are in default may be joined in one (1)
proceeding. As added by P.L.98-1993, SEC.7.
IC 36-9-36-49 Sale of property following foreclosure action; amount
Sec. 49. (a) The property upon which the assessment is placed
may not be sold for less than the amount of the assessment, attorney's
fees, and costs. The proceeds of the sale shall be distributed as
provided in this chapter.
(b) If the property sells for an amount greater than the amount
necessary to pay the principal, interest, attorney's fees, and costs, the
excess amount shall be paid to the property owner or party lawfully
entitled to that excess amount. As added by P.L.98-1993, SEC.7.
IC 36-9-36-50 Negotiability of bonds
Sec. 50. (a) The bonds issued in anticipation of the collection of
assessments are negotiable instruments and are free from all defenses
by property owners.
(b) It is not necessary that the bonds include language describing
the actions taken in ordering the improvement or directing the
assessment. The bonds may instead include a general reference to
this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-51 Foreclosure actions by contractors
Sec. 51. (a) This section applies to a contractor that is entitled to
enforce liens or assessments.
(b) The contractor or the contractor's assignee may bring an action
against a person who has defaulted in payment of an assessment to
foreclose the lien established by the assessment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-52 Foreclosure actions; complaint; proof
Sec. 52. (a) The complaint for a foreclosure action under this
chapter need not set forth the specific proceedings leading to the
final assessment. However, the complaint must include the following
information:
(1) The date on which the contract for the improvement was
finally let.
(2) The name of the improvement.
(3) The amount and date of the assessment.
(4) A statement that the assessment is unpaid.
(5) A description of the property on which the assessment was
levied.
(b) At the trial of a foreclosure action, the plaintiff is not required
to introduce proof of the proceedings before the works board leading
to the final assessment. However, the plaintiff must introduce the
final assessment roll or a copy of the final assessment roll. The final
assessment roll or the copy of the final assessment roll must be
properly certified.
(c) The final assessment roll or the copy is presumptive evidence
that the works board took all actions required to be taken in making
the final assessment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-53 Foreclosure actions; defenses
Sec. 53. (a) A defense to a foreclosure action may not be based on
any of the following:
(1) Any irregularity in the proceedings making, ordering, or
directing the assessment.
(2) The propriety or expediency of any improvement.
(b) A property owner may not raise any defense to a foreclosure
action if the owner has done the following:
(1) Exercised the option to pay the owner's assessment in
installments.
(2) Signed a waiver. As added by P.L.98-1993, SEC.7.
IC 36-9-36-54 Foreclosure actions; amount of recovery; sale procedure
Sec. 54. (a) In a foreclosure action brought under this chapter, the
plaintiff is entitled to recover the amount of the assessment, principal
and interest, and reasonable attorney's fees. The court shall order the
sale to be made without relief from valuation or appraisement law.
(b) The county sheriff shall sell the property in the same way that
lands are sold on execution. The sheriff shall, not later than five (5)
days after the sale, execute a certificate of sale to the purchaser. The
certificate of sale vests title in the purchaser when the certificate of
sale is delivered. Title vested by a certificate of sale is subject only
to the right to redeem under section 55 of this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-55 Foreclosure sales; irregularities; redemption
Sec. 55. (a) An irregularity or error in making a foreclosure sale
under this chapter does not make the sale ineffective, unless the
irregularity or error substantially prejudiced the property owner.
(b) A property owner has two (2) years from the date of sale in
which to redeem the owner's property. The property owner may
redeem the owner's property by paying the principal, interest, and
costs of the judgment, plus interest on the principal, interest, and
costs at the rate prescribed by IC 6-1.1-37-9(b).
(c) If the property is not redeemed, the sheriff shall execute a deed
to the purchaser. The deed relates back to the final letting of the
contract for the improvement and is superior to all liens, claims, and
interests, except liens for taxes. As added by P.L.98-1993, SEC.7. Amended by P.L.67-2006, SEC.15;
P.L.113-2010, SEC.155.
IC 36-9-36-56 Foreclosure actions; parties; appearances; disposition of proceeds
Sec. 56. (a) In a foreclosure action under this chapter, other than
a foreclosure action in which the unit is the plaintiff, the plaintiff
must do the following:
(1) Name the officer who has custody of the improvement funds
of the unit as a party defendant.
(2) Name that officer as custodian of the improvement
assessment fund of the unit.
(b) The officer described in subsection (a) shall then notify the
attorney of the unit to appear in the action.
(c) The fiscal officer of the unit shall do the following:
(1) Trace the proceeds of the foreclosure so that proceeds
arising from assessments for the improvement of a particular
project are not diverted to the payment of any other
improvement.
(2) Ensure that in each case the judgment proceeds constitute a
special fund for the payment of contractors or bondholders for
the particular work.
(d) The judgment proceeds shall be allocated to the proper public
improvement fund for pro rata distribution to the bondholders or
contractors who are entitled to those proceeds. As added by P.L.98-1993, SEC.7.
IC 36-9-36-57 Foreclosure actions; payment of judgment; costs and attorney's
fees; decree
Sec. 57. (a) The court costs and the attorney's fees allowed in
foreclosure actions shall be paid directly to the clerk of the court to
satisfy that part of a judgment. The remainder of the judgment shall
be paid directly to the disbursing officer for the benefit of the special
improvement fund of the department that is entitled to the
foreclosure proceeds.
(b) The disbursing officer shall do the following:
(1) Enter the payment under subsection (a) on the records and
duplicates.
(2) Satisfy the judgme
IC 36-9-36
Chapter 36. Barrett Law Funding for Counties and Municipalities
IC 36-9-36-1 Application of chapter
Sec. 1. This chapter applies to all units except townships. As added by P.L.98-1993, SEC.7.
IC 36-9-36-2 Authorized improvements
Sec. 2. (a) The following improvements may be made under this
chapter by a county:
(1) Sanitary sewers and sanitary sewer tap-ins.
(2) Sidewalks.
(3) Curbs.
(4) Streets.
(5) Storm sewers.
(6) Lighting.
(7) Emergency warning systems.
(8) Any other structures necessary or useful for the collection,
treatment, purification, and sanitary disposal of the liquid
waste, sewage, storm drainage, and other drainage of a
municipality.
(b) The following improvements may be made under this chapter
by a municipality:
(1) Sidewalks.
(2) Curbs.
(3) Streets.
(4) Alleys.
(5) Paved public places.
(6) Lighting.
(7) A water main extension for a municipality that owns and
operates a water utility.
(8) Emergency warning systems. As added by P.L.98-1993, SEC.7. Amended by P.L.31-2004, SEC.1;
P.L.42-2006, SEC.1.
IC 36-9-36-3 Limitations on authorized improvements; location of
improvement; water main extensions
Sec. 3. (a) The following apply to improvements made under this
chapter by a county:
(1) An improvement may be made only in unincorporated areas
that contain residential or business buildings.
(2) An improvement may not be made on a tract of land that:
(A) consists of at least ten (10) acres and contains only one
(1) building that is used for residential purposes; or
(B) is used solely for agricultural purposes.
(b) A water main extension made under this chapter by a
municipality may be made only within the corporate boundaries of
the municipality. As added by P.L.98-1993, SEC.7.
IC 36-9-36-4 Preliminary resolutions; cross-sections, plans, and specifications
Sec. 4. (a) If the works board of a unit wants to make an
improvement under this chapter, the works board must first do the
following:
(1) Adopt a preliminary resolution for the improvement.
(2) Adopt and place on file cross-sections, general plans, and
specifications for the work at the time the preliminary
resolution is adopted.
(b) This subsection does not apply to a county. The cross-sections,
plans, and specifications filed under subsection (a) must conform to
any paving standards adopted by the works board, unless engineering
practice justifies a different design. As added by P.L.98-1993, SEC.7.
IC 36-9-36-5 Estimate of costs; incidental, inspection, and engineering costs
Sec. 5. (a) If an improvement is to be paid for in whole or in part
by special assessments levied against the property to be benefited by
the improvement, the works board must adopt and file an estimate of
the cost of the public improvement.
(b) The estimate may include all incidental, inspection, and
engineering costs caused by the proposed improvement. However,
the estimate of the costs to be paid by special assessment may not
include the following:
(1) Salaries and expenses of the necessary and regularly
employed personnel of the engineering department of the unit.
(2) Ordinary operating costs of the department.
(c) If the works board finds that it is necessary to employ
additional engineering services for a particular improvement, the cost
of the additional service actually performed in connection with the
improvement may be included in the estimate. As added by P.L.98-1993, SEC.7.
IC 36-9-36-6 Incidental, inspection, and engineering costs; inclusion on
assessment roll
Sec. 6. (a) The incidental, inspection, and engineering costs that
are authorized by the preliminary resolution and included in the
estimate may be added to the cost of an improvement and included
in the assessment roll in the aggregate amount to be apportioned and
assessed against the benefited property.
(b) The amount of incidental, inspection, and engineering costs
included in the assessment roll may not exceed the amount of the
incidental, inspection, and engineering costs included in the estimate. As added by P.L.98-1993, SEC.7. IC 36-9-36-7 Incidental, inspection, and engineering costs; inclusion in
contracts; subrogation rights of contractor
Sec. 7. The following applies if the preliminary resolution
provides for the inclusion and assessment of incidental, inspection,
and engineering costs:
(1) The works board shall include in a contract for an
improvement a provision that requires all incidental, inspection,
and engineering costs to be advanced and paid by the contract
or to the board, upon the final acceptance of the improvement,
for payment by the board to persons entitled to the incidental,
inspection, and engineering costs.
(2) The contractor is then subrogated to all rights of the unit and
those persons to all the incidental, inspection, and engineering
costs subsequently included in and assessed upon the
assessment roll.
(3) The costs belong to the contractor as a part of the
assessments. As added by P.L.98-1993, SEC.7.
IC 36-9-36-8 Notice of hearing on preliminary resolution; publication; mailing
to property owners
Sec. 8. (a) Notice of a hearing on the preliminary resolution shall
be published in accordance with IC 5-3-1. The notice must state that
the works board has adopted the preliminary resolution and the time
and place at which the works board will do the following:
(1) Hear all interested persons.
(2) Decide whether the benefits to the property liable to be
assessed for the improvement will equal the estimated cost of
the improvement.
(b) A notice containing the information required under subsection
(a) shall be sent to each property owner affected by the proposed
improvement. The mailing of the notice complies with this
subsection if the mailing is to owners as the owners appear in the
records of the assessor of the county in which the property is located. As added by P.L.98-1993, SEC.7.
IC 36-9-36-9 Estimate of maximum cost
Sec. 9. (a) At least ten (10) days before the date fixed for a
hearing under section 8 of this chapter, the engineer of the unit shall
file with the works board an estimate of the maximum cost of the
improvement proposed by the works board.
(b) The estimate must include the following:
(1) The cost of the guarantee under section 25 of this chapter.
(2) The cost of the maintenance of the improvements for at least
three (3) years.
(c) A unit may not enter into a contract under the preliminary
resolution if the contract exceeds the engineer's estimate filed under
subsection (a). As added by P.L.98-1993, SEC.7.
IC 36-9-36-9.5 Assessments; installment payments
Sec. 9.5. (a) With respect to assessments imposed after June 30,
2001, the works board shall establish a procedure to permit owners
of real property in the unit to elect whether to pay assessments in:
(1) ten (10), twenty (20), or thirty (30) annual installments; or
(2) a number of monthly installments that corresponds to ten
(10), twenty (20), or thirty (30) annual installments.
(b) The works board shall establish the timing of the election
under subsection (a) to permit the works board to structure the
maturities of the principal of the bonds in a number of annual series
that is consistent with the installment periods elected by owners of
real property under subsection (a).
(c) A person who elects to pay the person's assessment in
installments under this section must, when directed by the works
board, enter into a written agreement stating that in consideration of
that privilege the person:
(1) will not make an objection to an illegality or irregularity
regarding the assessment against the person's property; and
(2) will pay the assessment as required by law with specified
interest.
(d) The agreement under subsection (c) shall be filed in the office
of the disbursing officer.
(e) The interest rate specified for the installments of the
assessment may be equal to or greater than the interest rate on bonds
issued under section 44 of this chapter.
(f) An assessment of less than one hundred dollars ($100) may not
be paid in installments. As added by P.L.62-2001, SEC.1.
IC 36-9-36-10 Hearing on preliminary resolution; determination of special
benefits accruing to property
Sec. 10. (a) At the hearing specified in the notice under section 8
of this chapter, the works board shall do the following:
(1) Hear interested persons.
(2) Decide whether the benefits that will accrue to the property
liable to be assessed for the improvement will equal the
maximum estimated cost of the improvement.
(b) If the works board finds that the benefits will not equal the
maximum estimated cost of the improvement, the board shall
determine the aggregate amount of special benefits that will accrue
to the property liable to be assessed for the improvement.
(c) Except as provided in sections 13 and 14 of this chapter, the
works board's determination concerning the aggregate amount of
special benefits that will accrue to the property liable to be assessed
for the improvement is final and conclusive.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-11 Levy of special assessments; improvement cost as maximum
amount of assessment; improvement cost payable by unit
Sec. 11. (a) The works board shall levy special assessments for
the amount determined under section 10 of this chapter if:
(1) the contract for the improvement is executed; and
(2) the improvement is made.
(b) The special assessments levied under this section may not
exceed the cost of the improvement.
(c) If the amount determined under section 10 of this chapter is
less than the contract price, the remainder of the cost of the
improvement is payable by the unit. As added by P.L.98-1993, SEC.7.
IC 36-9-36-12 Allowances against assessment and contract price
Sec. 12. (a) The works board shall make an allowance to the
owner of any property if:
(1) an improvement exists in front of the property before the
improvement is ordered; and
(2) the improvement conforms to the general plan.
(b) An allowance under subsection (a) shall be made from the
owner's assessment and from the total amount of the contract price. As added by P.L.98-1993, SEC.7.
IC 36-9-36-13 Confirmation, modification, or rescission of preliminary resolution
Sec. 13. (a) After the works board determines the amount of
special benefits that will accrue to the property liable to be assessed
for the improvement, the works board may do any of the following:
(1) Confirm the preliminary resolution.
(2) Modify the preliminary resolution.
(3) Rescind the preliminary resolution.
(b) Except as provided in section 14 of this chapter, the
preliminary resolution is final and conclusive on all parties if:
(1) the preliminary resolution is modified or confirmed under
this section; and
(2) the improvement is ordered. As added by P.L.98-1993, SEC.7.
IC 36-9-36-14 Remonstrances and appeals
Sec. 14. (a) A majority of the persons who own the property to be
assessed for the improvement may remonstrate against the
improvement or take an appeal. The remonstrance or appeal must be
made not later than ten (10) days after the hearing under section 10
of this chapter.
(b) If there is a remonstrance, the improvement may not be made
unless specifically ordered by an ordinance passed by a two-thirds
(2/3) vote of the unit's legislative body. An ordinance under this
subsection must be passed not later than sixty (60) days after the
remonstrance is made. As added by P.L.98-1993, SEC.7.
IC 36-9-36-15 Objections to final resolution; filing; bond; prior assessments
Sec. 15. (a) If the works board finally orders an improvement,
forty percent (40%) of the persons who own property abutting the
improvement and who are subject to assessment may file written
objections with the board. The written objections must:
(1) state at least one (1) of the following:
(A) The improvement is not needed by the public.
(B) The cost of the proposed improvement would be
excessive considering the character and value of the property
to be assessed.
(C) The cost of the proposed improvement will exceed the
benefits to the property to be assessed.
(D) The works board does not have the legal authority to
order the improvement.
(2) be filed not later than five (5) days after the making of the
final order.
(b) If the works board does not abandon the proposed
improvement, the following shall, not later than five (5) days after
the filing of the objections with the works board, file with the clerk
of the circuit or superior court of the county a copy of the order of
improvement and the objections:
(1) The auditor, in the case of a county.
(2) The clerk, in the case of a municipality.
(c) Objectors must file with their objections a bond with security
to the satisfaction of the court. The following apply to a bond filed
under this subsection:
(1) The bond shall be in a sum fixed by the court.
(2) The bond must be conditioned on the objectors paying all or
any part of the costs of the hearing as the court may order.
(d) In considering an objection described in subsection (a)(1)(A),
the court may at the hearing under section 16 of this chapter consider
the amount of the assessments made against the property for public
improvement during the preceding five (5) years. As added by P.L.98-1993, SEC.7.
IC 36-9-36-16 Court hearing on objections to final resolution
Sec. 16. (a) The court shall set a hearing as early as possible, but
not later than twenty (20) days after the filing of the objections with
the court. All interested parties shall appear in court without further
notice. The unit may not hold further proceedings concerning the
improvement until the matters presented by the objections are heard
and determined by the court. The matters shall be heard and
determined by the court without a jury.
(b) The court shall hear the evidence on the date fixed under
subsection (a). The court may confirm the order of the works board
or sustain the objections. The order of the court is conclusive, and all
subsequent proceedings concerning the improvement must conform
to the order.
(c) A special judge may be appointed if for any reason the regular
judge of the court cannot hear the objections within the twenty (20)
day time limit established by subsection (a). As added by P.L.98-1993, SEC.7.
IC 36-9-36-17 Construction or repair of sidewalks and curbs; notice to abutting
property owner of order requiring construction or repair
Sec. 17. (a) The works board may require the owners of abutting
property to construct or repair the owners' own sidewalks or curbs if
the works board:
(1) desires to improve or repair any sidewalks or curbs in the
unit; and
(2) adopts a final resolution to that effect.
(b) The works board must give notice of the order concerning the
construction or repair to the abutting property owners in person or by
mail. Mailing of notices to owners as the names of the owners appear
on the assessor's books of the county in which the land is located
complies with this requirement.
(c) A property owner has thirty (30) days from the date of the
notice to construct the sidewalks or curbs or make the repairs as
required by the notice.
(d) If a property owner fails to comply with the order, the works
board may have the sidewalk or curb constructed or repaired by an
independent contractor. As added by P.L.98-1993, SEC.7.
IC 36-9-36-18 Contracting by works board for construction or repair of sidewalk
or curb
Sec. 18. (a) The works board may let a general contract for the
making or repairing of all sidewalks or curbs of a specified material
within the unit. The contract shall include an agreed price per square
yard for the sidewalk construction.
(b) If the contract is for work in a municipality, the contract may
also specify the following:
(1) The price per cubic yard for excavation and filling.
(2) The price per lineal foot for curb.
(c) The letting of a contract under this section is governed by the
statutes regulating contractual authority of the unit. As added by P.L.98-1993, SEC.7.
IC 36-9-36-19 Levy and collection of assessments for construction or repair of
sidewalk or curb
Sec. 19. (a) Assessments for the construction or repair of
sidewalks or curbs shall be levied and collected according to this
chapter.
(b) The entire cost of the sidewalk or curb improvements or
repairs that the board undertakes by one (1) resolution shall be
assessed and apportioned against each lot or parcel of property
abutting on the improvement in the proportion the improved lineal
front footage of each lot or parcel of property bears to the entire
length of the improvement. As added by P.L.98-1993, SEC.7.
IC 36-9-36-20 Improvements on streets occupied by railroad tracks; procedure
Sec. 20. (a) This section does not apply to a county.
(b) If the track of a railroad, an interurban, or an interurban street
railroad occupies part of a street that is ordered improved under this
chapter, the works board may, on petition of the railroad, provide in
the plans and specifications for the improvement for a different
material and plan of construction for the part of the street occupied
by the railroad.
(c) If the railroad is bound by contract to improve or pay the cost
of improving the part of the street occupied by the railroad, the
railroad is entitled to construct all of that part of the improvement if
the railroad does the following:
(1) Elects to do so by written notice filed as follows:
(A) With the works board or other department of the unit
having power to order the improvement.
(B) At any time before the adoption of the final resolution or
ordinance providing for the improvement.
(2) On request of the works board or other department of the
unit, files with the board or other department a bond in the
amount and with the surety required by the works board or
other department. The bond must be conditioned on the
railroad's improvement of that part of the street:
(A) according to the plans and specifications;
(B) within the required time; and
(C) to the satisfaction of the engineer of the unit in charge of
the work.
(d) The works board may issue a written improvement order
requiring a railroad, an interurban, or an interurban street railroad to
comply with IC 8-6-12. As added by P.L.98-1993, SEC.7.
IC 36-9-36-21 Roadway grading; assessment
Sec. 21. (a) This section does not apply to a county.
(b) The works board may grade the roadway of a street and assess
the cost of the grading against the property specially benefited.
(c) The works board may let the contract under the statutes
regulating contractual authority of units. The unit shall levy and
collect the assessments for the grading according to this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-22 Advertisement for bids; opening and consideration of bids
Sec. 22. (a) If the works board finally orders an improvement, the
works board shall advertise for bids for the work as required by
IC 36-1-12.
(b) The advertisement must state the following:
(1) That on the date named, the unit will receive bids for the
improvement according to the resolution as modified or
confirmed.
(2) The part of the cost of the improvement, if any, that will be
paid by the unit.
(c) On the date named, all bids shall be publicly opened and
considered. As added by P.L.98-1993, SEC.7.
IC 36-9-36-23 Bid bond or deposit
Sec. 23. (a) If the works board finally orders an improvement and
has advertised for bids, the works board shall require each bidder to
deposit with the bidder's bid, at the bidder's option, either a bid bond
or a certified check to ensure the execution of the contract.
(b) The bid bond or certified check must be equal to the greater of
the following:
(1) An amount not less than two and one-half percent (2 1/2%)
of the engineer's estimate of the cost of the improvement.
(2) One hundred dollars ($100).
(c) The following applies if a bidder elects to deposit a bid bond:
(1) The bond must be payable to the works board with sufficient
sureties.
(2) The bond must be conditioned upon the bidder's execution
of a contract in accordance with the bidder's bid if accepted by
the works board.
(3) The bond must provide for forfeiture of the amount of the
bond upon the bidder's failure to execute the contract in
accordance with the bidder's bid.
(d) The works board shall do the following:
(1) Return all checks and bonds submitted by unsuccessful
bidders.
(2) Return a successful bidder's check or bond when the bidder
enters into a contract with the works board. As added by P.L.98-1993, SEC.7.
IC 36-9-36-24 Contracts; scope; actions to enjoin performance
Sec. 24. (a) The contract for an improvement must be for the
entire improvement.
(b) After the execution of a contract for an improvement, the
validity of the contract may be questioned only in an action to enjoin
the performance of the contract. This action must be brought:
(1) before the actual commencement of work under the contract,
for an improvement by a county; or
(2) before the later of the following, for an improvement by a
municipality:
(A) The actual commencement of work under the contract.
(B) Not later than ten (10) days after the execution of the
contract. As added by P.L.98-1993, SEC.7.
IC 36-9-36-25 Contractor's guarantee
Sec. 25. (a) A contractor for an improvement must guarantee the
contractor's workmanship and all materials used in the work.
(b) The guarantee required under subsection (a) must be in the
following form:
"The contractor warrants the contractor's workmanship and all
materials used in the work and agrees that during the guarantee
period specified the contractor will at the contractor's own
expense make all repairs that may become necessary by reason
of improper workmanship or defective materials. The
maintenance obligation, however, does not include repair of any
damage resulting from any force or circumstance beyond the
control of the contractor, nor is the contractor a guarantor of the
plans and specifications furnished by the (county, city, or
town).". As added by P.L.98-1993, SEC.7.
IC 36-9-36-26 Repairs by contractor
Sec. 26. (a) If repairs become necessary, the unit must give
written notice to the contractor to make the repairs. If the contractor
fails to begin the repairs not later than thirty (30) days after the
notice is received, the unit may do the following:
(1) Make the repairs using the unit's own employees or an
independent contractor.
(2) Recover from the contractor and the contractor's sureties the
reasonable cost of the repairs and the cost of the supervision
and inspection of the repairs.
(b) At the expiration of the guarantee period, the unit has sixty
(60) days in which to notify the contractor of any necessary repairs.
(c) This subsection does not apply to a county. If the repairs
necessary to be made at the expiration of the guarantee period
amount to more than one-half (1/2) the surface of one (1) block, the
entire pavement of the block shall be taken up and relaid in
accordance with the original specifications. As added by P.L.98-1993, SEC.7. IC 36-9-36-27 Monthly payments to contractor
Sec. 27. (a) A contractor for an improvement is entitled to
monthly estimates of the work done during each month. The
estimates shall be made by the engineer of the unit and approved by
the works board.
(b) The works board shall issue to the contractor certificates for
eighty-five percent (85%) of the amount due the contractor by the
estimates. The contractor is entitled to receive the amounts named in
the certificates in cash or improvement bonds to be collected or
issued by the unit. The certificates are negotiable instruments. As added by P.L.98-1993, SEC.7.
IC 36-9-36-28 Completed improvements; acceptance; cost estimates
Sec. 28. (a) An improvement that is completed according to
contract must be accepted by the works board.
(b) Upon the completion of an improvement according to contract,
the cost of the improvement shall be estimated according to the entire
length of the improvement. As added by P.L.98-1993, SEC.7.
IC 36-9-36-29 Assessments; abutting lands or lots; street and alley intersections
Sec. 29. (a) The total cost of an improvement as determined under
section 28(b) of this chapter, except for one-half (1/2) of the cost of
street and alley intersections, shall be assessed on the abutting land
or lots in the manner prescribed by this chapter.
(b) The remaining one-half (1/2) of the cost of street and alley
intersections shall be assessed on the land or lots abutting on the
streets or alleys that intersect the improved street or alley.
(c) Land and lots may be assessed for the following distances:
(1) One (1) block in either direction along the intersecting street
or alley if the intersecting street or alley crosses the improved
street or alley.
(2) One (1) block along the intersecting street or alley if the
intersecting street or alley enters but does not cross the
improved street or alley.
(d) For purposes of this section, the distance from the intersection
of:
(1) a street or an alley improved under this chapter; and
(2) another street or alley;
along the other street or alley to the street line of the next intersecting
street or alley is considered one (1) block. As added by P.L.98-1993, SEC.7.
IC 36-9-36-30 Assessments; basis; back lots; platted subdivisions
Sec. 30. (a) Lots, parcels, and tracts of land bordering on an
improvement shall be assessed on the basis set forth in this chapter,
without regard to the depth of the lots, parcels, or tracts back from
the front line of the improvement.
(b) After the final hearing before the works board concerning the
actual benefits to abutting and adjacent property, the works board
may assess other property behind the first lot if the following
conditions are met:
(1) The back lot is within one hundred fifty (150) feet of the
line of the improvement.
(2) The works board finds at the hearing that properties behind
the abutting lot and within one hundred fifty (150) feet of the
improvement are specially benefited by the improvement.
(c) Land and lots assessed under subsection (b) shall be assessed
only in the amount the lands or lots are specially benefited by the
improvement.
(d) Lots or land adjacent to the improvement are liable for the
payment of the assessment as set forth on the final assessment roll.
(e) This subsection applies only to counties. If an improvement is
constructed within a platted subdivision, the works board may assess
all or part of the lots in that subdivision or any other platted
subdivision connected to that platted subdivision by the
improvement. As added by P.L.98-1993, SEC.7.
IC 36-9-36-31 Preparation of assessment roll
Sec. 31. (a) As soon as a contract for an improvement has been
completed, the works board shall have an assessment roll prepared
for the property abutting on and adjacent to the improvement. The
property abutting on and adjacent to the improvement is liable to
assessment under this chapter.
(b) The assessment roll must include the following:
(1) The name of the owner of each parcel of property.
(2) A description of each parcel of property.
(3) The total assessment, if any, against each parcel of property.
The total assessment must be listed opposite each name and
description.
(c) A mistake in the name of the owner or the description of
property does not void the assessment or lien against the property. As added by P.L.98-1993, SEC.7.
IC 36-9-36-32 Presumptive finality of assessments; publication of notice
Sec. 32. (a) The following apply to the assessment indicated
against each lot, tract, or parcel of land on the assessment roll:
(1) The assessment is presumed to be the special benefit to the
lot, parcel, or tract of land.
(2) The assessment is the final and conclusive assessment
unless the assessment is changed under section 33 of this
chapter.
(b) Immediately after the assessment roll is completed and filed,
the works board shall publish a notice according to IC 5-3-1. The
notice must do the following:
(1) Describe the general character of the improvement.
(2) State that the assessment roll, with the names of owners and
descriptions of property subject to assessment and the amounts
of any presumptive assessments, is on file and may be inspected
at the works board's office.
(3) Name a time and date after the date of the last publication
on which the works board will do the following at the works
board's office:
(A) Receive and hear remonstrances against the amounts
assessed on the roll.
(B) Determine whether the lots or tracts of land have been or
will be benefited by the improvement in the following
amounts:
(i) The amounts listed on the assessment roll.
(ii) Amounts greater or lesser than the amounts listed on
the assessment roll.
(iii) Any amount at all.
(c) This subsection applies only to counties. The notice must also
describe the platted subdivision or the parts of the subdivision on
which there is property that is benefited and liable for assessment.
(d) This subsection applies only to municipalities. The notice
must also describe the following:
(1) The public way or public place on which the improvement
has been made.
(2) The terminals of the improvement.
(3) The public ways:
(A) that:
(i) intersect the improvement; or
(ii) are parallel to the improvement and within one
hundred fifty (150) feet of the improvement; and
(B) on which there is property that is benefited and liable for
assessment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-33 Remonstrance hearings; final determination of assessments
Sec. 33. (a) On the date fixed under section 32 of this chapter, the
works board shall receive and hear all remonstrances from the
owners of property described in the notice or the representatives of
the owners.
(b) After the hearing, the works board shall sustain or modify the
presumptive assessment as indicated on the assessment roll by
confirming, increasing, or reducing the presumptive assessment
against all or part of the property described in the roll. The works
board's decision must be based on the works board's findings
concerning the special benefits that the property has received or will
receive on account of the improvement.
(c) If any property liable for assessment is initially omitted from
the assessment roll or a presumptive assessment has not been made
against the property, the works board may place on the assessment
roll any special benefit that the omitted property has sustained or will
sustain by the improvement.
(d) The aggregate amount of assessments approved by the works
board under this section may not exceed the cost of the improvement
and must be equal to the aggregate amount of special benefits
determined by the board under section 10 of this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-34 Completion and delivery of assessment roll; appeals
Sec. 34. (a) The works board shall complete the assessment roll
and render the works board's decision by modifying or confirming
the roll. The assessment roll shall show the total amount of special
benefits opposite each name and a description of the property on the
roll. When completed, the assessment roll shall be delivered to the
following:
(1) The county assessor, for an improvement by a county.
(2) The municipal fiscal officer, for an improvement by a
municipality.
(b) The decision of the works board as to all benefits is final and
conclusive on all parties. However, an owner of an assessed lot or
parcel of land who has filed a written remonstrance with the board
may appeal to the circuit or superior court for the county. As added by P.L.98-1993, SEC.7.
IC 36-9-36-35 Delivery of primary assessment roll; payment of assessments to
disbursing officer
Sec. 35. (a) The works board shall deliver a certified copy of the
assessment roll completed under section 34 of this chapter to the
disbursing officer of the unit after the works board:
(1) approves and accepts the entire work under any contract;
and
(2) allows a final estimate.
(b) The duplicate assessment roll, to be known as the primary
assessment roll, must show the following:
(1) The amount due on each piece of property if paid in cash
within the time limit.
(2) The amount of waivers filed.
(c) The primary assessment roll must also have an appropriate
column in which payments may be properly credited by the
disbursing officer.
(d) This subsection does not apply to a county. All assessments,
regardless of whether the assessments are payable in installments, are
payable to the disbursing officer. The disbursing officer shall receive
the payments, give proper receipts, and enter the proper credit. As added by P.L.98-1993, SEC.7. IC 36-9-36-36 Assessment installments; notice when due
Sec. 36. (a) Upon receipt of the primary assessment roll, the
disbursing officer shall by mail notify each affected person of the
amount of the assessment against the person's property.
(b) The notice must state when the assessment is due, or when the
assessment installments are due. As added by P.L.98-1993, SEC.7. Amended by P.L.62-2001, SEC.2.
IC 36-9-36-37 Cash payment of assessments; interest on delinquencies
Sec. 37. (a) Except as provided in section 38 of this chapter, the
entire assessment is payable in cash without interest not later than
thirty (30) days after the approval of the assessment roll by the works
board if an agreement has not been signed and filed under section 36
of this chapter.
(b) If the assessment is not paid when due, the total assessment
becomes delinquent and bears interest at the rate prescribed by
IC 6-1.1-37-9(b) per year from the date of the final acceptance of the
completed improvement by the works board. As added by P.L.98-1993, SEC.7. Amended by P.L.172-1994, SEC.1;
P.L.67-2006, SEC.14; P.L.113-2010, SEC.154.
IC 36-9-36-38 Appeal of assessment; payment by property owner following court
certification
Sec. 38. (a) If a property owner appeals the assessment made
against the owner's property to the circuit court or superior court, the
clerk of the court shall certify the judgment of the court to the unit's
disbursing officer. The disbursing officer shall immediately notify
the property owner of the amount of the assessment fixed by the
court.
(b) The property owner has thirty (30) days from the date the
notice is sent to:
(1) pay the assessment in cash; or
(2) elect to pay the assessment in installments by entering into
an agreement under section 36 of this chapter.
(c) The unit shall then issue bonds in the amount of the
assessment fixed by the court. The bonds must bear the date of the
final acceptance of the work.
(d) The assessment bears interest as follows:
(1) From the date of the final acceptance of the work.
(2) At a specified rate per year that is not less than the interest
rate specified for installments under section 36 of this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-39 Appeal of assessment; payment of part ordered to be assessed
against unit
Sec. 39. The following applies to any part of the assessment that
the court orders to be assessed against the unit:
(1) The assessment bears interest:
(A) from the date of the final acceptance of the work; and
(B) at a specified rate per year that is not less than the
interest rate specified for installments under section 36 of
this chapter.
(2) The assessment may be paid by the unit in any manner
provided by law for paying other assessments against the unit
for similar work. As added by P.L.98-1993, SEC.7.
IC 36-9-36-40 Assessment liens
Sec. 40. (a) The unit has a lien against each parcel of real property
that is assessed for:
(1) the construction, maintenance, or repair of an improvement;
or
(2) the taking of lands for any purpose of the unit.
(b) The lien is established when the assessments are certified to
the disbursing officer for collection. The unit may bring a foreclosure
action to enforce the lien against a person who defaults in payment
of the assessment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-41 Installment payment procedure; proceeds constituting special fund
for payment of improvement; diversion prohibited
Sec. 41. (a) The disbursing officer of the unit shall do the
following:
(1) Receive the payment of assessment installments.
(2) Keep all accounts and give proper vouchers for the payment
of assessment installments.
(b) Proceeds arising from assessments for the payment of a
particular improvement may not be diverted to the payment of any
other improvement.
(c) The proceeds from assessments for the payment of a particular
improvement constitute a separate special fund for the following:
(1) The payment of contractors for the particular work, upon the
allowance of estimates by the works board.
(2) The security and payment of any bonds issued in
anticipation of the collection of the assessments for the
improvement, including debt service reserves to secure the
payment of the bonds.
(3) The payment of expenses incurred by the unit in performing
the unit's duties under this chapter, IC 36-9-37, IC 36-9-38, and
IC 36-9-39 (or under IC 36-9-18 through IC 36-9-21, before the
repeal of those provisions in 1993), including expenses, duties,
and costs associated with the issuance, sale, or payment of the
bonds. As added by P.L.98-1993, SEC.7. IC 36-9-36-42 Notice; payments to bond owner; process collectable by fiscal
officer
Sec. 42. If a bond owner receives a payment of interest or
principal, or both, that was to have been collected under this chapter
(or under IC 36-9-18 before its repeal in 1993) by the fiscal officer
of a unit, the bond owner shall notify the fiscal officer of the
payment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-43 Delinquent installments; acceleration; foreclosure of lien; notice of
delinquency
Sec. 43. (a) Failure to pay an installment of principal or interest
when the installment is due makes all installments of principal yet
unpaid due and payable immediately, unless the unpaid installment
of principal or interest is paid within the grace period provided.
(b) If the unit fails to collect an unpaid assessment or installment
when due, liability does not accrue against the unit. However, the
owner of the bonds or the person to whom the amount of the unpaid
assessment for the performance of the work is due and owing is
entitled to proceed in court to do the following:
(1) Enforce the lien or the unpaid assessment.
(2) Recover interest, costs, and reasonable attorney's fees.
(3) Have the proceeds of sale applied to the owner's or person's
claim.
(c) If a person defaults in the payment of an installment of
principal or interest, the disbursing officer shall mail a notice of the
delinquency to the person in accordance with IC 36-9-37 regardless
of whether a waiver has been signed. A notice mailed to the person
in whose name the lands are assessed, addressed to the person within
the unit, is sufficient notice. The person is not liable for attorney's
fees unless an action is actually brought on the assessment.
(d) An action to collect an unpaid assessment may not be brought
until the notice required by subsection (c) has been given.
(e) An action for foreclosure must be commenced not more than
five (5) years after the cause of action accrues. As added by P.L.98-1993, SEC.7.
IC 36-9-36-44 Bonds in anticipation of assessment proceeds; authorization
Sec. 44. (a) The works board may issue bonds in anticipation of
the collection of the assessments for an improvement. Except as
provided in subsections (b) and (c), the bonds shall be issued and
sold in the manner prescribed for other bonds of the unit. A unit
issuing bonds under this section is not required to attach coupons to
the bonds.
(b) The works board may provide for the issuance of the bonds
directly to the contractor in the works board's preliminary resolution
for the improvement. If direct issuance is authorized by the
resolution, the disbursing officer shall issue the bonds directly to the
contractor.
(c) The works board may by resolution choose to:
(1) sell the bonds by negotiated private sale to a financial
institution; and
(2) remit the proceeds of the sale to the contractor.
(d) The following applies after the issuance of bonds:
(1) An action to enjoin the collection of an assessment or to
challenge the validity of the bonds or the sale of the bonds may
not be brought.
(2) The validity of the assessment may not be questioned. As added by P.L.98-1993, SEC.7.
IC 36-9-36-45 Bonds; date; tax exemption
Sec. 45. (a) This section applies only to municipalities.
(b) Bonds issued in anticipation of the collection of assessments
for an improvement must bear the date of the completion of the
improvement under the contract and the acceptance of the
improvement by the works board. The bonds draw interest from that
date.
(c) The bonds are exempt from taxation for all purposes. As added by P.L.98-1993, SEC.7.
IC 36-9-36-46 Bonds; maturation; interest rate
Sec. 46. (a) The works board may provide in the preliminary
resolution that the bonds issued in anticipation of the collection of
the assessments shall be issued so as to mature not less than ten (10)
years and not more than thirty (30) years from the date of issuance.
(b) The interest on the bonds shall be payable semiannually from
the date of issue. The works board shall fix the rate of interest on the
bonds issued.
(c) Bonds issued in the manner described in subsection (a) shall
mature serially, so that some bonds mature each year until the final
maturity date of the issue is reached. The terms of the bonds may
allow early redemption of the bonds in the event of and to the extent
of prepayment of the assessments in anticipation of which the bonds
were issued.
(d) The works board must issue the bonds to mature as provided
under subsection (c) if a petition requesting the bonds to mature in
that manner is filed by a majority of the resident property owners
affected by the improvement not later than sixteen (16) days after the
resolution is first published. As added by P.L.98-1993, SEC.7. Amended by P.L.62-2001, SEC.3.
IC 36-9-36-47 Transfer of assessment liens to bond owners
Sec. 47. (a) Bonds issued in anticipation of the collection of
assessments convey and transfer to the owner of the bonds all
interests in the assessments and liens upon the respective lots or
parcels of land.
(b) The liens stand as security for the bonds and interest until the
bonds and interest are paid. A bond owner has full power to enforce
the lien by foreclosure in court as provided in this chapter if the bond
or interest is not paid when presented to the disbursing officer. As added by P.L.98-1993, SEC.7.
IC 36-9-36-48 Bond owners; foreclosure actions; procedure
Sec. 48. (a) Except as provided in subsection (b), sales to satisfy
the bonds and interest shall be made as provided in this chapter for
sales upon judgments or decrees foreclosing liens for assessments
levied for improvements.
(b) The first bondholder who brings a foreclosure action against
the property or any part of the property is entitled to have the
proceeds of the action applied pro rata to the payment of that
bondholder's own bonds and of bonds held by others.
(c) Only one (1) foreclosure action may be brought against one (1)
lot or parcel of land. However, all lots or parcels of land against
which the assessments are in default may be joined in one (1)
proceeding. As added by P.L.98-1993, SEC.7.
IC 36-9-36-49 Sale of property following foreclosure action; amount
Sec. 49. (a) The property upon which the assessment is placed
may not be sold for less than the amount of the assessment, attorney's
fees, and costs. The proceeds of the sale shall be distributed as
provided in this chapter.
(b) If the property sells for an amount greater than the amount
necessary to pay the principal, interest, attorney's fees, and costs, the
excess amount shall be paid to the property owner or party lawfully
entitled to that excess amount. As added by P.L.98-1993, SEC.7.
IC 36-9-36-50 Negotiability of bonds
Sec. 50. (a) The bonds issued in anticipation of the collection of
assessments are negotiable instruments and are free from all defenses
by property owners.
(b) It is not necessary that the bonds include language describing
the actions taken in ordering the improvement or directing the
assessment. The bonds may instead include a general reference to
this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-51 Foreclosure actions by contractors
Sec. 51. (a) This section applies to a contractor that is entitled to
enforce liens or assessments.
(b) The contractor or the contractor's assignee may bring an action
against a person who has defaulted in payment of an assessment to
foreclose the lien established by the assessment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-52 Foreclosure actions; complaint; proof
Sec. 52. (a) The complaint for a foreclosure action under this
chapter need not set forth the specific proceedings leading to the
final assessment. However, the complaint must include the following
information:
(1) The date on which the contract for the improvement was
finally let.
(2) The name of the improvement.
(3) The amount and date of the assessment.
(4) A statement that the assessment is unpaid.
(5) A description of the property on which the assessment was
levied.
(b) At the trial of a foreclosure action, the plaintiff is not required
to introduce proof of the proceedings before the works board leading
to the final assessment. However, the plaintiff must introduce the
final assessment roll or a copy of the final assessment roll. The final
assessment roll or the copy of the final assessment roll must be
properly certified.
(c) The final assessment roll or the copy is presumptive evidence
that the works board took all actions required to be taken in making
the final assessment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-53 Foreclosure actions; defenses
Sec. 53. (a) A defense to a foreclosure action may not be based on
any of the following:
(1) Any irregularity in the proceedings making, ordering, or
directing the assessment.
(2) The propriety or expediency of any improvement.
(b) A property owner may not raise any defense to a foreclosure
action if the owner has done the following:
(1) Exercised the option to pay the owner's assessment in
installments.
(2) Signed a waiver. As added by P.L.98-1993, SEC.7.
IC 36-9-36-54 Foreclosure actions; amount of recovery; sale procedure
Sec. 54. (a) In a foreclosure action brought under this chapter, the
plaintiff is entitled to recover the amount of the assessment, principal
and interest, and reasonable attorney's fees. The court shall order the
sale to be made without relief from valuation or appraisement law.
(b) The county sheriff shall sell the property in the same way that
lands are sold on execution. The sheriff shall, not later than five (5)
days after the sale, execute a certificate of sale to the purchaser. The
certificate of sale vests title in the purchaser when the certificate of
sale is delivered. Title vested by a certificate of sale is subject only
to the right to redeem under section 55 of this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-55 Foreclosure sales; irregularities; redemption
Sec. 55. (a) An irregularity or error in making a foreclosure sale
under this chapter does not make the sale ineffective, unless the
irregularity or error substantially prejudiced the property owner.
(b) A property owner has two (2) years from the date of sale in
which to redeem the owner's property. The property owner may
redeem the owner's property by paying the principal, interest, and
costs of the judgment, plus interest on the principal, interest, and
costs at the rate prescribed by IC 6-1.1-37-9(b).
(c) If the property is not redeemed, the sheriff shall execute a deed
to the purchaser. The deed relates back to the final letting of the
contract for the improvement and is superior to all liens, claims, and
interests, except liens for taxes. As added by P.L.98-1993, SEC.7. Amended by P.L.67-2006, SEC.15;
P.L.113-2010, SEC.155.
IC 36-9-36-56 Foreclosure actions; parties; appearances; disposition of proceeds
Sec. 56. (a) In a foreclosure action under this chapter, other than
a foreclosure action in which the unit is the plaintiff, the plaintiff
must do the following:
(1) Name the officer who has custody of the improvement funds
of the unit as a party defendant.
(2) Name that officer as custodian of the improvement
assessment fund of the unit.
(b) The officer described in subsection (a) shall then notify the
attorney of the unit to appear in the action.
(c) The fiscal officer of the unit shall do the following:
(1) Trace the proceeds of the foreclosure so that proceeds
arising from assessments for the improvement of a particular
project are not diverted to the payment of any other
improvement.
(2) Ensure that in each case the judgment proceeds constitute a
special fund for the payment of contractors or bondholders for
the particular work.
(d) The judgment proceeds shall be allocated to the proper public
improvement fund for pro rata distribution to the bondholders or
contractors who are entitled to those proceeds. As added by P.L.98-1993, SEC.7.
IC 36-9-36-57 Foreclosure actions; payment of judgment; costs and attorney's
fees; decree
Sec. 57. (a) The court costs and the attorney's fees allowed in
foreclosure actions shall be paid directly to the clerk of the court to
satisfy that part of a judgment. The remainder of the judgment shall
be paid directly to the disbursing officer for the benefit of the special
improvement fund of the department that is entitled to the
foreclosure proceeds.
(b) The disbursing officer shall do the following:
(1) Enter the payment under subsection (a) on the records and
duplicates.
(2) Satisfy the judgme
IC 36-9-36
Chapter 36. Barrett Law Funding for Counties and Municipalities
IC 36-9-36-1 Application of chapter
Sec. 1. This chapter applies to all units except townships. As added by P.L.98-1993, SEC.7.
IC 36-9-36-2 Authorized improvements
Sec. 2. (a) The following improvements may be made under this
chapter by a county:
(1) Sanitary sewers and sanitary sewer tap-ins.
(2) Sidewalks.
(3) Curbs.
(4) Streets.
(5) Storm sewers.
(6) Lighting.
(7) Emergency warning systems.
(8) Any other structures necessary or useful for the collection,
treatment, purification, and sanitary disposal of the liquid
waste, sewage, storm drainage, and other drainage of a
municipality.
(b) The following improvements may be made under this chapter
by a municipality:
(1) Sidewalks.
(2) Curbs.
(3) Streets.
(4) Alleys.
(5) Paved public places.
(6) Lighting.
(7) A water main extension for a municipality that owns and
operates a water utility.
(8) Emergency warning systems. As added by P.L.98-1993, SEC.7. Amended by P.L.31-2004, SEC.1;
P.L.42-2006, SEC.1.
IC 36-9-36-3 Limitations on authorized improvements; location of
improvement; water main extensions
Sec. 3. (a) The following apply to improvements made under this
chapter by a county:
(1) An improvement may be made only in unincorporated areas
that contain residential or business buildings.
(2) An improvement may not be made on a tract of land that:
(A) consists of at least ten (10) acres and contains only one
(1) building that is used for residential purposes; or
(B) is used solely for agricultural purposes.
(b) A water main extension made under this chapter by a
municipality may be made only within the corporate boundaries of
the municipality. As added by P.L.98-1993, SEC.7.
IC 36-9-36-4 Preliminary resolutions; cross-sections, plans, and specifications
Sec. 4. (a) If the works board of a unit wants to make an
improvement under this chapter, the works board must first do the
following:
(1) Adopt a preliminary resolution for the improvement.
(2) Adopt and place on file cross-sections, general plans, and
specifications for the work at the time the preliminary
resolution is adopted.
(b) This subsection does not apply to a county. The cross-sections,
plans, and specifications filed under subsection (a) must conform to
any paving standards adopted by the works board, unless engineering
practice justifies a different design. As added by P.L.98-1993, SEC.7.
IC 36-9-36-5 Estimate of costs; incidental, inspection, and engineering costs
Sec. 5. (a) If an improvement is to be paid for in whole or in part
by special assessments levied against the property to be benefited by
the improvement, the works board must adopt and file an estimate of
the cost of the public improvement.
(b) The estimate may include all incidental, inspection, and
engineering costs caused by the proposed improvement. However,
the estimate of the costs to be paid by special assessment may not
include the following:
(1) Salaries and expenses of the necessary and regularly
employed personnel of the engineering department of the unit.
(2) Ordinary operating costs of the department.
(c) If the works board finds that it is necessary to employ
additional engineering services for a particular improvement, the cost
of the additional service actually performed in connection with the
improvement may be included in the estimate. As added by P.L.98-1993, SEC.7.
IC 36-9-36-6 Incidental, inspection, and engineering costs; inclusion on
assessment roll
Sec. 6. (a) The incidental, inspection, and engineering costs that
are authorized by the preliminary resolution and included in the
estimate may be added to the cost of an improvement and included
in the assessment roll in the aggregate amount to be apportioned and
assessed against the benefited property.
(b) The amount of incidental, inspection, and engineering costs
included in the assessment roll may not exceed the amount of the
incidental, inspection, and engineering costs included in the estimate. As added by P.L.98-1993, SEC.7. IC 36-9-36-7 Incidental, inspection, and engineering costs; inclusion in
contracts; subrogation rights of contractor
Sec. 7. The following applies if the preliminary resolution
provides for the inclusion and assessment of incidental, inspection,
and engineering costs:
(1) The works board shall include in a contract for an
improvement a provision that requires all incidental, inspection,
and engineering costs to be advanced and paid by the contract
or to the board, upon the final acceptance of the improvement,
for payment by the board to persons entitled to the incidental,
inspection, and engineering costs.
(2) The contractor is then subrogated to all rights of the unit and
those persons to all the incidental, inspection, and engineering
costs subsequently included in and assessed upon the
assessment roll.
(3) The costs belong to the contractor as a part of the
assessments. As added by P.L.98-1993, SEC.7.
IC 36-9-36-8 Notice of hearing on preliminary resolution; publication; mailing
to property owners
Sec. 8. (a) Notice of a hearing on the preliminary resolution shall
be published in accordance with IC 5-3-1. The notice must state that
the works board has adopted the preliminary resolution and the time
and place at which the works board will do the following:
(1) Hear all interested persons.
(2) Decide whether the benefits to the property liable to be
assessed for the improvement will equal the estimated cost of
the improvement.
(b) A notice containing the information required under subsection
(a) shall be sent to each property owner affected by the proposed
improvement. The mailing of the notice complies with this
subsection if the mailing is to owners as the owners appear in the
records of the assessor of the county in which the property is located. As added by P.L.98-1993, SEC.7.
IC 36-9-36-9 Estimate of maximum cost
Sec. 9. (a) At least ten (10) days before the date fixed for a
hearing under section 8 of this chapter, the engineer of the unit shall
file with the works board an estimate of the maximum cost of the
improvement proposed by the works board.
(b) The estimate must include the following:
(1) The cost of the guarantee under section 25 of this chapter.
(2) The cost of the maintenance of the improvements for at least
three (3) years.
(c) A unit may not enter into a contract under the preliminary
resolution if the contract exceeds the engineer's estimate filed under
subsection (a). As added by P.L.98-1993, SEC.7.
IC 36-9-36-9.5 Assessments; installment payments
Sec. 9.5. (a) With respect to assessments imposed after June 30,
2001, the works board shall establish a procedure to permit owners
of real property in the unit to elect whether to pay assessments in:
(1) ten (10), twenty (20), or thirty (30) annual installments; or
(2) a number of monthly installments that corresponds to ten
(10), twenty (20), or thirty (30) annual installments.
(b) The works board shall establish the timing of the election
under subsection (a) to permit the works board to structure the
maturities of the principal of the bonds in a number of annual series
that is consistent with the installment periods elected by owners of
real property under subsection (a).
(c) A person who elects to pay the person's assessment in
installments under this section must, when directed by the works
board, enter into a written agreement stating that in consideration of
that privilege the person:
(1) will not make an objection to an illegality or irregularity
regarding the assessment against the person's property; and
(2) will pay the assessment as required by law with specified
interest.
(d) The agreement under subsection (c) shall be filed in the office
of the disbursing officer.
(e) The interest rate specified for the installments of the
assessment may be equal to or greater than the interest rate on bonds
issued under section 44 of this chapter.
(f) An assessment of less than one hundred dollars ($100) may not
be paid in installments. As added by P.L.62-2001, SEC.1.
IC 36-9-36-10 Hearing on preliminary resolution; determination of special
benefits accruing to property
Sec. 10. (a) At the hearing specified in the notice under section 8
of this chapter, the works board shall do the following:
(1) Hear interested persons.
(2) Decide whether the benefits that will accrue to the property
liable to be assessed for the improvement will equal the
maximum estimated cost of the improvement.
(b) If the works board finds that the benefits will not equal the
maximum estimated cost of the improvement, the board shall
determine the aggregate amount of special benefits that will accrue
to the property liable to be assessed for the improvement.
(c) Except as provided in sections 13 and 14 of this chapter, the
works board's determination concerning the aggregate amount of
special benefits that will accrue to the property liable to be assessed
for the improvement is final and conclusive.
As added by P.L.98-1993, SEC.7.
IC 36-9-36-11 Levy of special assessments; improvement cost as maximum
amount of assessment; improvement cost payable by unit
Sec. 11. (a) The works board shall levy special assessments for
the amount determined under section 10 of this chapter if:
(1) the contract for the improvement is executed; and
(2) the improvement is made.
(b) The special assessments levied under this section may not
exceed the cost of the improvement.
(c) If the amount determined under section 10 of this chapter is
less than the contract price, the remainder of the cost of the
improvement is payable by the unit. As added by P.L.98-1993, SEC.7.
IC 36-9-36-12 Allowances against assessment and contract price
Sec. 12. (a) The works board shall make an allowance to the
owner of any property if:
(1) an improvement exists in front of the property before the
improvement is ordered; and
(2) the improvement conforms to the general plan.
(b) An allowance under subsection (a) shall be made from the
owner's assessment and from the total amount of the contract price. As added by P.L.98-1993, SEC.7.
IC 36-9-36-13 Confirmation, modification, or rescission of preliminary resolution
Sec. 13. (a) After the works board determines the amount of
special benefits that will accrue to the property liable to be assessed
for the improvement, the works board may do any of the following:
(1) Confirm the preliminary resolution.
(2) Modify the preliminary resolution.
(3) Rescind the preliminary resolution.
(b) Except as provided in section 14 of this chapter, the
preliminary resolution is final and conclusive on all parties if:
(1) the preliminary resolution is modified or confirmed under
this section; and
(2) the improvement is ordered. As added by P.L.98-1993, SEC.7.
IC 36-9-36-14 Remonstrances and appeals
Sec. 14. (a) A majority of the persons who own the property to be
assessed for the improvement may remonstrate against the
improvement or take an appeal. The remonstrance or appeal must be
made not later than ten (10) days after the hearing under section 10
of this chapter.
(b) If there is a remonstrance, the improvement may not be made
unless specifically ordered by an ordinance passed by a two-thirds
(2/3) vote of the unit's legislative body. An ordinance under this
subsection must be passed not later than sixty (60) days after the
remonstrance is made. As added by P.L.98-1993, SEC.7.
IC 36-9-36-15 Objections to final resolution; filing; bond; prior assessments
Sec. 15. (a) If the works board finally orders an improvement,
forty percent (40%) of the persons who own property abutting the
improvement and who are subject to assessment may file written
objections with the board. The written objections must:
(1) state at least one (1) of the following:
(A) The improvement is not needed by the public.
(B) The cost of the proposed improvement would be
excessive considering the character and value of the property
to be assessed.
(C) The cost of the proposed improvement will exceed the
benefits to the property to be assessed.
(D) The works board does not have the legal authority to
order the improvement.
(2) be filed not later than five (5) days after the making of the
final order.
(b) If the works board does not abandon the proposed
improvement, the following shall, not later than five (5) days after
the filing of the objections with the works board, file with the clerk
of the circuit or superior court of the county a copy of the order of
improvement and the objections:
(1) The auditor, in the case of a county.
(2) The clerk, in the case of a municipality.
(c) Objectors must file with their objections a bond with security
to the satisfaction of the court. The following apply to a bond filed
under this subsection:
(1) The bond shall be in a sum fixed by the court.
(2) The bond must be conditioned on the objectors paying all or
any part of the costs of the hearing as the court may order.
(d) In considering an objection described in subsection (a)(1)(A),
the court may at the hearing under section 16 of this chapter consider
the amount of the assessments made against the property for public
improvement during the preceding five (5) years. As added by P.L.98-1993, SEC.7.
IC 36-9-36-16 Court hearing on objections to final resolution
Sec. 16. (a) The court shall set a hearing as early as possible, but
not later than twenty (20) days after the filing of the objections with
the court. All interested parties shall appear in court without further
notice. The unit may not hold further proceedings concerning the
improvement until the matters presented by the objections are heard
and determined by the court. The matters shall be heard and
determined by the court without a jury.
(b) The court shall hear the evidence on the date fixed under
subsection (a). The court may confirm the order of the works board
or sustain the objections. The order of the court is conclusive, and all
subsequent proceedings concerning the improvement must conform
to the order.
(c) A special judge may be appointed if for any reason the regular
judge of the court cannot hear the objections within the twenty (20)
day time limit established by subsection (a). As added by P.L.98-1993, SEC.7.
IC 36-9-36-17 Construction or repair of sidewalks and curbs; notice to abutting
property owner of order requiring construction or repair
Sec. 17. (a) The works board may require the owners of abutting
property to construct or repair the owners' own sidewalks or curbs if
the works board:
(1) desires to improve or repair any sidewalks or curbs in the
unit; and
(2) adopts a final resolution to that effect.
(b) The works board must give notice of the order concerning the
construction or repair to the abutting property owners in person or by
mail. Mailing of notices to owners as the names of the owners appear
on the assessor's books of the county in which the land is located
complies with this requirement.
(c) A property owner has thirty (30) days from the date of the
notice to construct the sidewalks or curbs or make the repairs as
required by the notice.
(d) If a property owner fails to comply with the order, the works
board may have the sidewalk or curb constructed or repaired by an
independent contractor. As added by P.L.98-1993, SEC.7.
IC 36-9-36-18 Contracting by works board for construction or repair of sidewalk
or curb
Sec. 18. (a) The works board may let a general contract for the
making or repairing of all sidewalks or curbs of a specified material
within the unit. The contract shall include an agreed price per square
yard for the sidewalk construction.
(b) If the contract is for work in a municipality, the contract may
also specify the following:
(1) The price per cubic yard for excavation and filling.
(2) The price per lineal foot for curb.
(c) The letting of a contract under this section is governed by the
statutes regulating contractual authority of the unit. As added by P.L.98-1993, SEC.7.
IC 36-9-36-19 Levy and collection of assessments for construction or repair of
sidewalk or curb
Sec. 19. (a) Assessments for the construction or repair of
sidewalks or curbs shall be levied and collected according to this
chapter.
(b) The entire cost of the sidewalk or curb improvements or
repairs that the board undertakes by one (1) resolution shall be
assessed and apportioned against each lot or parcel of property
abutting on the improvement in the proportion the improved lineal
front footage of each lot or parcel of property bears to the entire
length of the improvement. As added by P.L.98-1993, SEC.7.
IC 36-9-36-20 Improvements on streets occupied by railroad tracks; procedure
Sec. 20. (a) This section does not apply to a county.
(b) If the track of a railroad, an interurban, or an interurban street
railroad occupies part of a street that is ordered improved under this
chapter, the works board may, on petition of the railroad, provide in
the plans and specifications for the improvement for a different
material and plan of construction for the part of the street occupied
by the railroad.
(c) If the railroad is bound by contract to improve or pay the cost
of improving the part of the street occupied by the railroad, the
railroad is entitled to construct all of that part of the improvement if
the railroad does the following:
(1) Elects to do so by written notice filed as follows:
(A) With the works board or other department of the unit
having power to order the improvement.
(B) At any time before the adoption of the final resolution or
ordinance providing for the improvement.
(2) On request of the works board or other department of the
unit, files with the board or other department a bond in the
amount and with the surety required by the works board or
other department. The bond must be conditioned on the
railroad's improvement of that part of the street:
(A) according to the plans and specifications;
(B) within the required time; and
(C) to the satisfaction of the engineer of the unit in charge of
the work.
(d) The works board may issue a written improvement order
requiring a railroad, an interurban, or an interurban street railroad to
comply with IC 8-6-12. As added by P.L.98-1993, SEC.7.
IC 36-9-36-21 Roadway grading; assessment
Sec. 21. (a) This section does not apply to a county.
(b) The works board may grade the roadway of a street and assess
the cost of the grading against the property specially benefited.
(c) The works board may let the contract under the statutes
regulating contractual authority of units. The unit shall levy and
collect the assessments for the grading according to this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-22 Advertisement for bids; opening and consideration of bids
Sec. 22. (a) If the works board finally orders an improvement, the
works board shall advertise for bids for the work as required by
IC 36-1-12.
(b) The advertisement must state the following:
(1) That on the date named, the unit will receive bids for the
improvement according to the resolution as modified or
confirmed.
(2) The part of the cost of the improvement, if any, that will be
paid by the unit.
(c) On the date named, all bids shall be publicly opened and
considered. As added by P.L.98-1993, SEC.7.
IC 36-9-36-23 Bid bond or deposit
Sec. 23. (a) If the works board finally orders an improvement and
has advertised for bids, the works board shall require each bidder to
deposit with the bidder's bid, at the bidder's option, either a bid bond
or a certified check to ensure the execution of the contract.
(b) The bid bond or certified check must be equal to the greater of
the following:
(1) An amount not less than two and one-half percent (2 1/2%)
of the engineer's estimate of the cost of the improvement.
(2) One hundred dollars ($100).
(c) The following applies if a bidder elects to deposit a bid bond:
(1) The bond must be payable to the works board with sufficient
sureties.
(2) The bond must be conditioned upon the bidder's execution
of a contract in accordance with the bidder's bid if accepted by
the works board.
(3) The bond must provide for forfeiture of the amount of the
bond upon the bidder's failure to execute the contract in
accordance with the bidder's bid.
(d) The works board shall do the following:
(1) Return all checks and bonds submitted by unsuccessful
bidders.
(2) Return a successful bidder's check or bond when the bidder
enters into a contract with the works board. As added by P.L.98-1993, SEC.7.
IC 36-9-36-24 Contracts; scope; actions to enjoin performance
Sec. 24. (a) The contract for an improvement must be for the
entire improvement.
(b) After the execution of a contract for an improvement, the
validity of the contract may be questioned only in an action to enjoin
the performance of the contract. This action must be brought:
(1) before the actual commencement of work under the contract,
for an improvement by a county; or
(2) before the later of the following, for an improvement by a
municipality:
(A) The actual commencement of work under the contract.
(B) Not later than ten (10) days after the execution of the
contract. As added by P.L.98-1993, SEC.7.
IC 36-9-36-25 Contractor's guarantee
Sec. 25. (a) A contractor for an improvement must guarantee the
contractor's workmanship and all materials used in the work.
(b) The guarantee required under subsection (a) must be in the
following form:
"The contractor warrants the contractor's workmanship and all
materials used in the work and agrees that during the guarantee
period specified the contractor will at the contractor's own
expense make all repairs that may become necessary by reason
of improper workmanship or defective materials. The
maintenance obligation, however, does not include repair of any
damage resulting from any force or circumstance beyond the
control of the contractor, nor is the contractor a guarantor of the
plans and specifications furnished by the (county, city, or
town).". As added by P.L.98-1993, SEC.7.
IC 36-9-36-26 Repairs by contractor
Sec. 26. (a) If repairs become necessary, the unit must give
written notice to the contractor to make the repairs. If the contractor
fails to begin the repairs not later than thirty (30) days after the
notice is received, the unit may do the following:
(1) Make the repairs using the unit's own employees or an
independent contractor.
(2) Recover from the contractor and the contractor's sureties the
reasonable cost of the repairs and the cost of the supervision
and inspection of the repairs.
(b) At the expiration of the guarantee period, the unit has sixty
(60) days in which to notify the contractor of any necessary repairs.
(c) This subsection does not apply to a county. If the repairs
necessary to be made at the expiration of the guarantee period
amount to more than one-half (1/2) the surface of one (1) block, the
entire pavement of the block shall be taken up and relaid in
accordance with the original specifications. As added by P.L.98-1993, SEC.7. IC 36-9-36-27 Monthly payments to contractor
Sec. 27. (a) A contractor for an improvement is entitled to
monthly estimates of the work done during each month. The
estimates shall be made by the engineer of the unit and approved by
the works board.
(b) The works board shall issue to the contractor certificates for
eighty-five percent (85%) of the amount due the contractor by the
estimates. The contractor is entitled to receive the amounts named in
the certificates in cash or improvement bonds to be collected or
issued by the unit. The certificates are negotiable instruments. As added by P.L.98-1993, SEC.7.
IC 36-9-36-28 Completed improvements; acceptance; cost estimates
Sec. 28. (a) An improvement that is completed according to
contract must be accepted by the works board.
(b) Upon the completion of an improvement according to contract,
the cost of the improvement shall be estimated according to the entire
length of the improvement. As added by P.L.98-1993, SEC.7.
IC 36-9-36-29 Assessments; abutting lands or lots; street and alley intersections
Sec. 29. (a) The total cost of an improvement as determined under
section 28(b) of this chapter, except for one-half (1/2) of the cost of
street and alley intersections, shall be assessed on the abutting land
or lots in the manner prescribed by this chapter.
(b) The remaining one-half (1/2) of the cost of street and alley
intersections shall be assessed on the land or lots abutting on the
streets or alleys that intersect the improved street or alley.
(c) Land and lots may be assessed for the following distances:
(1) One (1) block in either direction along the intersecting street
or alley if the intersecting street or alley crosses the improved
street or alley.
(2) One (1) block along the intersecting street or alley if the
intersecting street or alley enters but does not cross the
improved street or alley.
(d) For purposes of this section, the distance from the intersection
of:
(1) a street or an alley improved under this chapter; and
(2) another street or alley;
along the other street or alley to the street line of the next intersecting
street or alley is considered one (1) block. As added by P.L.98-1993, SEC.7.
IC 36-9-36-30 Assessments; basis; back lots; platted subdivisions
Sec. 30. (a) Lots, parcels, and tracts of land bordering on an
improvement shall be assessed on the basis set forth in this chapter,
without regard to the depth of the lots, parcels, or tracts back from
the front line of the improvement.
(b) After the final hearing before the works board concerning the
actual benefits to abutting and adjacent property, the works board
may assess other property behind the first lot if the following
conditions are met:
(1) The back lot is within one hundred fifty (150) feet of the
line of the improvement.
(2) The works board finds at the hearing that properties behind
the abutting lot and within one hundred fifty (150) feet of the
improvement are specially benefited by the improvement.
(c) Land and lots assessed under subsection (b) shall be assessed
only in the amount the lands or lots are specially benefited by the
improvement.
(d) Lots or land adjacent to the improvement are liable for the
payment of the assessment as set forth on the final assessment roll.
(e) This subsection applies only to counties. If an improvement is
constructed within a platted subdivision, the works board may assess
all or part of the lots in that subdivision or any other platted
subdivision connected to that platted subdivision by the
improvement. As added by P.L.98-1993, SEC.7.
IC 36-9-36-31 Preparation of assessment roll
Sec. 31. (a) As soon as a contract for an improvement has been
completed, the works board shall have an assessment roll prepared
for the property abutting on and adjacent to the improvement. The
property abutting on and adjacent to the improvement is liable to
assessment under this chapter.
(b) The assessment roll must include the following:
(1) The name of the owner of each parcel of property.
(2) A description of each parcel of property.
(3) The total assessment, if any, against each parcel of property.
The total assessment must be listed opposite each name and
description.
(c) A mistake in the name of the owner or the description of
property does not void the assessment or lien against the property. As added by P.L.98-1993, SEC.7.
IC 36-9-36-32 Presumptive finality of assessments; publication of notice
Sec. 32. (a) The following apply to the assessment indicated
against each lot, tract, or parcel of land on the assessment roll:
(1) The assessment is presumed to be the special benefit to the
lot, parcel, or tract of land.
(2) The assessment is the final and conclusive assessment
unless the assessment is changed under section 33 of this
chapter.
(b) Immediately after the assessment roll is completed and filed,
the works board shall publish a notice according to IC 5-3-1. The
notice must do the following:
(1) Describe the general character of the improvement.
(2) State that the assessment roll, with the names of owners and
descriptions of property subject to assessment and the amounts
of any presumptive assessments, is on file and may be inspected
at the works board's office.
(3) Name a time and date after the date of the last publication
on which the works board will do the following at the works
board's office:
(A) Receive and hear remonstrances against the amounts
assessed on the roll.
(B) Determine whether the lots or tracts of land have been or
will be benefited by the improvement in the following
amounts:
(i) The amounts listed on the assessment roll.
(ii) Amounts greater or lesser than the amounts listed on
the assessment roll.
(iii) Any amount at all.
(c) This subsection applies only to counties. The notice must also
describe the platted subdivision or the parts of the subdivision on
which there is property that is benefited and liable for assessment.
(d) This subsection applies only to municipalities. The notice
must also describe the following:
(1) The public way or public place on which the improvement
has been made.
(2) The terminals of the improvement.
(3) The public ways:
(A) that:
(i) intersect the improvement; or
(ii) are parallel to the improvement and within one
hundred fifty (150) feet of the improvement; and
(B) on which there is property that is benefited and liable for
assessment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-33 Remonstrance hearings; final determination of assessments
Sec. 33. (a) On the date fixed under section 32 of this chapter, the
works board shall receive and hear all remonstrances from the
owners of property described in the notice or the representatives of
the owners.
(b) After the hearing, the works board shall sustain or modify the
presumptive assessment as indicated on the assessment roll by
confirming, increasing, or reducing the presumptive assessment
against all or part of the property described in the roll. The works
board's decision must be based on the works board's findings
concerning the special benefits that the property has received or will
receive on account of the improvement.
(c) If any property liable for assessment is initially omitted from
the assessment roll or a presumptive assessment has not been made
against the property, the works board may place on the assessment
roll any special benefit that the omitted property has sustained or will
sustain by the improvement.
(d) The aggregate amount of assessments approved by the works
board under this section may not exceed the cost of the improvement
and must be equal to the aggregate amount of special benefits
determined by the board under section 10 of this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-34 Completion and delivery of assessment roll; appeals
Sec. 34. (a) The works board shall complete the assessment roll
and render the works board's decision by modifying or confirming
the roll. The assessment roll shall show the total amount of special
benefits opposite each name and a description of the property on the
roll. When completed, the assessment roll shall be delivered to the
following:
(1) The county assessor, for an improvement by a county.
(2) The municipal fiscal officer, for an improvement by a
municipality.
(b) The decision of the works board as to all benefits is final and
conclusive on all parties. However, an owner of an assessed lot or
parcel of land who has filed a written remonstrance with the board
may appeal to the circuit or superior court for the county. As added by P.L.98-1993, SEC.7.
IC 36-9-36-35 Delivery of primary assessment roll; payment of assessments to
disbursing officer
Sec. 35. (a) The works board shall deliver a certified copy of the
assessment roll completed under section 34 of this chapter to the
disbursing officer of the unit after the works board:
(1) approves and accepts the entire work under any contract;
and
(2) allows a final estimate.
(b) The duplicate assessment roll, to be known as the primary
assessment roll, must show the following:
(1) The amount due on each piece of property if paid in cash
within the time limit.
(2) The amount of waivers filed.
(c) The primary assessment roll must also have an appropriate
column in which payments may be properly credited by the
disbursing officer.
(d) This subsection does not apply to a county. All assessments,
regardless of whether the assessments are payable in installments, are
payable to the disbursing officer. The disbursing officer shall receive
the payments, give proper receipts, and enter the proper credit. As added by P.L.98-1993, SEC.7. IC 36-9-36-36 Assessment installments; notice when due
Sec. 36. (a) Upon receipt of the primary assessment roll, the
disbursing officer shall by mail notify each affected person of the
amount of the assessment against the person's property.
(b) The notice must state when the assessment is due, or when the
assessment installments are due. As added by P.L.98-1993, SEC.7. Amended by P.L.62-2001, SEC.2.
IC 36-9-36-37 Cash payment of assessments; interest on delinquencies
Sec. 37. (a) Except as provided in section 38 of this chapter, the
entire assessment is payable in cash without interest not later than
thirty (30) days after the approval of the assessment roll by the works
board if an agreement has not been signed and filed under section 36
of this chapter.
(b) If the assessment is not paid when due, the total assessment
becomes delinquent and bears interest at the rate prescribed by
IC 6-1.1-37-9(b) per year from the date of the final acceptance of the
completed improvement by the works board. As added by P.L.98-1993, SEC.7. Amended by P.L.172-1994, SEC.1;
P.L.67-2006, SEC.14; P.L.113-2010, SEC.154.
IC 36-9-36-38 Appeal of assessment; payment by property owner following court
certification
Sec. 38. (a) If a property owner appeals the assessment made
against the owner's property to the circuit court or superior court, the
clerk of the court shall certify the judgment of the court to the unit's
disbursing officer. The disbursing officer shall immediately notify
the property owner of the amount of the assessment fixed by the
court.
(b) The property owner has thirty (30) days from the date the
notice is sent to:
(1) pay the assessment in cash; or
(2) elect to pay the assessment in installments by entering into
an agreement under section 36 of this chapter.
(c) The unit shall then issue bonds in the amount of the
assessment fixed by the court. The bonds must bear the date of the
final acceptance of the work.
(d) The assessment bears interest as follows:
(1) From the date of the final acceptance of the work.
(2) At a specified rate per year that is not less than the interest
rate specified for installments under section 36 of this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-39 Appeal of assessment; payment of part ordered to be assessed
against unit
Sec. 39. The following applies to any part of the assessment that
the court orders to be assessed against the unit:
(1) The assessment bears interest:
(A) from the date of the final acceptance of the work; and
(B) at a specified rate per year that is not less than the
interest rate specified for installments under section 36 of
this chapter.
(2) The assessment may be paid by the unit in any manner
provided by law for paying other assessments against the unit
for similar work. As added by P.L.98-1993, SEC.7.
IC 36-9-36-40 Assessment liens
Sec. 40. (a) The unit has a lien against each parcel of real property
that is assessed for:
(1) the construction, maintenance, or repair of an improvement;
or
(2) the taking of lands for any purpose of the unit.
(b) The lien is established when the assessments are certified to
the disbursing officer for collection. The unit may bring a foreclosure
action to enforce the lien against a person who defaults in payment
of the assessment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-41 Installment payment procedure; proceeds constituting special fund
for payment of improvement; diversion prohibited
Sec. 41. (a) The disbursing officer of the unit shall do the
following:
(1) Receive the payment of assessment installments.
(2) Keep all accounts and give proper vouchers for the payment
of assessment installments.
(b) Proceeds arising from assessments for the payment of a
particular improvement may not be diverted to the payment of any
other improvement.
(c) The proceeds from assessments for the payment of a particular
improvement constitute a separate special fund for the following:
(1) The payment of contractors for the particular work, upon the
allowance of estimates by the works board.
(2) The security and payment of any bonds issued in
anticipation of the collection of the assessments for the
improvement, including debt service reserves to secure the
payment of the bonds.
(3) The payment of expenses incurred by the unit in performing
the unit's duties under this chapter, IC 36-9-37, IC 36-9-38, and
IC 36-9-39 (or under IC 36-9-18 through IC 36-9-21, before the
repeal of those provisions in 1993), including expenses, duties,
and costs associated with the issuance, sale, or payment of the
bonds. As added by P.L.98-1993, SEC.7. IC 36-9-36-42 Notice; payments to bond owner; process collectable by fiscal
officer
Sec. 42. If a bond owner receives a payment of interest or
principal, or both, that was to have been collected under this chapter
(or under IC 36-9-18 before its repeal in 1993) by the fiscal officer
of a unit, the bond owner shall notify the fiscal officer of the
payment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-43 Delinquent installments; acceleration; foreclosure of lien; notice of
delinquency
Sec. 43. (a) Failure to pay an installment of principal or interest
when the installment is due makes all installments of principal yet
unpaid due and payable immediately, unless the unpaid installment
of principal or interest is paid within the grace period provided.
(b) If the unit fails to collect an unpaid assessment or installment
when due, liability does not accrue against the unit. However, the
owner of the bonds or the person to whom the amount of the unpaid
assessment for the performance of the work is due and owing is
entitled to proceed in court to do the following:
(1) Enforce the lien or the unpaid assessment.
(2) Recover interest, costs, and reasonable attorney's fees.
(3) Have the proceeds of sale applied to the owner's or person's
claim.
(c) If a person defaults in the payment of an installment of
principal or interest, the disbursing officer shall mail a notice of the
delinquency to the person in accordance with IC 36-9-37 regardless
of whether a waiver has been signed. A notice mailed to the person
in whose name the lands are assessed, addressed to the person within
the unit, is sufficient notice. The person is not liable for attorney's
fees unless an action is actually brought on the assessment.
(d) An action to collect an unpaid assessment may not be brought
until the notice required by subsection (c) has been given.
(e) An action for foreclosure must be commenced not more than
five (5) years after the cause of action accrues. As added by P.L.98-1993, SEC.7.
IC 36-9-36-44 Bonds in anticipation of assessment proceeds; authorization
Sec. 44. (a) The works board may issue bonds in anticipation of
the collection of the assessments for an improvement. Except as
provided in subsections (b) and (c), the bonds shall be issued and
sold in the manner prescribed for other bonds of the unit. A unit
issuing bonds under this section is not required to attach coupons to
the bonds.
(b) The works board may provide for the issuance of the bonds
directly to the contractor in the works board's preliminary resolution
for the improvement. If direct issuance is authorized by the
resolution, the disbursing officer shall issue the bonds directly to the
contractor.
(c) The works board may by resolution choose to:
(1) sell the bonds by negotiated private sale to a financial
institution; and
(2) remit the proceeds of the sale to the contractor.
(d) The following applies after the issuance of bonds:
(1) An action to enjoin the collection of an assessment or to
challenge the validity of the bonds or the sale of the bonds may
not be brought.
(2) The validity of the assessment may not be questioned. As added by P.L.98-1993, SEC.7.
IC 36-9-36-45 Bonds; date; tax exemption
Sec. 45. (a) This section applies only to municipalities.
(b) Bonds issued in anticipation of the collection of assessments
for an improvement must bear the date of the completion of the
improvement under the contract and the acceptance of the
improvement by the works board. The bonds draw interest from that
date.
(c) The bonds are exempt from taxation for all purposes. As added by P.L.98-1993, SEC.7.
IC 36-9-36-46 Bonds; maturation; interest rate
Sec. 46. (a) The works board may provide in the preliminary
resolution that the bonds issued in anticipation of the collection of
the assessments shall be issued so as to mature not less than ten (10)
years and not more than thirty (30) years from the date of issuance.
(b) The interest on the bonds shall be payable semiannually from
the date of issue. The works board shall fix the rate of interest on the
bonds issued.
(c) Bonds issued in the manner described in subsection (a) shall
mature serially, so that some bonds mature each year until the final
maturity date of the issue is reached. The terms of the bonds may
allow early redemption of the bonds in the event of and to the extent
of prepayment of the assessments in anticipation of which the bonds
were issued.
(d) The works board must issue the bonds to mature as provided
under subsection (c) if a petition requesting the bonds to mature in
that manner is filed by a majority of the resident property owners
affected by the improvement not later than sixteen (16) days after the
resolution is first published. As added by P.L.98-1993, SEC.7. Amended by P.L.62-2001, SEC.3.
IC 36-9-36-47 Transfer of assessment liens to bond owners
Sec. 47. (a) Bonds issued in anticipation of the collection of
assessments convey and transfer to the owner of the bonds all
interests in the assessments and liens upon the respective lots or
parcels of land.
(b) The liens stand as security for the bonds and interest until the
bonds and interest are paid. A bond owner has full power to enforce
the lien by foreclosure in court as provided in this chapter if the bond
or interest is not paid when presented to the disbursing officer. As added by P.L.98-1993, SEC.7.
IC 36-9-36-48 Bond owners; foreclosure actions; procedure
Sec. 48. (a) Except as provided in subsection (b), sales to satisfy
the bonds and interest shall be made as provided in this chapter for
sales upon judgments or decrees foreclosing liens for assessments
levied for improvements.
(b) The first bondholder who brings a foreclosure action against
the property or any part of the property is entitled to have the
proceeds of the action applied pro rata to the payment of that
bondholder's own bonds and of bonds held by others.
(c) Only one (1) foreclosure action may be brought against one (1)
lot or parcel of land. However, all lots or parcels of land against
which the assessments are in default may be joined in one (1)
proceeding. As added by P.L.98-1993, SEC.7.
IC 36-9-36-49 Sale of property following foreclosure action; amount
Sec. 49. (a) The property upon which the assessment is placed
may not be sold for less than the amount of the assessment, attorney's
fees, and costs. The proceeds of the sale shall be distributed as
provided in this chapter.
(b) If the property sells for an amount greater than the amount
necessary to pay the principal, interest, attorney's fees, and costs, the
excess amount shall be paid to the property owner or party lawfully
entitled to that excess amount. As added by P.L.98-1993, SEC.7.
IC 36-9-36-50 Negotiability of bonds
Sec. 50. (a) The bonds issued in anticipation of the collection of
assessments are negotiable instruments and are free from all defenses
by property owners.
(b) It is not necessary that the bonds include language describing
the actions taken in ordering the improvement or directing the
assessment. The bonds may instead include a general reference to
this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-51 Foreclosure actions by contractors
Sec. 51. (a) This section applies to a contractor that is entitled to
enforce liens or assessments.
(b) The contractor or the contractor's assignee may bring an action
against a person who has defaulted in payment of an assessment to
foreclose the lien established by the assessment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-52 Foreclosure actions; complaint; proof
Sec. 52. (a) The complaint for a foreclosure action under this
chapter need not set forth the specific proceedings leading to the
final assessment. However, the complaint must include the following
information:
(1) The date on which the contract for the improvement was
finally let.
(2) The name of the improvement.
(3) The amount and date of the assessment.
(4) A statement that the assessment is unpaid.
(5) A description of the property on which the assessment was
levied.
(b) At the trial of a foreclosure action, the plaintiff is not required
to introduce proof of the proceedings before the works board leading
to the final assessment. However, the plaintiff must introduce the
final assessment roll or a copy of the final assessment roll. The final
assessment roll or the copy of the final assessment roll must be
properly certified.
(c) The final assessment roll or the copy is presumptive evidence
that the works board took all actions required to be taken in making
the final assessment. As added by P.L.98-1993, SEC.7.
IC 36-9-36-53 Foreclosure actions; defenses
Sec. 53. (a) A defense to a foreclosure action may not be based on
any of the following:
(1) Any irregularity in the proceedings making, ordering, or
directing the assessment.
(2) The propriety or expediency of any improvement.
(b) A property owner may not raise any defense to a foreclosure
action if the owner has done the following:
(1) Exercised the option to pay the owner's assessment in
installments.
(2) Signed a waiver. As added by P.L.98-1993, SEC.7.
IC 36-9-36-54 Foreclosure actions; amount of recovery; sale procedure
Sec. 54. (a) In a foreclosure action brought under this chapter, the
plaintiff is entitled to recover the amount of the assessment, principal
and interest, and reasonable attorney's fees. The court shall order the
sale to be made without relief from valuation or appraisement law.
(b) The county sheriff shall sell the property in the same way that
lands are sold on execution. The sheriff shall, not later than five (5)
days after the sale, execute a certificate of sale to the purchaser. The
certificate of sale vests title in the purchaser when the certificate of
sale is delivered. Title vested by a certificate of sale is subject only
to the right to redeem under section 55 of this chapter. As added by P.L.98-1993, SEC.7.
IC 36-9-36-55 Foreclosure sales; irregularities; redemption
Sec. 55. (a) An irregularity or error in making a foreclosure sale
under this chapter does not make the sale ineffective, unless the
irregularity or error substantially prejudiced the property owner.
(b) A property owner has two (2) years from the date of sale in
which to redeem the owner's property. The property owner may
redeem the owner's property by paying the principal, interest, and
costs of the judgment, plus interest on the principal, interest, and
costs at the rate prescribed by IC 6-1.1-37-9(b).
(c) If the property is not redeemed, the sheriff shall execute a deed
to the purchaser. The deed relates back to the final letting of the
contract for the improvement and is superior to all liens, claims, and
interests, except liens for taxes. As added by P.L.98-1993, SEC.7. Amended by P.L.67-2006, SEC.15;
P.L.113-2010, SEC.155.
IC 36-9-36-56 Foreclosure actions; parties; appearances; disposition of proceeds
Sec. 56. (a) In a foreclosure action under this chapter, other than
a foreclosure action in which the unit is the plaintiff, the plaintiff
must do the following:
(1) Name the officer who has custody of the improvement funds
of the unit as a party defendant.
(2) Name that officer as custodian of the improvement
assessment fund of the unit.
(b) The officer described in subsection (a) shall then notify the
attorney of the unit to appear in the action.
(c) The fiscal officer of the unit shall do the following:
(1) Trace the proceeds of the foreclosure so that proceeds
arising from assessments for the improvement of a particular
project are not diverted to the payment of any other
improvement.
(2) Ensure that in each case the judgment proceeds constitute a
special fund for the payment of contractors or bondholders for
the particular work.
(d) The judgment proceeds shall be allocated to the proper public
improvement fund for pro rata distribution to the bondholders or
contractors who are entitled to those proceeds. As added by P.L.98-1993, SEC.7.
IC 36-9-36-57 Foreclosure actions; payment of judgment; costs and attorney's
fees; decree
Sec. 57. (a) The court costs and the attorney's fees allowed in
foreclosure actions shall be paid directly to the clerk of the court to
satisfy that part of a judgment. The remainder of the judgment shall
be paid directly to the disbursing officer for the benefit of the special
improvement fund of the department that is entitled to the
foreclosure proceeds.
(b) The disbursing officer shall do the following:
(1) Enter the payment under subsection (a) on the records and
duplicates.
(2) Satisfy the judgme
