48-2845
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48-2845. Delivery of warrant and assessment to contractor; demand for payment; release of assessments; review of assessment A. After the warrant and assessment are recorded pursuant to section 48-2844, they shall be delivered to the person charged by the board with the duty of making demands for the payment, together with one of the diagrams. By virtue of the warrant, that person may demand and receive the amount of the several assessments. B. The person charged by the board shall call on the person assessed, either in person or by mail if the person can conveniently be found, and demand payment, and if paid the person nominated by the board shall provide a receipt. The receipt, when presented to the district, constitutes an order to it to release the assessment. A copy of the receipt shall be kept on file at the district office. C. The person nominated by the board shall promptly notify the district of all payments received, and the district shall release all assessments that have been fully paid. If the name of the owner of the lot, acre or parcel is stated on the assessment as "unknown", the person nominated by the board shall demand payment of a person in possession of the lot, acre or parcel. If someone is in possession, the demand may be made either by mail, if a mailing address for the person in possession can be determined, or in person. If the premises are unoccupied or the person in possession cannot be found, the demand is unnecessary. D. The warrant shall be returned to the board within thirty days after its date endorsed with "return", signed by the person nominated by the board, verified on oath and stating the nature and character of the demand, whether any assessments remain wholly or partially unpaid and the amount of any unpaid assessments. In the absence of fraud or bad faith, the verified statement of the person making the return is conclusive proof that the demand for payment was made on each owner or each person in possession of each lot, acre or parcel of property as required by this section. The board shall record the return in the margin of the record of the warrant and assessment. After return of the assessment and warrant, all amounts remaining due shall draw interest at the maximum rate specified in the resolution of intention until paid or, on the issuance of bonds, at the rate specified in the bonds payable for the semiannual periods specified in the bonds, notwithstanding that the installments of assessments may be due at dates earlier than the dates installments of principal or interest are payable on the bonds. E. On recording the assessment and warrant, the board shall fix a time when it will hear and consider the assessment and the proceedings taken, which shall be at least twenty days after the date of the recording. The board shall publish notice of the hearing for five days in a daily newspaper or two times in a weekly or semiweekly newspaper of general circulation in the flood protection district. The board shall send notices of the time and place of the hearing by first class mail at least twenty days before the hearing date to the contractor at the address shown in the contract, and to all persons owning real property affected by the assessments as their names and addresses appear on the last certified property tax roll. On request of the district, the county assessor shall provide the names and addresses as shown on the last certified tax roll. If no address appears for a person on the last certified tax roll, no notice need be mailed to that person. The chairperson of the board shall make an affidavit of the mailing and shall state that the persons to whom notices were mailed constitute all persons whose names and addresses appear on the tax roll as owning property in the area assessed or the assessment district, as applicable. The affidavit is conclusive proof that notice was mailed to each person to whom notice is required to be mailed. The failure to receive notice does not constitute any jurisdictional defect invalidating a district proceeding or assessment if notice has been given pursuant to this subsection. F. Before the time fixed for the hearing, any owner, contractor or other person directly interested in the work or in the assessment who has any objection to the amount or legality of the assessment or to any of the previous proceedings, or who claims that the work has not been performed according to the contract, may file a written notice briefly specifying the grounds of the objection. At the time fixed for the hearing or at any time within ten days after the original hearing date, during which the hearing may be postponed, the board shall hear and consider all such objections. The decision of the board is final and conclusive on all persons entitled to object as to all errors, informalities and irregularities that the board may have remedied or avoided at any time during the proceedings. G. After the hearing, if the board of directors finds that the assessment has not yet been fairly apportioned, it shall modify the amounts of the several assessments and may order that the assessment be recomputed if it finds that the benefits to any lots, acres or parcels do not equal the amount assessed against the lot, acre or parcel. When recomputing the assessment, the board shall levy the reassessments according to the benefits derived, notwithstanding that the reduction of any assessment may cause a corresponding increase in other assessments. H. At any time within one year after the date the district files the certificate of substantial completion as provided in section 48-2851, subsection G, any member of the board of directors, any owner or any person claiming an interest in any assessed lot, acre or parcel may file a written notice with the clerk stating that the work has not been performed substantially according to the resolution of intention or the plans, specifications and contract for construction of the flood protection facility. The notice shall state in particular the contractor's failure to perform and may also state, if applicable, any requested reduction in the assessment of any one or more parcels due solely to the failure of such performance. The notice shall state the name and address of the person filing the notice and shall describe the person's interest in land subject to assessment, if applicable. I. On receipt of a notice pursuant to subsection H of this section, the board of directors shall set a date for a hearing on the notice. The board of directors shall give notice of the hearing to the contractor, the contractor's surety, the person appointed to take charge of and direct the work and all persons whose names and addresses appear in the notice. The clerk shall publish a notice of the hearing twice in a newspaper of general circulation in the county. J. At the hearing, the board shall determine whether the work was completed according to the resolution of intention, the plans, specifications and contract for construction of the flood protection facility and any corrections or alterations of the plans deemed necessary. If the board determines that the work has not been so completed, it shall order the contractor to complete the work, set a reasonable time for completion and recess the hearing until the date set for completion. If, at the date set to reconvene the hearing, the evidence shows that the work is then completed, the board shall enter those findings on its minutes. If the board determines that the contractor is making a good faith attempt to complete the work, it may continue the completion date and recess the hearing to a later date. If, at the hearing or at any recessed hearing, the board of directors finds that the contractor refuses to complete or is incapable of completing the work, the board shall order and the district's attorney shall bring an action against the contractor and its surety to collect such amounts or cause such performance as is necessary to complete the work. K. If the board determines that for any reason the work cannot be completed and no recovery can be made against the contractor or the contractor's surety, the board may recompute the assessment, taking into consideration the effect the contractor's failure to perform may have had on the actual benefits derived from the improvement, and reduce some or all assessments to reflect the reduced benefits. If the assessments are reduced, the district shall assume as a contingent liability any difference between the amounts thereafter received on the semiannual assessment payments and the amounts of principal and interest thereafter due on the bonds. The assumption of that amount shall be a contingent general obligation of the district. L. All decisions made concerning any notice filed pursuant to this section are final and conclusive as to the persons filing the notice, the contractor and the contractor's surety and as to the alleged defect, or defects, in the work. After a ruling on any alleged defect, or defects, in the work, the board shall not consider or hear a later notice concerning the same defect, whether or not filed by a person other than the person filing the original notice. M. After the work is completed, the district shall file a recomputed assessment based on the actual quantities determined by the engineer to have been constructed or installed, or the actual cost of the acquisition, together with the known incidental expenses paid to that date and the itemized estimated incidental expenses remaining to be paid. The engineer need not recompute each individual assessment but shall determine the amount of the increase or decrease to be assessed and shall file a supplemental statement with the clerk stating the ratio of the difference between the contractor's bid and the recapitulated amount and ordering that each assessment be increased or decreased by that ratio. If the total assessment is decreased, the treasurer shall credit the amount of the decrease proportionately on the assessments remaining unpaid and return to the owner, if the owner can be located, that portion of each assessment previously paid in cash that represents an excess payment. |