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48-928. Delivery of warrant and assessment to contractor or treasurer; demand for payment; release of assessments; review of assessment; hearing

A. After the assessment and warrant, if applicable, are recorded, they shall be delivered to the contractor or to the treasurer of the district if the district charges itself with the duty of making demands for the payment of the several assessments, together with one of the diagrams, and by virtue of the warrant, the contractor or treasurer is authorized to demand and receive the amount of the several assessments.

B. The contractor or district shall call upon the owner of the lot assessed either in person or by mail, if the owner can conveniently be found, and demand payment, and if paid shall give a receipt therefor. The receipt, when presented to the superintendent, shall authorize or be an order to the superintendent to release the assessment.

C. The contractor or the responsible person acting for the district shall promptly notify the superintendent of all payments made to him, whereupon the superintendent shall release assessments which have been fully paid. When the name of the owner of the lot is stated as "unknown" on the assessment, the contractor or treasurer shall demand payment of a person in possession. If a person is in possession, such 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, such demand is unnecessary. The district may appoint a bank, savings and loan association or trust company as its depository for collection of the cash demands. Fees and expenses for such services may be included in the incidental expenses.

D. The warrant shall be returned to the superintendent within forty days after its date with a "return" endorsed on the warrant, signed by the contractor or treasurer, verified upon oath stating the nature and character of the demand, and whether any assessments remain unpaid in whole or in part, and the amount thereof. 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 upon each owner, person in possession or each parcel of property as required by this section. The superintendent shall record the return so made in the margin of the record of the warrant and assessment. After return of the assessment and warrant all amounts remaining due shall draw interest at the rate of eight per cent per annum until paid or, on the issuance of bonds, at the rate specified in the bonds, payable for the semiannual period specified in the bonds notwithstanding the fact that the installments of assessments may be due at dates earlier than installments of interest are payable on the bonds.

E. Upon recording the assessment and warrant, the superintendent shall notify the board of directors of the recording, and the board shall fix a time when it will hear and pass upon the assessment and the proceedings theretofore had and taken, which shall not be less than twenty days from the date of the recording. The board shall cause notice of the hearing to be given by publication for five days in a daily newspaper or two times in a semiweekly or weekly newspaper published and of general circulation in the county within which the district is located, the first publication of which shall be at least ten days prior to the hearing, and by mailing a copy of the notice showing the amount of proposed assessment by first class mail, at least twenty days before the hearing date, to all persons owning real property affected by the assessments as the names and addresses appear on the last equalized certified property tax roll. If no address appears for any person on the last equalized certified tax roll, then no notice need be mailed to such person. The street superintendent shall make an affidavit of the mailing and shall recite in the affidavit that the persons to whom notices were mailed constitute all persons whose names and addresses appear on the tax roll as owning property within the area to be assessed. The affidavit is conclusive proof that notice was mailed to each person to whom notice is required to be mailed. Failure to receive notice does not constitute any jurisdictional defect invalidating an improvement district, any proceeding or assessment if notice has been sent pursuant to this section.

F. The owners and all other persons directly interested in the work or in the assessment who have any objection to the legality of the assessment or to any of the previous proceedings connected therewith may, prior to the time fixed for the hearing, file a written notice briefly specifying the grounds of their objections. At the time fixed for the hearing or at any time not later than ten days thereafter to which the hearing may be postponed, the board of directors shall hear and pass upon the objections. The decision of the board of directors shall be final and conclusive upon all persons entitled to object as to all errors, informalities and irregularities which the board of directors might have remedied or avoided at any time during the progress of the proceedings.

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

H. At any time within one year from the date the superintendent of streets files the certificate of completion as provided in section 48-935, subsection G, the superintendent of streets, any member of the board of directors, any owner or any person claiming an interest in any lot which received an assessment may file a written notice with the clerk stating that the work has not been performed substantially in accordance with the resolution of intention, the plans, specifications and estimate. The notice shall state in particular the contractor's failure to perform and may also state, if applicable, any requested reduction in the assessment of any one or more parcels due solely to the failure of such performance. The notice shall state the name and address of the person filing the notice and shall describe such person's interest in land subject to assessment, if applicable.

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

J. At the hearing, the board shall determine whether the work was completed in accordance with the resolution of intention, the plans and specifications and any corrections or alterations of such plans deemed necessary by the superintendent. If the board of directors determines that the work has not been so completed, it shall order the contractor to complete the work and shall set a reasonable time for such completion and shall 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 of directors shall enter such findings on its minutes. If the board determines that the contractor is making a good faith attempt to complete the work, it may continue the completion date and recess the hearing to a later date. If, at the hearing or at any recessed hearing, the board of directors finds that the contractor refuses to complete or is incapable of completing the work, it shall order and the county 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 then order the superintendent of streets to recalculate 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 to reduce some or all assessments to reflect the reduced benefits. If the assessments are reduced, the district shall assume as a contingent liability any difference between the amounts thereafter received on the semiannual assessment payments and the amounts of principal and interest thereafter due on the bonds. The assumption of such amount becomes a general obligation of the district.

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

M. After the work is completed, the superintendent shall file with the clerk a recalculated assessment based on the actual quantities determined by the engineer to have been constructed or installed, or the actual cost of the acquisition, as the case may be, together with the known incidental expenses expended to that date and the itemized estimated incidental expenses remaining to be expended. 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 setting forth the ratio of the difference between the contractor's bid and the recapitulated amount and ordering that each assessment be increased or decreased, as the case may be, by such ratio. If the total assessment is decreased, the treasurer shall return to the owner, if the owner can be located, that portion of each assessment previously paid in cash which represents an excess payment.