0001| SENATE BILL 154 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| MANNY M. ARAGON | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO FLOOD CONTROL AND DRAINAGE; ENACTING THE FLOOD | 0012| CONTROL AND DRAINAGE IMPROVEMENT DISTRICT ACT; AUTHORIZING | 0013| CERTAIN FLOOD CONTROL AUTHORITIES TO RAISE REVENUES FOR | 0014| IMPROVEMENTS BY AN ASSESSMENT LEVY ON IMPROVED LANDS. | 0015| | 0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0017| Section 1. SHORT TITLE.--This act may be cited as the | 0018| "Flood Control and Drainage Improvement District Act". | 0019| Section 2. IMPROVEMENT DISTRICT--DEFINITIONS.--As used | 0020| in the Flood Control and Drainage Improvement District Act: | 0021| A. "adjustment of assessment" means the adjustment | 0022| in the estimated maximum benefit or assessment resulting from | 0023| the division of the property to be assessed or assessed into | 0024| smaller tracts or parcels or the combining of smaller parcels | 0025| into one or more larger parcels or the changing of the | - 1 - 0001| configuration or legal description of such parcels. | 0002| "Adjustment of assessment" may also include the real location | 0003| of the assessment lien, without loss of priority, among | 0004| parcels under single ownership that are subject to the | 0005| assessment lien in order to permit the removal of the lien | 0006| from one or more parcels where adequate security for the lien | 0007| is demonstrated by the assessed parcels under such single | 0008| ownership or provided by the owner; | 0009| B. "authority" means a flood control authority | 0010| created pursuant to Chapter 72, Articles 16 and 19 NMSA 1978; | 0011| C. "board" means the board of directors of the | 0012| authority; | 0013| D. "construct" or "construction" means to plan, | 0014| design, engineer, construct, reconstruct, install, extend, | 0015| better, alter, build, rebuild, improve, purchase or otherwise | 0016| acquire any project authorized in the Flood Control and | 0017| Drainage Improvement District Act; | 0018| E. "engineer" means any person who is a | 0019| professional engineer licensed to practice in New Mexico and | 0020| who is a permanent employee of an authority or employed by an | 0021| authority in connection with an improvement; | 0022| F. "improvement" means any one or any combination | 0023| of projects in one or more locations authorized in the Flood | 0024| Control and Drainage Improvement District Act; | 0025| G. "improvement district" means one or more | - 2 - 0001| locations wherein the improvement is to be constructed and one | 0002| or more tracts or parcels of land to be assessed for the cost | 0003| of the improvement; and | 0004| H. "premature subdivision" means a subdivision | 0005| that has been platted and sold into multiple private ownership | 0006| prior to installation or financial guarantee of all required | 0007| improvements for land development. Such subdivisions contain | 0008| one or more of the following developmental inadequacies under | 0009| current local government standards and requirements: | 0010| (1) a lack of drainage easements of right-of- | 0011| way; | 0012| (2) a lack of an overall grading and drainage | 0013| plan; or | 0014| (3) a lack of adequate subdivision grading | 0015| both on and off the public right-of-way. | 0016| Section 3. IMPROVEMENT DISTRICT--AUTHORIZATION-- | 0017| LIMITATION.-- | 0018| A. Whenever the board determines that the creation | 0019| of an improvement district is necessary for the public safety, | 0020| health or welfare, the board may create an improvement | 0021| district for any one or any combination of projects authorized | 0022| in the Flood Control and Drainage Improvement District Act by | 0023| the: | 0024| (1) provisional order method; or | 0025| (2) petition method. | - 3 - 0001| B. The board may adopt any resolution necessary or | 0002| proper to accomplish the purposes of the Flood Control and | 0003| Drainage Improvement District Act. | 0004| C. The improvement district shall include for the | 0005| purpose of assessment all the property that the board | 0006| determines is benefited by the improvement authorized by the | 0007| Flood Control and Drainage Improvement District Act, including | 0008| property utilized for public, governmental, charitable or | 0009| religious purposes, except that of the United States or any | 0010| agency, instrumentality or corporation thereof in the absence | 0011| of a consent of congress, but shall not include any property | 0012| within the exterior boundaries of a municipality except as | 0013| provided in Section 6 of that act. | 0014| Section 4. IMPROVEMENT DISTRICT--PURPOSE.--An | 0015| improvement district may be created as authorized in the Flood | 0016| Control and Drainage Improvement District Act in order to | 0017| construct, acquire, repair or maintain in one or more | 0018| locations any one or any combination of the following | 0019| projects, including without limitation any right-of-way, | 0020| easement or privilege appurtenant or related thereto: | 0021| A. a bridge, walkway or gutter project, including | 0022| without limitation ramps and stairways, arches, support | 0023| structures and pilings and the grading, regrading, surfacing, | 0024| graveling, excavating, macadamizing, paving, repairing, | 0025| laying, backfilling, leveling, lighting, landscaping, | - 4 - 0001| beautifying or in any manner improving of all or any part of | 0002| one or more bridges, walkways, pathways, gutters or any | 0003| combination of the foregoing; | 0004| B. any storm sewer project, including without | 0005| limitation investigating, planning, constructing, acquiring, | 0006| excavating, laying, leveling, backfilling or in any manner | 0007| improving all or any part of one or more storm sewers, drains | 0008| and property connections and acquiring or improving valves, | 0009| catch basins, inlets, outlets, lift or pumping stations and | 0010| machinery and equipment incidental thereto or any combination | 0011| of the foregoing; or | 0012| C. a flood control or storm drainage project, | 0013| including without limitation the investigation, planning, | 0014| construction, improvement, replacement, repair or acquisition | 0015| of dams, dikes, levees, ditches, canals, basins and | 0016| appurtenances such as spillways, outlets, syphons and drop | 0017| structures, channel construction, diversions, rectification | 0018| and protection with appurtenant structures such as concrete | 0019| linings, banks, revetments, culverts, inlets, bridges, | 0020| transitions and drop structures, rundowns and retaining walls, | 0021| storm sewers and related appurtenances such as inlets, | 0022| outlets, manholes, catch basins, syphons and pumping stations, | 0023| appliances, machinery and equipment and property rights | 0024| connected therewith or incidental thereto convenient and | 0025| necessary to control floods or to provide drainage and lessen | - 5 - 0001| their danger and damages. | 0002| Section 5. IMPROVEMENT DISTRICT--ADDITIONAL PURPOSE.--An | 0003| improvement district may also be created as authorized in the | 0004| Flood Control and Drainage Improvement District Act in order | 0005| to construct, repair or maintain improvements in one or more | 0006| locations or to construct, acquire, repair, operate or | 0007| maintain one or more of the following items necessary to bring | 0008| a premature subdivision into compliance within an improvement | 0009| district within an authority: | 0010| A. drainage easements or rights of way; | 0011| B. overall grading and drainage plan; or | 0012| C. adequate subdivision grading either on or off | 0013| the public right of way. | 0014| Section 6. IMPROVEMENT DISTRICT--POWERS OF AN | 0015| AUTHORITY.--An authority shall have the power to construct | 0016| improvements authorized by the Flood Control and Drainage | 0017| Improvement District Act on any location within the boundaries | 0018| of the authority or a municipality or county outside the | 0019| authority's boundaries. Improvements shall be constructed | 0020| pursuant to the powers granted in the Flood Control and | 0021| Drainage Improvement District Act only if the governing body | 0022| of a municipality or the board of county commissioners of a | 0023| county outside the boundaries of the authority in which such | 0024| improvements are to be made has, by resolution submitted to | 0025| the board of county commissioners of the county, determined: | - 6 - 0001| A. that the construction of such improvements is | 0002| in the best interests of the municipality or the county; | 0003| B. that the maximum amount of benefit estimated to | 0004| be conferred on the tracts or parcels of land lying within the | 0005| municipality or county is determined in the same manner as the | 0006| maximum amount of benefit estimated to be conferred on the | 0007| tracts or parcels of land lying within the authority; and | 0008| C. that the owners of real property representing | 0009| at least fifty-one percent of the total assessed valuation of | 0010| the property benefited, which lies within the municipality or | 0011| county, have not objected in writing to such improvements | 0012| within thirty days after having received written notice of the | 0013| adoption of the provisional order described in Subsection E of | 0014| Section 8 of the Flood Control and Drainage Improvement | 0015| District Act by the board of county commissioners. The | 0016| authority may enter into a joint powers agreement with the | 0017| governing body of the municipality or the board of county | 0018| commissioners of the county to provide for joint | 0019| administration of any such improvement district. | 0020| Section 7. IMPROVEMENT DISTRICT--LIMITATIONS ON POWERS | 0021| OF AUTHORITY WITH RESPECT TO STREET OR RIGHT OF WAY UNDER | 0022| JURISDICTION OF STATE HIGHWAY COMMISSION.--The authority shall | 0023| not construct improvements on or through any street or right | 0024| of way under the jurisdiction of the state highway commission | 0025| unless it receives prior written approval from the state | - 7 - 0001| highway commission to undertake such improvements. | 0002| Section 8. IMPROVEMENT DISTRICT--PROVISIONAL ORDER | 0003| METHOD--PROCEDURE--PRELIMINARY LIEN--NOTICE OF PENDENCY OF | 0004| DISTRICT--EFFECT.-- | 0005| A. Whenever the board determines that the creation | 0006| of an improvement district is necessary by the provisional | 0007| order method, the board shall by resolution direct the | 0008| engineer to prepare preliminary plans and an estimate of cost | 0009| for the proposed improvement district. | 0010| B. The resolution shall: | 0011| (1) describe in general terms the property to | 0012| be included in the improvement district; and | 0013| (2) require the engineer to prepare: | 0014| (a) an assessment plat showing the area | 0015| to be included in the improvement district; and | 0016| (b) an addendum to the assessment plat | 0017| showing the amount of maximum benefit estimated to be assessed | 0018| against each tract or parcel in the improvement district on a | 0019| front-foot, zone, area or other equitable basis, which shall | 0020| be set forth in the resolution; provided, if the benefit to a | 0021| tract or parcel is derived from a combination of improvements, | 0022| the amount of maximum benefit estimated to be assessed against | 0023| such tract or parcel may be based upon an appraisal or | 0024| determination of the value of the improvements as a whole; and | 0025| (3) require the engineer to prepare | - 8 - 0001| preliminary plans for one or more types of construction | 0002| showing: | 0003| (a) for each type of storm sewer or | 0004| drain, the type of material and approximate diameter of any | 0005| trunk lines, mains, laterals or house connections; or | 0006| (b) for each other type of project or | 0007| other major component of the foregoing types of projects, a | 0008| general description. | 0009| C. The engineer shall include in the total cost | 0010| estimate for the improvement district all expenses, including | 0011| but not limited to advertising, appraising, tax reimbursement, | 0012| capital improvement, expansion, construction period interest, | 0013| reserve fund, financing, engineering and printing expenses, | 0014| which the engineer deems necessary to pay the complete cost of | 0015| the improvement. | 0016| D. The engineer shall submit to the board the: | 0017| (1) assessment plat; | 0018| (2) preliminary plans of the type of | 0019| construction; and | 0020| (3) estimates of costs for the improvement. | 0021| E. After the board examines the assessment plat, | 0022| preliminary plans and estimates of cost for the improvement | 0023| district, the board may adopt a provisional order that: | 0024| (1) orders the improvement to be constructed; | 0025| (2) instructs the engineer to give notice of | - 9 - 0001| a hearing on the provisional order; and | 0002| (3) orders, if deemed necessary by the board | 0003| and with the consent of the owners of the tracts or parcels to | 0004| be encumbered with a preliminary assessment lien, the | 0005| immediate placement of a preliminary assessment lien on tracts | 0006| or parcels in the improvement district based on the estimated | 0007| maximum benefit to be assessed against such tracts or parcels | 0008| in order to facilitate interim financing of the improvement | 0009| and provides for times and terms of paying the preliminary | 0010| assessment lien, for the adjustment of the preliminary | 0011| assessment lien and the placement of a final assessment lien | 0012| upon each such tract or parcel pursuant to the provisions of | 0013| Sections 19 and 20 of the Flood Control and Drainage | 0014| Improvement District Act. Both the preliminary and the final | 0015| assessment liens shall be coequal with the lien for general ad | 0016| valorem taxes and the lien of other improvement districts and | 0017| are superior to all other liens, claims and titles. The | 0018| consent of any owner in an improvement district to the | 0019| placement of a preliminary assessment lien on the owner's | 0020| property shall not alter the assessment on any other tracts or | 0021| parcels in the improvement district. | 0022| F. Upon the adoption of the provisional order by | 0023| the board, the estimated maximum benefit roll showing the | 0024| legal description of the property to be included in the | 0025| district and the owners thereof may be recorded with the clerk | - 10 - 0001| of the county in which the property is located, which | 0002| recording shall constitute notice of the pendency of the | 0003| special assessment district and shall be constructive notice | 0004| to the owner, purchaser or encumbrancer of the property | 0005| concerned; and any person whose conveyance is subsequently | 0006| recorded shall be considered a subsequent purchaser or | 0007| encumbrancer and shall be subject to and bound by all the | 0008| proceedings taken after the recording of the notice to the | 0009| same extent as if he were made a party to such special | 0010| assessment proceedings. | 0011| G. This notice need not be acknowledged to entitle | 0012| it to be recorded. | 0013| H. Nothing in this section shall be construed to | 0014| affect the priority of special assessment liens. | 0015| Section 9. IMPROVEMENT DISTRICT--NOTICE OF ASSESSMENT-- | 0016| PROTESTS.-- | 0017| A. The notice of the provisional order creating an | 0018| improvement district shall: | 0019| (1) contain the time and place when the board | 0020| shall hold a hearing on the provisional order creating the | 0021| improvement district; | 0022| (2) describe the improvement to be | 0023| constructed and the general location thereof; and | 0024| (3) state that any interested person may | 0025| ascertain in the office of the county clerk: | - 11 - 0001| (a) a description of the property to be | 0002| assessed; and | 0003| (b) the maximum amount of benefit | 0004| estimated to be conferred on each tract or parcel of land. | 0005| B. Not more than thirty days nor less than ten | 0006| days before the day of the hearing, the county clerk, his | 0007| deputy or the engineer shall mail the notice of the hearing on | 0008| the provisional order to the owner of the tract or parcel of | 0009| land being assessed the cost of the improvement at his last | 0010| known address. The name and address of the owner of each | 0011| tract of land shall be obtained from the records of the county | 0012| assessor or any other source the county clerk or engineer | 0013| deems reliable. Proof of the mailing is to be made by | 0014| affidavit of the county clerk, his deputy or the engineer and | 0015| shall be filed in the office of the county clerk. Failure to | 0016| mail any notice shall not invalidate any of the proceedings | 0017| authorized in the Flood Control and Drainage Improvement | 0018| District Act. | 0019| C. Notice of the hearing shall also be published | 0020| once each week for three consecutive weeks, and the last | 0021| publication shall be at least one week prior to the day of the | 0022| hearing. Such service by publication shall be verified by an | 0023| affidavit of the publisher, which is to be filed in the office | 0024| of the county clerk. | 0025| Section 10. IMPROVEMENT DISTRICT--PROVISIONAL ORDER-- | - 12 - 0001| PROTEST--ACTION IN DISTRICT COURT.-- | 0002| A. At the hearing of the board on the provisional | 0003| order creating an improvement district, any interested person | 0004| or owner of property to be assessed for the improvement may | 0005| file a written protest or objection questioning the: | 0006| (1) propriety and advisability of | 0007| constructing the improvement; | 0008| (2) estimated cost of the improvement; | 0009| (3) manner of paying for the improvement; or | 0010| (4) estimated maximum benefit to each | 0011| individual tract or parcel of land. | 0012| B. The board may recess the hearing from time to | 0013| time so that all protestants may be heard. | 0014| C. Within thirty days after the board, by adoption | 0015| of a resolution, has: | 0016| (1) concluded the hearing; | 0017| (2) determined: | 0018| (a) the advisability of constructing | 0019| the improvement; and | 0020| (b) the type and character of the | 0021| improvement; and | 0022| (3) created the improvement district, any | 0023| person who during the hearing filed a written protest with the | 0024| board protesting the construction of the improvement may | 0025| commence an action in district court to correct or set aside | - 13 - 0001| the determination of the board. After the lapse of thirty | 0002| days after adoption of the resolution by the board, any action | 0003| attacking the validity of the proceedings and the amount of | 0004| benefit to be derived from the improvement is perpetually | 0005| barred. Where no person has filed a written protest during | 0006| the hearing and all owners of property to be assessed, upon | 0007| conclusion of the hearing, submit to the governing body | 0008| written statements in favor of the creation of the improvement | 0009| district for the types and character of improvements indicated | 0010| in the provisional order, such owners shall be deemed to have | 0011| waived their right to bring any action challenging the | 0012| validity of the proceedings or the amount of benefit to be | 0013| derived from the improvements. | 0014| Section 11. IMPROVEMENT DISTRICT--PETITION METHOD-- | 0015| REQUIREMENTS--DISTRIBUTION OF COSTS--NOTICE OF HEARING.-- | 0016| A. Whenever the owners of sixty-six and two-thirds | 0017| percent or more of the total assessed valuation of the | 0018| property to be benefited, exclusive of any land owned by the | 0019| United States or New Mexico, petition the board in writing to | 0020| create an improvement district and construct the improvement | 0021| described in the petition, the board may: | 0022| (1) create the improvement district; | 0023| (2) select the type of material and method of | 0024| construction to be used; and | 0025| (3) proceed with the construction of the | - 14 - 0001| improvement as authorized in Section 15 of the Flood Control | 0002| and Drainage Improvement District Act after complying with the | 0003| requirements for a preliminary hearing required in this | 0004| section. A governing body of a municipality, board of county | 0005| commissioners or local board of education may sign a petition | 0006| seeking the improvement for any land under its control. The | 0007| submission of separate petitions for any one improvement | 0008| district within a six-month period shall be considered as a | 0009| single petition. | 0010| B. The board may: | 0011| (1) pay the cost of the improvement; | 0012| (2) assess the cost of the improvement | 0013| against the benefiting tracts or parcels of land; or | 0014| (3) pay part of the cost of the improvement | 0015| and assess part of the cost of the improvement against the | 0016| benefiting tracts or parcels of land. | 0017| C. If any part or all of the cost of the | 0018| improvement sought to be constructed as authorized in this | 0019| section is to be assessed against the benefiting tracts or | 0020| parcels of land, the board shall hold a preliminary hearing on | 0021| the proposed improvement district and give notice of the | 0022| preliminary hearing. | 0023| Section 12. IMPROVEMENT DISTRICT--NOTICE OF PRELIMINARY | 0024| HEARING.-- | 0025| A. The notice of the preliminary hearing required | - 15 - 0001| in Section 11 of the Flood Control and Drainage Improvement | 0002| District Act shall contain: | 0003| (1) the time and place when the board will | 0004| hold a preliminary hearing on the proposed improvement; | 0005| (2) the estimated cost of the improvement; | 0006| (3) the boundary of the improvement district; | 0007| (4) the route of the improvement by streets | 0008| or roads or location of the improvements; | 0009| (5) the location of the proposed improvement; | 0010| (6) a description of each property to be | 0011| assessed; | 0012| (7) the estimated amount of the assessment | 0013| against each tract or parcel of land; and | 0014| (8) the amount of the cost to be assumed by | 0015| the authority, if any. | 0016| B. If the owners are found within the authority, | 0017| the notices shall be personally served on them at least thirty | 0018| days prior to the day of the hearing. The notice shall also | 0019| be published in a newspaper published in the county once each | 0020| week for four successive weeks. The last publication shall be | 0021| at least three days before the day of the preliminary hearing. | 0022| Section 13. IMPROVEMENT DISTRICT--PRELIMINARY HEARING-- | 0023| PROTEST--ACTION OF THE BOARD--ACTION IN DISTRICT COURT.-- | 0024| A. At the preliminary hearing of the board on the | 0025| question of creating an improvement district as authorized in | - 16 - 0001| Section 11 of the Flood Control and Drainage Improvement | 0002| District Act, any owner of a tract or parcel of land to be | 0003| assessed may contest: | 0004| (1) the proposed assessment; | 0005| (2) the regularity of the proceedings | 0006| relating to the improvement; | 0007| (3) the benefits of the improvement; or | 0008| (4) any other matter relating to the | 0009| improvement district. | 0010| B. The board shall not assess the tract or parcel | 0011| of land an amount greater than the actual benefit to the tract | 0012| or parcel of land by reason of the enhanced value of the tract | 0013| or parcel of land as a result of the improvement as | 0014| ascertained at the hearing. The board may allow a fair price, | 0015| based on its current value, as a setoff against any assessment | 0016| against a tract or parcel of land if the owner has improved | 0017| the tract or parcel of land in such a manner that the | 0018| improvement may be made part of the proposed improvement. | 0019| C. At the hearing, the board may: | 0020| (1) correct any mistake or irregularity in | 0021| any proceeding relating to the improvement; | 0022| (2) correct an assessment made against any | 0023| tract or parcel of land; | 0024| (3) in case of any invalidity, reassess the | 0025| cost of the improvement against a benefiting tract or parcel | - 17 - 0001| of land; or | 0002| (4) recess the hearing from time to time. | 0003| D. Within thirty days after the hearing, any owner | 0004| of a tract or parcel of land assessed, whether he appeared at | 0005| the hearing or not, may commence an action in district court | 0006| seeking an account of any error or invalidity of the | 0007| proceedings relating to the improvement district or to set | 0008| aside or correct the assessment or any proceedings relating to | 0009| the improvement district. Thereafter, any owner or his heirs, | 0010| assigns, successors or personal representatives are | 0011| perpetually barred from any action or any defense of error or | 0012| invalidity in the proceedings or assessments. Where no owner | 0013| of a tract or parcel to be assessed has presented a protest | 0014| during the hearing and all owners of the property to be | 0015| assessed, upon conclusion of the hearing, submit written | 0016| statements in favor of the creation of the improvement | 0017| district for the types and character of improvements indicated | 0018| in the petition, such owners shall be deemed to have waived | 0019| their right to bring any action in district court seeking an | 0020| account of any error or invalidity of the proceedings relating | 0021| to the improvement district or to set aside or correct the | 0022| assessment or any proceedings relating to the improvement | 0023| district. | 0024| Section 14. IMPROVEMENT DISTRICT--LEVY AND COLLECTION OF | 0025| ASSESSMENTS PRIOR TO COMMENCING IMPROVEMENT--SPECIAL FUND-- | - 18 - 0001| MISUSE--PENALTY.-- | 0002| A. Whenever the board: | 0003| (1) elects to order the construction of a | 0004| project as authorized in the Flood Control and Drainage | 0005| Improvement District Act; | 0006| (2) uses authority-owned or -leased equipment | 0007| to construct the project; and | 0008| (3) determines what portion of the estimated | 0009| cost of the construction shall be paid by each tract or parcel | 0010| of land benefited or to be benefited by the construction; the | 0011| assessment may be levied and the installments collected prior | 0012| to the commencement of work and as work progresses according | 0013| to the terms of payment fixed by the board. | 0014| B. The construction shall commence within sixty | 0015| days after the payment of the first installment of the | 0016| assessment and be diligently prosecuted so that the | 0017| construction is completed within one year from the date of | 0018| commencement. At the end of the one-year period, any tract or | 0019| parcel of land that has not received the benefits provided by | 0020| this section shall be released of any lien assessed against | 0021| the tract or parcel of land by reason of this section, and all | 0022| assessment money collected from each owner of a tract or | 0023| parcel of land so assessed and not benefited shall be | 0024| returned. | 0025| C. All assessment money collected under this | - 19 - 0001| section shall be held by the county treasurer in a special | 0002| account as a separate fund and used only for constructing the | 0003| improvement, including the purchasing or leasing of necessary | 0004| equipment. The use of the special fund for any purpose other | 0005| than that required under this section by any public official, | 0006| treasurer or member of the board is prohibited and is a felony | 0007| punishable by a fine not exceeding one thousand dollars | 0008| ($1,000) or by imprisonment in the penitentiary for not more | 0009| than two years or by both fine and imprisonment in the | 0010| discretion of the court. | 0011| Section 15. IMPROVEMENT DISTRICT--ADVERTISING FOR BIDS-- | 0012| AUTHORITY MAY DO WORK--CONTRIBUTION BY GOVERNMENTAL AGENCY.-- | 0013| A. If a continuous area proposed to be improved | 0014| exceeds five hundred feet in length, the board, before using | 0015| authority equipment and employees to construct the | 0016| improvement, shall advertise for bids for the construction of | 0017| the improvement and award the contract for the construction of | 0018| the improvement to the lowest responsible bidder; provided, | 0019| however, an authority may construct the improvement using the | 0020| same specifications upon which bids were requested if: | 0021| (1) the authority can guarantee to construct | 0022| the improvement for an amount less than the lowest bid amount | 0023| and not assess the benefiting tracts or parcels of land an | 0024| amount in excess of the lowest responsible bid, if a bid is | 0025| received; or | - 20 - 0001| (2) the authority receives no bids for the | 0002| construction of the improvement. | 0003| B. If using authority-owned or -leased equipment | 0004| and authority employees in constructing an improvement, an | 0005| authority may cooperate with another governmental agency that | 0006| contributes money, labor or a portion of the cost of materials | 0007| towards completion of the improvement. | 0008| Section 16. NOTICE OF BID--ACCEPTANCE OF BID.-- | 0009| A. After the board creates an improvement | 0010| district, the board may proceed as authorized in Section 14 or | 0011| 15 of the Flood Control and Drainage Improvement District Act | 0012| or call for sealed bids on the proposed improvement. The | 0013| notice of the call for bids shall be made in accordance with | 0014| the provisions of Section 13-1-104 NMSA 1978. | 0015| B. After advertising for bids, the authority may | 0016| make minor alterations or changes in the plans and | 0017| specifications to correct errors or omissions in the original | 0018| plans and specifications. | 0019| C. The board shall award the contract to the | 0020| lowest responsible bidder unless the board: | 0021| (1) elects to construct the improvements as | 0022| authorized in Section 14 or 15 of the Flood Control and | 0023| Drainage Improvement District Act; or | 0024| (2) rejects all bids submitted for the | 0025| construction of the improvement. Such bids shall be rejected | - 21 - 0001| in the following manner: | 0002| (a) if less than three bids are | 0003| received, the purchase may be made without bids at the best | 0004| documented obtainable price; or | 0005| (b) if three or more bids are received, | 0006| the authority may reject any or all bids but shall readvertise | 0007| and accept new bids; and | 0008| (c) if no new bids are received or if | 0009| all new bids are rejected, the rejection shall be accompanied | 0010| by a written statement of the board declaring the reasons for | 0011| the rejection, and the authority may then purchase the | 0012| required items on the open market at the best documented | 0013| obtainable price. | 0014| Section 17. IMPROVEMENT DISTRICT--ASSESSMENT OF RAILROAD | 0015| PROPERTY.--The board may assess the property of any railroad | 0016| the whole cost of the improvement between or under the rails | 0017| or tracks and two feet on each side of the rail or track of | 0018| the railroad. The assessment shall be levied as other | 0019| assessments are levied and shall constitute a lien coequal | 0020| with the lien of other taxes and prior and superior to all | 0021| other liens, claims and titles and may be enforced by sale of | 0022| the railroad property or by suit against the owner of the | 0023| railroad. | 0024| Section 18. IMPROVEMENT DISTRICT--ASSESSMENT ROLL-- | 0025| NOTICE OF ASSESSMENT HEARING.-- | - 22 - 0001| A. After the contract has been awarded and the | 0002| board determines the total cost of the improvement to the | 0003| authority, the board shall determine what portion of the total | 0004| cost of the improvement shall be assessed against the | 0005| benefited tract or parcel of land. The assessment, including | 0006| the cost of the improvement at an intersection, shall not | 0007| exceed the estimated benefit to the tract or parcel of land | 0008| assessed. | 0009| B. With the engineer, the board shall prepare and | 0010| cause to be filed in the office of the county clerk an | 0011| assessment roll containing, among other things: | 0012| (1) the name of the last known owner of the | 0013| tract or parcel of land to be assessed or, if his name is | 0014| unknown, state "unknown"; | 0015| (2) a description of the tract or parcel of | 0016| land to be assessed; and | 0017| (3) the amount of the assessment against each | 0018| tract or parcel of land. | 0019| C. After the filing of the assessment roll, the | 0020| board shall, by resolution, set a time and place for the | 0021| assessment hearing when an owner may object to the amount of | 0022| the assessment. | 0023| D. Not more than thirty days nor less than ten | 0024| days before the day of the hearing, the county clerk, his | 0025| deputy or the engineer shall mail the notice of the hearing on | - 23 - 0001| the assessment roll to the owner of the tract or parcel of | 0002| land being assessed the cost of the improvement at his last | 0003| known address. The name and address of the owner of each | 0004| tract of land shall be obtained from the records of the county | 0005| assessor or any other source the county clerk or engineer | 0006| deems reliable. Proof of the mailing is to be made by | 0007| affidavit of the county clerk, his deputy or the engineer and | 0008| shall be filed in the office of the county clerk. Failure to | 0009| mail any notice shall not invalidate any of the proceedings | 0010| authorized in the Flood Control and Drainage Improvement | 0011| District Act. The notice of the hearing shall also be | 0012| published once each week for three consecutive weeks, and the | 0013| last publication shall be at least one week prior to the day | 0014| of the hearing. Such service by publication shall be verified | 0015| by an affidavit of the publisher, which is to be filed in the | 0016| office of the county clerk. | 0017| Section 19. IMPROVEMENT DISTRICT--FILING OF OBJECTIONS-- | 0018| ASSESSMENT HEARING--ACTION OF THE BOARD--APPEAL TO DISTRICT | 0019| COURT.-- | 0020| A. Not later than three days before the date of | 0021| the hearing on the assessment roll, any owner of a tract or | 0022| parcel of land that is listed on the assessment roll may file | 0023| his specific objections in writing with the county clerk. | 0024| Unless presented as required in this subsection, any objection | 0025| to the regularity, validity and correctness of: | - 24 - 0001| (1) the proceedings; | 0002| (2) the assessment roll; | 0003| (3) each assessment contained on the | 0004| assessment roll; or | 0005| (4) the amount of the assessment levied | 0006| against each tract or parcel of land, is waived. | 0007| B. At the hearing, the board shall hear all | 0008| objections that have been filed as provided in this section | 0009| and may recess the hearing from time to time and, by | 0010| resolution, revise, correct, confirm or set aside any | 0011| assessment and order another assessment be made de novo. | 0012| C. The board by resolution shall, by reference to | 0013| the assessment roll as so modified, if modified, and as | 0014| confirmed by the resolution, levy the assessments contained in | 0015| the assessment roll. The assessments may be levied in stages | 0016| if preliminary liens are established pursuant to Section 8 of | 0017| the Flood Control and Drainage Improvement District Act. The | 0018| resolution of the board shall be: | 0019| (1) a final determination of the regularity, | 0020| validity and correctness of: | 0021| (a) the proceedings; | 0022| (b) the assessment roll; | 0023| (c) each assessment contained on the | 0024| assessment roll; and | 0025| (d) the amount of the assessment levied | - 25 - 0001| against each tract or parcel of land; and | 0002| (2) conclusive upon the owners of the tract | 0003| or parcel of land assessed. | 0004| D. Within fifteen days after the publication of | 0005| the title and general summary of the resolution or posting of | 0006| the resolution, any owner who has filed an objection as | 0007| provided in this section may commence an action in district | 0008| court to correct or set aside the determination of the board. | 0009| After the lapse of fifteen days after the publication or | 0010| posting, all actions that include the defense of confiscation | 0011| or attack the regularity, validity and correctness of: | 0012| (1) the proceedings; | 0013| (2) the assessment roll; | 0014| (3) each assessment contained on the | 0015| assessment roll; or | 0016| (4) the amount of the assessment levied | 0017| against each tract or parcel of land, are perpetually barred. | 0018| Section 20. IMPROVEMENT DISTRICT--ASSESSMENTS--TERMS OF | 0019| PAYMENT--LIENS.-- | 0020| A. The board may, by resolution: | 0021| (1) establish the time and terms of paying | 0022| the assessment or installments on the assessment, including | 0023| but not limited to any provision for differing optional time | 0024| periods over which installments of assessments for the same | 0025| district may be paid and, at the discretion of the board, | - 26 - 0001| differing interest rates on the assessments that are payable | 0002| over different time periods; provided that in the situation | 0003| where the board provides for optional time periods for payment | 0004| of assessment installments, the resolution shall set a limit | 0005| on the time during which the affected property owner must | 0006| select one of the specified options in writing and shall | 0007| provide that failure to select one of the options within the | 0008| time limit conclusively establishes the selection of a | 0009| specific option designated in the resolution; | 0010| (2) set any rate or rates of interest upon | 0011| deferred payments of the assessment or provide for setting, by | 0012| resolution, of the rate or rates of interest upon deferred | 0013| payments after sale of bonds or assignable certificates as | 0014| provided in Section 21 of the Flood Control and Drainage | 0015| Improvement District Act, which shall commence from the date | 0016| of publication or posting of the resolution levying the | 0017| assessment; provided that the same interest rate shall be set | 0018| for assessments that are payable over the same time period; | 0019| and provided further that no rate or rates of interest in | 0020| excess of twelve percent a year upon such deferred payments of | 0021| the assessment shall become effective unless the state board | 0022| of finance or any successor thereof at any time approves such | 0023| higher rate or rates in writing based upon the determination | 0024| of the state board of finance that the higher rate is | 0025| reasonable under existing or anticipated bond market | - 27 - 0001| conditions, which approval shall be conclusive; | 0002| (3) fix penalties to be charged for | 0003| delinquent payment of an assessment; and | 0004| (4) establish procedures and standards for an | 0005| adjustment of assessment in order to allow transfer of a | 0006| parcel free of an assessment lien, accommodate subdivision of | 0007| an assessed parcel or accommodate property line corrections | 0008| and adjustments without changing the original payment | 0009| schedule, the priority or original amount of the assessment. | 0010| Such an adjustment of assessment may allow the owner of the | 0011| original tract of land to pay off any pro rata share of the | 0012| assessment lien in advance of the schedule of payments. The | 0013| procedures and standards may also provide for the method of | 0014| assessment on the newly created parcels to vary from the | 0015| method of assessment used on the original tract. | 0016| B. After the publication or posting of the | 0017| resolution levying an assessment as provided in Section 19 of | 0018| the Flood Control and Drainage Improvement District Act, the | 0019| assessment, together with any interest or penalty accruing to | 0020| the assessment, is a lien upon the tract or parcel of land so | 0021| assessed. Such a lien is coequal with the lien for general ad | 0022| valorem taxes and the lien of other improvement districts and | 0023| is superior to all other liens, claims and titles. Unmatured | 0024| installments are not deemed to be within the terms of any | 0025| general covenant or warranty. All purchasers, mortgagees or | - 28 - 0001| encumbrancers of a tract or parcel of land so assessed shall | 0002| hold the tract or parcel of land subject to the lien so | 0003| created unless the assessment lien is adjusted pursuant to | 0004| this section. | 0005| C. Within sixty days after the publication or | 0006| posting of the resolution ratifying an assessment roll and | 0007| levying the assessments, the county clerk shall prepare, sign, | 0008| attest and record in his office a claim of lien for any unpaid | 0009| amount due and assessed against a tract or parcel of land. | 0010| D. Any tract or parcel of land so assessed shall | 0011| not be relieved from the assessment or lien by the sale of the | 0012| tract or parcel of land for general taxes or any other | 0013| assessment, subject to the provisions of Section 27 of the | 0014| Flood Control and Drainage Improvement District Act. The | 0015| statute of limitations shall not begin to run against an | 0016| assessment until after the last installment of the assessment | 0017| becomes due. | 0018| E. The fact that an improvement is omitted for any | 0019| benefited tract or parcel of land does not invalidate a lien | 0020| or assessment made against any other tract or parcel of land. | 0021| Section 21. IMPROVEMENT DISTRICT--AUTHORITY TO ISSUE | 0022| BONDS OR ASSIGNABLE CERTIFICATES.-- | 0023| A. To pay all or any part of the cost of the | 0024| improvement, including those items set out in Subsection C of | 0025| Section 8 of the Flood Control and Drainage Improvement | - 29 - 0001| District Act, the board may issue in the name of the authority | 0002| bonds in such form as the board may determine or assignable | 0003| certificates in an amount not exceeding the total cost of the | 0004| improvement and maturing not more than twenty years from the | 0005| date of issuance. If the bonds or assignable certificates | 0006| recite that: | 0007| (1) the proceedings relating to making the | 0008| improvement and levying the assessments as provided in Section | 0009| 19 of that act or placing the preliminary lien as provided in | 0010| Section 8 of that act to pay for the improvement have been | 0011| done in compliance with law; and | 0012| (2) all prerequisites to the fixing of the | 0013| assessment lien or placing the preliminary lien against the | 0014| tract or parcel of land benefited by the improvement have been | 0015| performed, such recital shall be conclusive evidence of the | 0016| facts recited. | 0017| B. The assignable certificates shall: | 0018| (1) declare the liability of the owner of the | 0019| tract or parcel of land so assessed or the liability of the | 0020| tract or parcel of land so assessed for payment of the | 0021| assessment, interest and penalties; | 0022| (2) fix the terms and conditions of the | 0023| certificates; and | 0024| (3) accurately describe the tract or parcel | 0025| of land covered by the certificate. | - 30 - 0001| C. The bonds shall: | 0002| (1) recite the terms and conditions for their | 0003| issuance; | 0004| (2) be payable from money collected from the | 0005| preliminary assessment lien authorized in Section 8 of the | 0006| Flood Control and Drainage Improvement District Act and, if so | 0007| payable, also payable from the proceeds of bonds payable from | 0008| the final assessment lien authorized in Section 19 of that | 0009| act; or | 0010| (3) be payable from the money collected from | 0011| the assessments authorized in Section 19 of that act; provided | 0012| that if assessments are made payable over more than one period | 0013| of time as permitted by Section 20 of that act, specified | 0014| portions of the bonds may be payable from money collected from | 0015| those assessments payable over that period of time that | 0016| generally corresponds to the period of time over which such | 0017| specified portions of the bonds are payable; and | 0018| (4) bear a rate or rates of interest that | 0019| shall not exceed the rate of interest on the deferred | 0020| installments of the assessments or, if more than one rate of | 0021| interest is specified for assessments as permitted by Section | 0022| 19 of that act, on that portion of the deferred installments | 0023| of assessments from which that specified portion of the bonds | 0024| may be payable. | 0025| D. The bonds may be issued to the contractor in | - 31 - 0001| payment for the construction of the improvement or may be | 0002| issued and sold: | 0003| (1) in payment of the authority's proportion | 0004| of the cost of the improvement; | 0005| (2) in payment of the proportionate cost, if | 0006| the improvement is done in cooperation with another | 0007| governmental agency; | 0008| (3) in payment of the construction of the | 0009| improvement done under contract; or | 0010| (4) in reimbursement to the authority, if the | 0011| authority constructed the improvement with authority-owned or | 0012| -leased equipment and authority employees. | 0013| E. Bonds or assignable certificates may be sold at | 0014| a public or private sale at a discount. | 0015| Section 22. IMPROVEMENT DISTRICT--RIGHTS OF NEGOTIABLE | 0016| BONDHOLDERS OR ASSIGNABLE CERTIFICATE HOLDERS.-- | 0017| A. If the board fails or refuses to foreclose and | 0018| sell a tract or parcel of land for the delinquent assessment | 0019| or installment of the assessment as required in Section 23 of | 0020| the Flood Control and Drainage Improvement District Act, any | 0021| holder of a bond or assignable certificate secured by the | 0022| assessment may foreclose the assessment lien on such | 0023| delinquent property in the manner provided by law for the | 0024| foreclosure of mortgages on real estate. | 0025| B. Any person holding two or more assignable | - 32 - 0001| certificates issued as authorized in Section 21 of the Flood | 0002| Control and Drainage Improvement District Act may sue in the | 0003| same action on all tracts or parcels of land described in the | 0004| certificate to enforce the lien against the tract or parcel of | 0005| land described in the certificate unless the assessment lien | 0006| has been adjusted pursuant to Section 20 of that act. | 0007| C. Whenever a governing body of a municipality, | 0008| board of county commissioners or local board of education is | 0009| delinquent in the payment of an assessment, the holder of any | 0010| assignable certificate issued against the tract or parcel of | 0011| land of the municipality, county or school district has the | 0012| rights and remedies for the collection of the assessment as | 0013| are given by law for the collection of judgments against | 0014| municipalities, counties and school districts. | 0015| Section 23. IMPROVEMENT DISTRICT--ADDITIONAL DUTIES | 0016| IMPOSED ON AUTHORITY.-- | 0017| A. Whenever an improvement district has been | 0018| created and bonds or assignable certificates have been issued | 0019| to finance the improvement, the authority shall: | 0020| (1) act as agent for the collection of the | 0021| assessments; | 0022| (2) collect the assessments when due; | 0023| (3) act as trustee for the benefit of the | 0024| holders of the bonds or assignable certificates; | 0025| (4) annually prepare a statement that shall: | - 33 - 0001| (a) be available for inspection in the | 0002| office of the county treasurer; | 0003| (b) reflect the financial condition of | 0004| the improvement district; and | 0005| (c) list all the delinquencies existing | 0006| at that time; and | 0007| (5) institute proceedings to foreclose the | 0008| assessment lien against any tract or parcel of land that is | 0009| delinquent in the payment of the assessment or installment of | 0010| an assessment for a period of more than one year. | 0011| B. If more than one improvement district is | 0012| created, the money from assessments in each district shall be | 0013| kept in a separate fund and used for the payment of principal | 0014| and interest of the bonds or assignable certificates | 0015| outstanding against that improvement district. | 0016| Section 24. IMPROVEMENT DISTRICT--ACCEPTANCE OF DEED IN | 0017| LIEU OF FORECLOSURE.--In lieu of the foreclosure of a lien | 0018| against any tract or parcel of land that is delinquent in the | 0019| payment of an assessment or installment of an assessment for a | 0020| period of more than one year, the authority may accept a deed | 0021| to the property subject to the lien if the owner of the | 0022| property tenders the deed to the authority. | 0023| Section 25. IMPROVEMENT DISTRICT--FORECLOSURE--TRUSTEE | 0024| MAY PURCHASE AT FORECLOSURE OF LIENS--CONTENTS OF BID.--Any | 0025| delinquent assessment has the effect of a mortgage and shall | - 34 - 0001| be foreclosed and sold in the manner provided by law for the | 0002| foreclosure of mortgages on real estate. In any action | 0003| seeking the foreclosure of a lien against any tract or parcel | 0004| of land assessed by the authority for the construction of any | 0005| project after either or both assignable certificates or bonds | 0006| have been issued, if there is no other purchaser for the tract | 0007| or parcel of land having a delinquent assessment, the | 0008| authority as trustee of the fund from which the assignable | 0009| certificates or bonds are to be paid, may: | 0010| A. purchase the tract or parcel of land sold at | 0011| the foreclosure sale; and | 0012| B. bid, in lieu of cash, the full amount of the | 0013| assessment, interest, penalties, attorney fees and costs found | 0014| by the court to be due and payable under the resolution | 0015| creating the lien and any cost taxed by the court in the | 0016| foreclosure proceedings against the property ordered sold. | 0017| Section 26. IMPROVEMENT DISTRICT--TITLE SUBJECT TO | 0018| REDEMPTION VESTS IN TRUSTEE.--Upon the acceptance or purchase | 0019| of the tract or parcel of land as provided in Sections 24 and | 0020| 25 of the Flood Control and Drainage Improvement District Act, | 0021| title to the tract or parcel of land, subject to the right of | 0022| redemption provided by Subsection A of Section 27 of that act | 0023| vests in the trustee of the fund from which the assignable | 0024| certificates or bonds are payable. | 0025| Section 27. IMPROVEMENT DISTRICT--PRIVATE OR PUBLIC SALE | - 35 - 0001| OF PROPERTY--REDEMPTION PERIOD--APPLICATION FOR AUTHORIZATION-- | 0002| APPRAISEMENT--DISPOSITION OF PROCEEDS.-- | 0003| A. No real property shall be sold by the trustee to | 0004| satisfy a delinquent assessment until at least fifteen days | 0005| after the date of the order, judgment or decree of the court, | 0006| within which time the owner of the tract or parcel of land may | 0007| pay off the decree and avoid the sale. Any real estate sold | 0008| under any order, judgment or decree of court to satisfy the | 0009| lien may be redeemed at any time within one year of the date of | 0010| sale by the owner or mortgage holder or other person having an | 0011| interest, or their assigns, by repaying to the purchaser or his | 0012| assign the amount paid with interest from the date of purchase | 0013| at the rate of twelve percent per year. | 0014| B. After expiration of the fifteen-day period, the | 0015| trustee may sell the property at a public or private sale | 0016| subject to the right of redemption, and, if not paid from the | 0017| proceeds of the sale, subject to the indebtedness claimed under | 0018| the lien, ad valorem taxes and other special assessments having | 0019| a lien on the property that is coequal with the lien for ad | 0020| valorem taxes. | 0021| C. The proceeds of the sale of the foreclosed tract | 0022| or parcel of land at either a private sale or a public sale | 0023| shall be applied as follows: | 0024| (1) first, to the payment of costs in giving | 0025| notice of the sale and of conducting the sale; | - 36 - 0001| (2) second, to costs and fees taxed against | 0002| the tract or parcel of land in the foreclosure proceedings; | 0003| (3) third, on a pro rata basis, to the | 0004| indebtedness claimed under the lien and to ad valorem taxes and | 0005| other special assessments having a lien on the property that | 0006| are coequal with the ad valorem taxes; and | 0007| (4) fourth, after all such costs, liens, | 0008| assessments and taxes are paid, to the former owner, mortgage | 0009| holder or other parties having an interest in the tract or | 0010| parcel, upon such person providing satisfactory proof to the | 0011| court of such interest and upon approval of the court. | 0012| Receipts for the satisfaction of the indebtedness claimed under | 0013| the lien shall be paid into the proper improvement district | 0014| fund for payment of the interest and the bonds or assignable | 0015| certificates. In case of the sale of any tract or parcel of | 0016| land subject to more than one delinquent assessment, such | 0017| remaining proceeds shall be distributed into the proper | 0018| improvement district funds for such payment pro rata based upon | 0019| the total unpaid amount due each such district. | 0020| Section 28. IMPROVEMENT DISTRICT--ASSESSMENT FUNDS-- | 0021| EXPENDITURES--MISUSE--PENALTIES.-- | 0022| A. All money received by the authority from any | 0023| special assessment or assessment within an improvement district | 0024| shall be held in a special fund and used to: | 0025| (1) pay the cost of the improvement for which | - 37 - 0001| the assessment was made; | 0002| (2) reimburse the authority for any work | 0003| performed by the authority in constructing the improvement and | 0004| for administrative costs associated with the improvement | 0005| district; or | 0006| (3) pay the interest and principal due on any | 0007| outstanding bonds or assignable certificates. | 0008| B. Any person who uses money in an improvement | 0009| district fund other than as provided in this section is guilty | 0010| of a felony and shall be punished by a fine not exceeding one | 0011| thousand dollars ($1,000) or by imprisonment in the state | 0012| penitentiary for not more than two years or by both such fine | 0013| and imprisonment in the discretion of the court. | 0014| Section 29. TRANSFER OF IMPROVEMENT DISTRICT FUNDS.--The | 0015| board may transfer to the general fund of the authority any | 0016| money obtained from the levy of an assessment for an | 0017| improvement district if: | 0018| A. bonds or assignable certificates were issued to | 0019| finance the improvement; | 0020| B. the proceeds of the bonds or assignable | 0021| certificates were spent for the improvement; | 0022| C. the assessments were levied and collected for the | 0023| payment of the bonds or assignable certificates; and | 0024| D. either the bondholders or assignable certificate | 0025| holders are barred by the statute of limitations or a court | - 38 - 0001| judgment or decree from collecting the indebtedness; or | 0002| E. the bonded indebtedness or assignable | 0003| certificates have been paid. | 0004| Section 30. IMPROVEMENT DISTRICT--REASSESSMENT AFTER | 0005| VOIDING OF ASSESSMENTS--PROCEDURE.-- | 0006| A. It is the purpose of Sections 30 through 34 of | 0007| the Flood Control and Drainage Improvement District Act to: | 0008| (1) charge the cost of any improvement payable | 0009| by the tract or parcel of land benefited by the improvement by | 0010| making a reassessment for the cost of the improvement; and | 0011| (2) permit the making of a reassessment when | 0012| an original assessment is declared void or the enforcement of | 0013| the original assessment is refused by a court. | 0014| B. Whenever any assessment for improvements is | 0015| declared void or unenforceable, either directly or indirectly, | 0016| by a decision of any court for any cause whatever, the board | 0017| shall reassess the tracts or parcels of land that are benefited | 0018| or will be benefited by the improvement to the extent of the | 0019| proportionate share of the cost of the improvement of each | 0020| tract or parcel of land, together with accrued interest. | 0021| C. The reassessment roll shall be prepared, a | 0022| hearing held on the reassessment roll and a final determination | 0023| of the reassessment made by the board, all in the manner | 0024| provided in Sections 19 through 21 of the Flood Control and | 0025| Drainage Improvement District Act for the original assessment. | - 39 - 0001| Section 31. IMPROVEMENT DISTRICT--REASSESSMENT--DEFECTS | 0002| WAIVED--CREDIT FOR PREVIOUS PAYMENT.-- | 0003| A. The fact that: | 0004| (1) the contract has been let; | 0005| (2) an improvement has been wholly or | 0006| partially constructed; | 0007| (3) an omission, failure or neglect of the | 0008| board, authority or county officer to comply with the | 0009| requirements of Sections 1 through 21 of the Flood Control and | 0010| Drainage Improvement District Act; or | 0011| (4) any other matter whatsoever connected with | 0012| the improvement or initial assessment is invalid; | 0013| shall not invalidate or in any way affect the making of a | 0014| reassessment as authorized in Section 30 of that act and | 0015| charging the benefited tract or parcel of land the cost of the | 0016| improvement. | 0017| B. When the reassessment is complete, any money paid | 0018| on the former attempted assessment against a tract or parcel of | 0019| land shall be credited to the tract or parcel of land in | 0020| partial or whole payment of the reassessment. | 0021| Section 32. IMPROVEMENT DISTRICT--NOTICE OF APPEAL-- | 0022| APPEAL TO DISTRICT COURT--APPEAL TO SUPREME COURT.-- | 0023| A. After an owner has filed a written objection with | 0024| the authority to any reassessment as provided in Section 20 of | 0025| the Flood Control and Drainage Improvement District Act and the | - 40 - 0001| board has determined the reassessment, any owner of a tract or | 0002| parcel of land that is reassessed may within ten days after the | 0003| reassessment roll has been ratified by resolution file a notice | 0004| of appeal to the district court. The notice to the authority | 0005| shall describe the tract or parcel of land being reassessed and | 0006| shall state the objections of the appellant to the | 0007| reassessment. | 0008| B. Within twenty days after the reassessment roll | 0009| has been ratified by resolution, the appellant shall file with | 0010| the clerk of the district court copies of the: | 0011| (1) notice of appeal; | 0012| (2) appeal; | 0013| (3) reassessment roll; | 0014| (4) reassessment proceedings, all certified by | 0015| the authority; and | 0016| (5) a bond to the authority conditioned to pay | 0017| all costs that may be awarded against the appellant in a sum of | 0018| not less than two hundred dollars ($200), with such security as | 0019| shall be approved by the district court. | 0020| C. The case shall: | 0021| (1) be docketed by the clerk of the district | 0022| court in the name of the owner taking such appeal against the | 0023| authority as "an equal appeal from reassessments"; | 0024| (2) have preference over all civil cases | 0025| pending in the district court except proceedings under: | - 41 - 0001| (a) the law relating to eminent domain by | 0002| counties; or | 0003| (b) actions of forcible entry and | 0004| detainer; and | 0005| (3) be tried as in the case of equitable | 0006| causes, except that no pleadings are necessary. The judgment | 0007| of the district court shall be to confirm, modify or annul the | 0008| reassessment insofar as the reassessment affects the tract or | 0009| parcel of land of the appellant. If the reassessment is | 0010| confirmed, the fees of the authority for copies of the record | 0011| shall be taxed against the appellant with the other costs. | 0012| D. On any judgment of the district court, appeal | 0013| shall be to the supreme court as in other causes. If an appeal | 0014| is taken to the supreme court, the transcript of the | 0015| proceedings in the district court shall be filed in the office | 0016| of the clerk of the supreme court within thirty days after the | 0017| rendering of the decree being appealed. If the appeal is not | 0018| filed within the thirty-day period, the appeal shall be | 0019| forthwith dismissed upon motion. If the appeal is properly | 0020| prosecuted, the supreme court shall advance the cause on the | 0021| docket and hear the appeal at the earliest possible | 0022| opportunity. | 0023| Section 33. IMPROVEMENT DISTRICT--PAYMENT OF | 0024| REASSESSMENT--CONTINUING PROCEEDINGS TO COLLECT ASSESSMENT.-- | 0025| A. The board shall enforce payment of the | - 42 - 0001| reassessment of the tract or parcel of land benefiting from an | 0002| improvement in the manner provided in the Flood Control and | 0003| Drainage Improvement District Act for the enforcement of the | 0004| original assessment. | 0005| B. If for any reason a reassessment is held to be | 0006| invalid or uncollectible, the board shall continue to reassess | 0007| the tract or parcel of land as provided in Sections 30 through | 0008| 34 of the Flood Control and Drainage Improvement District Act | 0009| until the benefited tract or parcel of land has paid the cost | 0010| of any improvement chargeable to the benefited tract or parcel | 0011| of land. | 0012| Section 34. IMPROVEMENT DISTRICT--APPEAL OF REASSESSMENT-- | 0013| PROCEDURE EXCLUSIVE.-- | 0014| A. The rights and remedies granted in Section 19 of | 0015| the Flood Control and Drainage Improvement Act to any owner who | 0016| objects to, contests or appeals the amount, correctness, | 0017| regularity or validity of the reassessment: | 0018| (1) are declared to exclude any other right, | 0019| remedy, suit or action either at law or in equity that might | 0020| otherwise be available; and | 0021| (2) do afford the owner a sufficient day in | 0022| court for the redressing of all rights and grievances that he | 0023| may have in connection with the reassessment. | 0024| B. Any person who fails to file an objection to a | 0025| reassessment in the manner provided in Section 19 of the Flood | - 43 - 0001| Control and Drainage Improvement District Act or fails to appeal | 0002| to the district court in the manner provided in Section 32 of | 0003| that act is forever absolutely barred from objecting to or | 0004| contesting the amount, correctness, regularity or validity of | 0005| the reassessment. | 0006| Section 35. IMPROVEMENT DISTRICT--APPLICATION OF | 0007| REASSESSMENT FUND TO OUTSTANDING INDEBTEDNESS.-- | 0008| A. Whenever the authority has: | 0009| (1) issued bonds or assignable certificates to | 0010| obtain money to pay for an improvement that has been | 0011| constructed; and | 0012| (2) reassessed the tract or parcel of land | 0013| benefiting from the improvement as provided in Sections 30 | 0014| through 34 of the Flood Control and Drainage Improvement | 0015| District Act, the authority shall apply all money received from | 0016| the payment of the reassessment to the payment of the bonds or | 0017| assignable certificates. | 0018| B. Bonds or assignable certificates that have been | 0019| issued to obtain money to pay for any improvement that has been | 0020| constructed are: | 0021| (1) valid and binding obligations of the | 0022| authority; and | 0023| (2) payable from the payments received from any | 0024| reassessment that shall be levied until all obligations of | 0025| indebtedness of the improvement have been paid in full. | - 44 - 0001| Section 36. IMPROVEMENT DISTRICT--REFUNDING IMPROVEMENT | 0002| BONDS--AUTHORITY.-- | 0003| A. As used in this section and in Sections 37 | 0004| through 39 of the Flood Control and Drainage Improvement | 0005| District Act "bonds", when not modified by the word "refunding", | 0006| includes assignable certificates. | 0007| B. The board may issue refunding improvement | 0008| district bonds to refund all or any part of improvement district | 0009| bonds. Refunding bonds may be issued: | 0010| (1) to change the payment schedule for the | 0011| bonds; | 0012| (2) to fund principal and interest due on bonds | 0013| that are in default or for which there is not and, in the | 0014| opinion of the governing body, will not be sufficient money | 0015| available to pay the principal and interest when due; | 0016| (3) to reduce interest costs on the bonds or on | 0017| the assessments providing security for the bonds or to provide | 0018| other savings; | 0019| (4) to modify or eliminate restrictive or | 0020| burdensome contractual limitations concerning the bonds; | 0021| (5) to provide enhanced or substitute security | 0022| for the bonds; or | 0023| (6) to provide for any other reasonable and | 0024| necessary purpose or any combination of the foregoing purposes. | 0025| Section 37. REFUNDING BONDS--ESCROW--DETAIL.-- | - 45 - 0001| A. Refunding bonds issued pursuant to Sections 36 | 0002| through 39 of the Flood Control and Drainage Improvement | 0003| District Act shall be authorized by resolution. Any bonds that | 0004| are refunded under the provisions of this section shall be paid | 0005| at maturity or on any permitted prior redemption date in the | 0006| amounts at the time and places and, if called prior to maturity, | 0007| in accordance with any applicable notice provisions, all as | 0008| provided in the resolution authorizing the issuance of the | 0009| refunded bonds or otherwise appertaining thereto, except for any | 0010| such bond that is voluntarily surrendered for exchange or | 0011| payment by the holder or owner. | 0012| B. Provisions shall be made for paying the refunded | 0013| bonds at the time or times provided in Subsection A of this | 0014| section. | 0015| C. The proceeds of refunding bonds, including any | 0016| accrued interest and premium appertaining to the sale of | 0017| refunding bonds, shall either be immediately applied to the | 0018| retirement of the refunded bonds or be placed in escrow in a | 0019| commercial bank or trust company that possesses and is | 0020| exercising trust powers and that is a member of the federal | 0021| deposit insurance corporation, to be applied to the payment of | 0022| the principal of, interest on and any prior redemption premium | 0023| due in connection with the refunded bonds; provided that such | 0024| refunding bond proceeds, including any accrued interest and any | 0025| premium appertaining to a sale of refunding bonds, may be | - 46 - 0001| applied to the establishment and maintenance of a reserve fund | 0002| and to the payment of expenses incidental to the refunding and | 0003| the issuance of the refunding bonds, the interest thereon and | 0004| the principal thereof or both interest and principal as the | 0005| authority may determine. Nothing in this section requires the | 0006| establishment of an escrow if the refunded bonds become due and | 0007| payable within one year from the date of the refunding bonds and | 0008| if the amounts necessary to retire the refunded bonds within | 0009| that time are deposited with the paying agent for the refunded | 0010| bonds. Any such escrow shall not necessarily be limited to | 0011| proceeds of refunding bonds but may include other money | 0012| available for its purpose. Any proceeds in escrow pending such | 0013| use may be invested or reinvested in bills, certificates of | 0014| indebtedness, notes or bonds that are direct obligations of or | 0015| the principal and interest of which obligations are | 0016| unconditionally guaranteed by the United States or in | 0017| certificates of deposit of banks that are members of the federal | 0018| deposit insurance corporation, the par value of which | 0019| certificates of deposit is collateralized by a pledge of | 0020| obligations of or the payment of which is unconditionally | 0021| guaranteed by the United States, the par value of which | 0022| obligations is at least seventy-five percent of the par value of | 0023| the certificates of deposit. Such proceeds and investments in | 0024| escrow together with any interest or other income to be derived | 0025| from any such investment shall be in an amount at all times | - 47 - 0001| sufficient as to principal, interest, any prior redemption | 0002| premium due and any charges of the escrow agent payable | 0003| therefrom to pay the refunded bonds as they become due at their | 0004| respective maturities or due at any designated prior redemption | 0005| date or dates in connections with which the authority shall | 0006| exercise a prior redemption option. Any purchaser of any | 0007| refunding bond issued under Sections 36 through 39 of the Flood | 0008| Control and Drainage Improvement District Act is in no manner | 0009| responsible for the application of the proceeds thereof by the | 0010| authority or any of its officers, agents or employees. | 0011| Section 38. IMPROVEMENT DISTRICT--RESOLUTION FOR REFUNDING | 0012| BONDS--CONDITIONS--SALE OR EXCHANGE.-- | 0013| A. The resolution authorizing the issuance of | 0014| refunding bonds for an improvement district shall describe the: | 0015| (1) details of the issue; | 0016| (2) form of the refunding bonds and interest | 0017| coupons, if any; | 0018| (3) fund from which the principal and interest | 0019| of the refunding bonds will be paid; and | 0020| (4) manner in which the bonds are to be issued. | 0021| B. The refunding bonds may: | 0022| (1) be issued in an amount less than, equal to | 0023| or greater than the principal amount of improvement district | 0024| bonds being refunded; | 0025| (2) not bear a rate of interest greater than | - 48 - 0001| the rate of interest borne by the assessments providing security | 0002| for the refunding bonds if secured by assessments; | 0003| (3) become due and payable in regular numerical | 0004| order; | 0005| (4) not be issued for a period of more than | 0006| twenty years from the date of issuance; and | 0007| (5) be payable from substitute security or from | 0008| the same funds that were applicable to the payment of the bonds | 0009| being refunded. | 0010| C. The refunding bonds may be: | 0011| (1) sold at a public or private sale at a | 0012| discount; or | 0013| (2) exchanged, dollar for dollar, for the | 0014| improvement district bonds being refunded. | 0015| Section 39. IMPROVEMENT DISTRICT--PAYMENT OF ASSESSMENT | 0016| FOR REFUNDING BOND--MAXIMUM TERM--INTEREST--PREPAYMENT--LIENS.-- | 0017| A. In connection with issuance of refunding bonds as | 0018| provided in Sections 36 through 39 of the Flood Control and | 0019| Drainage Improvement District Act, the board may by resolution | 0020| provide that any unpaid assessment and accrued interest on the | 0021| assessment shall be paid in not more than twenty years with | 0022| interest at a rate of interest not less than the rate borne by | 0023| the refunding bonds and with the penalties as lawfully attached | 0024| to the original assessment. The owner of a tract or parcel of | 0025| land that is assessed may at any time pay the assessment in full | - 49 - 0001| with interest to the time of payment. | 0002| B. The assessment may be collected as provided in | 0003| Section 20 of the Flood Control and Drainage Improvement | 0004| District Act and the refunding bonds may be secured and enforced | 0005| as the original lien was established as provided in that | 0006| section. | 0007| Section 40. IMPROVEMENT DISTRICT--CONSTRUCTION OF | 0008| SECTIONS.--Nothing contained in Sections 36 through 39 of the | 0009| Flood Control and Drainage Improvement District Act shall be | 0010| construed as: | 0011| A. increasing the burden or liability of any tract | 0012| or parcel of land or the owner of any tract or parcel of land; | 0013| or | 0014| B. except for issuance of the refunding bonds, | 0015| creating any additional liability of the authority. | 0016|  |