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058 of 2009 - 2009 Assessment for Lighting District No. 2 (L02) 0 09-1 Q 09-8 ORDINANCE NO. 58 of 2009 AN ORDINANCE (THE "2009 ASSESSMENT ORDINANCE") APPROVING THE ASSESSMENT LIST AND LEVYING AN ANNUAL ASSESSMENT UPON PROPERTY IN SALT LAKE CITY, UTAH LIGHTING DISTRICT NO. 2, KNOWN AS L02 ("DISTRICT L02"); ESTABLISHING THE EFFECTIVE DATE OF THE 2009 ASSESSMENT ORDINANCE; PROVIDING FOR A PROCEDURE TO CONTEST AN ASSESSMENT; AND RELATED MATTERS. BE IT ORDAINED BY THE CITY COUNCIL (THE "COUNCIL") OF SALT LAKE CITY (THE"CITY"), UTAH, AS FOLLOWS: Section 1. Determination of Costs. The estimated operation and maintenance costs of District L02 to provide for street lighting within District L02 have been determined, and the City Engineer has determined that the reasonable useful life of the street lighting facilities to be maintained by the assessment to be levied herein is not less than fifteen(15) years. Section 2. Approval of Assessment List; Findings. The Council confirms and adopts the assessment list, a copy of which is attached hereto as Exhibit B and incorporated herein by reference (the "Assessment List"). The Assessment List has been adjusted to comport with the previous year's operating experience for District L02 and it includes estimated operation and maintenance costs for the current year. The Council has determined that the Assessment List is just and equitable; that each piece of property to be assessed within District L02 will be benefited in an amount not less than the assessment to be levied against said property; and that no piece of property listed in the assessment list will bear more than its proportionate share of the cost of the estimated operation and maintenance costs. Section 3. Levy of Assessments. The Council hereby levies an assessment upon the real property identified in the Assessment List. The assessments levied upon each parcel of property therein described shall be in the amount set forth in the Assessment List as adjusted. The assessments hereby levied are for the purpose of paying the estimated operation and maintenance costs of providing street lighting and the furnishing of electrical energy within District L02. It is hereby determined and established that the property being assessed will be specifically benefited to the full amount of the assessment hereby levied to cover said estimated operation and maintenance costs. The property benefited is all within the boundaries of District L02. Unless future modifications revise the purposes and plans of District L02, future assessments will continue to be levied annually for the reasonable useful life of the facilities to be maintained by the assessments levy based upon applicable rates established by the energy contract with the City. Future non-energy costs of operation and maintenance relating to the providing of lighting benefits will also be a factor in determining future rates. The City Treasurer is hereby authorized and directed to notify property owners of this assessment and to collect DMWEST#7294290 v2 3 assessments in accordance with the provisions of this 2009 Assessment Ordinance for the purposes herein provided. Section 4. Operation and Maintenance Costs; Amount of Total Assessments. As determined by the office of the City Engineer, the total estimated operation and maintenance costs for this fiscal year of District L02 are $151,061 of which the City's portion is approximately $37,765. The remainder of $113,296 is to be paid from assessments levied upon property within District L02 as set forth in the Assessment List. Section 5. Method, Rate, and Payment of Assessment. The total assessment for District L02 is levied in accordance with the method set out in the Notice of Intention pertaining to District L02 as adopted by the City Council on August 8, 1995. The applicable rate for each property was determined based on the operation and maintenance costs of providing street lighting services and furnishing electrical energy, together with other related factors, the totals of which are set out in the preceding Section. Future annual assessments may include adjustments to reflect changes in operation and maintenance costs and any balances or deficits resulting from the previous year's operations. Assessments shall be payable on December 15, 2009 (the "Due Date"). Interest on assessments shall accrue only after passage of the Due Date as set out in the Special Assessment Notice to be mailed by the City Treasurer to property owners. The rate of interest accruing on any delinquent assessment shall be the rate allowed by Utah statute (the "Delinquent Rate"). The whole or any part of the assessment may be paid without interest on or prior to the Due Date. Future annual assessments may include adjustments to reflect changes in operation and maintenance costs and any balances or deficits from the previous year's operations. Section 6. Default in Payment. The assessment installment shall be delinquent if it remains unpaid after the Due Date. Any delinquency shall constitute a default in the payment of the assessment. If a default occurs in the payment of any installment when due, the City may file for recording a notice (the "Notice of Delinquency") with the Salt Lake County Recorder. The resulting recording fees for both any filing and any release shall be added to the assessment together with accrued interest due and owing. In addition, costs of collection as determined by the City Treasurer or required by law shall be charged and paid on all delinquent amounts. If the delinquency continues after the filing of the Notice of Delinquency, the City Treasurer may determine that additional enforcement action may be appropriate. Prior to commencement of such enforcement action, the City shall give an additional notice (the "Notice of Default"), in writing, of the default to the owner of the property in default. Notice of Default shall be effective upon deposit of the notice in the U.S. Mail, postage prepaid, and addressed to the owner as shown on the last equalized assessment rolls for the City or on the official ownership records of the City. The Notice of Default may provide for a period of thirty (30) days in which the owner shall pay the assessment balance then due and owing together with accrued interest at the Delinquent Rate plus recording costs and other costs as determined by the City Treasurer. The Notice of DMWEST#7294290 v2 4 Default may also declare that after the thirty (30) day period the City may bring suit for the total amount due plus costs of the enforcement action remedy, or the City may elect to commence foreclosure proceedings in the manner provided for actions to foreclose mortgage liens or trust deeds. In the event the City elects to foreclose using trust deed procedures, a trustee shall be designated by the City to serve as a trust fund trustee for purposes of the enforcement action. If at the sale no person or entity shall bid and pay the City the amount due on the assessment plus interest and costs, the property shall be deemed sold to the City for these amounts. The City shall be permitted to bid at the sale. The election by the City to use or not to use a Notice of Delinquency and a Notice of Default shall have no effect on the perfecting of the lien resulting from a delinquency in the payment of any assessment after publication of the applicable assessment ordinance. The remedies provided herein for the collection of assessments and the enforcement of liens shall be deemed and construed to be cumulative and the use of any one method or means of collection or enforcement shall not deprive the City of the use of any other method or means. The amounts of accrued interest and all costs of collection shall be added to the amount of the assessment up to the date of judgment or, in the case of foreclosure action, the date of the foreclosure sale. Section 7. Remedy of Default. If prior to the final date that payment may be legally made under a final sale or foreclosure of property to collect the delinquent assessment installments, the property owner pays the full amount of the unpaid assessment balance with interest at the Delinquent Rate, plus all approved or required costs, the owner will have the right to make payment in full and receive a release of the assessment lien. The owner shall then be restored to the right to paying installments in the same manner as if default had not occurred. Section 8. Lien of Assessment. An assessment levied by this 2009 Assessment Ordinance or any unpaid portion of an earlier assessment, any interest accruing, and the costs of recording and collection shall constitute a lien against the property upon which the assessment is levied as of December 1, 2009, the effective date of this 2009 Assessment Ordinance (the "Effective Date"), or for any unpaid portion of an earlier assessment, as of the effective date of any earlier applicable assessment ordinance. Unless the assessment becomes delinquent, no notice of lien may be recorded and no release of lien will be recorded at the time of payment. When a delinquency occurs, a notice of lien setting out the assessment balance due may be incorporated into a Notice of Delinquency that will be recorded. The assessment lien based on this 2009 Assessment Ordinance, or on an earlier assessment ordinance, if the delinquency predates the effective date of this 2009 Assessment Ordinance, shall be superior to the lien of any trust deed, mortgage, mechanic's or materialman's lien, or other encumbrance and shall be equal to and on a parity with the lien for general property taxes. The lien shall continue until the assessment and any interest, penalties, and costs on it are paid, notwithstanding any sale of the property for or on account of a delinquent general property tax, special tax, or other assessment or the issuance of a tax deed, an assignment of interest by the governing entity, or a sheriff's certificate of sale or deed. DMWEST#7294290 v2 5 Section 9. Appeal of Assessment. An owner of property assessed within District L02 may, within fifteen (15) days from the Effective Date, file a written appeal with the City Engineer contesting the equity or justice of his/her assessment. The City Engineer's office will first attempt to resolve the appeal, but if the appeal can only be resolved by an adjustment in the amount to be assessed against the property owner, the City shall convene a Board of Equalization and Review to consider the appeal and, where appropriate, make adjustments to said assessment, provided however, that no adjustment may be made that would result in an increase in said assessment. The City shall report to the property owner the determination of the Board of Equalization and Review within five (5) days after its recommendation is made. If an adjustment is recommended, the City Treasurer shall note said adjustment on the Assessment List attached hereto. If no adjustment is made, the property owner may take such additional legal action as provided in Section 10. Section 10. Contestability. No assessment shall be declared void or set aside in whole or in part in consequence of any error or irregularity which does not go to the equity or justice of the assessment or proceeding. Any party who has not waived his or her objections to the assessment may commence a civil action against the City to enjoin the levy or collection of the assessment or to set aside and declare unlawful this 2009 Assessment Ordinance. Such action must be commenced and summons must be served on the City not later than thirty (30) days after the Due Date of this 2009 Assessment Ordinance. This action shall be the exclusive remedy of any aggrieved party. No court shall entertain any complaint which the party was authorized to make by statute but did not timely make or any complaint that does not go to the equity or justice of the assessment or proceeding. After the expiration of the 30-day period provided in this section, the assessments levied in District L02 shall become incontestable as to all persons who have not commenced the action provided for in this section; and no suit to enjoin the levy, collection, or enforcement of the assessments, or in any other manner attacking or questioning the legality of the assessments may be instituted in this state, and no court shall have authority to inquire into these matters. Section 11. Notice to Property Owners. The City Treasurer is hereby authorized and directed to give notice of assessment by mail to the property owners in District L02. Said notice shall, among other things, state the amount of the assessment and the date for payment. A copy of the form of notice of assessment is available for examination upon request at the office of the City Recorder. Section 12. All Necessary Action Approved. The officials of the City are hereby authorized and directed to take all action necessary and appropriate to effectuate the provisions of this 2009 Assessment Ordinance. Section 13. Repeal of Conflicting Provisions. All ordinances or parts thereof in conflict with this 2009 Assessment Ordinance are hereby repealed. DMWEST#7294290 v2 6 Section 14. Publication of Ordinance and Effective Date. Immediately after its adoption, this 2009 Assessment Ordinance shall be signed by the Mayor and City Recorder and shall be recorded in the ordinance book kept for that purpose. This 2009 Assessment Ordinance shall be published once in the Deseret News, a newspaper published and having general circulation in the City, and shall take effect immediately upon its Effective Date. Section 15. Notice of Assessment Interest. The City Treasurer is hereby authorized and directed to file a Notice of Assessment Interest with the Salt Lake County Recorder within five (5) days after the Due Date provided in Section 5. Such Notice shall (a) state that the City has an assessment interest in the assessment property, (b) describe the property assessed by legal description and tax identification number, and (c) state the maximum number of years over which the assessment for operation and maintenance activities will be payable (which number may be included in an attached copy of the District L02 Assessment Ordinance). DMWEST#7294290 v2 7 PASSED AND APPROVED by the City Council of the City, this October 13, 2009. t -��•� , \ci-).41140 / By:_edA _ `•+r` pt��t--- er air ATT 101111 tAa-ti y Recorder APPROVED AS TO FORM Salt Lake City Attorneys Office Date (0 — q By `1a DMWEST#7294290 v2 8 PRESENTATION TO THE MAYOR The foregoing ordinance was presented to the Mayor for his approval or disapproval on October /y , 2009. By: air MAYOR'S APPROVAL OR DISAPPROVAL The foregoing ordinance is hereby approved October 21 , 2009. ' alph Becker, Mayor DMWEST#7294290 v2 9 STATE OF UTAH ) : ss. COUNTY OF SALT LAKE ) I, Scott Crandall, the duly appointed, qualified, and acting City Recorder of Salt Lake City, Utah, do hereby certify that the above and foregoing is a full, true and correct copy of the record of proceedings had by the City Council of Salt Lake City, Utah, at its meeting held on October 13, 2009, insofar as the same relates to or concerns Salt Lake City, Utah Lighting District No. L02 as the same appears of record in my office. I further certify that the 2009 Assessment Ordinance levying the special assessments was recorded by me in the official records of Salt Lake City on October 13, 2009. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of Salt Lake City this October 13, 2009. (SEAL /f G�CiC ,� z By: sit j( I ) `l! ; N6n City Recorder DMWEST#7294290 v2 10 STATE OF UTAH ) AFFIDAVIT OF MAILING : ss. NOTICE OF ASSESSMENT COUNTY OF SALT LAKE ) I, Daniel Mule, the duly appointed, qualified, and acting City Treasurer of Salt Lake City, Utah, do hereby certify that on Nott*Lck, 16 , 2009, I caused to be mailed a Notice of Assessment to each property owner in Salt Lake City, Utah Lighting District No. L02 by United States Mail, postage prepaid, at the last known address of such owner. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of Salt Lake City, Utah, this 611 446%. a a. , 2009. #TKE C! iv. ) irk014,11. r :6,\'`��'�*3 ; \ By: k. ,wc-Q Q. p a_)' ' r*1l City Treasurer DMWEST#7294290 v2 11 PROOF OF PUBLICATION Attached to this page is the Proof of Publication, indicating by the affidavit of the publisher that the said 2009 Assessment Ordinance levying the special assessments adopted by the City Council on October 13, 2009, was published one time in the Deseret News. DMWEST#7294290 v2 12 EXHIBIT A CERTIFICATE OF COMPLIANCE WITH OPEN MEETING LAW I, Scott Crandall, the undersigned City Recorder of Salt Lake City, Utah (the "City"), do hereby certify, according to the records of the City in my official possession, and upon my own knowledge and belief, that in accordance with the requirements of Section 52-4-202, Utah Code Annotated 1953, as amended, I gave not less than twenty- four(24) hours public notice of the agenda, date, time, and place of the October 13, 2009, public meeting held by the City Council of the City as follows: (a) By causing a Notice, in the form attached hereto as Schedule A, to be posted at the City Council's principal offices at 451 South State Street, Salt Lake City, Utah, on October 9, 2009, at least twenty-four (24) hours prior to the convening of the meeting, said Notice having continuously remained so posted and available for public inspection until the completion of the meeting; and (b) By causing a copy of such Notice, in the form attached hereto as Schedule A, to be delivered to the Deseret News on October 9, 2009, at least twenty-four (24) hours prior to the convening of the meeting; and (c) By causing a copy of such Notice to be posted on the Utah Public Notice Website (http://pmn.utah.gov) at least twenty-four (24) hours prior to the convening of the meeting. In addition, the Notice of 2009 Annual Meeting Schedule for the City (attached hereto as Schedule 2) was given specifying the date, time, and place of the regular meetings of the City Council to be held during the year, by causing said Notice to be (a) posted on Jgua4.4 .4 t ^a.crac't , at the principal office of the City Council, (b) provided to at least' one newspaper of general circulation within Salt Lake City on `�uwfi. ?hi, and (c) published on the Utah Public Notice Website (http://pn'n.utah.gov) during the current calendar year. IN WITNESS WHEREOF, I have hereunto subscribed my official signature this October 13, 2009. I (1%4' ,:4A ^_ ity Recorder VI Mayes DMWEST#7294290 v2 A-1 SCHEDULE A NOTICE OF MEETING DMWEST#7294290 v2 A-2 EXHIBIT B ASSESSMENT LIST (Available for review at the offices of the City Recorder and the City Engineer) DMWEST#7294290 v2 B-1 Salt Lake City, Utah October 13, 2009 A regular meeting of the City Council of Salt Lake City, Utah, was held on Tuesday, October 13, 2009, at the hour of 7:00 p.m., at the offices of the City Council at 451 South State Street, Salt Lake City, Utah, at which meeting there were present and answering roll call the following members who constituted a quorum: Carlton Christensen Chair JT Martin Vice Chair Soren Dahl Simonsen Councilmember K. Eric Jergensen Councilmember Luke Garrott Councilmember Jill Remington-Love Councilmember Also present: David Everitt Deputy Mayor Edwin P. Rutan, II City Attorney Scott Crandall City Recorder Absent: Van Blair Turner Councilmember Ralph Becker Mayor After the meeting had been duly called to order and after other matters not pertinent to this ordinance had been discussed, the City Recorder presented to the City Council a Certificate of Compliance with Open Meeting Law with respect to this October 13, 2009, meeting, a copy of which is attached hereto as Exhibit A. Thereupon the following proceedings, among others, were duly had and taken: It was noted that Salt Lake City, Utah Lighting District No. 2 ("District L02") was duly created, pursuant to notice and public hearing, on October 10, 1995. District L02 was created with notice to all property owners within District L02 that assessments are to be paid annually when assessed and after passage of the due date set out in the Notice of Assessment, and that interest will accrue on any unpaid balance until paid. On November 21, 1995, Ordinance No. 80 of 1995 (the "Original Assessment Ordinance") was adopted by the City Council. Each year an assessment ordinance has been adopted to cover actual and estimated costs of District L02 for a twelve (12) month period. DMWEST#7294290 v2 1 Pursuant to the procedures established in the proceedings creating District L02 and the Original Assessment Ordinance, the following assessment ordinance (the "2009 Assessment Ordinance") was then introduced in writing, was fully discussed, and pursuant to motion duly made by Councilmember Christensen and seconded by Councilmember Simonsen was adopted by the following vote: AYE: Unanimous NAY: None The 2009 Assessment Ordinance was then signed by the Chair, presented to and approved by the Mayor, and recorded by the City Recorder in the official records of Salt Lake City, Utah. The 2009 Assessment Ordinance is as follows: DMWEST#7294290 v2 2