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Herriman

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Public Notice

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Community Culture and Economic Development

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Notice

Event Start Date & Time

July 21, 2016 12:00 AM

Event End Date & Time

August 31, 2016 12:00 AM

Description/Agenda

ORDINANCE NO. 2016-25 AN AMENDED AND RESTATED ASSESSMENT ORDINANCE CONFIRMING THE ASSESSMENT LIST AND LEVYING AN ASSESSMENT AGAINST CERTAIN PROPERTIES IN THE HERRIMAN CITY, UTAH VOLUNTARY ASSESSMENT AREA (TOWNE CENTER) (THE 'ASSESSMENT AREA') TO REFINANCE THE COSTS OF ACQUIRING, CONSTRUCTING AND INSTALLING NEW ROADS, CULINARY AND SECONDARY WATER IMPROVEMENTS, SEWER AND STORM DRAINAGE IMPROVEMENTS, PARKS AND TRAIL IMPROVEMENTS, AND ACQUIRING AND DEMOLISHING A MICROWAVE TOWER AND OTHER MISCELLANEOUS WORK WHICH WAS NECESSARY TO COMPLETE SAID IMPROVEMENTS (COLLECTIVELY, THE 'IMPROVEMENTS'); ESTABLISHING A RESERVE FUND; PROVIDING FOR CERTAIN REMEDIES UPON DEFAULT IN THE PAYMENT OF ASSESSMENTS; ESTABLISHING THE EFFECTIVE DATE OF THIS ORDINANCE; AND RELATED MATTERS. WHEREAS, the City Council (the 'Council') of Herriman City, Utah (the 'City'), pursuant to the Assessment Area Act, Title 11 Chapter 42, Utah Code Annotated 1953, as amended (the 'Act'), and pursuant to a resolution adopted on September 3, 2009 (the 'Designation Resolution'), designated the Herriman City, Utah Voluntary Assessment Area (Towne Center) (the 'Assessment Area') after having obtained from the owner of all the property to be assessed within the Assessment Area an executed Acknowledgement, Waiver and Consent in the form attached to the Designation Resolution; and WHEREAS, on April 22, 2010, the Council adopted Ordinance No. 10-21 (the 'Original Assessment Ordinance') wherein the Council authorized the levy of an assessment on properties within the Assessment Area for the acquisition, construction and installation of new roads, culinary and secondary water improvements, sewer and storm drainage improvements, parks and trail improvements, and acquiring and demolishing a microwave tower and other miscellaneous work necessary to complete the improvements (collectively, the 'Improvements'); and WHEREAS, the Council desires to authorize the issuance of its not to exceed $15,000,000 Federally Taxable/Convertible to Tax-Exempt Special Assessment Refunding Bonds (Towne Center Assessment Area), Series 2016 (the 'Assessment Bonds') to provide moneys sufficient to purchase and retire the City's outstanding Special Assessment Bonds (Towne Center Assessment Area), Series 2010 (the 'Refunded Bonds') and thereby refinance the Improvements; and WHEREAS, pursuant to and in compliance with the provisions of Sections 11-42-410 and 11-42-608 of the Act, the Council desires to adopt this Ordinance to reduce the interest amount of the assessments levied to finance the cost of the Improvements (the 'Assessments'), to confirm the assessment list, to levy the Assessment in accordance with this Ordinance and to correct certain deficiencies and omissions in the Original Assessment Ordinance resulting from the issuance of the Refunded Bonds; and WHEREAS, the Council desires to levy the Assessment in a not to exceed amount and upon the issuance of the Assessment Bonds, permit the Finance Director to adjust the assessment list in accordance with the final terms of the Assessment Bonds; and WHEREAS, the Redevelopment Agency of the City of Herriman, Utah anticipates issuing its Taxable/Convertible to Tax-Exempt Tax Increment Revenue Bonds, Series 2016, a portion of which (the 'Available Moneys') will finance certain road improvements within the Assessment Area; and WHEREAS, the Council hereby finds and determines that under Section 11-42-205 of the Act, the Available Moneys (in the principal amount of at least $6,000,000) are an acceptable form of financing and may be included in the market value of the property to be assessed for the purpose of appraising such property; and WHEREAS, this Ordinance shall be effective upon its passage and approval and publication, provided however, that such amendments herein shall become applicable and implemented only from and after the earlier of the date on which the Refunded Bonds are (a) fully paid or (b) legally considered to be paid (the 'Implementation Date'): NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF HERRIMAN CITY, UTAH: Section 1. Determination of Costs of the Improvements. Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to such terms in the Designation Resolution. The Council has determined that the costs to refinance the acquisition, construction and demolition of the Improvements within the Assessment Area, including overhead costs and capitalized interest are not to exceed $11,851,000, which shall be levied as set forth herein against the properties benefited within the Assessment Area. Pursuant to the Act, the owners (the 'Owners') of all properties to be assessed within the Assessment Area have voluntarily waived, among other things, all notice and hearing requirements, the right to contest or protest, and the right to have a board of equalization appointed as set forth in the Act, and has consented to (a) the levy of an assessment against its property for the benefits to be received from the Improvements, (b) the refinancing of the Improvements by the City through the issuance of the Assessment Bonds, (c) the method and amount of Assessment as set forth herein and (d) any increase in total Assessment on its properties from those originally levied in the Original Assessment Ordinance in accordance with the Acknowledgment, Waiver, and Consent attached hereto as Exhibit C. The properties to be assessed are identified by legal description and tax identification number in Exhibit B attached hereto. Section 2. Approval of Assessment List; Findings. The Council confirms and adopts the assessment list for the Assessment Area, a copy of which is attached hereto as Exhibit B and incorporated herein by reference (the 'Assessment List'). Upon the issuance of the Assessment Bonds, the Finance Director shall be permitted to adjust the Assessment List in accordance with the final terms of the Assessment Bonds. The Council has determined that the Assessments are levied according to the benefits to be derived by each property within the Assessment Area and in any case the Owners have consented to such methodology as provided in Section 11-42-409(5). Section 3. Levy of Assessments. The Council does hereby levy an Assessment against each parcel of property identified in the Assessment List (as may be adjusted by the Finance Director pursuant to Section 2 herein). Said Assessments levied upon each parcel of property therein described shall be in the amount set forth in the Assessment List. The Assessments are levied upon each parcel of property in the Assessment Area in accordance with the benefit received from the Improvements and in any case the Owners have consented to such methodology as provided in Section 11-42-409(5). Section 4. Amount of Total Assessments. The Assessments do not exceed in the aggregate the sum of: (a) the contract price of the Improvements; (b) the acquisition price of the Improvements; (c) the reasonable cost of (i) utility services, maintenance, and operation to the extent permitted by the Act and (ii) labor, materials, or equipment supplied by the City, if any; (d) the price of purchasing property; (e) overhead costs not to exceed fifteen percent (15%) of the sum of (a), (b), and (c); (f) an amount for contingencies of not more than ten percent (10%) of the sum of (a) and (c); (g) interest on interim warrants and bond anticipation notes issued to finance the Improvements; and (h) an amount sufficient to fund a reserve fund. Section 5. Appraisal. As required by Section 11-42-205 of the Act, the City has obtained an appraisal of the property to be assessed from an appraiser who is a member of the Appraisal Institute, addressed to the City and verifying that the market value of the property is at least three (3) times the amount of the Assessment. The City hereby opts under Section 11-42-205 of the Act to allow the principal amount of the Owners' construction loan or other equivalent availability of funds (in the principal amount of at least $6,000,000) to be included in the market value of the property to be assessed. See Exhibit D attached hereto. Section 6. Method and Rate. Each of the benefited properties will be assessed within the Assessment Area under a per developable acre type method of assessment as follows: Improvements Assessment Method of Assessment Assessment Per Developable Acre All above-described Improvements Not to exceed $11,851,000 Per Developable Acre( ) Not to exceed $120,498.22 The Assessment shall be effective on the Implementation Date and may be payable in installments as provided herein. Notwithstanding the levy of the Assessments, in order to provide additional security for the payment of Assessments, the City shall require that all Assessments of all properties owned by the same owner within the Assessment Area (or an affiliate of the same owner) be aggregated as a single unified Assessment against all properties owned by the same owner within the Assessment Area (or an affiliate of the same owner). Section 7. Payment of Assessments; Transfer of Property. (a) The Council hereby determines that the Improvements have a useful life of not less than twenty (20) years from their date of completion, and has elected to have the Assessments paid over a period of not more than twenty (20) years from the effective date of the Original Assessment Ordinance. Assessment payments shall be payable as to interest annually on each June 1, beginning June 1, 2017, such that the aggregate annual Assessment payments shall be in substantially equal amounts, subject, however, to adjustment as a result of prepayment of Assessments or an increase or decrease in overhead costs. Prior to any transfer, whether by purchase or foreclosure or otherwise, of property within the Assessment Area, the Assessment related to such property must be paid in full. If, however, a subsequent property owner shall execute a consent to the application of non-judicial foreclosure and waiver of any ability to contest the application of any non-judicial foreclosure remedy with regard to such property in accordance with the Act and in form satisfactory to the City, the Assessment may remain outstanding on such property and be paid in installments as set forth herein. If title to property within the Assessment Area is transferred without the payment in full of the Assessment or the execution of the applicable consent and waiver, irrespective of property owner knowledge or intent with regard thereto, the City shall be entitled to commence foreclosure proceedings on such property within 30 days of providing notice of the same to the property owner. Interest on the unpaid balance of the Assessments shall accrue at the same rate or rates as shall be borne by the Assessment Bonds, plus an annual administration cost incurred by the City of $35,000 per year plus any direct out of pocket costs of the City. The City may outsource all or a portion of the administration services. (b) The City Council will collect the Assessments by directly billing each property owner, rather than inclusion on a property tax notice. The bill for each Assessment payment shall be sent prior to April 15 of each year, commencing April 15, 2017. However, failure to send any such bill by the scheduled date shall not impact the requirement of property owners to timely pay their Assessments on the due date thereof. (c) All unpaid installments of an Assessment levied against any piece of property may be paid prior to the dates on which they become due, but any such prepayment must include an additional amount equal to the interest which would accrue on the Assessment to the next succeeding date on which interest is payable on the Assessment Bonds plus such additional amount as, in the opinion of the Finance Director of the City (the 'Finance Director') (with assistance from the administrator of the Assessments, if any), is necessary to assure the availability of money to pay interest on the Assessment Bonds as interest becomes due and payable, plus any premiums required to redeem the Assessment Bonds on their first available call date, plus any reasonable administrative costs. (d) The property assessed has yet to be fully subdivided as anticipated for development. At such time as all or any portion of the property assessed hereunder is subdivided into smaller parcels as evidenced by a subdivision plat, approved at the sole discretion of the Council and recorded in the City Recorder's office, the Council may elect, appropriately at its sole discretion, to allocate the Assessment balance of the previously undivided property to said smaller parcels on a proportionate basis (based on developable acres allocated to said smaller parcels) by adopting an amendment to this Ordinance approving such allocation. The required annual Assessment payments for each smaller parcel shall be based on developable acres allocated by the City to said smaller parcel, so that the aggregate total of all of the annual Assessment installments for all of the smaller parcels will equal the total annual Assessment for the previously undivided property. When an Assessment lien is perfected for each of the smaller parcels, the total Assessment levied against the previously undivided property will be released, having been replaced by the aggregate of the Assessments allocated to each of the smaller parcels. A release of the Assessment lien for any subdivided parcel will be delivered by the City at the time the Assessment balance for such subdivided parcel is paid in full. (e) Following subdivision of the assessed property and allocation of the Assessments, if prepayment of an Assessment prior to the Assessment payment date, or any part thereof, arises out of a need of the property owner to clear the Assessment lien from a portion (the 'Release Parcel') of an assessed parcel (the 'Assessed Parcel'), the Assessment lien on the Release Parcel may be released by the City, as follows: (i) The property owner shall submit the legal description of the Release Parcel which shall include the total developable acres allocated by the City to the Release Parcel. (ii) The property owner shall prepay an Assessment applicable to the Release Parcel calculated by the Finance Director (with assistance from the administrator of the Assessments, if any) as follows: the amount of the prepayment calculated pursuant to Section 7(c) herein for the entire Assessed Parcel less any previously paid regularly scheduled Assessment payments multiplied by the percentage calculated by dividing the Developable Acres of the Release Parcel by the total Developable Acres of the entire Assessed Parcel. (iii) The partial release of lien upon payment of the prepayment amount determined under subparagraph (ii) above shall not be permitted, except as otherwise provided in this paragraph, if the fair market value of the Developable Acres of the Assessed Parcel, after release of the Release Parcel, is less than three times the sum of (A) the remaining unpaid Assessment on such Assessed Parcel, plus (B) any other unpaid Assessment liens or property tax liens on such Assessed Parcel. In determining the value of the Developable Acres of the Assessed Parcel, the Finance Director (with assistance from the administrator of the Assessments, if any) is entitled to, but need not rely on, credible evidence or documentation presented by the owner of said parcel. If the Finance Director (with assistance from the administrator of the Assessments, if any) determines that the proposed partial release does not comply with the requirements of this paragraph, such partial release may still be permitted if the owner prepays a larger portion of the Assessment in order to clear the Assessment lien from the Release Parcel, all as determined by said Finance Director (with assistance from the administrator of the Assessments, if any). (iv) Prepayments of Assessments shall be applied as provided in the indenture of trust under which the Assessment Bonds are issued (the 'Indenture'). As prepayments are paid and applied against the payment of the Assessment applicable to the Release Parcel, the Release Parcel may be released from the lien of the Assessment in accordance with this subparagraph (e), and the original Assessments levied against the remaining Assessed Parcel shall remain unpaid. (f) At the time of subdivision of the assessed property, the City may amend this ordinance, including to revise the boundaries, in order to permit the development of the assessed property and to enhance the security provided to the holders of the Assessment Bonds. Section 8. Default in Payment. If a default occurs in the payment of any Assessment when due, the Finance Director, on behalf of the Council, may declare the unpaid amount to be immediately due and payable and subject to collection as provided herein. In addition, the Finance Director, on behalf of the Council, may accelerate payment of the total unpaid balance of the Assessment and declare the whole of the unpaid principal and interest then due to be immediately due and payable. Interest shall accrue and be paid on all amounts declared to be delinquent or accelerated and immediately due and payable at the rate of twelve percent (12%) per annum (the 'Delinquent Rate'). In addition to interest charges at the Delinquent Rate, costs of collection, as approved by the Finance Director on behalf of the Council, including, without limitation, attorneys' fees, trustee's fees, and court costs, incurred by the City or required by law shall be charged and paid on all amounts declared to be delinquent or accelerated and immediately due and payable. Upon any default, the Finance Director shall give notice in writing of the default to the owner of the property in default as shown by the last available completed real property assessment rolls of Salt Lake County, Utah (the 'County'). Notice 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 completed real property assessment rolls of the County. The notice shall provide for a period of thirty (30) days in which the owner shall pay the installments then due and owing, after which the Finance Director, on behalf of the City, may immediately initiate a sale of the property as provided in Title 59, Chapter 2, Part 13, Utah Code Annotated 1953, as amended or sell the property pursuant to Section 11-42-502(1)(c) and related pertinent provisions of the Act, in the manner provided for actions to foreclose trust deeds, or utilize any other remedy permitted by law. In accordance with Section 11-42-502.1 of the Act, the Council shall designate a qualified trustee to carry out such foreclosure, and said trustee shall be deemed to have a power of sale and all other rights, power, and authority necessary to legally and lawfully foreclose the lien for delinquent Assessments. If for any reason the trustee cannot perform the powers and responsibilities herein provided, it may appoint, with the consent of the City, a qualified trustee to serve as trustee. 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. So long as the City retains ownership of the property, it shall pay all delinquent Assessment installments and all Assessment installments that become due, including the interest on them and shall be entitled to use amounts on deposit in the various accounts of the Reserve Fund (as defined herein) for such purpose. 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 or remedy of collection or enforcement available at law or in equity shall not deprive the City or the trustee on behalf of the City, of the use of any other method or means. The amounts of accrued interest and all costs of collection, trustee's fees, attorneys' fees, and costs, shall be added to the amount of the Assessment up to, and including, the date of foreclosure sale. Section 9. Remedy of Default. If prior to the final date payment may be legally made under a final sale or foreclosure of property to collect delinquent Assessments, or prior to the end of the three-month reinstatement period provided by Section 57-1-31 of the Utah Code in the event the collection is enforced through the method of foreclosing trust deeds, the property owner pays the full amount of all unpaid installments of principal and interest which are past due and delinquent with interest on such installments at the rate or rates set forth in Section 7 herein to the payment date, plus all trustee's fees, attorneys' fees, and other costs of collection, plus interest incurred by virtue of the City making a payment into the Reserve Fund as described in Section 10 herein, the Assessment of said owner shall be restored and the default removed, and thereafter the owner shall have the right to make the payments in installments as if the default had not occurred. Any payment made to cure a default shall be applied first, to the payment of attorneys' fees and other costs incurred as a result of such default, including interest incurred by virtue of the City making a payment into the Reserve Fund; second, to interest charged on past due installments, as set forth above; third, to the interest portion of all past due Assessments; and last, to the payment of outstanding principal. Section 10. Lien of Assessment. An Assessment or any part or installment of it, any interest accruing thereon and the penalties, trustee's fees, attorneys' fees, and other costs of collection therewith shall constitute a lien against the property upon which the Assessment is levied on the effective date of this Ordinance. Said lien 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 apply without interruption, change in priority, or alteration in any manner to any reduced payment obligations and shall continue until the Assessment, reduced payment obligations, 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 City or a sheriff's certificate of sale or deed. Section 11. Reserve Fund. (a) The City does hereby establish a reserve fund (the 'Reserve Fund') in lieu of funding a special improvement guaranty fund, as additional security for the Assessment Bonds. (b) The Reserve Fund shall be initially funded from proceeds of the Assessment Bonds in an amount not to exceed the least of (i) ten percent (10%) of the proceeds of the Assessment Bonds determined on the basis of its initial purchase price to the public, (ii) the maximum aggregate annual debt service requirement during any bond fund year for the Assessment Bonds, and (iii) 125% of the average aggregate annual debt service requirement for the Assessment Bonds (the 'Reserve Requirement'). The cost of initially funding the Reserve Fund is included in the Assessments of the property in the Assessment Area. (c) The Reserve Requirement shall be adjusted as property owners prepay their Assessments in full as provided in the Indenture. (d) The moneys on deposit in the Reserve Fund, if any, shall, upon the final payment of the Assessment Bonds, be applied to the final Assessment payment obligation of the assessed properties. If the amounts on deposit in the Reserve Fund exceed the final Assessment obligation, any excess amounts shall be paid by the City to the owners whose properties were subject to the final Assessment payment obligation, as an excess Assessment payment. (e) In the event insufficient Assessments are collected by the City to make the debt service payments on the Assessment Bonds, the City shall draw on the Reserve Fund to make up such deficiency. (f) Amounts recovered by exercise of any of the remedies provided herein or otherwise from delinquent Assessments (and not needed to pay amounts coming due on the Assessment Bonds) shall be used to replenish amounts drawn from the Reserve Fund. (g) In the event the amount on deposit in the Reserve Fund is less than the Reserve Requirement, adjusted from time to time, the City shall replenish the Reserve Fund as provided in the Indenture, including by any of the methods provided in Section 11-42-701(2) of the Act. Any amounts advanced by the City as provided above for the replenishment of the Reserve Fund may be reimbursed, with interest at a rate of twelve percent (12%) per annum, from moneys received from foreclosure or otherwise from delinquent properties. If the City has made such an advancement to replenish the Reserve Fund, during such time as the advancement remains unpaid, any property owners that prepay their Assessments in full shall not be entitled to receive as a credit toward any prepayment, a pro rata share of the amounts advanced by the City on deposit in the Reserve Fund, as further described in the Indenture. (h) In the event the Assessment Bonds are refunded, the Reserve Requirement may be adjusted by the City and amounts in the Reserve Fund may be applied to assist in such refunding. Any refunding of the Assessment Bonds shall not increase the total cost of the Assessments in any one year. Section 12. Investment Earnings. Except as otherwise provided in the Indenture, all investment earnings on the Reserve Fund shall be maintained in said Fund and applied in the same manner as the other moneys on deposit therein as provided in the Indenture. Section 13. Contestability. No Assessment shall be declared invalid 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. The Owners and any succeeding property owner (whether by sale, foreclosure, or any other property transfer of title) have waived any rights to contest this Assessment Ordinance. Any party who has not waived his objections to the same as provided by statute may commence a civil action in the district court with jurisdiction in the County against the City to enjoin the levy or collection of the Assessment or to set aside and declare unlawful this Ordinance. Such action must be commenced and summons must be served on the City not later than sixty (60) days after the effective date of this 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 sixty (60) day period provided in this section: (a) The Assessment Bonds and any refunding bonds to be issued with respect to the Assessment Area and the Assessments levied in the Assessment Area shall become incontestable as to all persons who have not commenced the action and served a summons as provided for in this section; and (b) No suit to enjoin the issuance or payment of the Assessment Bonds or refunding assessment bonds, the levy, collection, or enforcement of the Assessments, or in any other manner attacking or questioning the legality of the Assessment Bonds or refunding assessment bonds or Assessments may be commenced, and no court shall have authority to inquire into these matters. Section 14. Notice to Property Owners. The Owners are hereby deemed to have received notice of assessment and have waived any notice and hearing requirements under the Act. Section 15. All Necessary Action Approved; Recording of and Effect of Notice. The officials of the City are hereby authorized and directed to take all action necessary and appropriate to effectuate the provisions of this Ordinance, including the filing of a Notice of Deletion and a Notice of Assessment Interest with the County Recorder. The amendments made herein shall also, to the extent applicable, amend the provisions of the Designation Resolution and any notices required to be made in connection therewith are hereby approved. Section 16. Repeal of Conflicting Provisions. All ordinances or parts thereof in conflict with this Ordinance are hereby repealed. Section 17. Publication of Ordinance. As soon as practicable after its adoption, this Ordinance shall be signed by the Mayor and City Recorder and shall be recorded in the ordinance book kept for that purpose. This Ordinance, or a summary thereof, shall be published once in the Deseret News, a newspaper published and having general circulation in the City. A copy of this Ordinance shall also be posted on the Utah Public Notice Website (http://pmn.utah.gov). PASSED AND APPROVED by the City Council of Herriman City, Utah, this July 13, 2016. By:/s/Carmen Freeman________________ Mayor ATTEST: By: /s/ Jackie Nostrom City Recorder

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Meeting Information

Meeting Location

13011 South Pioneer Street
Herriman, 84096
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Contact Name

Jackie Nostrom

Contact Email

jnostrom@herriman.gov

Contact Phone

(801)446-5323

Notice Posting Details

Notice Posted On

July 21, 2016 09:03 AM

Notice Last Edited On

July 21, 2016 09:03 AM

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