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HomeMy WebLinkAboutORD 1990-127 1988-1992COUNTY OF HAWAII. STATE OF HAWAII BILL NO. s2s ORDINANCE NO. ~~ 1.2? AMENDING, REPEALING AND ADDING SECTIONS TO CHAPTER 12 OF THE HAWAII COUNTY CODE 1983, AS AMENDED, RELATING TO IMPROVEMENTS BY ASSESSMENTS. BE IT ORDAINED HY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Chapter 12, Article 1, Sections 12-1 and 12-2, Hawaii County Code of 1983, as amended, are hereby amended to read as follows: "Section 12-1. Definitions. (a) As used in this chapter: (1) "Cast" means the cost, either estimated or actual, as the case may be, of the improvements to be opened, constructed or improved in proceedings taken pursuant to this chapter for which assessments are to be levied. There may be included within the definition of "cost", amounts for construction contingencies, band discounts, reserve funds, capitalized interest and incidentals. (2) "Improvement district" means any contiguous or non- contiguous [area areas within the County which had been designated by the council as an improvement district for the purposes of this chapter. (3) "Incidentals" means expenses in carrying out proceedings pursuant to this ordinance for (A) preparation of maps, notices, and other documents; (B) posting, mailing and publication costs; (C) preparation and printing of bonds, bond 1 registers and transfer books; (D) fees of financial, legal, engineering and surveying consultants; and, (E) such other administrative or miscellaneous expenses which relate directly to the proceedings. (4) "Owner" includes: The person or persons with fee simple estates in property; u A buver under a recorded agreement of sale which agreement is recorded in the appropriate public office so that the aoreement which appears as of public record and which aoreement contains terms which require the buver to pav the assessments contemplated by this part• A lessee of property who holds a lease £or said property which lease is recorded in the appropriate public office so that the lease which appears as of public record and which lease contains terms which reouire the lessee to pav the assessments contemplated by this part• 1~ A trustee of property held in trust• and A life tenant or vested remainderman of property. "Premium" means: (A) An amount payable by a property owner at the time [he]the owner makes an advance payment of unpaid installments of [his]the assessment in accordance with the [provision]provisions of section 12-35 (Advance payment assessment [installation installment) which amount is in addition to the unpaid principal amount of [his]the owner's assessment and 2 the interest thereon to the next[ subsequent annual] date for the payment of installments; (B) An amount payable to the holder of a bond issued pursuant to this chapter which is called by the director of finance for payment before maturity in accordance with the provisions of section [11-54712-54 ("Payment of [bond]bonds [ before maturity]"), and which is in addition to the face amount of such amount of such bond and the interest thereon payable to such bondholder; or, (C) An amount paid by the purchaser of the bonds in excess of the par value of the bonds. [5] ~6Z "Special improvement," "improvement," "the making of a special improvement," "make any special improvement" and equivalent expressions include any one or any combination of the following: (A) The establishment, opening, extension, widening, or altering of any street, alley, or other highway or sidewalk; (B) The grading, paving, curbing,[ macadamizing,] or otherwise improving of the whole or any part of any existing public strut, alley, or other highway or sidewalk; (C) The construction of a storm drainage [system] facility; [(D) The construction of any sanitary sewerage system;] [(E)]~ The construction of a street lighting system; [(F)]~ The construction of a water system; 3 [(G)]~ The construction and installation of underground or overhead utility facilities including gas, electrical, telephone or television facilities, and the removal, relocation, replacement or reconstruction thereof; [(H)]~Z The establishment, extension, or construction of public off-street parking facilities, pedestrian mall, parks, playgrounds, beach areas, or other public recreational areas and facilities; [(I)]~ To make improvements related to the foreooing and to otherwise improve any of the foregoing to an extent exceeding maintenance or repair thereof[.] SIZ Any other public improvement, which will specially benefit the land to be assessed. [6] S~ "Storm drainage [system]facility" includes "sanitary sewerage system," Section 12-2. Method; authority to issue bond. (a) Whenever in the opinion of the council it is desirable to make any special improvement[,] in any improvement district, the special improvements shall be made and done under the provisions of this chapter. The cost of the special improvement including the cost of acquiring (whether prior to or after the commencement of the proceedings for such improvements) any new land therefor, shall be assessed against the land specially benefited on the basis of the following: [(1) The cost of the special improvement including if not assumed by the county in the manner provided by section 12-7, the cost of acquiring, whether prior to or after the commencement of the proceedings for such improvements, any new land therefor, 4 shall be assessed against the land specially benefited on the basis of the following:] [(A)] ~1 on a frontage basis; [(H)] ~Z according to area of the land within an improvement district;[ or,] [(C)] S~ the permissible number of units assigned to each parcel in the improvement district under applicable zoning provisions[.] ~4~ in the case of a water svstem, the amount of water allotted to each parcel in the improvement district• LL required sewer capacity; LL traffic generation/usaoe for road improvements• or square footage of buildino; or ~1 anv method which the council finds assesses said land accordinc to the special benefits conferred on said land or anv combination thereof. [(2) In the case of a parking improvement district, any method as deemed appropriate by the council, including but not limited to the following or any combination thereof; (A) on a floor area basis; (B) proximity of lands specially benefited to the parking improvement; (C) the type of usage of lands benefited; (D) land area basis; or, (E) frontage basis.] (b) The County may issue and sell bonds to provide the funds for such improvements, which bonds shall be secured by such assessments as a lien upon the lands assessed. For such purpose 5 the council may create, define and establish [frontage improvements or] improvement districts, all according to the provisions of this chapter." SECTION 2. Chapter 12, Article 1, Section 12-3, Hawaii County Code of 1983, as amended, is hereby repealed. SECTION 3. Chapter 12, Article 1, Section 12-4, Hawaii County Code of 1983, as amended, is hereby amended to read as follows: "Section 12-4. Improvements outside designated districts. (In districts other than the designated improvement districts, the construction of any of the improvements provided for by this chapter may be initiated by petition as and in the manner prescribed by sections 12-14, 12-15, and 12-16.] ~ Improvements which may be outside the improvement district boundaries but which_c_on£er_special benefits on land within the improvement district may be included as part of the special improvements in the improvement district and the cost thereof shall be assessed as provided in this chapter. u The cost of improvements described in section 12-4(a) which benefit more than one improvement district shall be apportioned ?mono the affected improvement districts according *o the special benefits conferred upon the lands within said improvement districts." SECTION 4. Chapter 12, Article 1, Sections 12-6 and 12-7, Hawaii County Code of 1983, as amended, are hereby amended to read as follows: "Section 12-6. Powers reserved to council. Any provision of law to the contrary notwithstanding, the council reserves the 6 following powers over any_proposed improvement district [ proposal], whether County-initiated under section 12-10 or initiated by petition of owners under section 12-14, 12-15, [or]12-16, or otherwise. [(1)]iaZ If, for any reason whatsoever, the improvement district bonds authorized under article 4 are not sold or cannot be sold to any acceptable purchaser within a reasonable time, then the council shall have the power and authority to terminate the entire improvement district project, or any part thereof. In the event that the project is terminated, in the case of petitions by owners under section [12-10]12-14. 12-15 and 12-16 hereof, the petitioners shall be responsible for all costs incurred by the County for such improvement district. The County may assure such repayment by requiring reasonable deposits therefor. [(2)]~Z In addition to the foregoing, at any time during the proceedings of any improvement district proposal up to and including the adoption of the assessment ordinance under section 12-29, the council shall have the power and authority to terminate the entire improvement district project, or any part thereof, if it determines that the improvement district project is not in the public interest. [(3)]icZ In addition to the foregoing, at any time during the proceedings of any improvement district proposal up to and including the adoption of the assessment ordinance under section 12-29 hereof, the council shall have the power and authority to require the inclusion of costs of additional improvements including off-site improvements such as roads, 7 water, sewers, drainage, which may be outside the improvement district boundaries but which service the improvement district. [in the event that]If such costs are to be so included and said inclusion increases the proposed assessment of anv owner, the council shall Give appropriate notice and conduct public hearinos as provided in Sections 12-10, 12-27 and 12-28 (as applicable) and the appropriate resolutions and ordinances shall be amended accordingly. [(4)]~ The council may allow as a credit against anv improvement district assessment, any payment made by an owner to the County which is used to pay for costs of that improvement district, whether such payment is made before or after the creation of said improvement district. Provided. however. that such credit shall not create any obligation of the County to create or continue any improvement district, nor shall such credit impair or otherwise affect the powers of the council in this chapter. Section 12-7. Costs advanced and costs borne by owners and County. (a) [As used in this section "main or general thoroughfare" means any street or highway as is subjected to more than ordinary traffic and travel by the general public or which serves as a generally necessary connecting thoroughfare between substantially different or naturally separated localities or sections of the County.]The County or an affected owner of real property may advance costs, including incidentals, for improvement districts. whether before or after the commencement of proceedings for 8 creation of improvement districts and, to the extent that said costs are included in the cost of improvements for said improvement districts. the council may direct partial or full reimbursement to the Countv or such owner for such costs from improvement district funds. Upon a reouest by an affected owner of real property, the director of finance may apply all or part of anv such refund toward pavment of improvement district assessments or installments thereof. The Countv may expend such funds to the same extent as if it advanced its own funds for that purpose. If the improvement district is not created or if it is terminated by the council under section 12-6, said owner shall not be entitled to anv refund or credit, except as authorized by the council. (b) [Except as otherwise provided in this chapter, the County shall pay out of any funds available for such purposes the entire cost of engineering, incidentals and inspection, and in case of a frontage improvement the cost assessable against the frontage or frontages of any adjoining or cross street or in the case of an area improvement district, the cost of improving the area common to both streets at the intersection of any cross street or one-half of the area opposite the intersection of any adjoining street, and thirty-three and one-third percent of the total cost of general improvements (excluding engineering, incidentals and inspection) upon or along all main or general thoroughfares and upon or along all other streets or highways, except where improvements are initiated under sections 12-14, 12-15, and 12-16; provided that in the case of a main or general thoroughfare the County shall assume and pay out of available 9 funds all costs of acquiring all land necessary for roadway in excess of sixty feet in width, and all costs of pavement in excess of twenty feet width; provided further, that the County may assume and pay out of such available funds the cost of widening any street or highway in any district where the costs of construction of the street or highway to be widened were assessed against the lands benefited by such construction in the manner provided by this chapter.]FOr main or general thorouohfares, the Countv may assume and pav out of all available funds, the costs of improvements thereto which: (1) exceed the special benefits conferred on the assessed land or (2) the council finds should not be covered by special assessments. As used in this section "main or oeneral thorouohfare" means a street or hiohwav that is used as an arterial hiohwav between substantially different or naturally separated localities or sections of the Countv. [(c) The council whenever in its judgment the interest of the County will be best served and to protect the County from claims for damages from surface waters, may provide for the collection and disposition of storm waters by proceeding independently of any other improvement proceedings, and, in either event., pay the whole or any part of the cost thereof out of available funds, or may assess the whole or any part of the cost thereof according to the benefits arising therefrom and in the manner provided for apportioning assessments for special improvements. The County may assume and pay out of such available funds all or any part of the cost of acquiring any new land required for any improvement under the provisions of this chapter.]" 10 SECTION 5. Chapter 12, Article 2, Section 12-10, Hawaii County Code of 1983, as amended, is hereby amended to read as follows: "Section 12-10. initiation by council; study of proposed improvement; adoption of improvement; hearing. (a) The council shall, by resolution requiring not more than one reading for its adoption, direct the chief engineer to prepare and submit to the council a report containing the followino• [(1) To investigate and report to the council:] [(A)]~~ Preliminary data concerning the special improvement proposed to be opened, constructed, or improved; [(H)]~ The general character and extent of any improvement to be proposed; [(C)]~3Z [Whether such improvement should be proposed]The_ proposed method of assessment whether on a frontage [ or an]~ area or other basis; [(D)],[~ Whether any new land will be necessary to be acquired, and the estimated cost thereof and the proportion of the cost wh~~h should be borne by the County; [(E)]S~ The materials recommended to meet the conditions of the improvement; [(F)]L6~ The boundaries of the proposed improvement district [to be proposed]and any subdistricts or zones therein as to which different portions of the cost of improvements should be charged;[ and] [(G)]~ The estimated cost of the improvement, the 11 portions of the cost to be borne by the County, and the portions of the cost to be[ specifically] assessed against the lands specifically benefited with the maximum unit of assessment to be made against [the]each lot[property posed]to be assessed; and, [(2)]S8Z [TO prepare and furnish all]All necessary [drawings]olans and other data, details and specifications for the improvements and any other matters or details .^tended to apply thereto. The report of the chief enoineer, when so furnished and filed with the council, shall not be acted upon until one week has elapsed from the date of the filing of the report with the council. (b) If the proposed improvement includes the construction or improvement of a water system or the laying or installation of conduits, pipes, hydrants, or any appliance for supplying or distributing a water supply, the chief engineer shall obtain from the department of water supply preliminary plans and estimates for such proposed water system, and the engineer shall furnish the department of water supply with such preliminary plans of the proposed improvement as will enable the department of water supply to make its plans and estimates for the proposed water system. The chief engineer shall incorporate such preliminary plans and estimates of the department of water supply in his report to the council. (c) Thereafter the council may, by resolution requiring one reading for its adoption, propose the making of an improvement or improvements, specifying: (1) The[ streets, storm drainage, sanitary sewerage 12 system, water system or street lighting system, or combination thereof,]special improvement to be opened, constructed, or improved; (2) The area, owners, so far as known, and general description and location of new land to be acquired, if any; (3) The materials proposed to be used; (4) The proposed method of assessment including the minimum number of installment payments to be proposed; (5) The maximum term of assessment bonds to be issued to represent unpaid installments; (6) The maximum rate of interest to be borne by the bonds; (7) The maximum premium required to be paid on the advance payment of installments or the call and redemption of any bond prior to its maturity; (8) The maximum amount of the reserve fund either as set forth in the report of the chief engineer or as otherwise determined by the council; (9) The general boundaries of the district or frontage, subdistricts and zones to be assessed; and, (10) The maximum estimated [unit]units of assessment. The resolution shall refer to and incorporate by reference such survevs, plans, maps, and other data reported by the chief engineer as are approved by the council. The resolution shall also fix a date of public hearino upon the proposed improvement, which date shall be not less than fifteen days after the first publication of notice thereof in a newspaper of general circulation in the Count 13 (d) The council may adopt the plans and estimates so furnished by the department of water supply and incorporated in the report of the chief engineer. If the plans and estimates of the department of water supply are adopted by the council, the plans and estimates shall be referred to and incorporated by reference in such resolution.[ The resolution shall refer to and incorporate by reference such surveys, plans, maps, and other data reported by the chief engineer as are approved by the council. The resolution shall also fix a date of public hearing upon the proposed improvement, which date shall be not less than fifteen days after the first publication of notice thereof in a newspaper of general circulation in the County.] (e) After the adoption of the resolution, the County clerk shall cause a notice of the public hearing to be published twice a week for two successive weeks (four publications in all) in a newspaper of general circulation in the County, giving notice, generally, to all owners[, lessees, and occupants] of land proposed to be assessed or acquired and to all others interested in the general details of the proposed improvements as adopted by the council and stating the time and place of public hearing and where the resolution and reports and other data may be seen and examined prior to the hearings. Like notices shall be posted [conspicuously ]at least ten days prior to the hearing [approximately every two hundred fifty feet along the highway or highways proposed to be opened or improved. In case of a storm drainage, sanitary sewerage, water, or street lighting system proposed to be constructed or improved independently, like notices shall be posted conspicuously at various places within 14 the area or along the frontage to be in the district in which the oropose~ located. A similar notice of public all owners[, lessees, and occupants] assessed at least two weeks prior to be mailed shall contain: assessed] at a public place 3 improvement district is hearing shall be mailed to of land proposed to be the hearing. The notice to (1) The material contained in the published and posted notices; (2) A description of the property of such owner, lessee, or occupant of land set forth in such manner as to enable such owner, lessee, or occupant to identify the property; and, (3) A statement that the property described on said notice is proposed to be assessed to pay for a portion of the cost of the proposed improvements. (f) Affidavits of publication [both] in the newspaper and [along the route of improvement]posting at the public place, respectively, shall be filed with the council [at] on or before the hearing. ~ Any failure to post, mail, or receive the notice described above, shall not invalidate the proceedings held thereafter. ~_ No improvement district shall be aonroved unless: The assessed valuation for taxation purposes of the land to be improved is at least twice the estimated costs of the proposed improvement; or ~2Z The council finds the appraised value of such land as improved is at least twice the estimated cost of the proposed improvement. The appraisal shall be conducted in accordance with 15 revailina standards for appraisals used. by banks for loans. No improvement district shall be approved unless the council finds that such improvement is in the public interest." SECTION 6. Chapter 12, Article 2, Section 12-12, Hawaii County Code of 1983, as amended, is hereby amended to read as follows: "Section 12-12. Filing of protests; lessee's right to protest. (a) Any owner of property[ proposed] to be assessed may at [ any time prior to or at]or before the public hearing file in writing, with the council, any protest, objection, or suggestions as to the proposed improvement, stating briefly his reason therefor, or present the same in person orally, at the public hearing. [If fifty-five percent of the property owners of the total frontage or area to be assessed for such improvements, at the hearing or prior thereto, file with the council written protests, duly acknowledged by such owners, against the making of the improvements or against any part of the plan therefor, the improvements or any part of the plan therefor shall not be made contrary to the protest.]If the owners of property which is proposed to have fifty percent or more of the total assessments (whether such assessments are to be assessed by frontage area or otherwise) file written protests, duly acknowledged by such owners, aoainst makino all or Hart of the proposed improvements or aoainst the methods by which such assessments are to be made or the inclusion of certain costs therein. then the improvements or methods of assessment shall not be made contrary to said written protests. If the protest is against the making of any 16 improvement, the same shall not be made, and the proceedings shall not be renewed within six months from the date of closing the public hearing, unless each and every owner protesting withdraws his protest. (b) Any lessee or buyer under agreement of sale (as such persons are described in section 12-1) of any property to be assessed under this chapter, who by the express terms of the lease must pay the( kind of] assessments contemplated by this part shall be subrogated to all the rights of such owner to protest by filing with the council prior to or at the hearing a certified copy of the lease or agreement of sale, together with a citation of the book and page of the public record of the same if it is recorded; provided, that any lessor of such lessee, or any owner of the property to be assessed, may, at any time before the closing of the public hearing, make void the protest or the rights of protest of any lessee of the property on consideration of filing with the council a duly acknowledged waiver of the stipulation in the lease which required the lessee to pay the special assessment, and a written undertaking by the lessor or owner to pay the special assessment to be made unc9er the proposed improvement." SECTION 7. Chapter 12, Article 2, Section 12-24, Hawaii County Code of 1983, as amended, is hereby amended to read as follows: "Section 12-24. Bidding[; bonds; surety. (a) [NO bid shall be considered unless accompanied by a certified check, or its equivalent, payable to the County, for not less than five percent of the amount of the bid, which check, 17 or its equivalent, shall be forfeited to the County, unless the successful bidder signs the contract and furnishes an approved bond within the time specified by the council. No bid in excess of the estimated costs shall be accepted by the council without the written and acknowledged approval of the owners of at least sixty percent of the frontage or area to be assessed, as the case may be. The council shall have the right to reject any and all bids and in such case to readvertise for tenders if it deems advisable to do so.]The bid process for construction of special improvements shall be administered by the Department of Public Works in accordance with procedures and requirements applicable to County of Hawaii projects. (b) [No contract shall be made without a bond to the County for the faithful performance of such contract in an amount not less than fifty percent of the contract price, with at least two sufficient sureties, each o£ whom shall be worth not less than the full amount of bond over and above all property exempt from execution, and who shall, upon the written demand of the council or of any owner of property subject to assessment, be required to justify thereon on an examination under oath before the council; provided that, instead of personal sureties, a duly qualified surety company may be substituted as provided by law. If upon such examination, any surety is held insufficient, a new bond with sufficient surety shall be filed by the successful bidder within the time specified and allowed by the council, or the contract and the deposit shall be forfeited. Upon the contract being signed and a sufficient bond furnished, the deposit made with the bid shall be returned to the contractor. Any other 18 method of awarding contracts shall be illegal and void.]The bid specifications shall contain provisions that specify that the award of the contract will not occur until the improvement district is created and the necessary funds for construction are appropriated." SECTION 8. Chapter 12, Article 2, Sections 12-27 and 12-28, Hawaii County Code of 1983, as amended, are hereby amended to read as follows: "Section 12-27. Corrected map: preliminary assessment roll and description; (NOtice]notice of authorized improvement. (a) The council shall[ cause to be prepared by] have the chief engineer[,] prepare a corrected maps [similar to that required under section 12-10 and]a preliminary assessment roll [and] description of properties to be assessed[, showing in detail the proportionate amount per front foot, and the exterior boundaries of the lands subject to the assessment, if the assessment is to be made on such basis, or per square foot, i£ the assessment is to be made according to area, proposed to be assessed against the property in the benefited district or in the several sur~istricts or zones thereof, if any, and] a list cf all known owners[, lessees and occupants] of the land [fronting upon such highways or situated] within the improvement district, and [shall thereupon by advertisement in the same manner as that provided in section 12-10 give notice of the total amount of the cost of the improvement based upon] the chief enoineer's estimate of cost or the bid of the lowest responsible and reliable bidder (if such bid is made)[, the maximum share per front foot or per 19 square foot, as the case may be, proposed to be charged to the benefited district or subdistricts or zones, if any, and that the corrected map, preliminary assessment roll and description of properties may be seen and examined at the office of the chief engineer during business hours at any time prior to and including the date fixed for hearing]. (b) [In addition to the other material contawzed on the notice to be mailed as required by section 12-10 and by this section, each mailed notice shall contain the amount proposed to be assessed against the property described therein. The notice shall also fix a date and place when a public hearing will be had. The council will sit as a board of equalization to receive complaints or objections respecting the total amounts of the proposed several assessments, which date shall not be less than ten days nor more than three weeks after the date of the first newspaper publication of the notice.]The nreliminarv assessment roll and description of properties to be assessed shall contain for the land in the proposed improvement district or in the several subdistricts or zones, if env the followino• S~L Where assessments are based on frontage the maximum proposed amount per foot of frontage• L1 Where assessments are based on area, the maximum proposed amount per square foot; Where assessments are based on methods other than frontaoe or area, the maximum unit of assessment to be applied• LL The maximum proposed amount of assessment for each property: and ~L A list of all known owners of the properties 20 within the proposed improvement district. ~1 Upon receipt of the corrected map prelimina~ assessment roll and description of properties the council shall Give notice of the following: .~ The total cost of improvements as established by the estimate of the chief engineer or by the bid of the lowest responsible and reliable bidder. or as otherwise provided in this chapter, ~j_ The contents of the preliminary assessment roll• ~_ The availability of the corrected map preliminary assessment roll and description of properties for inspection at the office of the chief engineer during business hours at any time prior to and including the hearing date• and S~ The time date and place of the public hearing to be held concerning said items; provided that the date shall not be less than ten days nor more than three weeks after the date of the first newspaper publication of the notice The notice of improvement and hearino shall be advertised. mailed. and posted in the same manner as provided in section 12-10. S~ At the public hearino, the council shall act as a board of equalization to receive complaints or objections concerning the amounts of the proposed assessments Section 12-28. Combination hearings; applicable proceedings. (a) The council may combine the hearings provided for in sections 12-10 and 12-27. If it does so, such determination shall be made in the resolution proposing to make the improvement 21 or improvements, and the following provisions shall then be applicable to the proceedings: (1) The resolution need not specify the maximum estimated unit of assessment nor fix the date of public hearing upon the proposed improvement, but shall direct the preparation by the chief engineer of the documents and data to be prepared by him as provided in sections 12-18 and 12-19 and in section 12-27 and if applicable shall include the request and direction provided in section 12-20. After the combined hearings, if the council determines to proceed with the improvements, the resolution specified in section 12-20 need not again direct preparation by the chief engineer of the documents and data as provided in sections 12-18 and 12-19. The clerk shall not cause the notices to be given as provided in section 12-10 until the documents and data have been so prepared by the chief engineer, and if applicable, by the department of water supply, and preliminarily approved by the council, at which time the council shall by resolution requiring not more than one reading for its adoption fix the date of combined hearings. [(3)]LZ The matters to be contained in the notices provided fir in sections 12-10 and 12-27 shall be combined into single notices to be so published, posted and mailed; for the purpose thereof the total amount of the cost of the improvement shall be based on the estimated cost of the work to be included in bids when received, not upon the bid of the lowest responsible and reliable bidder as specified in section 12-27. [(4)]S~ The council [shall] may call for bids on all improvements to be constructed under contract to be received on 22 or before the date of the combined hearings pursuant to the provisions of sections 12-23, 12-24 and 12-25. S~ The chief encineer shall prepare an amended preliminarv assessment roll based on anv revisions in the estimate of the chief encineer or on the results of the bids received for improvements as the case may be and shall send said amended assessment roll to the council on or before the public hearinc. If the amended preliminarv assessment roll shows a proposed amount of assessment for anv of the properties to be assessed which is more than that shown on the preliminarv assessment roll. then, unless the affected owner lessee and occupant shall waive the same, the council shall postpone the public hearinc and readvertise and mail an amended notice of hearinc containing the amended preliminarv assessment roll. Said readvertisement and mailino shall be done under the provisions of section 12-27(c) and (d) Said postponed public hearino shall be conducted in the same manner as provided in section 12-27(e) ~B~ If the amended preliminarv assessment roll shows a proposed amount of assessment for each of the properties to be assessed which is the same or less than the preliminarv assessment roll the public hearino shall be held as scheduled and the amended preliminarv assessment roll shall be considered at said public hearino." SECTION 9. A new section 12-28.1 is added to Chapter 12, Article 2, Hawaii County Code of 1983, as amended, to read as follows: "Section 12-28.1. Termination of improvement districts 23 The council by ordinance shall provide for the procedures to terminate an improvement district created under this chapter once the improvements have been completed and the obligations of the improvement district have been satisfied. S~1 The ordinance directing termination of an improvement district shall contain the provisions enumerated below• L1 The director of finance shall be drected to set aside sufficient funds to cover all outstanding or anticipated debts or obligations of the improvement district. including cost and expenses of making any distributions to lot owners and the cash refund obligations in section 12-28.1(a)(3) below Anv outstanding assessment installments which are not needed to pay the debts or obligations described in section 12-28.1(a)(1) above, shall be canceled. L31 If assessment installments are canceled those owners whose lots have prepaid assessments will be entitled to cash refunds egual to the assessment principal which would be prepaid as of cancellation. For these purposes "prepaid assessments" shall include all payments made upon the assessments for a lot, whether such payments were made before or after the assessment liens were created. u The council may provide that from any funds remaining in the improvement district after the payments described in sections 12-28.1(a)(1) or (3) that the director of finance be authorized to make cash refunds to lot owners from remaining improvement district funds in such amounts and at such times as the director of finance finds are reasonable LL The effective date of termination shall be at such 24 time that the director of finance has determined that all outstandinc or anticipated debts or oblications of the improvement district have been paid or can be satisfied and that the cash refunds provisions described above have been made LL The ordinance directing termination of the improvement district shall not be enacted prior to the redemption date fixed in the call for redemption of all outstandinc improvement district bonds at which time the director of finance or pavino aoent of the County as the case may be shall have sufficient funds on hand to pay all outstandinc bond principal interest and any premiums thereon " SECTION 10. Chapter 12, Article 3, Section 12-29, Hawaii County Code of 1983, as amended, is hereby amended to read as follows: "Section 12-29. Assessments fixed by ordinance; owner application to pay reduced assessment. ~ After the hearing, the council shall forthwith proceed to make such modifications or changes as to them may seem equitable or just, or shall confirm the first proposed assessment. Upon reaching a final decision the council shall by ordinance, fix the portions of the cost to be assessed against the benefited properties and against the owners thereof respectively. The ordinance shall incorporate by reference the assessment roll as approved by the council. After the final enactment of such ordinance the amounts of the several assessments so listed, advertised and incorporated and not previously objected to shall be conclusively presumed to be just and equitable and not in excess of the special benefits accruing 25 or to accrue by reason of the improvement to the specific property assessed. S~ After commencement of improvement district proceedings and prior to the adoption of the improvement district ordinance described in section 12-29(a), an owner may apply for a reduction in the proposed assessment against a lot as follows: (1) file a written application with the County clerk for a reduced assessment not later than one week prior to the time that the ordinance is placed on the council agenda for first reading; (2) deposit the full amount of the proposed reduced assessment. said deposit being an irrevocable commitment by the owner to the payment of the reduced assessment. The amount of reduction shall be as provided by the council, but shall not exceed the applicant's proportionate share of the sum of the improvement district bond reserve fund and the improvement district bond discount allowance and other incidental expenses directly related to the issuance of improvement district bands. For purposes of the deposit requirements of this section, the owner may direct that refunds due under section 12-7(a) be applied as a deposit hereunder. Such refund amounts shall thereafter be treated as a deposit cinder this section, except that no cash refund shall be made for or on account of such refund amounts whether or not they are treated as deposits in this section. j1Z The director of finance shall submit a report with recommendations to the council with respect to any such applications. The council shall consider such applications and. to the extent that such applications are acceptable to the council, include the same in the improvement district ordinance. 26 UQOn approval of the application by inclusion of the reduced assessment in the ordinance, the director of finance shall immediately deposit such funds in the construction special account for the improvement district LZ If the assessment is not reduced by the council the funds deposited shall be refunded to the owner except that no refund shall be made for or on account of refunds due for advances made under section 12-7(al In that event the owner shall make pavment of the assessment as provided in this chapter." SECTION 11. Chapter 12, Article 4, Sections 12-45 through 12-50, Hawaii County Code of 1983, as amended, are hereby amended to read as follows: "Section 12-45. Contents of bonds. (a) [Improvement bonds shall be authorized by ]The director of finance. upon authorizing resolution from the council may issue improvement bonds. The resolution shall [requiring]reouire one reading for its adoption. Improvement bonds shall[ be in such form as may be prescribed by the council, shall] bear the name of the [benefited or improved]improvement district, and[ shall be payable at such times and in such amounts as the council shall determine, provided the council shall provide for such payments in a manner calculated to correspond with the receipt of assessment installments due on account of the improvement to be financed from the proceeds of such bonds pursuant to the provisions of this chapter. The council, in its discretion, may provide that the amount of principal maturing in each year plus the amount of interest payable in that year will be an aggregate 27 amount that shall be approximately equal each year, except for moneys falling due on the first principal payment date of the bonds which shall be adjusted to reflect the amount of interest accrued from the date the bonds bear interest to the date the first interest is payable on the bonds; or it may make such other determination of the amount of the aggregate principal of the bonds that shall fall due in a year as it shall choose.]_ Shall bear interest at a rate or rates not exceeding a rate or rates established by resolution enacted by the council payable at such time or times: May be made payable as to both principal and interest at such place or places and in such manner within and without the state; ,~31 Mav be issued in coupon form without privilege of registration or registrable as to principal only or as to both principal and interest or in fully registrable form without coupons• Mav be made registrable at such place or places within and without the state: and May be subiect to redemption, to being tendered for purchase or to being purchased prior to their stated maturity at the option of the County, the holder or either or both all as determined by the council or the director of finance as herein provided. LL Unless the council shall itself perform the actions i.ile uirecror of finance shall: ~_ Determine the date. denomination or denominations interest payment dates, maturity date or dates place or places 28 of payment registration privileges and place or places of recistration. redemption price or prices and time or times and terms and conditions and method of redemption~ ~_ The rights of the holder to tender for purchase and the price or prices and time or times and terms and conditions upon which those rights may be exercised~ L)_ The richts to purchase and price or prices and the time or times and terms and conditions upon which those richts may be exercised and the purchase may be made- and Determine all other details of bonds issued under this chapter. ~qZ The principal of and interest and premium if any on all bonds issued under this chapter shall be payable in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts Dates of such payment shall take into account the dates that assessment installments for the improvement district are due Improvement bonds shall be subject to call [out]but not prior to the second interest date thereof as hereinafter provided and at such premium, if any, as may have been provided for in the resolution authorizing such bonds, but not in excess of the maximum premium provided in the resolution of the council adopted pursuant to section 12-10. [(b) The bonds of each issue shall be numbered in such manner, shall be of such denomination, and shall bear interest at such rate or rates per annum, payable in such manner, as may be determined by the council.) 29 Section 12-46. Execution of bonds; records; funds for payment. (a) Improvement bonds shall be executed by the director of finance, or by a deputy of the director of finance duly designated by the director to execute such bonds, and issued pursuant to and under the authority and requirements of resolutions of the council. The bonds shall bear the lithographed or engraved facsimile signature of the mayor and shall be impressed with a lithographed or engraved facsimile of the seal of the County. [in the event]If the council [shall] [provide provides that no such improvement bond shall be valid or obligatory unless and until there shall be manually executed a certificate of authentication thereof, all signatures of County officials on the bonds may be [facsimile facsimiles of their respective [signature]sionatures. Interest coupons, if any, shall bear the lithographed or engraved facsimile of the signature of the director of finance. (b) The director of finance shall preserve a record of the bonds in a suitable book kept for that purpose. The council shall provide for books of registry to be kept for the registratic^. of improvement bonds issued in fully registered form or which are subject to registration. (c) The bonds shall be payable only out of the moneys collected on account of assessments made for the improvement for which they are issued or from the reserve fund established pursuant to section 12-50, (in the event that]if the moneys collected out of assessments are insufficient to pay the bonds or the interest thereon as they become due. The County shall not 30 otherwise guarantee payment of any bonds issued under the provisions of this chapter, provided that interest payments may be advanced by the council temporarily out of any moneys available in the County treasury. Section 12-47. General obligation bonds and special assessment revolving fund. (a) For any improvement initiated pursuant to section 12-10 only, the council, in lieu of the issuance of improvement bonds as permitted by sections 12-44, 12-45, and 12-46 may in its sole discretion issue general obligation bonds of the County or authorize payment of the required amount from the special assessment revolving fund of the County or both. (b) The council shall have power to issue general obligation bonds of the County for the purpose of establishing, maintaining or replenishing the special assessment revolving fund. (c) All such general obligation bonds shall be authorized, issued and sold under, pursuant to, and in accordance with chapter 47, Hawaii Revised Statutes, as amended, all of the provisions ~f which chapter shall be applicable thereto. Without limiting the generality of the provisions of the foregoing sentence, the form, name, date, denomination, numbers, maximum interest rate, method of execution and all other details of such general obligation bonds shall be fixed and determined in accordance with and as provided by chapter 47. No right of prior redemption need be reserved in the issuance of such bonds, nor shall either the amounts or dates of the maturities of any such 31 bonds be required to conform in any way to the amounts and due dates of any assessments. (d) The validity of such general obligation bonds shall not be dependent on or affected in any way by any proceedings taken or any contracts made, acts performed or done in connection with, or in furtherance of, any improvement or any assessments for such improvement. (e) [In the event of the issuance of]If general obligation bonds are issued as provided in this section, all moneys collected on account of assessments and interest for any improvement that is financed by such bonds, may, to the extent so directed by the council, be applied to the reimbursement of the general fund of the County to the extent of the amounts paid for interest on and principal of such general obligation bonds. Any amounts collected on account of assessments and interest as aforesaid to the extent not so directed by the council to be applied to such reimbursement or in excess of the amounts required for such reimbursement, and amounts collected on account of assessments and interest for any improvement Financed from the special assessment revolving fund, shall be appropriated to and become a part of the special assessment revolving fund and may be used and applied as authorized by the council. Section 12-48. Exemption of general obligation bonds from certain requirements. The provisions of sections 12-49, 12-50, 12-51, 12-52, 12-53, 12-54 and 12-55 shall not apply to the general obligation bonds authorized by section 12-47 and such sections shall be restricted in their application to improvement 32 bonds, nor shall the provisions of article 5 of this chapter apply to such general obligation bonds unless the council in its sole discretion shall consent to the application of such provisions to such bonds(, and the]. The refunding of any such general obligation bonds shall not in any way affect the payment of assessment installments and the interest thereon or the amounts and times of such payments unless such refunding is part of a plan consented to by the council and adopted under article 5 of this chapter. Section 12-49. Special fund for payment of bonds; use of surplus; insufficient funds. (a) All moneys collected on account of assessments and interest for any improvement after the issuance of any bonds shall be kept by the director of finance in a special fund and applied solely to the payment of interest and principal of bonds issued for the improvement until the bonds have been paid. The director of finance of the County shall pay the principal of the bonds at maturity and the interest thereon as and when the same become due at the place or places and in the manner prescribed for the payment under this chapter and the proceedings authorizing those bonds from such special fund (b) [In the event that]If any surplus remains in any special fund after the[ payment]disbursement of [the bonds chargeable against the fund or in case of a premium received on the sale of the bonds]funds described in section 12-18.1 of this chapter, such surplus or premium shall be credited to and become a part of a fund to be known as the improvement district 33 revolving fund, the moneys in which shall be available to make up deficiencies in the proceeds of bonds sold below par, to cover deficiencies in interest realized on account of diminishing balances of installments outstanding, and to advance interest due on bonds outstanding prior to collection of annual assessments, and also for the purpose of paying all expenses in connection with the sale of delinquent improvement district lots and the prices of the delinquent lots as are bid for and purchased by the director of finance. The director of finance may upon such purchase, transfer the proper amounts so bid into the proper special funds for the respective improvement districts concerned. (c) [In the event that]If moneys in the applicable special fund prove insufficient at any time to pay the principal and interest, or the interest only, as the case may be, on bonds outstanding, moneys shall be transferred from the reserve fund established pursuant to section 12-50, or from the improvement district revolving fund into such special fund in such amounts as will enable the director of finance to make the payments of principal or interest, or interest only, as the same becomes due. Section 12-50. Reserve fund. (a) The council may provide in the resolution adopted pursuant to section 12-10 [that]for a reserve fund [shall be established ]as additional security for the payment of principal and interest on improvement bonds issued in proceedings taken pursuant to this chapter. The reserve fund shall be initially funded from the proceeds from the sale of improvement bonds with respect to which such reserve fund is established in such amount 34 as is designated by the council in the resolution authorizing such bonds. Moneys in a reserve fund shall be used in accordance with the provisions of section 12-49 and to pay the principal or interest, or both, in whole or in part, on the last outstanding maturity or maturities of the bonds, and assessment installments or such portions thereof which would otherwise be collected to make such payments shall be [cancelled]canceled, provided that in making use of moneys in the reserve fund to pay principal or interest, or both, on the last outstanding maturity or maturities of the bonds, the director of finance shall make provisions for expected delinquencies in payment of any portions of assessment installments which will not be [cancelled]canceled by such use of the reserve fund, and provided further that insofar as the moneys are attributable to fully paid assessments rather than to cancellation of installments or portions thereof, the moneys shall be paid pro rata to the persons who at the time of such apportionment own (as shown on the records of the County tax office) the lands subjected to the assessments. (b) There shall be transferred to the improvement district revolving fund of the County: ~1; Any portion of such moneys which shall not have been paid to or claimed by the persons entitled thereto within two years after the due date of the last bonds; and (2) Any interest earned from the investment of such moneys during the two year period." SECTION 12. Chapter 12, Article 4, Sections 12-53 and 12-54, Hawaii County Code of 1983, as amended, are hereby amended to read as follows: 35 "Section 12-53. Sale of bonds; use as payment to contractor. (a) [Improvement bonds may be used by the council at par to pay wholly or in part the contract price of any improvement made or, in the event that all of the improvement bonds are not so used, they shall then be sold to the highest bidder, after public advertisement for tenders for at least once each week for not less than two successive weeks in a suitable newspaper of general circulation in the County. ]The director of finance may make such arrangements as may be necessary or proper for the sale of each issue of bonds or Hart thereof as are issued under this article, including, without limitation, arranging £or the preparation and printing of the bonds, the official statement and anv other documents or instruments deemed required for the issuance and sale of bonds and retaining those financial, accounting, and legal consultants, all upon such terms and conditions as the director of finance deems advisable and in the best interest of the County. The council may authorize the director of finance to offer the bonds at competitive sale or to negotiate the sale of the bonds to: ~1~ Any person or group of persons; ~L The United States of America. or anv board. agency, instrumentality, or corporation thereof; The employees retirement system of the state; L4~ Anv political subdivision of the state; ~l Anv board, agency, instrumentality, public corporation, or other~yovernmental organization of the state: or of any political subdivision of the state. 36 Subiect to anv limitation ordinance or resolution authorizino bonds by the director of finance by price or prices and upon such terms time in such manner. as the directo LZ Subiect to anv limitation imposed by the council by the the bonds, the sale of the neootiation shall be at such and conditions from time to of finance shall approve imposed by the council by the resolution authorizino the bonds the sale of the bonds by the director of finance at competitive sale shall be at such price or prices and upon such terms and conditions and the bonds shall bear interest at such rate or rates or such varvinp rates determined from time to time in the manner as specified by the successful bidder and the bonds shall be sold in accordance with this subsection. The bonds offered at competitive sale shall be sold only after published notice of sale advisino prospective purchasers of the proposed sale The bonds offered at competitive sale may be sold to the bidder offerino to purchase the bonds at the lowest interest cast the interest cost for the purpose of this subsection beino determined on one of the following basis as selected by the director of finance• The ficure obtained by addinc tooether the amounts of interest payable on the bonds from their date to their respective maturity dates at the rate or rates specified by the bidder and deductinc from the sum obtained the amount of any premium offered by the bidder• S~ Where the interest on the bonds is payable annually, the annual interest rate (compounded annually) or where the interest on the bonds is payable semiannually the rate obtained by doublinc the semiannual interest rate (compounded 37 semiannually). necessary to discount the principal and interest payments on the bonds from the dates of payment thereof to the date of the bonds and to the price bid (the price bid for the purpose of this paraoraph shall not include the amount of interest accrued on_the_bonds_from_their_date to the date of delivery and payment); or ~Z Where the interest on the bonds is payable other than annually or semiannually or_wll vary from time to time upon such basis as, in the opinion of the director of finance. shall result in the lowest cost to the County; provided that in any case the rioht shall be reserved to reiect any or all bids and waive any irregularity or informality in any bid. S~ Honds offered at competitive sale. without further action of the council, shall bear interest_at the rate or rates specified by the successful bidder or varying rate or rates determined from time to time in the manner specified by the successful bidder with the consent of the director of finance. The notice of sale required by this section shall be published at least once and at least five days prior to the date of the sale in a newspaper circulating in the County and in a financial newspaper or newspapers published in any of the cities of New York. Chicano, or San Francisco. and shall be in such form and contain such terms and conditions as the director of finance shall determine. The notice of sale shall comply with the requirements of this section if it merely advises prospective purchasers of the proposed sale and makes reference to a detailed notice of sale which is available to the prospective purchasers 38 and which sets forth the specific details of the bonds and terms and conditions upon which such bonds are to be offered The notice of sale published and any detailed notice of sale may omit the date and time of sale in which event the date and time shall be either published in the same newspapers in which the notice of sale has been published or transmitted via electronic communication systems deemed proper by the director of finance which is generally available to the financial community in either case at least forty-eight hours prior to the time fixed for the sale. ~ The proceeds [thereof]of the sale of bonds shall be applied to pay[ wholly or in part]the costs of the improvement district. including the contract price[; provided that in the event at an advertised sale only part of the issue so advertised is bid for, the council may authorize the director of finance, by resolution requiring one reading for adoption, to sell the whole or any part of the remainder of such issue at the highest bid so received to any person at private sale]. [Zn the event)If no purchaser is found, the County may be the purchaser of any such bonds, using any funds available and unspent. Bonds sold to a purchaser ether than the County may be sold for such discount as is acceptable to the council. ((b)]S~ The council may provide for payment to the contractor of the contract price of the improvement by means of progress payments during the period of the work, such payments in bonds at par or in cash or both. Section 12-54. Payment of bonds[ before maturity]. 39 (a) All improvement bonds not previously paid shall be paid at maturity together with interest thereon as the same become due at the places and in the manner prescribed by this chapter S~ The resolution o£ the council authorizing improvement bonds may provide that such bonds may be called for redemption prior to the stated maturity. In such event, on and after the second interest due date of any such improvement beds issued pursuant to this chapter, whenever sufficient funds are in the hands of the director of finance by reason of payment of assessment installments exceeding the next interest payment on the unpaid balance of any bonds so issued, the director of finance is authorized to call for payment prior to the stated maturity thereof such number of improvement bonds as there are funds to pay. The resolution of the council authorizing the improvement bonds shall provide for proper and adequate notice of such redemption to be published or mailed or both prior to the date fixed for redemption. A copy of such notice shall also be mailed to the person who purchased such bonds at the original sale thereof. Interest on the bonds so called for payment shall cease on the date of call, provided that the notice shall be published or mailed at least fifteen days before the date of such call. [Zn the event]If notice [shall be required to)must be made by publication, a second publication shall be made not less than one week after the date of first publication. The moneys provided for the payment of such bonds with the interest unpaid to the date o£ their call for payment, together with any applicable premium payable, shall be set aside by the director of finance in a special deposit to which fund only the owners of the 40 bonds shall thereafter look for payment. ((b)]~ Improvement bonds shall be selected for redemption in the manner prescribed by the council. [(c)]~ Any premium paid on redemption may not exceed five percent of the face amount of the improvement bond." SECTION 13. Chapter 12, Article 4, Section 12-55, Hawaii County Code of 1983, as amended, is hereby repealed. SECTION 14. A new section 12-55.1 of Chapter 12, Article 4, Hawaii County Code of 1983, as amended, is hereby added to read as follows: "Section 12-55.1 Exemption from taxes SQL All bonds heretofore or hereafter issued under the authority of this chanter and the income therefrom shall be exempt from any and all taxation by the state or any County or other political subdivision thereof except inheritance transfer, and estate taxes. Bonds issued under this chanter, to the extent practicable. shall be issued so as to comply with requirements imposed by valid federal law prow+dino that the interest on those bonds shall be excluded from cross income for federal income purposes (except as certain minimum taxes or environmental taxes may apply). The director of finance is authorized to enter into arranoements, establish funds or accounts and take any action required in order to comply with any valid federal law Nothinc in this chapter shall be deemed to prohibit the issuance of bonds, the interest on which may be included in cross income for 41 federal income tax purposes. For the purpose of ensurino that interest on bonds issued pursuant to this chapter which is excluded from cross income for federal income tax purposes (except as provided above) on the date of issuance shall continue to be so excluded, no Countv officer or emplovee or user of an undertaking or loan program shall authorize or allow anv chance, amendment. or modification to an undertaking or loan program financed or refinanced with the proceeds of the bonds which chance, amendment or modification would affect the exclusion of interest on the bonds from Dross income for federal income tax purposes unless the chance amendment, or modification shall have received the prior approval of the director of finance. Failure to receive the approval of the director of finance shall render anv chance, amendment or modification void." SECTION 15: Material to be repealed is bracketed. New material is underscored. in printing this ordinance, the brackets, bracketed material and underscoring need not be included. SECTION 16: If any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. 42 SECTION 17: This ordinance shall take effect upon its approval. `'~ INTRODUCED BY: ` / ~/ ~~ =~( ~~ COUNCIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii Date of introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: September 19, 1990 September 19, 1990 October 3, 1990 October 10, 1990 43