Bill Text: MI HB5504 | 2019-2020 | 100th Legislature | Engrossed
Bill Title: Drains: financing; allow for inspection and maintenance, prohibit concurrent assessments, and require sealed bids for nonpetitioned maintenance. Amends secs. 31, 196, 221 & 434 of 1956 PA 40 (MCL 280.31 et seq.).
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2020-12-31 - Assigned Pa 291'20 [HB5504 Detail]
Download: Michigan-2019-HB5504-Engrossed.html
SENATE Substitute For
HOUSE BILL NO. 5504
A bill to amend 1956 PA 40, entitled
"The drain code of 1956,"
by amending sections 31, 196, 221, and 434 (MCL 280.31, 280.196, 280.221, and 280.434), section 196 as amended by 2008 PA 509, section 221 as amended by 2016 PA 27, and section 434 as amended by 2002 PA 406.
the people of the state of michigan enact:
Sec. 31. (1) A drain commissioner shall prepare a list of drainage districts
that are assessed for maintenance work under section 196. The list shall
include the name of the drain and the amount being assessed annually to the drainage
district. A drainage district shall be included on a list for the duration of
the assessment associated with the maintenance work. The commissioner shall
update the list annually after the commissioner has filed all special
assessment rolls under section 262(1) but not later than November 1. The commissioner
shall make the list available upon request. If the commissioner maintains an
official internet presence, the commissioner shall post and maintain the list on
a portion of the website that is fully accessible to the public. If the drain
commissioner does not maintain an official internet presence, the list shall be
posted and maintained on the county website.
(2)
(1) Each At the annual October meeting of the
county board of commissioners, a drain commissioner shall make a report to
the county board of commissioners at its
annual meeting in October of the drainage districts laid out , and the drains constructed, finished, or begun under his or her the
drain commissioner's supervision during the year ending October 1, September
30 and the commissioner shall
also submit to the board a full
financial statement of each drainage district. If authorized by resolution of
the county board of commissioners, the report shall be made before April 2 of
each year and shall cover the preceding calendar year. The A
drain commissioner shall also make reports and furnish
information as required by the director of the department of agriculture and rural development.
(3)
(2) The reports
required by A
report under subsection (1) (2) shall include an itemized statement of the orders
issued on account of each drainage district and a debit and credit balance of
the district fund. The commissioner shall
be is liable on the blanket bond or
his or her individual bond for gross neglect of duty or a misapplication of
money coming under his or her control
as commissioner.
Sec. 196. (1) An
annual inspection may be made of a drain established under this act. Inspection An
inspection shall also be made
upon the request of the governing body of a public corporation, as defined described
in section 461, served in whole or in part by the drain to be
inspected. Any inspection under this subsection shall be
conducted by the following:
(a)
For a county drains, the inspection shall be made drain, by the drain commissioner , or a
competent person appointed by the drain commissioner.
(b)
For an intercounty drains, the inspection shall be caused to be
made drain, by the
drainage board or a competent person appointed by the
drainage board.
(2) Surplus construction funds remaining after completion of
construction of a drain, or funds remaining after completion of work performed
under a petition for maintenance or improvements under this chapter, shall be
deposited in the drain fund of a the drainage district and shall be expended for
inspection, repair, and maintenance of the drain.
(3) If at any time the drain fund of a drainage district
contains less than $5,000.00 per mile or fraction of a mile of a drain, the
drain commissioner or drainage board may assess the drainage district for an
amount not to exceed $2,500.00 per mile or fraction of a mile in any 1 year.
The amount collected under an assessment shall be deposited in the drain fund
of a the
drainage district for necessary
inspection, repair, and maintenance of the drain.
(4) If an inspection discloses the necessity of expending
money for the maintenance and or repair of a drain in
order to keep it in working order, the drain commissioner for a
county drain, or the drainage board for an intercounty drain, may without
petition expend an amount not to exceed in any 1 year $5,000.00 per mile or
fraction of a mile for maintenance and repair of a
the drain, exclusive of not including inspection and engineering fees, legal fees, and the cost of publication and
mailing. The determination of the maximum expenditure allowed without a petition or resolution under this subsection shall be based on the total
number of miles of the drain and not on the actual number of miles or location
of the maintenance or repair. Costs incurred for the
inspection, maintenance, and repair of a drain performed under this section may
be financed and assessed under this act for not more than 10 years.
(5) If the drain commissioner or the drainage board finds it
necessary to expend funds in excess of addition to the amount established in subsection (4)
per mile or fraction of a mile in any 1 year for the maintenance and repair of
a drain, the additional amounts shall not be expended until approved by resolution
of the governing body of each township, city, and village affected by more than
20% of the cost.
(6) If the drain fund of a drainage district does not contain
sufficient funds to pay for inspection, repair, and maintenance authorized by
this section, the drain commissioner or the drainage board may finance the costs for not more than 10 years and shall
reassess assess
the drainage district for
not more than 10 years for the inspection, repair, and
maintenance according to benefits received. A
reassessment The first installment of an
assessment under this subsection shall be made and spread upon
the city or township tax assessment roll within 2 years after the completion of
the inspection, repair, and maintenance. If the total expenditure is more than
the amount established in subsection (4) per mile or fraction of a mile, all
real property owners subject to an assessment within the drainage district
shall be notified of the assessment by publication in a newspaper of general
circulation within the drainage district and by first-class mail to the name
and address that appears on the last city or township assessment roll. An
affidavit of mailing shall be made by the drain commissioner. The affidavit is
conclusive proof that the notices required by this subsection were mailed. The
failure of a person to receive the notices a notice by mail shall
is not constitute
a jurisdictional defect invalidating a drain tax assessment
if notice by publication was given as required by this
subsection.
(7) An assessment under
subsection (6) for the actual cost of inspection, repair, and
maintenance performed on a drain, or an assessment under
subsection (3) to be deposited in the drain fund of a drainage
district, shall be made according to benefits received. The expenditure limit
of the amount established in subsection (4) per mile of
drain or fraction of a mile of
drain shall be used to calculate the maximum amount that the
drain commissioner or drainage board may assess in any 1 year without a
petition or a request from a public corporation. The
property in a drainage district that benefits from the inspection, repair, or
maintenance of the drain is subject to assessment for that inspection, repair,
or maintenance. Determination of the maximum assessment amount
allowed without petition or request, or of the property that is subject to
assessment, shall be based on the number of miles of drain and areas of the
drainage district receiving benefits and not on the actual number of miles or
actual location of the inspection, repair, or
and maintenance.
(8) If an emergency condition exists that endangers the
public health, crops, or property within a drainage district, and the drain commissioner or the drainage board enters an order declaring and describing the emergency, the
commissioner or drainage board may expend funds for maintenance
and repair to alleviate the emergency condition.
(9)
The drain commissioner or drainage board shall not levy an additional
assessment for drain maintenance under this section if there is currently an
assessment for previous maintenance work on the drain under this section unless
subsection (8) applies or the expenditure for maintenance is approved by the
governing body of each township, city, and village affected by more than 20% of
the cost.
(10)
(9) Nothing in
this section prohibits the The drain commissioner or the drainage
board from spending may expend funds in excess of the amount established
in subsection (4) per mile or fraction of a mile in any 1 year for inspection,
maintenance, and repair of a drain when
if requested by a public
corporation ,
and if the public corporation
pays the entire cost of the inspection, maintenance, and repair.
(11)
(10) In computing the
amounts that may be expended in accordance with under this section, the cost of work to be performed
by a federal agency or public corporation that is not chargeable to the county
or intercounty drainage district shall not be included.
, nor shall it be necessary for the The drain commissioner or the drainage board is not required to advertise for bids for that
portion of the work to be done by the federal agency or public corporation.
(12)
(11) For purposes of
this section, the costs of maintenance or
and repair shall include all of the costs
following:
(a)
The cost of maintaining the drain in working order to continue a
normal flow of water, including the servicing or repair of necessary pumping
equipment and utility charges for pumping equipment.
; the
(b)
The cost of keeping the drain free from rubbish, debris, siltation, or
obstructions. ;
the
(c)
The cost of repairing a portion or all of a tile or drain to continue the
normal flow of water. ; and other
(d)
Other costs associated with the costs enumerated
in this subsection.described in subdivisions (a)
to (c).
(13) (12) If the cost of maintenance and repair of a
drain includes The dollar amount
limitations in subsections (4), (6), and (7) do not apply to expenditures or
assessments to the extent the expenditures or assessments are necessary to pay utility charges
or costs to service pumping stations, sewage treatment facilities, or detention or retention basins. , the limitation
for maintenance and repair does not apply except that the drain commissioner or
drainage board may levy sufficient special assessments to pay the charges or
costs but not more than the amount sufficient to pay those charges or costs.
(14)
(13) Except as
otherwise provided in this act, that portion of the salaries, expenses, and
fringe benefits of administrative and engineering employees under the
supervision of the drain commissioner that are directly attributable, but not
incidental, to a drain or and not otherwise not
recovered by fees established by resolution or ordinance of the
board of commissioners may be chargeable charged to the drain fund of a drainage district.
Sec. 221. (1) At the time and place established in the
notice, the commissioner shall receive bids for the construction of the drain. The drain commissioner or drainage board shall advertise for sealed
bids for projects petitioned for under section 71, 121, 191, or 192. The
drain commissioner may, and shall for all drains having an estimated
cost exceeding $5,000.00, advertise for sealed proposals, to be opened on the
day of letting. or drainage board shall receive
sealed bids. All sealed proposals
bids received by the drain commissioner or
drainage board shall be publicly opened by
him or her in the at a meeting held at a time and place established by the notice under this act and
may be examined at the meeting by any person interested. As soon as practical
after the opening of bids, for the construction of any drain, the
drain commissioner or drainage board shall determine
do the following:
(a)
Determine the lowest responsible bidder and award contracts, or may reject all proposals and
readvertise. ,
and in cases where
(b)
If the drain commissioner or drainage board determined that the taxes assessed special assessments for benefits shall be collected
in more than 1 installment, the commissioner shall, subject
to section 275, determine the amount, form, maturity, mandatory redemption
requirements, if any, and rate of interest of bonds to be issued. In counties having a board of county auditors,
drain bonds shall not be sold and drain contracts shall not be let without the
written consent and approval of the board of county auditors. However, the
approval of the board of county auditors is not required in proceedings
relative to intercounty drains.
(2)
The drain commissioner or drainage board shall also receive sealed bids as
provided in subsection (1) for nonpetitioned maintenance work under section 196,
unless the drain commissioner or drainage board utilizes 1 of the following to
perform the work:
(a)
County staff, including staff of the board of county road commissioners.
(b)
A prequalified contractor. To proceed under this subdivision, the drain
commissioner or drainage board must maintain a list of all prequalified
contractors for nonpetitioned maintenance work under section 196. The
determination whether to list a contractor shall comply with prequalification
criteria adopted by the drain commissioner or drainage board. The drain
commissioner or drainage board shall make the list and criteria available on
request. If a drain commissioner maintains an official internet presence, the drain
commissioner shall post and maintain the drain commissioner's or drainage
board's list and criteria on a portion of the website that is fully accessible
to the public. If the drain commissioner does not maintain an official internet
presence, the list shall be so posted and maintained on the county website.
(3)
(2) If a contract is
not let within 5 years after the date of filing the petition to locate,
establish, and construct, or deepen,
widen, straighten, tile, extend or clean out a drain, the drain commissioner or drainage board may determine that the petition
shall be considered abandoned and no further action shall be taken to construct
the drain. Time during which The running of the 5-year period is suspended during any
litigation is pending to contest the
validity of the proceedings. shall not be counted as a part of such 5-year
period. If, after the 5-year period,
the drain commissioner or drainage board determines
that the petition shall be
considered abandoned, the drain commissioner or drainage board shall issue an order to that
effect. However, a determination of abandonment shall
not be issued within the 5-year period. Notice of the order shall
be given by publishing a notice published in a newspaper of general circulation in
the county. drainage
district or sent by first-class mail to each person whose name appears on the last
city, village, or township tax roll as owning land within the drainage
district. The respective drain commissioner shall make an affidavit of the
mailing and shall recite in the affidavit that the notice was mailed to all of
the persons whose names and addresses appear upon the tax rolls as owning land
within the drainage district in that county. The affidavit is conclusive proof
that notice was mailed to each person to whom notice is required to be mailed by
that drain commissioner under this subsection. The failure to receive a notice
by mail is not a jurisdictional defect invalidating the abandonment of a
petition if notice was sent by first-class mail as provided in this subsection.
This section applies to all petitions that are
in full force and effect on or after January 1, 1973.
(4) (3) The board of county road commissioners , if authorized by a committee of commissioners appointed by the county board of commissioners, may bid for the construction, cleaning, deepening and widening of drains within the county, may bid on projects as provided in this section and, if a bid is accepted, may perform the work called for described in the bid , and receive payment for the work performed. A bid tendered by a board of county road commissioners shall not be accepted unless the bid is at least 15% lower than any other bid tendered. The money received by the board of county road commission commissioners shall be credited to the county road fund. , and expenditures Expenditures incurred by the board of county road commission shall be commissioners in performing work under this subsection are proper disbursements from the county road fund.
Sec. 434. (1) A
drainage district may borrow money or accept the
an advance of work, material, or
money from a public or private corporation, partnership, association,
individual, or the federal government or any agency of the federal government
for any of the payment following
for any project under this act:
(a)
Payment of , or costs
in connection with the maintenance and repair of
a drain or the construction of , any part of a drain project, or for financing including costs of easement and land acquisition, engineering fees,
financing costs, and legal fees.
(b)
Payment of or financing costs of a feasibility, practicability,
environmental assessment, or impact study of a drain project, which may include the payment
for easement or land acquisition or engineering and legal fees, or an
engineering, environment impact, or assessment study, and be reimbursed by the including engineering or legal fees.
(2)
The drainage district shall pay or provide
reimbursement for the obligations under subsection (1), with or
without interest as may be agreed, when funds are available. The obligation of
the drainage district to make the repayment or reimbursement may be evidenced
by a contract or note. , which The
contract or note may pledge the full faith and credit of the drainage district
and may be made payable out of any of the drain following:
(a)
Drain assessments made against public corporations at large, or
against lands in the drainage district.
, or out of the
(b)
The proceeds of drain orders, notes, or bonds issued by the drainage
district pursuant to this act. or out of any
(c)
Any other available funds. , and the
(3)
A contract or note shall not be described in subsection (2) is not subject to the
revised municipal finance act, 2001 PA 34, MCL 141.2101 to 141.2821, unless the
principal amount of the obligation shall
exceed $300,000.00. is more than $600,000.00. However,
if the principal amount of the obligation is $300,000.00
$600,000.00 or less, then the issuance of the obligation under this section contract or note is subject to the agency financing
reporting act, 2002 PA 470, MCL 129.171 to 129.177.
(2)
However, any projects in
which advances or loans are made by any
public corporation, the federal government, or any agency of the federal
government shall not be limited by this section. This
section shall apply to a drain or other project instituted pursuant to any
section in this act including a feasibility, practicability, environmental
assessment, or impact study.are
not subject to either the revised municipal finance act, 2001 PA 34, MCL
141.2101 to 141.2821, or the agency financing reporting act, 2002 PA 470, MCL
129.171 to 129.177.
(4)
(3) A county board of
commissioners by a majority vote of 2/3 of its members may pledge the full
faith and credit of a the county for the payment of a contract or note of the drainage district.
