# Title 40 — Municipal Government

## Chapter 40-22 — Improvements by Special Assessment Method

### § 40-22-01. Power of municipalities to defray expense of improvements by special

assessments.
Any municipality, upon complying with the provisions of this chapter, may defray the
expense of any or all of the following types of improvements by special assessments:
1. The construction of a water supply system, or a sewerage system, or both, or any part
thereof, or any improvement thereto or extension or replacement thereof, including the
construction and erection of wells, intakes, pumping stations, settling basins, filtration
plants, standpipes, water towers, reservoirs, water mains, sanitary and storm sewer
mains and outlets, facilities for the treatment and disposal of sewage and other
municipal, industrial, and domestic wastes, and all other appurtenances, contrivances,
and structures used or useful for a complete water supply and sewerage system.
2. The improvement of the municipal street system and any part thereof, including any
one or more of the processes of acquisition, opening, widening, grading, graveling,
paving, repaving, surfacing with tar, asphalt, bituminous, or other appropriate material,
resurfacing, resealing, and repairing of any street, highway, avenue, alley, or public
place within the municipality, and the construction and reconstruction of overhead
pedestrian bridges, pedestrian tunnels, storm sewers, curbs and gutters, sidewalks,
and service connections for water and other utilities, and the installation, operation,
and maintenance of streetlights and all types of decorative streetlighting, including but
not restricted to Christmas streetlighting decorations.
3. The improvement of boulevards and other public places by the planting of trees, the
construction of grass plots and the sowing of grass seed therein, and the maintenance
and preservation of such improvements by the watering of such trees and grass, the
cutting of such grass, and the trimming of such trees, or otherwise in any manner
which may appear necessary and proper to the governing body of the municipality.
4. The acquiring of the necessary land and easements and the construction of the
necessary works, within and without the municipality, for flood protection of properties
within the municipality.
5. The acquiring or leasing of the necessary property and easements and the
construction of parking lots, ramps, garages, and other facilities for motor vehicles.
In planning an improvement project of a type specified in any one of the foregoing subsections,
the governing body may include in such plans any and all items of work and materials which in
its judgment are necessary or reasonably incidental to the completion of an improvement project
of such type.
### § 40-22-01.1. Restoration of property damaged in flood control or during a declared

disaster or emergency - Special assessments for costs.
When any city has constructed any temporary emergency flood control protection devices
or works to protect property located within a portion of a city from flood damage or expended
funds for the protection of the city from flood or other peril under chapter 37-17.1 or otherwise,
the city may maintain and remove material used in the construction of the temporary emergency
flood control protection devices or works and repair damages to land, buildings, or personal
property caused by the operation of its equipment upon the property while in the process of
installing or removing the temporary emergency flood protection systems. The city may create
by resolution of its governing board a special assessment district encompassing the protected
area. Special assessments against the property within the district must be imposed to cover the
costs incurred by the city in constructing and maintaining the emergency flood protection
devices or works and in removing the material used and in repairing the damages caused by the
operation of equipment while installing or removing the temporary emergency flood protection
systems. The amount to be assessed must be established by a resolution adopted by the
governing board. Special assessments against any property in the district must be determined
and made in the same manner as is provided for improvements by special assessments to the
extent consistent herewith, and the certification and collection, including lien provisions,

applicable to other special assessments are applicable hereto. Provided, however, that the
provisions of sections 40-22-15, 40-22-17, and 40-22-18, relating to a resolution of necessity
and protests against special assessments, sections 40-22-10, 40-22-11, and 40-22-29, relating
to engineers' reports, plans, and estimates, and section 40-22-19, relating to contract proposals,
do not apply to special assessment districts created under this section.
### § 40-22-01.2. Municipal policy providing special assessment determination methods for

allocation of assessments among and within classes of property.
Within five months of this section becoming applicable to a city, the governing body of each
city with a population exceeding ten thousand shall adopt written policies, after a public hearing
for consideration of the policies, which will be applied for cost allocation among properties
benefited by a special assessment project. Policies established under this section must provide
separately the policy that will be applied for cost allocation for each kind of special assessment
and the cost allocation method for residential, commercial, and agricultural property and for any
property subject to separate or special assessment factors or assessment rates.
### § 40-22-01.3. Power of municipality to defray expense of improvements - Infrastructure

fee.
1. Notwithstanding section 40-22-01, a municipality may levy and collect an infrastructure
fee. The fee must replace a general special assessment on all property for payment of
infrastructure maintenance costs through a utility bill issued by a municipality. The
money collected under this subsection may not be used for any purpose other than
infrastructure maintenance costs. If a municipality levies an infrastructure fee, the
municipality also may levy and collect green field special assessments.
2. As used in this section:
a. "General special assessments" means special assessments levied for the
purpose of maintaining existing roads and infrastructure and special assessments
levied for the construction or repair of arterial roads and infrastructure that
provide a benefit to the entire community.
b. "Green field special assessments" means special assessments levied for
infrastructure costs associated with the development of agricultural or
undeveloped property.
### § 40-22-02. Sewerage system - Establishment, maintenance, and alteration - Vote

required.
The governing body of any municipality may establish, maintain, and alter a general system
of sewerage for the municipality in such manner and under such regulations as it shall deem
expedient and proper. No action shall be taken for the establishment of a sewerage system
except upon the affirmative vote of two-thirds of the members of the governing body. When a
sewerage system is established, all measures necessary for the construction of sewers as a
part of that system may be taken by a vote of the majority of the governing body.
### § 40-22-03. Acquiring property for sewers, water mains, and water supply beyond

corporate limits.
When it is necessary to conduct the sewage of a municipality beyond the municipal limits or
to acquire a supply of water beyond such limits and to construct mains or aqueducts to conduct
such water to the municipal limits, the governing body, by grant, purchase, or condemnation
proceedings, may acquire private property over which to construct the sewer, or upon and over
which to establish facilities for obtaining and storing such water supply and aqueducts or mains
for conducting the same to the corporate limits. Public property may likewise be acquired for
such purposes by grant or purchase from the government or public corporation owning the
same. The cost of acquiring such property and of building such sewer or other facilities upon or
over the property may be included in the cost of construction or acquisition of a municipal
waterworks or sewerage system and in the special assessments levied therefor, or the entirety
of such a project may be completed as an improvement to an existing waterworks or sewage

system and special assessments may be levied therefor in accordance with the provisions of
this title.
### § 40-22-04. Discharge of sewage - Regulations governing.

Repealed by S.L. 1975, ch. 575, § 2.
### § 40-22-05. Condemnation of land and rights of way for special improvements - Taking

of possession - Trial - Appeal - Vacation of judgment.
Whenever property required to make any improvement authorized by this chapter is to be
taken by condemnation proceedings, the court, upon request by resolution of the governing
body of the municipality making such improvement, shall call a special term of court for the trial
of the proceedings and may summon a jury for the trial whenever necessary. The proceedings
shall be instituted and prosecuted in accordance with the provisions of chapter 32-15, except
that when the interest sought to be acquired is a right of way for the opening, laying out,
widening, or enlargement of any street, highway, avenue, boulevard, or alley in the municipality,
or for the laying of any main, pipe, ditch, canal, aqueduct, or flume for conducting water, storm
water, or sewage, whether within or without the municipality, the municipality may make an offer
to purchase the right of way and may deposit the amount of the offer with the clerk of the district
court of the county wherein the right of way is located, and may thereupon take possession of
the right of way forthwith. The offer shall be made by resolution of the governing body of the
municipality, a copy of which shall be attached to the complaint filed with said clerk of court in
accordance with section 32-15-18. The clerk shall immediately notify the owner or owners of the
land wherein the right of way is located of the deposit, by causing a notice to be appended to
the summons when served and published in said proceedings as provided in the North Dakota
Rules of Civil Procedure, stating the amount deposited or agreed in the resolution to be
deposited. The owner may thereupon appeal to the court by filing an answer to the complaint in
the manner provided in the North Dakota Rules of Civil Procedure, and may have a jury trial,
unless a jury be waived, to determine the damages. However, upon due proof of the service of
said notice and summons and upon deposit of the aggregate sum agreed in said resolution, the
court may without further notice make and enter an order determining the municipality to be
entitled to take immediate possession of the right of way. If under laws of the United States
proceedings for the acquisition of any right of way are required to be instituted in or removed to
a federal court, the proceedings may be taken in that court in the same manner and with the
same effect as provided in this section and the clerk of the district court of the county in which
the right of way is located shall perform any and all of the duties set forth in this section, if
directed to do so by the federal court. The proceedings shall be determined as speedily as
practicable. An appeal from a judgment in the condemnation proceedings shall be taken within
sixty days after the entry of the judgment, and the appeal shall be given preference by the
supreme court over all other civil cases except election contests. No final judgment in the
condemnation proceedings awarding damages to property used by a municipality for street,
sewer, or other purposes shall be vacated or set aside if the municipality shall pay to the
defendant, or shall pay into court for the defendant, in cash, the amount so awarded. The
municipality may levy special assessments to pay all or any part of the judgment and at the time
of the next annual tax levy may levy a general tax for the payment of the part of the judgment as
is not to be paid by special assessment. For the purpose of providing funds for the payment of
the judgment, or for the deposit of the amount offered for purchase of a right of way as provided
above, the municipality may issue warrants on the fund of the improvement district as provided
in section 40-24-19, in anticipation of the levy and collection of special assessments and of any
taxes or revenues to be appropriated to the fund in accordance with the provisions of this title.
The warrants may be issued upon the commencement of the condemnation proceedings or at
any time thereafter. Upon the failure of the municipality to make payment in accordance with this
section, the judgment in the condemnation proceedings may be vacated.

### § 40-22-06. Agreement with state agency, county, water resource district, or federal

agency for certain improvements.
Any municipality in this state, through its governing body, may enter into an agreement with
any state agency, the board of county commissioners, or water resource board of the county in
which the municipality is located, or a joint water resource board which jurisdiction includes the
municipality, or any federal agency, or any combination thereof, for the improvement of streets,
sewers, water mains, flood control projects, or of any of such facilities, under the terms of which
the contract for such work is to be let by the state agency, the board of county commissioners,
water resource board, joint water resource board, the federal agency, or any combination
thereof, and for this purpose may create a special improvement district or districts. No such
agreement may be entered into until and unless the governing body certifies that it has obtained
authority in accordance with this section to issue improvement warrants to finance the amount
that the municipality will be obligated to pay thereunder, over and above the amount of any
bonds which have been voted and any other funds which are on hand and properly available for
such purpose. If any portion of the cost is to be paid by the levy of special assessments, the
governing body shall by resolution declare the necessity of the improvement, setting forth its
general nature, the approximate amount or fraction of the cost which the municipality will be
obligated to pay under the agreement, and the fact that this amount, or such lesser amount as
the governing body may specify, is proposed to be paid by the levy of special assessments
upon property determined to be benefited by the improvement. Any portion of the cost for which
the municipality is obligated and which is not assessed upon benefited property or paid from
other funds may be agreed to be paid by general taxation of all the taxable property in the
municipality, if approval for the incurring of such debt is obtained and provision for the payment
thereof is made in accordance with section 40-24-10. The resolution of necessity must be
published once each week for two consecutive weeks in the official newspaper of the
municipality and protests may be filed and their sufficiency to bar the improvement must be
determined in accordance with sections 40-22-16 through 40-22-18. However, if under the terms
of the resolution of necessity the portion of the cost of the project to be assessed upon benefited
property does not exceed twenty-five percent of the total cost to be paid by the state agency,
county, water resource board, joint water resource board, federal agency, and municipality,
written protests by the owners of seventy-five percent of the property liable to be assessed for
the improvement shall be required to bar further proceedings with reference thereto. At any time
after the period for filing protests has expired and the protests filed, if any, have been heard and
determined to be insufficient, the governing body may issue warrants on the fund of the
improvement in the total amount for which the municipality is obligated under the agreement,
and may cause to be certified to the special assessment commission that portion of the cost to
be borne by the property owners within the district, and the assessment of such amount may be
made and such warrants may be issued as in other cases provided for in chapters 40-23 and
40-24.
### § 40-22-06.1. Cities with population of over ten thousand may enter into agreement with

highway department or county for certain improvements.
Repealed by S.L. 1963, ch. 294, § 2.
### § 40-22-07. Dispensing with preliminary requirements in making improvements in

conjunction with highway department or county.
Repealed by S.L. 1963, ch. 294, § 2.
### § 40-22-08. Improvement districts to be created.

For the purpose of making an improvement project of one of the types specified in section
water districts, sewer districts, water and sewer districts, street improvement districts, boulevard
improvement districts, flood protection districts, and parking districts, and may extend any such
district when necessary. The appropriate special improvement district may be created by
ordinance or resolution. The district shall be designated by a name appropriate to the type of

improvement for the making of which it is created, and by a number distinguishing it from other
improvement districts. Nothing herein, however, shall prevent a municipality from making and
financing any improvement and levying special assessments therefor under any alternate
procedure set forth in this title.
### § 40-22-09. Size and form of improvement districts - Regulations governing.

Any improvement district created by a municipality may embrace two or more separate
property areas. Each improvement district shall be of such size and form as to include all
properties which in the judgment of the governing body, after consultation with the engineer
planning the improvement, will be benefited by the construction of the improvement project
which is proposed to be made in or for such district, or by any portion or portions of such
project. A single district may be created for an improvement of the type specified in any one of
the subsections of section 40-22-01, notwithstanding any lack of uniformity among the types,
items, or quantities of work and materials to be used at particular locations throughout the
district. The jurisdiction of a municipality to make, finance, and assess the cost of any
improvement project shall not be impaired by any lack of commonness, unity, or singleness of
the location, purpose, or character of the improvement, or by the fact that any one or more of
the properties included in the district is subsequently determined not to be benefited by the
improvement, or by a particular portion thereof, and is not assessed therefor. There may be
omitted from a water or sewer district, in the discretion of the governing body, properties within
the corporate limits which are benefited by the improvement therein but do not abut upon a
water or sewer main, without prejudice to the right and power of the municipality subsequently
to assess such properties to the extent and in the manner permitted by law. The governing body
may by resolution enlarge an improvement district in which an improvement is proposed or
under construction upon receipt of a petition therefor signed by the owners of three-fourths of
the area to be added to the district.
### § 40-22-10. Engineer's report required - Contents.

1. After a special improvement district has been created, the governing body of a
municipality, if the governing body deems it necessary to make any of the
improvements set out in section 40-22-01 in the manner provided in this chapter, shall
direct the engineer for the municipality, or some other competent engineer if the
municipality does not have a competent municipal engineer, to prepare a report as to
the general nature, purpose, and feasibility of the proposed improvement and an
estimate of the probable cost of the improvement, including:
a. A separate statement of the estimated cost of the work for which proposals must
be advertised under section 40-22-19; and
b. A separate statement of all other items of estimated cost not included under
subsection 1 which are anticipated to be included in the cost of the improvement
under sections 40-23-05 and 40-23.1-04.
2. An engineer's report under this section also must include information describing how
the special assessment district was created including any considerations as to which
properties are determined to receive a benefit from the proposed improvement.
### § 40-22-11. Approval of plans, specifications, and estimates - Approval establishes

grade of street.
At any time after receiving the engineer's report required by section 40-22-10, the governing
body may direct the engineer to prepare detailed plans and specifications for construction of the
improvement. The plans and specifications shall be approved by a resolution of the governing
body of the municipality. If the plans and specifications include the establishment of the grade of
a street and such grade has not been established previously by ordinance, the resolution
approving the plans, specifications, and estimates shall constitute an establishment of the
grade.

### § 40-22-12. Requirements of plans, specifications, and estimates when improvement is

paving or beautification of streets.
If an improvement to be financed by special assessments consists in paving or repaving
any street, alley, or public place, the governing body of the municipality may require the plans,
specifications, and estimates for the improvement to be made for one kind of pavement or
several different kinds of pavement as it may deem advisable. If the contemplated improvement
consists of planting trees, constructing grass plots, sowing grass seed thereon, or otherwise
parking or beautifying any of the streets, highways, avenues, alleys, lanes, or other public
grounds within the municipal limits, the governing body may require the plans, specifications,
and estimates to show the probable costs of making, constructing, or maintaining such
improvements or any of them.
### § 40-22-13. Municipal engineer to retain copy of plans, specifications, and estimates -

Sale of copies.
The engineer acting for the municipality shall retain a copy of the plans, specifications, and
estimates which have been prepared for any improvement on file in the engineer's office. The
engineer shall furnish to any person applying therefor copies of the same, and, if the engineer is
an officer of the municipality, the engineer may charge one dollar an hour for the time
necessarily employed in making such copies.
### § 40-22-14. Plans, specifications, and estimates filed in office of city auditor.

The plans, specifications, and estimates shall be the property of the municipality and shall
be filed in the office of the city auditor and shall remain on file in the city auditor's office subject
to inspection by any interested person.
### § 40-22-15. Resolution declaring improvements necessary - Exception for sewer and

water improvements - Contents of resolution - Publication of resolution.
After the engineer's report required by section 40-22-10 has been filed and approved, the
governing body of the municipality, by resolution, shall declare that it is necessary to make the
improvements described therein. However, a resolution is not required if the improvement
constitutes a water or sewer improvement as described in subsection 1 of section 40-22-01, nor
if the governing body determines by resolution that a written petition for the improvement,
signed by the owners of a majority of the area of the property included within the district, has
been received. The resolution must refer intelligibly to the engineer's report and include a map
of the municipality showing the proposed improvement districts. The resolution must then be
published once each week for two consecutive weeks in the official newspaper of the
municipality.
### § 40-22-16. Sewer or water improvements and parking lots in municipalities may be

paid for by service charges.
A municipality constructing a sewer or water improvement or a parking lot under the special
assessment method may resolve in the resolution or ordinance required by section 40-22-08 in
the case of a sewer or water improvement, or in the resolution required by section 40-22-15 in
the case of a parking lot, that a portion of the cost of the improvement shall be raised by service
charges for the use of the improvement, and of the utility or parking system of which it forms a
part. If the municipality so resolves, it may determine, in its resolutions, ordinances, and other
proceedings relating to the levying of special assessments and the issuing of warrants to pay
the cost of such improvement, that a specified portion or all of such cost shall be assessed
specially against any property specially benefited and may cause to be assessed only the
portion so determined. In such event the entire remainder of such cost, including interest as well
as principal of any warrants issued, over and above the amount of special assessments actually
collected and received from time to time in the fund of the improvement district, plus any general
taxes pledged in accordance with section 40-24-10 and similarly collected and received, shall
be paid from the net revenues derived from said service charges; provided, that nothing herein
shall affect the power and duty of the governing body to levy a tax for the payment of a

deficiency in the improvement district fund at the times and under the conditions set forth in
section 40-26-08. All of the applicable provisions of this title relating to special assessments
shall be applicable to such improvements except as to the portion of the cost thereof resolved or
ordained to be paid by service charges. The governing body of the municipality shall provide for
the establishment, imposition, and collection of service charges for the services furnished by
such improvement and the utility or parking system of which it forms a part, and in connection
therewith it shall have all the rights and powers respecting such service charges as it would
have with respect to like matters if such improvement were made in accordance with chapter
40-35. The net revenues derived from the imposition and collection of such service charges, or
such portion thereof as shall be determined by the governing body in said resolutions and
ordinances, shall be paid into the appropriate improvement district funds created pursuant to
section 40-24-18. Such revenues when collected shall be used and applied in the same manner
as moneys paid into such funds from the collection of special assessments. In its resolutions
and ordinances, the governing body of any municipality issuing warrants to finance any such
improvement may establish an assessment reserve in the fund of the improvement district, to
which it may appropriate net revenues of the utility or system from time to time received in
excess of amounts required, with special assessments and taxes then on hand, to meet the
principal and interest next due on such warrants. Prior to November first of any year, the
governing body may by resolution determine the proportion which the amount then on hand in
said assessment reserve, and irrevocably appropriated to the payment of said warrant, bears to
the aggregate amount of the installment of the special assessments and taxes levied for the
improvement which is payable in the following year, including interest thereon, and the
governing body may direct the county auditor to reduce, by not more than a proportionate
amount, the total of such installment and interest which would otherwise be placed upon the tax
list of the municipality for the current year, against each lot and tract of land assessed or taxed
for the improvement. If such installment of the special assessment on any property has been
prepaid, the governing body may direct the city auditor to refund, out of the assessment reserve,
to the owner of the property at the time of such refund as indicated in the records of the recorder
of the county, a sum not exceeding a similar proportion of the principal amount of such
installment, excluding interest.
### § 40-22-17. Protest against resolution of necessity - Meeting to hear protest.

If, within thirty days after the first publication of the resolution declaring the necessity of an
improvement project of the type specified in any one of the subsections of section 40-22-01, the
owners of any property within the improvement district file written protests describing the
property which is the subject of the protest with the city auditor protesting against the adoption
of said resolution, the governing body of the municipality, at its next meeting after the expiration
of the time for filing such protests, shall hear and determine the sufficiency thereof.
### § 40-22-18. Protest bar to proceeding - Invalid or insufficient protests - Payment of

costs - Tax levy.
If the governing body finds the protests to contain the names of the owners of a majority of
the area of the property included within the improvement district, the protests shall be a bar
against proceeding with any special assessment for the improvement project. However, the
protests do not bar proceeding with the improvement project described in the plans and
specifications if the governing body funds the project with funds other than special
assessments. If the governing body finds the protests to contain the names of the owners of a
majority of any separate property area included within the district, the protests shall be a bar
against proceeding with special assessments to be assessed in whole or in part upon property
within the area, but shall not bar against proceeding with the improvement project or assessing
the cost thereof against other areas within the district, unless the protests represent a majority
of the area of the entire district. If the protests represent a majority of the area of the entire
district, the protests bar any special assessment for the improvement project. Property owned
by a political subdivision is not included when determining whether the protests contain the
names of the owners of a majority of the area included within the improvement district or a
separate property area unless the political subdivision filed a protest.

The termination of proceedings, by reason of protest or otherwise, shall not relieve the
municipality of responsibility for payment of costs theretofore incurred and for payment of the
costs a municipality may, if funds on hand and available for the purpose are insufficient, issue its
certificates of indebtedness or warrants, or levy a tax which shall be considered a tax for a
portion of the cost of a special improvement project by general taxation within the meaning of
section 57-15-10. If the protests are found to be insufficient or invalid, the governing body may
cause the improvement to be made and may contract or otherwise provide in accordance with
this title for the construction thereof and the acquisition of property required in connection
therewith and may levy and collect assessments therefor.
### § 40-22-19. Contract proposals.

Proposals for the work of making improvements provided for in this chapter must be
advertised for by the governing body in the official newspaper of the municipality once each
week for two consecutive weeks. All other provisions for proposals under this chapter are
governed by chapter 48-01.2.
### § 40-22-20. Bid to be accompanied by a bond - Bond retained upon failure of bidder to

contract - Amount of bond.
Repealed by S.L. 1995, ch. 443, § 29.
### § 40-22-21. Bidder's bond - Required - Amount.

Repealed by S.L. 1971, ch. 403, § 2.
### § 40-22-22. Execution of bidder's bond.

Repealed by S.L. 1995, ch. 443, § 29.
### § 40-22-23. Conditions of bidder's bond.

Repealed by S.L. 1995, ch. 443, § 29.
### § 40-22-24. Bids - Filing - Sealing - Endorsing - Opening - Considering.

Repealed by S.L. 1995, ch. 443, § 29.
### § 40-22-25. Opening of bids - Bids to be entered on minutes - Final action on bids to be

deferred.
Repealed by S.L. 1995, ch. 443, § 29.
### § 40-22-26. Petition by property owners to have paving of certain material - Contents.

If the governing body has called for bids on more than one kind of pavement, after the
opening of the bids in connection with an improvement consisting of paving or repaving and
before the meeting of the governing body to consider the same, the owners of a majority of the
property liable to be specially assessed for such paving or repaving may file a written petition
with the city auditor indicating that the petitioners have a preference for a certain type of paving
or paving material for which bids have been invited. Upon receiving such petition, it shall be
obligatory upon the governing body to cause the paving or repaving to be constructed of a kind
of paving material indicated in the petition. The petition may consist of a single petition or
several separate petitions signed by the owners of a majority of the property liable to be
specially assessed for such improvement or by their authorized agents.
### § 40-22-27. Rejection of bids - Readvertising for bids or construction by municipality

without contract - Re-evaluation of project.
Repealed by S.L. 1995, ch. 443, § 29.

### § 40-22-28. Determination of kind of paving after bids are considered.

If the contemplated improvement consists of paving or repaving, the governing body, after it
has opened and considered the bids, shall determine by resolution the kind or kinds of
pavement to be laid, and thereafter may proceed to award the necessary contract or contracts.
### § 40-22-29. Engineer's statement of estimated cost required - Governing body to enter

into contracts.
Before adopting or rejecting any bid filed under the provisions of this chapter, the governing
body shall require the engineer for the municipality to make a careful and detailed statement of
the estimated cost of the work for which proposals were advertised under section 40-22-19. The
governing body may not award the contract to any bidder if the engineer's estimate prepared
pursuant to this section exceeds the engineer's estimate of the cost of the work prepared
pursuant to subsection 1 of section 40-22-10 by forty percent or more.
### § 40-22-30. Contractor's bond - Execution.

Repealed by S.L. 1995, ch. 443, § 29.
### § 40-22-31. Conditions of contractor's bond.

Repealed by S.L. 1995, ch. 443, § 29.
### § 40-22-32. Approval of bonds - Return of bidder's bond.

Repealed by S.L. 1995, ch. 443, § 29.
### § 40-22-33. Failure to execute contractor's bond.

Repealed by S.L. 1995, ch. 443, § 29.
### § 40-22-34. Insufficiency of bonds - New bonds required - Failure to furnish.

Repealed by S.L. 1995, ch. 443, § 29.
### § 40-22-35. Execution and filing of contract.

All contracts entered into for any work provided for in this chapter shall be entered into in
the name of the municipality and shall be executed on the part of the municipality by the
executive officer and countersigned by the auditor. After the contract is signed by the contractor,
it shall be filed in the office of the city auditor.
### § 40-22-36. Contracts - Conditions and terms.

A contract let under the provisions of this chapter shall require the work to be done pursuant
to the plans and specifications on file in the office of the city auditor, subject to the approval of
the engineer acting for the municipality, and shall provide further:
1. That the governing body shall have the right to suspend the work at any time for
improper construction and to relet the contract therefor or to order a reconstruction of
the work as to any part thereof improperly done.
2. The time within which the work shall be completed.
3. The period of time for which the work shall be guaranteed as to workmanship and
materials.
4. The fund from which the contract price is to be paid by the municipality.
5. That the consideration expressed in the contract is payable only in warrants drawn on
the fund described in the contract.
6. That the municipality assumes and incurs no general liability under such contract.
7. That failure of the engineer to reject work and materials which are not up to
specifications and acceptance of the job by the engineer shall not release the
contractor from liability for any failure on the contractor's part to perform work or
furnish materials in accordance with the plans and specifications.
The engineer acting for the municipality shall supervise and inspect the work during its
progress. In addition to any rights which a municipality may have under its contract for

construction of part or all of an improvement after a contract has been awarded and before work
thereunder has been completed a municipality may, with the consent of the contractor and
without advertising for bids, order additional work done by that contractor of the same character
as that which was contracted for, whether within or without the improvement district for which
the original contract was made, and upon the same terms and conditions specified in the
original contract except as to time of performance, and at the same prices for the additional
work provided that the total price payable to the contractor for such additional work shall not
exceed twenty percent of the amount estimated by the engineer for the municipality to be
payable for that character of work under the original contract.
### § 40-22-37. Contractor shall be paid during progress of work - Retainage - Failure to

pay - Rate of interest - Investment of retainage.
If the contractor to whom a contract is let properly performs the work therein designated, the
governing body, at least once in each calendar month during the continuance of such contract
work, shall meet, receive, and consider estimates furnished by the agent, engineer, or architect
acting for the municipality or if not so furnished, then by the contractor, and shall allow such
estimates in an amount of the estimated value of the labor and material furnished upon such
contract, and of the material then upon the ground for use in such contract, subject to retentions
equal to ten percent of each estimate presented until such time as the project is fifty percent
completed, with no further retainage on estimates during the continuance of the contract. The
governing body may, however, upon completion of ninety-five percent of the contract according
to the estimates, pay to the contractor ninety-five percent of the amount retained from previous
estimates. Any amount retained after ninety-five percent completion of the contract shall be paid
to the contractor in such amounts and at such times as are approved by the municipality, upon
estimates by its agent, engineer, or architect or the contractor, with final payment of all moneys
due to the contractor to be made immediately following completion and acceptance of the
project. The governing body, immediately after considering and allowing any such estimate,
shall certify and forward the same to the city auditor or other official having the power to draw
warrants, who forthwith shall draw a warrant upon the proper fund and transmit the same
promptly to the contractor entitled thereto. In case the governing body shall fail or neglect to
receive and allow such estimate or certify any estimate or final payment upon completion and
acceptance or the proper officer required to issue such warrant shall fail or neglect to issue a
warrant as provided herein, for a period of more than thirty days from the date of such estimate
or completion date, then said estimate or final payment, together with any retainage properly
payable, shall draw interest from its date at the rate per annum of two percentage points below
the Bank of North Dakota prime interest rate as set thirty days from the date of such estimate or
completion date until the issuance of a proper warrant therefor. Such interest shall be computed
and added to the face of said estimate, final payment, or retainage by the officer required to
issue such warrant, shall be included in the warrant when drawn, and shall be charged to the
fund from which payment for the improvement is to be made. On the amounts of estimates
retained, as provided herein, the governing board, authorized committee, or public body in
charge of such work may invest or deposit the retained amounts in any financial association or
institution in North Dakota earning interest or dividends for the benefit of the contractor. Any
amounts so invested or deposited shall remain in the name of the governing board, authorized
committee, or public body in charge of such work until final payment of all money due to the
contractor is to be made. Further, no contractor shall use such account in any manner
whatsoever until released and received by the contractor upon completion of the contract.
### § 40-22-38. Application of chapter to waterworks and water mains - Acquisition of

waterworks, sewage treatment and disposal plants, and sewer systems.
The provisions of this chapter relating to water mains and waterworks apply only to
municipalities that own or contemplate owning a system of waterworks and water mains. In case
of the purchase of a waterworks system or of a sewage treatment or disposal plant or of a
system of sewers, either by eminent domain proceedings subject to chapter 32-15, or otherwise,
a municipality may create improvement districts, direct the preparation of plans and
specifications, adopt a resolution declaring the purchase of such facilities necessary, and take

all other proceedings prescribed by this chapter which would be taken in case of the
construction of such facilities by the municipality itself for the purpose of defraying the cost
thereof by special assessment of the property benefited thereby. The property benefited may be
specially assessed for the purchase of such facilities, either separately or as a part of a new
system, the same as if said facilities were constructed entirely anew.
### § 40-22-39. Abbreviations, letters, or figures may be used in proceedings for levy and

collection of special assessments.
In all proceedings for the levy and collection of special assessments, abbreviations, letters,
and figures may be used to denote additions, lots, lands, blocks, sections, townships, ranges,
and parts thereof, years, days of the month, and amounts of money.
### § 40-22-40. City auditor to keep complete record of improvements - Record as

evidence.
The city auditor shall keep in the city auditor's office a complete record of all the
proceedings taken in the matter of making any improvements under this chapter. Such record
shall include all reports and the confirmations thereof, all petitions, orders, appointments of
commissioners, notices and proofs of publications, and resolutions of the governing body. Such
record, a certified transcript thereof, or the original papers, proofs of publications, orders, or
resolutions on file in such office shall be admitted in evidence in any court or place in this state
without further proof as evidence of the facts therein contained.
### § 40-22-41. Validation.

Repealed by omission from this code.
### § 40-22-42. Confirmation of certain proceedings for city and village improvements.

Repealed by omission from this code.
### § 40-22-43. Defects and irregularities in improvement proceedings are not fatal.

Defects and irregularities in any proceedings had or to be had under this chapter relating to
municipal improvements by the special assessment method, when the proceedings are for a
lawful purpose and are unaffected by fraud and do not violate any constitutional limitation or
restriction, shall not invalidate such proceedings, and no action shall be commenced or
maintained and no defense or counterclaim in any action shall be recognized in the courts of
this state founded on any such defects or irregularities in such proceedings, unless commenced
within thirty days of the adoption of the resolution of the governing board awarding the sale of
warrants to finance the improvement.
### § 40-22-44. Discontinuance of municipal parking lots.

The governing body of a municipality may, if it deems it in the best interests of the
municipality, discontinue the operation of a municipal parking lot when there exists a higher and
better use for the property. If any portion of the cost of such parking lot has been paid for by
special assessment, the governing body shall, prior to making any determination to discontinue,
hold a public hearing concerning the continuance or discontinuance of such parking lot. The
governing body shall cause to be published once each week for two consecutive weeks in the
official newspaper of the municipality a notice of the time when and the place where the
governing body will meet to conduct the hearing required by this section. If the governing body,
after public hearing, determines that the parking lot may be put to a higher and better use, the
governing body is hereby authorized to take the necessary steps to effectuate that use. For this
purpose, the governing body is authorized to, but not limited to, enter into and complete
negotiations for the sale of the parking lot in question.
### § 40-22-45. Equalization of original assessment.

Whenever any portion of the cost of a parking lot which is to be discontinued has been paid
for by special assessment, the useful life of the parking lot shall be determined by the governing

body. If the period of time determined to be the useful life of the parking lot has not completely
elapsed, the governing body of the municipality shall direct the cancellation of uncollected
installments of special assessments previously levied for the same improvement, and the refund
of installments paid, plus interest calculated at four and one-half percent per annum on the
refunded prepaid installments, from the general fund of the municipality to the extent determined
by it to be necessary to make the original assessments and the subsequent assessments bear
as nearly as possible the same relation to the total benefits derived from the improvement by
the respective properties assessed.
### § 40-22-46. Payment of outstanding warrants - Deposits of surplus in general fund -

General fund liable for any outstanding warrants.
Upon the discontinuance of any municipal parking lot under the authority of sections
property, if such property is sold, to the special assessment fund created to bear the cost of
creating the parking lot. If there is any surplus after all of the outstanding special assessment
warrants or bonds are redeemed, the surplus shall be transferred to the general fund of the
municipality. If the proceeds from the sale of such property, if such property is sold, are
insufficient to cover the cost of redeeming the outstanding special assessment warrants or
bonds, the governing body shall provide for the payment of said warrants or bonds out of the
general fund of the municipality.
