North Dakota Code 40-33.2-08 – City powers
1. A city may by resolution of its governing body exercise any of the powers granted in this chapter to a municipal power agency, upon fulfillment of the conditions provided in this chapter for the exercise of the power, but without complying with the terms of section 40-33.2-03 relating to incorporation, and notwithstanding any provision of any city charter or any other law denying, limiting, or placing conditions upon the exercise of the power. Nothing in this section shall be construed to repeal any charter provision or law requiring an election or other condition precedent to the establishment after January 1, 1977, of a city electric energy distribution system.
Terms Used In North Dakota Code 40-33.2-08
- Contract: A legal written agreement that becomes binding when signed.
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Lien: A claim against real or personal property in satisfaction of a debt.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Person: means an individual, organization, government, political subdivision, or government agency or instrumentality. See North Dakota Code 1-01-49
- Precedent: A court decision in an earlier case with facts and law similar to a dispute currently before a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can show that it was wrongly decided or that it differed in some significant way.
- Property: includes property, real and personal. See North Dakota Code 1-01-49
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- Tort: A civil wrong or breach of a duty to another person, as outlined by law. A very common tort is negligent operation of a motor vehicle that results in property damage and personal injury in an automobile accident.
2. Every resolution adopted in accordance with subsection 1 shall be published in the official newspaper of the city. No action may be brought and no defense may be interposed in an action brought more than thirty days after publication of the resolution, placing at issue the validity of any provision of the resolution or the power of the city to make any contract or to issue any bond, note, or other obligation authorized thereby.
3. Nothing in this chapter authorizes any city to issue general obligation bonds for any purposes specified in this chapter without approval of its electors or performance of other procedural conditions as may be required by its charter or the laws of this state. Notwithstanding any limitation contained in section 40-05-05, a city may, by resolution of its governing body and without approval of the electors or performance of other conditions provided in any charter or other law, enter into contracts with a municipal power agency or any other person for the purchase, sale, exchange, or transmission of electric energy and other services, on the terms and for the period of time as the resolution may provide. A city may appropriate and use tax and other revenues received to make payments due or to comply with covenants to be performed under any contract made by the city pursuant to this section or when acting as a municipal power agency, or any contract made by the city with a municipal power agency, as contemplated by this chapter, subject to the provisions of its charter and the laws of this state regarding budget and payment procedures and annual tax levy limitations.
4. Any contract made by a city pursuant to this section or when acting as a municipal power agency, or any contract made by a city with a municipal power agency, as contemplated by this chapter, may provide for the purchase of all or a portion of the capacity or output of one or more designated projects and may provide that the city contracting shall be obligated to make the payments required by the contract whether or not a project is completed, operable, or operating, and notwithstanding the suspension, interruption, interference, reduction, or curtailment of the output of a project or the power and energy contracted for. The contract may also provide that payments under the contract shall not be subject to any reduction, whether by offset or otherwise. The contract need not be conditioned upon the performance or nonperformance by any other party to the contract, or to any similar contract for the same project, under the contract or under any other instrument. The contract may also provide, in the event of default by any party to the contract or to any similar contract for the same project in the performance of its obligations thereunder, for other parties to the contract or any similar contract for the project to succeed to the rights and interests and assume the obligations of the defaulting party, pro rata or otherwise, as may be agreed upon in the contract.
5. Any contract made by a city pursuant to this section or when acting as a municipal power agency, or any contract made by a city with a municipal power agency, as contemplated by this chapter, may provide that payments by a city under the contract shall be made solely from, and shall be secured by a pledge of and lien upon, the revenues derived by the city from the ownership and operation of the electric system of the city, and that payments shall be made as an operating expense of the electric system. The contract may provide that no obligation under the contract shall constitute a legal or equitable pledge, charge, lien, or encumbrance upon any property of the city or upon any of its income, receipts, or revenues, except the revenues of its electric system, and that neither the faith and credit nor the taxing power of the city are, or shall be, pledged for the payment of any obligation under the contract. The contract may provide that the city shall be obligated to fix, charge, and collect rents, rates, fees, and charges for the commodities or services sold, furnished, or supplied through its electric system sufficient to provide revenues adequate to meet its obligations under the contract and to pay any and all other amounts payable from or constituting a charge and lien upon revenues, including amounts sufficient to pay the principal of and interest on bonds of the city heretofore or hereafter issued for purposes related to its electric system. The municipal power agency may, either at law or in equity, by suit, action, mandamus, or other proceedings, enforce and compel the performance of any or all covenants or obligations of the city under the contract to be performed by the city or any officer thereof, including the fixing, charging, and collecting of rents, rates, fees, and other charges. Any pledge of revenues made by a city pursuant to this subsection shall be valid and binding from the date the pledge is made. The revenues pledged shall immediately be subject to the lien of the pledge without physical delivery or further act, and the lien of the pledge shall be valid and binding as against all parties having claims of any kind in tort, contract, or otherwise against the city without regard to whether the parties have notice. Neither the contract, pledge agreement, or trust agreement by which a pledge is created nor any financing statement, continuation statement, or other instrument relating thereto need be filed or recorded in any manner.