Sec. 10-111. - Short title of article.

This article may be cited as "Wilmington Sewer Revenue Bond Act of 1949."

(47 Del. L. ch. 269, § 1)

Sec. 10-112. - Definitions.

Whenever used in this article, unless a different meaning clearly appears from the context:

(a)

The term "undertaking" shall mean plants, properties, works, systems, or facilities, or any part thereof, used or useful in connection with the collection, treatment and disposal of sewage, waste, garbage and storm water.

(b)

The term "municipality" shall mean the City of Wilmington, a municipal corporation of the State of Delaware.

(c)

The term "governing body" shall mean the council of the City of Wilmington.

(47 Del. L. ch. 269, § 2)

Sec. 10-113. - Declaration of policy.

It is hereby declared to be the policy of this state that to provide benefits to the public health and welfare by the abatement, prevention or reduction of pollution of the rivers, waters and streams of this state, any municipality planning, acquiring, purchasing, constructing, reconstructing, improving, bettering or extending an undertaking pursuant to this article, shall manage such undertaking in the most efficient manner consistent with sound economy and public advantage to the end that such pollution shall be reduced, prevented or abated and that the services of the undertaking shall be furnished to consumers at the lowest possible cost.

(47 Del. L. ch. 269, § 3)

Sec. 10-114. - Additional powers of municipality.

In addition to the powers which it may now have, the municipality shall have power under this article: (a) To plan, construct, acquire by gift, purchase, or the exercise of the right of eminent domain, reconstruct, improve, better or extend any undertaking, within or without the municipality, or partially within or partially without the municipality, and to acquire by gift, purchase, or the exercise of the right of eminent domain, lands or rights in land or water rights in connection therewith; (b) to operate and maintain any undertaking and furnish the services, facilities and commodities thereof for its own use and for the use of public and private consumers within or without the territorial boundaries of such municipality; (c) to enter into and perform contracts, whether long term or short term, with any industrial establishment for the provision and operation by a municipality of the undertaking to abate or reduce the pollution of waters caused by discharges of industrial wastes by the industrial establishment and the payment periodically by the industrial establishment to the municipality of amounts at least sufficient, in the determination of the governing body, to compensate the municipality for the cost of providing (including payment of principal and interest charges, if any), and of operating and maintaining the undertaking or part thereof serving such industrial establishment; (d) to issue its bonds to finance, either in whole or in part, the cost of the planning, acquisition, purchase, construction, reconstruction, improvement, betterment or extension of any undertaking; (e) to prescribe and collect rates, fees, [and] charges for the services, facilities and commodities furnished by such undertaking; (f) to pledge to the punctual payment of said bonds and interest thereon an amount of the revenues of such undertaking (including the revenues of the existing facilities, if any, comprising an undertaking which is being improved, bettered, or extended, and the revenues to be derived from any improvements, betterments, extensions thereafter constructed or acquired), or of any part of such undertaking, sufficient to pay, on either equal or priority basis, said bonds and interest as the same shall become due and to create and maintain reasonable reserves therefor, which amount may consist of all or any part or portion of such revenues; and (g) to accept from any authorized agency of the state or the federal government, or from persons, firms, or corporations, grants or contributions for the planning, construction, acquisition, lease, reconstruction, improvement, betterment or extension of the undertaking and to enter into agreements with such agency respecting such loans and grants. The governing body of the municipality in determining the cost of acquiring or constructing any undertaking may include all costs and estimated costs of the issuance of said bonds, all planning, engineering, inspection, fiscal and legal expenses, and interest which it is estimated will accrue during the construction period and for six months thereafter or money borrowed or which it is estimated will be borrowed pursuant to this article.

(47 Del. L. ch. 269, § 4)

Sec. 10-115. - Eminent domain.

Whenever the city, acting by and through the agency of the department of public works, cannot agree with the owner or owners for the purchase of any land, building, franchise, easement, or other property necessary to be taken or used for the construction, reconstruction, improvement, betterment, extension, operation and maintenance of plants, properties, works, systems or facilities for the collection, treatment and disposal of sewage, waste, garbage and storm water the said city, acting by and through the agency of the department of public works, may apply to the associate judge of the state, resident in the county, for the condemnation of such land, building, franchise, easement, or other property necessary as aforesaid, first giving to the owner or the owners of said property at least five days' notice in writing of the intended application. If such owner or owners are within the state, and if said party or owner is unknown or without the state, or if under legal disability and having no legal representative in the state, then such notice shall be published in some newspaper in the county at least five days prior to the intended application, and such publication shall be sufficient notice; upon application made as aforesaid, the said associate judge shall appoint five judicious and impartial freeholders to view the premises or ascertain the easement or franchise, and assess the damages which the owner or owners will sustain by reason of the taking of such land, building, franchise, easement, or other property necessary to be taken or used for the construction, reconstruction, improvement, betterment, extension, operation and maintenance of plants, properties, works, systems or facilities for the collection, treatment and disposal of sewage, waste, garbage and storm water. The freeholders shall be sworn or affirmed before some officer authorized to administer oaths or affirmations, before entering on the premises or before ascertaining the easement or franchise, faithfully and impartially to perform the duties assigned them. They shall give ten days' notice, in writing, to the owner or owners of the premises or property so proposed to be condemned or to their guardian or guardians, duly appointed, if within the state and to the said city of the time of their meeting to view the premises or ascertain the easement or franchise; if the owner or owners are unknown or are without the state or if under legal disability and having no legal representative in the state, publication of such last mentioned notice shall be made in some newspaper in the county at least ten days prior to the said meeting, and such publication shall be sufficient notice thereof. The said commissioners shall keep a record of their proceedings with their findings and awards and return the same to the prothonotary of the county, and shall certify their findings and awards to the owner or owners of the property and to the city; if the city or any party in interest is dissatisfied with such findings or awards, it or he may, on application to said prothonotary within fifteen days after such findings and awards have been made and filed, sue out a writ of ad quod damnum, requiring the sheriff of said county, in the usual form, to inquire of twelve impartial men of his bailiwick of the damages which will be sustained as aforesaid, and their report shall be final. The said commissioners or the said jury shall, in assessing the damages aforesaid, take into consideration the benefits and advantages to the owner or owners resulting from the proposed improvement and set off the value of such benefits or advantages against the loss, detriment and disadvantages, which such owner will suffer, provided that in no case shall the amount estimated as and for benefits and advantages exceed the amount allowed for loss, detriment or disadvantage to such owner. The amount of damages being ascertained, the city may pay or tender the amount thereof within two months after the same shall have been so ascertained, to the person or persons so entitled thereto, or, if the person or persons so entitled refuse to accept or reside out of or are absent from the county during all or any part of said period of two months, the same may be deposited to his credit in the Farmers' Bank of the State of Delaware, within said time, and thereupon said property may be taken and occupied for the use and purpose for which it was condemned, provided that the city, in its discretion, after it has made application as aforesaid for the condemnation of property, may occupy or use such property without delay, and the proceedings for the ascertainment of the damages shall proceed as in this section provided, but in the event of such immediate use or occupation as last aforesaid, the city shall pay to the owner or owners thereof if within the state, or if such owner or owners refuse to accept the amount of damages or are without the county, deposit to his or their credit in the said bank as aforesaid, within twenty days after the damages have been ascertained, the amount thereof, provided that no application has been made to the said prothonotary suing out a writ of ad quod damnum, as herein above provided. The expenses of the assessment by the said commissioners of the damages aforesaid, of the fees of the said sheriff and prothonotary and of all costs incurred in the execution of the writ of ad quod damnum, shall in all cases be paid by the city. The said judge shall have power to fill any vacancy in any commission and thereafter the commission shall proceed as though no vacancy had occurred.

In addition to manner of condemnation of property in this section provided, the said city, acting by and through the agency of the directors of the department of public works, shall have the right to condemn any property in this article mentioned for the purposes of this article, in the same manner as fully as the said city might or could condemn any property under the provisions of section 116, chapter 207, Volume 17, Laws of Delaware. When any property shall be acquired by eminent domain, the title to such property shall be in the city.

After the directors of the department of public works have determined upon the land, buildings, franchise, easement or other property necessary to be taken or used for the construction, reconstruction, improvement, betterment, extension, operation and maintenance of plants, properties, works, systems or facilities for the collection, treatment and disposal of sewage, waste, garbage and storm water, it may cause notice thereof to be sent by mail, a record of which shall be preserved, to all persons owning any land, buildings, franchise, easement or other property necessary to be taken for the purposes aforesaid, and any such owner or the legal representative of any such owner who, after any such notice has been given, shall construct any building or in any manner improve or add to any building on any land, franchise, easement or other property necessary to be taken for the purposes aforesaid, shall be allowed no compensation for such building, improvement or addition, upon the condemnation thereof, or the land upon which it is situated, unless such owner shall serve legal notice upon the directors of the department of public works within three months from the time he received such notice that he claims damages by the reasons of the provisions of this paragraph, in which event the city, by the agency aforesaid, may apply, as hereinabove provided, for the ascertainment of such damages so claimed by such owner. Nothing in this section shall be construed to authorize the condemnation of any land, building, franchise, easement, or other property of a public utility used by it in providing its service to the public.

(48 Del. L. ch. 132, § 1; 53 Del. L. ch. 12, § 2)

Sec. 10-115A. - Acquisition by eminent domain.

(a)

The policy of the provisions of this chapter pertaining to eminent domain is to ensure that eminent domain is used for a limited, defined public use. Public use does not include the generation of public revenues, increase in tax base, tax revenues, employment or economic health, through private land owners or economic development.

(b)

Notwithstanding any other provision of law, neither this State nor any political subdivision thereof nor any other condemning agency, including an agency as defined in § 9501(b), shall use eminent domain other than for a public use, as defined in § 9501A(c) of Title 29.

(c)

The term 'public use' shall only mean (1) the possession, occupation, or utilization of land by the general public or by public agencies (including authorized passive agency uses such easements that may restrict private land use); (2) the use of land for the creation or functioning of public utilities, electric cooperatives, or common carriers, or (3) where the exercise of eminent domain (a)(i) removes a "blighted area" as defined at 31 Del. C. § 4501(3), or a "slum area"; as defined at 31 Del. C. § 4501(21); (ii) removes a structure that is beyond repair or unfit for human habitation or use; or (iii) is used to acquire abandoned real property and (b) eliminates a direct threat to public health and safety caused by or related to the real property in its current condition."

(d)

Whenever real property is condemned and will be used, including owned, occupied or developed by a private party, the State or agency thereof or a political subdivision must establish by clear and convincing evidence that the use of eminent domain complies with the definition of "public use" in § 9501A(c) of Title 29.

(e)

No written notice or correspondence shall be sent to property owners from the State, an agency or a political subdivision communicating to the property owner that the real property is subject to eminent domain without the State, an agency, or a political subdivision first notifying the property owner in writing of the public use as defined in § 9501A(c) and as required by § 9505(15) of Title 29.

(29 Del. C. ch. 95, §§ 1, 2)

Sec. 10-115B. - Transportation and eminent domain.

The provisions of Section 9501A of this Title shall not apply to the acquisition of property or property rights by the Department of Transportation for any transportation facility, project, or program as defined in Titles 2, 9, 14, 17, and 29 of this code, if the primary purpose of such acquisition is to maintain or improve the State's transportation network, as sworn to by the Secretary of the Department or her authorized designee.

(29 Del. C. ch. 95, § 5)

Sec. 10-116. - Authorization of undertaking; form, content, etc., of bonds.

The planning, acquisition, purchase, construction, reconstruction, improvement, betterment or extension of any undertaking may be authorized under this article and bonds may be authorized to be issued under this article to provide funds for such purpose or purposes by resolution or resolutions of the governing body which may be adopted at the same meeting at which they are introduced by a majority of all the members thereof then in office and shall take effect immediately upon adoption. Said bonds shall bear interest at such rate or rates, may be in one or more series, may bear such date or dates, may mature at such time or times not exceeding forty years from their respective dates, may be payable in such medium of payment, at such place or places, may carry such registration privileges, may be subject to such terms of redemption, may be executed in such manner, may contain such terms, covenants and conditions, and may be in such form, either coupon or registered, as such resolution or subsequent resolutions may provide. Said bonds shall be sold at public sale, after advertisement: Provided, however, that any of said bonds may be sold at private sale to the United States of America, or any agency, instrumentality or corporation thereof, at not less than par. Pending the preparation of the definitive bonds, interim receipts or certificates in such form and with such provisions as the governing body may determine may be issued to the purchaser or purchasers of bonds sold pursuant to this article. The rate of interest may be determined in advance of sale, or the bonds may be offered for sale at a rate of interest to be fixed by the successful bidder for such bonds.

(47 Del. L. ch. 269, § 5)

Sec. 10-117. - Covenants in resolution authorizing issuance of bonds.

Any resolution or resolutions authorizing the issuance of bonds under this article may contain covenants as to (a) the purpose or purposes to which the proceeds of sale of said bonds may be applied and the use and disposition thereof, (b) the use and disposition of the revenue of the undertaking for which said bonds are to be issued, including the creation and maintenance of reserves, (c) the transfer from the general funds of the municipality to the account or accounts of the undertaking an amount equal to the cost of furnishing such municipality or any of its departments, boards or agencies with the services, facilities and commodities of said undertaking, (d) the issuance of other or additional bonds payable from the revenue of said undertaking, (e) the operation and maintenance of such undertaking, (f) the insurance to be carried thereon and the use and disposition of insurance moneys, (g) books of account and the inspection and audit thereof, and (h) the terms and conditions upon which the holders of said bonds or any proportion of them or any trustee therefor shall be entitled to the ap- pointment of a receiver by the appropriate court, which court shall have jurisdiction in such proceedings, and which receiver may enter and take possession of said undertaking, operate and maintain the same, prescribe rates, fees, or charges, and collect, receive and apply all revenue thereafter arising therefrom in the same manner as the municipality itself might do. The provisions of this article and any such resolution or resolutions shall be a contract with the holder or holders of said bonds, and the duties of the municipality and of its governing body and officers under this article and any such resolution or resolutions shall be enforceable by any bondholder, by mandamus or other appropriate suit, action or proceedings in any court of competent jurisdiction.

(47 Del. L. ch. 269, § 6)

Sec. 10-118. - Validity of bonds.

Said bonds bearing the signatures of officers in office on the date of the signing thereof shall be valid and binding obligations, notwithstanding that before the delivery thereof and payment therefor any or all the persons whose signatures appear thereon shall have ceased to be officers of the municipality issuing the same. The validity of said bonds shall not be dependent on nor affected by the validity or regularity of any proceedings relating to the planning, acquisition, purchase, construction, reconstruction, improvement, betterment, or extension of the undertaking for which said bonds are issued. The resolution authorizing said bonds may provide that the bonds shall contain a recital that they are issued pursuant to this article, which recital shall be conclusive evidence of their validity and of the regularity of their issuance.

(47 Del. L. ch. 269, § 7)

Sec. 10-119. - Lien of bonds.

All bonds of the same issue may, subject to the prior and superior rights of outstanding bonds, claims or obligations, have a prior and paramount lien on the revenue of the undertaking, for which said bonds have been issued, over and ahead of all bonds of any issue payable from said revenue which may be subsequently issued and over and ahead of any claims or obligations of any nature against said revenue subsequently arising or subsequently incurred. All bonds of the same issue may be equally and ratably secured without priority by reason of number, date of bonds, of sale, of execution, or of delivery, by a lien on said revenue in accordance with the provisions of this article and the resolution or resolutions authorizing said bonds, or all bonds of the same issue, or such ones thereof as may be specified, may, to the extent and in the manner prescribed, be subordinated and be junior in standing, with respect to the payment of principal and interest and the security thereof, to such other bonds as are designated in the resolution or resolutions authorizing said bonds.

(47 Del. L. ch. 269, § 8)

Sec. 10-120. - Types of bonds to be issued to finance undertaking.

The municipality may issue either revenue bonds or general obligation bonds, or a series or combination of either type of such bonds, either in whole or in part of the total amount necessary to finance any undertaking under this article. If revenue bonds are issued under this article, each such bond shall recite in substance that said bond, including interest thereon, is payable from the revenue pledged to the payment thereof, and that said bond does not constitute a debt of the municipality within the meaning of any statutory or constitutional limitation; provided, however, that in the event of some emergency, the municipality may temporarily appropriate, advance or loan such amount as is necessary to meet current interest on outstanding bonds, such advance or loan to be repaid to the municipality out of revenue subsequently received from the undertaking. If general obligation bonds are issued under this article, the aggregate amount of any such bonds so issued shall be in addition to and not within the limitations of any existing statutory or constitutional debt limitations of the municipality.

(47 Del. L. ch. 269, § 9)

Sec. 10-121. - Undertakings to be self-supporting.

The governing body of the municipality issuing bonds pursuant to this article shall prescribe and collect reasonable rates, fees or charges for the services, facilities and commodities of such undertaking, and shall revise such rates, fees or charges from time to time whenever necessary so that such undertaking shall be and always remain self-supporting. The rates, fees or charges prescribed shall be such as will procure revenue at least sufficient (a) to pay when due all bonds and interest thereon, for the payment of which such revenue is or shall have been pledged, charged or otherwise encumbered, including reserves therefor, and (b) to provide for all expenses of operation and maintenance of such undertaking, including reserves therefor. The base for rates, charges or fees against any property shall be the measured quantity of wastes actually carried away by the sewer from such property.

(47 Del. L. ch. 269, § 10)

Sec. 10-122. - Use of revenue from undertaking.

The municipality issuing bonds pursuant to this article for the planning, acquisition, purchase, construction, reconstruction, improvement, betterment or extension of any undertaking shall have the right to appropriate, apply or expend the revenue of such undertaking for the following purposes: (a) To pay when due all bonds and interest thereon, for the payment of which such revenue is or shall have been pledged, charged or otherwise encumbered, including reserves therefor, (b) to provide for all expenses of operation and maintenance of such undertaking, including reserves therefor, (c) to pay and discharge notes, bonds or other obligations and interest thereon, not issued under this article for the payment of which the revenue of such undertaking is or shall have been pledged, charged or encumbered, (d) to pay and discharge notes, bonds or other obligations and interest thereon, which do not constitute a lien, charge or encumbrance on the revenue of such undertaking, which shall have been issued for the purpose of financing the planning, acquisition, purchase, construction, reconstructions, improvement, betterment or extension of such undertaking, and (e) to repay any advance or loan made by the municipality to meet current interest on outstanding bonds, and (f) to provide a reserve for betterments to such undertaking. Unless and until adequate provision has been made for the foregoing purposes, the municipality shall have no right to transfer the revenues of such undertaking to its general funds.

(47 Del. L. ch. 269, § 11)

Sec. 10-123. - Joint action by municipality.

The municipality through its governing body is hereby authorized and empowered to enter into and perform such contracts and agreements with others, including towns, cities, and counties, as it may deem proper for or concerning the planning, construction, lease or other acquisition and the financing of an undertaking and the maintenance and operation thereof.

(47 Del. L. ch. 269, § 12)

Sec. 10-124. - Rates, fees or charges.

Any rate, fee or charge prescribed pursuant to the provisions of this article may include a discount for payment within a certain period of time and a penalty for failure to pay within a certain period of time. All rates, fees or charges prescribed pursuant to the provisions of this section remaining unpaid from the date they become due and payable shall be and constitute a lien upon the lands and premises of the owner to which the service was furnished, and such liens shall have preference and priority to all liens of recognizance, mortgage or judgment on such lands and premises created or suffered by said owner, although such other lien or liens shall be of a date prior to the time of the attaching of such lien for services furnished hereunder. In case of sale under execution process of any lands and premises upon which the liens hereby established shall exist, such liens shall be transferred to the fund arising from such sale in the hands of the officer making the same and the said real estate so sold shall be discharged therefrom. The lien herein provided shall remain a lien for the period of ten years and no longer. The municipality may also collect the rates, fees or charges out of real estate upon which there is a lien under the provisions of this section in the manner now or hereafter prescribed by law for the collection of taxes out of real estate by the municipality. The municipality may also shut off the water supply, or order any person supplying water to the premises to shut off the water supply, in the event any rate, fee or charge prescribed pursuant to the provisions of this section remains unpaid for a period of ninety days. The rates, fees or charges fixed pursuant to this article may be made to be payable in advance, and such rates, fees or charges may be placed in effect immediately after the issuance of any bonds pursuant to this article.

(47 Del. L. ch. 269, § 13; H.B. No. 365, § 1, 7-3-08)

Sec. 10-125. - Delegation of authority.

The construction, erection, maintenance, and operation of any undertaking may be placed under the jurisdiction, supervision, and control of an appropriate department or agency of the municipality, such as the department of public works, which shall be designated by the governing body of the municipality, and such department or agency shall have the full power and authority to fix the rates, fees, or charges which are to be imposed under this article. The governing body of the municipality may also place the duty of collecting the rates, fees, or charges so imposed, under the jurisdiction, supervision and control of an appropriate department or agency of the municipality, such as the water department, and such rates, fees or charges may be measured in whole or in part by the quantity of water consumed. The governing body of the municipality may also delegate any other duties in connection with any undertaking or the administration thereof to an appropriate department or agency of the muni- cipality.

(47 Del. L. ch. 269, § 14; 53 Del. L. ch. 12, § 2)

Sec. 10-126. - Construction of article.

The powers conferred by this article shall be in addition and supplemental to the powers conferred by any other general, special or local law. The undertaking may be planned, acquired, purchased, constructed, reconstructed, improved, bettered, and extended, and bonds may be issued under this article for said purposes, notwithstanding that any general, special or local law may provide for the planning, acquisition, purchase, construction, reconstruction, improvement, betterment, and extension of a like undertaking, or the issuance of bonds for like purposes, and without regard to the requirements, restrictions, limitations or other provisions contained in any other general, special or local law, including, but not limited to, any requirement for the approval by the voters of the municipality or any existing debt limitations. Insofar as the provisions of this article are inconsistent with the provisions of any other general, special, or local law, the provisions of this article shall be controlling.

(47 Del. L. ch. 269, § 15)

Sec. 10-127. - Excision of unconstitutional or ineffective parts of article.

It is hereby declared that the sections, clauses, sentences and parts of this article are severable, are not matters of mutual essential inducement, and any of them may be exscinded by any court of competent jurisdiction, and if any provision shall be adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provision or provisions so held unconstitutional or invalid, and the inapplicability or invalidity of any section, clause, sentence or part of this article in any one or more instances shall not be taken to affect or prejudice in any way the applicability or invalidity in any other instances.

(47 Del. L. ch. 269, § 16)