Sec. 5-61. - Short title of article.

This article may be cited as the "Wilmington Marine Terminal Bond Act."

(50 Del. L. ch. 457, § 1)

Sec. 5-62. - Definitions.

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

(a)

The term "undertaking" shall mean wharves, piers, docks, ships, bulkheads, terminals, warehouses, structures, appliances, cranes, machinery, equipment, elevators, compresses, refrigeration storage plants, buildings, structures and facilities to be used in the manufacturing, processing, assembling, storing or handling of any agricultural or manufactured produce or produce of mining or industry which in the judgment of the board will result in the increased use of the harbor facilities of the municipality, tracks, rails, railways or railroad lines, or any part or combination thereof, used or useful in connection with the improvement of the water front, the harbor, terminal and shipping facilities of the municipality. Any undertaking may include other structures and any facilities needful for the convenient use of the same in the aid of commerce, including the dredging of approaches thereto, and the construction of roads, bridges and causeways necessary or useful in connection therewith and including any public utility facilities designed to supply public utility services to other parts of the undertaking or to the users of any of the facilities of the board. There may be included as part of any undertaking all apparatus, equipment and machinery of every nature necessary or desirable for the full utilization of the under- taking. Nothing in the foregoing shall be construed to authorize the construction or maintenance of telephone and telegraph facilities which are normally owned by public utility companies.

(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.

(d)

The term "board" shall mean the board of harbor commissioners created under the authority of chapter 123, Volume 29, Laws of Delaware, as amended.

(50 Del. L. ch. 457, § 2; 52 Del. L. ch. 4, § 1)

Sec. 5-63. - Powers of municipality generally.

In addition to the powers which it may now have, the municipality shall have power under this article:

(a)

To plan, construct, acquire, reconstruct, improve, better or extend any undertaking within or without the territorial boundaries of the municipality, or partially within or partially without the municipality, and to acquire lands or rights in land or water rights in connection therewith. No land or rights therein belonging to any public utility and used by it in its service to the public shall be taken by the municipality under the powers herein conferred. Whenever any portion of a public highway is vacated by the municipality in order to facilitate any undertaking, the municipality shall reimburse any public utility affected for the expense incurred by it in relocating its facilities previously constructed in said highway to a new location.

(b)

To have and exercise through the agency of the board all powers and authority vested or conferred upon the board by the provisions of chapter 123, Volume 29, Laws of Delaware, as amended.

(c)

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.

(d)

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 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

(e)

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 of money borrowed or which it is estimated will be borrowed pursuant to this article.

(f)

Any buildings, structures or facilities acquired by the municipality hereunder which are to be utilized in the manufacturing, processing, assembling, storing or handling of any agricultural or manufactured produce or produce of mining or industry, which may be acquired for operation by a corporation, entity or persons other than the board, as distinguished from buildings, structures or facilities acquired by the municipality for operation by the board as harbor, terminal and allied facilities for the direct use of the public, shall be acquired and financed hereunder only if prior to the issuance of bonds therefor the municipality, acting through the board shall have entered into a lease or leases thereof or an agreement or agreements for the sale thereof pursuant to the terms of which the lessees or purchasers shall pay to the municipality such rentals or installment purchase payments, or both, as upon the basis of determinations and findings to be made by the board, will be fully sufficient to pay principal of and interest on the bonds issued for the financing thereof, to build up and maintain any reserves deemed by the board to be advisable in connection therewith, and to pay the cost of maintaining the buildings, structures and facilities in good repair and keeping them properly insured, unless the leases or agreements obligate the lessees or purchasers to pay for such insurance or maintenance. The board is granted full power and discretion to enter into any such agreements or leases as may in its judgment be desirable for the best interests of the municipality. Any such agreement or lease may provide that any surplus capacity of the buildings, structures or facilities which are the subject matter thereof may be utilized by and for the benefit of the general public, in which event such surplus capacity may be maintained or operated, or both, by either the board or by the lessee or purchaser under the lease or agreement, or in part by each, all as may be provided in the lease or agreement. Any undertaking may include in part one or more buildings, structures or facilities or combinations thereof to be leased or sold as provided in this paragraph, and in part other buildings, structures or facilities to be operated by the board, the revenues of the whole being allocated and pledged to the financing of the undertaking as a whole, and in such event, the requirements of this paragraph applicable to buildings, structures or facilities to be leased or sold shall be applicable only to the part of the undertaking which consists of the buildings, structures or facilities to be so leased or sold.

(50 Del. L. ch. 457, § 3; 52 Del. L. ch. 4, § 2)

Sec. 5-64. - Authorization of undertaking; form, content, etc., of bonds.

The planning, acquisition, purchase, construction, reconstruction, improvement, betterment or extension of any undertaking may be undertaken by the board under this article and bonds may be authorized under this article by ordinance or ordinances of the governing body adopted by a majority of all members thereof then in office, and such bonds may be issued from time to time as may be determined by such ordinance or ordinances. 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 ordinance or subsequent ordinances may provide. After such bonds shall have been authorized by ordinance adopted by the governing body, the bonds shall be sold by the board in such manner and on such terms as the board may prescribe, provided only that the price at which the bonds are sold shall never be such as to make the interest cost to the municipality exceed six percent per annum computed to maturity according to standard tables of bond values. Pending the preparation of the definite 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.

All powers granted the municipality and all things authorized to be done by the governing body and by the board under the provisions of this article may be exercised and done without the necessity for approval thereof by any other board, agency, instrumentality, department, or political subdivision of the municipality or of the State of Delaware.

Nothing contained in this article shall be so construed as to prevent the execution of leases and agreements by the board for the lease or sale of all or any part of any understanding [undertaking], as long as it is expressly found by the board that the revenues to be derived from such lease or agreement, together with the other revenues of the undertaking, will be sufficient to carry out the requirements of sections 5-69 and 5-70. All rentals and payments received by the municipality under the provisions of any such lease or agreement shall be regarded as revenues of the undertaking within the meaning of paragraph (d) of section 5-63.

(50 Del. L. ch. 457, § 4; 52 Del. L. ch. 4, § 3)

Sec. 5-65. - Covenants in ordinance authorizing issuance of bonds.

Any ordinance or ordinances 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 issuance of other or additional bonds payable from the revenue of said undertaking, (d) the operation and maintenance of such undertaking, (e) the insurance to be carried thereon and the use and disposition of insurance moneys, (f) books of account and the inspection and audit thereof, and (g) 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 appointment 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 ordinance or ordinances 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 ordinance or ordinances shall be enforceable by any bondholder, by mandamus or other appropriate suit, action or proceeding in any court of competent jurisdiction.

In the discretion of the governing body, any issue of bonds hereunder may be secured by a trust indenture by and between the municipality and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or outside of the state. Such trust indenture may pledge or assign revenues, earnings and rentals to be received by the municipality from the operation, rental or sale of the undertaking. In addition to the covenants hereinabove in this section authorized to be contained in any ordinance authorizing bonds hereunder, any such ordinance or any such trust indenture may contain such provisions for protecting and enforcing the rights and remedies of the bondholders and securing the prompt payment of principal of and interest on the bonds as may be reasonable and proper and not in violation of the law and as may be designed to enhance the marketability of the bonds.

(50 Del. L. ch. 457, § 5; 52 Del. L. ch. 4, § 4)

Sec. 5-66. - Validity of bonds.

Said bonds bearing the signature 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 ordinance 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.

(50 Del. L. ch. 457, § 6)

Sec. 5-67. - Liens of bonds.

All bonds issued hereunder shall enjoy such parity with or priority over other bonds of the same issue and any bonds which may thereafter be issued payable from the revenues of the same undertaking as may be provided in the ordinance authorizing the issuance of the bonds.

(50 Del. L. ch. 457, § 7; 52 Del. L. ch. 4, § 5)

Sec. 5-68. - Bonds not subject to debt limitation; levy of taxes, etc., for payment.

The municipality may issue bonds, either in whole or in part, of the total amount necessary to finance any undertaking under this article. All bonds issued under this article shall be in addition to and not within the limitations of any limitations on the indebtedness of the municipality which may be in existence at the time of the issuance of such bonds.

Any bonds issued hereunder for any undertaking which is in whole or in part to be rented by the municipality for operation by a corporation, entity or persons other than the municipality for utilization in the manufacturing, processing, assembling, storing or handling of any agricultural or manufactured produce or produce of mining or industry, or which is to be sold for such purpose pursuant to an installment purchase agreement as above authorized, shall be payable solely from the revenue of the undertaking and shall not be deemed to constitute an indebtedness of the municipality or a pledge of the faith and credit of the municipality, and such bonds shall not directly or indirectly or contingently obligate the municipality to levy or to pledge any form of taxation whatever therefor, and each such bond shall contain on its face recitals to the foregoing effect.

Any bonds issued hereunder for other purposes may in the discretion of the governing body be made general obligations of the municipality to the payment of which the faith and credit of the municipality are pledged, and as to bonds issued secured by such pledge, the governing body shall have power to levy ad valorem taxes without limitation as to rate or amount upon all property taxable by the municipality to raise any money which may be required to pay such bonds and the interest thereon as the same become due and payable.

It is hereby further determined and declared that the carrying out of the purposes of this article and the powers and duties imposed in [on] the municipality, the governing authority and the board will constitute the performance of an essential governmental function of the municipality and of the State of Delaware, will promote the natural resources of the state and will benefit the inhabitants of the municipality and the state, and accordingly it is provided and the state covenants with the holders from time to time of the bonds issued hereunder: (1) No taxes or assessments imposed by the state or any of its political subdivisions or taxing districts, including the municipality, shall be imposed upon any property acquired by the municipality under the provisions hereof or upon any property under the jurisdiction, control, possession or supervision of the board, and no such taxes or assessments shall be imposed upon any of the activities of the board in the operation or maintenance of any such properties or on any income derived by the municipality or the board from such facilities or otherwise; and (2) that all bonds issued hereunder, their transfer and the income therefrom shall always be exempt from taxation within the state. The purposes to be effected by this article are hereby expressly found and declared to be public uses for which public money may be spent and private property may be acquired by the exercise of the power of eminent domain.

(50 Del. L. ch. 457, § 8; 52 Del. L. ch. 4, § 6)

Sec. 5-69. - Undertakings to be self-supporting; establishment of rates, charges, etc.

The board 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.

(50 Del. L. ch. 457, § 9)

Sec. 5-70. - Use of revenue from undertaking.

The municipality issuing revenue 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, reconstruction, 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.

(50 Del. L. ch. 457, § 10)

Sec. 5-71. - Construction of undertaking.

Any building, structure or facility to be constructed or acquired hereunder as part of an undertaking may be acquired or constructed pursuant to such contracts and agreements as may be provided by the board without necessity for compliance with any statutory provision not contained in this article, and the proceeds of any bonds issued hereunder may be held, secured and paid out for the cost thereof in such manner as may be provided by the board prior to the issuance of such bonds. The expenditure of all such bond proceeds shall be under the jurisdiction of the board.

(52 Del. L. ch. 4, § 7)

Sec. 5-72. - Limitation of actions.

After the authorization, but prior to the issuance, of any bonds hereunder, the governing body may in its discretion cause to be published once in each of two consecutive weeks in at least one newspaper published in the municipality, a notice in substantially the following form:

The Mayor and Council of Wilmington, acting through The Council and through the Board of Harbor Commissioners, have on the ____________ day of ____________, ____________ day of ____________ (repeat as often as necessary) provided for the issuance of $____________ bonds of The Mayor and Council of Wilmington for the purpose of financing the acquisition of _____
_____
which bonds are payable from _____
_____
Such bonds are further secured by _____
_____
Any action or proceeding questioning the validity of any of said proceedings or said bonds or the instruments securing such bonds must be commenced within twenty (20) days after the first publication of this notice.

Any action or proceeding in any court to set aside any of the aforesaid proceedings or to contest the validity of any such bonds or related documents or instruments, must be commenced within twenty (20) days from the first publication of the above mentioned notice. After the expiration of such period of limitation, no right of action or defense founded upon the invalidity of such proceedings, documents or instruments or of the bonds, shall be asserted, nor shall the validity thereof be open to question in any court upon any ground whatever except in an action or proceeding commenced within such period.

(52 Del. L. ch. 4, § 8)

Sec. 5-73. - 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 laws, 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.

(50 Del. L. ch. 457, § 11)

Sec. 5-74. - Severability 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 rescinded 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.

(50 Del. L. ch. 457, § 12)