CHAPTER 457

WILMINGTON MARINE TERMINAL BOND ACT

AN ACT TO AUTHORIZE THE MAYOR AND COUNCIL OF WILMINGTON TO PROVIDE FOR THE PLANNING, ACQUISITION, PURCHASE, CONSTRUCTION, RECONSTRUCTION, IMPROVEMENT, BETTERMENT, EXTENSION, OPERATION, AND MAINTENANCE OF REVENUE-PRODUCING UNDERTAKINGS FOR THE IMPROVEMENT OF THE WATER FRONT AND TO INCREASE THE HARBOR TERMINAL AND SHIPPING FACILITIES OF THE CITY OF WILMINGTON; AUTHORIZING AND REGULATING THE ISSUANCE OF BONDS FOR FINANCING SUCH UNDERTAKINGS; PROVIDING FOR THE PAYMENT OF SUCH BONDS AND THE RIGHTS OF THE HOLDERS THEREOF.

Be it enacted by the General Assembly of the State of Delaware (two-thirds of all Members of each Branch thereof concurring therein):

Section I. SHORT TITLE OF ACT

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

Section 2. DEFINITIONS

Whenever used in this Act, 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, tracks, rails, railways or railroad lines, or any part thereof, used or useful in connection with the improvement of the water front, the harbor, terminal and shipping facilities of the municipality.

(b) The term "municipality" shall mean "The Mayor and Council of Wilmington," a municipal corporation of the State of Delaware.

(c) The term "governing body" shall mean "The Council" of "The Mayor and Council of Wilmington".

(d) The term "board" shall mean "Board of Harbor Commissioners" created under the authority of Chapter 123, Volume 29, Laws of Delaware, as amended.

Section 3. ADDITIONAL POWERS OF MUNICIPALITY

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

(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 laud 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 Act.

Section 4. AUTHORIZATION OF UNDERTAKING; FORM AND CONTENT OF BONDS

The planning, acquisition, purchase, construction, reconstruction, improvement, betterment or extension of any undertaking may be undertaken by the Board under this Act and bonds may be authorized under this Act 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. 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 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 Act. 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.

Section 5. COVENANTS IN ORDINANCE AUTHORIZING ISSUANCE OF BONDS

Any ordinance or ordinances authorizing the issuance of bonds under this Act 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 Act 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 Act 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.

Section 6. 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 Act, which recital shall be conclusive evidence of their validity and of the regularity of their issuance.

Section 7. LIENS 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 Act and the ordinance or ordinances 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 ordinance or ordinances authorizing said bonds.

Section 8. BONDS TO BE ISSUED TO FINANCE UNDERTAKING

The municipality may issue bonds, either in whole or in part of the total amount necessary to finance any undertaking

under this Act. If bonds are issued under this Act, 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. The faith and credit of the municipality are hereby pledged to the payment of any general obligation bonds issued by the municipality under this act. The Council of the municipality shall have power to levy an ad valorem tax, without limitation as to rate or amount, upon all property taxable by the municipality to raise any moneys which may be required to pay such bonds and the interest thereon as the same become due and payable.

Section 9. UNDERTAKINGS TO BE SELF-SUPPORTING

The Board of the municipality issuing bonds pursuant to this Act 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.

Section 10. USE OF REVENUE FROM UNDERTAKING

The municipality issuing revenue bonds pursuant to this Act 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 Act 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 pkIanning, 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.

Section 11. CONSTRUCTION OF ACT

The powers conferred by this Act 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 Act for said purposes, not with standing 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 Act are inconsistent with the provisions of any other general, special or local law, the provisions of this Act shall be controlling.

Section 12. EXCISION OF UNCONSTITUTIONAL OR INEFFECTIVE PARTS OF ACT

It is hereby declared that the sections, clauses, sentences and parts of this Act 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 Act 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.

Approved July 14, 1955.