CHAPTER 4

AN ACT TO AMEND CHAPTER 457, VOLUME 50, LAWS OF DELAWARE, BY PROVIDING ADDITIONAL PROJECTS WHICH MAY BE ACQUIRED AND FINANCED THEREUNDER; AUTHORIZING THE EXECUTION OF LEASES AND PURCHASE AGREEMENTS WITH RESPECT TO ANY SUCH PROJECTS; PROVIDING FOR THE SALE OF BONDS ISSUED THEREUNDER; PROVIDING THAT NO APPROVAL OF. THE PROCEEDINGS OF "THE COUNCIL" AND THE BOARD OF HARBOR COMMISSIONERS THEREUNDER SHALL BE REQUIRED; PROVIDING FOR THE SECURITY OF BONDS ISSUED THEREUNDER; DECLARING THE CARRYING OUT OF THE POWERS THEREIN AUTHORIZED TO CONSTITUTE A STATE AND PUBLIC PURPOSE; EXEMPTING PROPERTY ACQUIRED AND BONDS ISSUED THEREUNDER FROM TAXATION; PROVIDING FOR THE MANNER OF THE CONSTRUCTION OF PROJECTS THEREUNDER; LIMITING THE INSTITUTION OF ACTIONS ATTACKING PROCEEDINGS THEREUNDER; AND MAKING OTHER PROVISIONS IN CONNECTION WITH THE FOREGOING.

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

Section 1. Paragraph (a) of Section 2 of Chapter 457, Volume 50, Laws of Delaware, is hereby amended by striking out and repealing the said paragraph (a) and inserting in lieu thereof a new paragraph (a) to read as follows:

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, 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 undertaking. 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.

Section 2. Section 3 of Chapter 457 aforesaid is hereby amended by adding to said section a new and additional paragraph to be known as paragraph (f) and to read as follows:

(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.

Section 3. Section 4 of Chapter 457 aforesaid is hereby amended by striking out and repealing the said Section 4 and inserting in lieu thereof a new Section 4 to read as follows:

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. 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 per cent 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 Act.

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 Act 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 Act 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 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 9 and 10 of this Act. 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 3 of this Act.

Section 4. Section 5 of Chapter 457 aforesaid is hereby amended by adding to said Section 5 an additional paragraph to read as follows:

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.

Section 5. Section 7 of Chapter 457 aforesaid is hereby amended by striking out and repealing the said Section 7 and inserting in lieu thereof a new Section 7 to read as follows:

Section 7. 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.

Section 6. Section 8 of Chapter 457 aforesaid is hereby amended by striking out and repealing the said Section 8 and inserting in lieu thereof a new Section 8 to read as follows:

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. All bonds issued under this Act 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 act and the powers and duties imposed in 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 Act 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.

Section 7. That Chapter 457 aforesaid is hereby amended by adding thereto a new Section to be numbered and known as Section 10-A, said Section 10-A to read as follows:

Section 10-A. 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 Act 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.

Section 8. That Chapter 457 aforesaid is hereby amended by adding thereto a new Section to be numbered and known as Section 10-B, said Section 10-B to read as follows:

Section 10-B. 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.

__________________

Mayor

Attest:

__________________

Clerk of The Council

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.

Section 9. 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 excinded 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 hereof, 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 March 16, 1959.