[HISTORY: Adopted by the Levy Court of Kent County 10-21-1986 by Ord. No. 86-05. Amendments noted where applicable.]
Pursuant to 9 Del. C. §§ 4104-4111, inclusive, as amended, and to implement the powers conferred thereunder it is hereby determined and declared by the Levy Court of Kent County, Delaware as a matter of legislative finding that:
The good order of Kent County and the health, safety and welfare of its citizens depend upon the steady employment, in useful occupations, of the citizens of the county.
In certain areas of the county, many citizens are employed sporadically or not at all; in these areas of the county, many citizens have heretofore found employment in agricultural pursuits; as agriculture becomes more efficient and requires fewer employees for the maintenance of economic output levels, increasing numbers of citizens cannot find agricultural employment; opportunities for other forms of employment in these areas are very limited; this condition wastes vital human resources, impairs the security of family life, prevents many of the youth of the county from completing their education, contributes to the growth of crime and delinquency, impedes the balanced development of the county, threatens the economic stability of the county, discourages thrift and depresses the standard of living of the citizens of the county, all to the detriment of the public health, safety, welfare and order.
Significant resources of the county are its access to coastal and navigable waters, a developing commercial, industrial, recreational and sporting maritime industry (the "maritime industry") and developing industrial and commercial businesses related to the maritime industry that provides a unique opportunity to create jobs and is an essential component of the integrated economic development of the county.
There is a need to encourage the development of the county as a banking, commercial and financial center by expanding the types of projects for which the county will provide financing assistance. There is a need to enhance the inducements for a full range of banks and financial service enterprises to do business, locate, remain and expand in the county, which in time will result in increased employment opportunities and commercial transactions in the county and reduce the adverse consequences of unemployment. The financial service industry presents a unique opportunity to create jobs and is an essential component of an integrated economic development program for the county.
Stable and useful employment can be made available for the citizens of the county by providing financing to the maritime industry, furnishing inducements for the maritime industry to obtain financing in the county and enhancing the inducements for the maritime industry to do business, locate, remain and expand in the county.
Stable and useful employment can be made available for citizens of the county by financing the development, construction, acquisition, rehabilitation, modernization or renovation of commercial, industrial, maritime and agricultural facilities in the county.
In many areas of the county, substantial unemployment or cyclical employment (involving cessation of work and temporary layoff of employees) exists; there is a continuing need to prevent decline in business employment, including employment in industrial, commercial, maritime and agricultural businesses within the county and to reduce unemployment and cyclical employment within the county; promoting a vigorous and growing economy and expanding employment and job opportunities will result in a higher standard of living, the fostering of sound neighborhoods, increased availability of decent, safe and sanitary housing, help eliminate disease, crime, high cost of welfare and promote the sound growth of the county.
The availability of financial assistance and suitable facilities are important inducements to industrial, commercial, maritime and agricultural businesses to do business, locate, remain and expand in the county which in time will result in increased employment opportunities in the county.
Due to increased industrialization and urbanization of many areas of the county, greater dangers to the public health, safety and welfare exist because of pollution of the air, water and soil and high levels of noise; therefore, it is necessary to protect the public health and welfare by fostering the reduction, abatement or prevention of the pollution of the county's environment and the protection of its natural resources.
It is further determined and declared that the creation of an Office of Economic and Maritime Development, with the powers and duties conferred hereunder, is needed and proper for achieving the purposes herein recited and that the expenditure of money pursuant to this chapter constitutes a valid public purpose and the performance of a valid public function and that the enactment of the provisions hereinafter set forth is in the public interest and for the public benefit and welfare and is hereby so declared to be as a matter of express legislative determination.
The following terms wherever used or referred to in this chapter shall have the following meanings unless in any case a different meaning appears from the context.
- BOND PROJECT LIMIT
- The proposed limit of expenditures on a given project.
- Economic Revenue Bonds or Maritime Industry Financing Project Bonds.
- COSTS OF ISSUANCE
- Includes items of expense payable or reimbursable directly or indirectly by the county and related to the authorization, issuance, sale and delivery of the bonds contemplated hereunder and authorization and execution of the revenue agreement and any indenture, credit agreement, remarketing agreement, tender agent agreement or any other documents prepared in connection therewith or contemplated thereby which items of expense shall include, but not be limited to, application fees and expenses; publication costs; printing costs; costs of reproducing documents; filing and recording fees; the trustee's and the tender agent's acceptance fees and out-of-pocket expenses; bond counsel fees; counsel fees of the county, trustee, tender agent, credit enhancement provider and remarketing agent; the placement fees, credit facility issuance and closing fees; underwriting fees and charges for execution, transportation and safekeeping of the bonds and related documents; and other costs, charges and fees in connection with the foregoing.
- Kent County, Delaware.
- The Director of the Office appointed by the Levy Court as contemplated hereunder.
- ECONOMIC DEVELOPMENT BONDS
- Obligations issued by the county to finance an economic development project.
- A. Any building or facility or any area, industrial park or portion thereof, or combination thereof, or machinery, equipment or fixtures occupied or utilized by a commercial, agricultural, industrial, manufacturing or business enterprise or any enterprise providing housing, health or nursing care services or educational services or any other person which project is now existing or hereafter acquired or constructed, including any or all buildings, improvements, additions, extensions, utilities, railroad spurs and sidings, wharves, approaches and roadways necessary or desirable in connection therewith or incidental thereto; and
- B. A program for the county to issue economic development project bonds, the proceeds of which shall be used by the Office, with approval of the Levy Court, to originate or purchase obligations, the proceeds of which will be used to finance the project costs of projects specified in Subsection A of this definition; and to refinance or restructure existing obligations, the proceeds of which were used to finance the project costs of projects specified in Subsection A of this definition.
- The United States of America or an instrumentality or agency thereof.
- A. Any building or facility or any area, industrial park or portion thereof, or combination thereof, or maritime vessels, ships, boats, machinery, equipment or fixtures occupied or utilized by a commercial or sporting maritime industry or in connection with oceanic geothermal energy production or other projects contemplated under Title XI or any business enterprise related to the maritime industry or oceanic geothermal energy industry or any other person otherwise engaged in the foregoing which project is now existing or hereafter acquired or constructed, including any or all vessels, buildings, improvements, additions, extensions, utilities, railroad spurs and sidings, docks, wharves, approaches and roadways necessary or desirable in connection therewith or incidental thereto; and
- B. A program for the county to issue Maritime Industry Financing Project Bonds, the proceeds of which shall be used by the Office, with approval of the Levy Court, to originate or purchase, from within or outside the county or the state, obligations which are guaranteed as to principal and interest by the Government under Title XI, the proceeds of which will be used in connection with the financing of project costs of projects specified in Subsection A of this definition; and to refinance or restructure, from within or outside the county or the state, existing obligations which are guaranteed as to principal and interest by the government under Title XI, the proceeds of which have been used to finance project costs of projects specified in Subsection A of this definition.
- MARITIME INDUSTRY FINANCING PROJECT BONDS
- Obligations issued by the county to finance a maritime industry financing project.
- Bonds, notes, debentures, certificates of participation or other evidence of indebtedness.
- The Office of Economic and Maritime Development of Kent County created by § 30-3 of this chapter.
- Any individual, partnership, copartnership, firm, company, corporation (including a public utility), association, joint-stock company, trust, estate, political subdivision, state agency or any other legal entity, or its legal representative, agent or assigns which is an employer.
- An economic development project or a maritime industry financing project.
- A. The sum total of all reasonable or necessary costs incidental to the origination or purchase of obligations guaranteed as to principal and interest by the government under Title XI, or for the development, acquisition, construction, repair, improvement or extension of a project, including without limitation the cost of studies and surveys, plans, specifications, architectural and engineering services, legal, marketing or other special services, financing, acquisition, demolition, construction, equipment and site development of new and rehabilitated maritime vessels or buildings or other structures or facilities utilized in connection with any project, rehabilitation, reconstruction, repair or remodeling of existing maritime vessels or buildings or other structures or facilities utilized in connection with any project, the cost of accounting and financial services associated with the project and all other necessary or incidental expenses whether directly or indirectly related to the project, including the establishment and funding of reserves and costs of issuance; and
- B. The costs associated with any other activity relating to any project (including, without limitation, the providing of working capital or the acquisition or carrying of inventory, accounts receivable, chattel paper or commercial instruments).
- REVENUE AGREEMENT
- Any obligation guaranteed by the government under Title XI and any note, letters of credit, guarantee, lease, sublease, installment or direct sales contract, service contract, take-or-pay contract, loan agreement, investment agreement or similar agreement, or any combination thereof, wherein it is provided that the county is paid funds sufficient to provide for the prompt payment of the principal of, interest on and redemption premium, if any, on the related bonds and the project is caused to be developed, acquired, constructed or improved.
- The State of Delaware.
- TITLE XI
- Title XI of the Merchant Marine Act of 1936, as amended, being 46 U.S.C. §§ 1271-1279, inclusive, as amended.
- TITLE XI OBLIGATIONS
- Any obligation guaranteed by the government under Title XI.
There is hereby established an office of the county government which shall be known as an "Office of Economic and Maritime Development." The Office shall employ the Director of Economic and Maritime Development and such other employees as the Levy Court may provide. Preference for employment shall be given to the residents of the county, provided that they are equally qualified and acceptable. The powers of the Office shall be vested in the director and all actions by the Office shall be carried out by the director or person(s) designated by the director.
All officers and employees of the Office shall be under the supervision, direction and control of the director and shall perform such duties as may be required by the director or by the Levy Court.
The director shall cause an audit of the Office's books and accounts to be made annually by a certified public accountant licensed to practice in the state. The director shall make an annual report of the Office's activities to the Levy Court which shall set forth a complete operating and financial statement covering the Office's operations during the year and shall include the report of the certified public accountant who makes the audit of the Office's books and accounts.
All expenses incurred by the Office shall be included and charged to the project to which they apply. Any refunds or reimbursements of such expenses shall be credited to the same project to which such expense was charged. Any funds of the Office shall not inure to the benefit of any person other than the county.
The Office may establish guidelines for persons seeking to finance economic development projects or persons seeking to finance maritime industry financing projects, as the Levy Court may approve. The Office may establish such fees and charges relating to such applications for financing as the Levy Court may approve.
The Office may employ financial advisors, consulting engineers, architects, attorneys, real estate counselors, appraisers and such other consultants and employees as may be required in the judgment of the director, with approval of the Levy Court, to carry out the purposes of this chapter and to fix and pay their compensation from funds available to the Office.
There is hereby created the office of Director of Economic and Maritime Development. The director shall be appointed by the Levy Court. He or she shall be qualified by training and experience to perform the duties of the position, and preference shall be given to the residents of the county, provided that they are equally qualified and acceptable.
It shall be the duty of the director to develop, administer and implement programs and policies:
To encourage and promote the retention and expansion of existing maritime, commercial, industrial, fishing, housing, health care, educational and agricultural businesses within the county.
To attract new businesses to the county.
To finance economic development projects and maritime industry financing projects approved by the Levy Court.
To encourage and promote banking and financial activities within the county.
To stimulate public interest and participation in the orderly growth of the county.
The director, in performance of his duties as set out in § 30-4, may recommend to the Levy Court that the county, by ordinance of the Levy Court:
Purchase, lease, obtain options upon, acquire by gift, grant, bequest or devise any real or personal property or any interest therein, including fee simple absolute title, together with any improvements thereon, necessary or incidental to a project.
Undertake to finance the project costs of projects up to each project's bond project limit.
Cooperate with the National Maritime Administration, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Secretary of Commerce, Secretary of Transportation, the University of Delaware Marine Advisory Service and such other appropriate national and state agencies to encourage and promote the maritime industry and the financing of the maritime industry.
Enter into agreements or contracts with financial institutions, public agencies or other person for the origination, refinancing or purchase of obligations guaranteed by the government under Title XI.
Develop programs to assist the county in financing the maritime industry and enhancing the county's public policy of becoming a center for financing and servicing the maritime and fishing industry.
Sell, lease, exchange, transfer, assign, subdivide, retain for its own use, mortgage, pledge, hypothecate or otherwise encumber or dispose of any real or personal property or any interest therein.
Enter into revenue agreements or other contracts with any person containing covenants, restrictions and conditions regarding the use of such property for industrial and related purposes and such other covenants, restrictions and conditions as the director may deem necessary to effectuate the purposes of this chapter.
Provide for the insurance of any real or personal property or operations of the county against any risks or hazards, including the power to pay premiums on any such insurance.
Invest any funds held in reserves or sinking funds, or any funds not required for immediate disbursement, in property or securities in which the county may legally invest funds subject to its control.
Apply for and accept advances, loans, grants, contributions and any form of financial assistance from the federal government, the state or other public body or from any sources, public or private, for the purposes of this law, to give such security as may be required and to enter into and carry out contracts in connection therewith.
Issue bonds for any of the purposes so designated in this chapter subject to the limitations of this chapter.
Pledge the revenue and receipts derived from any related revenue agreement to the punctual payment of bonds authorized under this chapter, the interest thereon and the redemption premiums, if any.
Mortgage, or permit the mortgaging of, an economic development project for the benefit of the holder or holders of bonds issued therefor.
Issue bonds to refund, in whole or in part, bonds theretofore issued by the county or bonds theretofore issued by the state, or any agency or instrumentality thereof, and to extend the term of any refunded bonds so issued by the county or any bonds so issued by the state, or any agency or instrumentality thereof.
[Amended 12-20-1988 by Ord. No. 88-14; 12-10-1996 by Ord. No. 96-20]
Issue bonds and loan the proceeds thereof for the payment of project costs without conveyance of the project to the county.
Provide recommendations to assure compliance with the Costal Zone Act of the state.
Enter into any contracts or make any loans necessary to effectuate the purposes of this chapter.
The bonds authorized pursuant to this chapter shall be issued pursuant to a supplemental ordinance of the Levy Court, approved by not less than five of the seven Levy Court members. The bonds shall provide a general description of the objects and purposes for which the debt is to be incurred and the maximum aggregate principal amount of debt to be incurred for each such object or purpose. The bonds shall bear interest at such rate or rates, payable at such times, may be in one or more series, may bear such date or dates, may mature at such time or times not exceeding 40 years from their respective dates, may be payable in such medium of payment at such place or places, may carry such registration privileges (including by book-entry), may be subject to such terms of redemption at such premiums, may be executed in such manner, may contain such terms, covenants and conditions and may be in such form, either coupon or registered, as may be provided or as may be determined by the Levy Court.
Prior to issuance, the Levy Court shall find and determine, which findings and determinations shall be conclusive, that any project financed will tend to provide or maintain employment for citizens of the county; and will serve a public purpose by contributing to the prosperity, health, safety and welfare of the citizens of the county as contemplated by this chapter. The bonds may be sold at public or private sale in such manner and upon such terms as may be deemed advisable by the Levy Court. Pending the preparation of bonds, interim receipts or certificates in such form and with such provisions as the Levy Court may determine may be issued to the purchaser or purchasers of bonds sold pursuant to this chapter. The bonds and interim receipts and certificates shall be securities and negotiable instruments within the meaning and for all purposes of the Uniform Commercial Code of Delaware.
Any ordinance authorizing the issuance of bonds contemplated hereunder may contain such covenants as the Director may recommend, including, but not limited to, covenants as to:
The use and disposition of the revenues and receipts from the project for which the bonds are to be issued, including the creation and maintenance of reserves.
The issuance of other or additional bonds relating to the project or any rehabilitation, improvements, renovations, enlargements or additions thereto.
The development, maintenance or repair of such project.
The insurance to be carried thereon and disposition of insurance moneys.
The terms and conditions upon which the county may enter into agreements with any bank, trust company or other financial institution within or outside the county or the state for the origination and refinancing of Title XI obligations relating to a maritime industry financing project.
The terms and conditions upon which the county may originate or purchase Title XI obligations from within or outside the county or the state relating to a maritime industry financing project.
The appointment of any bank or trust company within or outside the county or the State of Delaware, having the necessary trust powers as trustee for the benefit of the bondholders, paying agent and bond registrar.
The investment of any funds held by such trustee.
The terms and conditions upon which the holders of the bonds or any portion thereof or any trustees therefor are entitled to the appointment of a receiver.
The securing of the principal of and interest on any such bonds by a mortgage or indenture of trust covering the project for which the bonds are issued which may include any improvements or extensions thereafter made; such mortgage or indenture of trust to contain such covenants and agreements to properly safeguard the bonds as may be provided for in the ordinance authorizing such bonds and shall be executed in the manner as may be provided for in such ordinance; provided that the provisions of this chapter and any ordinance pursuant hereto and any such mortgage or indenture of trust shall constitute a contract with the holder or holders of the bonds and continue in effect until the principal of, the interest on and the redemption premiums, if any, on the bonds so issued have been fully paid, and the duties of the director or any such officer of the county under this chapter and any such ordinance and any such mortgage or indenture of trust shall be enforceable by any bondholder by mandamus, foreclosure of any such mortgage or indenture of trust or other appropriate suit, action or proceedings in any court of competent jurisdiction provided the actions of the Levy Court or any mortgage or indenture of trust under which the bonds are issued may provide that all such remedies and rights to enforcement may be vested in a trustee for the benefit of all the bondholders.
Interest on any bonds issued as contemplated hereunder may be exempt or nonexempt, as the case may be, from income taxation under the Internal Revenue Code of 1954, as amended, and under any successor legislation.
The bonds shall bear the manual or facsimile signatures of such officer or officers as may be designated in the ordinance authorizing such bonds, and such manual or facsimile signatures shall be the valid and binding signatures of officers notwithstanding that before the delivery thereof and payments therefor all of the persons whose signatures appear thereon have ceased to hold office. The validity of the bonds is not dependent on or affected by the validity or regularity of any proceedings relating to the acquisition, purchase, construction, reconstruction, improvement, equipping, betterment or extension of the project for which the bonds are issued. The ordinance authorizing the bonds may provide that the bonds shall contain a recital that they are issued pursuant to the terms of the Constitution and the laws of Delaware and the county. Upon the sale and delivery of any such bonds against payment, such recitals shall be conclusive as to the right, power and authority of the county to issue the same and to the legality, validity and enforceability of the obligation of the county to pay the principal of, premium, if any, and interest on the same from the sources specified herein.
All bonds contemplated by this chapter shall be limited special obligations of the county payable solely out of the revenues and receipts derived from the project and the related revenue agreement with respect to which such bonds are issued. No holder of any bonds shall have the right to compel any exercise of taxing power of the county or the state to pay such bonds, the interest or premium, if any, thereon, and such bonds shall not constitute an indebtedness of the county or the state or a loan of credit thereof within the meaning of any constitutional or statutory provision. It shall be plainly stated on the face of each bond that it has been issued under the provisions of this chapter and that it does not constitute an indebtedness of the county or the state or a loan of credit thereof within the meaning of any constitutional or statutory provisions.
All bonds issued pursuant to this chapter shall be secured by a pledge of the revenues and receipts derived from the revenue agreement entered into with respect to the project for which the bonds have been issued, such pledge constituting a lien upon such revenues and receipts, and the ordinance may provide for the issuance of additional bonds to be equally and ratably secured by the pledge of and lien upon such revenues and receipts or may provide that the pledge of and lien upon such revenues and receipts are subordinate.
The county, or any trustee on behalf of the county, may invest any funds held by it in any investments to the extent permitted by Delaware law. Any such investments may be purchased at the market price thereof at the time of such purchase.
The powers conferred by this chapter are in addition and supplemental to, and the limitations imposed by this chapter shall not affect, the powers conferred by any law or any other chapter. Projects may be developed, acquired, purchased, constructed, reconstructed, improved, bettered, equipped, extended and financed, and bonds may be issued under this chapter for such purposes, notwithstanding that any law or any other chapter may provide for the development, acquisition, purchase, construction, reconstruction, improvement, equipping, betterment, extension and financing of a like project or maritime industry financing project, or the issuance of obligations for like purposes, and without regard to the requirements, restrictions, limitations or other provisions contained in any law or any other ordinance.
The county pledges to and agrees with any holder of the bonds that the county will not impair, limit or alter the rights of the bondholders until all bonds at any time issued, together with the interest thereon and all costs and expenses in connection with any action or proceeding by or on behalf of the bondholders, are fully met and discharged; provided, however, that nothing herein contained shall preclude such limitation or alteration, if, and when, adequate provision shall have been made by law for the protection from impairment of the contracts represented by such bonds.
No employee of the Office shall acquire any interest direct or indirect in any project, or in any property included or planned to be included in any project. No employee shall have any financial interest in any contract or proposed contract for property, materials or services to be furnished or used in connection with any project.
If any employee acquires property by operation of law or inheritance or inadvertently acquires some interest in a project, said interest shall promptly be disclosed, in writing, to the director.
If the director determines that any employee has acquired an interest that is adverse to the best interests of the county, he may require said employee to divest himself of said property or interest or take what other steps he deems necessary to assure compliance with this section.
If any member of the Levy Court shall acquire any interest, direct or indirect, in any project or in any property included or planned to be included in any project, that member shall disclose such interest at a public meeting of the Levy Court and that member shall refrain from participating in the consideration of that project and any financing related thereto and shall abstain from voting in connection therewith.
[Added 12-20-1988 by Ord. No. 88-14; amended 12-10-1996 by Ord. No. 96-20]
Levy Court shall conduct a public hearing, following reasonable public notice, prior to the issuance by the county of any bond subject to the public approval requirements set forth in Section 147(f) of the Internal Revenue Code of 1986, as amended, or the corresponding provision of any subsequent federal tax statute.
The director is hereby authorized and empowered to enter into, on behalf of the county, any agreement with the state, or any agency or instrumentality thereof (including, without limitation, the Delaware Economic Development Authority), relating to services to be provided by the state, or any agency or instrumentality thereof, in connection with the issuance by the county of any economic development bond or maritime industry financing project bond and the post-issuance administration of such bond; provided, however, that the fees payable by the county to the state, or any agency or instrumentality thereof, under any such agreement shall not exceed 50% of the fees payable to the county as a result of the county's issuance of such bond.