[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:
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
I.
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.
J.
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.
The proposed limit of expenditures on a given project.
Economic Revenue Bonds or Maritime Industry Financing Project Bonds.
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.
Obligations issued by the county to finance an economic development
project.
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
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.
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
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.
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.
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
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).
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 of the Merchant Marine Act of 1936, as amended, being 46
U.S.C. §§ 1271-1279, inclusive, as amended.
Any obligation guaranteed by the government under Title XI.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
A.
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.
B.
It shall be the duty of the director to develop, administer
and implement programs and policies:
(1)
To encourage and promote the retention and expansion
of existing maritime, commercial, industrial, fishing, housing, health care,
educational and agricultural businesses within the county.
(2)
To attract new businesses to the county.
(3)
To finance economic development projects and maritime
industry financing projects approved by the Levy Court.
(4)
To encourage and promote banking and financial activities
within the county.
(5)
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:
A.
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.
B.
Undertake to finance the project costs of projects up
to each project's bond project limit.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
I.
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.
J.
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.
K.
Issue bonds for any of the purposes so designated in
this chapter subject to the limitations of this chapter.
L.
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.
M.
Mortgage, or permit the mortgaging of, an economic development
project for the benefit of the holder or holders of bonds issued therefor.
N.
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]
O.
Issue bonds and loan the proceeds thereof for the payment
of project costs without conveyance of the project to the county.
P.
Provide recommendations to assure compliance with the
Costal Zone Act of the state.
Q.
Enter into any contracts or make any loans necessary
to effectuate the purposes of this chapter.
A.
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.
B.
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:
A.
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.
B.
The issuance of other or additional bonds relating to
the project or any rehabilitation, improvements, renovations, enlargements
or additions thereto.
C.
The development, maintenance or repair of such project.
D.
The insurance to be carried thereon and disposition of
insurance moneys.
E.
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.
F.
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.
G.
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.
H.
The investment of any funds held by such trustee.
I.
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.
J.
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.
K.
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.
A.
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.
B.
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.
C.
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.
D.
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]
A.
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.
B.
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.
