Ordinance 2057M_OR ORDINANCE ORDINANCE NO. 2057
Y7ew Series
ORDINANCE OF THE CITY OF ALAMEDA RELATING TO
THE FINANCING OF INDUSTRIAL AND COMMERCIAL
DEVELOPMENT WITHIN SAID CITY IN THE
INTERESTS OF THE PUBLIC HEALTH, SAFETY
AND WELFARE
BE IT ORDAINED by the Council of the City of Alameda as follows:
Section 1 Findings and Determinations The City Council of the City
of Alameda hereby finds and determines as follows:
A. The full employment of residents of the City of Alameda, and
the prevention of unemployment and underemployment of such residents, serves a
vital and compelling public interest of the City of Alameda and promotes the
public health, safety and welfare of the City by reducing the incidence of
crime, improving the mental and physical health and well -being of the City's
residents, alleviating the financial drain upon limited public and private
resources for welfare programs and unemployment assistance, and enhancing the
financial resources of the City.
B. The encouragement of industrial and commercial development
within the City serves a vital and compelling public interest of the City and
promotes the public health, safety and welfare of the City by increasing the
employment of residents of the City, increasing the tax and revenue base and
thereby enhancing the financial resources of the City, and preventing physical
deterioration and abandonment of industrial and commercial areas within the
City. In addition, the City's participation in the financing of such
development serves the public interest by ensuring that such development will
reflect the needs and objectives of the community more so than if such
development were undertaken without City participation.
C. Encouraging industrial and commercial development pursuant to this
Ordinance (1) will promote the health, safety and welfare of the City,
including those public interests enumerated above, and will improve the
social, moral, economic and physical condition of the community thereby, and
(2) constitutes a municipal affair of the City of Alameda, a valid exercise of
the police powers of the City of Alameda, and a public purpose in which the
City of Alameda has a peculiar and unique interest.
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Section 2 . Definitions Unless the context otherwise requires, the
following definitions shall govern the construction of this Ordinance:
"Acquisition" and its variants means acquisition, construction,
improvement, furnishing, equipping, remodeling, repair, reconstruction or
rehabilitation.
"Administrative Expenses" means all reasonable and necessary expenses
incurred by the City in the administration of the provisions of this Ordinance
with respect to a particular Project and the financing thereof, including
without limitation compensation to City agents, employees and staff, fees and
expenses of paying agents, trustees, bond counsel and financing consultants,
and costs of printing and advertising.
"Bonds" means any bonds, notes, interim certificates, debentures or
other obligations issued by the City pursuant to this Ordinance, which are
payable exclusively from Revenues and other funds permitted by this Ordinance,
and which are "industrial development bonds" within the meaning of Section
103(b) of the Internal Revenue Code of 1954, as amended, or any similar
provision of said Code then in effect.
"City" means the City of Alameda, California, a charter city in the
State existing under and exercising powers pursuant to the City Charter.
"City Charter" means the charter of the City, as amended from time to
time.
"City Council" means the City Council of the City.
"Costs" means, with reference to a Project, any or all of the following
costs incurred for the acquisition thereof:
1. obligations of the Participating Party incurred for labor and
materials in connection with the acquisition of the Project;
2. the cost of acquisition of any property, whether real or
personal and improved or unimproved, including franchise rights and
other intangible property, and any interests therein, required for
the acquisition of the Project;
3. the cost of demolishing, removing or relocating any building or
structure, and the cost of making relocation assistance payments
required by law;
4. the cost of contract bonds and of insurance of all kinds that
may be required or necessary during the course of the acquisition
of the Project;
5, all costs of engineering, legal and consultant services,
including the costs of the Participating Party for surveys,
estimates, plans and specifications and preliminary investigation
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therefor, and for supervising construction, as well as for the
performance of all other duties required by or consequent upon the
proper acquisition of the Project;
6. all costs incurred in connection with proceedings by the
Participating Party necessary to comply with the California
Environmental Quality Act of 1970, as amended;
7. all amounts required to fund any reserve funds for Bonds and
any interest on Bonds becoming due and payable during a period not
exceeding the period of acquisition of the Project and 12 months
thereafter;
8. all Administrative Expenses;
9. all costs which the Participating Party shall be required to
pay, under the terms of any contract or contracts, for the
acquisition of the Project;
10. the refinancing of any existing indebtedness secured by an
interest in any real property comprising any portion of the
Project, so long as and to the extent that such refinancing does
not cause interest on the Bonds to become taxable under Section 103
of the Internal Revenue Code of 1954, as amended; and
11. any sums required to reimburse the Participating Party for
advances made for any of the above items or for any other costs
incurred and for work done which are properly chargeable to the
Project.
"Finance" and its variants means the lending of moneys or any other
thing of value, or the purchase of loans or the entering into of leases or
installment sale agreements, for the purpose of paying or otherwise providing
for or assisting the payment of any or all of the Costs of a Project pursuant
to this Ordinance.
"Participating Party" means any person, corporation, partnership, firm
or other entity or group of entities requiring financing for the acquisition
of a Project pursuant to this Ordinance. No member of the City Council or
officer, staff member or employee of the City shall be eligible to be a
Participating Party under the provisions of this Ordinance.
"Project" means real property located within the City and improved with
an industrial or commercial structure, and all property in connection
therewith or incidental thereto, including machinery, equipment and
furnishings, the acquisition of which is financed or otherwise assisted
pursuant to this Ordinance.
"Ordinance" means this 1 Ord�ina_nce No. Zo , passed and adopted by the
City Council of the City on L, U , 1981, pursuant to the City Charter.
"Revenues" means, with respect to a Project, aII amounts received as
repayment of principal, interest and all other charges received for, and all
other income and revenue (including the proceeds of insurance) derived by, the
City in connection with such Project, and any receipts derived from the
investment of such income or revenues, including moneys deposited in a
sinking, redemption or reserve fund or other fund to secure the Bonds or to
provide for the payment of the principal of or interest on the Bonds and such
other moneys as the City Council may in its discretion make available therefor.
"State means the State of California.
Section 3 . Powers The .City is authorized and empowered:
A. To determine the location and character of any Project to be
financed under the provisions of this Ordinance, and to finance such Projects
by making or purchasing loans to Participating Parties therefor.
B. To issue Bonds for the purpose of financing or otherwise assisting
the acquisition of Projects authorized by this Ordinance and for the purpose
of funding or refunding Bonds.
C. To fix fees, charges and interest rates for financing any Project,
and to revise such fees, charges and interest rates from time to time, and to
collect interest and principal on any loan made to a Participating Party
together with such fees and charges incurred in such financing, and to
contract with any person, partnership, association, corporation or public
agency with respect thereto.
D. To hold deeds of trust as security for financing any Project and to
pledge the same as security for repayment of Bonds issued therefor.
E. To establish the terms and conditions for the financing of any
Project undertaken pursuant to this Ordinance.
F. To require that the full amount owed on any loan for the financing
of a Project pursuant to this Ordinance shall be due and payable upon sale or
other transfer of ownership of such Project.
G. To acquire, by deed, purchase, lease, contract, gift, devise, or
otherwise, any real or personal property, structures, rights, rights -of -way,
franchises, easements, mortgages and other interests in property located
within the State necessary or convenient for the financing or acquisition of a
Project, upon such terms and conditions as it deems advisable, and to lease,
sell or dispose of the same in such manner as may be necessary or desirable tor
carry out the objects and purposes of this Ordinance. Notwithstanding the
foregoing, nothing in this Ordinance is intended or shall be construed in any
way to authorize any exercise of the power of eminent domain with respect to
any Project.
H. To employ or contract for such engineering, architectural,
accounting, collection, economic feasibility, or other services in connection
with the servicing of loans made to Participating Parties, as may be necessary
in the judgment of the City Council for the successful financing of a
Project. The City may pay the reasonable costs of consulting engineers,
architects, accountants, construction experts, and economic feasibility
experts, if, in the judgment of the City Council, such services are necessary
to the successful financing of a Project and if the City is not able to
provide such services. The City may employ, contract for, and fix the
compensation of financing consultants, bond counsel, and other advisers as may
be necessary in its judgment to provide for the issuance and sale of Bonds.
I. In addition to all other powers specifically granted in this
Ordinance, to do all things necessary or convenient to carry out the purposes
of this Ordinance.
Section 4 . Non - operation The City shall not have the power to operate
any Project as a business. The City shall take no more action with respect to
any Project than is necessary to promote the public interests•of the City.
Section 5 . Applicatio for Financing Participating Parties may apply
for financing pursuant to this Ordinance by contacting the City Manager or
other officer or employee of the City designated by the City Manager. Each
applicant shall supply to the satisfaction of the City Manager or such officer
or employee all information required to evaluate the financial reliability
and stability of the Participating Party and the feasibility of the proposed
Project, including an estimate of the maximum amount of financing to be
required, a description or itemization of the Costs of the proposed Project,
and a written agreement to pay all Administrative Expenses for the proposed
Project.
Section 6 Acceptance of Applications Upon receipt of an application
containing all required information, agreements and undertakings, the City
Council shall at such time as is deemed convenient by it review such
application and any staff recommendations with respect thereto. If the City
Council chooses to approve any application for financing under this Ordinance,
it shall adopt a resolution authorizing the issuance of Bonds and /or accepting
and approving such application and the participation of the City in the
financing of such Project, subject to the provisions of this Ordinance and the
conclusion of all proceedings undertaken to consummate such financing to the
satisfaction of the City.
Section 7 . Authoriza The City may issue its Bonds for the purpose
of financing or otherwise assisting the acquisition of Projects authorized by
this Ordinance. Every issue of Bonds shall be a special obligation of the
City, payable solely from all or any part of the Revenues of Projects.
Section 8 . Issuance of Bonds The Bonds may be issued as serial Bonds
or as term Bonds, or the City Council, in its discretion, may issue Bonds of
both types. The Bonds shall be authorized by resolution of the City Council
and shall bear such date or dates, mature at such time or times, bear interest
at such fixed or variable rate or rates, be payable at such time or times, be
in such denominations, be in such form, either coupon or registered, carry
such registration privileges, be executed in such manner, be payable in lawful
money of the United States of America, at such place or places, and be subject
to such terms of redemption as the resolution or resolutions of the City
Council may provide. The Bonds may be sold at either a public or private sale
and for such prices as the City Council shall determine. Pending preparation
of the definitive Bonds, the City may issue interim receipts, certificates, or
temporary Bonds, which shall be exchanged for such definitive Bonds.
Section 9 . Terms of Bonds Any resolution or resolutions authorizing
any Bonds or any issue of Bonds may contain provisions respecting any of the
following terms and conditions, which shall be a part of the contract with the
holders of the Bonds:
A. The pledge of all or any part of the Revenues, subject to such
agreements with Bondholders as may then exist.
B. The interest and principal to be received and other charges to be
charged and the amounts to be raised each year thereby, and the use and
disposition of the Revenues.
C. The setting aside of reserves or sinking funds and the regulation
and disposition thereof.
D. Limitations on the purposes to which the proceeds of a sale of any
issue of Bonds, then or thereafter issued, may be applied, and pledging such
proceeds to secure the payment of the Bonds or any issue of Bonds.
E. Limitations on the issuance of additional Bonds, the terms upon
which additional Bonds may be issued and secured, and the refunding of
outstanding Bonds.
F. The procedure, if any, by which the terms of any contract with
Bondholders may be amended or abrogated, the amount of Bonds the holders of
which must consent thereto, and the manner in which such consent may be given.
G. Specification of the acts or ,omissions to act which shall constitute
a default in' the duties of the City to holders of its obligations, and
providing the rights and remedies of such holders in the event of default.
H. The mortgaging of land, improvements, or other assets owned by a
Participating Party for the purpose of securing the Bondholders.
I. Such other terms and conditions pertaining to the issuance of the
Bonds as are deemed advisable by the City Council.
Section 10 . Trust Agreement In the discretion of the City Council,
any Bonds issued under the provisions of this Ordinance may be secured by a
trust agreement by and between the City and a corporate trustee or trustees,
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which may be any trust company or bank having the powers of a trust company
within or without the State. Such trust agreement or the resolution providing
for the issuance of such Bonds may pledge or assign the Revenues to be
received or proceeds of any contract or contracts pledged, and may convey or
mortgage any property. Such trust agreement or resolution providing for the
issuance of Bonds may contain such provisions for protecting and enforcing the
rights and remedies of the Bondholders as may be reasonable and proper and not
in violation of law, including such provisions as may be included in any
resolution or resolutions of the City Council authorizing the issuance of
Bonds pursuant to Section 3.03. Any bank or trust company doing business
under the laws of the State which may act as depositary of the proceeds of
Bonds or of Revenues or other moneys may furnish such indemnity bonds or
pledge such securities as may be required by the City. Any such trust
agreement may set forth the rights and remedies of the Bondholders and of the
trustee or trustees, and may restrict the individual right of action by
Bondholders. In addition to the foregoing, any such trust agreement or
resolution may contain such other provisions as the City Council may deem
reasonable and proper for the security of the Bondholders.
Section 11 . Personal Liablity Neither the members of the City Council
nor any person executing the Bonds shall be liable personally on the Bonds or
be subject to any personal liability or accountability by reason of the
issuance thereof.
Section 12 . Refunding Bonds The City Council may provide for the
issuance of Bonds any portion of which is to be used for the purpose of
refunding outstanding Bonds, including the payment of the principal thereof
and interest and redemption premiums, if any, thereon. The proceeds of Bonds
issued to refund any outstanding Bonds may, in the discretion of the City
Council, be applied to the retirement of such outstanding Bonds at maturity,
or the redemption (on any redemption date) or purchase of such outstanding
Bonds prior to maturity, upon such terms and subject to.such conditions as the
City Council shall deem advisable.
Section 13 . Repayment of Bonds Revenues shall be the sole source of
funds pledged by the City for repayment of Bonds issued hereunder. Bonds
issued hereunder shall not be deemed to constitute a debt or liability of the
City or a pledge of the faith and credit of the City but shall be payable
solely from Revenues. All Bonds shall contain on the face thereof a statement
to the following effect:
"Neither the faith and credit nor the taxing power of the City
of Alameda is pledged to the payment of the principal of or
interest on this Bond."
The issuance of Bonds shall not directly, indirectly or contingently obligate
the City Council to levy or pledge any form of taxation or to make any
appropriation for their payment.
Section 14 Authority to Assist Projects The City may provide
financing to any Participating Party for, or otherwise assist the acquisition
of, duly approved Projects pursuant to this Ordinance. At the discretion of
the City Council the financial assistance provided hereunder may take any form
deemed advisable for the successful financing of the Project, including
without limitation in the form of a loan, lease or installment sale.
Section 15 . Financing Agreements The City may enter into agreements
with any Participating Party with respect to the financing of a Project, which
agreements may provide that the architectural and engineering design of the
Project shall be subject to such standards as may be established by the City
and that the acquisition of the Project shall be subject to such supervision
as the City deems necessary. The terms and conditions of such agreements may
be as mutually agreed upon, but shall not be inconsistent with the provisions
of this Ordinance. Any such agreement may provide the means or methods by
which any mortgage taken by the City shall be discharged, and it shall contain
a covenant by the Participating Party to complete the Project whether or not
Bond proceeds are sufficient therefore, and such other terms and conditions as
the City may require. The City is authorized to fix, revise, charge, and
collect interest and principal and all other rates, fees, and charges with
respect to the financing of a Project. Such rates, fees, charges, and
interest shall be fixed and adjusted so that the aggregate of such rates,
fees, charges, and interest will provide funds sufficient with other revenues
and moneys which it is anticipated will be available therefor, if any, to do
all of the following:
A. Pay the principal of and interest on outstanding Bonds issued to
finance such Project, as the same shall become due and payable.
B. Create and maintain reserves required or provided for in any
resolution authorizing such Bonds. A sufficient amount of the Revenues
derived from the Project may be set aside at such regular intervals as may be
provided by the resolution or trust agreement in a sinking or other similar
fund, which shall be pledged to, and charged with, the payment of the
principal of and interest on such Bonds as the same shall become due, and the
redemption price or the purchase price of Bonds retired by call or purchase as
therein provided. Such pledge shall be valid and binding from the time the
pledge is made. The rates, fees, interest, and other charges, revenues, or
moneys so pledged and thereafter received by the City shall immediately be
subject to the lien of such pledge without any physical delivery thereof or
further act, and the lien of any such pledge shall be valid and binding as
against all parties having claims of any kind in tort, contract, or otherwise
against the City, irrespective of whether such parties have notice thereof.
Neither the resolution, the trust agreement nor any agreement by which a
pledge is created need be filed or recorded except in the records of the
City. The use and disposition of moneys to the credit of such sinking or
other similar fund shall be subject to the provisions of the resolution or
trust agreement authorizing the issuance of such Bonds.
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C. Pay Administrative Expenses to the extent not paid from Bond
proceeds.
Section 16 . Trust Funds All moneys received pursuant to the
provisions of this Ordinance, whether proceeds from the sale of Bonds or
Revenues, shall be deemed to be trust funds to be held and applied solely for
the purposes of this Ordinance. Any bank or trust company in which such
moneys are deposited shall act as trustee of such moneys and shall hold and
apply the same for the purposes specified in this Ordinance, subject to the
terms of the resolution or trust agreement authorizing the Bonds.
Section 17 . Liberal Construction This Ordinance, being necessary for
the health, welfare and safety of the City and its residents, shall be
liberally construed to effect its purposes. Furthermore, the City Council
hereby declares that this Ordinance is an exercise of the power granted to the
City by the City Charter and the Constitution of the State and is an exercise
by the City of its powers as to municipal affairs and its police powers, and
this Ordinance shall be liberally construed to uphold its validity under the
laws of the State.
Section 18 Supplemental and Additional Powers This Ordinance shall
be deemed to provide a complete, additional, and alternative method for doing
the things authorized thereby, and shall be regarded as supplemental and
additional to the powers conferred by other laws. The issuance of Bonds under
the provisions of this Ordinance need not comply with the requirements of any
other law applicable to the issuance of bonds.
Section 19 Actions to Determine Validity of Bonds and Proceedings An
action may be brought pursuant to Chapter 9 (commencing with Section 860 of
Title 10 of Part 2 of the Code of Civil Procedure�to determine the validity of
Bonds and the legality and validity of all proceedings previously taken and
(as provided in the Bond resolution) proposed to be taken for the
authorization, issuance, sale, and delivery of the Bonds and for the payment
of the principal thereof and interest thereon.
Section 20 Amendment of Ordinance This Ordinance shall not be
amended so as to affect adversely the rights of the holders of any outstanding
Bonds theretofore issued hereunder, or the rights of Participating Parties
with respect to whom Projects have theretofore been financed hereunder,
without the written consent of such Bondholders and Participating Parties;
provided, however, that this Ordinance may be amended at any time (a) to make
such provisions for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision herein contained, as the
City may deem necessary or desirable; or (b) if such amendment does not
materially impair or adversely affect the interests of any such Bondholder or
Participating Party in the opinion of the City Council; or (c) if such
amendments apply solely to Bonds not theretofore issued hereunder or
Participating Parties with respect to whom Projects have not theretofore been
financed hereunder.
Section 21. Partial Invalidity. If any Section, paragraph, sentence,
clause or phrase of this Ordinance shall for any reason be held illegal or
unenforceable, such holding shall not affect the validity of the remaining
portions of this Ordinance. The City Council hereby declares that it would
have adopted this Ordinance and each and every other Section, paragraph,
sentence, clause or phrase hereof and authorized the proceedings authorized to
be taken pursuant theretd irrespective of the fact that any one or more
Sections, paragraphs, sentences, clauses, or phrases of this Ordinance may be
held illegal,.invalid or unenforceable.
Section 22 . Publicatio and Effective Da te of O This
Ordinance shall be publishes iin the manner provided in Section 314 of the City
Charter and shall take effect from and after the 30th day following the date
of its passage and adoption.
PASSED AND ADOPTED this 9th day of July , 1981, by the following vote:
AYES: Councilmen Diament, Gorman, Sherratt, Stone, and President Corica - 5.
NOES: None.
ABSENT: None.
(SEAL)
Mayor
ATTEST:
S
J
City C rk
APPROVED AS TO FORM:
ity �2L
Att orney
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