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HomeMy WebLinkAboutNS-1609REL: adg 10/19/81 ORDINANCE NO. NS- 1609 AN ORDINANCE OF THE CITY OF SANTA ANA ADDING CHAPTER 28 TO THE SANTA ANA MUNICIPAL CODE, AUTHORIZING THE ISSUANCE OF CITY OF SANTA ANA INDUSTRIAL DEVELOPMENT BONDS FOR THE PURPOSE OF FINANCING INDUSTRIAL AND COMMERCIAL DEVELOPMENT WITHIN SAID CITY IN THE INTERESTS OF THE PUBLIC HEALTH, SAFETY AND WELFARE THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: SECTION 1: That the Santa Ana Municipal Code is hereby amended by adding a Chapter, to be numbered 28, which said Chapter consists of sections numbered 28-1 through 28-21, and reads as follows: Chapter 28. Industrial Development Bonds ARTICLE I. GENERAL PROVISIONS Sec. 28-1. Findings and determinations. The City Council of the City of Santa Ana hereby finds and determines as follows: (a) The full employment of residents of the City of Santa Ana, and the prevention of unemployment and underemployment of such residents, serves a vital and compelling public interest of the City of Santa Ana 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) The State legislature has not acted to place such public interests solely under State control or to prevent local action with respect thereto. (d) In the past, efforts have been made to assist industrial and commercial development and to promote local employment by State and federal agencies acting through local government. However, such efforts have generally been inadequately funded, unresponsive to local needs and objectives of the community, or have been unavailable to the City, making such efforts unsatisfactory for the City in effectuating the aforesaid public interests of the City. ORDINANCE NO. NS- 1609 PAGE TWO (e) The City can promote such public interests by assisting the financing of industrial and commercial development within the City, pursuant to this Chapter, without adversely affecting areas outside the boundaries of the City or transient residents of the State, and without conflicting with or in any way impairing the efforts of the State to solve problems of legitimate Statewide concern. (f) Encouraging industrial and commercial development pursuant to this Chapter (1) will promote the health, safety and welfare of the City, including those public interests enumerated in subsection (a) and subsection (b) hereof, and will improve the social, moral, economic and physical condition of the cc~munity thereby, and (2) constitutes a municipal affair of the City of Santa Ana, a valid exercise of the police powers of the City of Santa Ana, and a public purpose in which the City of Santa Ana has a peculiar and unique interest. Sec. 28-2. Definitions. Unless the context otherwise requires, the following definitions shall govern the construction of Chapter: this Acquisition. "Acquisition" and its variants means acquisition, construction, improvement, furnishing, equipping, remodeling, repair, reconstruction or rehabilitation. Administrative Expenses. "Administrative Expenses" means the reasonable and necessary expenses incurred by the City in the administration of the provisions of the Chapter with respect to a particular Project and the issuance of Bonds pursuant to this Chapter for said Project, including without limitation fees and expenses of paying agents, trustees, bond counsel and financing consultants, and costs of printing and advertising. submitted to obtain Application. "Application" means an application by a Participating Party pursuant to this Chapter financing for a Project. Bonds. "Bonds" means any bonds, notes, interim certificates, debentures or other obligations issued by the City pursuant to this Chapter, which are payable exclusively from Revenues and other funds permitted by this Chapter, 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. "City" means the City of Santa Ana, California, a charter city in the State existing under and exercising powers pursuant to the City Charter. City Council. "City Council" means the City Council of the City of Santa Ana. ORDINANCE NO. NS-1609 PAGE THREE City Charter. the City, entitled "The as amended from time to "City Charter" means the charter of Charter of the City of Santa Ana," time. Costs. "Costs" means, with reference to a Project, any or all of the following costs incurred for acquisition thereof: the (a) obligations of the incurred for labor and materials acquisition of the Project; Participating Party in connection with the (b) 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; (c) the cost of demolishing, removing or relocating any building or structure, and the cost of making relocation assistance payment required by law; (d) the cost of contract Bonds and of insurance of all kinds that may be required or necesaary during the course of the acquisition of the Project; (e) all costs of engineering, legal and consultant services, including the costs of the Participating Party for surveys, estimates, plans and specifications and preliminary investigation 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; (f) all costs incurred in connection with proceedings by the Participating Party necessary to cc~ply with the California Environmental Quality Act of 1970, as amended; (g) 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; (h) all Administrative Expenses; (i) be required to contracts, for all costs which the Participating Party pay, under the terms of any contract or the acquisition of the Project; shall (j) 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 (k) 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. ORDINANCE NO. NS- 1609 PAGE FOUR Finance. "Finance" and its variants means the lending of moneys or any other thing of value, or the purchase of loans, for the purpose of paying any or all of the costs of a project pursuant to this Chapter. Participating Part~. "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 Chapter. 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 Chapter. Pro~ect. "Project" means real property located within the City and improved or to be 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 Chapter. Revenues. "Revenues" means, with respect to a Project, all 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. Rules and Regulations. "Rules and Regulations" means the rules and regulations promulgated by the City Manager of the City of Santa Ana pursuant to Sec. 28-7 hereof. State. "State" means the State of California. ARTICLE II. POWER AND PURPOSES Sec. 28-3. 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 Chapter, 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 Chapter 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 repayment of Bonds issued therefor. ORDINANCE NO. NS- 1609 PAGE FIVE (e) To establish the terms and conditions financing of any Project undertaken pursuant to this Chapter. for the (f) To require that the full amount owed on any loan for the financing of a Project pursuant to this Chapter 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 to carry out the objects and purposes of this Chapter. (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 Chapter, to do all things necessary or convenient to carry out the purposes of this Chapter. Sec. 28-4. Non-operation. The City shall not have the power to operate any Project as a business. Furthermore, the City shall not realize a profit from any Project financed pursuant to this Chapter nor shall the City compete with any private firm in connection therewith. The City shall take no more action with respect to any Project than is necessary to promote the public interests of the City. Sec. 28-5. Applications for Financing. Participating Parties may apply for financing pursuant to this Chapter by filing an Application with the City in such form and with such person or office as shall be specified by the rules and regulations. Applications shall set forth all information required to evaluate the financial reliability and stability of the Participating Party and the feasibility of the proposed Project, and to verify and assure that the long-term employment of residents of the City will be increased. Among all other information, agreements and undertakings required to be contained therein, Applications shall include an estimate of the maximum amount of Bonds proposed to be issued, a description or itemization of the Costs of the proposed Project, and an agreement to pay all Administrative Expenses for the proposed Project. ORDINANCE NO. NS- 1609 PAGE SIX Sec. 28-6. 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, it shall adopt a resolution in which it (1) finds and determines that the proposed Project described in the Application (a) promotes the long-term employment of residents of the City, (b) will not adversely affect areas outside the boundaries of the City or transient residents of the State, and (c) is in the public interests of the City and constitutes a municipal affair of the City, a valid exercise of the police powers of the City, and a public purpose in which the City has a peculiar and unique interest, and (2) accepts and approves such Application and the participation of the City in the financing of such Project, subject to the provisions of this Chapter and the conclusion of all proceedings undertaken to consummate such financing to the satisfaction of the City. Sec. 28-7. Rules and Regulations. Ail proceedings taken in connection with the processing of Applications and the financing of Projects shall be in accordance with this Chapter and with such rules and regulations as promulgated, and as shall be amended or supplemented from time to time, by the City Manager of the City of Santa Ana in furtherance of this Chapter. ARTICLE III. BONDS Sec. 28-8. Authorization. The City is hereby authorized to issue Bonds in an aggregate principal amount of not to exceed $500,000,000 for the purpose of financing or otherwise assisting the acquisition of Projects authorized by this Chapter. Every issue of Bonds shall be a special obligation of the City, payable solely from all or any part of the Revenues of Projects. Sec. 28-9. 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 issued pursuant to 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. ORDINANCE NO. NS- 1609 PAGE SEVEN Sec. 28-10. Terms of Bonds. Any resolution issuing any Bonds may contain provisions respecting any of the following terms and conditions, which shall be a part of the contract with holders of the Bonds: the (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 reaised 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 the issuance of the Bonds as are deemed advisable by the City Council. to Sec. 28-11. Trust Agreement. In the discretion of the City Council, any Bonds issued under the provisions of this Chapter may be secured by a trust agreement by and between the City and a corporate trustee or trustees, 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 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. ORDINANCE NO. NS- 1609 PAGE EIGHT Sec. 28-12. Personal Liability. 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. Sec. 28-13. 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. Sec. 28-14. 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 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. ARTICLE IV. FINANCING OF PROJECTS Sec. 28-15. 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 Chapter. Sec. 28-16. Loan Agreements. The City may enter into loan 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 acquisiton of the Project shall be subject to such supervision as the City deems necessary. The terms and conditions of such loan agreements may be as mutually agreed upon, but shall not be inconsistent with the provisions of this Chapter or the Rules and Regulations. Any such loan 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 ORDINANCE NO. NS- 1609 PAGE NINE 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 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 be come 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 loan 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. (c) Pay Administrative Expenses to the extent not paid from Bond proceeds. Sec. 28-17. Trust Funds. Ail moneys received pursuant to the provisions of this Chapter, 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 Chapter. 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 Chapter, subject to the terms of the resolution or trust agreement authorizing the Bonds. ARTICLE V. MISCELLANEOUS Sec. 28-18. Liberal Construction. This Chapter, being necessary for the health, welfare and safety of the City and its residents, shall be liberally construed to effect its purposes. Furthermore, ORDINANCE NO. NS- 1609 PAGE TEN the City Council hereby declares that this Chapter 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 has to municipal affairs and its police powers, and this Chapter shall be liberally construed to uphold its validity under the laws of the State. Sec. 28-19. Supplemental and Additional Powers This Chapter 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 Chapter need not comply with the requirements of any other law applicable to the issuance of bonds. Sec. 28-20. Actions to Determine Validity of Bonds and Proceedings. One or more actions may be brought pursuant to Chapter 9 (commencing with E ection 860) of Title 10 of Part 2 of the Code of Civil Procedure to determine the validity of this Chapter or the Bonds or the legality and validity of all proceedings previously taken and (as provided in the Bond resolution) proposed to be taken for the issuance, sale and delivery of the Bonds and for the payment of the principal thereof and interest thereon. Sec. 28-21. Amendment of Ordinance. This Chapter 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 Chapter 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 2: If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentence, clauses, phrases, or portions be declared invalid or unconstitutional. ORDINANCE NO. NS- 1609 PAGE ELEVEN SECTION 3: to a bond adoption, in accordance with section 417 of the the City of Santa Ana. ADOPTED this 16th day of N0¥ember by the following vote: This ordinance, being an ordinance relating issue, shall take effect immediately upon Charter of COUNCILMEMBER$: AYES: COUNC I LM EMBERS: NOES: · 1981, Acosta, Bricken, Griset, Luxembourger, McGuigan, Serrato Markel ABSENT: ATTEST: APPROVED AS TO FORM: COUNC ILMEMBER$: N00e GO RDON/~R IC KEN EDWARD J. COOPER CITY ATTORNEY