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Ordinance - 2000 - 385 - Establishment Of Difac - 02/13/2000 ORDINANCE NO. 385 AN ORDINANCE OF THE CITY OF EAGLE, ADA COUNTY, IDAHO, AUTHORIZING AND PROVIDING FOR THE ESTABLISHMENT, ORGANIZATION, AND OPERATION OF A PUBLIC CORPORATION TO IMPLEMENT CHAPTER 27, TITLE 50, IDAHO CODE; APPROVING A CHARTER FOR SUCH CORPORATION; SPECIFYING THE POWERS, AUTHORITY, AND LIMITATIONS OF THE PUBLIC CORPORATION; PROVIDING FOR CONTROL AND SUPERVISION OF THE PUBLIC CORPORATION BY THE CITY; REPEALING CONFLICTING ORDINANCES; PROVIDING FOR RELATED MATTERS; AND PROVIDING EFFECTIVE DATE WHEREAS, the Legislature of the State of Idaho has provided for the creation of public corporations by cities of the State of Idaho, pursuant to Chapter 27, Title 50, Idaho Code, for the purpose of facilitating economic development and employment opportunities in the State of Idaho through financing by such public corporations of the proj ect costs of industrial development facilities, all as authorized by Article 8, Section 5, Idaho Constitution; and WHEREAS, the City of Eagle desires to avail itself of the authority contained in Chapter 27, Title 50, Idaho Code, by creating a public corporation for the purposes stated therein. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF EAGLE, IDAHO, as follows: Section 1: The City of Eagle, Ada County, Idaho (the IICityll), does hereby create a public corporation, as authorized by Section 50-2703, Idaho Code, to carry out the purposes of the Municipal Industrial Development Program Act, the same being Chapter 27, Title 50, Idaho Code (the IIActll). The City reserves the power, as provided in Section 50-2703, Idaho Code, to alter or change the structure, organization and programs, or activities of the public operation, or to dissolve the same, at any time. Section 2: The name of the public corporation shall be The Industrial Development Corporation of the City of Eagle, Idaho (the "Corporationll). Section 3: The Corporation shall have all of the powers and shall be subject to all of the requirements and limitations contained in the Act and as set forth in this ordinance. Section 4: A charter is hereby issued to the Corporation by the City, which shall grant to the Corporation all powers authorized by the Act. A copy of the charter granted hereby is annexed to this ordinance as Exhibit "All and is by reference incorporated herein. The charter may be amended from time to time by ordinance duly adopted by the City. The existence of the Corporation shall commence upon t:he effective date of this ordinance. Page 1 Section 5: The Board of Directors of the Corporation (the "Board") shall consist of three (3) residents of the City appointed by the Mayor and confirmed by the City Council. Of the members first appointed, one member shall be appointed for a term of one (1) year, one for a term of two (2) years, and one for a term of three (3) years. Thereafter, upon expiration of the initial term of appointment, each member shall be appointed to a three (3) year term. If a vacancy occurs during an unexpired term, the Mayor shall appoint a member to serve the remainder of the unexpired term. Each member shall serve until his or her successor is appointed and qualified. A majority of the members of the Board shall constitute a quorum, and the approval of a majority of a quorum shall be necessary for the Board to take any action. Section 6: The business affairs of the Corporation shall be conducted and carried out by the Board. The Board shall elect officers from among its own members, which officers shall serve until their successors have been duly elected. Officers shall include a president, vice-president, and a secretary-treasurer. An officer may hold more than one office. The Board shall adopt by-laws, rules, and regulations governing the conduct of the Corporation, which may be amended from time to time by the Board. Members of the Board shall serve without compensation, but may be reimbursed for actual and necessary expenses as provided by the by-laws, rules, and regulations of the Board. Section 7: No director, officer, agent, or employee of the Corporation shall have, directly or indirectly, any financial interest in any property to be included in, or any contract for property, services, or materials to be furnished or used in connection with, any industrial development facility financed through the Corporation. Section 8: The Corporation shall have all the powers granted by the Act, including, without limitation, all powers set forth in the charter. The Corporation shall be subject to all of the requirements and limitations set forth in the Act, in this ordinance, and in the charter. Section 9: The Corporation may not operate any industrial development facilities as a business other than as lessor, seller, or lender, but may purchase and hold mortgages, deeds of trust, or other security interests and contract for any servicing thereof. Section 10: The City shall not give or lend any money in aid of the Corporation except as expressly authorized by the Act, nor exercise its powers of sovereignty, including the police power, the power of taxation, or the power of eminent domain, for or on behalf of the Corporation. This provision shall not Page 2 preclude the City from contracting with the Corporation for the provision of services to the Corporation or otherwise dealing with the Corporation on an arms-length basis. The City may, as authorized by Section 50-2706, Idaho Code, accept grants from the United States and apply grants in connection with industrial development facilities. Section 11: The Corporation shall not issue revenue bonds or other financing obligations except upon the approval of the City Council of the City. The Corporation may not exercise any powers or issue any revenue bonds or other obligations with respect to any industrial development facility unless such facility is located wholly within the boundaries of the City, except as set forth in the Act and in the charter. Section 12: Any net earnings of the Corporation beyond those necessary for retirement of indebtedness incurred by it shall inure to the City and not for the benefit of any other person. Upon dissolution of the Corporation, as provided by the Act, title to all property owned by the Corporation shall vest in the City. Section 13: All ordinances or portions of ordinances in conflict with this ordinance are, to the extent of such conflict, hereby repealed. Section 14: This ordinance, or a summary thereof as provided by Section 50-901A, Idaho Code, substantially in the form which is annexed hereto as Exhibit liB," shall be published once and shall take effect and be in full force from and after its passage, approval, and publication. DATED this /3-t1t day of r-4'/brvtQ. r'1 2000. CITY OF EAGLE Ada County, Idaho By: ATTEST: ~ C<--kL-- ~ 11) ~ ........ Ci ty\'" Clerk A L '...oJ ""f;..~\.''OFlJ':'. "'1'.. (S E i!!r .... .ct f', '.'l' ~' .It -""1>"'... '..".' 1\ .:"" gl!!t.... """"0,.. "'1~'- "'.}"l t"';' <fJ~ "t> ',- .',; (~ 'Ii. '" '" '" 0 ., "'.. V'.' ~ I ~~ "<\I":'> '\. ~~ ;t ..g' ~ 0 ..'1>" t\ Page 3 ~ *1~~~~;))/~:) '~;;;''I'~~z~,t~,~"YJ;7 CHARTER OF THE INDUSTRIAL DEVELOPMENT CORPORATION OF THE CITY OF E~~GLE, IDAHO "J ARTICLE I NAME, SEAL AND DEFINITIONS The name of this public corporation shall be the Industrial Development Corporation of the City of Eagle, Idahb. The corporate seal of this corporation shall be a circle with the name liThe Industrial Development Corporation of the -City of Eagle, Idaho'! inscribed therein. As used in this Charter, unless otherwise required by context, the following words shall have the following meanings: Act means Chapter 27, Title 50, Idaho Code. Board means corporation. the Board of Directors of the public City means the City of Eagle, Ada County, Idaho. Construct or acquisition, whether otherwise. Construction by devise, means purchase, construction gift, lease and or Corporation means the Industrial Development Corporation of the City of Eagle, Idaho. Facilities means land, rights ln land, buildings, structures, machinery, landscaping, extension of utility services, approaches, roadways and parking, handling and storage areas, and similar ancillary facilities. Financinq Document means a lease, sublease, installment sale agreement, conditional sale agreement, loan agreement, mortgage, deed of trust, guaranty agreement or other agreement for the purpose of providing funds to payor secure debt service on Revenue Bonds. Improve or Improvement means to reconstruct, rehabilitate, extend and enlarge. remodel, Industrial Development Facility or Industrial Development Facilities means manufacturing, processing, production, assembly, warehousing, solid waste disposal, recreation and energy facilities, excluding facilities to transmit, distribute or produce electrical energy. Recreation facilities shall include only those recreation facilities permitted by the Act. Page 1 - EXHIBIT II A" Ordinance means Ordinance No. 385 of the City, pursuant to which the Corporation is created. Prolect Costs means costs of: l."'} (a) Acquisition, construction and improvement of any Facilities included in an Industrial Development Facility; (b) Architectural, engineering, consulting, accounting and legal costs related directly to the development, financing and construction of an Industrial Development Facility, including costs of studies assessing the feasibility thereof and all administrative costs incurred before the issuance of Revenue Bonds; (c) Financing costs, including discounts, costs of issuing Revenue Bonds, and costs carrYlng out any trust agreement; if any, the incurred in (d) Interest during construction and interest on Revenue Bonds issued to finance such Facility to a date no later than six (6) months subsequent to the estimated date of completion, and capitalized debt service or repair and replacement or other appropriate reserves; (e) The refunding of any outstanding obligations incurred for any of the costs outlined in this subsection; and (f) Other costs incidental to any of the costs listed ln this section. Revenue Bonds means nonrecourse revenue bonds, nonrecourse revenue notes or other nonrecourse revenue obligations issued for the purpose of financing an Industrial Development Facility on an interim or permanent basis. User means any individual, partnership, copartnership, firm, company, corporation, investor-owned utility, association, joint stock company, trust, estate, or any other legal entity, or their legal representatives, agents or assigns acting as lessee, purchaser, mortgagor or borrower under a Financing Document and may include a party who transfers the right of use and occupancy to another party by lease, sublease or otherwise. ARTICLE II CREATION OF THE CORPORATION AND GRANT OF POWER The Corporation is a public corporation organized pursuant to the Act and the Ordinance. Page 2 - EXHIBIT "N' ARTICLE III DURATION OF THE CORPORATION "".J Unless modified by State law or by an ordinance of the City, the duration of this Corporation shall be perpetual. ARTICLE IV A PURPOSES OF THE CORPORATION The purpose of the Corporation is to function as corporation pursuant to the provisions of the Act Ordinance, to issue tax exempt nonrecourse Revenue finance Industrial Development Facilities within the boundaries of the City. a public and the Bonds to corporate The financing of Industrial Development Facilities within the corporate boundaries of the City is for the purpose of promoting higher employment; facilitating economic development; encouraging the development of new jobs; maintaining and supplementing the capital investments in industry that currently exist within the State; encouraging future employment by insuring future capital investment; attracting environmentally sound industry within the corporate boundaries of the City and to the State; protecting and enhancing the quality of natural resources and the environment; and promoting the production and conservation of energy. The objects and purposes specified in the foregoing clauses shall, except as otherwise expressed, be in no wise limited or restricted by reference to, or inference from, the terms of any other clause in this Charter but the objects and purposes specified in each of the foregoing clauses shall be regarded as independent objects and purposes. ARTICLE V POWERS OF THE CORPORATION The Corporation shall have all the powers granted to it by the Act and by the Ordinance, including, but not limited to, the following: (a) To locate, construct and maintain one or more Industrial Development Facilities; (b) To lease to a lessee all or any part of any Industrial Development Facility for such rentals and upon such terms and conditions, including lease renewals and Page 3 - EXHIBIT "A" options to purchase, as its Board considers advisable and not in conflict with the Actj (c) To sell by installment contract or otherwise and convey all or any part of any Industrial Development Facility for such purchase price and upon such terms and conditions as its Board considers advisable, which are not in conflict with the Act. (d) To make loans for the purpose of providing temporary or permanent financing or refinancing of all or part of the project cost of any Industrial Development Facili ty, including the refunding of any outstanding obligations, mortgages, or advances issued, made, or given by any person for the proj ect costs; and to charge and collect interest on the loans for the loan payments upon such terms and conditions as its Board considers advisable which are not in conflict with the Actj (e) To issue Revenue Bonds for the purpose of financing all or part of the Project Cost of any Industrial Development Facility and to secure the payment of the Revenue Bonds as provided in the Actj (f) As security for the payment of the principal of and interest on any Revenue Bonds issued and any agreements made in connection therewith, to mortgage, pledge, or otherwise encumber any or all of its Industrial Development Facilities or any part or parts thereof, whether then owned or thereafter acquired, and to assign any lease or mortgage and repledge any security conveyed to the Corporation, to secure any loan made by the Corporation and to pledge the revenues and receipts therefromj (g) To sue and be sued, complain, and defend in its corporate namej ( h) necessary businessj To make contracts and to execute all instruments or convenient for the carrying out of its (i) To have a corporate seal and to use the same by causing it, or a facsimile thereof, to be impressed or affixed or in any other manner reproducedj (j) Subject to the limitations of Section 50-2706, Idaho Code, to borrow money, accept grants from, or contract wi th any local, state, or federal governmental agency or with any financial public, or private corporation; Page 4 - EXHIBIT II A" (I) To collect fees or charges from users or prospective users of Industrial Development Facilities to recover actual or anticipated administrative costs; (m) To execute financing documents powers enumerated in this subsection; incidental to the -- (n) To have any and all other powers granted tel public corporations under the Act as from time to time amended; (0) To invest any funds in its possession or under its control in such manner and in such obligations as provided in the bond indenture pursuant to which Revenue Bonds were issued; provided, however, such funds are not commingled with any other funds; (p) To provide in proceedings authorizing any Revenue Bonds or in any financing documents securing said Revenue Bonds that if there is a default in the payment of the principal or of interest on the Revenue Bonds or in the performance of any agreement contained therein, that payment and performance may be enforced by mandamus or by the appointment of a receiver in equity with power to charge and collect rents, purchase price payments and loan repayments, and to apply the revenues of the Industrial Development Facility in accordance with the proceedings or provisions of the Financing Document. Any Financing Document may also provide that in the event of default or violation of any agreement contained therein, the Industrial Development Facil i ty may be foreclosed and sold under proceedings in equity or in any other manner now or hereafter permitted by law and that the trustee or bondholder may become the purchaser at any foreclosure sale if it is the highest bidder. ARTICLE VI LIMITATIONS ON THE CORPORATION 1. The City may not give or lend any money or property in aid of the Corporation. This provision shall not preclude the City from accepting grants from the United States government or any agency thereof and applying same in connection with Industrial Development Facilities. Page 5 - EXHIBIT "A" 2. The City shall annually review any financial statements of the Corporation and shall at all times have access to the books and records of the Corporation. 3. The Corporation may not issue Revenue Bonds except upon the approval of the City. 4. No Revenue Bonds may be issued by the Corporation unless the Board makes a finding, based upon the advice of recognized municipal bond counsel, that in its opi~ion the interest paid on the bonds will be exempt from income taxation by the federal government. ~ 5. Revenue Bonds issued by this Corporation shall not be considered to constitute a debt of the State of Idaho, of the City or of any other municipal corporation, quasi-municipal corporation, subdivision or agency of this state or to have pledged any or all of the faith and credit of any of those entities. 6. Revenue Bonds issued by the Corporation shall be payable solely from the revenues derived as a result of the Industrial Development Facilities funded by the Revenue Bonds, including, without limitation, amounts received under the terms of any Financing Document or by reason of any additional security furnished by the User of the Industrial Development Facility in connection with the financing thereof, and money and other property received from private sources. 7. Each Revenue Bond issued by this Corporation shall contain on its face statements to the effect that: (a) Neither the State, the City, nor any other municipal corporation, quasi-municipal corporation, subdivision or agency of the state is obligated to pay the principal or the interest thereon; (b) No tax funds or governmental revenue may be used to pay the principal or interest thereon; and (c) Neither any or all of the faith and credit nor the taxing power of the State, the City or any other municipal corporation, quasi-municipal corporation, subdivision, or agency thereof is pledged to the payment of the principal of or the interest on the Revenue Bonds. 8. Revenue bonds issued pursuant to the Act shall bear the seal of the Corporation, which may either be physically impressed thereon or printed as a facsimile thereof, and the signature of the President of the Board, or in his or her absence and in his or her stead, the Vice President, and the signature of the Page 6 - EXHIBIT "A" Secretary of the Board, or in his or her absence and in his or her stead, the Assistant Secretary. The signatures may be either manual or facsimile, or a combination thereof. I \\0-' 9. The Corporation may incur only those financial obligations which will be paid from revenues received pursuant to Financing Documents, from fees or charges paid by users or prospective users of the Industrial Development Facilities funded by the Revenue Bonds, or from the proceeds of Revenue Bo~ds. The Corporation has no authority to incur or create any liability that permits recourse by any person to any assets, resources, or credit of the City. 10. The Corporation constitutes an instrumentality of the City (within the meaning of Section 103 of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder) ,_ and may act "on behalf of" the City only for the purposes set forth in this Charter. The Corporation is not a municipal corporation or a political subdivision within the meaning of the State Constitution, and the City shall not delegate to the Corporation any of its attributes of sovereignty, including, without limitation, the power to tax, the power of eminent domain and police power. 11. The finances of the Corporation are subject to examination by the Legislative Auditor's Office at any time. 12. Within ten (10) days after the issuance of any Revenue Bonds by the Corporation, the Corporation shall record complete information with the State Department of Finance, Bureau of Securities, including the name of the issuer, the amount of Revenue Bonds issued, a description of the proposed Industrial Development Facilities and the pro:jected increase in employment resul ting from the construction of the Industrial Development Facilities. 13 . The Corporation may not operate any Industrial Development Facility as a business other than as lessor, seller, or lender. The purchase and holding of mortgages, deeds of trust, or other security interests and contracting for any servicing thereof is not considered the operation of an Industrial Development Facility. 14. Except as permitted by the Act, and as provided hereinafter, the Corporation may not exercise any of the powers authorized in this Charter or issue any Revenue Bonds with respect to an Industrial Development Facility unless the Industrial Development Facility is located wholly within the boundaries of the City. In cases invol vin9 proposed energy facilities or solid waste disposal facilities, which may be located partially or wholly outside the boundaries of the City, Page 7 - EXHIBIT II A" the Corporation must have approval of both the City and planning and zoning approval by the county or city within whose planning jurisdiction the proposed Industrial Development Facilities lie. f "" 15. No part of the proceeds received from Revenue Bonds, or any revenue derived from Development Facility, or any interest realized on may be commingled with funds of the City. the sale of any any Industrial moneys received 16. Before entering into a lease, agreement with respect to any Industrial the Corporation shall determine that revenues to pay: A sale contract - or loan Development Facility, there are sufficient (a) The principal of and the interest on the Revenue Bonds proposed to be issued to finance the Industrial Development Facility; (b) The amount necessary to be paid each year into any reserve funds which the public corporation considers advisable to establish in connection with the retirement of the proposed bonds and the maintenance of the Industrial Development Facility; and (c) Unless the terms of the lease, sale contract or loan agreement provide that the lessee or contracting party shall maintain the Industrial Development Facility and carry all proper insurance with respect thereto, the estimated cost of maintaining the industrial facility in good repair and keeping it properly insured. 17. Any resolution authorizing the issuance of Revenue Bonds shall be published one (1) time in newspaper of general circulation within the City. Any Financing Document authorized therein may be incorporated as an exhibit but need not be published as part of the resolution. For a period of thirty (30) days from the date of such publication, any person in interest may file suit in any court of competent jurisdiction to contest the regularity, formality or legality of the proceedings authorizing the Revenue Bonds or the legality of the provisions of such resolution or the Revenue Bonds and the security therefor. After the expiration of t.he thirty (30) day period, no one shall have any right of action t.O contest the validity of the Revenue Bonds, the proceedings, the resolution or the pledges and covenants made in such proceedings and resolution, and the Revenue Bonds and the provisions for their payment shall be conclusively presumed to be legal and no court shall thereafter have authority to inquire into such matter. 18. At or prior to the time the principal of, interest and premium, if any, on any Revenue Bonds issued to provide a Page 8 - EXHIBIT "A" particular project have been fully paid, the Corporation may execute such deeds and conveyances as are necessary and required to convey its rights, title and interest in such project to any J User, provided that if such conveyance is made prior to when the Revenue Bonds are fully paid, the corporation has determined that adequate provision has been made for the payment of the principal of, interest and premium, if any, on the bonds as they become due. A ARTICLE VII ORGANIZATION OF THE CORPORATION 1. Management of the affairs of the Corporation shall reside in the Board. The Board shall be composed of the number of members designated by the Ordinance. 2. The members of the Board shall constitute themselves by the election of a President, Vice President, and Secretary- Treasurer. Officers shall be eligible to hold two (2) offices. The President shall be the agent of the Corporation for service of process. The Board shall oversee the acti vi ties of the Corporation, establish or implement policy, participate in corporate activity as necessary and have stewardship for management in determination of all corporate affairs. 3. No director, officer, agent or employee of the Corporation may have a direct or indirect financial interest in any property, services or materials to be furnished or used in connection with any Industrial Development Facility financed through this Corporation. 4. Every person who was or is a party, or is threatened to be made a party to, or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise, shall be indemnified and held harmless to the fullest extent legally permissible under the law of the State of Idaho from time to time against all expenses, liability and loss (including attorneys' fees, judgments, fines and amount paid or to be paid in settlement), reasonably incurred or suffered by him in connection therewith, such rights of indemnification shall be a contract right which may be enforced in any manner desired by such person. Such right of indemnification shall not be exclusive of any other right which such Directors, officers, or representatives may have or hereafter acquire, and without limiting the generality of such Page 9 - EXHIBIT "A" statement they shall be entitled to their respective rights of indemnification under any bylaw, agreement vote of stockholders, provision of law, or otherwise, as well as their rights under this Article. The Board of Directors may adopt bylaws from time to time with respect to indemnification to provide at all times the fullest indemnification permitted by the laws of the State of Idaho, and may cause the Corporation to purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was serving at th~ request of the Corporation as a director or officer of another corporation, or as its representative in a partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred in any such capacity or arising out of such status, whether or not the Corporation would have the power to indemnify such person. p./ ARTICLE VIII COMMENCEMENT OF THE CORPORATION The Corporation shall commence its existence upon adoption of Ordinance No. 385 by the City creating the Corporation and approving this Charter. A true and complete copy of this Charter, certified by the City Clerk as being on file with the City Clerk, together with a certified copy of the Ordinance, shall be filed with the permanent records of the Corporation. ARTICLE IX ALTERATION OR DISSOLUTION OF THE CORPORATION The City may, at change the structure, the Corporation. its discretion and at any time, alter or organizational programs or activities of The Corporation may be dissolved by Ordinance of the City if contracts entered into by the Corporation are not impaired, and if the Corporation: (a) property, and Has no property to administer other than funds or if any, to be paid or transferred to the County; (b) All outstanding obligations have been satisfied. All net earnings of the Corporation, beyond those necessary for retirement of indebtedness, shall inure to the City. Upon dissolution of the Corporation, title to all property owned by the Corporation shall vest in the City. Page 10 - EXHIBIT "A" ARTICLE X BYLAWS ,,,11" The Board of Directors shall adopt Bylaws (rules and regulations) to provide such rules for governing the Corporation and its activities as are not inconsistent with Ordinance No. 385 of the City, this Charter, and the Act. Adoption of the Bylaws or any amendments thereto requires a majority vote of the Board of Directors. The Board of Directors may provide in th"e Bylaws for all matters relating to the business of the Corporation, including but not limited to matters referred to elsewhere in this Charter for inclusion therein, and for the following: (a) The existence of committees and duties of any such committee. (b) Regular and special meetings of the Directors, and whether or not such meetings thereof shall be open to the public. Board of or reports (c) Retention relationship of the managed. of staff or Corporation personnel wi th the and City how shall the be (d) Such other matters as may become necessary or important to the proper functioning of the Corporation. ARTICLE XI AMENDMENTS TO CHARTER AND BYLAWS 1. This Charter may be amended by Ordinance of the City. 2. Bylaws may be amended by a majority of the Board of Directors. ARTICLE XII MISCELLANEOUS Audits, dissolutions, alterations of this Charter, trusteeships, and other matters affecting the Corporation are governed by the Ordinance of the City and by the Act. Page 11 - EXHIBIT "A"