Part A. Bond Financing.
§ 2–1217.131. Definitions.
For the purposes of this subchapter, the term:
(1) “Authorized Delegate” means the City Administrator, the Chief Financial Officer, the District of Columbia Treasurer, the Deputy Mayor for Planning and Economic Development, or any officer, employee, or agency of the executive office of the Mayor to whom the Mayor has delegated any of the Mayor’s functions under D.C. Law 17-252 pursuant to § 1-204.22(6) and has been designated as an authorized delegate for purposes of D.C. Law 17-252.
(2) “Available Increment” shall have the same meaning as provided in the Reserve Agreement.
(3) “Available Sales Tax Revenues” means the revenues in excess of $208,549 generated in the Southwest Waterfront PILOT/TIF Area in any fiscal year of the District commencing on the Commencement Date resulting from the imposition of the sales tax under Chapter 20 of Title 47 [§ 47-2001 et seq.], including penalty and interest charges, exclusive of the portion required to be deposited in the Washington Convention Center Fund established pursuant to § 10-1202.08. The term “Available Sales Tax Revenues” includes sales tax revenues from any business existing in the Southwest Waterfront PILOT/TIF Area on October 22, 2008, only after the business has re-opened as a result of the development of any portion of the project.
(4) “Bond Counsel” means a firm or firms of attorneys designated as bond counsel from time to time by the Mayor.
(5) “Bonds” means the District of Columbia revenue bonds, notes, or other obligations (including refunding bonds, notes, and other obligations), in one or more series, authorized to be issued pursuant to this subchapter.
(6) “Chief Financial Officer” means the Chief Financial Officer of the District of Columbia established by § 1-204.25(a).
(7) “Closing Documents” means all documents and agreements, other than Financing Documents, that may be necessary and appropriate to issue, sell, and deliver the bonds, and includes agreements, certificates, letters, opinions, forms, receipts, and other similar instruments.
(8) “Commencement Date” means the date upon which the 1st parcel of real estate within the Southwest Waterfront PILOT/TIF Area is transferred to the Master Developer.
(9) “Consumer Price Index” means the index number of retail commodities prices designated “Consumer Price Index-all items CPIU (1996=100) Washington-Baltimore DC-MD-VA-WA” as published by the United States Department of Labor, Bureau of Labor Statistics (or any successor agency thereto), appropriately adjusted.
(10) “Debt Service” means payment of principal, premium, if any, and interest on the bonds.
(11) “Development Costs” means all costs and expenses incurred in connection with the development, redevelopment, purchase, acquisition, protection, financing, construction, expansion, reconstruction, rehabilitation, renovation and repair, and the furnishing and equipping of the project, including:
(A) The costs of demolishing or removing roads, utilities, sidewalks, underground facilities, buildings or structures, and other improvements located on, and site preparation of, including environmental remediation, the land acquired or used for, or in connection with, the project, including costs incurred to resolve existing leaseholder interests in portions of the project site that will be re-conveyed to the District as public infrastructure;
(B) Costs of relocation, construction, and redevelopment of the project, including entitlement, development, and construction management fees;
(C) Costs incurred for publicly-owned utility lines, structures, public roads, public parks, or equipment located within or necessary to serve the project;
(D) Interest on the bonds prior to, and during, the construction of the project;
(E) Provisions for reserves for extraordinary repairs and replacements;
(F) Expenses incurred for architectural, engineering, energy efficiency technology, design and consulting, financial, and legal services;
(G) Fees for letters of credit, bond insurance, debt service reserve insurance, surety bonds, or similar credit or liquidity enhancement instruments;
(H) Costs and expenses associated with the conduct and preparation of specification and feasibility studies, plans, surveys, historic structure reports, and estimates of expenses and revenues;
(I) Expenses necessary or incident to issuing the bonds and determining the feasibility and the fiscal impact of financing the acquisition, construction, or redevelopment of the project; and
(J) The provision of an allowance for contingencies and initial working capital.
(12) “Financing Documents” means the documents, other than Closing Documents, that relate to the financing or refinancing of transactions to be effected through the issuance, sale, and delivery of the bonds, including any offering document, and any required supplements to any such documents.
(13) “Fish Market” means the property known for assessment and taxation purposes as Lots 850, 846, and 847, Square 473, and the adjacent riparian area.
(15) “Master Developer” means the development entity to which the District transfers the leasehold interest in the Southwest Waterfront PILOT/TIF Area and which is responsible for the planned development of the entire Southwest Waterfront PILOT/TIF Area, including the project.
(16) “Project” means the publicly owned infrastructure located within the Southwest Waterfront PILOT/TIF Area, including streets, parking facilities, sidewalks, walkways, streetscapes, parks, bulkheads, piers, curbs, gutters, and gas, electric, and water utility lines, and the acquisition, equipping, relocation, construction, and redevelopment of certain public facilities, including parks.
(17) “Reserve Agreement” means that certain Reserve Agreement, dated as of April 1, 2002, by and among the District, Wells Fargo Bank Minnesota, N.A. and Financial Security Assurance, Inc.
(18) “Southwest Waterfront Fund” means the fund created by § 2-1217.133.
(19) “Southwest Waterfront Improvement Benefit District” means the special assessment district established by § 47-895.02.
(20) “Southwest Waterfront PILOT” or “PILOT” means the payment in lieu of taxes from the Southwest Waterfront PILOT/TIF Area required by § 47-4615.
(21) “Southwest Waterfront PILOT Base Amount” means $945,000.
(22) “Southwest Waterfront PILOT Increment” means the amount of the Southwest Waterfront PILOT that exceeds the Southwest Waterfront PILOT Base Amount.
(23) “Southwest Waterfront PILOT/TIF Area” means the following geographic area:
(A) Approximately 23 acres of land area between the southern curb line of Maine Avenue, S.W., and the bulkhead paralleling the Washington Channel from the western edge of the Fish Market to the western curb of 6th Street, S.W., to the eastern edge of Lot 843, Square 473, the eastern edge of Lots 883, 884, and 885, Square 503, to the eastern edge of parcel 255/15, to the western edge of the P Street, S.W., right-of-way; and
(B) The riparian area and piers associated with the land described in subparagraph (A) of this paragraph, which include:
(i) The Fish Market;
(ii) The Capital Yacht Club;
(iii) The Gangplank Marina; and
(iv) Piers 4 and 5.
(24) “Southwest Waterfront Special Assessment” means the special assessment relating to the Southwest Waterfront Improvement Benefit District established by § 47-895.02.
This section is referenced in § 47-895.01.
Effect of Amendments
The 2015 amendment by D.C. Law 20-155 rewrote (3).
For temporary (90 days) amendment of this section, see § 7202 of the Fiscal Year 2015 Budget Support Emergency Act of 2014 (D.C. Act 20-377, July 14, 2014, 61 DCR 7598, 20 STAT 3696).
For temporary (90 days) amendment of this section, see § 7192 of the Fiscal Year 2015 Budget Support Congressional Review Emergency Act of 2014 (D.C. Act 20-449, October 10, 2014, 61 DCR 10915, 20 STAT 4188).
For temporary (90 days) amendment of this section, see § 7192 of the Fiscal Year 2015 Budget Support Second Congressional Review Emergency Act of 2014 (D.C. Act 20-566, January 9, 2015, 62 DCR 884, 21 STAT 541).
§ 2–1217.132. Findings.
The Council finds that:
(1) The Southwest Waterfront is a section of the District that requires financial assistance for its redevelopment because the scale of the project includes rebuilding the majority of the neighborhood and replacing existing infrastructure. The project will aid in the redevelopment by providing financial assistance to support the portions of the Southwest Waterfront that will revert to the District as publicly owned infrastructure and parks.
(2) Section 1-204.90 provides that the Council may, by act, authorize the issuance of District bonds to borrow money to finance, refinance, or reimburse, and to assist in the financing, refinancing, or reimbursing of, undertakings in certain areas designated in § 1-204.90 where the ultimate obligation to repay the bonds is that of one or more governmental persons or entities.
(3) Section 1-204.90 provides that bonds may be issued to assist in undertakings for the economic development of the District.
(4) The authorization, issuance, sale, and delivery of bonds for the payment of costs of the project are desirable, are in the public interest, and will accomplish the purposes and intent of § 1-204.90.
§ 2–1217.133. Creation of the Southwest Waterfront Fund.
(a) There is established as a nonlapsing fund the Southwest Waterfront Fund. The Available Sales Tax Revenues, the Southwest Waterfront Special Assessment (if any), and the Southwest Waterfront PILOT Increment shall be deposited into the Southwest Waterfront Fund. The Chief Financial Officer shall pay from the Southwest Waterfront Fund the Southwest Waterfront PILOT Base Amount into the General Fund of the District of Columbia. The Mayor may pledge and create a security interest in the funds in the Southwest Waterfront Fund to finance, refinance, or reimburse Development Costs of the project, to pay the Debt Service, or to secure bonds without further action by the Council as permitted by § 1-204.90(f). The Chief Financial Officer shall pay from the Southwest Waterfront Fund the annual costs of administering the Southwest Waterfront Improvement Benefit District established by § 47-895.02. If bonds are issued, the payment shall be made in accordance with the provisions of the Financing Documents entered into by the District in connection with the issuance of the bonds.
(b) If, at the end of any fiscal year of the District following the issuance of the bonds, the value of cash and investments in the Southwest Waterfront Fund exceeds the amount of all payments authorized by this subchapter and the Financing Documents during the upcoming fiscal year, the excess shall be transferred to the General Fund of the District of Columbia unless the District elects to use the excess to redeem the bonds prior to maturity.
§ 2–1217.134. Creation of the Southwest Waterfront PILOT/TIF Area.
(a) There is created the Southwest Waterfront PILOT/TIF Area, the Available Sales Tax Revenues from which shall be allocated as provided in this subchapter.
(b) Beginning on the Commencement Date, the Available Sales Tax Revenues from the Southwest Waterfront PILOT/TIF Area shall be allocated and paid into the Southwest Waterfront Fund and used for any of the purposes described in § 2-1217.133. The termination date for the allocation of Available Sales Tax Revenues shall be the earlier of:
(1) September 30, 2044; or
(2) The day after all of the bonds are paid or provided for and are no longer outstanding pursuant to their terms.
§ 2–1217.135. Bond authorization.
(a) The Council approves and authorizes the issuance of one or more series of bonds in an aggregate principal amount not to exceed $198 million. The bonds, which may be issued from time to time, in one or more series, shall be tax-exempt or taxable as the Mayor shall determine and shall be payable and secured as provided in § 2-1217.136; provided, that within 60 days prior to the issuance of any bonds, the Chief Financial Officer shall submit to the Mayor and the Council a report to determine the subsidy level needed from the District for the project.
(b) The proceeds of the bonds shall be used as follows:
(1) An amount not to exceed $148 million in 2008 dollars (adjusted for inflation by the Consumer Price Index) may be used for payment of Development Costs; and
(2) The balance of the proceeds may be used to pay the financing costs incurred by the District and to fund capitalized interest and required reserves.
(c) The Mayor may pay from the proceeds of the bonds the financing costs and expenses of issuing and delivering the bonds, including, but not limited to, underwriting, legal, accounting, financial advisory, bond insurance or other credit enhancement, marketing and selling the bonds, and printing costs and expenses.
§ 2–1217.136. Payment and security.
(a) Except as may be otherwise provided in this subchapter, Debt Service shall be payable from proceeds received from the sale of the bonds, income realized from the temporary investment of those proceeds, receipts and revenues deposited into the Southwest Waterfront Fund, including income realized from the investment of those receipts and revenues, and other funds that, as provided in the Financing Documents, may be made available to the District for payment of the bonds from sources other than the District, all as provided for in the Financing Documents.
(b) There is further allocated to payment of Debt Service the Available Increment, subordinate to the allocation of the Available Increment to the Budgeted Reserve, as defined in the Reserve Agreement, all as more fully described in the Reserve Agreement and to the extent that the Reserve Agreement continues to apply to the Available Increment, to be used for the payment of Debt Service to the extent that the revenues allocated in subsection (a) of this section are inadequate to pay Debt Service. The allocation of Available Increment authorized by this subsection shall be made in compliance with all existing contractual obligations of the District with respect to the Available Increment and shall terminate on the date on which all of the bonds are paid or provided for and are no longer outstanding pursuant to their terms.
(c) Payment of the bonds shall be secured as provided in the Financing Documents and by an assignment by the District for the benefit of the bond holders of certain of its rights under the Financing Documents and Closing Documents to the trustee for the bonds pursuant to the Financing Documents.
(d) The trustee is authorized to deposit, invest, and disburse the proceeds received from the sale of the bonds pursuant to the Financing Documents.
This section is referenced in § 2-1217.135.
§ 2–1217.137. Bond details.
(a) The Mayor is authorized to take any action reasonably necessary or appropriate in accordance with D.C. Law 17-252 in connection with the preparation, execution, issuance, sale, delivery, security for, and payment of the bonds of each series, including, but not limited to, determinations of:
(1) The final form, content, designation, and terms of the bonds, including a determination the bonds may be issued in certificated or book-entry form;
(2) The principal amount of the bonds to be issued and denominations of the bonds;
(3) The rate or rates of interest or the method for determining the rate or rates of interest on the bonds;
(4) The date or dates of issuance, sale, and delivery of, and the payment of interest on the bonds, and the maturity date or dates of the bonds;
(5) The terms under which the bonds may be paid, optionally or mandatorily redeemed, accelerated, tendered, called, or put for redemption, repurchase, or remarketing before their respective stated maturities;
(6) Provisions for the registration, transfer, and exchange of the bonds and the replacement of mutilated, lost, stolen, or destroyed bonds;
(7) The creation of any reserve fund, sinking fund, or other fund with respect to the bonds;
(8) The time and place of payment of the bonds;
(9) Procedures for monitoring the use of the proceeds received from the sale of the bonds to ensure that the proceeds are properly applied and used to accomplish the purposes of Chapter 2 of Title 1 and D.C. Law 17-252;
(10) Actions necessary to qualify the bonds under blue sky laws of any jurisdiction where the bonds are marketed; and
(11) The terms and types of credit enhancement under which the bonds may be secured.
(b) The bonds shall contain a legend which shall provide that the bonds are special obligations of the District, are without recourse to the District, are not a pledge of, and do not involve, the faith and credit or the taxing power of the District (other than the taxes and revenues allocated to the Southwest Waterfront Fund or the Available Increment), do not constitute a debt of the District, and do not constitute lending of the public credit for private undertakings as prohibited in § 1-206.02(a)(2).
(c) The bonds shall be executed in the name of the District and on its behalf by the manual or facsimile signature of the Mayor, and attested by the Secretary of the District of Columbia by the Secretary’s manual or facsimile signature.
(d) The official seal of the District, or a facsimile of it, shall be impressed, printed, or otherwise reproduced on the bonds.
(e) The bonds of any series may be issued in accordance with the terms of a trust instrument to be entered into by the District and a trustee to be selected by the Mayor, and may be subject to the terms of one or more agreements entered into by the Mayor pursuant to § 1-204.90(a)(4).
(f) The bonds may be issued at any time or from time to time in one or more issues and in one or more series.
(g) The bonds are declared to be issued for essential public and governmental purposes. The bonds and the interest thereon and the income therefrom, and all monies pledged or available to pay or secure the payment of the bonds, shall at all times be exempt from taxation by the District, except for estate, inheritance, and gift taxes.
(h) The District pledges, covenants, and agrees with the holders of the bonds that, subject to the provisions of the Financing Documents, the District will not limit or alter the bonds or the basis on which the revenues pledged to secure the bonds are collected or allocated, will not impair the contractual obligations of the District to fulfill the terms of any agreement made with the holders of the bonds, will not in any way impair the rights or remedies of the holders of the bonds, and will not modify in any way the exemptions from taxation provided for in D.C. Law 17-252, until the bonds, together with interest thereon, and all costs and expenses in connection with any suit, action, or proceeding by or on behalf of the holders of the bonds, are fully met and discharged. This pledge and agreement for the District may be included as part of the contract with the holders of the bonds. This subsection constitutes a contract between the District and the holders of the bonds. To the extent that any acts or resolutions of the Council may be in conflict with this subchapter, subchapter VII of Chapter 8 of Title 47 [§ 47-895.01 et seq.], D.C. Law 17-252, D.C. Law 17-252 shall be controlling.
(i) Consistent with § 1-204.90(a)(4)(B) and notwithstanding Article 9 of Title 28:
(1) A pledge made and security interest created in respect of the bonds or pursuant to any related Financing Document shall be valid, binding, and perfected from the time the security interest is created, with or without physical delivery of any funds or any property and with or without any further action;
(2) The lien of the pledge shall be valid, binding, and perfected as against all parties having any claim of any kind in tort, contract, or otherwise against the District, whether or not such party has notice; and
(3) The security interest shall be valid, binding, and perfected whether or not any statement, document, or instrument relating to the security interest is recorded or filed.
§ 2–1217.138. Sale of the bonds.
(a) The bonds of any series may be sold at negotiated or competitive sale at, above, or below par, to one or more persons or entities, and upon terms that the Mayor considers to be in the best interests of the District.
(b) The Mayor or an Authorized Delegate may execute, in connection with each sale of the bonds, offering documents on behalf of the District, may deem final any such offering document on behalf of the District for purposes of compliance with federal laws and regulations governing such matters, and may authorize the distribution of the documents in connection with the bonds.
(c) The Mayor is authorized to deliver the executed and sealed bonds, on behalf of the District, for authentication, and, after the bonds have been authenticated, to deliver the bonds to the original purchasers of the bonds upon payment of the purchase price.
(d) The bonds shall not be issued until the Mayor receives an approving opinion from Bond Counsel as to the validity of the bonds of such series and, if the interest on the bonds is expected to be exempt from federal income taxation, the treatment of the interest on the bonds for purposes of federal income taxation.
(e) Unit A of Chapter 3 of this title and subchapter III-A of Chapter 3 of Title 47 shall not apply to any contract the Mayor may from time to time enter into, or the Mayor may determine to be necessary or appropriate, for purposes of D.C. Law 17-252.
§ 2–1217.139. Financing and Closing Documents.
(a) The Mayor is authorized to prescribe the final form and content of all Financing Documents and all Closing Documents to which the District is a party that may be necessary or appropriate to issue, sell, and deliver the bonds.
(b) The Mayor is authorized to execute, in the name of the District and on its behalf, the Financing Documents and any Closing Documents to which the District is a party by the Mayor’s manual or facsimile signature.
(c) If required, the official seal of the District, or a facsimile of it, shall be impressed, printed, or otherwise reproduced on the bonds, the other Financing Documents, and the Closing Documents to which the District is a party.
(d) The Mayor’s execution and delivery of the Financing Documents and the Closing Documents to which the District is a party shall constitute conclusive evidence of the Mayor’s approval, on behalf of the District, of the final form and content of the executed Financing Documents and the executed Closing Documents.
(e) The Mayor is authorized to deliver the executed and sealed Financing Documents and Closing Documents, on behalf of the District, prior to or simultaneously with the issuance, sale, and delivery of the bonds, and to ensure the due performance of the obligations of the District contained in the executed, sealed, and delivered Financing Documents and Closing Documents.
§ 2–1217.140. Limited liability.
(a) The bonds shall be special obligations of the District. The bonds shall be without recourse to the District. The bonds shall not be general obligations of the District, shall not be a pledge of, or involve, the faith and credit or the taxing power of the District (other than the taxes and revenues allocated to the Southwest Waterfront Fund and the Available Increment), shall not constitute a debt of the District, and shall not constitute lending of the public credit for private undertakings as prohibited in § 1-206.02(a)(2).
(b) The bonds shall not give rise to any pecuniary liability of the District and the District shall have no obligation with respect to the purchase of the bonds.
(c) No person, including, but not limited to, any bond holder, shall have any claims against the District or any of its elected or appointed officials, officers, employees, or agents for monetary damages suffered as a result of the failure of the District to perform any covenant, undertaking, or obligation under this subchapter, the bonds, the Financing Documents, or the Closing Documents, or as a result of the incorrectness of any representation in or omission from the Financing Documents or the Closing Documents, unless the District or its elected or appointed officials, officers, employees, or agents have acted in a willful and fraudulent manner.
This section is referenced in § 2-1217.141.
§ 2–1217.141. District officials.
(a) Except as otherwise provided in § 2-1217.140(c), the elected or appointed officials, officers, employees, or agents of the District shall not be liable personally for the payment of the bonds, be subject to any personal liability by reason of the issuance of the bonds, or be personally liable for any representations, warranties, covenants, obligations, or agreements of the District contained in this subchapter, the bonds, the Financing Documents, or the Closing Documents.
(b) The signature, countersignature, facsimile signature, or facsimile countersignature of any official appearing on the bonds, the Financing Documents, or the Closing Documents shall be valid and sufficient for all purposes notwithstanding the fact that the individual signatory ceases to hold that office before delivery of the bonds, the Financing Documents, or the Closing Documents.
§ 2–1217.142. Information reporting.
Within 3 days after the Mayor’s receipt of the transcript of proceedings relating to the issuance of the bonds, the Mayor shall transmit a copy of the transcript to the Secretary to the Council.
§ 2–1217.143. Payment In Lieu of Taxes Act not to apply.
Part B. Affordable Housing.
§ 2–1217.151. Affordable housing.
(a) Notwithstanding any other provision of law, § 2-1226.02(b) and any related provisions imposing any Affordable requirements shall not apply to any Residential Units in excess of 500 Residential Units that are to be constructed in the Mixed-Use Development on the Southwest Waterfront Property; provided, that the GFA of the Affordable Dwelling Units to be constructed is no less than 160,000 GFA.
(b) With respect to any Residential Units in excess of 500 Residential Units that are to be constructed in the Mixed-Use Development on the Southwest Waterfront Property, no less than 20% of the GFA of such additional units shall be Workforce Housing. Eighty thousand GFA of such Workforce Housing required under this provision shall be allocated to the construction of 100% AMI Units. The GFA of any Workforce Housing required under this provision in excess of 80,000 GFA may be allocated at the developer’s discretion either to 100% AMI Units or to 120% AMI Units.
(c) All future amendments to the Land Disposition Agreement shall be submitted to the Council for approval in accordance with the procedures set forth in § 10-801(b-1)(6).
(d) For the purposes of this section, the term:
(1) “Affordable” shall have the same meaning as provided in § 2-1226.02(b)(2).
(2) “Affordable Dwelling Unit” shall have the same meaning as the term “ADU” as set forth in the Land Disposition Agreement.
(3) “Area median income” shall have the same meaning as provided in § 2-1226.02.
(4) “Gross Floor Area” or “GFA” shall have the same meaning as provided in the Land Disposition Agreement.
(5) “Land Disposition Agreement” means the amended and restated land disposition agreement by and between the District of Columbia and Hoffman-Struever Waterfront L.L.C. for the Southwest Waterfront Project dated May 13, 2009, and as amended by the First Amendment dated June 10, 2010 and the Second Amendment dated December 3, 2010.
(6) “Mixed-Use Development” shall have the same meaning as provided in the Land Disposition Agreement.
(7) “Residential Unit” shall have the same meaning as provided in the Land Disposition Agreement.
(8) “Southwest Waterfront Property” shall have the same meaning as provided in the Land Disposition Agreement.
(9) “Workforce Housing” shall mean 100% AMI Units and 120% AMI Units.
(10) “100% AMI Units” shall mean Residential Units that are affordable to households consisting of one or more persons with income equal to or less than 100% of the area median income.
(11) “120% AMI Units” shall mean Residential Units that are affordable to households consisting of one or more persons with income equal to or less than 120% of the area median income.