Mass. Gen. Laws ch. 40D, sec. 12 — MA Code / Part I / Title VII / Chapter 40D / Section 12
Issuance of bonds; conditions
Status: in_force

Section 12. No bonds of any series shall be issued by a municipality under this chapter except bonds issued under section eleven unless the following conditions have been complied with: (1) The governing body of the municipality or in case of a consolidated authority the governing bodies of the constituent municipalities shall by vote approve the project (which shall be described in general terms), the estimated cost thereof and the financing thereof by bonds to be issued pursuant to this chapter. In any city a vote required under this section shall be deemed an emergency matter and may be passed in such manner as is provided for emergency orders or ordinances in its charter, and shall be in full force and effect immediately upon final favorable action thereon by its city council or the mayor, as the case may be, or upon the expiration of any period specified by such charter for the approval or disapproval of such orders if no action is taken to approve or disapprove such an order within such period, notwithstanding any provision of general or special law or ordinance to the contrary. (2) The board of directors of the Massachusetts Industrial Finance Agency, hereinafter called the MIFA board, shall have approved the bonds to be issued under this chapter. To obtain such approval, an authority shall first submit to the MIFA board an application therefor in such form and containing such information, data and exhibits as may from time to time be prescribed by the MIFA board, to which application shall be appended as part thereof, in substantially the form proposed to be executed, copies of the trust indenture or agreement, including the form of bonds, securing the bonds which are the subject of the petition, the resolution of the authority authorizing the issuance of the bonds in question and the financing document. None of the documents constituting the application need set forth the price at which the bonds are to be sold or matters dependent on such price, such as, but not limited to, redemption provisions. The MIFA board shall review the complete application and shall approve the bonds described in said application, if it finds that: (a) the user is a responsible party; (b) the provisions of the financing document are reasonable and proper, and in making such determination the MIFA board may take into account such factors as it deems relevant including, without limitation, the remedies of the municipality upon default of the user; (c) in the case of the lease or sale of a project by the municipality to a user, the provisions of the lease or installment sale agreement relative to the rights of the municipality and the lessee or purchaser, as the case may be respecting the disposition of the project upon payment in full with interest of all the bonds are in the public interest; (d) the trust agreement protects the public interest affected by its provisions; (e) the project will provide employment, or security against loss of employment, having a reasonable relationship to the principal amount of the bonds to be issued therefor, taking into account, among other things, the investment per employee of comparable industrial facilities; (f) adequate provision is being or will be made to meet any increased demand upon community public facilities that might result from the project; (g) the size and scope of the project is such that a definite benefit to the economy of the commonwealth may reasonably be expected to result from the construction or improvement thereof; (h) the bonds, the trust agreement and the financing document comply with the provisions of this chapter; (i) in cases where the project consists of or includes the acquisition, equipping or improvement of existing facilities and such acquisition, equipping or improvement is not incidental to the construction and equipping of entirely new facilities, the completed project will be of suitable type and scope for its intended purpose; (j) the payments under the financing document are adequate to pay the current expenses of the authority in connection with the project and the principal of the bonds as they come due and interest thereon; (k) the project has, so far as feasible, been located in a low income area of a municipality so that employment opportunities will become available to residents of such area, and, in the case of a project including a commercial enterprise or incidental thereto for use by a governmental or nonprofit entity, the project is located in a predominantly commercial area for which a commercial area revitalization plan has been adopted by the governing body of the municipality and approved by the secretary of economic development and the project is consistent with the plan. The purposes of a commercial area revitalization plan shall be to prevent or arrest and reverse the decay of the area covered by the plan. The plan shall describe the area and set forth the development or redevelopment, including public improvements, proposed to carry out the purposes of the plan. Nothing herein shall preclude the undertaking of such development or redevelopment through urban renewal or an economic development and industrial corporation or by other means, subject to the laws applicable thereto. In exercising the power of approval granted by this clause, said secretary shall, among other lawful and relevant considerations, seek to avoid and correct the deterioration of older commercial centers which result from the movement of commercial enterprise to previously noncommercial areas; (l) the sponsor of the project does not do business in the Union of South Africa absent compliance with the platform of guiding principles as defined in subdivision (5) of section twenty-three of chapter thirty-two. The MIFA board shall consult with the appropriate local and regional planning agencies to ascertain the relationship of a proposed project to any existing state, local or regional comprehensive plan. Such review shall be accomplished as expeditiously as practicable and in any event the MIFA board shall act with respect to the bonds described in an application within twenty days, Sundays and holidays excluded, of the submission of said application. If the MIFA board does not approve the issuance of bonds, it shall state its reasons therefor and offer the applicant an opportunity to submit an application as amended so as to meet the MIFA board's objections. A favorable recommendation may contain such conditions as the MIFA board deems in the public interest, such as, but not limited to, a requirement that contracts for the construction of the project or for the acquisition of materials therefor let by the authority be awarded as a result of competitive bidding. The MIFA board may not, however, in any way require that any contract let by a user be made the subject of competitive bidding. The issuance of a certificate of convenience and necessity shall conclusively evidence that the finance board has made such determinations of facts or circumstances, has given such approvals and has reached such opinions as are prerequisite to the issuance of such certificate. (3) The bonds, the financing document, the trust agreement and the bond issue resolution, as executed or adopted as the case may be, are substantially in the form submitted to the finance board.

Section 12. No bonds of any series shall be issued by a municipality under this chapter except bonds issued under section eleven unless the following conditions have been complied with:

(1) The governing body of the municipality or in case of a consolidated authority the governing bodies of the constituent municipalities shall by vote approve the project (which shall be described in general terms), the estimated cost thereof and the financing thereof by bonds to be issued pursuant to this chapter. In any city a vote required under this section shall be deemed an emergency matter and may be passed in such manner as is provided for emergency orders or ordinances in its charter, and shall be in full force and effect immediately upon final favorable action thereon by its city council or the mayor, as the case may be, or upon the expiration of any period specified by such charter for the approval or disapproval of such orders if no action is taken to approve or disapprove such an order within such period, notwithstanding any provision of general or special law or ordinance to the contrary.

(2) The board of directors of the Massachusetts Industrial Finance Agency, hereinafter called the MIFA board, shall have approved the bonds to be issued under this chapter. To obtain such approval, an authority shall first submit to the MIFA board an application therefor in such form and containing such information, data and exhibits as may from time to time be prescribed by the MIFA board, to which application shall be appended as part thereof, in substantially the form proposed to be executed, copies of the trust indenture or agreement, including the form of bonds, securing the bonds which are the subject of the petition, the resolution of the authority authorizing the issuance of the bonds in question and the financing document.

None of the documents constituting the application need set forth the price at which the bonds are to be sold or matters dependent on such price, such as, but not limited to, redemption provisions.

The MIFA board shall review the complete application and shall approve the bonds described in said application, if it finds that:

(a) the user is a responsible party;

(b) the provisions of the financing document are reasonable and proper, and in making such determination the MIFA board may take into account such factors as it deems relevant including, without limitation, the remedies of the municipality upon default of the user;

(c) in the case of the lease or sale of a project by the municipality to a user, the provisions of the lease or installment sale agreement relative to the rights of the municipality and the lessee or purchaser, as the case may be respecting the disposition of the project upon payment in full with interest of all the bonds are in the public interest;

(d) the trust agreement protects the public interest affected by its provisions;

(e) the project will provide employment, or security against loss of employment, having a reasonable relationship to the principal amount of the bonds to be issued therefor, taking into account, among other things, the investment per employee of comparable industrial facilities;

(f) adequate provision is being or will be made to meet any increased demand upon community public facilities that might result from the project;

(g) the size and scope of the project is such that a definite benefit to the economy of the commonwealth may reasonably be expected to result from the construction or improvement thereof;

(h) the bonds, the trust agreement and the financing document comply with the provisions of this chapter;

(i) in cases where the project consists of or includes the acquisition, equipping or improvement of existing facilities and such acquisition, equipping or improvement is not incidental to the construction and equipping of entirely new facilities, the completed project will be of suitable type and scope for its intended purpose;

(j) the payments under the financing document are adequate to pay the current expenses of the authority in connection with the project and the principal of the bonds as they come due and interest thereon;

(k) the project has, so far as feasible, been located in a low income area of a municipality so that employment opportunities will become available to residents of such area, and, in the case of a project including a commercial enterprise or incidental thereto for use by a governmental or nonprofit entity, the project is located in a predominantly commercial area for which a commercial area revitalization plan has been adopted by the governing body of the municipality and approved by the secretary of economic development and the project is consistent with the plan. The purposes of a commercial area revitalization plan shall be to prevent or arrest and reverse the decay of the area covered by the plan. The plan shall describe the area and set forth the development or redevelopment, including public improvements, proposed to carry out the purposes of the plan. Nothing herein shall preclude the undertaking of such development or redevelopment through urban renewal or an economic development and industrial corporation or by other means, subject to the laws applicable thereto. In exercising the power of approval granted by this clause, said secretary shall, among other lawful and relevant considerations, seek to avoid and correct the deterioration of older commercial centers which result from the movement of commercial enterprise to previously noncommercial areas;

(l) the sponsor of the project does not do business in the Union of South Africa absent compliance with the platform of guiding principles as defined in subdivision (5) of section twenty-three of chapter thirty-two.

The MIFA board shall consult with the appropriate local and regional planning agencies to ascertain the relationship of a proposed project to any existing state, local or regional comprehensive plan.

Such review shall be accomplished as expeditiously as practicable and in any event the MIFA board shall act with respect to the bonds described in an application within twenty days, Sundays and holidays excluded, of the submission of said application. If the MIFA board does not approve the issuance of bonds, it shall state its reasons therefor and offer the applicant an opportunity to submit an application as amended so as to meet the MIFA board's objections. A favorable recommendation may contain such conditions as the MIFA board deems in the public interest, such as, but not limited to, a requirement that contracts for the construction of the project or for the acquisition of materials therefor let by the authority be awarded as a result of competitive bidding. The MIFA board may not, however, in any way require that any contract let by a user be made the subject of competitive bidding.

The issuance of a certificate of convenience and necessity shall conclusively evidence that the finance board has made such determinations of facts or circumstances, has given such approvals and has reached such opinions as are prerequisite to the issuance of such certificate.

(3) The bonds, the financing document, the trust agreement and the bond issue resolution, as executed or adopted as the case may be, are substantially in the form submitted to the finance board.