Loading...
HomeMy Public PortalAbout19770228 - Agendas Packet - Board of Directors (BOD) - 77-07 Meeting 77-7 MIDPENINSULA REGIONAL PARK DISTRICT Special Meeting Board of Directors N 0 T I C E February 28 , 1977 12 :00 Noon Midpeninsula Regional Park District 745 Distel Drive Los Altos, CA The Board of Directors of the Midpeninsula Regional Park Dis- trict will hold a Special Meeting on Monday, February 28, 1977 at 12 :00 Noon at 745 Distel Drive, Los Altos , California, for the purpose of discussing a proposed Plan to Borrow Money to Finance Land Acquisition. A G E N D A (12 : 00) ROLL CALL OLD BUSINESS WITH ACTION REQUESTED (12 :05) 1. Plan to Borrow Money to Finance Land Acquisition (a) Report (b) Resolution of the Board of Directors of the Midpeninsula Regional Park District Approving Borrowing Resolution (Union Bank) (c) Resolution Authorizing Signing and Endorsing Checks and Other Instruments (Union Bank) CLAIMS (1: 00) ADJOURNMENT All A M-77-44 a� (Meeting 77-7, Agenda item No. l(a) MIDPENINSULA REGIONAL PARK DISTRICT MEMORANDUM February 25 , 1977 TO: Board of Directors FROM: J. Melton, Controller SUBJECT: Plan to Borrow Money to Finance Land Acquisition Introduction: At its February 23, 1977 meeting, the Board of Directors expressed its desire to borrow $395,500 for the purpose of acquiring additional parcels of land as part of the Fremont Older Open Space Preserve. Specifically, the borrowed funds would be used to pay for the two parcels of land authorized by the Board for acquisition in Resolution No. 77-7 and Resolution No. 77-8 . Discussion: Arrangements have been made with Union Bank to borrow these funds. The terms of the Union Bank loan are for a principal amount of $395,500 at 5h% annual interest, with principal to be repaid in four equal annual install- ments , and interest paid semi-annually. The promissory note documenting the terms of this loan is a general obligation of the District and is not secured by a deed of trust. This loan may be paid off at any time without penalty. Recommendation: It is recommended that the Board of Directors adopt the attached Resolution of the Board of Directors of the Midpeninsula Regional Park District Approving Borrowing Resolution (Union Bank) , and that the Board execute the prom- issory note attached thereto. District Legal Counsel has F provided Union Bank with the requested legal opinions regard- ing this transaction. As a part of this loan transaction, the District is establish- ing a checking account at Union Bank. It is therefore recom- mended that the Board of Directors adopt the attached Resolu- tion Authorizing Signing and Endorsing Checks and Other Instru- ments Union Bank . JM:ac STANLEY R. NORTON ATTORNEY AT LAW 407 SHERMAN AVENUE PALO ALTO,CALIFORNIA 94306 TELEPHONE 324.1366 February 24 , 1977 Mr. Gary Kallbach Loan Officer Union Bank 400 University Avenue Palo Alto, California Dear Mr. Kallbach: This will certify that I am an attorney at law, licensed to practice in the State of California, and am legal counsel to the Midpeninsula Regional Park District (District) , and am familiar with its affairs. I have acted as counsel for the District in connection with that certain four-year loan between the District and Union Bank, evidenced by a promissory note dated in the amount of In delivering this opinion, I have examined originals or copies satisfactory to me, of the documents and made such other legal and factual examinations and inquiries as I deemed necessary or advisable, for the purpose of rendering this opinion, and based upon the foregoing, I am of the opinion that: 1. The District is legally organized and existing pur- suant to the laws of California (Public Resources Code, Section 500, et seq. and, 2 . The District is legally authorized under the laws of California (Public Resources Code, Section 5544 . 2) to enter into this loan transaction, and to execute its promissory note to Union. Bank on the terms contained therein, and the same as a legal, valid binding obligation of the District to Union g , g g Bank , , and is enforceable in accordance with its terms; and, 3. The borrowing resolution of the District is legally authorized, signed and approved under California law (Public Resources Code, Section 5544 . 2) , and is a valid and binding resolution of the District and the signatories; and , 4 . That the interest paid by the District to a lender is normally non-taxable under any Federal or state statutes, decision, rule, or regulation. This opinion is based on my February 24 , 1977 Page two opinion addressed to the Board of Directors of the District dated January 23, 1974 , and on the opinion of the Chief Counsel, California Franchise Tax Board, dated January 28, 1977, copies of both of which are attached. Very truly yours, Stanley R. Norton Legal Counsel Midpeninsula Regional Park District California Law a The situation in California is somewhat different j but the result is the same. <,a The California income tax law, particularly Revenue and Taxation Code Section 17137, provides that '"gross income does not include income which this State is prohibited from taxing under the Cdnstitution or laws of the United States or under the (California) Consititution. " California Constitution Article XIII, Section l 3/4 provides that "All bonds hereafter issued by the State of California, or by any county, city and county, municipal corporation or district (including school, reclamation, and irrigation districts) within said state shall be free and exempt from taxation. " The problem here is the meaning of the word "bonds' as used in the foregoing Constitutional provision and as applied to obligations issued by regional park districts. California authority is scanty but sufficient to ascertain the state of the present law. The available Attorney General' s opinions uniformally support our position in favor of the tax exemption. yvnile opinions of the Attorney General are not conclusive and binding on the courts, they are persuasive and used by state administrative agencies in their interpretation of the law. In 23 OAG 59 (Opinion No. 53-169, January 28, 1954) there was reference to Attorney General' s opinion NS-841 (March 18, 1938) , reaffirmed in Opinion NS-2033 (February 2, 1940) wherein the word "bonds" as used in the Constitution was applied to various situations regarding income taxability. The opinion held that interest bearing time warrants, there undistinguishable from short-term municipal bonds except for use of the name "warrant, " and obviously not a "warrant" in the sense of an instrument for the payment of ordinary expenses of government (e .g. check or draft) , is a "bond" whose interest is tax exempt under the California Constitution. To the same effect is 42 OAG 133 (Opinion No. 63-182, November 13, 1963) . At issue was interpretation of a statute which expressly authorized the issuance of notes to be sold in anticipation of sums .to be paid from receipt of sale of unsold but authorized state bonds. The interest was to be paid from "any appropriation made for that purpose" (e .g. , the general fund) . The opinion held that "since the notes are obligations of the State of California , interest thereon would be exempt from the State of California personal income taxes (Constitution Article XIII , Section 1 3/4) and federal income taxes (26 USC Section 103 , Reg. Sec . 1.103-1) under existing laws, regulations and court decisions. " -2- STANLEY R. NORTON ATTORNEY AT LAW 4, 4075HERMAN AVENUE `- PALO ALTO,CALIFORNIA 9430G TELEPHONE 324-1366 January 23, 1974 To: Members of the Board and General Manager From: Stan Norton Subject: Income Taxability of Interest on Park District Obligations I wish to confirm my previous advice to the effect that under current federal and state tax laws, interest on obligations lawfully incurred by the Regional Park District, such as for the purchase of land, would, in my opinion, be exempt from income taxes. f DISCUSSION Federal Law Section 103 (a) of the Internal Revenue Code of 1954 states in pertinent part that "gross income does not include interest on . . .the obligation of a State, a Territory, or a possession of the United States, or any political subdivision of any of the foregoing. . . " (There are certain exceptions from subsection (a) dealing with industrial development bonds and arbitrage bonds, not relevant here. ) The exemption of Section 103 (a) has been held to apply to interest on notes issued by a municipality on the purchase of land by it, even though the notes were not bonds normally issued in the exercise of the agency' s borrowing power, Rhodes Island Hospital Trust Co. , 8BTA555 , Decision 2897 , to notes bearing semiannual installments of interest issued by a city to a private party for the purchase of land, Internal Revenue Commissioner vs , Henry von L. Meyer (CCA-2 , 1933) 104 F. 2d . 155, and to interest paid under agreement of purchase and sale of land by a water storage district, a legally created political sub- division of the State of California . In the latter case, the court held that the obligation need not be in the form of a security, such as a bond, and that the exemption of Section 103 (a) can also apply to interest on obligations evidenced by an ordinary written agreement of purchase and sale, Kings Co. vs. Commissioner of Internal Revenue (CCA-9, 1937) 93 F. 2d . 33. -1- To the same effect is a case decided by the State Board of Equalization, which is the highest adminis- trative agency in the State of California for the inter- pretation of state tax laws. In Appeal of MGand Faye W. Odenheimer, SBEE' June 29, 1964 (annotated at CCH Calif. Section 15-721) it was held that a note of a municipality, secured by a purchase money trust deed, payable on a date certain and from a specific fund, issued for the purchase of land and for a public improvement (a parking lot) , constitutes a "bond" within the meaning of the California Constitution and that accordingly, the interest on the note was exempt from California income taxation. CONCLUSION Based on the foregoing it is my opinion that under existing laws, regulations and court decisions interest on Regional Park District obligations issued for the purchase of land (whether secured or unsecured) is exempt from federal and state income taxation. -3- Ralph W. Thompson III January 28, 1977 Page 2 However, the liability of corporate note holders may be different. Revenue and Taxation Code Section 24272 requires that the gross income of a corporation which pays a franchise tax include the interest on these bonds and this may affect the amount of tax they owe. Corporations subject to the franchise tax are generally those conducting some intrastate business. Corporations, which are engaged solely in interstate commerce and derive income from sources within the state, are subject to the corporation income tax. They will be treated the same as those subject to the personal income tax law and will not be required to include this interest in their taxable income. Chief Counsel STATE OF CALIFORNIA U FRANCHISE TAX BOARD SACRA AENTO, CALIFORNIA 95867 (916) 355-0759 January 28, 1977 In reply refer to 410 :JJ:jd Mr. Ralph W. Thompson III Panetta, Murphy & Thompson P. O. Box 950 Monterey, CA 93940 Monterey Peninsula Regional Park District Dear Mr. Thompson: This is in reply to your letter of January 11, 1977, inquiring as to whether the interest paid on the proposed promissory note c you enclosed would be exempt from income tax. The information you have submitted to us indicates this interest would be paid pursuant to a promissory note issued by the Monterey Peninsula Regional Park District. We understand the note will be paid in definite principal and interest payments, will have a definite maturity date, and will be issued to facilitate the financing of acquired park land. It is also understood that payments will be made from revenues collected through the District's taxing authority. California Revenue and Taxation Code Section 17137, which applies to personal income taxes, states that gross income does not include income, taxation of which is prohibited by the California Constitution. As you have noted, the California Constitution, Article XIII, Section 26 (b) , states that interest on bonds issued by a local government in California is exempt from income tax. The Board of Equalization, in Appeal of M. G. and Faye W. Odenheimer, (Cal. St. Bd. of Equal. , June 29, 9964 , CCH 2O1-481, P-H 58 , 349) , held that a promissory note which had features similar to the note you have enclosed here was within the requirements of the section predating Section 26 (b) , Article XIII, Section 1 3/4 . These sections are substantially the same and should be interpreted in substantially the same manner. Therefore, we conclude that, in the circumstances you have described, the interest income from the proposed promissory note you have enclosed would be exempt from personal income taxes, (Me, ig 77-7, Agenda item No. l (b) RESOLUTION NO. RESOLUTION OF THE BOARD OF DIRECTORS OF THE MIDPENINSULA REGIONAL PARK DISTRICT APPROVING BORROWING RESOLUTION (UNION BANK) The Board of Directors of the Midpeninsula Regional Park District does hereby resolve: as set forth on Exhibit A attached hereto and by reference made a part hereof. EXHIBIT A Certified Copy of Borrowing Resolution UNION BANK Mid-PeninsMla Regional Head Office OFFICE 400 University Ave Palo Alto , Ca. 94301 ADDRESS In completing this resolution;you must list in this opening paragraph the names of the officers authorized to sign and you must insert the words "AND"or "OR"after the title of each officer if there is more than one authorized signer.Unless otherwise stated herein,use of the word AND" will indicate that two or more signatures are needed to execute documents and use of the word"OR"will indicate that only one signature of two or more successive signers will be required on documents. X RESOLVED,That Sig..____ Name-- —Title Signature Name ---Title Signature Name Title Signature Name Title Signature Name Title Signature -Name Title (hereafter sometimes referred to,whether one or more,as"said officers")of rjVZEN LA REGIONAL PARK DISTRICT , a public district, hereinafter ear I" a corporation,are authorized to borrow from time to time,in the name of and in behalf of this corporation,from UNION BANK such sums of money as said officers deem expedient, from time to time to extend or renew any such loan in whole or in part,to contract with said bank upon such terms and conditions as it requires for the issuance of commercial letters of credit,circular letters for the use of travelers and any other instruments of credit, the aggregate principal indebtedness of this corporation with respect to such transaction outstanding and unpaid at any one time not to exceed the sumof *Three Hundred Ninety Five Thousand Five Hundred and 00/100* dollars ($ 195 , 90Q - 00 and said officers are hereby authorized to execute in its corporate name the note or notes of this corporation as evidence of each such loan and of any extension or renewal thereof and to execute all contracts and other instruments required by the bank in connection with any loan, each of which contracts,notes and other instruments shall contain such terms and conditions as are agreed upon by said officers and said bank, including among others not specified in this resolution provisions regulating or restricting the declaration and payment of dividends by the corporation, the payment of indebtedness to officers,shareholders,or other persons other than the bank,or other regulations.ar Ik restrictions of the same or different kinds,conditions as to default,attorney's fees,waivers of notice,and sale of securities. "RESOLVED FURTHER that said officers are authorized to hypothecate or pledge with and transfer and deliver to said bank as security for the payment of any obligations so incurred such securities or other assets of this corporation as are agreed upon by them and said bank and to execute in the name of the corporation such agreements of hypothecation as they deem expedient and to include in any such agreement such waivers of demand, notice or advertisement and such other waivers and provisions as seem expedient to them,including among others a provision that any such security may be held by said bank to secure'any other indebtedness,whether due or not due,owing to said bank from this corporation. "RESOLVED FURTHER that said officers may direct said bank orally or by written instruction to disburse the proceeds of any loan made in the name of the corporation to any person,partnership,corporation or other legal entity without limit including to said officers personally. "RESOLVED FURTHER that at any time said bank may apply any money or property in its hands belonging to this corporation to the payment of any indebtedness of this corporation to it,whether due or not due,and any agreement executed as aforesaid may so provide. "RESOLVED FURTHER that if two or more resolutions of this corporation authorizing any of the transactions authorized by this resolution are outstanding concurrently at any time the provisions thereof shall be deemed to be cumulative. "RESOLVED FURTHER that said officers are authorized in addition to any obligation incurred under any of the preceding provisions of this resolution to discount with said bank any notes, drafts, acceptances, bills of exchange,or other evidences of debt owned by this corporation upon such terms as are agreed upon by said bank and said officers and in the name of this corporation to endorse such evidences of indebtedness so to be discounted by said bank and to guarantee payment thereof to said bank. "RESOLVED FURTHER that upon the execution by said officers of any instrument authorized by this resolution such instrument shall be deemed to be executed by this corporation whether or not the corporate seal of this corporation is affixed thereto. "RESOLVED FURTHER that all loans heretofore made by said officers in the name of this corporation and all promissory notes and other documents executed by them in connection therewith or to secure the same are hereby ratified and approved. "RESOLVED FURTHER that said bank shall be able to rely on the incumbency of the above named officers until written notice is received at the above captioned office. "RESOLVED FURTHER that this resolution shall remain in full force and effect until written notice of its repeal has been received by said bank, at the above captioned office,such revocation however not to affect the validity or any note or other instruments theretofore executed." This is to certify that the foregoing is a true copy of a resolution duly adopted by the directors of MTDPF.NTN-%TIT.A Fr.TnNAT. PARTZ 'DTSTRTCT a corporation, at a meeting of its board of directors duly and regularly held on X 19 and that said resolution is in full force and effect. This will further certify that the signatures indicated above are true specimens of each captioned officer's signature. Dated.x_..-,. 19 at X. California. (city) (Affix Corporate Sea 1) as Secretary of President MIDPENINSULA REGIONAL PARK DISTRICT BORROWER NAME MATURITY DATE BORROWER NUMBER NOTE NUMBER klIDPENINSULA REGIONAL PARK DIST 01-31-7 Palo Alto California Date $19 5 5 00 00 On demand and if no demand then on January 31 , 1978 after date,for value received,the undersigned maker(s) promise(s) to pay to UNION BANK,or order, at its Mid-Peninsula Regional Head Office, the principal sum of DOLLARS, together with interest from date on the unpaid principal hereof: at the rate of -5 1/2- % per year. 0 at the rate of % per year in excess of the prime rate of interest which UNION BANK charges corporate borrowers of the highest credit standing for short-term unsecured loans,which shall vary concurrently with any change in such prime rate,or$ 100- 00 -,whichever is greater. Interest shall be computed at the above rate on the basis of the actual number of days during which the principal hereunder is outstanding divided by 360 which shall, for the purposes of this note, be one year. Interest shall be payable: E] monthly [] quarterly semi-annually and if not so paid shall become part of the principal. Upon default,the whole sum of principal and interest shall become due immediately at the option of the holder hereof. Default shall include, but not be limited to, the failure of the maker(s) to pay interest or principal when due; the filing as to each person obligated hereon, whether as maker, co-maker, endorser or guarantor (hereafter individually or collectively referred to as the "Obligor") of a voluntary or involuntary petition under the provisions of the Federal Bankruptcy Act, the issuance of any attachment of execution against any asset of any Obligor; the death of any Obligor; or any deterioration of the financial condition of any Obligor which results in the holder hereof deeming itself, in good faith, insecure. In the event of default, at the option of the bolder hereof, interest may be charged on the amount delinquent at a rate 5% greater than the interest rate contracted for on the principal herein, effective from the date that such amount(s) shall become overdue, and the day following any other event of default. Such increased rate of interest shall continue until such delinquent amount(s),with interest thereon at the increased rate,shall have been paid or such other event of default has been cured to the satisfaction of the holder hereof. aJ If this note is not paid when due, each Obligor promises to pay all costs and expenses of collection and reasonable attorneys' fees incurred by the holder hereof on account of such collection, whether or not suit is filed thereon. Each Obligor shall be jointly and severally liable hereon and con- sents to renewals, replacements, and extensions of time for payment hereof, before,at, or after maturity; consents to the acceptance, release,or substi. tution of security for this note; and waives demand and protest and the right to assert any statute of limitations. Any married person who signs this instrument agrees that recourse may be had against his/her separate property for any obligations hereunder. The indebtedness evidenced hereby shall be payable in lawful money of the United States. In any action brought under or arising out of this note,each Obligor,including his/her successor(s) or assign(s), hereby consents to the jurisdiction of any competent court within the State of California,and consents to service of process by any means authorized by California Law. Refer to the Credit Agreement dated February 25 , 1977 between MIDPENINSULA REGIONAL PARK DISTRICT, maker and Union Bank, payee. MIDPENINSULA REGIONAL PARK DISTRICT By : By : Title Title By : By : Title Title 745 Distel Dr. , Los Altos , Ca. 94022 By : Title Payment Guaranteed by: By : - Title N-119 1 REV.12.76) XT N I O N S A N S PAGE NO. 2 Midpeninsula Regional Park District February 25 , 1977 1. To provide Bank with an annual audit acceptable to Bank within 120 days of Borrower' s fiscal year end. 2 . To provide Bank an opinion letter satisfactory to Bank from counsel for Borrower expressing his opinion as to the legal authority of Borrower to enter into this agreement and that interest paid by Borrower is normally non-taxable under Federal or state statutes. 3. To maintain normal depository accounts of Borrower at Union Bank, Mid-Peninsula Regional Head Office. Interest charged by Bank to Borrower under this agreement shall be on an actual days outstanding and there shall be no prepayment penalty for early retirement of this debt. It is understood by Bank that subsequent financing of land acquisitions may require borrowings from other financial institutions which may require early retirement of this debt. Upon any default by Borrower under any of the terms or conditions of this agreement, or under any of the events of default listed in said Note, or a default occurs in any other loan or obligation to Union Bank or in any other loan or credit agreement, this loan shall , at the option of Bank, immediately terminate; and all sums of principal and interest remaining unpaid on loans made and notes issued under this credit agreement shall become immediately due and payable without notice. Your acknowledgement of this letter shall constitute acceptance of the foregoing terms and conditions. It is further agreed that this letter supercedes our commitment agreement dated December 8 , 1976 . Unless accepted, this commitment shall expire on March 15 , 1977 . Yours truly, ,? Gary W. Kalbach Vice President ACKNOWLEDGED: MIDPENINSULA REGIONAL PARK DISTRICT Bruce Vanderberg / By Assistant Vice P sident Title Date MY N Y O N 3B A N3EK Mid-Peninsula Regional Head Office 400 University Avenue. Post Office Box 270,Palo Alto, California 94302 Telephone(41S)322-4541 i February 25, 1977 Midpeninsula Regional Park District 745 Distel Avenue Los Altos, California 94022 Attention: Mr. John P. Melton, Controller Gentlemen: CREDIT AGREE14ENT This is to confirm the availability of a loan in the amount of Three Hundred Ninety-Five Thousand Five Hundred Dollars ($395,500) by Union Bank ("Bank") to Midpeninsula Regional Park District ("Borrower") for land acquisition financing. Advances under this loan shall be evidenced by Bank' s standard form of Promissory Note, and the terms and conditions of this letter are supplemental to said Note. Interest shall be at a rate of five and one-half percent (5 1j2%) per annum payable semi-annually. Notes under this commitment shall be drawn on a demand or one year basis with the initial note due on January 31, 1978. Repayment under this credit agreement shall be made on an annual basis at the maturity of each annual note in installments of $98,875. In consideration of Bank extending this credit to Borrower, and so long as any indebtedness under this credit agreement shall remain unpaid, Borrower agrees, unless Bank otherwise consents in writing: UNION BANK. ACCOUNT NO.G4$Z3-025 S ❑ COMMERCIAL. ACCOUNT C ❑ SAVINGS ACCOUNT OPENING DATE f WdPeninsula Regional Park District ' ACCOUNT NAME ITO BE FILLED IN BY BANK) ❑ A CORPORATION ❑ ASSOCIATION ❑ SOCIETY i SIGNATURES REQUIRED l { NAME (MUST BE LEGIBLE) SIGNATURE OFFICIAL TITLE Daniel G. Wendin President Nonette G. Hanko Treasurer Herbert Grench General Manage Anne Cathcart Crosley District Clerk i 1 i 1 NA-37(REV.11-75) (Meeting 77-7 , Agenda item No. l (c) ADDRESS 745 01ste1 Drive Im Altas CA 94022 415-965-4717 SEND STATEMENT TO I I Sr. Accounting Clerk OPENING DEPOSIT BUSINESS TAXPAYER S.D. IND.CODE BANK REFERENCE ACCOUNT NUMBER INTRODUCED by OPENED BY DATE CLOSED REASON Resolution No. Resolution Authorizing Signing and Endorsing Checks and Other Instruments (Union .Bank) "RESOLVED that, by its President, this organization Open an account with Union Bank,subject to applicable Bank rules, regulations, and by-laws; that all items drawn on the account shall be signed with the organization name followed by the specified number of signatures of persons listed on the reverse hereof; that any item payable to this organization may be III deposited in this account, and Bank may supply any endorsement; "That all activity In the account, as evidenced by statements received by this organization prior to the adoption of this resolution, is hereby ratified and approved. "That this authorization shall remain effective until the Bank receives certified copy of a resolution of the organization III to the contrary; that all previous authorizations heretofore given with respect to said account are revoked;• that the revoca- lion of this or of previous authorizations with respect to said account shall not affect the validity of any item signed or en- dorsed by any person or persons at the time authorized to act; and that this organization guarantees payment of any over» draft created in this account." This is to certify that the foregoing is a true copy of a resolution duty adopted by the directors of /Midpeninsula Regional Park District organized in the State of cal ife r_F1 a:a and that resolution is in full force and effect. (SEAL) DATE - tg_17 The depositor hereby opens this account with Union Bank and agrees that it shal?21PStm-9.;*,Qty%@X4'I., regulations, and by-laws of the Bank now existing or hereafter adopted. Receipt of a copy of rules and regulations applicable to this account is hereby acknowledged. 0 Midpeninsula Regional Park District PRESIDENT e-77=s February 28 , 1977 Meeting 77-6 MIDPENINSULA REGIONAL PARK DISTRICT C L A I M S I V Amount Name Description 12792 $742.02 Xerox Corporations Duplicating Expenses 2793 216.43 Linda Newberry Wire-Permanente Creek 2794 25.45 Katherine Duffy Telephone Expense ' 2795 232.00 Steve Kunin Professional Services 2797 390.85 Victor California Field Equipment I i