HomeMy WebLinkAboutMINUTES - 12182001 - C.107 ippqr
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TO:- ' BOARD OF SUPERVISORS �'s- .L.
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CostaCk................
DATE: December 18, 2001 County
OSUBJECT: APPROVAL OF AMENDMENT TO FACILITY
LEASE OR FACILITY LEASE WITH TRANSOCEAN FINANCING
COPORATION FOR THE PROPERTY LOCATED AT 2047 ARNOLD
INDUSTRIAL DRIVE, CONCORD
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS:
1. APPROVE an amendment to the Facility Lease with Transocean Financing Corporation (or
a new Facility Lease) for the property located at 2047 Arnold Industrial Drive, Concord in
order to reduce overall interest costs.on outstanding debt on the property.
2. AUTHORIZE the Director of General Services, or his designee, to execute all documents
and contracts and take all actions as required to complete the Amendment to the Lease.
FISCAL IMPACT:
The proposed lease amendment relates to a refinancing of outstanding debt for the Central
County Homeless Shelter and storage at 2047 Arnold Industrial Drive. The balance on the
existing debt issue is $619,258. By taking advantage of lower interest rates, this refinancing
will result in a saving of approximately $18,000 (in current dollars) over the remaining term of
the loan. The existing debt was financed at an interest rate of 6.28% and it is anticipated that
the new interest rate will be between 80 and 100 basis points lower.
CONTINUED ON ATTACHMENT: YES SIGNATURE:
------------------------ ---------------------------------------
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON. ------- --------- ------ ----------------------------------------------------- . ----
--------- ---------------------------------
PC� �0/D�(yJ APPROVE AS RECOMMENDED OTHER
VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE
AND CORRECT COPY OF AN ACTION TAKEN
UNANIMOUS(ABSENT ) AND ENTERED ON THE MINUTES OF THE
BOARD OF SUPERVISORS ON THE DATE
AYES: NOES: SHOWN.
ABSENT: ABSTAIN: -
ATTESTD
CONTACT: JOHN SWEETEN,CLERK OF HE
BOARD OF SUPERVISORS AD
COUNTY ADMINISTRATOR
CC:
r
BY V EPUTY
Annual lease payments for the facility of $63,554 are budgeted for FY 2001/02 within the
Health Services and General Services Department budgets. Savings from the refinancing will
be taken up front, so the amount of the lease payments term will not change. Savings will be
allocated to minor capital projects for the Department of Health Services.
BACKGROUND:
The Board approved a Facility Lease with Transocean Financing for 2047 Arnold Industrial
Drive on March 21, 2000. This Facility Lease refinanced previous debt on the property.
The original Lessor, Transocean, assigned the Facility Lease to Transamerica Public Finance
in 2000. At this time, it is anticipated that the existing lease can be reassigned back to
Transocean and amended. If this is not possible, the County will need to terminate the
existing lease and enter into a new lease with Transocean Financing.
Part of this property is used by the Central County Homeless Shelter. The remainder is a
warehouse in use by the Department of General Services.
FIRST AMENDMENT TO FACILITY LEASE
2047 ARNOLD INDUSTRIAL WAY
CONCORD, CALIFORNIA
1. PARTIES. This first amendment dated as of January 15, 2002 (this "Amendment")
between Transamerica Public Finance LLC, as assignee of Transocean Financing Corporation,
("Lessor") and County of Contra Costa, California ("Lessee" or"County"), amends and
supplements that certain Facility Lease between Lessor and Lessee dated as of March 1, 2000 (the
"Original Lease,"together with this Amendment, the"Lease")relating to the property located at
2047 Arnold Industrial Way, Concord, California. Capitalized terms used and not defined herein are
as defined in the Original Lease.
2. PURPOSES. Lessor and County desire to amend the Original Lease to address
Hazardous Substances (as defined below)that may be found on the Property and to augment
County's indemnification of Lessor and its assigns as well as to lower the interest rate, increase
funding, modify the prepayment purchase option and change certain other business terms.
3. AMENDMENTS TO LEASE. The Original Lease is amended as follows:
a. Definitions. Section 1 is amended by adding the following definition:
The term "Hazardous Substance" means any substance,material or waste, including
asbestos and petroleum (including crude oil or any fraction thereof),which is or becomes
designated, classified or regulated as being "toxic," "hazardous," a"pollutant" or similar
designation under any federal, state or local law,regulation or ordinance.
b. Lessor Not Liable. Section 16 is amended to add the following paragraphs:
"To the extent permitted by law, County shall indemnify Lessor and its assigns
against, and hold Lessor and its assigns harmless from, any and all claims, actions,
proceedings, causes of action, expenses, damages, liabilities,penalties, interest, costs or
similar charges of whatever nature, including attorney's fees, arising out of or connection
with the Premises, including, without limitation, its acquisition, possession, use, operation,
construction or improvement.
To the extent permitted by law, County shall indemnify Lessor and its assigns and
hold Lessor and its assigns harmless against any and all claims, actions,proceedings, causes
of action, expenses, liabilities, damages,penalties, interest, costs or similar charges of
whatever nature, including attorneys' fees, in connection with any property, real estate,
transfer, sales, use or any other taxes, fees, assessments or imposts which may be assessed
against the Premises or the transaction contemplated by this Lease.
County represents,warrants and covenants that throughout the term of this Lease it
will not take or permit any of its officers, employees or agents to take any action which
would cause the tax-exempt nature of the obligations evidenced by this Lease to be
1.
922361.1
contested, challenged or denied by applicable governmental authorities. In the event any such
action by County results in the denial or revocation of the tax-exempt status of such
obligations, County shall be responsible for all taxes,penalties, and interest arising in
connection therewith to Lessor or any assignee."
C. Hazardous Substances. The Original Lease is amended by adding new
Section 29 as follows:
"Section 29. Hazardous Substances. County agrees to defend, save,protect,
indemnify and hold Lessor and its assigns harmless from and against all liabilities, claims,
actions, foreseeable and unforeseeable consequential damages, penalties, costs (of whatever
nature), and expenses (including sums paid in settlement of claims and all consultant, expert
and legal fees and expenses of Lessor's counsel) or loss directly or indirectly arising out of or
resulting from any Hazardous Substance in, on, or around any part of the property or in the
soil, groundwater or soil vapor on or under the property, including those incurred in
connection with any investigation of site conditions or any clean-up, remedial, removal or
restoration work, or any resulting damages or injuries to the person or property of any third
parties or to any natural resources."
d. Pa=ent Address. Section 3 of the Original Lease is amended to provide that
all payments that are made under the Lease be made as follows:
If by regular first class mail: Transamerica Public Finance LLC
Box 21479 Network Place
Chicago, IL 60673-1214
If by overnight delivery: TEFS Public Finance, Bank One,NA
525 W. Monroe Street, 8th Floor Mail Room
Chicago, IL 60661
If by wire transfer: Bank Name: Bank One, NA
Bank Location: Chicago, IL
ABA Number: 71000013
Account Title: Transamerica Public Finance
Account Number: 5152070
e. Schedule of Rental Payments. The Lease is hereby amended by replacing
Exhibit B with the modified Exhibit B attached hereto, reflecting a revised schedule of rental
payments and Prepayment Purchase Option price.
f. Notices. Section 21 of the Original Lease is hereby amended by providing
that notices addressed to Lessor be addressed to Transamerica Public Finance LLC, 144
Merchant Street, Suite 150, Cincinnati, Ohio 45246;Telephone: 513-771-5151, Fax: 513-
771-5171.
g. Exhibits. The following Exhibits are added to the existing Exhibits and made
a part of the Lease.
Exhibit B Schedule of Rental Payments
2.
922361.1
Exhibit C-2 Opinion of County Counsel
Exhibit D-2 Certificate of Essential Use
Exhibit E-2 Board Order
Exhibit H Incumbency Certificate
DEPOSIT OF FUNDS. In connection with this Amendment, Lessor agrees to pay to
County the amount of$19,665.14, which amount shall be deposited to an escrow account established
under the Escrow Agreement dated as of January 15, 2002 between the Lessor, the County and First
National Bank of Central California, as Escrow Agent. The Lessee will, within six months of the
date hereof, enter into contracts providing for the acquisition and construction of the Projects (as
defined in the Escrow Agreement) in an aggregate amount of not less than $19,665.14. Any interest
earnings from the Fund established under the Escrow Agreement will be applied to the Projects.
5. COUNTY REPRESENTATION AND WARRANTY. The County hereby represents
and warrant that, to the best of its knowledge after reasonable inquiry, that no claims have been filed
regarding Hazardous Substances and nothing has come to its attention that would cause it to believe
that any Hazardous Substances have been released on the premises in violation of any law or
regulation.
6. EFFECT. Except as otherwise provided herein, the provisions of the Original Lease
are hereby ratified and confirmed and shall remain in full force and effect. In the event of a conflict
between the terms of this Amendment and the Original Lease, the terms of this Amendment shall
control.
3.
922361.1
IN WITNESS WHEREOF, the parties have executed this Amendment to the Lease as of the
date set forth above.
COUNTY: TRANSAMERICA PUBLIC FINANCE LLC
As Lessor
COUNTY OF CONTRA COSTA,
a political subdivision of the State of California
By: �
Sean McAlister, Vice President
By:
Director of General Services
RECOMMENDED FO APPROVA
By:
erector, Capi acilities & Debt
Management
r
By: K—
Deputy G eral Services Director
By: C" &k-,
Lease Manager
APPROVED AS TO FORM:
SYLVANO MARCHESI, County Counsel
By:
Deputy C41ty Counsel
4.
922361.1
EXHIBIT B
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EXHIBIT C2
0?-FICE OF THE COUNTY COUNSEL SEL SILVANO B. MARCHES[
COUNTY OF CONTRA COSTA ';� ' ==_�;� COUNTY COUNSEL
Administration Building
651 Pine Street, 91"Floor �_ �• SHARON L. ANDERSON
Martinez, California 94553-1229 _ _ CHIEF AssISTANT
' _ = � GREGORY C.HARVEY
(925) 335-1800 Q; +l>wllti�l "- ! VALERIE J. RANCHE
(925) 646-1078 (fax) As51STANTs
1c,
7.q COU��
Opinion of County Counsel
January 28,2002
Lessee: County of Contra Costa
1220 Morello Avenue, Suite 100
Martinez, California 94553
Lessor: Transamerica Public Finance LLC
144 Merchant Street, Suite 150
Cincinnati, Ohio 45246
Re: Amendment to Facility Lease dated as of January 15, 2002, by and between
Transamerica Public Finance LLC ("Lessor"), as assignee of Transocean Financing
Corporation ("Original Lessor"), and the County of Contra Costa ("Lessee") (the
"Amendment"), amending that certain Facility Lease dated as of March 1,2000, by
and between Original Lessor and Lessee (the"Original Lease" and together with
the Amendment, the "Lease")
Ladies and Gentlemen:
I have acted as counsel to the Lessee with respect to the Amendment to the Facility Lease
for 2047 Arnold Industrial Way described above (the Amendment") and various related matters
and in this capacity have reviewed a duplicate original or certified copy of the Amendment and
the exhibits attached thereto. Based upon the examination of these and such other documents as
I deem relevant, it is my opinion that:
1. Lessee is a political subdivision of the State of California(the"State"), duly
organized, existing, and operating under the constitution and laws of the State. The Lessee is
organized under and pursuant to the Government Code of the State.
2. Lessee is authorized and has the power under State law to enter into the Amendment
and to carry out its obligations thereunder and the transactions contemplated thereby.
EXHIBIT C2
Opinion of County Counsel
Page 2
January 28, 2002
I The Amendment has been duly authorized, approved, executed, and delivered by and
on behalf of Lessee and is a valid and binding contract of Lessee enforceable in accordance with
its terms, except to the extent limited by State and Federal laws affecting remedies and
bankruptcy,reorganization, or other laws of general application relating to or affecting the
enforcement of creditors' rights.
4. The authorization, approval, and execution of the Amendment and all other
proceedings of Lessee relating to the transaction contemplated thereby have been performed in
accordance with all open meeting, public bidding, and other laws, rules, and regulations
applicable to the Lessee.
5. The execution of the Amendment and the appropriation of monies to pay the lease
payments coming due thereunder do not result in the violation of any constitutional, statutory, or
other limitation relating to the manner, form, or amount of indebtedness which may be incurred
by Lessee.
6. There is no litigation, action, suit, or proceeding pending or before any court,
administrative agency, arbitrator, or governmental body that challenges the organization or
existence of Lessee,the authority of its officers, the proper authorization, approval, and/or
execution of the Amendent,the exhibits, and other documents contemplated thereby, the
appropriation of monies or any other action taken by Lessee to provide monies sufficient to make
lease payments under the Amendment,the performance by Lessee of all its obligations under the
Amendment, the enforceability and enforcement of the Amendment against the Lessee, or the
ability of Lessee otherwise to perform its obligations under the Amendment and the transactions
contemplated thereby.
Very truly yours,
Silvano B. Marchesi
County Counsel
IU ' �' � .
By: Phil ip S. Altho
Deputy County Counsel
l:\Cler\PSA\Opinion ArnoldIndus
EXHIBIT D-2
COUNTY OF CONTRA COSTA FACILITY LEASE
DATED AS OF MARCH 1,2000,AS AMENDED BY THE
AMENDMENT TO FACILITY LEASE DATED AS OF JANUARY 15, 2002
CERTIFICATE OF ESSENTIAL USE
2047 ARNOLD INDUSTRIAL WAY
The undersigned, as Director of General Services, of COUNTY OF CONTRA COSTA
(the "Lessee"), hereby certifies that the projects to be financed with the funds to be deposited to
the Fund established pursuant to the related Escrow Agreement (the "Projects") in connection
with the above captioned Lease(the "Lease") are essential to the functions of the Lessee or to the
services the Lessee provides.
Further, the Lessee has an immediate need for, and expects to make immediate use of, all
the Projects, the need for which is not temporary or expected to diminish in the foreseeable
future. The Projects will be used by the Lessee only for the purpose of performing one or more
governmental or proprietary functions consistent with the permissible scope of authority.
Specifically, the Projects were selected by the Lessee to be used for the following governmental
purposes:
1. Mental health and psychiatric programs
2. Medical programs
3. Juvenile Correctional programs
4. Administrative uses
5. Housing programs
COUNTY OF CONTRA COSTA,
as Lessee
By: &bw(fij
Director of General Services
Date: January 28, 2002
922361.1
EXHIBIT H
INCUMBENCY CERTIFICATE
I, Y" I vK2 , do hereby certify that I am the duly elected or appointed and
acting7�w Co�U n, C ,e e— of the COUNTY OF CONTRA COSTA, CALIFORNIA that I
have custody of the records-of such entity, and that, as of the date hereof, the individual(s) named
below is/are the duly elected or appointed officer of such entity holding the office set forth
opposite his or her name. I further certify that (i) the signature set opposite his or her name and
title is his or her true and authentic signature; and(ii) such officer has the authority on behalf of
such entity to enter into that certain Amendment to Facility Lease Agreement dated as of January
15, 2002, between such entity and Transamerica Public Finance LLC ("Lessor"); and (iii) the
authority is provided by a resolution of the Board of the Lessee or an internal policy of the
Lessee.
Printed Name Title SigLiature
Barton J. Gilbert "4&4—
Director•f General Services
Carol Chan Lease Manager
IN WITNESS WHEREOF, I have duly executed this Certificate as of the 28th day of
January 2002.
Authorized Signature
922?61.1
STEPHEN L TABOR H H D S O R
PARTNER
DIRECT DIAL 415 995 5020 B R I D G Eii
REPLY TO SAN FRANCISCO
E-MAIL stabor@hansonbridgett.com M fl fl C U S
January 28, 2002 U L O H O S
flUDYIIP
County of Contra Costa
1220 Morello Avenue
Martinez, CA 94553
Transamerica Public Finance LLC
144 Merchant Street,.Suite 150
Cincinnati, OH 45246
Re: Amendment to Facility Lease (2047 Arnold Industrial Way. Concord)
(Special Tax Opinion)
Ladies and Gentlemen:
We have acted as special tax counsel in connection with the execution and delivery of a First
Amendment to Facility Lease dated as of January 15, 2002, by and between the County of Contra
Costa, California (the "Lessee") and Transamerica Public Finance LLC, as assignee (the "Lessor") of
Transocean Financing Corporation (the "Original Lessor"), amending and supplementing the Facility
Lease (2047 Arnold Industrial Way, Concord), executed and entered into as of May 1, 2000
(collectively, the "Lease"). Capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Lease.
In such connection we have reviewed the Lease, the Escrow Agreement, a tax certificate of the
Lessee, dated as of the date hereof(the "Tax Certificate"), other certifications of the County and
others as to certain factual matters as we deemed necessary to render the opinion set forth herein. In
rendering the opinion expressed herein, we have relied on the opinion of County Counsel for the
County of Contra Costa, counsel to the Lessee, that the Lease is a valid and binding obligation of the
Lessee.
Certain agreements, requirements and procedures contained or referred to in the Lease, the Tax
Certificate and other relevant documents may be changed and certain actions (including, without
limitation, defeasance of the Lease) may be taken or omitted under the circumstances and subject to
the terms and conditions set forth in such documents. No opinion is expressed herein as to the
interest components of any Rental Payment if any such charge occurs or action is taken or omitted
upon the advance or approval of counsel other than ourselves. .
The opinions expressed herein are based on an analysis of existing laws,regulations, rulings and
court decisions and cover certain matters not directly addressed by such authorities. Such opinions
may be affected by actions taken or omitted or events occurring after the date hereof. We have not
undertaken to determine, or to inform any person, whether any such actions are taken or omitted or
LAW OFFICES
W W W.HANSONBRIDGETTCOM
SAN FRANCISCO MARIN SACRAMENTO
333 MARKET STREET WOOD ISLAND 980 NINTH STREET
23RD FLOOR 80 E.SIR FRANCIS DRAKE BLVD.-SUITE 3E SUITE 1500
SAN FRANCISCO•CALIFORNIA 94105-2173 LARKSPUR.CALIFORNIA 94939 SACRAMENTO•CALIFORNIA 95814
TELEPHONE 415.777-3200 TELEPHONE 415.925.8400 TELEPHONE 916.442.3333
FACSIMILE 415-541-9366 FACSIMILE 415.925.8409 FACSIMILE 916.442.2348
SF@HANSONBRIDGETTCOM MARIN@HANSONBRIDGET-r.COM SAC@HANSONBRIDGETT.COM
921308.1
County of Contra Costa
Transamerica Public Finance LLC
January 28, 2002
Page 2
events do occur or any other matters come to our attention after the date hereof. Our engagement
with respect to the Lease has concluded with the execution and delivery thereof, and we disclaim any
obligation to update this letter. We have assumed the genuineness of all documents and signatures
presented to us (whether as originals or as copies) and the due and legal execution and delivery
thereof by, and validity against, all parties, including the Lessee. We have assumed, without
undertaking to verify, the accuracy of the factual matters represented, warranted or certified in the
documents, and of the legal conclusions contained in the opinion(s), referred to in the first paragraph
hereof. Furthermore, we have assumed compliance with all covenants and agreements contained in
the Lease and its Tax Certificate including (without limitation) covenants and agreements
compliance with which is necessary to assure that future actions, omissions or events will not cause
the interest portion of Rental Payments to be included in gross income for federal income tax
purpose.
In addition, we call attention to the fact that the rights and obligations under the Lease and
the Tax Certificate and their enforceability are subject to bankruptcy, insolvency, reorganization,
arrangement, fraudulent conveyance,moratorium and other laws relating to or affecting creditors'
rights, to the application of equitable principles, to the exercise of judicial discretion in appropriate
cases, and to the limitations on legal remedies against counties in the State of California. We express
no opinion with respect to any indemnification, contribution, penalty, choice of law, choice of forum
or waiver or non-substitution provisions contained in the foregoing documents nor do we express any
opinion with respect to the state or quality of title to or interest in any of the real or personal property
described in or subject to the lien of the Lease or the accuracy or sufficiency of the description of any
such property contained therein.
Based on and subject to the foregoing, and in reliance thereon, as of the date hereof, we are
of the opinion that the portion of each Rental Payment;designated as and constituting interest paid by
the Lessee under the Lease and received by the Lessor is excluded from gross income for federal
income tax purposes under Section 103 of the Internal Revenue Code of 1986 and is exempt from
State of California personal income taxes. Such interest is not a specific preference item for purposes
of the federal individual or corporate alternative minimum taxes, although we observe that it is
included in adjusted current earnings when calculating corporate alternative minimum taxable
income. We express no opinion regarding other tax consequences related to the accrual or receipt of
such interest or the ownership or disposition of the Lease.
Very truly yours,
4HANS N, BRIDGETT, MARCUS, VLAHOS & RUDY, LLP
St hen L. Taber
921308.1
FIRST AMENDMENT TO FACILITY LEASE
1034 OAK GROVE ROAD
CONCORD, CALIFORNIA
1. PARTIES. This first amendment dated as of January 15, 2002 (this "Amendment")
between Transamerica Public Finance LLC, as assignee of Transocean Financing Corporation ,
("Lessor") and County of Contra Costa, California ("Lessee" or"County"), amends and
supplements that certain Facility Lease between Lessor and Lessee dated as of March 1, 2000 (the
"Original Lease," together with this Amendment, the "Lease") relating to the property located at
1034 Oak Grove Road, Concord, California. Capitalized terms used and not defined herein are as
defined in the Original Lease.
2. PURPOSES. Lessor and County desire to amend the Original Lease to address
Hazardous Substances (as defined below) that may be found on the Property and to augment
County's indemnification of Lessor and its assigns as well as to change certain other business terms.
3. AMENDMENTS TO LEASE. The Original Lease is amended as follows:
a. Definitions. Section 1 is amended by adding the following definition:
The term "Hazardous Substance" means any substance, material or waste, including
asbestos and petroleum (including crude oil or any fraction thereof), which is or becomes
designated, classified or regulated as being "toxic," "hazardous," a "pollutant" or similar
designation under any federal, state or local law, regulation or ordinance.
b. Lessor Not Liable. Section 16 is amended to add the following
paragraphs:
"To the extent permitted by law, County shall indemnify Lessor and its assigns
against, and hold Lessor and its assigns harmless from, any and all claims, actions,
proceedings, causes of action, expenses, damages, liabilities, penalties, interest, costs or
similar charges of whatever nature, including attorney's fees, arising out of or connection
with the Premises, including, without limitation, its acquisition, possession, use, operation,
construction or improvement.
To the extent permitted by law, County shall indemnify Lessor and its assigns and
hold Lessor and its assigns harmless against any and all claims, actions, proceedings, causes
of action, expenses, liabilities, damages, penalties, interest, costs or similar charges of
whatever nature, including attorneys' fees, in connection with any property, real estate,
transfer, sales, use or any other taxes, fees, assessments or imposts which may be assessed
against the Premises or the transaction contemplated by this Lease.
922365.1
County represents, warrants and covenants that throughout the term of this Lease it
will not take or permit any of its officers, employees or agents to take any action which
would cause the tax-exempt nature of the obligations evidenced by this Lease to be
contested, challenged or denied by applicable governmental authorities. In the event any
such action by County results in the denial or revocation of the tax-exempt status of such
obligations, County shall be responsible for all taxes, penalties, and interest arising in
connection therewith to Lessor or any assignee."
C. Hazardous Substances. The Original Lease is amended by adding new
Section 30 as follows:
"Section 30. Hazardous Substances. County agrees to defend, save, protect,
indemnify and hold Lessor and its assigns harmless from and against all liabilities, claims,
actions, foreseeable and unforeseeable consequential damages, penalties, costs (of whatever
nature), and expenses (including sums paid in settlement of claims and all consultant, expert
and legal fees and expenses of Lessor's counsel) or loss directly or indirectly arising out of
or resulting from any Hazardous Substance in, on, or around any part of the property or in
the soil, groundwater or soil vapor on or under the property, including those incurred in
connection with any investigation of site conditions or any clean-up, remedial, removal or
restoration work, or any resulting damages or injuries to the person or property of any third
parties or to any natural resources."
d. Payment Address. Section 3 of the Original Lease is amended to provide that
all payments that are made under the Lease be made as follows:
If by regular first class mail: Transamerica Public Finance LLC
Box 21479 Network Place
Chicago, IL 60673-1214
If by overnight delivery: TEFS Public Finance, Bank One,NA
525 W. Monroe Street, 8th Floor Mail Room
Chicago, IL 60661
If by wire transfer: Bank Name: Bank One,NA
Bank Location: Chicago, IL
ABA Number: 71000013
Account Title: Transamerica Public Finance
Account Number: 5152070
e. Schedule of Rental Payments. The second paragraph of Section 3 of the
Original Lease is hereby deleted. The Lease is hereby amended by replacing Exhibit B with
the modified Exhibit B attached hereto, reflecting a revised schedule of rental payments and
Prepayment Purchase Option price.
f. Notices. Section 21 of the Original Lease is hereby amended by providing
that notices addressed to Lessor be addressed to Transamerica Public Finance LLC, 144
Merchant Street, Suite 150, Cincinnati, Ohio 45246; Telephone: 513-771-5151, Fax: 513-
771-5171.
2.
922365.1
g. Exhibits. The following Exhibits are added to the existing Exhibits and made
a part of the Lease.
Exhibit B Schedule of Rental Payments
Exhibit C-2 Opinion of County Counsel
Exhibit D-2 Certificate of Essential Use
Exhibit E-2 Board Order
Exhibit H Incumbency Certificate
4. DEPOSIT OF FUNDS. In connection with this Amendment, Lessor agrees to pay to
County the amount of$229,287.85, which amount shall be deposited to an account established
pursuant to the Amendment to Escrow Agreement dated as of January 15, 2002, amending that
certain Escrow Agreement dated as of September 1, 2001 (the"Escrow Agreement") between the
Transocean Financing Corporation, the County and First National Bank of Central California, as
Escrow Agent. The Lessee or the Lessor will, within six months of the date hereof, enter into
contracts providing for the acquisition and construction of the Projects (as defined in the Escrow
Agreement) in an aggregate amount of not less than $229,287.85. Any interest earnings from the
Fund established under the Escrow Agreement will be applied to the Projects.
5. COUNTY REPRESENTATION AND WARRANTY. The County hereby
represents and warrant that, to the best of its knowledge after reasonable inquiry, that no claims
have been filed regarding Hazardous Substances and nothing has come to its attention that would
cause it to believe that any Hazardous Substances have been released on the premises in violation of
any law or regulation.
6. EFFECT. Except as otherwise provided herein, the provisions of the Original Lease
are hereby ratified and confirmed and shall remain in full force and effect. In the event of a conflict
between the terms of this Amendment and the Original Lease, the terms of the Amendment shall
control.
3.
922365.1
IN WITNESS WHEREOF, the parties have executed this Amendment to the Lease as of
the date set forth above.
COUNTY: TRANSAMERICA PUBLIC FINANCE LLC
As Lessor
COUNTY OF CONTRA COSTA,
a political subdivision of the State of California
By:
Sean McA aster, Vice President
BY: 6�ftkaw—
Director of General Services
RECOMMENDED FOR APPROV
By: �--GU
irector, apital Facilities & Debt
Management
By: �cS
Deputy G ral Services Director
By:
Lease Manager
APPROVED AS TO FORM:
SYLVANO MARCHESI, County Counsel
By:
Deputy C my Counsel
922365.1
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EXHIBIT C2
0fFICE OF THE COUNTY COUNSEL SEL SILVANO B. MARCHESI
COUNTY OF CONTRA COSTACOUNTY COUNSEL
Administration Building SHARON L. ANDERSON
651 Pine Street, 9",Floor _ �;'
Martinez, California 94553-1229 -
CHIEF ASSISTANT
•' i
925 335-1800 n� ;4' � GREGORY C. HARVEY
( ) O: :i;Rll'"Cil:: ;Z
VALERIE J. RANCHE
(925) 646-1078 (fax) o AssIsTANTs
Sr`4 COUP
Opinion of County Counsel
January 28, 2002
Lessee: County of Contra Costa
1220 Morello Avenue, Suite 100
Martinez, California 94553
Lessor: Transamerica Public Finance LLC
144 Merchant Street, Suite 150
Cincinnati, Ohio 45246
Re: Amendment to Facility Lease dated as of January 15,2002, by and between
Transamerica Public Finance LLC ("Lessor"), as assignee of Transocean Financing
Corporation ("Original Lessor"), and the County of Contra Costa ("Lessee") (the
"Amendment"), amending that certain Facility Lease dated as of March 1, 2000, by
and between Original Lessor and Lessee (the "Original Lease" and together with
the Amendment, the "Lease")
Ladies and Gentlemen:
I have acted as counsel to the Lessee with respect to the Amendment to the Facility Lease
for 1034 Oak Grove Road described above(the Amendment") and various related matters and in
this capacity have reviewed a duplicate original or certified copy of the Amendment and the
exhibits attached thereto. Based upon the examination of these and such other documents as I
deem relevant, it is my opinion that:
1. Lessee is a political subdivision of the State of California(the"State"), duly
organized, existing, and operating under the constitution and laws of the State. The Lessee is
organized under and pursuant to the Government Code of the State.
2. Lessee is authorized and has the power under State law to enter into the Amendment
and to carry out its obligations thereunder and the transactions contemplated thereby.
EXHIBIT C2
Opinion of County Counsel
Page 2
January 28, 2002
3. The Amendment has been duly authorized, approved, executed, and delivered by and
on behalf of Lessee and is a valid and binding contract of Lessee enforceable in accordance with
its terms, except to the extent limited by State and Federal laws affecting remedies and
bankruptcy, reorganization, or other laws of general application relating to or affecting the
enforcement of creditors' rights. .
4. The authorization, approval, and execution of the Amendment and all other
proceedings of Lessee relating to the transaction contemplated thereby have been performed in
accordance with all open meeting,public bidding, and other laws,rules, and regulations
applicable to the Lessee.
5. The execution of the Amendment and the appropriation of monies to pay the lease
payments coming due thereunder do not result in the violation of any constitutional, statutory, or
other limitation relating to the manner, form, or amount of indebtedness which may be incurred
by Lessee.
6. There is no litigation, action, suit, or proceeding pending or before any court,
administrative agency, arbitrator, or,governmental body that challenges the organization or
existence of Lessee,the authority of its officers,the proper authorization, approval, and/or
execution of the Amendent,the exhibits, and other documents contemplated thereby, the
appropriation of monies or any other action taken by Lessee to provide monies sufficient to make
lease payments under the Amendment, the performance by Lessee of all its obligations under the
Amendment, the enforceability and enforcement of the Amendment against the Lessee, or the
ability of Lessee otherwise to perform its obligations under the Amendment and the transactions
contemplated thereby.
Very truly yours,
Silvano B. Marchesi
County Couns. l
By: Philli S. Althoff
Deputy County Counsel
[ACIerTSA\Opinion OakGrove
COUNTY OF CONTRA COSTA FACILITY LEASE
DATED AS OF MARCH 1, 2000, AS AMENDED BY THE
AMENDMENT TO FACILITY LEASE DATED AS OF JANUARY 15,2002
CERTIFICATE OF ESSENTIAL USE
1034 Oak Grove Road
The undersigned, as Director of General Services, of COUNTY OF CONTRA COSTA
(the "Lessee"), hereby certifies that the projects to be financed with the funds to be deposited to
the Fund established pursuant to the related Escrow Agreement (the "Projects") in connection
with the above captioned Lease(the "Lease") are essential to the functions of the Lessee or to the
services the Lessee provides.
Further, the Lessee has an immediate need for, and expects to make immediate use of, all
the Projects, the need for which is not temporary or expected to diminish in the foreseeable
future. The Projects will be used by the Lessee only for the purpose of performing one or more
governmental or proprietary functions consistent with the permissible scope of authority.
Specifically, the Projects were selected by the Lessee to be used for the following governmental
purposes:
1. Mental health and psychiatric programs
2. Medical programs
3. Juvenile Correctional programs
4. Administrative uses
5. Housing programs
COUNTY OF CONTRA COSTA,
as Lessee
By: &&M
Director of General Services
Date: January 28, 2002
922365.1
EXHIBIT H
INCUMBENCY CERTIFICATE
I, S-ryc-O "F-> AIA,,s , do hereby certify that I am the duly elected or appointed and
acting17gu Couv CA.,,"--of the COUNTY OF CONTRA COSTA, CALIFORNIA that I
have custody of the re ords of such entity, and that, as of the date hereof, the individual(s) named
below is/are the duly elected or appointed officer of such entity holding the office set forth
opposite his or her name. I further certify that(i)the signature set opposite his or her name and
title is his or her true and authentic signature; and(ii) such officer has the authority on behalf of
such entity to enter into that certain Amendment to Facility Lease Agreement dated as of January
15, 2002,between such entity and Transamerica Public Finance LLC ("Lessor"); and(iii) the
authority is provided by a resolution of the Board of the Lessee or an internal policy of the
Lessee.
Printed Name Title Signature
Barton J. Gilbert Director of General Services
Carol Chan Lease Manager CM
IN WITNESS WHEREOF, I have duly executed this Certificate as of the 28th day of
January 2002.
Authorized Signature
922361.1
.t
STEPHEN L TABOR H fl S 0
PARTNER
DIRECT DIAL 415 995 5020 I D G Eli
REPLY TO SAN FRANCISCO Y
E-MAIL stabor@hansonbridgett.com m
p p p
January 28, 2002 III H H D S
u � HHos
HUDN P
County of Contra Costa
1220 Morello Avenue
Martinez, CA 94553
Transamerica Public Finance LLC
144 Merchant Street, Suite 150
Cincinnati, OH 45246
Re: Amendment to Facility Lease (1034 Oak Grove Road, Concord)
(Special Tax Opinion)
Ladies and Gentlemen:
We have acted as special tax counsel in connection with the execution and delivery of a First
Amendment to Facility Lease dated as of January 15, 2002, by and between the County of Contra
Costa, California (the "Lessee")and Transamerica Public Finance LLC, as assignee (the "Lessor")of
Transocean Financing Corporation (the "Original Lessor"), amending and supplementing the Facility
Lease (1034 Oak Grove Road,Concord),executed and entered into as of May.1, 2000 (collectively,
the "Lease"). Capitalized terms not otherwise defined hereinshall have the meanings ascribed
thereto in the Lease.
In such connection we have reviewed the Lease, the Escrow Agreement,a tax certificate of the
Lessee, dated as of the date hereof(the "Tax Certificate"),other certifications of the County and
others as to certain factual matters as we deemed necessary to render the opinion set forth herein. In
rendering the opinion expressed herein, we have relied on the opinion of County Counsel for the
County of Contra Costa, counsel to the Lessee,that the Lease is a valid and binding obligation of the
Lessee.
Certain agreements,requirements and procedures contained or referred to in the Lease,the Tax
Certificate and other relevant documents may be changed and certain actions(including, without
limitation, defeasance of the Lease) may be taken or omitted under the circumstances and subject to
the terms and conditions set forth in such documents. No opinion is expressed herein as to the
interest components of any Rental Payment if any such charge occurs or action is taken or omitted
upon the advance or approval of counsel other than ourselves.
The opinions expressed herein are based on an analysis of existing laws, regulations, rulings and
court decisions and cover certain matters not directly addressed by such authorities. Such opinions
may be affected by actions taken or omitted or events occurring after the date hereof. We have not
Undertaken to determine, or to inform any person, whether any such actions are taken or omitted or
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921616.1
County of Contra Costa
Transamerica Public Finance LLC
January 28, 2002
Page 2
events do occur or any other matters come to our attention after the date hereof. Our engagement
with respect to the Lease has concluded with the execution and delivery thereof, and we disclaim any
obligation to update this letter. We have assumed the genuineness of all documents and signatures
presented to us (whether as originals or as copies)and the due and legal execution and delivery
thereof by, and validity against, all parties, including the Lessee. We have assumed, without
undertaking to verify, the accuracy of the factual matters represented, warranted or certified in the
documents, and of the legal conclusions contained in the opinion(s), referred to in the first paragraph
hereof. Furthermore,we have assumed compliance with all covenants and agreements contained in
the Lease and its Tax Certificate including (without limitation)covenants and agreements
compliance with:which is necessary to assure.that future actions, omissions or events will not cause
the interest portion of Rental Payments to be : ic:ludcd in g;os_, ncrie for federal income tax
purpose.
In addition,we call attention to the fact that the rights and obligations under the Lease and
the Tax Certificate and their enforceability are subject to bankruptcy, insolvency, reorganization,
arrangement, fraudulent conveyance,moratorium and other laws relating to or affecting creditors'
rights, to the application of equitable principles,to the exercise of judicial discretion in appropriate
cases, and to the limitations on legal remedies against counties in the.State of California. We express .
no opinion with respect to any indemnification,contribution, penalty,choice of law, choice of forum
or waiver or non-substitution provisions contained in the foregoing documents nor do we express any
opinion with respect to the state or quality of title to or interest in any of the real or personal property
described in or subject to the lien of the Lease or the accuracy or sufficiency of the description of any
such property contained therein.
Based on and subject to the foregoing,and in reliance thereon, as of the date hereof, we are
of the opinion that the portion of each Rental Payment designated as and constituting interest paid by
the Lessee under the Lease and received by the Lessor is excluded from gross income for federal
income tax purposes under Section 103 of the Internal Revenue Code of 1986 and is exempt from
State of California personal income taxes. Such interest is not a specific preference item for purposes
of the federal individual or corporate alternative minimum taxes, although we observe that it is
included in adjusted current earnings when calculating corporate alternative minimum taxable
income. We express no opinion regarding other tax consequences related to the accrual or receipt of
such interest or the ownership or disposition of the Lease.
Very truly yours,
HANSON, BRIDGETT, MARCUS, VLAHOS & RUDY, LLP
By: Stephen L.Taber
921616.1