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HomeMy WebLinkAboutC10-073 Omnibus Cert of Eagle County, COOMNIBUS CERTIFICATE OF EAGLE COUNTY, COLORADO We, the undersigned officials of the County of Eagle, State of Colorado (the "County" and the "State," respectively) certify that: 1. Organization and Powers. The County is a political subdivision of the State with fiill power and authority to carry out the transactions contemplated by the Ground Lease Agreement dated as of September 1, 2008 (the "Original Ground Lease"), as amended by the First Amendment to the Ground Lease Agreement dated as of March 1, 2010, (the "First Amendment" and collectively with the Original Ground Lease, the "Ground Lease") between Eagle County Justice Center Financing Corporation (the "Corporation") and the County and the Lease Purchase Agreement dated as of September 1, 2008 (the "Original Lease"), as amended by the First Supplemental Lease Purchase Agreement dated as of March 1, 2010 (the "First Supplemental Lease" and collectively with the Original Lease, the "Lease") between the Corporation and the County. 2. Incumbency of Officers. On the date hereof and at all times since March 1, 2010, each of the persons named below are and have been the duly elected or appointed, qualified and acting members, officers, and employees of the County holding the offices set forth opposite their respective names, and the signatures set forth opposite the names of such persons who executed documents in connection with the Certificates are their genuine signatures: Sara J. Fisher Jon Stavney Peter F. Runyon Teak J. Simonton Commissioner Chairman Commissioner Commissioner County Clerk and Recorder Each of the foregoing members, officers and employees of the County required to do so has duly taken and filed an oath of office; and each of them required to give any bond or undertaking has given or filed such bond or undertaking in the form and amount required by law. 3. Authorization and Execution. The County has duly authorized by all necessary action the adoption of the authorizing Resolution, a true, complete and correct copy of which is attached hereto as Exhibit A (the "Resolution"), the execution, delivery and receipt and due performance of the First Amendment, the First Supplemental Lease and all other agreements, certificates and documents as may be required to be executed and delivered by the County in order to carry out, give effect to and cor~su~~u-riate the transactions coiitempiated by such documents, and the execution by the Corporation of the First Amendment and the First Supplemental Lease; and the First Amendment, the First Supplemental Lease and related documents, certificates and agreements to be executed by the County have been duly executed and delivered by authorized officers of the VA1D8 - 065064/000021 - 443324 v l ~_~Z~ County. The County has duly affirmed the Ground Lease (as amended by the First Amendment) and the Lease (as amended by the First Supplemental Lease) and (assunung their enforceability against the other parties thereto) the Ground Lease and the Lease are each a valid and binding obligation of the County, enforceable against the County in accordance with their terms, except as the enforceability thereof may be limited by insolvency, bankruptcy, reorganization, moratorium, or other laws from time to time in effect affecting creditors' rights, and by general equitable principles which may limit the right to obtain specific performance, injunctive relief, or other equitable remedies. The Resolution remains in full force and effect and no proceedings or authority for the execution and delivery of the Resolution have or has been repealed, rescinded, revoked, modified, changed or altered in any manner. 4. Approvals and Consents. No approval, consent, or authorization of any governmental or public agency or authority not already obtained is required by the County in connection with entering into and performing its obligations under the Ground Lease, the Lease or the transactions contemplated hereby and thereby. 5. No Conflicts with Other Agreements, Etc. Neither the execution, adoption, delivery and receipt and due performance of the Resolution, the Ground Lease or the Lease, nor the consummation of the transactions contemplated thereby, nor the performance by the County of its obligations under any of the foregoing, conflicts or will conflict with, or results in or will result in a violation or breach of or a default under, any existing law, any judgment, order, decree or regulation of any court or any public or governmental agency or authority, or any agreement, indenture, mortgage, lease, instrument, statute, regulation, rule order, judgment, or decree to which the County is subject or is a party or by which it or its property is bound. 6. Representations and Warranties. The representations and warranties made by the County in each of the Ground Lease and the Lease as of their respective dates were, and as of the date hereof are, tike in all material respects, and such representations are hereby affirmed. 7. No Litigation. Except as described in the Official Statement, there is no pending action, suit, inquiry, or investigation at law or in equity or before or by any court, public board or body with regard to which the County has been served nor, to our knowledge, is there any action threatened against or affecting the County, wherein an unfavorable decision, ruling, or finding would adversely affect (a) any authority for or the validity of the proceedings taken by the County for the approval, authorization, delivery, receipt, and/or performance of the Resolution, the Ground Lease, the Lease or any other agreement or instalment to which the County is a party and which is used or contemplated by such agreements, or the use of the proceeds of the Series 2008 Certificates (as defined in the Lease) to complete the Series 2008 Project (as defined in the Lease) or relating to the levy, collection or enforcement of any tax, fees, rates, tolls or charges to pay Base Rentals or Additional Rentals (each as defined in the Lease) under the Lease; (b) the validity or enforceability against the County in accordance with their respective terms of the Resolution, the Ground Lease, the Lease, or any other agreement or insta~ment to which the County is a party and which is used or contemplated for use in the consummation of the transactions contemplated by the Resohition, the Ground Lease oi' fire Lease; (c) tl`ie County's completion of the Series 2008 Projeci; or (d) the exclusion from gross income for federal income tax purposes of the portion of Base Rentals designated in the Lease and paid by the County as interest. Neither the corporate existence -2- VVAD8 - 0(5064/000021 - 443324 vl nor boundaries of the County nor the titles of its present officers or any of them to their respective offices have been or are being contested. 8. Open Meetings. All meetings of the Board at which action was taken relating to the First Amendment and the First Supplemental Lease have been open to the public at all times. All regular or special meetings of the Board relating to First Amendment and the First Supplemental Lease have been held on notice duly given as provided in the Colorado Revised Statutes, as amended. 9. No Conflict of Interest. To the best of our knowledge, none of the undersigned, or any other officer or employee of the County, is interested, directly or indirectly, in the profits of any contract or services to be performed in connection with the Series 2008 Project (except in the performance of his/her official rights, privileges, powers and duties); nor have such persons solicited or received any payment, commission, money or anything of value or derived any benefit, profit or advantage directly or indirectly, from or by reason of any dealings with or service for the County in connection with the issuance of the Certificates. 10. No Default. The County is not in default as to any of its obligations under the Ground Lease, the Lease, or the Resolution, and the County has not issued any other obligations with respect to the Ground Lease or the Lease. -3- VIDE - 065064/000021 - 443324 vl IN WITNESS WHEREOF, we have hereunto set our respective signatures as officials and have affixed the seal of the County this ~_%fay of March, 2010. [SEAL] EAGLE COUNTY, COLORADO Attest: ~. B y: Sara J. Fisher, Chairman, Board of County oQ ~ ommissioners ~-~ County Clerk and ecorder ~ c~~o~Ao° -4- \VAD8 - OC,5064/000021 - 443334 v I EXHIBIT A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY A-1 VAADE - 0650ti4/000021 - 443324 vl Commissioned ~'2-cif' moved adoption of the following Resolution: EAGLE COUNTY, COLORADO RESOLUTION N0.2010- APPROVING A FIRST SUPPLEMENTAL LEASE PURCHASE AGREEMENT, FIRST AMENDMENT TO GROUND LEASE, AND RELATED DOCUMENTS AND TRANSACTIONS IN CONNECTION WITH AN ADDITIONAL PROJECT TO BE FINANCED WITH PROCEEDS OF THE CERTIFICATES OF PARTICIPATION, SERIES 2008 ISSUED BY EAGLE COUNTY JUSTICE CENTER FINANCING CORPORATION TO FINANCE THE CONSTRUCTION OF AN ADDITION TO THE EAGLE COUNTY JUSTICE CENTER; RATIFYING ACTIONS PREVIOUSLY TAKEN; AND PROVIDING OTHER MATTERS RELATING THERETO. WHEREAS, Eagle County, Colorado (the "County") is a duly created political subdivision organized and operating as a county pursuant to the constitution and laws of the State of Colorado (the "State"); and WHEREAS, pursuant to the laws of the State, the County has the authority to purchase, sell, convey, dispose of, and lease, as lessor or lessee, real and personal property and is authorized to enter into lease-purchase agreements for the purpose of financing real property and personal property, including buildings and equipment, for governmental proposes; and WHEREAS, by Resolution No. 2008-109 adopted by the Board of County Commissioners (the "Board") of the County, the Board had, among other things, authorized the financing, acquisition, construction and equipping of an addition to the existing Eagle County Justice Center (the "Addition") to be located on certain real property of the County (the "Series 2008 Project") for use by the County and authorized various agreements and transactions necessary to accomplish the Series 2008 Project; and WHEREAS, in order to facilitate the financing, construction, acquisition and equipping of the Series 2008 Project, the Board has previously entered into (i) a Ground Lease Agreement dated as of September 1, 2008 (the "Ground Lease") with the Eagle County Justice Center Financing Corporation (the "Corporation"), providing for the leasing by the Corporation from the County of a site abutting the existing Eagle County Justice Center (the "Site") for the Series 2008 Project and (ii) a Lease Purchase Agreement dated as of September 1, 2008 (the "Lease") between the County and r_he Corporation, providing for the 1_e.asing and subleasing by the County from the Corporation of the Leased Property; and V \ V DE - 066064/000021 - 443340 v 1 EXHIBIT .~ a 3 WHEREAS, in order to finance the Series 2008 Project, the Corporation issued $21,300,000 aggregate principal amount of Lease Purchase Agreement Certificates of Participation (Eagle County Justice Center Project), Series 2008 (the "Series 2008 Certificates"), evidencing assignments of proportionate interests in rights to receive certain payments under the Lease, which rights were assigned to Wells Fargo Bank National Association, as Trustee (the "Trustee") pursuant to a Mortgage and Indenture of Trust dated as of September 1, 2008 (the "Original Indenture") between the Corporation and the Trustee; and WHEREAS, the Series 2008 Project is expected to be completed under budget and, therefore, it is expected that a portion of the proceeds of the Series 2008 Certificates will remain after the completion of the Series 2008 Project; and WHEREAS, the Board has determined and hereby determines that it is in the best interests of the County and its inhabitants that such excess proceeds of the Series 2008 Certificates be applied to the construction, acquisition and improvement of an additional project (the "Additional Project") abutting the Eagle County Justice Center, and, in connection therewith, that the Ground Lease and the Lease be amended or supplemented in order to lease to the Corporation the site upon which the Additional Project will be located (the "Additional Site") and to include the Additional Project into the Series 2008 Project; and WHEREAS, there have been presented to the Board the proposed forms of (i) the First Amendment ,to the Ground Lease dated as of March 1, 2010 (the "First Amendment") between the County, as ground lessor and the Corporation, as ground lessee and (ii) the First Supplemental Lease Purchase Agreement dated as of March 1, 2010 (the "First Supplemental Lease") between the Corporation, as lessor, and the County, as lessee; and NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY, COLORADO, AS FOLLOWS: Section 1. APPROVAL OF THE ADDITIONAL PROJECT FIRST AMENDMENT, FIRST SUPPLEMENTAL LEASE AND RELATED DOCUMENTS. The Board, on behalf of the County, hereby finds that the accomplishment of the Additional Project and the execution of the First Amendment and First Supplemental Lease are necessary and in the best interest of the County and its inhabitants, and that each and every matter and thing as to which provision is made herein is necessary in order to carry out and to effect the purposes hereof. The First Amendment and First Supplemental Lease, forms of which have been presented to the Board (copies of which shall be filed with the records of the County) are hereby approved, and the Chairman of the Board of County Commissioners of the County (the "Chairman") is hereby authorized to execute and deliver, and the County Clerk and Recorder of the County (the "Clerk") is hereby authorized to affix the seal of the County where appropriate to, and attest, such documents in substantially such form and upon the tP,-ms and conditions set forth herein and therein, with such changes therein as such officers shall approve, such approval to be evidenced by their execution thereof. -2- \ \ \ DE - OGu0G4/000021 - 443340 vl Section 2. RATIFICATION AND CONFIRMATION OF GROUND LEASE AND LEASE. The Board hereby ratifies and confirms the Ground Lease, as amended by the First Amendment, and the Lease, as amended by the First Supplemental Lease. Section 3. RATIFICATION OF PREVIOUS ACTIONS. All action (not inconsistent with the provisions of this Resolution) heretofore taken by the Board and the officers of the County directed toward effecting the First Amendment and the First Supplemental Lease, the Additional Project, the leasing and subleasing of the Additional Site and the Additional Project be, and the same is hereby, ratified, approved and confirmed. Section 4. INCIDENTAL ACTION. The Chairman and Clerk of the County are hereby authorized and directed to execute and deliver such other documents (including execution of an amendment to the tax certificate delivered by the County in connection with the Series 2008 Certificates) and to take such other action as may be necessary or appropriate in order to effectuate the delivery of the aforesaid First Amendment and the First Supplemental Lease and the performance of the County's obligations thereunder. Section 5. NO PERSONAL LIABILITY. Neither the members of the Board nor any other official, employee, or agent of the County shall be subject to any personal liability or accountability by reason of the transactions approved hereby. Section 6. REPEALER. All acts, orders, resolutions, or parts thereof, taken by the County in conflict with this Resolution are hereby repealed, except that this repealer shall not be construed so as to revive any act, order, resolution, or part thereof, heretofore repealed. Section 7. RESOLUTION IRREPEALABLE. This Resolution is, and shall constitute, a legislative measure of the County and shall be and remain irrepealable during the term of the Lease as it may be renewed at the option of the County as provided therein. Section 8. SEVERABILITY. If any paragraph, clause or provision of this Resolution is judicially adjudged invalid or unenforceable, such judgment shall not affect, impair or invalidate the remaining paragraphs, clauses or provisions hereof, the intention being that the various paragraphs, clauses or provisions hereof are severable. Section 9. EFFECTNE DATE. This Resolution shall take effect immediately upon its passage. -3- \ \ \DC - 065064/00002 L - 443340 v t MOVED, READ AND ADOPTED, by the Board of County Commissioners of the County of Eagle, State of Colorado, at its regular meeting held the day of March, 2010. COUNTY OF EAGLE, STATE OF COLORADO By and Through its BOARD OF COUNTY COMMISSIONERS ATTEST: o~ J. Fisher Clerk to the Board of County Commissioners ~~~ ~AaA~oJ Vii- r - v °- y~ Peter F. Runyon, Commissi Commissioner C.~G2~• seconded adoption of the foregoing Resolution. The roll having been called, the vote s as follows: Commissioner Fisher ~'~~ Commissioner Stavney C~ Commissioner Runyon This Resolution passed by ~ vote of the Board of County Commissioners of the County of Eagle, State of Colorado. V V V D I& - OG506<t/000021 - 4h3340 v 1 STATE OF COLORADO ) ss. COUNTY OF EAGLE ) I, Teak J. Simonton, County Clerk and Recorder of Eagle County, Colorado, do hereby certify that the attached copy of Resolution No. 2010-,~~is a true and correct copy; that said Resolution was passed by the Board of County Commissioners of Eagle County, Colorado, at its regular meeting held at 550 Broadway, Eagle County, Colorado, the regular meeting place thereof, on Tuesday, the ,~(L day of March, 2010; that a true copy of said Resolution has been authenticated by the signatures of the Chairman of the Board of County Commissioners of Eagle County and myself as County Clerk and Recorder thereof, sealed with the seal of the County, and numbered and recorded in a book kept for that purpose in my office; that the foregoing pages 1 through 4, inclusive, constitute a true and correct copy of the record of the proceedings of said Board at its aforesaid meeting, insofar as said proceedings relate to said Resolution; that said proceedings were duly had and taken, that the meeting was duly held; and that the persons were present at said meeting as therein shown. IN WITN~ WHEREOF, I have hereunto set my hand and the seal of Eagle County, Colorado this day of March, 2010. 4 0 (SEAL) > ~ ~,; C~-1~,~C~"~~`' ' ---° ~.~ `~ ~ County Clerk and Recorder '~' ~°~osa~~ Eagle County, Colorado -5- \ \ \ D~ - 065064/000021 - 443340 v 1