A. MOTION TO APPROVE Amendment No. 5 to the Agreement of Lease between Broward County and Embraer Aircraft Holding, Inc.; and authorize the Mayor and Clerk to execute same.
ACTION: (T-10:27 AM) Approved.
VOTE: 8-0. Commissioner Ryan was not present during the vote.
B. MOTION TO APPROVE Mutual Termination of Sublease Agreement, Attornment and Nondisturbance Agreement between County, Embraer Aircraft Holding, Inc., and H. Aviation, Inc.; and authorize the Mayor and Clerk to execute same.
(Per the Tuesday Morning Memorandum, Motions B and C - additional statement to the Summary Explanation/Background: The County was not a party to the Guaranty of Sublease dated November 29, 1995, entered into between H. Wayne Huizenga and Embraer Aircraft Corporation as referenced in the Mutual Termination of Sublease Agreement but the County is acknowledging the termination of same.)
ACTION: (T-10:27 AM) Approved.
VOTE: 8-0. Commissioner Ryan was not present during the vote.
C. MOTION TO APPROVE Consent to Sublease between Embraer Aircraft Holding, Inc. and Azorra Airport Holdings LLC; and authorize the Mayor and Clerk to execute same.
(Per the Tuesday Morning Memorandum, Motions B and C - additional statement to the Summary Explanation/Background: The County was not a party to the Guaranty of Sublease dated November 29, 1995, entered into between H. Wayne Huizenga and Embraer Aircraft Corporation as referenced in the Mutual Termination of Sublease Agreement but the County is acknowledging the termination of same.)
ACTION: (T-10:27 AM) Approved.
VOTE: 8-0. Commissioner Ryan was not present during the vote.
D. MOTION TO APPROVE Consent to Leasehold Mortgage between Broward County, Embraer Aircraft Holding, Inc. and Azorra Airport Holdings LLC; and Florida Community Bank, N.A., pursuant to the requirements of the Agreement of Lease, as amended, between Broward County and Embraer Aircraft Holding, Inc.; and authorize the Mayor and Clerk to execute same.
ACTION: (T-10:27 AM) Approved.
VOTE: 8-0. Commissioner Ryan was not present during the vote.
E. MOTION TO APPROVE Memorandum of Sublease Agreement between Embraer Aircraft Holdings, Inc. and Azorra Airport Holdings LLC; to provide notice of the Agreement of Sublease, as amended; and authorize the Mayor and Clerk to execute same.
ACTION: (T-10:27 AM) Approved. (Scrivener’s Error – See County Administrator’s Report: Motion E currently reads: MOTION TO APPROVE … to provide notice of the Agreement of Sublease, as amended; and authorize the Mayor and Clerk to execute same. Should read: MOTION TO APPROVE … to provide notice of the Agreement of Sublease, as amended.)
VOTE: 8-0. Commissioner Ryan was not present during the vote.
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THE AVIATION DEPARTMENT RECOMMENDS APPROVAL OF THESE MOTIONS.
These actions approve an amendment to the Embraer Lease Agreement, consent to a new sublease between Embraer and Azorra Airport Holdings LLC, ("Azorra"), consent to any leasehold mortgage, and approve a memorandum of lease. Also, this action terminates the prior Consent to Sublease, Attornment and Nondisturbance Agreement between Embraer, H. Aviation, Inc. ("H Aviation"), and the County.
On April 17, 1990 (Item No. 2), the Board approved an Agreement of Lease between County and Embraer (“Agreement”), commencing on April 17, 1990 and terminating April 16, 2020, for 25.2894 acres located on the north side of the Airport, including buildings and structures located, to be located or to be constructed. Embraer was required to spend a minimum of $10 million for the construction of new facilities and rehabilitation of existing facilities.
On April 21, 1992 (Item No 9), the Board approved Amendment No. 1 to the Agreement, modifying Section 19 Assignment or Sublease; Subordination, Section 19 (a) to add specified preapproved sublessees and Section 19 (d) whereby each sublessee is subject to all of the terms and provisions of the Agreement.
On May 13, 1997 (Item No. 2), the Board consented to a Consent to Sublease, Attornment and Nondisturbance Agreement between County, Embraer and H. Aviation covering 10.773 acres of the Embraer leasehold for H. Aviation to construct hangars and an aircraft ramp.
On June 9, 1998 (Item No. 1), the Board approved Amendment No. 2 to the Agreement, modifying Section 19 to include language that no sublessee shall have any right to mortgage or pledge any security interest in the Embraer premises; modifying Section 3 allowing the capital expenditures made by H. Aviation to be applied toward the remaining capital expenditure requirement under the Agreement, with the parties acknowledging that Embraer had previously expended $6.8 million of the capital expenditure requirement; modifying Section 7, subsection 7 (5) preventing the sale of aviation fuels and lubricating oils on the H. Aviation subleased premises; and the inclusion of other standard language provisions to the Agreement.
On September 8, 1998 (Item No. 2A and 2B), the Board approved Amendment No. 3 to the Agreement, to provide for leasing of additional land for the development proposed by H. Aviation. The additional amount of land comprised of 2.82 acres (.82 acres under I-595 and .94 acres of airfield land was subleased to H. Aviation). The remaining 1.06 acres under I-595 was to be utilized by Embraer for an additional automobile parking lot.
On January 1, 2002, Embraer Aircraft Corporation changed their name to Embraer Aircraft Customer Services, Inc. On February 13, 2003, the Director of Aviation consented to an Assignment of Lease from Embraer Aircraft Customer Services, Inc. f/k/a Embraer Aircraft Corporation, Inc. to Embraer Aircraft Holdings, Inc.
On June 21, 2007 (Item No. 42), the Board approved Amendment No. 4 to the Agreement (i) modifying Section 4 by providing for a ten (10) year extension of the lease term from April 16, 2020 to April 16, 2030, with a five year mutual option period thereafter; ii) modifying Section 3 and Section 6 to include a minimum capital expenditure of $8,000,000 for the construction of a new maintenance and repair facility of approximately 40,000 square feet, including shops and office space; (iii) modify Section 5, the annual rental providing that on April 17, 2020 the improvements on the Embraer premises shall revert to the County and annual rental shall be set based on a fair market rental appraisal of the land and the improvements based on certain surveys. Amendment No. 4 also provided County Buy-Out language to permit the buy-out the Agreement and its encumbrance against the entire, or portion, of the leased premises subject to airport purposes.
Motion A
The proposed Amendment No. 5 amends the Agreement to provide for (i) annual rental to be based on the fair market value appraisal of the improvements existing on the Premises as of April 17, 2020 and adjustments thereafter pursuant to Section 5 of the Agreement; (ii) to permit the Lessee to dispense and sell aviation fuels and lubricating oils provided such products are from a supplier or suppliers specifically approved by the Aviation Department, provided that any approved sublessee shall not be permitted to sell aviation fuels and lubricating oils but may invite any authorized fixed base operation to enter the demised area of such sublessee to dispense aviation fuels and oils; (iii) updates the insurance requirements for the Agreement; (iv) the right for sublessee to mortgage its leasehold interest with prior written approval of Embraer and the County; and (v) updates to the standard language within the Lease Agreement.
Motions B and C
H. Aviation has been operating as an authorized subtenant from the Embraer premises since May 13, 1997. H. Aviation entered into a purchase and sales contract of its assets and leasehold interest at the Embraer premises at the Airport with Azorra subject to (i) Board approval of the proposed Amendment No. 5 to the Agreement; (ii) the County’s termination of the Consent to Sublease, Attornment and Nondisturbance Agreement between the County, Embraer and H. Aviation; (iii) the approval of a Consent to Sublease between Embraer and Azorra; (iv) the approval of a Consent to Sublessee Mortgage and (v) the approval of a Consent to Memorandum of Sublease Agreement.
Motion D
The Consent to Leasehold Mortgage authorizes the proposed sublessee, Azorra, to mortgage the subleased premises with a not to exceed amount of $5,500,000 to finance the purchase and sale contract of the assets and leasehold interest at the Embraer premises at the Airport from H. Aviation.
Motion E
The Memorandum of Sublease Agreement ("Memorandum") permits the mortgage to be recorded in the Public Records of Broward County, Florida, after Board approval, providing notice to any interested person as to the existence of the Agreement of Sublease. The Memorandum sets forth the term of the Sublease and the legal description of the leased premises.
These documents have been reviewed by the County Risk Management Division and approved as to form by the Office of the County Attorney.
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