To: From: Thru: MEMORANDUM Mayor Bieter and Boise City Council Members Amy Snyder, Airport Property & Contract Administrator Richard McConnell, Airport Director Subject: Gem Flight Lease Amendment Boise Air Service, LLC Revised and Restated Agreement of Lease Boise Air Service, LLC Assignment & Assumption of Lease Boise Air Service, LLC to BHI Properties, LLC Date: December 18, 2007 Pages: 3 Background: Boise Air Service, LLC, with Jackson Food Stores, Inc. as sole member, is the Lessee, pursuant to lease assignments, of four aviation land leases with Boise City. The leases are (per attached exhibit): 1. The former Boise Air Service Fixed Base Operator (FBO) leases a. The Hangar site 3653 Rickenbacker Street (contains fuel facilities) b. Gem Flight site 3541 & 3591 Rickenbacker Street c. Boise Air Service site 4125 & 4153 Wright Street 2. The former Boise Executive Hangar FBO lease 3815 Rickenbacker Street (contains fuel facilities) All four leases contain tenant owned improvements and are now operated as Jackson Jet Center, a FBO. Per Boise Airport Minimum Standards for Aeronautical Services, only an FBO is authorized to sell fuel. For the purpose of this Memo, the Lessee will be referred to as Jackson Jet Center. The lease for the Boise Air Service site is a result of a Master Removal Agreement between the City and the original tenant, Boise Air Service, Inc., whereby the City and Boise Air Service, Inc. negotiated an agreement to remove Boise Air Service from one of it s lease sites for the purpose of the Terminal Expansion Project. Lease Assignment: Jackson Jet Center no longer requires the Boise Air Service site for it s FBO operation. In preparation for the sale of the hangars at 4125 and 4153 W. Wright Street, Jackson Jet Center has requested approval of a lease assignment to BHI Properties, LLC (Firehawk Helicopters).
Page 2 Per the lease agreement for the Boise Air Service site, the Lessee shall have the right and privilege to assign or transfer the lease subject to the City s approval which approval will not be unreasonable withheld, provided the Assignee s proposed use of the Premises is in accordance with the permitted uses in the lease. The Boise Air Service site does not currently contain fuel facilities so BHI Properties will not sell fuel and will not be an FBO at this time. BHI Properties has submitted the required lease application and insurance certificates and meets the requirements to eventually provide the following services: helicopter sales, service, storage, charter, instruction, and maintenance. There are three documents we request be approved as part of the assignment process. 1. Amendment Number Three to the Gem Flight lease to add the Gem Flight Use Premises (70,000 sf of ramp adjacent to the Gem Flight site). These premises were incorrectly placed in the Boise Air Service site lease and should be in the Gem Flight lease. 2. Enter into a Revised and Restated Lease Agreement for the Boise Air Service site in order to remove portions of the lease related to the original construction which are no longer pertinent, add portions to the lease to better reflect the allowed use of the premises since it does not currently contain fuel facilities to meet the requirements of a Fixed Base Operator, and merge the lease and amendments into one document titled Revised and Restated Lease. The changes are depicted in the blacklined document. There are no substantial changes to the terms of the agreement. The request to assign the lease is reasonable. Airport Staff agree to the assignment with the clarifications to the lease. 3. Once the Revised and Restated Lease Agreement is approved and upon the consent of the City, at the closing of the sale of the improvements, the lease will be assigned to BHI Properties, LLC. via the Assignment and Assumption of Lease Agreement. The parties wish to close by the end of 2007. The Airport Commission has been notified of the pending lease assignment. The Mayor and City Council are the executing and approving authority.
Jackson Jet Center Leases Legend This map is a user generated static output from an Internet mapping site and is for general reference only. Data layers that appear on this map may or may not be accurate, current, or otherwise reliable. THIS MAP IS NOT TO BE USED FOR NAVIGATION. Use and distribution of this map subject to copyright and disclaimer notices at www.geocortex.net. Map center: 2498052, 694043 Scale: 1:5,389
RESOLUTION NO. BY THE COUNCIL: BISTERFELDT, CLEGG, EBERLE, JORDAN, TIBBS AND SHEALY A RESOLUTION APPROVING AN ASSIGNMENT AND ASSUMPTION OF A LEASE AGREEMENT FROM BETWEEN BOISE AIR SERVICE, LLC, AN IDAHO LIMITED LIABILITY COMPANY ("ASSIGNOR"), TO BHI PROPERTIES, LLC., AN IDAHO LIMITED LIABILITY COMPANY ("ASSIGNEE") FOR THE LEASE OF CERTAIN PREMISES UPON BOISE AIR TERMINAL (GOWEN FIELD); AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AND ATTEST THE CONSENT PORTION OF THE ASSIGNMENT AND ASSUMPTION AGREEMENT ON BEHALF OF BOISE CITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Assignor owns a leasehold interest ( Leasehold Interest ) as tenant in that certain real property located at 4125 and 4153 West Wright Street in the City of Boise, County of Ada, State of Idaho; and WHEREAS, Assignor leases the Land and the Leasehold Interest pursuant to the attached Revised and Restated Agreement of Lease dated, 20 as approved by Boise City Council Resolution #, between the City and Assignor, dated the day of, 20. WHEREAS, Pursuant to a Purchase and Sales Contract dated October 5, 2007 ("Agreement"), Assignor agreed to assign to Assignee its leasehold interest under the Lease and Assignee agreed to assume the same. WHEREAS, the Director of Aviation recommends approval of said Assignment and Assumption Agreement as it is in the best interests of the City to enter into said Amendment. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF BOISE CITY, IDAHO: Section 1. That the Assignment and Assumption Agreement by and between Boise Air Service, LLC as Assignor and BHI Properties, LLC., as Assignee, a copy of which is attached hereto marked Exhibit A and made a part hereof by attachment be, and the same hereby is, approved both as to form and content. I:/Legal/Legal Divisions/Legal Enterprise Division/Resos 2007/Boise Air Service Assignment and Assumption Reso R-505-07
Section 2. That the Mayor and City Clerk be, and they hereby are, authorized to respectively execute and attest the Consent portions of said Assignment and Assumption Agreement for and on behalf of Boise City. Section 3. That this Resolution shall be in full force and effect immediately upon its adoption and approval. ADOPTED by the Council of the City of Boise, Idaho, this day of, 20. APPROVED by the Mayor of the City of Boise, Idaho this day of, 20. ATTEST: APPROVED: CITY CLERK MAYOR I:/Legal/Legal Divisions/Legal Enterprise Division/Resos 2007/Boise Air Service Assignment and Assumption Reso R-505-07
ASSIGNMENT AND ASSUMPTION OF LEASE WITH CONSENT OF LESSOR This ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is made as of the day of, 200, by and between Boise Air Service, LLC, an Idaho Limited Liability Company ("Assignor"), and BHI Properties, LLC., an Idaho Limited Liability Company ("Assignee"). RECITALS: WHEREAS, Assignor owns a leasehold interest ( Leasehold Interest ) as tenant in that certain real property located at 4125 and 4153 West Wright Street in the City of Boise, County of Ada, State of Idaho, as more particularly described in Exhibit A and Exhibit B attached hereto and incorporated herein by this reference ( Lease ). The Land is improved with two buildings ("Buildings"). The Land and Buildings are herein collectively referred to as the "Property"; and WHEREAS, Assignor leases the Land and the Leasehold Interest pursuant to the attached Revised and Restated Agreement of Lease dated, as approved by Boise City Council Resolution #, between the City and Assignor, dated the day of, 20, a copy of which to be attached as Attachment A when fully executed by all parties. WHEREAS, Pursuant to a Purchase and Sales Contract dated October 5, 2007 ("Agreement"), Assignor agreed to assign to Assignee its leasehold interest under the Lease and Assignee agreed to assume the same. AGREEMENT: NOW THEREFORE, in and for mutual consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Assignment. Effective as of the date that Assignor and Assignee close their transaction under the Agreement ("Closing Date") which shall be on or before January 16, 2008, Assignor hereby assigns, transfers, quitclaims and sets over unto Assignee all of Assignor s rights, title, interest and estate in and to the Lease and any underlying right related to the Property under the Leasehold Interest. 2. Assumption. Effective on the Closing Date, Assignee hereby agrees to, and does, accept the assignment of the Lease from Assignor and expressly assumes and agrees to keep, perform and fulfill all terms, covenants, conditions, duties and obligations required to be kept, performed and fulfilled by Assignor under the Lease from and after the date of this Assignment including, without limitation, making of all payments due or payable under the Lease when due and payable and agrees to perform any and all duties and obligations to maintain and repair the Property regardless of whether such repairs and maintenance arose before or after the date of this Assignment.
3. Lease Premises As-Is. Except as provided in the Agreement, Assignor and Assignor s agents, employees and attorneys are not making, have not made and expressly disclaim any representations or warranties, express or implied, with respect to any aspect, feature or condition of the Property, including, without limitation, the existence of hazardous waste or the suitability of the Property for Assignee s intended use. Assignee is purchasing Assignor's Leasehold Interest in the Property in As Is condition with all faults including both latent and patent defects. 4. Indemnity by Assignee. Assignee, at its sole cost and expense, agrees to indemnify, defend and hold harmless Assignor and all affiliates of Assignor from and against any and all liability, claims, damages, expenses (including, without limitation, reasonable attorney's fees and reasonable attorney's fees on any appeal), judgments, proceedings and causes of action of any kind whatsoever arising out of or in any way connected with Assignee's failure to perform any or all of the obligations required to be performed by the Assignee as tenant under the Lease from and after the Closing Date, unless caused by the negligence or willful misconduct of Assignor, its agents, contractors or employees. For purpose of the preceding sentence, "affiliates" shall mean a branch, division, parent or subsidiary of Assignor, its successor or assigns, or any company in which Assignor, it successors or assigns own (directly or indirectly) five percent (5%) or more of the voting stock or interest or which is a company that owns (directly or indirectly) five percent (5%) or more of the voting stock or interest of Assignor, its successors and assigns. 5. Indemnity by Assignor. Assignor, at its sole cost and expense, agrees to indemnify, defend and hold harmless Assignee and all affiliates of Assignee from and against any and all liability, claims, damages, expenses (including, without limitation, reasonable attorney's fees and reasonable attorney's fees on any appeal), judgments, proceedings and causes of action of any kind whatsoever arising out of or in any way connected with Assignor's failure to perform any or all of the obligations required to be performed by the Assignor as tenant under the Lease prior to the Closing Date, unless caused by the negligence or willful misconduct of Assignee, its agents, contractors or employees. For purpose of the preceding sentence, "affiliates" shall mean a branch, division, parent or subsidiary of Assignee, its successor or assigns, or any company in which Assignee, it successors or assigns own (directly or indirectly) five percent (5%) or more of the voting stock or interest or which is a company that owns (directly or indirectly) five percent (5%) or more of the voting stock or interest of Assignee, its successors and assigns. 6. Miscellaneous. Each party executing this Assignment represents that he is authorized to do so on behalf of the corporation or other entity for which he is signing and that his signature binds said corporation or other entity. This Assignment is binding upon and inures to the benefit of the parties hereto, their successors and assigns. This Assignment may not be modified, altered or changed in any manner unless in writing, signed by both Assignor and Assignee, and consented to in writing by the City.
7. Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute a single instrument, and shall be effective upon the date first written above. Facsimile and e-mailed signatures shall be deemed originals for purposes of enforcement. 8. Subsequent Assignments. Assignee hereby acknowledges and agrees that no subsequent assignment shall be authorized without the express written consent of the City, which may be withheld in the sole discretion of the City. IN WITNESS WHEREOF, the parties have executed this Assignment as of the date first written above. ASSIGNOR: Boise Air Service, LLC An Idaho Limited Liability Company By: Name: Its: Date: Assignor's Notice Address: 3450 Commercial Ct. Meridian, Idaho 83642 ASSIGNEE: BHI Properties, LLC An Idaho Limited Liability Company By: Name: Its: Date: Assignee's Notice Address: 8850 Airport Blvd Leesburg, FL 34788
STATE OF IDAHO ) County of Ada ) ) SS. On this day of, 20, before me, a Notary Public in and for said State, personally appeared known to me to be the of Jacksons Food Stores, Inc. a Nevada corporation, the sole member of Boise Air Service, LLC, an Idaho limited liability company that executed the said instrument, and acknowledged to me that such corporation executed the same in said limited liability company name. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. Notary Public for Idaho Residing at My Commission Expires
STATE OF ) County of ) ) SS. On this day of, 20, before me, a Notary Public in and for said State, personally appeared known to me to be the of BHI Properties, LLC, that executed the said instrument, and acknowledged to me that such Corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. Notary Public for Residing at My Commission Expires
CONSENT OF LESSOR I, David H. Bieter, Mayor, as a duly authorized representative of Boise City, as Lessor and owner of the property described in that Ground Lease described above, hereby execute and consent to that assignment of Ground Lease on this day of, 20. Dated:, 20. By: David H. Bieter Attest: Boise City Clerk
ATTACHMENT A Revised and Restated Lease to be attached when fully executed.