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HomeMy WebLinkAboutCOM 0724.002 2006-2008 LEASE THIS LEASE, made this day of , 2007, by and between MARTIN ANDERSON, NORMAN PIIANAIA and KAPOHO PROPERTIES, INC., a Hawaii corporation, and YAMANAKA ENTERPRISES, INC., a Hawaii corporation, all having a principal place of business and post office address of 1266 Kamehameha Avenue, Hilo, Hawaii 96720, hereinafter collectively called "Landlord", and the COUNTY OF HAWAFI, a municipal corporation of the State of Hawaii, with its principal place of business and mailing address at 25 Aupuni Street, Hilo, Hawaii 96720 ("County"). WITNESSETH: 1. Demise. Landlord, in consideration of the rent hereinafter reserved, and of the terms, covenants and conditions herein contained and on the part of County to be observed and performed, does hereby demise and lease unto County, and County does hereby accept and rent from Landlord the following premises (hereinafter called "the premises"): ALL that certain building space containing an area of Unit A-1, that is 2,270 square feet, more or less, being within one of the buildings situated on those certain parcels of land (Tax Map Key 3`d Div. 2-2-01-30) in Hilo, County of Hawaii, State of Hawaii, which pazcels of land (containing an area of 1.185 acres), are more particulazly described in Exhibit A, attached hereon and made a part hereof, and the buildings and other improvements thereon being hereinafter called the Phase I of the Hilo Iron Works Building. TOGETHER with the right of access to the premises over and across the driveway and apron areas within Hilo Iron Works most directly serving the premises from a public street, subject to the restrictions hereinafter set forth. Comm: Ra 2 2 Ref. To: heseefeit 1 Ref. Date, 1 ~e5. ~1~9_n~t EXCEPTING AND RESERVING, HOWEVER, all rights-of--way which Landlord in its sole discretion may at any time or times require for lines, cables, pipelines and other conduits for utilities within or through the premises, together with the right to enter upon the premises for purposes of installation, maintenance, repair or removal thereof, provided that all work shall be done with the least practicable interference with County's use of the premises. 2. Term. This Lease shall be for a term commencing on December 1, 2007 and expiring Five (5) years thereafter on November 30, 2012, unless sooner terminated as herein set forth. 3. Rent. County shall pay to Landlord for and during the term of this lease rent as follows: Term Base Rent CAM RE Tax G.E.Tax Tatal (a) 12/1/07- $3,831.00 $375.24 $62.54 $177.84 $4,446.62 11/30/09 (b) 12/01/09-11/30/11 Base rent shall increase by the sum of the past two (2) years Consumer Price Index (Hawaii Sector) or replacement standard. CAM and Taxes shall be subject to yearly adjustments for any increase or decrease of those costs. (c) 12/oln 1-1ti30/tz Base rent shall increase by the sum of the past two (2) yeazs Consumer Price Index (Hawaii Sector) or replacement standard. CAM and Taxes shall be subject to yearly adjustments for any increase or decrease of those costs. Option Renewal Base rent shall be determined by market value assessment 60 days prior 2 to Renewal Date. County shall be responsible to pay any of their prorated increase in CAM or Taxes as assessments aze made by contractors or government agencies. The rent shall be paid in advance on the first day of each and every month during the term. 4. Ouiet Eniovment. Landlord agrees that upon payment of the rents herein provided and upon observance and performance by County of the Covenants herein contained and on the part of County to be observed and performed, County shall peaceably hold and enjoy the premises for the term without hindrance or interruption by Landlord or any other person or persons lawfully claiming by, through or under Landlord except as herein expressly provided. 5. Facilities Furnished. Provided County shall not be in default hereunder, Landlord agrees to furnish to County water. The electrical meter for Unit A-1-a and A-1-b is shazed and Lessee shall be responsible fora 60% share of the total cost allocated to that meter. Lessee is responsible for their own utility expenses including but not limited to telephone and air conditioning. Landlord shall not be liable for any stoppage or interruption thereof, nor shall Landlord be liable under any circumstances for loss of or injury to persons or property however occurring, through or in connection with or incidental to the furnishing thereof, nor shall any such failure relieve County from the duty to pay the full amount of the rents herein reserved or constitute or be construed as a constructive or other eviction of County. County shall pay the cost of 60% electric current. All work within the premises, including without limitation interior partitions, fixtures and ordinary repairs will be the responsibility of County. 6. Payment of Rent. County will pay all rents herein provided in lawful money of the United States at the times and in the manner herein provided, without any deduction and 3 without any notice or demand, at the principal place of business of Landlord. 7. Utilities and Other Charge. County will pay all utility charges, water and sewer rates, and other charges and outgoings of every description to which the premises, or any part thereof, or any improvements therein, or Landlord or County in respect thereof, may during said term be assessed or become liable, except to the extent that any such charges, rates or other outgoings are charged or assessed against Hilo Iron Works and are included as common expenses, as provided in paragraph 9. 8. TAXES AND ASSESSMENTS. County shall be liable for its pro rata share of real property taxes to be paid as part of operating costs (currently $62.54 per month) to Landlord as additional rent at least ten (10) days before the same becomes delinquent. If the real property taxes or assessments are increased at any time on the property shown on Exhibit A (TMK: 3-2-2- 01-30.) then, in that event, County will pay its pro rata share of any such increase, such share determined by dividing County's rented space by the total rentable space of 13,282 sq. fr. However, the County may obtain an exemption from real property tax under Hawaii Revised Statutes Section 246-36(2) and Section 19-84(2), Hawaii County Code 1983 (2005 edition), and upon granting of the exemption, the County's real property tax will be reduced by the County's pro rata share. Accordingly, after the effective date of the County's tax exemption, neither the pro rata share nor the real property taxes of others shall be actually assessed to or collected against the County in any form. Said exemption shall effectively reduce the County's pro rata share of the operating costs and utilities. Currently, the real property tax exemption is not in place and real property taxes are included in the operating expenses. County will also pay all conveyance taxes imposed by the State of Hawaii in respect to this lease. 9. Common Expenses. County will pay to Landlord as additional rent, in equal 4 monthly payments each in advance on the first day of each and every month during said teen, $375.24 as County's share of the common expenses as hereinafter defined. The common expenses of which County shall pay its share shall be the direct costs of maintaining and operating the common areas of Hilo Iron Works, including without limitation all common area real property taxes, utilities, maintenance costs, cleaning, garbage and lighting of common areas. 10. General Excise Tax and Interest. County will also pay to Landlord as additional rent, at the time and together with each payment of rent, an amount which, when added to said rent, shall equal the State of Hawaii General Excise Tax. If County shall become delinquent in the payment of any rent, additional rent, or other payments required hereunder to be made by County to Landlord, County will also pay to Landlord as additional rent interest thereon from the respective due dates thereof until fully paid at the rate of 12% per year or such higher rate as shall equal the maximum rate of interest then allowed by law. 11. Security Deposit. County will, on or before the execution of this lease, deposit with Landlord the sum of $4,446.62 in cash. Landlord shall not be obligated to keep said deposit as a separate fund, but may commingle said deposit with Landlord's own funds. It is hereby agreed and understood that this deposit is to be retained by Landlord without liability for interest as security for County's faithfully performance of the terms, covenants and conditions of this lease. If all or any part of said deposit shall be applied to meet County's obligations hereunder, County will, on demand by Landlord, immediately deposit with Landlord an amount of money equivalent to such expenditure, to be held as a deposit for the same purposes. If said deposit is not applied by Landlord as provided herein, it shall be returned to County when this lease is terminated, without interest; but in no event is said deposit to be returned until County has complied with all of the terms, covenants and conditions herein, and has vacated the 5 premises and delivered possession to Landlord, as herein more fully set forth. 12. Dama¢e to Premises. County will not damage or deface the walls, floors or ceilings of the premises nor make any holes therein, nor obstruct any common azeas, nor commit any act which might damage the structural part of the building in which the premises are situate. 13. Observance of Laws. County will at all times during said term keep the premises in a safe, clean, orderly and sanitazy condition and observe and perform all laws, ordinances, rules and regulations now or hereafter made by any governmental authority for the time being applicable to the premises or any improvement therein and will indemnify Landlord against all actions, suits, damages and claims by whomsoever brought or made by reason of the nonobservance or nonperformance of said laws, ordinances, rules and regulations or of this covenant. 14. Riehts of Landlord. Without limitation Landlord reserves the following specific rights: (a) to enter the premises for inspection, repair, alteration or addition to the premises or to the building in which the same are situated, or to exhibit the premises to others with the right to affix and display "for rent" signs; and (b) to make at the expense of Landlord, alterations, repairs, additions or improvements, structural or otherwise, in or to said building or any part thereof, including the premises, including taking into and upon and through the premises, or any other part of said building, alt material that may be required to make such repairs, alterations, additions or improvements, closing entrances, doors, corridors or other building facilities or temporarily abating the operation of such facilities. The foregoing rights to enter and use the premises may be exercised by Landlord only during normal working hours or with written consent, which will not be unreasonably withheld, during normal non-working hours and, in the case of exhibition of the premises to others and display of "for rent" signs, only 6 during the last ninety (90) days of the term hereof. In the case of emergency, Landlord shall have the right to enter upon the premises with prior oral consent of authorized County personnel including, but not limited to, the Elections Program Administrator, the County Clerk of the County of Hawaii, or the Deputy County Clerk of the County of Hawaii. ] 5. Repair and Maintenance. County will, at its own expense, from time to time and at all times during the term keep the interior of the premises and all facilities therein which are for the exclusive use of County, and all exterior doors and windows of the premises, in good and safe repair, order and condition, in the judgment of and to the satisfaction of Landlord, reasonable weaz and teaz and destruction by unavoidable casualty expected. County shall also be responsible for the cost of operating maintaining and servicing of all electric wiring within the Premises, the electric wiring from the meter box to the Premises, any air conditioning system servicing the Premises including without limitation, the operation, maintenance and service of the air handler, ducting and temperature control systems within the Premises. At Landlord's option, Landlord shall have the right to contract for such air conditioning service and County agrees to pay the cost of such maintenance to Landlord. 16. Siens, Awine, and Canopies. County will not place or suffer to be or maintained on an exterior door, wall or window of the Premises any sign, awning or canopy, or advertising matter or other thing of any kind, and will not place or maintain any decoration, lettering or advertising matter on the glass of any window or door of the Premises without first obtaining Landlord's written approval and consent. County will purchase and install one sign that will conform to Landlord's sign criteria attached to this Lease as Exhibit C. County further agrees to maintain such sign, awning, canopy, decoration, lettering, advertising matter or other thing as may be approved in good condition and repair at all times. 7 17. Insurance. County as self insured entity; Landlord and County acknowledge and agree that County is aself-insured political subdivision of the State of Hawaii, and as such, shall not be required to obtain or maintain any insurance policy whatsoever. 18. Electrical Apparatus. County shall not install or use or connect with any electric wires in or about the premises any motors, heater, stoves, furnaces or other apparatus requiring electric power in excess of the power capabilities supplied to the premises without first obtaining written consent from Landlord, and County shall ascertain from Landlord the amount of such capability prior to installing any apparatus which might exceed such capabilities. 19. Insaection. County will permit Landlord and its agents at all reasonable times during said teen, to enter the premises and examine the state of repair and condition thereof and will repair and make good at County's own expense all defects required by the provisions of this lease to be repaired by County, of which notice shall be given by Landlord or its agents within 30 days after giving of such notice or such other reasonable time as may be specified therein. If for any reason County shall fail to commence and complete such repairs within 30 days after the giving of such notice or such other reasonable time as may be specified therein, Landlord may, but shall not be obligated to, make or cause to be made such repairs and shall not be responsible to County or anyone claiming by, through or under County for any loss or damage to the occupancy, business or property of any of them by reason thereof, and County will pay to Landlord on demand and as additional rent all costs and expenses paid or incurred by Landlord in connection with such repairs which are fairly allocable to the premises hereby demised. 20. Assignment, Mortgage and Subletting. County will not, without the prior written consent of Landlord assign or mortgage this lease or any interest therein, nor sublet or part with possession of the whole or any part of the premises; provided, however, that Landlord 8 shall not require the payment of any monies or other consideration for the giving of such consent other than a reasonable fee as hereinafter provided in pazagraph 23. 21. Waste and Unlawful Use. County will not make or suffer any strip or waste or unlawful, improper or offensive use of the premises, nor store any combustible material within the premises which would not be permitted under the applicable provisions of the Building Code from time to time in effect for the occupancy classification and type of the building of which the premises comprise a part. County will not commit or allow to be committed within the premises any public or private nuisance or other act which disturbs the quiet enjoyment of any other tenant of Hilo Iron Works. 22. Use. County will use and allow the use of the premises only for such purposes as may be permitted by law. County's activities aze to be conducted entirely within the interior of the premises, and particularly, without limiting the generality of the foregoing, County will not store or permit anyone dealing with County to store any materials or products outside of the premises. County will not store any combustible material within the premises which does or would cause any increase in fire insurance premiums and, if County shall do so and until County shall remove such material, County shall be solely responsible for and shall pay to Landlord on demand the entire increase in the amount of such premiums. 23. Construction of Improvements. County will not construct or place in the premises any improvements nor make or suffer any additions to or structural alterations of the premises except in accordance with complete plans and specifications prepared by a licensed architect, if so required by Landlord, first submitted by County to and approved in writing by Landlord, and will at County's own expense complete any such improvements diligently after approval of the plans and specifications thereof. County will not, without the prior written 9 approval of Landlord, erect, affix or place any signs or fixtures, electrical or otherwise, nor post any bills or other advertising matter, in front of or on the exterior of the premises of Hilo Iron Works. County is authorized by Landlord to install and maintain locks provided by County on all doors and entryways to the leased premises described herein. Landlord agrees to construct or place on the premises improvements according to County specifications as provided in sketch "Exhibit B," using contractors licensed to do business in the State of Hawaii at the expense of Landlord for consideration of the monthly base rent provided by County, prior to County taking possession. County will not be responsible for any rent or charges until these improvements are accepted by County and possession taken by County. If improvements are completed after December 1, 2007, rent will be prorated to reflect actual occupancy by County. 24. Expenses of Landlord. County will pay to landlord, as additional rent, within 10 days after the date of mailing or personal delivery of statements, (a) all costs and expenses including reasonable attorneys' fees paid or incurred by Landlord but required to be paid by County under any covenant herein contained or paid or incurred by Landlord in enforcing any of County's covenants herein contained, in protecting Landlord against any breach thereof, in remedying any breach thereof, in recovering possession of the premises or any part thereof, in collecting or causing to be paid any delinquent rent, or in connection with any litigation (other than condemnation proceedings) commenced by or against County to which Landlord shall without fault be made a party, and (b) a reasonable fee for reviewing and processing any requested by County for Landlord's consent or approval, which fee shall be a sum equal to all costs and expenses incurred by Landlord, including without limitation, reasonable fees of attorneys and other consultants retained by Landlord. 25. Indemnity. County will indemnify and hold Landlord harmless from and 10 against all claims and demands for loss or damage, including without limitation, property damage, personal injury and wrongful death, arising out of or in connection with the use or occupancy of the premises by County, or by any other person claiming under it, or any accident, fire or nuisance on the premises or any failure by County to keep the premises in a safe condition, and County will reimburse Landlord for all its costs and expenses, including without limitation, all attorneys' fees incurred in connection with the defense of any such claims, and will hold all goods, materials, furniture, fixtures, equipment, machinery and other property whatsoever on or in the premises at the sole risk of County and hold Landlord harmless from and against all loss or damage thereto by any cause whatsoever, including without limitation, loss or damage resulting from any discharge or leaking of water into the premises or from any conduits or facilities therein. 26. Surrender. At the end of the term or other sooner determination of this lease, County will peaceably deliver up to Landlord possession of the premises, together with all improvements within, upon or belonging to the same by whomsoever made, in good repair, order and condition, except for reasonable wear and tear and as otherwise expressly provided herein; provided, however, that if County is not in default hereunder, it may then remove any trade fixtures installed by it in the premises but shall repair promptly to Landlord's satisfaction all damage caused by such removal. 27. Default. This demise is on this condition, that if County then holding this lease (1) shall fail to pay the said rental or any part thereof when the same becomes due, whether the same shall or shall not have been legally demanded, and such failure shall continue for a period of ten (10) days after written notice of default to County, or (2) shall fail to observe or perform faithfully any of the other covenants or agreements herein contained and on the part of 11 County to be observed or performed and any failure to observe or perform shall continue for a period of thirty (30) days after written notice of such default is given to County, or (3) shall abandon the premises or suffer this lease or any estate or interest hereunder to be taken under any writ of execution, then and in any such event, Landlord may at once (a) enter into and upon the premises or any part thereof, or (b) with or without such entry, terminate and cancel this lease and thereupon take possession of the premises and thereby become wholly vested with all right, title and interest of County therein. Whether or not Landlord shall so cancel, Landlord may expel and remove from the premises County and those claiming under County all without service of notice or resort to any legal process and without being deemed guilty of any trespass or becoming liable for any loss or damage which may be occasioned thereby and without prejudice to any other remedy or right of action which landlord may have for such breach or for rent or any other indebtedness owing by County hereunder, whether theretofore or thereafter accruing or to accrue, or for other or preceding breach of covenant of this lease on the part of County. If this lease shall be recorded in the Bureau of Conveyances, cancellation may, but need not necessarily, be made effective by filing in the Bureau of Conveyances, an affidavit that default has occurred, that notice has been given, where notice is required, and that this lease has been canceled. The filing of such affidavit shall dispense with the necessity of making any physical entry upon the premises. In the event of such resumption of possession under this lease whether by summary proceedings or by any other means, Landlord, or any receiver appointed by a court having jurisdiction, may dispossess and remove all persons and property from the premises, and any property so removed may be stored in any public warehouse or elsewhere at the cost of and for the account of County, and Landlord shall not be responsible for the care or safekeeping thereof, and County hereby waives and all loss, destruction and/or damages or injury which may 12 be occasioned in the exercise of reasonable care by any of the aforesaid acts. Landlord may recover from County all damages, attorney's fees and costs which may have been incurred by Landlord as a result of any default of County hereunder, including the expense of recovering possession. Anything in this pazagraph to the contrary notwithstanding, it is agreed that in the event of this lease being terminated by Landlord by reason of any breach thereof by County or because of any other event entitling Landlord to so terminate as herein above set forth, Landlord, at Landlord's option, shall thereupon be entitled to recover from County liquidated damages in an amount equal to the worth as of the date of termination of the excess, if any, of the amount of rent payable hereunder by County for or on account of the premises for the balance of the stated term over the reasonable rental value of the premises at the time of such termination for the same period and on the same terms, except as to rent, as herein set forth to the extent reasonably applicable. The cause of action for such damage shall accrue upon such termination. It is further understood that each and all of the remedies given to landlord hereunder are cumulative and that the exercise of one right or remedy by Landlord shall not impair Landlord's right to any other remedy. 28. Condemnation. In case at any time or times during said term the premises or any part thereof or any interest therein shall be required, taken or condemned by any authority having the power of eminent domain, then add in every such case the estate and interest of County in the premises or portion thereof or interest therein so required, taken or condemned shall at once cease and determine, and County shall not by reason thereof be entitled to any claim against Landlord or others for compensation or indemnity for leasehold interest or otherwise, and all compensation and damages payable for or on account of the premises and any improvements therein shall be payable to and be the sole property of Landlord; provided, however, that any 13 such compensation and damages payable for or on account of any improvements erected in the premises during the term by County shall be divided between Landlord and County as of the date when County loses the right to possession thereof according to the ratio that the ten expired and unexpired portions respectively of the term (including any extension option period whether or not theretofore exercised) after the date of original completion of such improvements bear to the sum of said portions. 29. Non-waiver. The acceptance of rent by Landlord or its agent shall not be deemed to be a waiver by it of any breach by County of any covenant herein contained or of Landlord's right to re-enter for breach of condition. Waiver by Landlord of any breach by County shall not operate to extinguish the term, covenant or condition the breach whereof has been waived, nor be deemed a waiver of Landlord's right to declare a forfeiture for any other or further breach thereof. 30. Notices. Any notice or demand to Landlord or County provided for or permitted by this lease may be given sufficiently for all purposes in writing mailed as registered or certified mail, addressed to such party and its post-office address herein specified or the last such address designated by such party in writing to the other. 31. Parkins. County will not obstruct or permit its employees, agents or invites to obstruct any common driveway. Parking shall be permitted only in areas designated for such purpose by Landlord. Landlord shall have the right to designate certain areas or stalls in certain areas for the various Tenant's of Landlord within Hilo Iron Works, including County herein, and any such designation may be changed from time to time. County agrees to restrict its parking to such areas or stalls hereinbefore designated for its use. 32. Hold-Over Tenancy. If County remains in possession of the premises after 14 the expiration of the term with permission of Landlord, all of the covenants, conditions and provisions hereof insofar as the same are applicable, except as to term and as hereinafter provided, shall bind County so long as County shall remain in such possession. Such hold-over or continued possession or occupancy shall create only a tenancy from month-to-month at the last monthly rental. Such tenancy from month-to-month may at any time be terminated by either Landlord or County giving to the other not less than 25 days' written notice of such termination. If County remains in possession without Landlord's written consent or after termination as aforesaid, the monthly rent shall be two (2) times the last monthly rental herein reserved, and County shall also be liable to Landlord for any damages resulting from failure to surrender possession. IN WITNESS WHEREOF, the parties hereto have executed these presents the day and year first above written. MARTIN ANDERSON "Lessor" STATE OF CALIFORNIA ) SS: COUNTY OF ) On this day of October, 2007, before me personally appeared MARTIN ANDERSON to me personally known, who being by me duly sworn or affirmed, did say the such person executed the foregoing Instrument as the free act and deed of such person, and if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity. Signature of Notary Notary Name: My Commission Expires: 15 KAPOHO PROPERTIES, INC. BY: Its President, VERN YAMANAKA "Lessor" STATE OF HAWAII ) SS: COUNTY OF HAWAII ) On this day of October 2007, before me personally appeared VERN YAMANAKA, Kapoho Properties, Inc, Its President, to me personally known, who being by me duly sworn or affirmed, did say the such person executed the foregoing Instrument as the free act and deed of such person, and if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity. Signature of Notary Notary Name: My Commission Expires: NORMAN PIIANAIA "Lessor" STATE OF HAWAII ) SS: COUNTY OF HAWAII ) On this day of October 2007, before me personally appeazed NORMAN PIIANAIA, to me personally known, who being by me duly sworn or affirmed, did say the such person executed the foregoing Instrument as the free act and deed of such person, and if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity. Signature of Notary Notary Name: My Commission Expires: 16 YAMANAKA ENTERPRISES, INC. BY: Its President, VERN YAMANAKA "Lessors Agent" STATE OF HAWAII ) SS: COUNTY OF HAWAII ) On this day of October 2007, before me personally appeared VERN YAMANAKA, Yamanaka Enterprises, Inc, Its President, to me personally known, who being by me duly sworn or affirmed, did say the such person executed the foregoing Instrument as the free act and deed of such person, and if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity. Signature of Notary Notary Name: My Commission Expires: 17 COUNTY OF HAWAII By: Its "County" RECOMMEND APPROVAL: PETE HOFFMAN Chair, Hawaii County Council APPROVED AS TO FORM AND LEGALITY: LINCOLN S. T. ASHIDA Corporation Counsel 18 SEP-IB-2007(TOE) 17:40 9aaana6a Entervrlses (FBX)0089691783 P. 034 /034 .ai_:.~:u JwE c.!_q ci'; asp ,r . i ~ ~ 1 ~ tir ~ ! ' ~ 4 0' d ji } , ~ + t a~ C ~ j j p i _ 4 ~ _ a - 1 . _ { / - ~ ~ ' ~ ¢ e a '..U / . l • ri p ~ ^ .~li~ I i. iA. t ~ ~l ~ ; ~ ~ v' + itr ^ / }e f L. . 2 ! a :7, ' r ~ ! ) . = L o W ~O ~ f¢ .r ~ a: i ~ ~ A ~ ~ 1 ~ ~ , / v ~ `i ' Cr® : i~ ~~~y ~.S.Si :a a y ~j, ° -s +r } iy .yra • ~ ~.i / ~ A ` ~7 - N_ i t i ' C l~ 4 9 bchibit "A" exhibit "a" Ida' . w . . ~'r y . 1... !y l 1 . ~ ~ l t ~ i tt ~V« 1r/ ~ ~ • / •I . ~I O 1 j ~ • _ ;3 1 ~ I - 1 _ I - . _4. . . e 1 • ~ ! i _ • ~ t t ~ y ~ + ' • C 1 ~ J • Il 1 ~J ^ ~ . ' I k C. ~ I ~ . • ? 1 • E7chibit "B" SEP-18-2007(TUE) 17: d0 9a~anaka Entervrises (FA%)8089691783 P.033/03d MS i~ V ~ ' ~ 6 ~ ±l . 7 v G: ~ d ~ r lid. ~ 1 E;( ~ K ~ . ~ ~ .z . ® ~ ~ c~ l P 0 ~ • ~ . ~ • . ~ ~ i 1L h~• LEASE THIS LEASE, made this day of , 2007, by and between MARTIN ANDERSON, NORMAN PIIANAIA and KAPOHO PROPERTIES, INC., a Hawaii corporation, and YAMANAKA ENTERPRISES, INC., a Hawaii corporation, all having a principal place of business and post office address of 1266 Kamehameha Avenue, Hilo, Hawaii 96720, hereinafter collectively called "Landlord", and the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii, with its principal place of business and mailing address at 25 Aupuni Street, Hilo, Hawaii 96720 ("County"). WITNESSETH: 1. Demise. Landlord, inconsideration of the rent hereinafter reserved, and of the terms, covenants and conditions herein contained and on the part of County to be observed and performed, does hereby demise and lease unto County, and County does hereby accept and rent from Landlord the following premises (hereinafter called "the premises"): ALL that certain building space containing an area of Unit A-2- that is 1,600 square feet, more or less, being within one of the buildings situated on those certain parcels of land (Tax Map Key 3rd Div. 2-2-01-30) in Hilo, County of Hawaii, State of Hawaii, which parcels of land (containing an area of 1.185 acre, are more particularly described in Exhibit A, attached hereon and made a part hereof, and the buildings and other improvements thereon being hereinafter called the Phase I of the Hilo Iron Works Building. TOGETHER with the right of access to the premises over and across the driveway and apron areas within Hilo Iron Works most directly serving the premises from a public street, 1 subject to the restrictions hereinafter set forth. EXCEPTING AND RESERVING, HOWEVER, all rights-of--way which Landlord in its sole discretion may at any time or times require for lines, cables, pipelines and other conduits for utilities within or through the premises, together with the right to enter upon the premises for purposes of installation, maintenance, repair or removal thereof, provided that all work shall be done with the least practicable interference with County's use of the premises. 2. Term. This Lease shall be for a term commencing on December 1, 2007 and expiring Five (5) years thereafter on November 30, 2012, unless sooner terminated as herein set forth. 3. Rent. County shall pay to Landlord for and during the term of this lease rent as follows: Term Base Rent CAM RE Tax G.E.Tax Total (a) 12/1/07- $2560.00 $208.00 $36.00 $116.82 $2,920.82 11/30/09 (b) 12/01/09-11/30/11 Base rent shall increase by the sum of the past two (2) years Consumer Price Index (Hawaii Sector) or replacement standazd. CAM and Taxes shall be subject to yearly adjustments for any increase or decrease of those costs. (c) 12/01/11-11/30/12 Base rent shall increase by the sum of the past two (2) years Consumer Price Index (Hawaii Sector) or replacement standard. CAM and Taxes shall be subject to yeazly adjustments for any increase or decrease of those costs. 2 Option Renewal Base rent shall be determined by market value assessment 60 days prior to Renewal Date. County shall be responsible to pay any of their prorated increase in CAM or Taxes as assessments are made by contractors or government agencies. The rent shall be paid in advance on the first day of each and every month during the term. 4. Ouiet Eniovment. Landlord agrees that upon payment of the rents herein provided and upon observance and performance by County of the Covenants herein contained and on the part of County to be observed and performed, County shall peaceably hold and enjoy the premises for the term without hindrance or interruption by Landlord or any other person or persons lawfully claiming by, through or under Landlord except as herein expressly provided. 5. Facilities Furnished. Provided County shall not be in default hereunder, Landlord agrees to furnish to County water. Lessee is responsible for their own utility expenses including but not limited to electrical, telephone and air conditioning. Landlord shall not be liable for any stoppage or interruption thereof, nor shall Landlord be liable under any circumstances For loss of or injury to persons or property however occurring, through or in connection with or incidental to the furnishing thereof, nor shall any such failure relieve County from the duty to pay the full amount of the rents herein reserved or constitute or be construed as a constructive or other eviction of County. All work within the premises, including without limitation interior partitions, fixtures and ordinary repairs will be the responsibility of County. 6. Payment of Rent. County will pay all rents herein provided in lawful money of the United States at the times and in the manner herein provided, without any deduction and 3 without any notice or demand, at the principal place of business of Landlord. 7. Utilities and Other Charee. County will pay all utility chazges, water and sewer rates, and other charges and outgoings of every description to which the premises, or any part thereof, or any improvements therein, or Landlord or County in respect thereof, may during said term be assessed or become liable, except to the extent that any such charges, rates or other outgoings aze charged or assessed against Hilo Iron Works and are included as common expenses, as provided in pazagraph 9. 8. Taxes and Assessments. County shall be liable for its pro rata share of real property taxes to be paid as par[ of operating costs (currently $36.00 per month) to Landlord as additional rent at least ten (10) days before the same becomes delinquent. If the real property taxes or assessments are increased at any time on the property shown on Exhibit A (TMK: 3-2-2- 01-30.) then, in that event, County will pay its pro rata share of any such increase, such share determined by dividing County's rented space by the total rentable space of 13,282 sq. ft. However, the County may obtain an exemption from real property tax under Hawaii Revised Statutes Section 246-36(2) and Section 19-84(2), Hawaii County Code 1983 (2005 edition), and upon granting of the exemption, the County's real property tax will be reduced by the County's pro rata share. Accordingly, after the effective date of the County's tax exemption, neither the pro rata share nor the real property taxes of others shall be actually assessed to or collected against the County in any form. Said exemption shall effectively reduce the County's pro rata share of the operating costs and utilities. Currently, the real property tax exemption is not in place and real property taxes are included in the operating expenses. County will also pay all conveyance taxes imposed by the State of Hawaii in respect to this lease. 4 9. Common Exaenses. County will pay to Landlord as additional rent, in equal monthly payments each in advance on the first day of each and every month during said term, $208.00 as County's share of the common expenses as hereinafter defined. The common expenses of which County shall pay its share shall be the direct costs of maintaining and operating the common areas of Hilo Iron Works, including without limitation all common azea real property taxes, utilities, maintenance costs, cleaning, garbage and lighting of common areas. 10. General Excise Tax and Interest. County will also pay to Landlord as additional rent, at the time and together with each payment of rent, an amount which, when added to said rent, shall equal the State of Hawaii General Excise Tax. If County shall become delinquent in the payment of any rent, additional rent, or other payments required hereunder to be made by County to Landlord, County will also pay to Landlord as additional rent interest thereon from the respective due dates thereof until fully paid at the rate of 12% per yeaz or such higher rate as shall equal the maximum rate of interest then allowed by law. 11. Security Deposit. County will, on or before the execution of this lease, deposit with Landlord the sum of $2,920.82 in cash. Landlord shall not be obligated to keep said deposit as a separate Fund, but may commingle said deposit with Landlord's own funds. It is hereby agreed and understood that this deposit is to be retained by Landlord without liability for interest as security for County's Faithfully performance of the terms, covenants and conditions of this lease. If all or any part of said deposit shall be applied to meet County's obligations hereunder, County will, on demand by Landlord, immediately deposit with Landlord an amount of money equivalent to such expenditure, to be held as a deposit for the same purposes. If said deposit is not applied by Landlord as provided herein, it shall be returned to County when this 5 lease is terminated, without interest; but in no event is said deposit to be returned until County has complied with all of the terms, covenants and conditions herein, and has vacated the premises and delivered possession to Landlord, as herein more fully set forth. 12. Damage to Premises. County will not damage or deface the walls, floors or ceilings of the premises nor make any holes therein, nor obstruct any common areas, nor commit any act which might damage the structural part of the building in which the premises are situate. 13. Observance of Laws. County will at all times during said term keep the premises in a safe, clean, orderly and sanitary condition and observe and perform all laws, ordinances, rules and regulations now or hereafter made by any governrnental authority for the time being applicable to the premises or any improvement therein and will indemnify Landlord against all actions, suits, damages and claims by whomsoever brought or made by reason of the nonobservance or nonperformance of said laws, ordinances, rules and regulations or of this covenant. 14. Rights of Landlord. Without limitation Landlord reserves the following specific rights: (a) to enter the premises for inspection, repair, alteration or addition to the premises or to the building in which the same are situated, or to exhibit the premises to others with the right to affix and display "for rent" signs; and (b) to make at the expense of Landlord, alterations, repairs, additions or improvements, structural or otherwise, in or to said building or any part thereof, including the premises, including taking into and upon and through the premises, or any other part of said building, all material that may be required to make such repairs, alterations, additions or improvements, closing entrances, doors, corridors or other building facilities or temporarily abating the operation of such facilities. The foregoing rights to 6 enter and use the premises may be exercised by Landlord only during normal working hours or with written consent, which will not be unreasonably withheld, during normal non-working hours and, in the case of exhibition of the premises to others and display of "for rent" signs, only during the last ninety (90) days of the term hereof. In the case of emergency, Landlord shall have the right to enter upon the premises with prior oral consent of authorized County personnel including, but not limited to, the Elections Program Administrator, the County Clerk of the County of Hawaii, or the Deputy County Clerk of the County of Hawaii. 15. Repair and Maintenance. County will, at its own expense, from time to time and at all times during the term keep the interior of the premises and all facilities therein which are for the exclusive use of County, and all exterior doors and windows of the premises, in good and safe repair, order and condition, in the judgment of and to the satisfaction of Landlord, reasonable wear and tear and destruction by unavoidable casualty expected. County shall also be responsible for the cost of operating maintaining and servicing of all electric wiring within the Premises, the electric wiring from the meter box to the Premises, any air conditioning system servicing the Premises including without limitation, the operation, maintenance and service of the air handler, ducting and temperature control systems within the Premises. At Landlord's option, Landlord shall have the right to contract for such air conditioning service and County agrees to pay the cost of such maintenance to Landlord. 16. Signs, Awing, and Canopies. County will not place or suffer to be or maintained on an exterior door, wall or window of the Premises any sign, awning or canopy, or advertising matter or other thing of any kind, and will not place or maintain any decoration, lettering or advertising matter on the glass of any window or door of the Premises without first 7 obtaining Landlord's written approval and consent. County will purchase and install one sign that will conform to Landlord's sign criteria attached to this Lease as Exhibit C. County further agrees to maintain such sign, awning, canopy, decoration, lettering, advertising matter or other thing as may be approved in good condition and repair at all times. 17. Insurance: County as Self Insured Entity. Landlord and County acknowledge and agree that County is aself-insured political subdivision of the State of Hawaii, and as such, shall not be required to obtain or maintain any insurance policy whatsoever. 18. Electrica? Apparatus. County shall not install or use or connect with any electric wires in or about the premises any motors, heater, stoves, fixrnaces or other apparatus requiring electric power in excess of the power capabilities supplied to the premises without first obtaining written consent from Landlord, and County shall ascertain from Landlord the amount of such capability prior to installing any apparatus which might exceed such capabilities. 19. Inspection. County will permit Landlord and its agents at all reasonable times during said term, to enter the premises and examine the state of repair and condition thereof and will repair and make good at County's own expense all defects required by the provisions of this lease to be repaired by County, of which notice shall be given by Landlord or its agents within 30 days after giving of such notice or such other reasonable time as may be specified therein. If for any reason County shall fail to commence and complete such repairs within 30 days afer the giving of such notice or such other reasonable time as may be specified therein, Landlord may, but shall not be obligated to, make or cause to be made such repairs and shall not be responsible to County or anyone claiming by, through or under County for any loss or damage to the occupancy, business or property of any of them by reason thereof, and County will pay to 8 Landlord on demand and as additional rent all costs and expenses paid or incurred by Landlord in connection with such repairs which are fairly allocable to the premises hereby demised. 20. Assignment, Mortgage and Subletting. County will not, without the prior written consent of Landlord assign or mortgage this lease or any interest therein, nor sublet or part with possession of the whole or any part of the premises; provided, however, that Landlord shall not require the payment of any monies or other consideration for the giving of such consent other than a reasonable fee as hereinafter provided in pazagraph 23. 21. Waste and Unlawful Use. County will not make or suffer any strip or waste or unlawful, improper or offensive use of the premises, nor store any combustible material within the premises which would not be permitted under the applicable provisions of the Building Code from time to time in effect for the occupancy classification and type of the building of which the premises comprise a part. County will not commit or allow to be committed within the premises any public or private nuisance or other act which disturbs the quiet enjoyment of any other tenant of Hilo Iron Works. 22. Use. County will use and allow the use of the premises only for such purposes as may be permitted by law. County's activities aze to be conducted entirely within the interior of the premises, and particularly, without limiting the generality of the foregoing, County will not store or permit anyone dealing with County to store any materials or products outside of the premises. County will not store any combustible material within the premises which does or would cause any increase in fire insurance premiums and, if County shall do so and until County shall remove such material, County shall be solely responsible for and shall pay to Landlord on demand the entire increase in the amount of such premiums. 9 23. Construction of Improvements. County will not construct or place in the premises any improvements nor make or suffer any additions to or structural alterations of the premises except in accordance with complete plans and specifications prepared by a licensed architect, if so required by Landlord, first submitted by County to and approved in writing by Landlord, and will at County's own expense complete any such improvements diligently after approval of the plans and specifications thereof. County will not, without the prior written approval of Landlord, erect, affix or place any signs or fixtures, electrical or otherwise, nor post any bills or other advertising matter, in front of or on the exterior of the premises of Hilo Iron Works. County is authorized by Landlord to install and maintain locks provided by County on all doors and entryways to the leased premises described herein. Landlord agrees to construct or place on the premises improvements according to County specifications as provided in sketch "Exhibit B," using contractors licensed to do business in the State of Hawaii at the expense of Landlord for consideration of the monthly base rent provided by County, prior to County taking possession. County will not be responsible for any rent or charges until these improvements are accepted by County and possession taken by County. If improvements are completed after December 1, 2007, rent will be prorated to reflect actual occupancy by County. 24. Expenses of Landlord. County will pay to landlord, as additional rent, within ] 0 days after the date of mailing or personal delivery of statements, (a) all costs and expenses including reasonable attorneys' fees paid or incurred by Landlord but required to be paid by County under any covenant herein contained or paid or incurred by Landlord in enforcing any of County's covenants herein contained, in protecting Landlord against any breach thereof, in remedying any breach thereof, in recovering possession of the premises or any part to thereof, in collecting or causing to be paid any delinquent rent, or in connection with any litigation (other than condemnation proceedings) commenced by or against County to which Landlord shall without fault be made a party, and (b) a reasonable fee for reviewing and processing any requested by County for Landlord's consent or approval, which fee shall be a sum equal to all costs and expenses incurred by Landlord, including without limitation, reasonable fees of attorneys and other consultants retained by Landlord. 25. Indemnity. County will indemnify and hold Landlord harmless from and against all claims and demands for loss or damage, including without limitation, property damage, personal injury and wrongful death, arising out of or in connection with the use or occupancy of the premises by County, or by any other person claiming under it, or any accident, fire or nuisance on the premises or any failure by County to keep the premises in a safe condition, and County will reimburse Landlord for all its costs and expenses, including without limitation, all attorneys' fees incurred in connection with the defense of any such claims, and will hold all goods, materials, furniture, fixtures, equipment, machinery and other property whatsoever on or in the premises at the sole risk of County and hold Landlord harmless from and against all loss or damage thereto by any cause whatsoever, including without limitation, loss or damage resulting from any discharge or leaking of water into the premises or from any conduits or facilities therein. 26. Surrender. At the end of the teen or other sooner determination of this lease, County will peaceably deliver up to Landlord possession of the premises, together with all improvements within, upon or belonging to the same by whomsoever made, in good repair, order and condition, except for reasonable wear and tear and as otherwise expressly provided herein; 11 provided, however, that if County is not in default hereunder, it may then remove any trade fixtures installed by it in the premises but shall repair promptly to Landlord's satisfaction all damage caused by such removal. 27. Default. This demise is on this condition, that if County then holding this lease (1) shall fail to pay the said rental or any part thereof when the same becomes due, whether the same shall or shall not have been legally demanded, and such failure shall continue for a period of ten (10) days after written notice of default to County, or (2) shall fail to observe or perform faithfully any of the other covenants or agreements herein contained and on the part of County to be observed or performed and any failure to observe or perform shall continue for a period of thirty (30) days after written notice of such default is given to County, or (3) shall abandon the premises or suffer this lease or any estate or interest hereunder to be taken under any writ of execution, then and in any such event, Landlord may at once (a) enter into and upon the premises or any part thereof, or (b) with or without such entry, terminate and cancel this lease and thereupon take possession of the premises and thereby become wholly vested with all right, title and interest of County therein. Whether or not Landlord shall so cancel, Landlord may expel and remove from the premises County and those claiming under County all without service of notice or resort to any legal process and without being deemed guilty of any trespass or becoming liable for any loss or damage which may be occasioned thereby and without prejudice to any other remedy or right of action which landlord may have for such breach or for rent or any other indebtedness owing by County hereunder, whether theretofore or thereafter accruing or to accrue, or for other or preceding breach of covenant of this lease on the part of County. If this lease shall be recorded in the Bureau of Conveyances, cancellation may, but need not 12 necessarily, be made effective by filing in the Bureau of Conveyances, an affidavit that default has occurred, that notice has been given, where notice is required, and that this lease has been canceled. The filing of such affidavit shall dispense with the necessity of making any physical entry upon the premises. In the event of such resumption of possession under this lease whether by summary proceedings or by any other means, Landlord, or any receiver appointed by a court having jurisdiction, may dispossess and remove all persons and property from the premises, and any property so removed may be stored in any public warehouse or elsewhere at the cost of and for the account of County, and Landlord shall not be responsible for the care or safekeeping thereof, and County hereby waives and all loss, destruction and/or damages or injury which may be occasioned in the exercise of reasonable care by any of the aforesaid acts. Landlord may recover from County all damages, attorney's fees and costs which may have been incurred by Landlord as a result of any default of County hereunder, including the expense of recovering possession. Anything in this paragraph to the contrary notwithstanding, it is agreed that in the event of this lease being terminated by Landlord by reason of any breach thereof by County or because of any other event entitling Landlord to so terminate as herein above set forth, Landlord, at Landlord's option, shall thereupon be entitled to recover from County liquidated damages in an amount equal to the worth as of the date of termination of the excess, if any, of the amount of rent payable hereunder by County for or on account of the premises for the balance of the stated term over the reasonable rental value of the premises at the time of such termination for the same period and on the same terms, except as to rent, as herein set forth to the extent reasonably applicable. The cause of action for such damage shall accrue upon such termination. It is further understood that each and all of the remedies given to landlord hereunder are cumulative and that 13 the exercise of one right or remedy by Landlord shall not impair Landlord's right to any other remedy. 28. Condemnation. In case at any time or times during said term the premises or any part thereof or any interest therein shall be required, taken or condemned by any authority having the power of eminent domain, then add in every such case the estate and interest of County in the premises or portion thereof or interest therein so required, taken or condemned shall at once cease and determine, and County shall not by reason thereof be entitled to any claim against Landlord or others for compensation or indemnity for leasehold interest or otherwise, and all compensation and damages payable for or on account of the premises and any improvements therein shall be payable to and be the sole property of Landlord; provided, however, that any such compensation and damages payable for or on account of any improvements erected in the premises during the term by County shall be divided between Landlord and County as of the date when County loses the right to possession thereof according to the ratio that the ten expired and unexpired portions respectively of the term (including any extension option period whether or not theretofore exercised) after the date of original completion of such improvements bear to the sum of said portions. 29. Non-waiver. The acceptance of rent by Landlord or its agent shall not be deemed to be a waiver by it of any breach by County of any covenant herein contained or of Landlord's right to re-enter for breach of condition. Waiver by Landlord of any breach by County shall not operate to extinguish the term, covenant or condition the breach whereof has been waived, nor be deemed a waiver of Landlord's right to declare a forfeiture for any other or further breach thereof. 14 30. Notices. Any notice or demand to Landlord or County provided for or permitted by this lease may be given sufficiently for all purposes in writing mailed as registered or certified mail, addressed to such party and its post-office address herein specified or the last such address designated by such party in writing to the other. 31. Parkine. County will not obstruct or pennit its employees, agents or invites to obstruct any common driveway. Pazking shall be permitted only in azeas designated for such purpose by Landlord. Landlord shall have the right to designate certain areas or stalls in certain areas for the various Tenants of Landlord within Hilo Iron Works, including County herein, and any such designation may be changed from time to time. County agrees to restrict its parking to such azeas or stalls hereinbefore designated for its use. 32. Hold-Over Tenancy. If County remains in possession of the premises after the expiration of the term with permission of Landlord, all of the covenants, conditions and provisions hereof insofar as the same aze applicable, except as to term and as hereinafter provided, shall bind County so long as County shall remain in such possession. Such hold-over or continued possession or occupancy shall create only a tenancy from month-to-month at the last monthly rental. Such tenancy from month-to-month may at any time be terminated by either Landlord or County giving to the other not less than 25 days' written notice of such termination. If County remains in possession without Landlord's written consent or after termination as aforesaid, the monthly rent shall be two (2) times the last monthly rental herein reserved, and County shall also be liable to Landlord for any damages resulting from failure to surrender possession. IS IN WITNESS WHEREOF, the parties hereto have executed these presents the day and year first above written. MARTIN ANDERSON "Lessor" STATE OF CALIFORNIA ) SS: COUNTY OF ) On this day of October, 2007, before me personally appeared MARTIN ANDERSON to me personally known, who being by me duly sworn or affirmed, did say the such person executed the foregoing Instrument as the free act and deed of such person, and if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity. Signature of Notary Notary Name: My Commission Expires: 16 KAPOHO PROPERTIES, INC. BY: Its President, VERN YAMANAKA "Lessor" STATE OF HAWAII ) SS: COUNTY OF HAWAII ) On this day of October 2007, before me personally appeared VERN YAMANAKA, Kapoho Properties, Inc, Its President, to me personally known, who being by me duly sworn or affirmed, did say the such person executed the foregoing Instrument as the free act and deed of such person, and if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity. Signature of Notary Notary Name: My Commission Expires: NORMAN PIIANAIA "Lessor" STATE OF HAWAII ) SS: COUNTY OF HAWAII ) On this day of October 2007, before me personally appeared NORMAN PIIANAIA, to me personally known, who being by me duly sworn or affirmed, did say the such person executed the foregoing Instrument as the free act and deed of such person, and if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity. Signature of Notary Notary Name: My Commission Expires: t7 YAMANAKA ENTERPRISES, INC. BY: Its President, VERN YAMANAKA "Lessors Agent" STATE OF HAWAII ) SS: COUNTY OF HAWAII ) On this day of October 2007, before me personally appeazed VERN YAMANAKA, Yamanaka Enterprises, Inc, Its President, to me personally known, who being by me duly sworn or affirmed, did say the such person executed the foregoing Instrument as the free act and deed of such person, and if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity. Signature of Notary Notary Name: My Commission Expires: 18 COUNTY OF HAWAII By: Its "County" RECOMMEND APPROVAL: PETE HOFFMAN Chair, Hawaii County Council APPROVED AS TO FORM AND LEGALITY: LINCOLN S. T. ASHIDA Corporation Counsel 19 SEP-IB-200T(TUE) 17:40 9e.aneke Enterorlses (FPX)008969IT03 P. 034 /03d r .tya : wt:ci7.9 ata q ~a'; S!q 4 i ~ ~ l M tir p ~ ~ l F 1[ b ro t ~ ~ ~ t . ~ ? a 1€ ! _ . 1~ . o,. i .i .e ~ - - ~ E . s ~ ' ca i . s . 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