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HomeMy WebLinkAboutRES 353 Draft 01 2008-2010 MTV or N ; ' COUNTY OF HAWAII •6 =";'% •' STATE OF HAWAII RESOLUTION NO. 353 10 RESOLUTION AUTHORIZING THE PAYMENT OF FUNDS OF A LATER FISCAL YEAR AND MORE THAN ONE FISCAL YEAR FOR A MULTI - • YEAR LEASE OF OFFICE SPACE FOR A SATELLITE VEHICLE REGISTRATION AND LICENSING SERVICE CENTER AND OFFICE SPACE FOR THE OFFICE OF THE PROSECUTING ATTORNEY IN WAIMEA, HAWAII. WHEREAS, in July 2008, the Motor Vehicle Registration section of the Department of Finance consolidated with the Driver Licensing, Commercial Driver Licensing (CDL), and Periodic Motor Vehicle Inspection (PMVI) sections of the Police Department as a new Vehicle Registration and Licensing (VRL) Division under the Department of Finance; and WHEREAS, to better serve the public, the VRL division proposes to establish a satellite VRL service center in Waimea, Hawai'i, to provide basic vehicle registration and driver's license services; and WHEREAS, the office space for a new Vehicle Registration and Licensing service center in Waimea was found within the Holomua Center, located at 64 -1067 Mamalahoa Highway, Waimea, Hawai'i, where both the Waimea Prosecutor's and Council Offices currently lease existing office space; and WHEREAS, the current office space used by the Office of the Prosecuting Attorney (Prosecutors) has proved to be inadequate for its current needs in terms of space and privacy for servicing victims and witnesses of crimes in the North Kohala, South Kohala and Hamakua districts, as well as victims and witnesses of crimes occurring in other areas but who may live in those districts; and WHEREAS, the Prosecutors currently station a full time deputy prosecuting attorney and full time clerical staff at the Waimea office, as well as a victim counselor who often spends a full day at that office, making this space unsuitable for conducting this type of activity in conjunction with victim and witness interviews; and WHEREAS, the current office space does not have sufficient space to conduct private victim and witness interviews, nor does it have proper soundproofing to secure the privacy of these interviews; and WHEREAS, the VRL center shall occupy 1,200 square feet and the Prosecutors Waimea office shall occupy 1,200 square feet. WHEREAS, the existing office spaces' leases will be reduced to coincide with the lease terms of the additional lease space for the VRL center; and WHEREAS, County wishes to enter into a multi -year lease with Starr Equities, Inc., a Hawai'i corporation, for a term of four (4) years and eleven (11) months with an option to extend the lease for an additional four (4) years and eleven (11) month term; and WHEREAS, copies of the proposed County of Hawaii Office Space Lease Agreements for the VRL center and the Prosecutors Waimea office are attached as Exhibit "1" and Exhibit "2" respectively; and WHEREAS, Section 10 -11 of the County Charter requires that any contract, lease, or other obligation requiring payment of funds from the appropriations of a later fiscal year and more than one fiscal year be approved by resolution. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII: 1. That the Mayor is hereby authorized to enter into a multi -year lease agreement for office space located at the Holomua Center in Waimea, South Kohala. 2. That sufficient funds be budgeted in future fiscal years to cover the anticipated obligations of the County under the lease agreement. BE IT FURTHER RESOLVED that the County Clerk of the County of Hawaii shall forward a copy of this resolution to the Department of Finance. Dated at Kona , Hawai`i, this 8th day of July , 2010. INTRODUCED BY: ( I COUNCIL MEMBER, COUNTY OF HAWAII COUNTY COUNCIL ROLL CALL VOTE County of Hawai`i AYES NOES ABS EX Hilo, Hawai`i ENRIQUES X FORD X I hereby certify that the foregoing RESOLUTION was by GREENWELL X the vote indicated to the right hereof adopted by the COUNCIL of the HOFFMANN X County of Hawai`i on July 8, 2010 IKEDA X NAEOLE x ATTEST: ONISHI x YAGONG X YOSHIMOTO X 9 0 P - C Reference: C- 842 /FC -168 COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER RESOLUTION NO. 353 LAND COURT REGULAR SYSTEM (AREA ABOVE RESERVED FOR RECORDING INFORMATION) After Recordation, Return by ® Mail or ❑ Pick -up Phone #: _ FILL IN NAME AND ADDRESS BELOW: Office of the Corporation Counsel (CTM) 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 DOCUMENT CONTAINS PAGES TITLE OF DOCUMENT: COUNTY OF HAWAII OFFICE SPACE LEASE AGREEMENT PARTIES TO DOCUMENT LESSORILANDLORD: STARR EQUITIES, INC. 1962 -B Wells Street Wailuku, Hawaii 96793 LESSEE/TENANT: COUNTY OF HAWAII 25 Aupuni Street Hilo, Hawaii 96720 Tax Map Key (3)6 -4- 006:032 Suite B2/B3 EXHIBIT "1" 64006032 - - COUNTY OF HAWAII OFFICE SPACE LEASE AGREEMENT This LEASE AGREEMENT, made this day of , 2010 by and between STARR EQUITIES, INC., a Hawai`i corporation, whose mailing address is 1962 -B Wells Street, Wailuku, Hawai`i 96793 (hereinafter referred to as "Landlord" or "Lessor "), and the COUNTY OF HAWAII, a municipal corporation of the State of Hawai`i, whose principal place of business and mailing address is 25 Aupuni Street, Hilo, I- lawai`i 96720 (hereinafter referred to as "Tenant" or "Lessee "). 1. Grant. In consideration of the rents, covenants, and agreements hereinafter reserved and contained and on the part of the Tenant to be observed and performed, the Landlord demises and leases to the Tenant, and Tenant rents from the Landlord, the following for use as an office and warehouse space for the Tenant: Portion of those certain premises consisting of approximately 1,200 square feet known as Suite B2/B3 of Holomua Center situate at 64 -1067 Mamalahoa Highway, Waimea, Hawai`i 96743 and identified as Tax Map Key: (3)6- 4- 006:032 (hereinafter "the Premises "). Included shall be four (4) unreserved parking stalls further described in Exhibit A attached hereto. Together with the full right of access to said premises over, across, and through any alleys, common entrances, lobbies, stairways, halls, and corridors in or around said building. 2. Use. The premises shall be utilized as office space for the Tenant. 3. Term. The term of this lease shall commence on or about August 1, 2010 or the date of delivery of the space to the County, whichever is later, and continue for a term of four (4) years and eleven (11) months, with the option to renew for an additional four (4) years and eleven (11) month term subject to mutual agreement on rent and notice of one hundred eighty (180) days before the expiration of the initial term. 4. Delivery of Possession. Tenant shall be given occupancy of the premises by August 1, 2010, or the date of delivery of the space to the Tenant, whichever comes later. If there is a delay in Landlord giving occupancy, which delay is caused by events beyond the control of the Landlord, the obligation to pay rent shall be deferred until such occupancy shall be granted in writing to Tenant by Landlord, and the expiration date of the lease shall be adjusted back the same number of days as the period delay in the commencement date of the lease. If the Landlord, for any reason, cannot deliver possession of the demised premises to the Tenant at the commencement of the lease term, as specified above, this lease agreement shall not be void or voidable, unless the Tenant elects to terminate the lease by giving notice in writing. 64006032 - 2 - 5. Quiet Enjoyment. Landlord agrees that upon payment by the Tenant of the rent herein provided and upon the faithful observance and performance of all the covenants, terms, and conditions in this lease on the part of the Tenant to be observed and performed, the Tenant shall peaceably and quietly hold and enjoy the leased premises for the term of this lease without hindrance or interruption by the Landlord or any other person or persons lawfully or equitably claiming by, through, or under the Landlord. 6. Rent. Tenant shall pay to the Landlord, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, without any setoff or deduction whatsoever, a monthly rent as follows: Year 1 $2,298.79/per month Year 2 $2,358.79/per month Year 3 $2,418,79/per month Year 4 $2,478.79/per month Final 11 months $2,537.79/per month Rent shall be due on the first of the month for the duration of the lease term. In addition to the rent, Tenant shall pay to the Landlord its share of the Common Area Maintenance (CAM) charges of $0.56 per square foot, but not more than 8.202 % of the Shared Expenses. The County shall be responsible for any increases in CAM charges. Any real property tax exemption provided for the Tenant's pro -rata space in the building shall be credited towards the Tenant's share of CAM charges. 7. Excise Tax. In addition to the rent, the Tenant shall pay the Hawaii general excise tax (currently 4.166 %), or any successor tax, which may be payable thereon. 8. Real Property Tax. The Tenant shall be responsible for its pro -rata share of the real property taxes. However, Landlord agrees to timely submit a claim for partial exemption from real property tax, as provided by Section 19 -84, Hawaii County Code (2005 edition, as amended). Tenant will cooperate fully with the Landlord in obtaining such exemption. 9. Deposit. No deposit shall be required. 10. Common Area Maintenance, Utility and Building Services Charges. The common area maintenance charge shall be paid monthly at the rate noted in paragraph 6 of this lease agreement. Landlord shall operate and maintain the property, common area, and facilities therein in a manner deemed as reasonable, appropriate and in the best interest of the tenants of the property. Landlord shall be responsible for all building services included in the CAM charges. The term "common area and facilities" as used in this lease agreement shall be deemed to include those portions of the property as are designated and/or designed for the non - exclusive use of the tenant in common with other authorized users, and shall include, but not be limited to: parking areas; roadways; service areas; driveways; areas of ingress and egress; landscaped and planted areas; sidewalks and other pedestrian ways; corridors; courts; public washrooms; drinking fountains; community rooms; toilets; stairs; ramps; buildings or 64006032 - 3 - structures used in connection with the maintenance of said common area; and all other similar facilities, from time to time provided for the joint use and convenience of such authorized users. Landlord services shall include air conditioning (in- window air conditioning is Tenant's responsibility), electricity to common area, water and other supplies for common area restroom, trash removal for common area. Tenant shall be responsible for its own janitorial service, sorting of recyclab]es within the premises, and trash removal to a central collection point. 11. Assignment and Sublease. Tenant shall not, without the prior written consent of Landlord, which consent will not be unreasonably withheld, assign or mortgage this lease or any interest herein, or sublet or grant any concession or license to use the premises or any part thereof, or allow any other person to use the whole or any part of the premises. 12. Use and Maintenance of Premises. Tenant shall use the leased premises solely for the purpose of office and warehouse space and shall not use the same for any other purpose without the prior written consent of Landlord. Tenant shall not make or suffer any waste, strip or unlawful, improper, or offensive use of said premises. Tenant shall not do or suffer any act or carry on any practice which may damage the premises or become a nuisance. Landlord shall be responsible for general maintenance, painting and repairs of the structural and exterior of the building, together with the paved open space and fence. Tenant shall keep the premises in good order, condition and repair, and in a strictly clean and sanitary condition. 13. Inspection. Landlord and Landlord's agents will be allowed to enter said premises to examine the state of repair and condition during regular business hours after providing Tenant with reasonable written notice. If Landlord deems that repairs by the Tenant are necessary, Landlord may request in writing that the Tenant make the same forthwith. 14. Signs. Tenant shall not, without the prior written consent of Landlord, erect, install, or affix any sign about the exterior or on the windows of the premises. Tenant shall allow Landlord to affix or keep on the premises a "For Lease" or "For Sale" notice. 15. Alterations. Any Tenant improvements must have prior written approval by Landlord and be in compliance with all Federal, State and County laws, rules and regulations. 16. Landlord's and Agent's Immunity and Insurance. The Tenant is self - insured and no additional insurance policy is required. Tenant shall defend and hold harmless the Landlord, its successors and assigns, from and against any and all actions, claims, suits, damages or costs arising out of or causally resulting from the acts or omissions of Tenant, its officers, agents or employees, that may arise or causally result from the operation, Tenant maintenance, or use of the leased premises occurring during the term of the lease. 17. Surrender. The Tenant shall, at the end of the term of this lease or earlier termination thereof, peaceably and quietly vacate and deliver up to Landlord the possession of the premises, 64006032 - 4 - together with all additions and alterations made by Tenant, unless Landlord requires removal of the same. Tenant may remove all moveable trade fixtures (if installed by Tenant) on the condition that Tenant shall repair any damage to the premises resulting from the removal of said fixtures. Tenant shall not be required to remove any exterior improvements other than its signs. Any property of the Tenant remaining on the premises after the termination of the lease may be disposed of by the Landlord upon thirty (30) days' written notice and failure of Tenant to retrieve the property. The parties shall act in good faith. 18. Condemnation. a. Automatic Termination of Lease. Except as may otherwise be required by any mortgage on the property, if the whole of the premises shall be taken by any public authority under the power of eminent domain, then the term of this lease shall cease as of the day possession is taken by such public authority, and all rent shall be paid up to that date. If only a part of the premises shall be taken under eminent domain, this lease shall terminate as to the portion taken, and unless this lease shall be terminated as hereinafter provided, it shall continue in full force and effect as to the remainder of the premises, and the base rent shall be reduced in the proportion the floor area taken bears to the total floor area leased, and the Tenant, at its own cost and expense, shall make all necessary repairs and alterations to the premises required by such taking. b. Option to Cancel. If the remainder of the premises cannot be made tenantable for the purposes for which the Tenant has been using the premises, the Tenant shall have the option, to be exercised within thirty (30) days after the filing of such eminent domain action, of canceling this lease effective as of the date the condemning authority shall take possession; provided, however, that if more than fifty percent (50 %) of the floor area of the premises shall be taken under power of eminent domain, either party, by written notice to the other party, delivered on or before the date of surrendering possession to the public authority, may terminate this lease, effective as of such surrender of possession. All compensation and damages of any type awarded for any taking, whole or partial, shall belong to and is the property of the Landlord, except as hereinafter provided. 19. Destruction of Premises. If the premises are partially or totally damaged or destroyed by fire or other casualty so as to become partially or totally untenantable, such damage or destruction, insofar as the same pertains to the building itself, exclusive of any damage to Tenant's fixtures, furniture or other property, shall be repaired or rebuilt at the discretion of the Landlord. Landlord shall advise Tenant within thirty (30) days after the casualty whether it intends to rebuild or repair. If the Landlord elects not to repair or rebuild, this lease shall terminate without further notice and the obligations of either party shall cease. No rent shall be payable from the date such casualty occurs until the repair or rebuilding shall be completed, unless the premises shall be tenantable and there is no substantial interference with Tenant's business. 64006032 _ - 5 - 20. Subordination of Lease to Mortgage. Tenant agrees that this lease and all rights of Tenant hereunder shall be subject and subordinate to all present and future mortgages made or to be made by Landlord as security for any indebtedness of Landlord; provided, however, that the mortgagee shall agree to recognize this lease in the event of foreclosure and will cause the sale of said premises to be made subject to Tenant's lease, provided that the Tenant is not in default under any of the terms, conditions, or covenants of this lease at the time of such foreclosure. • 21. Leasehold Improvements and Drawings. Landlord shall build out for offices as required by County and cost of this build out is amortized over the term of the lease. 22. Additional Construction or Remodeling. Landlord reserves the right to remodel, repair, paint, or renovate the said building or do additional construction at any time to the extent that it does not compromise the integrity or the security of the demised premises. Said work shall be undertaken by Landlord with minimum interference or inconvenience to Tenant's use of the premises, and any interference or inconvenience resulting to Tenant or its use of the premises shall not constitute a breach or violation of Landlord's covenant of quiet enjoyment or any other covenant. If Landlord's additional work requires entry into Tenant's premises, Landlord and Tenant shall enter into a written agreement on the terms and conditions of such entry and work. 23. Non - Waiver of Breach. The acceptance of rent by Landlord shall not be deemed a waiver by Landlord of any breach by Tenant or of the right of Landlord to terminate this lease for any such breach, and that the failure of Landlord to insist upon strict performance of any covenant or condition of this lease, or to exercise any option herein conferred, shall not be construed as a waiver or relinquishment for the future of any such covenant or condition but the same shall remain in full force and effect. 24. Notice. a. Notices to the Tenant. All notices to be given to the Tenant should be given in writing and by depositing the same in the United States mail, registered or certified, postage prepaid, and addressed to the County of Hawai`i at 25 Aupuni Street, Suite 1101, Hilo, Hawai`i 96720. b. Notice to Landlord. Notice to Landlord shall be given in writing personally to an agent or employee of Landlord or by depositing the same in the United States mail, registered or certified, postage prepaid, and addressed to Landlord at 1962 -B Wells Street, Wailuku, Hawai`i 96793 or at such other addresses as Landlord may give to the Tenant in writing from time to time. c. Time of Service. Any written notice sent by registered or certified mail shall be deemed to have been served as of the date it is mailed in accordance with the foregoing provisions. 64006032 - 6 - 25. Force Majeure. In the event that either Landlord or the Tenant shall be delayed, hindered, or prevented from the performance of any act required under this lease agreement by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war, or other reason of like nature, not the fault of the party delayed in performing the work or doing the acts required under the terms of this lease agreement, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 26. Hazardous Materials. The Landlord affirms, upon due diligence, that the premises are free of hazardous materials. Landlord warrants that it has not received written notice from any governmental authority having jurisdiction over the premises that the premises is in violation of the Comprehensive Environmental Response, Compensation and Liability Act of 1989, as amended ( "CERCLA "), the Resources Conservation and Recovery Act of 1976, as amended ( "RCRA "), the Toxic Substance Control Act, as amended, the Hazardous Materials Transportation Act, as amended, or any statute governing underground storage tanks or asbestos. Landlord represents and warrants that to Landlord's actual knowledge (without undertaking any investigation or inquiry) the premises do not contain any hazardous or toxic materials prohibited by law. Landlord shall indemnify and hold harmless the Tenant from and against any and all claims, demands or losses in connection with the release of hazardous or toxic materials caused by Landlord. Tenant shall indemnify and hold harmless the Landlord from and against all claims, demands or losses in connection with the release of hazardous or toxic materials caused by Tenant, its agents or employees. 27. Construction of Language. Nothing herein contained is intended or shall be construed as creating a relationship of principal and agent, or of a partnership or joint venture, between Landlord and Tenant. Wherever used herein, the singular number shall include the plural and the neuter gender shall include the masculine and feminine genders, unless the context clearly requires otherwise. The obligations of the parties executing this lease agreement shall be joint and several. The term "premises" shall mean the premises demised under the lease; the term "Landlord" shall include the Landlord, its successors, and assigns; and the term "Tenant" shall include Tenant and Tenant's successors and permitted assigns. 28. Facsimiles. The parties hereto agree that telephone facsimile (fax) copies of any documents required to be executed by the provisions herein will be accepted as if signed in person, as originals. Upon request, the party submitting the facsimile shall provide the original document within a reasonable time. However, failure to provide such an original shall have no effect upon the validity of the execution by facsimile. 29. Dispute Resolution/Forum Selection. Any dispute action or proceeding involving this lease, commenced by any party, if not resolved by mutual consent, shall be commenced in the District Courts of the Third Circuit, County and State of Hawaii. 30. Governing Law. It is agreed that this lease agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Hawaii. 64006032 - 7 - 31. Entire Agreement. This lease agreement contains the entire agreement between the parties. Any agreement hereafter made shall be ineffective to change, modify, discharge or effect an abandonment of the lease, in whole or in part, unless such agreement is in writing and signed by the party against whom enforcement of the change, modification, discharge or abandonment is sought. It is expressly understood and agreed that each and all of the provisions of this lease agreement are conditions precedent to be faithfully and fully performed and observed by the Tenant and to entitle the Tenant to continue in possession of ' the premises hereunder; that said conditions are also covenants on the part of the Tenant; and that time of performance of each is of the essence of this lease. IN WITNESS WHEREOF, the parties hereto have entered into this agreement as of the day and year first above written. STARR EQUITIES, INC. By: LESSOR/LANDLORD COUNTY OF HAWAII By: LESSEE/TENANT RECOMMEND APPROVAL: NANCY CRAWFORD Finance Director County of Hawai`i APPROVED AS TO FORM AND LEGALITY: CRAIG T. MASUDA Deputy Corporation Counsel County of Hawai`i 64006032 - 8 - STATE OF HAWAI`I SS. COUNTY OF MAUI On , before me personally appeared , to me personally known, who, being by me duly swom (or affirmed), did say that the person is the of STARR EQUITIES, INC., a Hawaii corporation, that said instrument was signed in behalf of the corporation by authority of its board of directors, and acknowledged the instrument to be the free act and deed of the corporation. Notary Public, State of Hawaii Printed Name: My commission expires: NOTARY CERTIFICATION STATEMENT Document Identification or Description: Doc. Date: - or O Undated at time of notarization. No. of Pages: Jurisdiction: Circuit (in which notarial act is performed) Signature of Notary Date of Notarization and Certification Statement Printed Name of Notary 64006032 - 9 - STATE OF HAWAII ) ) SS: COUNTY OF HAWAII ) On , before me personally appeared WILLIAM P. KENOI, to me personally known, who, being by me duly swom, did say that WILLIAM P. KENOI is the Mayor of the County of Hawai`i, a municipal corporation of the State of Hawai`i; that the seal affixed to the foregoing instrument is the corporate seal of said County of Hawaii; that the foregoing instrument was signed and sealed in behalf of the County of Hawaii by authority given to said Mayor of the County of Hawai`i by Section 5- 1.3(g) of the County Charter, County of Hawaii (2000), as amended; and said WILLIAM P. KENOI acknowledged said instrument to be the free act and deed of said County of Hawai`i. Signature • Name (Print or Type) Notary Public, State of I Iawai`i My Commission Expires: NOTARY CERTIFICATION STATEMENT Document Identification or Description: Doc. Date: or ❑ Undated at time of notarization. No. of Pages: Jurisdiction: Circuit On which notarial act is performed) Signature of Notary Date of Notarization and Certification Statement Printed Name of Notary 64006032 -10 - M EXfIBIT Suite B -1 The Premises: Suite B2/83, 1,200 square feet = SUite 02/33 Parking Suite B -4 w.: • d.: • rae HOLOMUA CENTER TMK: .6 -4 -6 32 EXHIBIT A 64006032 - 11 - LAND COURT REGULAR SYSTEM (AREA ABOVE RESERVED FOR RECORDING INFORMATION) After Recordation, Return by ® Mail or ❑ Pick -up Phone #: FILL IN NAME AND ADDRESS BELOW: Office of the Corporation Counsel (CTM) 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 DOCUMENT CONTAINS PAGES TITLE OF DOCUMENT: COUNTY OF HAWAII OFFICE SPACE LEASE AGREEMENT PARTIES TO DOCUMENT LESSOR/LANDLORD: STARR EQUITIES, INC. 1962 -13 Wells Street Wailuku, Hawaii 96793 LESSEE/TENANT: COUNTY OF HAWAII 25 Aupuni Street Hilo, Hawaii 96720 Tax Map Key (3)6 -4- 006:032 Suite B -1 EXHIBIT "2" 64006032 - 1 - COUNTY OF HAWAII OFFICE SPACE LEASE AGREEMENT This LEASE AGREEMENT, made this day of , 2010 by and between STARR EQUITIES, INC., a Hawaii corporation, whose mailing address is 1962 -B Wells Street, Wailuku, Hawaii 96793 (hereinafter referred to as "Landlord" or "Lessor "), and the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii, whose principal place of business and mailing address is 25 Aupuni Street, Hilo, Hawaii 96720 (hereinafter referred to as "Tenant" or "Lessee "). 1. Grant. In consideration of the rents, covenants, and agreements hereinafter reserved and contained and on the part of the Tenant to be observed and performed, the Landlord demises and leases to the Tenant, and Tenant rents from the Landlord, the following for use as an office and warehouse space for the Tenant: Portion of those certain premises consisting of approximately 1,200 square feet known as Suite B -1 of Holomua Center situate at 64 -1067 Mamalahoa Highway, Waimea, Hawaii 96743 and identified as Tax Map Key: (3)6- 4- 006:032 (hereinafter "the Premises "). Included shall be three (3) unreserved parking stalls further described in Exhibit A attached hereto. Together with the full right of access to said premises over, across, and through any alleys, common entrances, lobbies, stairways, halls, and corridors in or around said building. 2. Use. The premises shall be utilized as office space for the Tenant. 3. Term. The term of this lease shall commence on August 1, 2010 or the date of delivery of the space to the County, whichever is later, and continue for a term of four (4) years and eleven (11) months, with the option to renew for an additional four (4) years and eleven (11) month term subject to mutual agreement on rent and notice of one hundred eighty (180) days before the expiration of the initial term. 4. Delivery of Possession. Tenant shall be given occupancy of the premises by August 1, 2010, or the date of delivery of the space to the Tenant, whichever comes later. If there is a delay in Landlord giving occupancy, which delay is caused by events beyond the control of the Landlord, the obligation to pay rent shall be deferred until such occupancy shall be granted in writing to Tenant by Landlord, and the expiration date of the lease shall be adjusted back the same number of days as the period delay in the commencement date of the lease. If the Landlord, for any reason, cannot deliver possession of the demised premises to the Tenant at the commencement of the lease term, as specified above, this lease agreement shall not be void or voidable, unless the Tenant elects to terminate the lease by giving notice in writing. 64006032 - 2 - 5. Quiet Enjoyment. Landlord agrees that upon payment by the Tenant of the rent herein provided and upon the faithful observance and performance of all the covenants, terms, and conditions in this lease on the part of the Tenant to be observed and performed, the Tenant shall peaceably and quietly hold and enjoy the leased premises for the term of this lease without hindrance or interruption by the Landlord or any other person or persons lawfully or equitably claiming by, through, or under the Landlord. 6. Rent. Tenant shall pay to the Landlord, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, without any setoff or deduction whatsoever, a monthly rent as follows: Year 1 $2,298.79/per month Year 2 $2,358.79/per month Year 3 $2,418.79/per month Year 4 $2,478.79/per month Final 11 months $2,537.79/per month Rent shall be due on the first of the month for the duration of the lease term. In addition to the rent, Tenant shall pay to the Landlord its share of the Common Area Maintenance (CAM) charges of $0.56 per square foot, but not more than 8.202% of the Shared Expenses. The County shall be responsible for any increases in CAM charges. Any real property tax exemption provided for the Tenant's pro -rata space in the building shall be credited towards the Tenant's share of CAM charges. 7. Excise Tax. In addition to the rent, the Tenant shall pay the Hawai`i general excise tax (currently 4.166 %), or any successor tax, which may be payable thereon. 8. Real Property Tax. The Tenant shall be responsible for its pro -rata share of the real property taxes. However, Landlord agrees to timely submit a claim for partial exemption from real property tax, as provided by Section 19 -84, Hawaii County Code (2005 edition, as amended). Tenant will cooperate fully with the Landlord in obtaining such exemption. 9. Deposit. No deposit shall be required. 10. Common Area Maintenance, Utility and Building Services Charges. The common area maintenance charge shall be paid monthly at the rate noted in paragraph 6 of this lease agreement. Landlord shall operate and maintain the property, common area, and facilities therein in a manner deemed as reasonable, appropriate and in the best interest of the tenants of the property. Landlord shall be responsible for all building services included in the CAM charges. The term "common area and facilities" as used in this lease agreement shall be deemed to include those portions of the property as are designated and/or designed for the non - exclusive use of the tenant in common with other authorized users, and shall include, but not be limited to: parking areas; roadways; service areas; driveways; areas of ingress and egress; landscaped and planted areas; sidewalks and other pedestrian ways; corridors; courts; 64006032 - 3 - public washrooms; drinking fountains; community rooms; toilets; stairs; ramps; buildings or structures used in connection with the maintenance of said common area; and all other similar facilities, from time to time provided for the joint use and convenience of such authorized users. Landlord services shall include air conditioning (in- window air conditioning is Tenant's responsibility), electricity to common area, water and other supplies for common area restroom, trash removal for common area. Tenant shall be responsible for its own janitorial service, sorting of recyclables within the premises, and trash removal to a central collection point. 11. Assignment and Sublease. Tenant shall not, without the prior written consent of Landlord, which consent will not be unreasonably withheld, assign or mortgage this lease or any interest herein, or sublet or grant any concession or license to use the premises or any part thereof, or allow any other person to use the whole or any part of the premises. 12. Use and Maintenance of Premises. Tenant shall use the leased premises solely for the purpose of office and warehouse space and shall not use the same for any other purpose without the prior written consent of Landlord. Tenant shall not make or suffer any waste, strip or unlawful, improper, or offensive use of said premises. Tenant shall not do or suffer any act or carry on any practice which may damage the premises or become a nuisance. Landlord shall be responsible for general maintenance, painting and repairs of the structural and exterior of the building, together with the paved open space and fence. Tenant shall keep the premises in good order, condition and repair, and in a strictly clean and sanitary condition. 13. Inspection. Landlord and Landlord's agents will be allowed to enter said premises to examine the state of repair and condition during regular business hours after providing Tenant with reasonable written notice. If Landlord deems that repairs by the Tenant are necessary, Landlord may request in writing that the Tenant make the same forthwith. 14. Signs. Tenant shall not, without the prior written consent of Landlord, erect, install, or affix any sign about the exterior or on the windows of the premises. Tenant shall allow Landlord to affix or keep on the premises a "For Lease" or "For Sale" notice. 15. Alterations. Any Tenant improvements must have prior written approval by Landlord and be in compliance with all Federal, State and County laws, rules and regulations. 16. Landlord's and Agent's Immunity and Insurance. The Tenant is self - insured and no additional insurance policy is required. Tenant shall defend and hold harmless the Landlord, its successors and assigns, from and against any and all actions, claims, suits, damages or costs arising out of or causally resulting from the acts or omissions of Tenant, its officers, agents or employees, that may arise or causally result from the operation, Tenant maintenance, or use of the leased premises occurring during the term of the lease. 64006032 - 4 - 17. Surrender. The Tenant shall, at the end of the term of this lease or earlier termination thereof, peaceably and quietly vacate and deliver up to Landlord the possession of the premises, together with all additions and alterations made by Tenant, unless Landlord requires removal of the same. Tenant may remove all moveable trade fixtures (if installed by Tenant) on the condition that Tenant shall repair any damage to the premises resulting from the removal of said fixtures. Tenant shall not be required to remove any exterior improvements other than its signs. Any property of the Tenant remaining on the premises after the termination of the lease may be disposed of by the Landlord upon thirty (30) days' written notice and failure of Tenant to retrieve the property. The parties shall act in good faith. 18. Condemnation. a. Automatic Termination of Lease. Except as may otherwise be required by any mortgage on the property, if the whole of the premises shall be taken by any public authority under the power of eminent domain, then the term of this lease shall cease as of the day possession is taken by such public authority, and all rent shall be paid up to that date. If only a part of the premises shall be taken under eminent domain, this lease shall terminate as to the portion taken, and unless this lease shall be terminated as hereinafter provided, it shall continue in full force and effect as to the remainder of the premises, and the base rent shall be reduced in the proportion the floor area taken bears to the total floor area leased, and the Tenant, at its own cost and expense, shall make all necessary repairs and alterations to the premises required by such taking. b. Option to Cancel. If the remainder of the premises cannot be made tenantable for the purposes for which the Tenant has been using the premises, the Tenant shall have the option, to be exercised within thirty (30) days after the filing of such eminent domain action, of canceling this lease effective as of the date the condemning authority shall take possession; provided, however, that if more than fifty percent (50 %) of the floor area of the premises shall be taken under power of eminent domain, either party, by written notice to the other party, delivered on or before the date of surrendering possession to the public authority, may terminate this lease, effective as of such surrender of possession. All compensation and damages of any type awarded for any taking, whole or partial, shall belong to and is the property of the Landlord, except as hereinafter provided. 19. Destruction of Premises. If the premises are partially or totally damaged or destroyed by fire or other casualty so as to become partially or totally untenantable, such damage or destruction, insofar as the same pertains to the building itself, exclusive of any damage to Tenant's fixtures, furniture or other property, shall be repaired or rebuilt at the discretion of the Landlord. Landlord shall advise Tenant within thirty (30) days after the casualty whether it intends to rebuild or repair. If the Landlord elects not to repair or rebuild, this lease shall terminate without further notice and the obligations of either party shall cease. No rent shall be payable from the date such casualty occurs until the repair or rebuilding shall be completed, 64006032 - 5 - unless the premises shall be tenantable and there is no substantial interference with Tenant's business. 20. Subordination of Lease to Mortgage. Tenant agrees that this lease and all rights of Tenant hereunder shall be subject and subordinate to all present and future mortgages made or to be made by Landlord as security for any indebtedness of Landlord; provided, however, that the mortgagee shall agree to recognize this lease in the event of foreclosure and will cause the sale of said premises to be made subject to Tenant's lease, provided that the Tenant is not in default under any of the terms, conditions, or covenants of this lease at the time of such foreclosure. 21. Leasehold Improvements and Drawings. Landlord shall build out for offices as required by County and cost of this build out is amortized over the term of the lease. 22. Additional Construction or Remodeling. Landlord reserves the right to remodel, repair, paint, or renovate the said building or do additional construction at any time to the extent that it does not compromise the integrity or the security of the demised premises. Said work shall be undertaken by Landlord with minimum interference or inconvenience to Tenant's use of the premises, and any interference or inconvenience resulting to Tenant or its use of the premises shall not constitute a breach or violation of Landlord's covenant of quiet enjoyment or any other covenant. If Landlord's additional work requires entry into Tenant's premises, Landlord and Tenant shall enter into a written agreement on the terms and conditions of such entry and work. • 23. Non - Waiver of Breach. The acceptance of rent by Landlord shall not be deemed a waiver by Landlord of any breach by Tenant or of the right of Landlord to terminate this lease for any such breach, and that the failure of Landlord to insist upon strict performance of any covenant or condition of this lease, or to exercise any option herein conferred, shall not be construed as a waiver or relinquishment for the future of any such covenant or condition but the same shall remain in full force and effect. 24. Notice. a. Notices to the Tenant. All notices to be given to the Tenant should be given in writing and by depositing the same in the United States mail, registered or certified, postage prepaid, and addressed to the County of Hawai`i at 25 Aupuni Street, Suite 1101, Hilo, Hawai`i 96720. b. Notice to Landlord. Notice to Landlord shall be given in writing personally to an agent or employee of Landlord or by depositing the same in the United States mail, registered or certified, postage prepaid, and addressed to Landlord at 1962 -B Wells Street, Wailuku, Hawaii 96793 or at such other addresses as Landlord may give to the Tenant in writing from time to time. 64006032 - 6 - c. Time of Service. Any written notice sent by registered or certified mail shall be deemed to have been served as of the date it is mailed in accordance with the foregoing provisions. 25. Force Majeure. In the event that either Landlord or the Tenant shall be delayed, hindered, or prevented from the performance of any act required under this lease agreement by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war, or other reason of like nature, not the fault of the party delayed in performing the work or doing the acts required under the terms of this lease agreement, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 26. Hazardous Materials. The Landlord affirms, upon due diligence, that the premises are free of hazardous materials. Landlord warrants that it has not received written notice from any govemmental authority having jurisdiction over the premises that the premises is in violation of the Comprehensive Environmental Response, Compensation and Liability Act of 1989, as amended ( "CERCLA "), the Resources Conservation and Recovery Act of 1976, as amended ( "RCRA "), the Toxic Substance Control Act, as amended, the Hazardous Materials Transportation Act, as amended, or any statute goveming underground storage tanks or asbestos. Landlord represents and warrants that to Landlord's actual knowledge (without undertaking any investigation or inquiry) the premises do not contain any hazardous or toxic materials prohibited by law. Landlord shall indemnify and hold harmless the Tenant from and against any and all claims, demands or losses in connection with the release of hazardous or toxic materials caused by Landlord. Tenant shall indemnify and hold harmless the Landlord . from and against all claims, demands or losses in connection with the release of hazardous or toxic materials caused by Tenant, its agents or employees. 27. Construction of Language. Nothing herein contained is intended or shall be construed as creating a relationship of principal and agent, or of a partnership or joint venture, between Landlord and Tenant. Wherever used herein, the singular number shall include the plural and the neuter gender shall include the masculine and feminine genders, unless the context clearly requires otherwise. The obligations of the parties executing this lease agreement shall be joint and several. The term "premises" shall mean the premises demised under the lease; the term "Landlord" shall include the Landlord, its successors, and assigns; and the term "Tenant" shall include Tenant and Tenant's successors and permitted assigns. 28. Facsimiles. The parties hereto agree that telephone facsimile (fax) copies of any documents required to be executed by the provisions herein will be accepted as if signed in person, as originals. Upon request, the party submitting the facsimile shall provide the original document within a reasonable time. However, failure to provide such an original shall have no effect upon the validity of the execution by facsimile. 29. Dispute Resolution/Forum Selection. Any dispute action or proceeding involving this lease, commenced by any party, if not resolved by mutual consent, shall be commenced in the District Courts of the Third Circuit, County and State of Hawaii. • 64006032 - 7 - 30. Governing Law. It is agreed that this lease agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Hawaii. 31. Entire Agreement. This lease agreement contains the entire agreement between the parties. Any agreement hereafter made shall be ineffective to change, modify, discharge or effect an abandonment of the lease, in whole or in part, unless such agreement is in writing and signed by the party against whom enforcement of the change, modification, discharge or abandonment is sought. It is expressly understood and agreed that each and all of the provisions of this lease agreement are conditions precedent to be faithfully and fully performed and observed by the Tenant and to entitle the Tenant to continue in possession of the premises hereunder; that said conditions are also covenants on the part of the Tenant; and that time of performance of each is of the essence of this lease. IN WITNESS WHEREOF, the parties hereto have entered into this agreement as of the day and year first above written. STARR EQUITIES, INC. By: LESSOR/LANDLORD COUNTY OF HAWAII By: LESSEE/TENANT . RECOMMEND APPROVAL: NANCY CRAWFORD Finance Director County of Hawai`i APPROVED AS TO FORM AND LEGALITY: CRAIG T. MASUDA Deputy Corporation Counsel County of Hawai`i 64006032 - 8 - STATE OF HAWAII SS. COUNTY OF MAUI On , before me personally appeared , to me personally known, who, being by me duly sworn (or affirmed), did say that the person is the of STARR EQUITIES, INC., a Hawai`i corporation, that said instrument was signed in behalf of the corporation by authority of its board of directors, and acknowledged the instrument to be the free act and deed of the corporation. Notary Public, State of Hawai`i Printed Name: My commission expires: NOTARY CERTIFICATION STATEMENT Document Identification or Description: Doc. Date: or 0 Undated at time of notarization. No, of Pages: Jurisdiction: Circuit On which notarial act is performed) Signature of Notary Date of Notarization and Certification Statement Printed Name of Notary 64006032 - 9 - STATE OF HAWAII ) SS: COUNTY OF HAWAII • On , before me personally appeared WILLIAM P. KENOI, to me personally known, who, being by me duly sworn, did say that WILLIAM P. KENOI is the Mayor of the County of Hawaii, a municipal corporation of the State of Hawaii; that the seal affixed to the foregoing instrument is the corporate seal of said County of Hawaii; that the foregoing instrument was signed and sealed in behalf of the County of Hawai`i by authority given to said Mayor of the County of Hawaii' i by Section 5- 1.3(g) of the County Charter, County of Hawaii (2000), as amended; and said WILLIAM P. KENOI acknowledged said instrument to be the free act and deed of said County of Hawaii. Signature Name (Print or Type) Notary Public, State of Hawaii My Commission Expires: NOTARY CERTIFICATION STATEMENT Document Identification or Description: Doc. Date: or ❑ Undated at time of notarization. No. of Pages: Jurisdiction: Circuit (in which notarial act is performed) Signature of Notary Date of Notarization and Certification Statement Printed Name of Notary 64006032 - 10 - • • • mi aEXHIBIT v • w ;. • = z•. Space B -1 The Premises: • Space B -t, 1,200 square feet • Space B2 /B3 Space B -4 Parking .3 HOLOMUA CENTER TMK: 6 -4 -6 32 EXHIBIT A 64006032 -11 -