HomeMy WebLinkAboutRES 157 Draft 01 2012-2014 .....„,„:.
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RESOLUTION NO. 157 13
RESOLUTION ACCEPTING THE NEGOTIATED LEASE AGREEMENT FOR HAMAKUA
LANDS IDENTIFIED AS TAX MAP KEY (3) 4-3-007-001 WITH ABBA'S GARDEN LLC,
PURSUANT TO SECTION 2-114 OF THE HAWAII COUNTY CODE.
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII:
WHEREAS, Resolution 38-11 authorized the lease of certain County of Hawai`i owned lands
in the District of Hamdkua, County and State of Hawai`i, and required that the negotiated lease
agreement for those lands be accepted by the County Council pursuant to Section 2-114(d) of the
Hawai`i County Code; and
WHEREAS, pursuant to Resolution 38-11 negotiated agreements for those lands identified
within said resolution were obtained and are hereby presented for acceptance by the County Council;
and
WHEREAS, the negotiated lease agreement with Abba's Garden LLC attached hereto as
Exhibit "I" for Tax Map Key (3) 4-3-007-001 is presented to the County Council pursuant to
Resolution 38-11; and
WHEREAS, pursuant to Section 2-114(d) of the Hawai`i County Code, the Council may
require in the initial resolution that the negotiated agreement be accepted by the Council; now,
therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the
negotiated lease of Tax Map Key (3) 4-3-007-001 to Abba's Garden LLC under the terms and
conditions as noted in the Lease attached hereto as Exhibit "I" is hereby accepted.
BE IT FINALLY RESOLVED that a copy of this resolution be forwarded to: (1) Mayor
William P. Kenoi; (2) Nancy Crawford, Director of Finance; (3) Craig T. Masuda, Deputy Corporation
Counsel, and (4) Abba's Garden LLC, P.O. Box 914, Kamuela, Hawaii 96743.
Dated at Hilo , Hawai`i, this 5th day of September , 2013.
INTRODUCED BY:
' ,:. .
COUNCIL MEMBER, COUNTY OF HAWAII
COUNTY COUNCIL ROLL CALL VOTE
County of Hawai`i AYES NOES ABS EX
Hilo, Hawai`i EOFF X
FORD X
I hereby certify that the foregoing RESOLUTION was by ILAGAN X
the vote indicated to the right hereof adopted by the COUNCIL of the KANUHA
County of Hawaii on September 5, 2013
X
KERN X
ONISHI X
ATTEST: POINDEXTER
X
WILLE X
YOSHIMOTO X
�^ 9 0 0 0
Reference: C-371/FC—82
il\C .COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER RESOLUTION NO. 15'7 13
Exhibit "I"
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)
333 Kilauea Avenue, 2nd Floor
Hilo, Hawaii 96720
DOCUMENT CONTAINS PAGES
TITLE OF DOCUMENT: LEASE
PARTIES TO DOCUMENT
LESSOR: COUNTY OF HAWAII
25 Aupuni Street
Hilo, Hawaii 96720
LESSEE: ABBA's Garden LLC.
Loreli Eberhardt
PO Box 914
Kamuela, HI 96743
AFFECTS TAX MAP KEY: (3) 4-3-007:001
TABLE OF CONTENTS
Page
TERM OF LEASE 1
ANNUAL RENTAL 1
REOPENING OF ANNUAL RENTAL 2
RESERVATIONS:
1 . Minerals and waters 2
2 . Ownership of improvements 2
AGREEMENTS AND COVENANTS BETWEEN PARTIES :
1 . Payment of rent 2
2 . Taxes, assessments, etc 3
3 . Utility services 3
4 . Covenant against discrimination 3
5 . Sanitation 3
6 . Waste and unlawful, improper or offensive
use of premises 3
7 . Compliance with laws 3
8 . Inspection of premises 4
9 . Improvements 4
10 . Repairs to improvements 4
11 . Liens 4
12 . Character of use 4
13 . Assignments, etc 4
14 . Subletting 4
15 . Indemnity 4
16 . Costs of litigation 5
17 . Liability insurance 5
18 . Bond, performance 6
19 . Lessor' s lien 7
20 . Mortgage 7
21 . Breach 7
22 . Right of holder of record of a security
interest 8
23 . Condemnation 9
24 . Right to enter 9
25 . Inspection by prospective bidders 10
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TABLE OF CONTENTS (cont ' d)
Page
26 . Acceptance of rent not a waiver 10
27 . Extension of time 10
28 . Justification of sureties 10
29 . Waiver, modification, reimposition of
bond and liability insurance provisions 11
30 . Quiet enjoyment 11
31 . Surrender 11
32 . Non-warranty 12
33 . Hazardous materials 12
34 . Hawaii law 12
35 . Exhibits - Incorporation in lease 13
36 . Headings 13
37 . Partial invalidity 13
38 . Time is of the essence 13
39 . Historic preservation 13
40 . Incorporation by reference 13
SPECIAL CONDITIONS:
41 . Full utilization of the land 13
42 . Good husbandry and conservation program 13
43 . Boundary fences 14
44 . Exclusion of animals from forest lands 14
45 . Withdrawal 14
46 . Clearances 15
47 . Restriction on residential use 15
48 . Hunting 15
49 . Audit and examination of books, etc . 15
50 . Commercial operations 15
51 . Abandoned vehicles 15
52 . Environmental regulations 16
53 . Fire and extended coverage insurance 16
54 . Removal of trash 16
55 . Phase I environmental site assessment 17
56 . Survey and boundary stakeout 17
57 . Improvements 17
58 . Bond, improvement 17
59 . Fire and extended coverage insurance 18
DEFINITIONS 18
SIGNATURE PAGE 20
NOTARY PAGE 21
ii
LEASE
THIS LEASE, made this day of
2013 , by and between the COUNTY OF HAWAII, a municipal
corporation, 25 Aupuni Street, Hilo, Hawai ' i hereinafter referred
to as the "Lessor, " and ABBA' s Garden LLC. , whose address is
PO Box 914 , Kamuela, HI 96743 , hereinafter referred to as the
"Lessee. "
WITNESSETH:
The Lessor, pursuant to Resolution 38-11, for and in
consideration of the rent to be paid and of the terms, covenants
and conditions herein contained, all on the part of the Lessee to
be kept, observed and performed, does lease unto the Lessee, and
the Lessee does lease from the Lessor the premises situate at
Paauilo, Hawaii, and identified as " (3) 4-3-007 : 001 "
containing an area of 92 acres, as shown on the map marked
Exhibit "A" attached hereto and made parts hereof .
NOTICE: THE PREMISES SHALL NOT BE UTILIZED IN ANY
MANNER FOR RESEARCH, DEVELOPEMENT PRODUCTION OR CULTIVATION OF
GENETICALLY MODIFIED ORGANISM (GMO) PRODUCTS.
TO HAVE AND TO HOLD the leased premises unto the Lessee
for the term of Ten (10) years commencing on the 1st day of
October , 2013 , up to and including the 30th day of
September , 2023 , unless sooner terminated as hereinafter
provided, the Lessor reserving and the Lessee yielding and paying
to the Lessor at the Department of Finance, County of Hawai ' i, an
annual rental as provided herein below, payable in advance,
without notice or demand, in equal quarterly installments on _
January 1st, April 1St, July 1St, October 1st of each and every
year during the term as follows :
A. For the first ten (10) years, the sum of Ten
Thousand Five Hundred Eighty Five 41/100 DOLLARS ($10, 585 .41) per
annum with an option of two additional ten (10) year terms .
B. The annual rental reserved shall be reopened and
re-determined on or before sixty (60) days prior to the
expiration of the lease.
C. Determination of rent upon reopening. The rental
for any ensuing period shall be the fair market rental negotiated
at the time of reopening.
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RESERVING UNTO THE LESSOR THE FOLLOWING:
1 . Minerals and waters . (a) All minerals as
hereinafter defined, in, on or under the premises and the right,
on its own behalf or through persons authorized by it, to
prospect for, mine and remove the minerals and to occupy and use
so much of the surface of the ground as may be required for all
purposes reasonably extending to the mining and removal of the
minerals by any means whatsoever, including strip mining.
"Minerals, " as used herein, shall mean any or all oil, gas, coal,
phosphate, sodium, sulphur, iron, titanium, gold, silver,
bauxite, bauxitic clay, diaspore, boehmite, laterite, gibbsite,
alumina, all ores of aluminum and, without limitation thereon,
all other mineral substances and ore deposits, whether solid,
gaseous or liquid, including all geothermal resources, in, on, or
under the land, fast or submerged; provided, that "minerals"
shall not include sand, gravel, rock or other material suitable
for use and used in general construction in furtherance of the
Lessee ' s permitted activities on the premises and not for sale to
others . (b) All surface and ground waters appurtenant to the
premises and the right on its own behalf or through persons
authorized by it, to capture, divert or impound the same and to
occupy and use so much of the premises required in the exercise
of this right reserved; provided, however, that as a condition
precedent to the exercise by the Lessor of the rights reserved in
this paragraph, just compensation shall be paid to the Lessee for
any of Lessee ' s improvements taken.
2 . Ownership of improvements . The ownership of all
improvements of whatever kind or nature, including but not
limited to fences and stock water system(s) located on the land
prior to or on the commencement date of this lease, excluding
those improvements constructed during the term of this lease
unless provided otherwise.
SUBJECT TO the rights of native tenants and to
regulatory rights and ownership rights (if any) of the State of
Hawai 'i established pursuant to state law including chapter 6E,
Hawai 'i Revised Statutes, over prehistoric or historic remains
found in, on, or under the land.
THE LESSEE COVENANTS AND AGREES WITH THE LESSOR AS FOLLOWS:
1 . Payment of rent . The Lessee shall pay the rent to
the Lessor at the times, in the manner and form provided in this
lease and at the place specified above, or at any other place the
2
Lessor may from time to time designate, in legal tender of the
United States of America.
2 . Taxes, assessments, etc . The Lessee shall pay or
cause to be paid, when due, the amount of all taxes, rates, and
assessments of every description as to which the premises or any
part, or any improvements, or the Lessor or Lessee, are now or
may be assessed or become liable by authority of law during the
term of this lease; provided, however, that with respect to any
assessment made under any betterment or improvement law which may
be payable in installments, Lessee shall be required to pay only
those installments, together with interest, which becomes due and
payable during the term of this lease.
3 . Utility services . The Lessee shall be responsible
for obtaining any utility services and shall pay when due all
charges, duties and rates of every description, including water,
sewer, gas, refuse collection or any other charges, as to which
the premises or any part, or any improvements, or the Lessor or
Lessee may become liable for during the term, whether assessed to
or payable by the Lessor or Lessee.
4 . Covenant against discrimination. The use and
enjoyment of the premises shall not be in support of any policy
which discriminates against anyone based upon race, creed, sex,
color, national origin, religion, marital status, familial
status, ancestry, physical handicap, disability, age or HIV
(human immunodeficiency virus) infection.
5 . Sanitation. The Lessee shall keep the premises
and improvements in a strictly clean, sanitary and orderly
condition.
6 . Waste and unlawful, improper or offensive use of
premises . The Lessee shall not commit, suffer or permit to be
committed any waste, nuisance, strip, or unlawful, improper or
offensive use of the premises or any part, nor, without the prior
written consent of the Lessor, cut down, remove or destroy, or
suffer to be cut down, removed or destroyed, any trees now
growing on the premises .
7 . Compliance with laws . The Lessee shall comply
with all of the requirements of all municipal, state, and federal
authorities and observe all municipal, state and federal laws
applicable to the premises, now in force or which may be in
force.
8 . Inspection of premises . The Lessee shall permit
3
the Lessor and its agents, at all reasonable times during the
lease term, to enter the premises and examine the state of its
repair and condition.
9 . Improvements . The Lessee shall not at any time
during the term construct, place, maintain or install on the
premises any building, structure or improvement of any kind and
description except with the prior written approval of the
Director, including any adjustment of rent, unless otherwise
provided in this lease . The Lessee shall own these improvements
until the expiration or other termination of the lease, at which
time the ownership shall, at the option of the Lessor, remain and
become the property of the Lessor or shall be removed by Lessee
at Lessee' s sole cost and expense .
10 . Repairs to improvements . The Lessee shall, at its
own expense, keep, repair, and maintain all buildings and
improvements now existing or hereafter constructed or installed
on the premises in good order, condition and repair, reasonable
wear and tear excepted.
11 . Liens . The Lessee shall not commit or suffer any
act or neglect which results in the premises, any improvement, or
the leasehold estate of the Lessee becoming subject to any
attachment, lien, charge, or encumbrance, except as provided in
this lease, and shall indemnify, defend, and hold the Lessor
harmless from and against all attachments, liens, charges, and
encumbrances and all resulting expenses .
12 . Character of use . The Lessee shall use or allow
the premises leased to be used solely for "intensive agriculture
and pasture" purpose (s) .
13 . Assignments, etc . The Lessee shall not transfer,
assign, or permit any other person to occupy or use the premises,
or any portion, or transfer or assign this lease or any interest,
either voluntarily or by operation of law, except by way of
devise, bequest, or intestate succession, and any transfer or
assignment made shall be null and void.
14 . Subletting. The Lessee shall not rent or sublet
the whole or any portion of the premises .
15 . Indemnity. The Lessee shall indemnify, defend,
and hold the Lessor harmless from and against any claim or demand
for loss, liability, or damage, including claims for bodily
injury, wrongful death, or property damage, arising out of or
resulting from: 1) any act or omission on the part of Lessee
4
relating to Lessee ' s use, occupancy, maintenance, or enjoyment of
the premises; 2) any failure on the part of the Lessee to
maintain the premises and sidewalks, roadways and parking areas
adjacent thereto in Lessee ' s use and control, and including any
accident, fire or nuisance, growing out of or caused by any
failure on the part of the Lessee to maintain the premises in a
safe condition; and 3) from and against all actions, suits,
damages, and claims by whomsoever brought or made by reason of
the Lessee ' s non-observance or non-performance of any of the
terms, covenants, and conditions of this lease or the rules,
regulations, ordinances, and laws of the federal, state,
municipal or county governments .
16 . Costs of litigation. In case the Lessor shall,
without any fault on Lessor' s part, be made a party to any
litigation commenced by or against the Lessee (other than
condemnation proceedings) , the Lessee shall pay all costs,
including reasonable attorney' s fees, and expenses incurred by or
imposed on the Lessor; furthermore, the Lessee shall pay all
costs, including reasonable attorney' s fees, and expenses which
may be incurred by or paid by the Lessor in enforcing the
covenants and agreements of this lease, in recovering possession
of the premises, or in the collection of delinquent rental,
taxes, and any and all other charges .
17 . Liability insurance . The Lessee shall procure and
maintain, at its cost and expense and acceptable to the Lessor,
in full force and effect throughout the term of this lease,
comprehensive general liability insurance, or its equivalent,
workers compensation insurance in accordance with Hawai ' i law,
and automobile/motorcycle insurance with an insurance company or
companies licensed or authorized to do business in the State of
Hawai 'i with an AM Best rating of not less than "A-" or other
comparable and equivalent industry rating, in an amount of at
least $500, 000 . 00 for each occurrence and $1, 000, 000 . 00
aggregate, and with coverage terms acceptable to the Director.
The policy or policies of insurance shall name the County of
Hawai ' i as an additional insured and a copy shall be filed with
the County of Hawai 'i, Department of Finance . The insurance
shall cover the entire premises, including all buildings,
improvements, and grounds and all roadways or sidewalks on or
adjacent to the premises in the use or control of the Lessee .
The Lessee, prior to entry and use of the premises or
within fifteen (15) days from the effective date of this lease,
whichever is sooner, shall furnish the Lessor with a
certificate (s) showing the policy(s) to be initially in force,
keep the certificate (s) on deposit during the entire lease term,
5
and furnish a like certificate (s) upon each renewal of the
policy(s) . This insurance shall not be cancelled, limited in
scope of coverage, or non-renewed until after thirty (30) days
written notice has been given to the Lessor. The Lessor may at
any time require the Lessee to provide Lessor with copies of the
insurance policy(s) that are or were in effect during the lease
period.
The Lessor shall retain the right at any time to review
the coverage, form, and amount of the insurance required by this
lease. If, in the opinion of the Lessor, the insurance
provisions in this lease do not provide adequate protection for
the Lessor, the Lessor may require Lessee to obtain insurance
sufficient in coverage, form, and amount to provide adequate
protection. The Lessor' s requirements shall be reasonable but
shall be designed to assure protection for and against the kind
and extent of the risks which exist at the time a change in
insurance is required. The Lessor shall notify Lessee in writing
of changes in the insurance requirements and Lessee shall deposit
copies of acceptable insurance policy(s) or certificate (s)
thereof, with the Lessor incorporating the changes within thirty
(30) days of receipt of the notice.
The procuring of the required policy(s) of insurance
shall not be construed to limit Lessee ' s liability under this
lease nor to release or relieve the Lessee of the indemnification
provisions and requirements of this lease . Notwithstanding the
policy(s) of insurance, Lessee shall be obligated for the full
and total amount of any damage, injury, or loss caused by
Lessee ' s negligence or neglect connected with this lease .
It is agreed that any insurance maintained by the
Lessor will apply in excess of, and not contribute with,
insurance provided by Lessee ' s policy.
18 . Bond, performance. The Lessee shall, at its own
cost and expense, within fifteen (15) days from the effective
date of this lease, procure and deposit with the Lessor and
thereafter keep in full force and effect during the term of this
lease a good and sufficient surety bond, conditioned upon the
full and faithful observance and performance by Lessee of all the
terms, conditions, and covenants of this lease, in an amount
equal to two times the annual rental then payable . This bond
shall provide that in case of a breach or default of any of the
lease terms, covenants, conditions, and agreements, the full
amount of the bond shall be paid to the Lessor as liquidated and
ascertained damages and not as a penalty.
6
19 . Lessor' s lien. The Lessor shall have a lien on
all the buildings and improvements placed on the premises by the
Lessee, on all property kept or used on the premises, whether the
same is exempt from execution or not and on the rents of all
improvements and buildings located on the premises for all
Lessor' s costs, attorney' s fees, rent reserved, for all taxes and
assessments paid by the Lessor on behalf of the Lessee, and for
the payment of all money provided in this lease to be paid by the
Lessee, and this lien shall continue until the amounts due are
paid.
20 . Mortgage . Except as provided in this lease, the
Lessee shall not mortgage, hypothecate, or pledge the premises,
any portion, or any interest in this lease without the prior
written approval of the Director and any mortgage, hypothecation,
or pledge without the approval shall be null and void.
Upon due application and with the written consent of
the Director, the Lessee may mortgage this lease, or any
interest, or create a security interest in the leasehold of the
public land. If the mortgage or security interest is to a
recognized lending institution in either the State of Hawaii or
elsewhere in the United States, the consent may extend to
foreclosure and sale of Lessee ' s interest at the foreclosure to
any purchaser, including the mortgagee, without regard to whether
or not the purchaser is qualified to lease, own, or otherwise
acquire and hold the land or any interest . The interest of the
mortgagee or holder shall be freely assignable . The term
"holder" shall include an insurer or guarantor of the obligation
or condition of the mortgage, including the Department of Housing
and Urban Development through the Federal Housing Administration,
the Federal National Mortgage Association, the Veterans
Administration, the Small Business Administration, Farmers Home
Administration, or any other Federal agency and their respective
successors and assigns or any lending institution authorized to
do business in the State of Hawaii or elsewhere in the United
States; provided, that the consent to mortgage to a
non-governmental holder shall not confer any greater rights or
powers in the holder than those which would be required by any of
these Federal agencies .
21 . Breach. Time is of the essence in this agreement .
If the Lessee shall fail to pay the rent, or any part thereof, at
the times and in the manner provided in this lease and this
failure shall continue for a period of more than thirty (30) days
after delivery by the Lessor of a written notice of breach or
default and demand for cure, by personal service, registered mail
or certified mail to the Lessee and to each holder of record
7
having a security interest in the premises, or if the Lessee
shall become bankrupt, or shall abandon the premises, or if this
lease and premises shall be attached or taken by operation of
law, or if any assignment is made of the Lessee ' s property for
the benefit of creditors, or if Lessee shall fail to observe and
perform any of the covenants, terms, and conditions contained in
this lease and on its part to be observed and performed, and this
failure shall continue for a period of more than sixty (60) days
after delivery by the Lessor of a written notice of breach or
default and demand for cure, by personal service, registered mail
or certified mail to the Lessee at its last known address and to
each holder of record having a security interest in the premises,
the Lessor may, at once re-enter the premises, or any part, and
upon or without the entry, at its option, terminate this lease
without prejudice to any other remedy or right of action for
arrears of rent or for any preceding or other breach of contract;
and in the event of termination, at the option of the Lessor, all
buildings and improvements shall remain and become the property
of the Lessor or shall be removed by Lessee; furthermore, Lessor
shall retain all rent paid in advance to be applied to any
damages .
22 . Right of holder of record of a security interest.
In the event the Lessor seeks to forfeit the privilege, interest,
or estate created by this lease, each recorded holder of a
security interest may, at its option, cure or remedy the default
or breach of rent payment within thirty (30) days or any other
default or breach within sixty (60) days, from the date of
receipt of the Lessor' s notice, or within an additional period
allowed by Lessor for good cause, and add the cost to the
mortgage debt and the lien of the mortgage . Upon failure of the
holder to exercise its option, the Lessor may: (a) pay to the
holder from any moneys at its disposal, including the special
land and development fund, the amount of the mortgage debt,
together with interest and penalties, and secure an assignment of
the debt and mortgage from the holder or if ownership of the
privilege, interest, or estate shall have vested in the holder by
way of foreclosure, or action in lieu thereof, the Lessor shall
be entitled to the conveyance of the privilege, interest, or
estate upon payment to the holder of the amount of the mortgage
debt, including interest and penalties, and all reasonable
expenses incurred by the holder in connection with the
foreclosure and preservation of its security interest, less
appropriate credits, including income received from the
privilege, interest, or estate subsequent to the foreclosure; or
(b) if the property cannot be reasonably reassigned without loss
to the County, then terminate the outstanding privilege,
interest, or estate without prejudice to any other right or
8
remedy for arrears of rent or for any preceding or other breach
or default and use its best efforts to redispose of the affected
land to a qualified and responsible person free and clear of the
mortgage and the debt secured; provided that a reasonable delay
by the Lessor in instituting or prosecuting its rights or
remedies shall not operate as a waiver of these rights or to
deprive it of a remedy when it may still otherwise hope to
resolve the problems created by the breach or default . The
proceeds of any redisposition shall be applied, first, to
reimburse the Lessor for costs and expenses in connection with
the redisposition; second, to discharge in full any unpaid
purchase price or other indebtedness owing the Lessor in
connection with the privilege, interest, or estate terminated;
third, to the mortgagee to the extent of the value received by
the County upon redisposition which exceeds the fair market lease
value of the land as previously determined by the County' s
appraiser; and fourth, to the owner of the privilege, interest,
or estate.
23 . Condemnation. If at any time, during the term of
this lease, any portion of the premises should be condemned, or
required for public purposes, the rent shall be reduced in
proportion to the value of the portion of the premises condemned.
The Lessee shall be entitled to receive from the condemning
authority (a) the value of growing crops, if any, which Lessee is
not permitted to harvest and (b) the proportionate value of the
Lessee ' s permanent improvements so taken in the proportion that
it bears to the unexpired term of the lease; provided, that the
Lessee may, in the alternative, remove and relocate its
improvements to the remainder of the premises occupied by the
Lessee. The Lessee shall not by reason of the condemnation be
entitled to any claim against the Lessor for condemnation or
indemnity for leasehold interest and all compensation payable or
to be paid for or on account of the leasehold interest by reason
of the condemnation shall be payable to and be the sole property
of the Lessor. The foregoing rights of the Lessee shall not be
exclusive of any other to which Lessee may be entitled by law.
Where the portion taken renders the remainder unsuitable for the
use or uses for which the premises were leased, the Lessee shall
have the option to surrender this lease and be discharged and
relieved from any further liability; provided, that Lessee may
remove the permanent improvements constructed, erected and placed
by it within any reasonable period allowed by the Lessor.
24 . Right to enter. The Lessor and their agents or
representatives shall have the right to enter and cross any
portion of the premises for the purpose of performing any public
9
or official duties; provided, however, in the exercise of these
rights, the Lessor shall not interfere unreasonably with the
Lessee or Lessee ' s lawful use and enjoyment of the premises .
25 . Inspection by prospective bidders . The Lessor
shall have the right to authorize any person or persons to enter
upon and inspect the premises at all reasonable times following a
published notice for its proposed disposition for purposes of
informing and apprising that person or persons of the condition
of the premises preparatory to the proposed disposition;
provided, however, that any entry and inspection shall be
conducted during reasonable hours after notice to enter is first
given to the Lessee, and shall, if the Lessee so requires, be
made in the company of the Lessee or designated agents of the
Lessee; provided, further, that no authorization shall be given
more than two years before the expiration of the term of this
lease.
26 . Acceptance of rent not a waiver. The acceptance
of rent by the Lessor shall not be deemed a waiver of any breach
by the Lessee of any term, covenant, or condition of this lease,
nor of the Lessor' s right of re-entry for breach of covenant, nor
of the Lessor' s right to declare and enforce a forfeiture for any
breach, and the failure of the Lessor to insist upon strict
performance of any term, covenant, or condition, or to exercise
any option conferred, in any one or more instances, shall not be
construed as a waiver or relinquishment of any term, covenant,
condition, or option.
27 . Extension of time . Notwithstanding any provision
contained in this lease, when applicable, the Director may for
good cause shown, allow additional time beyond the time or times
specified in this lease for the Lessee to comply, observe, and
perform any of the lease terms, conditions, and covenants .
28 . Justification of sureties . Any bonds required by
this lease shall be supported by the obligation of a corporate
surety organized for the purpose of being a surety and qualified
to do business in the State of Hawaii, or by not less than two
personal sureties, corporate or individual, for which
justifications shall be filed as provided in Section 78-20,
Hawaii Revised Statutes; provided, however, the Lessee may
furnish a bond in like amount, conditioned as aforesaid, executed
by it alone as obligor, if, in lieu of any surety or sureties, it
shall also furnish and at all times thereafter keep and maintain
on deposit with the Lessor security in certified checks,
certificates of deposit (payable on demand or after a period the
Lessor may stipulate) , bonds, stocks or other negotiable
10
securities properly endorsed, or execute and deliver to the
Lessor a deed or deeds of trust of real property, all of a
character which is satisfactory to Lessor and valued in the
aggregate at not less than the principal amount of the bond. It
is agreed that the value of any securities which may be accepted
and at any time thereafter held by the Lessor shall be determined
by the Lessor, and that the Lessee may, with the approval of the
Lessor, exchange other securities or money for any of the
deposited securities if in the judgment of the Lessor the
substitute securities or money shall be at least equal in value
to those withdrawn. It is further agreed that substitution of
sureties or the substitution of a deposit of security for the
obligation of a surety or sureties may be made by the Lessee, but
only upon the written consent of the Lessor and that until this
consent is granted, which shall be discretionary with the Lessor,
no surety shall be released or relieved from any obligation.
29 . Waiver, modification, re-imposition of bond and
liability insurance provisions . Upon substantial compliance by
the Lessee with the terms, covenants, and conditions contained in
this lease on its part to be observed or performed, the Lessor at
its discretion may in writing, waive or suspend the performance
bond or improvement bond requirements or both or may, in writing,
modify the particular bond(s) or liability insurance requirements
by reducing its amount; provided, however, that the Lessor
reserves the right to reactivate the bonds or re-impose the
bond(s) or liability insurance in and to their original tenor and
form at any time throughout the term of this lease .
30 . Quiet enjoyment. The Lessor covenants and agrees
with the Lessee that upon payment of the rent at the times and in
the manner provided and the observance and performance of these
covenants, terms, and conditions on the part of the Lessee to be
observed and performed, the Lessee shall and may have, hold,
possess, and enjoy the premises for the term of the lease,
without hindrance or interruption by the Lessor or any other
person or persons lawfully claiming by, through, or under it.
31 . Surrender. The Lessee shall, at the end of the
term or other sooner termination of this lease, peaceably deliver
unto the Lessor possession of the premises in a clean and orderly
condition, together with all improvements existing or constructed
thereon or Lessee shall remove such improvements, at the option
of the Lessor. Furthermore, upon the expiration, termination, or
revocation of this lease, should the Lessee fail to remove any
and all of Lessee ' s personal property from the premises, after
notice thereof, the Lessor may remove any and all personal
property from the premises and either deem the property abandoned
11
and dispose of the property or place the property in storage at
the cost and expense of Lessee, and the Lessee does agree to pay
all costs and expenses for disposal, removal, or storage of the
personal property. This provision shall survive the termination
of the lease.
32 . Non-warranty. The Lessor does not warrant the
conditions of the premises, as the same are being leased AS IS .
33 . Hazardous materials . Lessee shall not cause or
permit the escape, disposal or release of any hazardous materials
except as permitted by law. Lessee shall not allow the storage
or use of such materials in any manner not sanctioned by law or
by the highest standards prevailing in the industry for the
storage and use of such materials, nor allow to be brought onto
the premises any such materials except to use in the ordinary
course of Lessee ' s business, and then only after written notice
is given to Lessor of the identity of such materials and upon
Lessor' s consent which consent may be withheld at Lessor' s sole
and absolute discretion. If any lender or governmental agency
shall ever require testing to ascertain whether or not there has
been any release of hazardous materials by Lessee, then the
Lessee shall be responsible for the reasonable costs thereof . In
addition, Lessee shall execute affidavits, representations and
the like from time to time at Lessor' s request concerning
Lessee ' s best knowledge and belief regarding the presence of
hazardous materials on the premises placed or released by Lessee .
Lessee agrees to indemnify, defend, and hold Lessor
harmless, from any damages and claims resulting from the release
of hazardous materials on the premises occurring while Lessee is
in possession, or elsewhere if caused by Lessee or persons acting
under Lessee. These covenants shall survive the expiration or
earlier termination of the lease.
For the purpose of this lease "hazardous material"
shall mean any pollutant, toxic substance, hazardous waste,
hazardous material, hazardous substance, or oil as defined in or
pursuant to the Resource Conservation and Recovery Act, as
amended, the Comprehensive Environmental Response, Compensation,
and Liability Act, as amended, the Federal Clean Water Act, or
any other federal, state, or local environmental law, regulation,
ordinance, rule, or by-law, whether existing as of the date
hereof, previously enforced, or subsequently enacted.
34 . Hawai ' i law. This lease shall be construed,
interpreted, and governed by the laws of the State of Hawai ' i .
12
35 . Exhibits - Incorporation in lease . All exhibits
referred to are attached to this lease and hereby are deemed
incorporated by reference .
36 . Headings . The article and paragraph headings
herein are inserted only for convenience and reference and shall
in no way define, describe or limit the scope or intent of any
provision of this lease .
37 . Partial invalidity. If any term, provision,
covenant or condition of this lease should be held to be invalid,
void or unenforceable, the remainder of this lease shall continue
in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
38 . Time is of the essence . Time is of the essence in
all provisions of this lease .
39 . Historic preservation. In the event any historic
properties or burial sites, as defined in section 6E-2, Hawaii
Revised Statutes, are found on the premises, the Lessee and the
Lessee ' s agents, employees and representatives shall immediately
stop all land utilization or work or both and contact the
Historic Preservation Office in compliance with chapter 6E,
Hawaii Revised Statutes .
40 . Incorporation by reference . References in this
lease to various parcels of land are in accordance with those
designated in the Notice Of Lease and the Terms and Conditions
Lease of County Lands which, together with the Addendum are
incorporated and made a part of this lease . The terms of this
lease shall govern where there is any inconsistency between the
lease terms and the terms contained in the Addendum.
SPECIAL CONDITIONS
41 . Full utilization of the land. The Lessee shall,
within the first year of the lease term, utilize the land under
lease for the purposes for which this lease is sold, all in
accordance with a conservation plan pursuant to paragraph 42 ,
Good husbandry and conservation program of this lease.
42 . Good husbandry and conservation program. The
Lessee shall at all times practice good husbandry and carry out a
program of conservation in cooperation with the appropriate Soil
13
and Water Conservation District, with which district the Lessee
shall maintain cooperative status . The conservation program
shall be in accordance with a conservation plan which shall be
submitted to the Director for acceptance within one (1) year
following lease commencement . The conservation plan shall
include, but not be limited to, those practices as land clearing,
cropping system, irrigation system, drainage, noxious weed
control and others needed to protect the land against
deterioration and to prevent environmental degradation; provided,
however, that this requirement may be waived for leases with
little or no apparent conservation problems when verified by the
appropriate Soil and Water Conservation District . In the event
the activities of the Lessee in this regard shall be found to be
unsatisfactory to the Director, the Director shall notify the
Lessee and the Lessee shall be required, within sixty (60) days
of the notice, to cure the fault and submit proof satisfactory to
the Director.
43 . Boundary fences . The Lessee shall, prior to
animal occupation, install stock proof fence along the entire
outside perimeter of the land under lease where the fencing does
not now exist, regardless of whether the Lessee has an interest
or ownership in adjoining lands, and shall maintain these fences
in good order and condition throughout the term of this lease and
those now existing on the premises . The Lessee shall, wholly at
its own cost and expense, stake out the boundaries wherever
necessary in conformance with the legal descriptions provided in
this lease. The cost of installing and maintaining the boundary
fences shall be in accordance with Part II of chapter 664 ,
Hawaii Revised Statutes, which provides generally for the
sharing of the costs by adjacent landowners or Lessees for the
purpose of confining animals of each adjacent owner or Lessee
unless the adjacent land is owned and not leased by the
government .
44 . Exclusion of animals from forest lands . The
Lessee shall at all times during the lease term keep its cattle,
horses, and other grazing animals out of any forest reserve, if
any, adjacent to the premises and shall take all reasonable
precautions to prevent forest fires, and in the event fires
occur, it shall use all reasonable means at its command or under
its control to have the fires speedily extinguished.
45 . Withdrawal . The Lessor shall have the right to
withdraw the premises, or any portion, at any time during the
term of this lease upon giving reasonable notice and without
14
compensation, except as otherwise provided in the lease, for
public uses or purposes, including residential, commercial,
industrial, or resort developments, for constructing new roads or
extensions, or changes in line or grade of existing roads, for
rights of way and easements of all kinds, and shall be subject to
the right of the Director to remove soil, rock or gravel as may
be necessary for the construction of roads and rights of way
within or without the premises; provided, that upon the
withdrawal, or upon the taking which causes any portion of the
land originally leased to become unusable for the specific use
or uses for which it was leased, the rent shall be reduced in
proportion to the value of the land withdrawn or made unusable,
and if any permanent improvement constructed upon the land by the
Lessee is destroyed or made unusable in the process of the
withdrawal or taking, the proportionate value shall be paid based
upon the unexpired term of the lease; provided, further, that no
withdrawal or taking shall be had of those portions of the land
harvested, unless the Director pays to the Lessee the value of
those crops .
46 . Clearances . The Lessee shall be responsible for
obtaining all necessary federal, state or county clearances,
permits or other authorizations .
47 . Restriction on residential use . The premises, or
any portion, shall not be utilized for residential purposes . The
construction or placement of any structure on the premises for
residential purposes is strictly prohibited.
48 . Hunting. No hunting shall be allowed on the
premises during the term of this lease.
49 . Audit and examination of books, etc . The Lessee
shall, at all reasonable times, permit the Lessor or its
authorized agents and employees, upon reasonable notice given by
the Lessor, to audit, examine and to make copies of all books,
accounts, records and receipts of the Lessee concerning its
operations under this lease.
50 . Commercial operations . The Lessee, its employees,
customers, guests, agents or invitees shall not display or offer
for sale or sell any article (s) or merchandise whatsoever within
the premises without the prior written approval of the Lessor and
upon such terms and conditions established by the Lessor. Except
as otherwise provided in this lease, no commercial activities
whatsoever shall be allowed within the premises without the prior
written approval of the Lessor.
15
51 . Abandoned vehicles . Lessee shall take all steps
necessary to prevent the placing or storing of abandoned vehicles
within the premises . Any and all abandoned vehicles within the
premises shall be removed by Lessee at Lessee ' s cost and expense .
52 . Environmental regulations . Lessee shall comply
with all applicable federal, state and county environmental
impact regulations, including but not limited to chapter 343 ,
Hawaii Revised Statutes, as amended, and regulations governing
historic preservation.
53 . Fire and extended coverage insurance. The Lessee,
at its cost and expense, shall procure and maintain at all times
during the term of this lease, fire and extended coverage
insurance with an insurance company(s) licensed to do business in
the State of Hawaii, insuring all buildings and improvements
erected on the leased land in the joint names of Lessor and
Lessee, with the standard mortgage clause for Mortgagee, if any,
as their interest may appear, in an amount equal to the
replacement cost of the facilities, and shall pay the premiums at
the time and place required under the policy.
In the event of total or partial loss, any proceeds
derived from the policy(s) shall be used by the Lessee for
rebuilding, repairing, or otherwise reinstating the same
buildings in a good and substantial manner according to plans and
specifications approved in writing by the Director; provided,
however, that with the approval of the Lessor, the Lessee may
instead surrender this lease and pay the balance owing on any
mortgage. Upon surrender of the lease, the Lessee shall then
receive that portion of the insurance proceeds which the
unexpired term of this lease, at the time of the loss or damage,
bears to the whole of the term, with the Lessor to be paid the
balance of the proceeds .
The Lessee shall furnish the Lessor on or before the
commencement date of this lease, a certificate showing the
policy(s) to be in full force and effect and shall furnish a like
certificate upon each renewal of the policy(s) . Each
certificate (s) shall contain or be accompanied by an assurance of
the insurer not to cancel the insurance, limit the scope of the
coverage, or fail or refuse to renew the policy(s) until after
thirty (30) days written notice has been given to the Lessor.
All rights or claims of subrogation against the County,
its officers, employees, and agents are waived.
54 . Removal of trash. The Lessee shall be responsible
16
for the removal of all trash upon the premises, whether or not
placed on the premises by Lessee or with or without Lessee' s
consent, and whether or not placed on the premises prior to the
term of this lease .
55 . Phase I environmental site assessment . Prior to
termination or revocation of the subject lease or the assignment
of the leasehold, Lessee shall conduct a Phase I environmental
site assessment and conduct a complete abatement and disposal, if
necessary, satisfactory to the standards required by the Federal
Environmental Protection Agency, the Department of Health, and
the Department of Land and Natural Resources . Failure to comply
with the provisions of this paragraph shall not extend the term
of this lease or automatically prevent termination or revocation
of the lease . The Director, at its sole option, may refuse to
approve termination, revocation, or assignment unless this
evaluation and abatement provision has been performed. In
addition or in the alternative, the Director may, at its sole
option if Lessee does not do so, arrange for performance of the
provisions of this paragraph, all costs and expenses of such
performance to be charged to and paid by Lessee.
56 . Survey and boundary stakeout . The Lessee shall be
solely responsible for any survey and boundary stakeout of the
leased premises .
57 . Improvements . The Lessee shall, at its own cost
and expense, within Five (5)years as of the date of lease
commencement, complete the construction of Stock water systems,
boundary fencing (boundary fencing must be completed prior to
animal introduction) , barn/animal shelters, at a cost of not less
than Seventy Thousand and NO/100 DOLLARS ($70, 000 . 00) ( "Building
Requirement" ) , in accordance with plans and specifications
submitted by the Lessee to and approved in writing by the
Director and in full compliance with all applicable laws,
ordinances, rules and regulations .
58 . Bond, improvement. The Lessee, upon submittal and
written approval of the construction plan shall within sixty (60)
days procure and deposit with the Lessor a surety bond,
acceptable to the Director, in an amount equal to the cost of
construction of the Building Requirement, but in no event shall
the amount be less than Seventy Thousand and NO/100 DOLLARS
($70, 000 . 00) , which bond shall name the County as obligee,
conditioned upon the faithful observance and performance of the
Building Requirement contained in this lease, the completion of
the Building Requirement on or before the specified date of
completion free from all liens and claims, and that the Lessee
17
shall indemnify, defend, and hold the County harmless from all
liens, suits, actions or damages arising out of, caused from or
attributable to the work performed pursuant to the Building
Requirement .
59 . Fire and extended coverage insurance . The Lessee,
at its cost and expense, shall procure and maintain at all times
during the term of this lease, fire and extended coverage
insurance with an insurance company(s) licensed to do business in
the State of Hawaii, insuring all buildings and improvements
erected on the leased land in the joint names of Lessor and
Lessee, with the standard mortgage clause for Mortgagee, if any,
as their interest may appear, in an amount equal to the
replacement cost of the facilities, and shall pay the premiums at
the time and place required under the policy.
In the event of total or partial loss, any proceeds
derived from the policy(s) shall be used by the Lessee for
rebuilding, repairing, or otherwise reinstating the same
buildings in a good and substantial manner according to plans and
specifications approved in writing by the Director; provided,
however, that with the approval of the Lessor, the Lessee may
instead surrender this lease and pay the balance owing on any
mortgage. Upon surrender of the lease, the Lessee shall then
receive that portion of the insurance proceeds which the
unexpired term of this lease, at the time of the loss or damage,
bears to the whole of the term, with the Lessor to be paid the
balance of the proceeds .
The Lessee shall furnish the Lessor on or before the
commencement date of this lease, a certificate showing the
policy(s) to be in full force and effect and shall furnish a like
certificate upon each renewal of the policy(s) . Each
certificate (s) shall contain or be accompanied by an assurance of
the insurer not to cancel the insurance, limit the scope of the
coverage, or fail or refuse to renew the policy(s) until after
thirty (30) days written notice has been given to the Lessor.
All rights or claims of subrogation against the County,
its officers, employees, and agents are waived.
DEFINITIONS
1 . The use of any gender shall include all genders,
and if there is more than one lessee, then all words used in the
18
singular shall extend to and include the plural .
2 . As used in this lease, unless clearly repugnant to
the context :
(a) "Director" means the Director of Finance of the
County of Hawai ' i or her designee .
(b) "Lessee" means and includes the Lessee, its
officers, employees, invitees, successors or permitted assigns .
(c) "Holder of record of a security interest" means a
person who is the owner or possessor of a security interest in
the land leased and who has filed with the Department of Land and
Natural Resources and with the Bureau of Conveyances of the State
of Hawaii a copy of this interest.
(d) "Premises" means the land leased and all buildings
and improvements now or hereinafter constructed and installed on
the land leased.
(e) "Waste" includes, but is not limited to, (1)
permitting the premises, or any portion, to become unduly eroded
or failure to take proper precautions or make reasonable effort
to prevent or correct the erosion; (2) permitting a substantial
increase in noxious weeds in uncultivated portions of the
premises; and (3) failure to employ all of the usable portions of
the premises .
(f) "Days" shall mean calendar days, unless otherwise
specified.
(g) "Noxious weed" means any plant species which is
injurious, harmful, or deleterious or which may be likely to
become so to the agricultural, horticultural, and livestock
industries of the State, as determined by the Department of
Agriculture of the State of Hawai ' i by administrative rules .
(h) "Pasture" means the conduct of livestock operation
consisting of keeping cattle, primarily, and others, in a minor
role, such as horses and sheep where animals graze the land for
feed produced thereon. Compatible uses as woodland management,
wildlife management and the cultivation of feed crops to be used
strictly within the premises is permitted. The operation of
commercial activities such as feedlots (excepting a private
feedlot designed to feed the Lessee ' s own cattle) , dairy milking
parlors, or boarding of horses is not permitted.
19
(i) "Timber" means any trees standing within
designated areas of the leased land which are covered by a
woodland management plan.
(j ) "Diversified agriculture" means the cultivation
and harvesting of truck, orchard, flower or nursery crops and
shall not include or embrace the cultivation and harvesting of
grasses or forage crops .
(k) "General agriculture" means the cultivation and
harvesting of truck, orchard, flower or nursery crops and the
grazing and pasturing of animals other than pigs .
(1) "Intensive agriculture" means the cultivation of
truck, orchard, flower and foliage crops and any other
agricultural use allowed under the county zoning excluding
pasture, raising of animals, and raising of poultry.
IN WITNESS WHEREOF, the COUNTY OF HAWAII, by its
Mayor, has caused the seal of the County of Hawaii to be
hereunto affixed and the parties hereto have caused these
presents to be executed the day, month and year first above
written.
COUNTY OF HAWAII
By
William P. Kenoi
Its Mayor
LESSOR
Abba' s Garden LLC
By
APPROVED Name: Loreli Eberhardt
Title : ABBA' s Garden LLC. Owner
LESSEE
NANCY CRAWFORD
Director of Finance
APPROVED AS TO FORM:
CRAIG T. MASUDA 20
Deputy Corporation Counsel
Dated:
STATE OF HAWAII )
) SS.
COUNTY OF HAWAII )
On this day of , 2013, before me personally appeared
, to me personally, who being by me duly sworn, did say that he/she is the
of Abba's Garden LLC, and that the seal affixed to the instrument is the
corporate seal of the corporation, and that the instrument was signed and sealed 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.
Signature
Print or Type Name
Notary Public, State of Hawai`i
My Commission Expires:
NOTARY CERTIFICATION
Doc.
Date: No. of Pages:
Notary Circuit
Name:
Doc.
Description:
Notary Signature Date
STATE OF HAWAII )
21
) SS.
COUNTY OF HAWAII )
On this day of , 2013 before me personally appeared
WILLIAM P. KENOI, to me personally known, who, being by me duly sworn, did say that he 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 Hawai`i,the
foregoing instrument was signed and sealed on behalf of the County of Hawai`i by authority
given to said Mayor of the County of Hawai`i by Sections 5-1.3 and 13-13 of the County Charter,
County of Hawai`i (2010), as amended, and said WILLIAM P. KENOI acknowledged said
instrument to be the free act and deed of said County of Hawai`i.
Signature
Print or Type Name
Notary Public, State of Hawai`i
My Commission Expires:
NOTARY CERTIFICATION
Doc.
Date: No. of Pages:
Notary Circuit
Name:
Doc.
Description:
Notary Signature Date
22
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