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HomeMy WebLinkAboutCOM 0604.001 2000-2002 J~~V Os M~bg. Harry Kim William Takaba ,~V ilik, Mnyor Director ea Nancy E. Crawford _ ` ~r••1 ~ ~•p` Deputy Director ,P'i OR •H8`~ COL1I1~3' Of ~~W~11 Finance Department 25 Aupuni Street, Room l 18 • Hilo, Hawaii 96720 (808)961-8234 • Fax (808)961-8248 May 13, 2002 Honorable James Arakaki, Chairperson and Members of the County Council Hawaii County Council ~ 25 Aupuni Street Hilo, Hawaii 96720 Re: iVeoo+e draft e~f East Hawaii Cultural Center lease ~:a Enclosed is a more current draft of the Last Hawaii Cultural Center lease which the County will be negotiating with the Last Hawaii Cultural Council. This draft replaces the copy that was submitted to Council as an attachment to Communication 604, which transmitted Resolution 207-02, RESOLUTION AUTF-fORIZING THE DIRECTOR OF FINANCE TO NEGOTIATE A LEASE OF THE EAST NAWAI `I CULTURAL CENTER TO THE EAST NAWAI `I CULTURAL COUNCIL. This resolution appears on the May 14, 2002 agenda of the Finance Committee. We apologize for any inconvenience that this change may cause. Should you have any questions, please feel free to call me. Thank you very much. William Ta aba Director of Finance Fife s~'€a• . Ref. ~`o: n~~ E~aST HA1N~11 ~11L~'IJFdAL. CENl`EI~ LEs4SE ~A~LE ~F C®IV1°EIVTS ...PAGE PARAGRAPH ith the reel w A nd a is an n ve Co oun g C e Th A. tY <?`:; 1. Quiet Enjoyment -5 4 Term 2. <°5 3. Rent is and A reel eve€~:~~a~a~~'~::>::::>::»::::::>:<:::>:::::>::>:.:. B. The EHCC Covenan g : . 1. Utility Services 5 5 2. Covenant Against Discri~{ion . 5 3. Sanitation, Etc. ; 5 4. Waste and Unlaw;~'~~~:;':~~; ~s~;:emises 6 5. ;I~s~~~~ a?vith Laws, :~>:::>::::>:<::<::«:»::>::>::>::::>::.. 6 ~"f£:yY~ 6 `7. Improvem 6 s ien 8. L 6-7 A~gnments, Etc. . 7 12. Liability Insurance ~-g 13. Fire Insurance 8-9 14. Maintenance 9 15. Written Consent Required for Repairs and Renovations 9 16. Costs of Litigation 9 17. Entry by County 10 18. Contracts for Construction 10 19. Condition of Premises 10-11 20. Notice 11 21. Use 11 22. Property Tax 11 23. Records 12 24. Tax-Exempt, Non-Profit Status 12 25. Personal Property 12 26. Personnel 12 27. Surrender 13 28. Non-Waiver 13 29. Holdover 13 30. Abandonment 13 31. Destruction, Etc. 13 32. Condemnation 14 33. Breach and Termination 14 2 34.1-Ieadings 14 35. Complete Agreement 14 36. EHCC Not an Agent of County 14-15 37. Forum Selection 15 3 EAST HAWAII CULTURAL CENTER LEASE This lease, made this day of 2002 by and between the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii, by Harry Kim, its Mayor, whose mailing address is 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter referred to as the County, and the EAST HAWAII CULTURAL COUNCIL, a Hawaii non-profit corporation, whose mailing address is P.O. Box 1312, Hilo, Hawaii 96720, hereinafter referred to as the EHCC. WITNESSETII: That the County does hereby lease unto the EHCC the premises described as the East Hawaii Cultural Center, located at 141 Kalakaua Street, Hilo, Hawaii, Tax Map Key: 2-3-06:04. To have and to hold the demised premises during the period July 1, 2002 through June 30, 2012. A. TIIE COUNTY COVENANTS AND AGREES WITH TIIE EHCC: 1. oast EnioYHnent. That the County hereby covenants and agrees with the EHCC that upon the observance and performance of the covenants, terms, and conditions hereof on the part of the EHCC to be observed and performed, the EHCC shall and may have, hold, possess, and enjoy the demised premises for the term hereby demised, without hindrance or interruption by the County or any other person or persons lawfully claiming by, through, and under it, except for the County's right of entry to conduct inspections as set forth herein. 2. Terrn. The term of said lease shall be for a period of 10 years, with renewal options of two 5 year periods, effective July 1, 2002, provided that the lease maybe terminated at any time by 4 agreement between the lessor and the lessee; provided further, that the lessor may terminate the lease upon ninety (90) days previous notice in writing where it is determined that the lessee has failed to perform according to the terms, conditions, provisions, covenants, and agreements contained in said lease. Nothing herein shall prevent the undersigned parties from mutually modifying this agreement in writing before the expiration of the ten (10) year period if such modification is desirable for funding or other purposes. 3. Item. The EHCC hereby covenants and agrees to pay the sum of $1.00 per year for the term of this lease. B. THE EHCC COVENANTS AND AGREES WITH THE COUNTY: 1. Utility Services. That the EHCC shall pay when due, all utility charges, duties, and rates of every description, including water, sewer, gas, electricity, telecommunication, elevator maintenance, refuse collection, or any other charges, pertaining to said demised premises, or any part thereof, or any improvements thereon. 2. Covenant Against Discrimination. That, except as maybe provided in this lease or by law, the use and enjoyment of the premises shall not be in support of any policy which discriminates against anyone based upon race, creed, color, religion, sex, disability, national origin, or familial status. 3. Sanitation. Etc. That the EHCC shall keep the demised premises in a safe, clean, sanitary and orderly condition, in compliance with all applicable standards of the county, state, and federal governments. Waste and Unladvful Use of Premises. That the EHCC shall not commit, suffer, or permit to be committed any waste, nuisance, strip, or unlawful use of the demised premises, or any part thereof. 5 . 5. Compliance with Laws, Etc. That the EHCC shall comply with all of the requirements of all county, state, and federal authorities and observe all county ordinances and state and federal statutes, pertaining to the said premises, and pertaining to the EHCC's activities, now in force or which may hereinafter be in force, and comply with all applicable licensing requirements of the state and federal governments, and with all applicable accreditation and other standards of quality generally acceptable in the field of EHCC's activities. 6. Inspection of Premises. That the EHCC will permit the County and its agents, at all reasonable times during the said term, to enter the demised premises and examine the state of repair and condition thereof, after the giving of 24 hours notice by the County or its agents, except that in case of emergency, no notice need be given for entry. 7. Improvements. That the EHCC shall, no later than six (6) years from the effective date of this lease, repair, renovate, or reconstruct all existing buildings to comply with building code, health, and accessibility requirements at its own expense. 8. Liens. That the EHCC will not commit or suffer any act or neglect whereby the demised premises or any improvements thereon or the estate of the EHCC in the same shall become subject to any attachment, lien, charge, or encumbrance whatsoever, except as hereinafter provided, and shall indemnify and hold harmless the County from and against all attachments, liens, charges, and encumbrances and all expenses resulting therefrom. 9. Assignments, Etc. That the EHCC shall not transfer, assign, or sublease the said premises or any portion thereof, nor permit any other person to occupy or use the said premises or any portion thereof except in furtherance of the uses expressly permitted in paragraph 21 herein and shall not transfer or assign or sublease this lease or any interest herein, either voluntarily 6 or by operation of law, and any transfer or assignment so made shall be null and void. County declares that it enters into this lease on reliance on the specific identity of the EHCC. 10. lO~Iort~a~e. That, except as provided herein, the EHCC shall not mortgage, hypothecate, or pledge the said premises or any portion thereof or this lease or any interest therein without the prior written approval of the County and any such mortgage, hypothecation, or pledge without such approval shall be null and void. 11. IndeYnnity. That the EHCC will indemnify, defend, and hold the County harmless (a) from and against any claim or demand by third persons for loss, liability, or damage, including claims for property damage, personal injury, or wrongful death, arising out of any accident on the demised premises and sidewalks and roadways adjacent thereto or occasioned by any act or nuisance made or suffered on the premises, or by any fire thereon or growing out of or caused by any failure on the part of the EHCC to maintain the premises in a safe condition, or arising from the County's supervision, if any, of the EHCC's activities or the premises, or arising from the County's inspection, if any, of the EHCC's activities or the premises, including any negligence in the County's supervision, if any, or inspection, if any, of the EHCC's activities or the premises, and will reimburse the County for all costs and expenses in connection with the defense of such claims; (b) from and against all actions, suits, damages, and claims by whomsoever brought or made by reason of the non-observance or non-performance of any of the terms, covenants, and conditions herein or the rules, regulations, ordinances, and laws of the federal, state, municipal, or county governments. 12. Liabil~ Insurance. That the EHCC shall procure, at its own cost and expense, and maintain during the entire period of this lease, with an insurance company or companies acceptable to the County, a policy of comprehensive liability insurance, with minimum amounts of $1,000,000.00 per occurrence for bodily injury and property damage, insuring against all claims for bodily injury, death, and property damage; that said policy or policies shall cover the entire premises, including all buildings, improvements and grounds, and all roadways or sidewalks on or adjacent to the demised premises in the control or use of the EHCC. The EHCC shall furnish the County with a certificate showing such policy to be initially in force and shall furnish a like certificate upon each renewal of such policy, each such certificate to contain or be accompanied by an assurance of the insurer to notify the County of any intention to cancel any such policy under this lease as set forth herein or limit the amount of its liability under this lease. The EHCC shall cause the County to be named as an "additional insured" on the above-mentioned comprehensive liability insurance policy. The policy shall have a deductible of not more than $500.00 per claim. 13. Fire Iaasuraaace. That the EHCC shall procure, at its own expense, and maintain, during the entire period of this lease with an insurance company or companies acceptable to the County, a policy of insurance insuring against damage or destruction of the premises due to fire, vandalism, or malicious mischief, in the minimum amount of $350,000.00, and a maximum deductible of $500.00. The EHCC shall cause the County to be named as an "additional insured" on the above-mentioned damage or destruction insurance policy. In the event, existing or new structures are appraised in the future, the EHCC shall obtain at its own expense and maintain, during the period of this lease sufficient insurance policy to reflect replacement value of these structures. The EHCC shall furnish the County with certificate showing such policy to be initially in force and shall furnish a like certificate upon each renewal of such policy, each such 8 certificate to contain or be accompanied by an assurance of the insurer to notify the County of any intention to cancel any such policy prior to actual cancellation. lib. Maintenance. That the EHCC shall keep the premises in good repair (wear and tear resulting from the reasonable use of the same excepted). The EHCC shall, at its own expense, perform all necessary maintenance of the premises. The EHCC shall promptly repair and correct, at its own expense, any condition or defect in the premises which creates a risk of harm to persons or property, or which exposes the premises to rapid deterioration in excess of normal weathering. 15. Written Consent Required for Repairs and Renovations. That prior to commencing any repairs, renovations, or reconstruction, the EHCC shall notify the County and secure the County's written consent, which shall not be unreasonably withheld. The County may require the EHCC to produce plans showing the work to be done. The County may inspect any repairs, renovations, or improvements and require that it be done in conformance with good and accepted construction practice and in compliance with applicable laws, codes, and regulations. 16. Costs of Litigation. That in case the County shall be made a party to any litigation commenced by or against the EHCC (other than condemnation proceedings), the EHCC if found at fault, shall and will pay all costs and expenses incurred by or imposed on the County; furthermore, the EHCC shall and will pay all costs and expenses which may be incurred by or paid by the County in enforcing the covenants and agreements of this lease, in recovering possession of the demised premises or in the collection of delinquent rental, taxes, and any and all other charges. 9 17. Entry by County. That the EHCC shall permit the County, its agents and invitees, or independent contractors hired by the County, to enter the premises or any part thereof, at all reasonable hours, for the purpose of inspecting same, including inspections related to the services provided at the premises, or making repairs, renovations, or improvements necessary or desirable for the safety or the preservation of the premises, upon the County or its agent giving 24 hours' notice of entry, except that in case of emergency, no notice need be given for entry. The EHCC shall cooperate with the County to the fullest practical extent in permitting the County to make such inspections, repairs, renovations, or improvements. That any temporary diminution in or interference with the use of the premises to the EHCC occasioned by such inspections, repairs, renovations, or improvements shall not be a breach of this lease, and shall not result in any liability on the County. Nothing in this paragraph shall be construed as requiring the County to make any inspections, repairs, renovations, or improvements to the premises. 18. Contracts for Construction. That the EHCC shall not make any contract for construction, repair, renovation, or improvement on, in, of, or to the premises, or any part thereof, or for any work to be done or materials to be furnished on or to the premises, without first obtaining the written approval of the County. The County's approval maybe conditioned on the EHCC providing adequate assurance that it has the financial ability to pay for the cost of any such contract, or to otherwise provide sufficient assurances that no mechanic's or materialman's lien maybe levied against the premises. 19. Condition of Premises. That the EHCC has examined and knows the condition of the premises, that the premises are leased as they now are, that the County expressly disclaims any warranty of fitness for any particular purpose, and that the County shall not be 10 responsible for the present or future condition thereof. The County shall not be required to perform any repairs, renovations, or improvements whatsoever during the term of this lease. 20. Notice. That in the event of any material change in the condition of the premises, whether through the acts or omissions of the EHCC or otherwise, or any defect discovered in the premises, the EHCC shall immediately notify the County of Hawaii, of the change in condition of the premises or the defect. "Material change" includes, but is not limited to, any change, which may create a risk of harm to users or occupants of the premises, or any change which exposes the premises to rapid deterioration in excess of normal weathering. Nothing in the paragraph shall be construed to imply a duty by the County to remedy or repair any such changes. 21. Use. That the EHCC shall use the premises to preserve and develop the cultural, creative, and traditional arts of the various ethnic groups that make up the population of East Hawaii and to stimulate community interest, involvement, and support of arts and culture in East Hawaii. That all fees, grants, or monies collected from the programs and activities of the EHCC shall be utilized for EHCC programs, activities, and operational costs. That if the EHCC shall at any time abandon or fail to use the premises for its intended arts and culture purpose as described herein, then the rights herein granted and the obligations herein imposed shall thereupon terminate without any action on the part of the County. 22. Property Tax. That the EHCC shall pay promptly, when due, all real property taxes, rates, assessments, impositions, duties, charges, and fines, which shall, during the term of this lease, be lawfully charged, assessed, imposed, become a lien upon, or become due and payable upon or on account of each and every part and parcel of land leased by the EHCC. 11 23. Records. That the EHCC shall establish and maintain records of intake, discharge, services, and other documentation necessary to show compliance with paragraph 21 above, including but not limited to the scope and nature of services rendered at the premises and shall maintain and preserve all required records and documents for three years after the expiration of the Lease Agreement. All records referred to in this paragraph shall be available for inspection by the County and its agents on reasonable notice, provided that the EHCC and County shall agree on measures necessary to protect the privacy and individual identity of clients receiving services from the EHCC. That the EHCC agrees to provide an annual fiscal and program report to the County by January 31 of each calendar year. 24. Tax-ExernPt, Non-Profit Status. That the EHCC has and shall maintain status as a tax- exempt, non-profit organization as certified by the Internal Revenue Service. The County shall require the EHCC to provide evidence of such certification. That the EHCC has, and shall continue to have during the lease term, a governing board whose members serve without compensation. That the EHCC has, and shall continue to have during the lease term, bylaws or policies which describe the manner in which business is conducted, including management, audit, and fiscal policies and procedures, and policies on nepotism. The County shall require the EHCC to provide evidence of such bylaws or policies. 25. Personal Pro arty. That the EHCC shall, at its own expense, provide all equipment and all other property of any nature necessary for the uses described in paragraph 21 above. 26. Personnel. That the EHCC shall, at its own expense, provide all necessary staff for the provision of the services described in paragraph 21 above. 12 27. Surrender. That the EHCC shall, and will, at the expiration or sooner termination of this lease, peaceably and quietly surrender and deliver possession of the demised premises to the County, together with all buildings and improvements of whatever name or nature, now on or hereafter erected or placed upon the same, in good order and condition, reasonable wear and tear excepted, and that EHCC shall remove, at no expense to the County, all of the EHCC's personal property at the termination of this lease. 28. Non-Waiver. That the failure of the County to insist on the strict performance of the terms, agreements, covenants, and conditions herein contained, or any of them, shall not constitute or be construed as a waiver or relinquishment of the County's right thereafter to enforce any such term, agreement, or condition, but the same shall continue in full force and effect. 29. Holdover. That if EHCC shall hold over, after expiration of the term hereby created, with consent of the County, it shall be deemed a renewal of this lease and of all terms, covenants, conditions, and agreements herein contained, for the period of 1 (one) year. 30. Abandonment. That if the EHCC abandons the premises, its right to possession shall cease and this lease shall terminate, without prejudice to any other rights of the County. "Abandonment" shall include, but not be limited to, the EHCC's failure to use the premises for the purposes and uses listed in paragraph 21 herein. 31.1)estruction~ Etc. That if, during the term of this Lease, the premises shall be substantially destroyed or become untenantable by reason of fire, the elements, or any other cause, then this Lease may be terminated by either the EHCC or the County upon notice in writing to the other party, and the EHCC shall be released from further obligation hereunder. Notwithstanding any insurance on the premises, EHCC shall not be required to rebuild the premises should they be destroyed or become untenantable. 13 32. Condemnation. That in the event that all or part of the premises be taken for public use, under the right of eminent domain, all of the award received for such taking shall belong solely to the County, and no part of such award shall belong to the EHCC. If the entire premises are taken, or if so much of the premises are taken that the premises become unsuitable for the uses specified in paragraph 21, this lease shall terminate, and the EHCC shall be released from further obligation hereunder. 33. Breaeh aaad Termination. That if the EHCC shall become bankrupt or shall abandon the said premises, or if this lease and said premises shall be attached or otherwise taken by operation of law, or if any assignment shall be made of the EHCC's property for the benefit of creditors, or if the EHCC shall fail to observe and perform any of the covenants, terms, and conditions herein contained and on its part to be observed and performed, the County may at once re-enter such premises or any part thereof, and upon or without such entry, terminate this lease without prejudice to any other remedy or right of action. 34. I~eadin~s. That the marginal headings throughout this lease are for the convenience of the County and EHCC and are not intended to construe the intent or meaning of any of the provisions thereof. 35. Complete Agreement. That this lease contains the full and complete agreement of the parties and supersedes any prior agreement between the parties, and there are no covenants, terms, agreements, or conditions or understandings, either oral or written, between the parties other than herein set forth. 36. E~ICC Not an A~eaat of County. Nothing herein contained is intended or should be construed in any way establishing the relationship of co-partners between the EHCC and the 14 County, or as constituting the EHCC as the agent, employee, or representative of the County for any purpose whatsoever. 37. Forum Selection. No action or proceeding involving this lease shall be commenced by either party except in the Circuit or District Courts of the Third Circuit, County of Hawaii, State of Hawaii; nor shall any action commenced in such court be removed or transferred to any other state or federal court. DATED: Hilo, Hawaii COUNTY OF HAWAII: Its Mayor: HARRY KIM DATED: Hilo, Hawaii EAST HAWAII CULTURAL COUNCIL Its President: RECOMMEND APPROVAL: APPROVED AS TO FORM: PATRICIA G. ENGELHARD Deputy Corporation Counsel Director, Department of Parks and Recreation County of Hawaii STATE OF HAWAII ) SS: 15 COUNTY OF HAWAII ) On this day of , 2002, before me personally appeared HARRY KIM, to me personally known, who, being by me duly sworn, did say that he 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 Hawaii by authority given to said Mayor of the County of Hawaii by Section 5-1.3(g) of the County Charter, County of Hawaii (1991), as amended; and said HARRY KIM acknowledged said instrument to be the free act and deed of said County of Hawaii. Notary Public, State of Hawaii My commission expires: STATE OF HAWAII ) SS: COUNTY OF HAWAII ) On this day of 2002, before me personally appeared , to me known to be the person described in and who executed the foregoing instrument, as of ,and acknowledged that he/she executed the same in behalf of the organization and acknowledged the instrument to be the free act and deed of the organization. Notary Public, State of Hawaii My commission expires: 16