HomeMy WebLinkAboutCOM 0546.001 2002-2004 MiY or NI
Harry Kim ~o;'.• • Patricia G. Engelhard
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Mayor i-'"' Director
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q~, Pamela N. Mizuno
oi'M~"' Deputy Director
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DEPARTMENT OF PARKS AND RECREATION ~ m^
101 Pauahi Street, Saite 6 • Hilo, Hawa~ i 96720 y -ri
(808) 961-8311 • Fax (808) 961-8411 ~
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Memorandum ~ ~ ~ ~ _
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To: Constance Kiriu ~J' •
Legislative Auditor _
From: Pam Mizuno ~j~~~~ c~
Parks and Recr
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Date: March 10, 2004
Re: Draft Lease Agreement for Hawaii Island Veternas Memorial, Inc.
Please replace the draft that was previously sent with this newly revised version. The
addition of items 12 and 14, and change to item 24 was made to comply with Ordinance
No. 03-156.
Should you have any questions, please call me at 961-8542.
Comm. No. S 4~ .I
Ref. To:.~,~~C.~
Ref. Date ~IAK
TABLE OF CONTENTS
Lease for Hawaii Island Veterans Memorial, Inc.
PARAGRAPH PAGE
A. The Lessor Covenants and Agrees with the Lessee:
1. Quiet Enjoyment 3
2. Term 3-4
3. Rent 4
B. The Lessee Covenants and Agrees with the Lessor:
1. Utility Services 4
2. Covenant Against Discrimination 4
3. Sanitation, Etc. ~ 4
4. Waste and Unlawful, hnproper, or Offensive Use of Premises 4
5. Compliance with Laws, Etc. 4-5
6. Inspection of Premises 5
7. Improvements 5
8. Liens 5
9. Assignments, Etc. 5
10. Mortgage 6
11. Indemnity 6
12. Liability Insurance ~ 7
13. Fire Insurance ~-8
14. Hazardous Materials 8-9
15. Maintenance 9
16. Written Consent Required for Repairs and Renovations 9
17. Costs of Litigation 9-10
18. Entry by Lessor 10
19. Contracts for Construction 10
20. Condition of Premises 10-11
21. Notice 11
22. Use 11
23. Property Tax 11-12
24. Records and Reports 12
25. Tax-Exempt, Non-Profit Status 12
26. Personal Property 12
27. Personnel 12
28. Surrender 12-13
29. Non-Waiver 13
30. Hold-over 13
31. Abandonment 13
32. Destruction, Etc. 13
33. Condemnation 13-14
34. Breach and Termination 14
35. Headings 14
36. Complete Agreement 14
37. Lessee Not an Agent of Lessor 14
38. Forum Selection 14-15
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THIS LEASE AGREEMENT, made this day of ,
2004 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 LESSOR, and HAWAII ISLAND VETERANS MEMORIAL,
INC., community based, non-profit veterans organization, by its President, Francis Pacheco,
whose mailing address is 66 Wainaku Avenue #5, Hilo, Hawaii 96720, hereinafter referred to
as LESSEE;
WITNESSETH:
That the Lessor does hereby lease unto the Lessee the premises described as the area
along the north corner of the intersection of Kawili and Kapiolani Streets, Tax Map Key No.
(3)2-4-57:Por. Ol, 5.615 acres, and more particularly described in Exhibit "A" attached hereto
and made a part hereof. To have and to hold the demised premises during the period April 1,
2004 through March 31, 2009.
A. THE LESSOR COVENANTS AND AGREES WITH THE LESSEE:
1. Quiet EnioVment. That the Lessor hereby covenants and agrees with the Lessee that
upon the observance and performance of the covenants, terms, and conditions hereof on
the part of the Lessee to be observed and performed, the Lessee shall and may have, hold,
possess, and enjoy the demised premises for the term hereby demised, without hindrance
or interruption by the Lessor or any other person or persons lawfully claiming by,
through, and under it, except for the Lessor's right of entry to make repairs, improvement,
and inspections as set forth herein.
2. Term. The term of said lease shall be for a period of 5 years with renewal options of 5
year increments, unless sooner terminated by either the Lessor or Lessee giving to the
other at least thirty (30) days previous notice in writing of intention to terminate this
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lease. On site construction shall begin prior to February 28, 2008, which is within the
first 4 years of this agreement.
3. Rent. The Lessee hereby covenants and agrees to pay the sum of $1.00 per year for the
term of this lease.
B. THE LESSEE COVENANTS AND AGREES WITH THE LESSOR:
1. Utility Services. That the Lessee shall pay when due, all utility charges, duties, and rates
of every description, including water, sewer, gas, electricity, 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 may be 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, handicap,
national origin, or familial status.
3. Sanitation, Etc. That the Lessee shall keep the demised premises in a strictly safe, clean,
sanitary and orderly condition, in compliance with all applicable standards of the county,
state, and federal governments.
4. Waste and Unlawful, Improper, or Offensive Use of Premises. That the Lessee shall
not commit, suffer, or permit to be committed any waste, nuisance, strip, or unlawful,
improper, or offensive use of the demised premises, or any part thereof, 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 said premises.
5. Compliance with Laws, Etc. That the Lessee 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 Lessee's
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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 standazds of quality generally acceptable in the field of
Lessee's activities.
6. Insaection of Premises. That the Lessee will permit the Lessor 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 Lessor or
its agents, except that in case of emergency, no notice need be given for entry.
7. Improvements. That the Lessee shall not at any time during said term construct, place,
or install on said premises any building, structure, or improvement of any kind and
description whatsoever, except with prior written approval of the Lessor and upon such
conditions as the Lessor may impose, unless otherwise provided herein.
8. Liens. That the Lessee will not commit or suffer any act or neglect whereby the demised
premises or any improvements thereon or the estate of the Lessee in the same shall
become subject to any attachment, lien, chazge, or encumbrance whatsoever, except as
hereinafter provided, and shall indemnify and hold harmless the Lessor from and against
all attachments, liens, charges, and encumbrances and all expenses resulting therefrom.
9. Assignments, Etc. That the Lessee 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 20 herein and shall not transfer or assign or sublease this lease or any interest
herein, either voluntarily or by operation of law, and any transfer or assignment so made
shall be null and void. Lessor declazes that it enters into this lease on reliance on the
specific identity of the Lessee.
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10. Mortaa¢e. That, except as provided herein, the Lessee 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 Lessor and any such mortgage, hypothecation, or
pledge without such approval shall be null and void.
11. Indemnity. That the Lessee will indemnify, defend, and hold the Lessor and the State of
Hawaii 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 Lessee to
maintain the premises in a safe condition, or arising from the Lessor's supervision, if
any, of the Lessee's activities or the premises, or arising from the Lessor's inspection,
if any, of the Lessee's activities or the premises, including any negligence in the
Lessor's supervision, if any, or inspection, if any, of the Lessee's activities or the
premises, and will reimburse the Lessor 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, including actions against the Lessor
brought by the Federal government for noncompliance with Federal grant
requirements caused by the Lessee's failure to comply with the terms of this lease.
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12. Liability Insurance. That the Lessee 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 Lessor, 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 Lessee. The Lessee shall furnish the Lessor 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 Lessor with 30 days minimum notice, 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 Lessee shall cause the Lessor to be named as an
"additional insured" on the above-mentioned comprehensive liability insurance policy.
The policy shall have a deductible for not more than $500.00 per claim.
13. Fire Insurance. That upon initiating construction of improvements at the site, the Lessee
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 Lessee shall cause the County to be named as an "additional insured" on
the above-mentioned damage or destruction insurance policy. In the event new structures
are appraised in the future, the Lessee shall obtain at its own expense and maintain,
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during the period of this lease sufficient insurance policy to reflect replacement value of
these structures.
The Lessee 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
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.
14. 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 the County. Consent may
be withheld at the County'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 the County'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 the County hannless 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 right-of--way.
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"Hazardous materials" shall mean any pollutant, toxic substance, hazazdous 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.
15. Maintenance. That the Lessee shall keep the premises in good repair (wear and teaz
resulting from the reasonable use of the same excepted). The Lessee shall, at its own
expense, perform all necessary maintenance of the premises. The Lessee 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 nonnal weathering.
16. Written Consent Required for Repairs and Renovations. That prior to commencing
any repairs or renovations, the Lessee shall notify the Lessor and secure the Lessor's
written consent, which shall not be unreasonably withheld. The Lessor may require the
Lessee to produce plans showing the work to be done. The Lessor may inspect any
repairs and renovations and require that it be done in conformance with good and
accepted construction practice and in compliance with applicable laws, codes, and
regulations.
17. Costs of Litigation. That in case the Lessor shall be made a party to any litigation
commenced by or against the Lessee (other than condemnation proceedings), the Lessee
(other than condemnation proceedings), the Lessee shall and will pay all costs and
expenses incurred by or imposed on the Lessor; furthermore, the Lessee shall and will pay
all costs and expenses which may be incurred by or paid by the Lessor in enforcing the
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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.
18. Entry by Lessor. That the Lessee shall permit the Lessor, its agents and invitees, or
independent contractors hired by the Lessor, to enter on 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, improvements, or alterations
necessary or desirable for the safety or the preservation of the premises, upon the Lessor
or its agent giving 24 hours' notice of entry, except that in case of emergency, no notice
need be given for entry. That the Lessee shall cooperate with the Lessor to the fullest
practical extent in permitting the Lessor to make such inspections, alterations, repairs,
and improvements. That any temporary diminution in or interference with the use of the
premises to the Lessee occasioned by such inspections, alterations, repairs, and
improvements shall not be a breach of this lease, and shall not result in any liability on
the Lessor. Nothing in this paragraph shall be construed as requiring the Lessor to make
any inspections, repairs, improvements, or alterations to the premises.
19. Contracts for Construction. That the Lessee 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 Lessor. The Lessor's approval maybe
conditioned on the Lessee 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.
20. Condition of Premises. That the Lessee has examined and knows the condition of the
premises, that the premises are leased as they now are, that the Lessor expressly disclaims
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any warranty of fitness for any particular purpose, and that the Lessor shall not be
responsible for the present or future condition thereof. The Lessor shall not be required
to perforrn any repairs, alterations, or improvements whatsoever during the term of this
]ease.
21. Notice. That in the event of any material change in the condition of the premises,
whether through the acts or omissions of the Lessee or otherwise, or any defect
discovered in the premises, the Lessee shall immediately notify Parks and Recreation,
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 Lessor to remedy or repair any such changes.
22. Use. That the Lessee shall use the premises to construct a combined veterans center,
veterans housing, and other related purposes, by obtaining grants, donations, and other
forms of funding. The facility will serve all Veterans and Veterans Organizations that
will include Veterans Affairs, Administrative Offices for counseling and re-adjustment
assistance, Community Based Out Patient Clinic, Transportation Services, and the State
Office of Veterans Services. The Lessee shall fund, construct, maintain, and operate the
Combined Veterans Center as described in Exhibit "B" of their letter dated 6/23/01,
attached hereto and made a part hereof, as Exhibit "B".
23. Property Tax. That the Lessee 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
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and payable upon or on account of each and every part and parcel of land leased by the
lessee.
24. Records and Resorts. That the Lessee shall establish and maintain records of intake,
discharge, services, and other documentation necessary to show compliance with
paragraph 22 above, including but not limited to the financial status of clients served, and
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. The records shall be compiled and an annual summary report shall be
submitted to the Lessor. All records refereed to in this paragraph shall be available for
inspection by the Lessor and its agents on reasonable notice, provided that the Lessee and
Lessor shall agree on measures necessary to protect the privacy and individual identity of
clients receiving services from the Lessee.
25. Tax-Exempt, Non-Profit Status. That the Lessee has and shall maintain status as a tax-
exempt, non-profit organization as certified by the Internal Revenue Service. The Lessor
may require the Lessee to provide evidence of such certification. That the Lessee has,
and shall continue to have during the lease term, bylaws or policies which describe the
manner in which business is conducted.
26. Personal Property. That the Lessee shall, at its own expense, provide all equipment and
all other property of any nature necessary for the uses described in paragraph 20 above.
27. Personnel. That the Lessee shall, at its own expense, provide all necessary staff for the
provision of the services described in paragraph 20 above.
28. Surrender. That the Lessee 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 Lessor, together with all buildings and improvements of whatever name or nature,
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now on or hereafter erected or placed upon the same, in good order and condition,
reasonable wear and tear excepted, and that Lessee shall remove, at no expense to the
Lessor, all of the Lessee's personal property at the termination of this lease.
29. Non-Waiver. That the failure of the Lessor 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 Lessor's right thereafter to
enforce any such term, agreement, or condition, but the same shall continue in full force
and effect.
30. Holdover. That if Lessee shall hold over, after expiration of the term hereby created,
with consent of the Lessor, it shall be deemed a renewal of this lease and of all terms,
covenants, conditions, and agreements herein contained, for the period of thirty days.
31. Abandonment. That if the Lessee abandons the premises, its right to possession shall
cease and this Lease shall terminate, without prejudice to any other rights of the Lessor.
"Abandonment" shall include, but not be limited fo, Lessee's failure to use the premises
for the purposes and uses listed in paragraph 20 herein.
32. Destruction. 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 Lessee or the Lessor upon
notice in writing to the other party, and the Lessee shall be released from further
obligation hereunder. Notwithstanding any insurance on the premises, Lessee shall not be
required to rebuild the premises should they be destroyed or become untenantable.
33. 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 Lessor, and no part of such award shall belong to the Lessee. If the entire
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premises are taken, or if so much of the premises aze taken that the premises become
unsuitable for the uses specified in paragraph 20, this Lease shall terminate, and the
Lessee shall be released from further obligation hereunder.
34. Breach and Termination. That if the Lessee 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 Lessee's property for the
benefit of creditors, or if the Lessee 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 Lessor 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.
35. Headin¢s. That the marginal headings throughout this lease are for the convenience of
the Lessor and Lessee and are not intended to construe the intent or meaning of any of the
provisions thereof.
36. Complete A¢reement. 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.
37. Lessee Not an Agent of Lessor. Nothing herein contained is intended or should be
construed in any way establishing the relationship of copartners between Lessee and
Lessor, or as constituting the Lessee as the agent, employee, or representative of the
Lessor for any purpose whatsoever.
38. 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
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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
HAWAII ISLAND VETERANS MEMORIAL,
INC.
Its President: FRANCIS PACHECO
RECOMMEND APPROVAL: APPROVED AS TO FORM:
PATRICIA G. ENGELHARD Deputy Corporation Counsel
Director, Department of Parks and Recreation County of Hawaii
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STATE OF HAWAII ) .
SS:
COUNTY OF HAWAII )
On this day of , 2004, 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 2004, 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:
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