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HomeMy WebLinkAboutCOM 0231.000 2004-2006 J+~Y os N Harry Kim 8,.':~~' ` William Takaba Mayor Director Nancy E. Crawford ? • ~ Deputy Director ~~lo~:N~,:M County of Hawaii Finance Department 25 Aupuni S[cee4 Room 118 • Hilo, Hawaii 96720 _ - (808) 961-8234 • Fax (808) 961-8248 _ April 19, 2005 Stacy K. Higa, Chairperson and Members of the Hawaii County Council Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Re: Resolution to Negotiate Lease Enclosed is a resolution authorizing the Director of Finance to negotiate a lease agreement with the Historic Hawaii Foundation for the former caretaker's cottage at Spencer Park at 'Ohai'ula Beach, South Kohala, Hawaii and located within Tax Map Key (3) 6-2-02:08. The building is currently in unusable condition and would be restored for public use if leased by the Historic Hawaii Foundation. If there are any questions, please do not hesitate to call the Department of Parks & Recreation. William Taka a Director of Finance APPROVED: C_~J"~~ Harry Kim Cpl Mayor Enc. cc: P&R «,a. 8(x057 Comm. No. 2 3 Ref. Toc~~~ FCC Hawaii County is an Equal Opportunity Provider and Employer Ref. Dote H Form B-52 7/18/91 DEPARTMENT OF FINANCE REQUEST FOR COUNCIL ACTION DEPARTMENT: PARKS & RECREATION DATE: April 18, 2005 STAFF CON'T'ACT: patricia Engelhard PHONE: 961-831 1 A. REOUES"P: To authorize the Director of Finance to negotiate a lease agreement with the Historic Hawaii Foundation for the former cazetaker's cottage at Spencer Park at `Ohai`ula Beach. B. BACKGROUND AND JUSTIFICATION (LISE ADDITIONAL SHEETS AS NEEDED): The former caretaker's cottage at Spencer Park at `Ohai`ula Beach has significant historic architecture, and the Historic Hawaii Foundation is interested in restoring the building to be used in the future for educational purposes. Parks and Recreation has no future plans for the building, and if not restored would quickly deteriorate beyond repair. It is currently in unusable condition and would be restored for public use if leased by the Historic Hawaii Foundation. , ~ ~~~l~~zr~/, 9~~ 05 SIGNED: ~ DATE: Department Head TABLE OF CONTENTS Lease of the Former Caretaker's House at Spencer Park at Ohai`ula Beach by the Historic Hawaii Foundation PARAGRAPH, PAGE A. The Lessor Covenants and Agrees with the Lessee: 1. Quiet Enjoyment 3 2. "Germ 3 3. Rent 3 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, Improper, or Offensive Use of Premises 4 5. Compliance with Laws, Etc. 4 6. Inspection of Premises 4-5 7. Improvements 5 8. Liens 5 9. Assignments, Etc. 5 0. Mortgage 5-6 11. Indemnity 6 12. Liability Insurance 6-7 13. Fire Insurance 7 14. Maintenance 7-8 15. Written Consent Required for Repairs and Renovations 8 16. Costs of Litigation 8 17. Entry by Lessor 8-9 18. Contracts for Construction 9 19. Condition of Premises 9 20. Notice 9 21. Use 10 1 22. Property Tax 10 23. Tax-Exempt, Non-Profit Status 10 24. Personal Property 10 25. Personnel 10 26. Surrender 10-11 27. Non-Waiver 11 28. Hold-over 11 29. Abandonment 11 30. Destruction, Etc. 1 I 31. Condemnation 11-12 32. Breach and Termination 12 33. Headings 12 34. Complete Agreement 12 35. Lessee Not an Agent of Lessor 12 36. Forum Selection 12 2 This Lease, made this day of 2005 by and between the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii, by Harry Kim, Mayor; whose mailing address is 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter referred to as Lessor, and the HISTORIC HAWAFI FOUNDATION, whose mailing address is P.O. Box 1658, Honolulu, Hawaii 96806, hereinafter referred to as Lessee. WITNESSETH: That the Lessor does hereby lease unto the Lessee the premises described as the former Caretaker's House at Spencer Park at Ohai`ula South Kohala, Hawaii, located within Tax Map Key (3) 6-2-02:08, more particularly described in Exhibit "A" attached hereto and made a part hereof. (Exhibit A does not include a portion near the house in which the leach field of the septic system will be located.) To have and to hold the demised premises for a period of five years, beginning on June 1 2005 and ending on May 31, 2010. A. THE LESSOR COVENANTS AND AGREES WITH THE LESSEE: 1. Ouiet Enioyment. 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 improvements, and inspections as set forth herein. 2. Term. The term of said lease shall be for a period of five years, with renewal options of five year increments, from the date listed above or unless sooner terminated by either the Lessor or Lessee giving (60) days prior notice in writing of intention to terminate this lease 3. Rent. The Lessee hereby covenants and agrees to pay the sum of $1.00 per month for the term of the lease. 3 B. THE LESSEE COVENANTS AND AGREES WITH THE LESSOR: I. Utility Services. That the Lessee shall pay when due, its share of 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 Aeainst 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, disability, 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 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 Lessee's activities. 6. Inspection 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 4 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. That approved renovations to the structure shall commence by June 1, 2007 and shall be completed by December 31, 2008 or this lease shall be void. That before the renovations commence, lessee shall provide for a suitable structure, as determined by lessor, for the storage of maintenance equipment used at Spencer Park at Ohai`ula Beach. 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, charge, 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 there from. 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 21 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 he nul] and void. Lessor declares that it enters into this lease on reliance on the specific identity of the Lessee. 10. Mortgage. That, except as provided herein, the Lessee shall not mortgage, hypothecate, or pledge the said premises or any portion thereof of this lease or any interest therein without the prior 5 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 harmless (a) from and against any claim or demand by third persons for loss, liability, or damage, including demands 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 nonperformance 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. Liability Insurauee. 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 in Exhibit A, 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 6 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 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 of not more than $500.00 per claim. 13. Fire Insurance. That 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 Lessor, a policy of insurance insuring against damage or destruction of the premises due to fire, vandalism, or malicious mischief, in the minimum amount of $50,000.00, and a maximum deductible of $500.00. The Lessee shall cause the Lessor to be named as an "additional insured" on the above- mentioned comprehensive liability insurance policy. In the event existing or new structures are appraised in the future, the Lessee shall obtain at its own expense and maintain, during the period of this lease, sufficient insurance to reflect replacement value ofthese structures. 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 of any intention to cancel any such policy prior to actual cancellation. 14. Maintenance. That the Lessee shall keep the premises in good repair (wear and tear 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 normal weathering. 7 The Lessee may enter into agreements with others to provide for the maintenance and repair of the Caretaker's House at Spencer Park at Ohai`ula Beach. 15. 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 shall require the Lessee to produce plans showing the work to be done. The Lessor may inspect any repairs and renovations and require that they be done in conformance with good and accepted construction practices and in compliance with applicable laws, codes, and regulations. 16. Costs of Lineation. 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 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 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. 17. 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 8 the Lessor. Nothing in this paragraph shall be construed as requiring the Lessor to make any inspections, repairs, improvements, or alterations to the premises. 18. 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 may be 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 may be levied against the premises. 19. 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 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 perform any repairs, alterations, 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 Lessee or otherwise, or any defect discovered in the premises, the Lessee shall immediately notify the Department of 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 this paragraph shall be construed to imply a duty by the Lessor to remedy or repair any such changes. 9 21. Use. That the Lessee shall use the premises solely for the recreational and educational functions of the Historic 1-Iawaii Foundation and shall renovate the premises for that use only after receiving permission from the Lessor to commence. 22. Property Tax. That the Lessee shall pay promptly, when due, all real property taxes, rates, assessments, impositions, duties, chazges, 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 the premises leased by the lessee. 23. Tax-Exemat, Non-Profit Status. That the Lessee has and shall maintain status as atax-exempt, non-profit organization as certified by the Internal Revenue Service. The Lessor shall require the Lessee to provide evidence of such certification. That the Lessee has and shall continue to have during the lease term, a governing board whose members serve without compensation. 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, including management, audit, and fiscal policies and procedures, and policies on nepotism. 24. Personal Property. That the Lessee shall, at its own expense, provide all equipment and all other property of any nature necessazy for the uses described in paragraph 21 above. 25. Personnel. That the Lessee shall, at its own expense, provide all necessary staff for the provision of the services described in paragraph 21 above. 26. 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, now on or hereafter erected or placed upon the same, in good order and condition, reasonable wear and tear 10 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. 27. Non-Waiver. That the failure of the Lessor to insist on the strict performance of the teens, 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 teen, agreement, or condition, but the same shall continue in full force and client. 28. 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. 29. 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 to, Lessee's failure to use the premises for the purposes and uses listed in paragraph 21 herein. 30. Destruction, Etc. That if, during the term of this Lease, the premises shall be substantially destroyed or become untenable 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's 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 untenable. 31. 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 premises are taken, or if so much of time premises are taken that the premises become unsuitable for the uses specified in 11 paragraph 21, this Lease shall terminate, and the Lessee shall he released from further obligation hereunder. 32. Breach and Termination. That if the Lessee shall become bankrupt or shall abandon the said premises, or if this house 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 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 reenter 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. 33. Headings. 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. 34. 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. 35. Lessee Not an Agent of Lessor. Nothing herein contained is intended or should be construed in any way as 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. 36. 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. 12 RECOMMEND APPROVAL: APPROVED: PATRICIA ENGELHARD HARRY KIM Director, Department of Parks Mayor and Recreation, County of Hawaii County of Hawaii APPROVED AS TO FORM HISTORIC HAWAII FOUNDATION Deputy Corporation Counsel Its President County of Hawaii Michael J. Fisch 13 STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this day of , 2005, 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 sea( of the 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 5-13 (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 , 2005, 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 corporation and acknowledged the instrument to be the free act and deed of the corporation. Notary Public, State of Hawaii My commission expires: 14 0 D D > y. \ C > ~ ~ D \ 0 0 ~.~•IIIIIII z ~ o ~ S ~ ~ \ ~ ~ I / ~ m fY II ~ \ O ~ ~ ~ ~ ~ a z I~ \ r' o ~ \ ~ ~ ~,Qo ~ ~ ~ ~ ~ C ~ z ~ ' ` - _ , < -o ~ 0 o \ ~~O \ _ o ~ 0 ~ L r i ~ ~ 0 9 . b z co r I O z ERHIBIT "A"