HomeMy WebLinkAboutCOM 0478.001 2004-2006 N+~ Lincoln S.T. Ashida
. ~ ~4 Corporation Counsel
Harry Kim
Mayor
Gerald Takase
Assistant Corporation
i%e:'+~"~ Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 Hilo, Hawaii 96720-4262 (808) 961-8251 Fax (808) 961-8622
October 11, 2005
Honorable Chairman Stacy K. Higa and
Members of the Hawaii County Council
County of Hawaii
25 Aupuni St.
Hilo, HI 96720
Dear Chairman Higa and Council Members:
RE: Resolution 188-05
Proposed Lease for Office of the County Council-Clerk
On October 5, 2005, the Legislative Research Branch provided our office
a copy of the enclosed generic contract from BF Hilo Partners, and sought our
comment on the general and specific terms contained therein. We understand
that the above-encaptioned resolution seeks Council approval for amulti-year
lease of properties owned by BF Hilo Partners (hereinafter "BF") for office space
for the Office of the County Council-Clerk.
Also enclosed is a revised draft lease prepared by our office. Given the
number of necessary changes, we thought it prudent to simply prepare a new
document for review by the Hawaii County Council. Please note there are
significant differences between the BF draft and the County draft.
Of particular note are sections 18.2, 18.3, 19.1, and 19.2 of the County's
draft. We left in the original language found in the BF draft. However, further
discussion on these matters at the Council meeting on October 18, 2005, would
be prudent.
I invite you to contact me in advance of the meeting at 961-8304,
extension 118, or via email at Lashida(o~co.hawaii.hi.us, if you have any
questions concerning either of the enclosed documents. I look forward to
discussing this matter with you on October 18th.
V
true
L NCOLN S. T. ASHIDA Comm. tho. TS•~
Corporation Counsel Rzf. 7o:Preses
Encls. ttct. aaf~c ~1- $
S: Departments/Council/LSA Misc./Letter re draft lease for BF Hilo Partners 10-11-OSILSAmr
Hawaii County is an Equal Opportunity Employer and Provider
BF HILO PARTNERS
DRAFT LEASE
,r, ;r~
BF HILO CENTER ~ ~ _
(i
Lease
XXXXXXX
THIS INDENTURE OF LEASE, executed in duplicate, as of this day of
200 by and between BF HILO PARTNERS, a Hawaii Limited
Partnership whose address is set forth below, herein called "Landlord" and the Tertant identified
below, herein called "Tenant".
WITNESSETH
That Landlord hereby leases to Tenant, and Tenant hires from Landlord, those
certain premises in the BF Hilo Center, herein called the "Center", together with the rights in
parking and other common areas set forth in Sections 5.01 to 5.05 hereof, SUBJECT,
HOWEVER, to all encumbrances now of record; said Center is depicted on the attached site plan
marked Exhibit A, attached hereto and made a part hereof, and the location of the Demised
Premises is mazked in cross-hatch.
This Lease shall be subject to the following terms and conditions:
A. BASIC LEASE PROVISIONS.
DATE: , 200`
LANDLORD: BF HILO PARTNERS, a Hawaii limited partnership.
ADDRESS OF LANDLORD: 2810 Paa Street, Building A, Honolulu, Hawaii 96819
TENANT:
ADDRESS OF TENANT:
Shopping Center Store Address: 333 Kilauea Avenue
Hilo, Hawaii 96720
Store Telephone No.:
Business Address:
Business Telephone No.:
Principal Place of Business:
(if different from the Store address)
Telephone No.:
Check preferred mailing address:
OPremises' Address O Business Office O Owner Residence
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TENANT'S TRADE NAME:
DEMISED PREMISES: That certain space containing an area of approximately XXXX square
feet, designated by cross-hatching on the site plan attached hereto as Exhibit A.
LEASE TERM: XXX (X) years from the Rental Commencement Date, defined below.
LEASE YEAR: The one (1} year period commencing on the Rental Commencement Date (or
anniversary date thereof] and ending on the day before the next anniversary of the Rental
Commencement Date.
LEASE COMMENCEMENT DATE: On the earlier of (i) that day which shall be thirty (30)
days after the date Landlord notifies Tenant in writing that the Demised Premises are ready for
occupancy, or (ii) the date that Tenant takes possession of the Demised Premises. During the
period between the Lease Commencement Date and the Rental Commencement Date, Tenant
shall observe and be bound by all provisions of this Lease excepting those requiring the payment
of rental, common maintenance, and taxes.
MINIMUM RENT: Tenant shall pay to Landlord, net over and above all taxes, assessments and
other charges payable by Tenant under this Lease, rent as follows:
a. For and during the fvst two (2) years from the Rental Commencement Date,
the Minimum Rent shall be XXXXX Dollazs ($XX.XX) per month.
b. For and during the third year from the Rental Commencement Date, the
Minimum Rent shall be XXXXX Dollars ($XX.XX} per month.
c. For and during the fourth year from the Rental Commencement Date, the
Minimum Rental shall be XXXXX Dollars ($XX.XX) per month.
d. For and during the fifth yeaz from the Rental Commencement Date, the
Minimum Rental shall be XXXXX Dollars ($XX.XX) per month.
RENTAL COMMENCEMENT DATE:
TERMINATION DATE: Midnight at the end of the third (3rd) Lease Year, unless Tenant
exercises its option in a timely manner or this Lease is terminated earlier by its terms or law.
PERMITTED USES: XXXXXXXX
SECURITY DEPOSIT: A sum equal to twice the monthly Minimum Rent.
Each reference in this Lease to any of the Basic Lease Provisions shall be
deemed and construed to incorporate all the terms provided under each such Basic Lease
rrovision. The General Lease Provisions attached to mis LCHSC alld IlIC Caf11b1U ellLL11Ye1 Qtbd i~l
this Section and attached to this Lease are incorporated herein by reference and are to be
construed as a part of this Lease.
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B. GENERAL LEASE PROVISIONS.
I. TERM.
1.1 Duration & Commencement. The term of this Lease shall be for
the period set forth in Section A., Basic Lease Provisions. The Demised Premises shall be ready
for occupancy when Landlord shat] deem, in its sole discretion, that the work on improvements
required hereunder on the part of the Landlord has been substantially completed and the Demised
Premises are in such condition as to permit Tenarn to enter thereron for the purpose of installing
Tenant's leasehold improvements, trade fixtures and equipment without material hindrance or
interruption by Landlord's contractors.
1.2 Delay of Lease Commencement Date. If the work required to be
performed by Landlord under the terms and provisions of this Lease in order to make the
Demised Premises ready for occupancy depends in whole or in part upon plans to be prepared by
or work performed by Tenant, then, and in such event, the Demised Premises shall be "ready for
occupancy" on the date that the Demised Premises would have been ready for occupancy if
Tenant had prepared such plans and/or performed the work required of Tenant in a diligent and
timely manner and in accordance with the schedule of performance therefore established by
Landlord.
2. LANDLORD AND TENANT IMPROVEMENTS.
2.l Construction by Landlord. Landlord's total obligation in
connection with the construction of the Demised Premises shall be limited to the scope of work as
defined and specified in Exhibit B, attached hereto and made a part hereof. Landlord shall use its
reasonable efforts to give Tenant written notice thirty (30) days in advance of the date the
Demised Premises shall be available to Tenant to commence the construction of Tenant's
improvements. Notwithstanding the above, upon completion of Landlord's construction, with
prior written notice to Landlord, Tenant may enter Demised Premises for the purpose of
commencing Tenant improvements.
2.2 Construction by Tenant. The work to be performed by Tenant,
as outlined in Exhibit C. attached hereto and made a part hereof, shall be the sole responsibility of
Tenant.
3. RENT.
3.1 Minimum Rent. For each and every calendar month during the
term of this Lease commencing on the Rental Commencement Date, Tenam shall pay to
Landlord, in advance and without further notice or offset, and on or before the first day of each
month thereafter, at Landlord's office, the Minimum Rent set forth in Section A., Basic Lease
Provisions and the applicable effective and prevailing State of Hawaii general excise taxes upon
the rent received by Landlord from Tenant each month (the effective rate now prevailing is 4.166
percent).
3.2 Late Charee. Tenant shall pay a late charge equal to ten percent
(]0%) per month of the amount of any payment which is not paid when due under this Lease,
which amount Tenant and Landlord agree is a reasonable estimate of the additional administrative
costs for processing late payments.
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4. OPERATION OF TENANT'S BUSINESS.
4.1 Use of the Demised Premises. Tenant shall use the Demised
Premises solely for the purpose set forth in Section A., Basic Lease Provisions. Tenant and
Tenant's concessionaires, licensees and subtenants shall not use the Demised Premises for any
other purpose whatsoever.
4.2 Disposal of Rubbish. Tenant shall not perform any acts or carry
on any practices which may injure the Demised Premises or any part of the property or be a
nuisance or menace to other tenants on the property. Tenant shall keep the Demised Premises
under its control, including the loading areas allocated for the use of Tenant, clean and free from
rubbish and dirt at all times, and shall store all trash and garbage within the Demised Premises
and either arrange for the pickup of such trash and garbage at Tenant's expense or pay a pro rata
share of the charge incurred by Landlord, together with gross income taxes thereon, for garbage
removal service. Tenant shall not burn any trash or garbage of any kind in or about any part of
the property without the prior written consent of Landlord.
5. PARKING AND OTHER COMMON AREAS.
5.1. Parkins. It is understood and agreed that the employees of Tenant,
of Landlord and of other tenants within the Center shall be permitted to park their automobiles in
the automobile parking areas until such time as the Landlord shall determine that the total parking
space is inadequate to fill the needs of customers and employees. In such event, Landlord shall
have the right to limit employee parking on a uniform pro rata basis. At all times Landlord shall
have the right to designate the particular parking areas to be used by any such employees and any
such designation may be changed from time to time, and the use of said automobile parking areas
by any of such employees shall at all times be secondary and subordinate to the use by customers
and patrons of Tenant, and of other occupants of said Center.
5.2. Definition of Common Areas and Faci]ities. The teen "common
areas and facilities" as used in this Lease shall be deemed to include those portions of the Center
as are designated and/or designed for the non-exclusive use of Tenant in common with other
authorized users and shall include, but not be limited to, parking areas, roadways, service areas,
driveways, areas of ingress and egress, landscaped and planted areas, sidewalks and other
pedestrian ways, roofs, corridors, courts, open mall, public washrooms, drinking fountains,
community rooms, toilets, stairs, ramps, loading docks, buildings or structures used in connection
with the maintenance of said common area, and all other similar facilities from time to time
provided for the joint use and convenience of such authorized users. Without limiting the
generality of the foregoing, "common areas and facilities" shall specifically include, the exterior
walls, roofs and foundations, downspouts and gutters, (but not the store fronts or show windows
of Demised Premises used or intended for the exclusive use of tenants of the Center) and the
common utility systems, lines, and conduits up to the Demised Premises. Anything herein to the
contrary notwithstanding, it is agreed and understood that the common areas and facilities shall
not be deemed to include the Demised Premises, nor the facilities which, under the terms of any
Lease or Leases, aze required to be maintained at the sole cost or expense of a tenant.
5.3. Risht to Use Common Areas. It is understood that Tenant and
Tenant's employees and customers shall have the right in common with other tenants of the
Center and their employees and customers to use the common areas in connection with the
business to be conducted upon the Demised Premises; provided that Tenant shall not at any time
park, or allow its vendors or suppliers to park, its trucks or other delivery vehicles except during
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actual loading or unloading and then only in designated loading and unloading areas. The
common areas shall be subject to the exclusive management and control of Landlord, and
Landlord shall have the right, from time to time, to designate, withdraw, redesignate, relocate and
limit as common areas such areas as Landlord shall at any time select, and to enter into, modify
and terminate easements and other agreements pertaining to the operation and maintenance of the
common areas. Landlord shall have the further right to close all or any portion of said common
areas to such extent as may, in the opinion of Landlord, be legally sufficient to prevent dedication
thereof or the accrual of any rights to any person or the public therein, and to do and perform such
other acts and things relating to the common areas as it deems necessary or advisable. Without
limiting the generality of the foregoing, Landlord also reserves the right to use the common areas
for the purpose of conducting thereon promotional events.
5.4. Common Maintenance Charees. Tenant shall pay to Landlord
during the term of this Lease, as additional rent, its pro rata share of the costs and expenses which
may be incurred by or on behalf of Landlord each calendar year in maintaining and operating the
Center and the common area and facilities therein. Tenant's share of such costs and expenses
shall be computed 6y multiplying the total thereof by a fraction, the numerator of which is the
Gross Leasable Area of the Demised Premises and the denominator of which shall be Gross
Leasable Area of the Center at a given time. The "Gross Leasable Area" shall be the total square
footage measured from the interior walls, including mezzanines, if any, but excluding the
common areas and permanent columns. Tenant's share of the cost and expenses for each
calendar year during the term hereof shall be paid in monthly installments beginning on the
Rental Commencement Date and thereafter on the first day of each month, in advance, in an
amount estimated by Landlord from time to time. CAM Payments and any other payments made
to Landlord by Tenant shall be subject to the prevailing State of Hawaii general excise tax.
5.5. Expenses for Maintenance and Operation. Landlord shall operate
and maintain the Center and the common area and facilities therein in a manner deemed by
Landlord as reasonable, appropriate and in the best interests of the tenants of the Center, but all
such expenses for maintenance and operation shall be charged to tenant and prorated in the
manner hereinabove set forth. The phrase "expense for maintenance and operation", as used
herein, shall include, but shall not be limited to, all sums paid or incurred by Landlord with
respect to the operation, cleaning, repair, safety, management, security and maintenance of the
Center and the common areas and facilities therein.
6. STORE FIXTURES. SIGNS. ALTERATIONS.
6.1 Alterations Revert to Landlord. All alterations or improvements
to the Demised Premises shall revert to Landlord upon termination of this Lease and shall not be
removed unless otherwise expressly requested or consented to by Landlord in writing.
6.2 Abandoned Fixtures Belonlt to Landlord. Notwithstanding the
provisions of Section 6.1 hereof, Tenant shall have the right, if not in default under this Lease, to
replace and. durine the last thirty (301 days of the term. to remove any trade fixtures, signs and
other personal property installed or placed in the Demised Premises, as long as Tenant promptly
repairs any damage caused by such removal. If Landlord shall be required to repair any damage
caused to the Demised Premises by such removal, Tenant shall repay the cost of the same
together with a mazk-up of ten percent (]0%) on said cost to cover Landlord's overhead. Any
trade fixtures, signs and other personal property left in the Demised Premises by Tenant after the
termination of this Lease shall be deemed abandoned by Tenant and shall become the property of
Landlord.
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6.3 Protection Against Liens. Tenant shall promptly pay all
contractors and materialmen so as to minimize the possibility of a lien attaching to the Demised
Premises or to the land under the Demised Premises, and should any such lien be made or filed,
Tenant shall bond against or discharge the same within five (5) days after written request by
Landlord.
6.4 Bond Against Liens. Prior to commencing any alterations,
improvements or other construction in the Demised Premises, Tenant shall furnish evidence
satisfactory to Landlord that Tenant is financially able to pay the contractor, and shall furnish a
copy of a bond in an amount, in a form and with a swety acceptable to Landlord, naming
Landlord and Tenant as obligees and insuring completion of the proposed work free and cleaz of
liens.
6.5 Siens. Exterior signs shall be erected in accordance with Exhibit
C. Landlord reserves the absolute right and power to prohibit Tenant from erecting, installing,
painting, inscribing or placing on any exterior walkway, door, wall, window or other surface,
whether interior or exterior, visible from the sidewalk, mall or other azea outside the Demised
Premises any sign, lettering, pictwe, placazd or other visible mode of communication which
Landlord in its sole discretion deems detrimental to the aesthetics or commercial purpose of the
property or potentially dangerous or hazardous to person or property and Tenant shall,
immediately upon being directed in writing by Landlord to do so, remove forever any such
prohibited item as Landlord shall direct.
7. MAINTENANCE OF BUILDING.
7.1 Repairs by Tenant. Tenant shall at all times keep the Demised
Premises (including exterior entrances, all glass and show window moldings) and all partitions,
doors, fixtwes, equipment and appurtenances thereof in good order, condition and repair
(including reasonably periodic painting of the interior), damage by uninsurable casualty excepted.
Tenant may, but is not required to, construct certain improvements on the leased premises
ancillary to the permitted use.
7.2 Structural Repairs by Landlord. In the event repairs become
necessary to the structural portions of the Demised Premises during the term of this Lease, then
upon written notice from Tenant to Landlord stating the necessity therefore and the nature
thereof, Landlord, with reasonable promptness, and at its own expense (utilizing inswance
proceeds from an inswed casualty, if available) and after receipt of such written notice, shall
make any such necessary repars specified in such notice. If Landlord is required to make repairs
to structural portions by reason of Tenant's negligent acts or omissions to act (if not then insured
against Tenant's negligent acts or omissions to act), Landlord may add the cost of such repairs,
including interest on such cost at the rate usually charged Landlord for borrowing on the amount
of such costs to the rent which shall thereafter become due, and Tenant shall pay the same as
additional rental. The phrase "structural portions of the Demised Premises", as above used, shall
not be so construed as to include the roof which is part of the common area, nor to require
Landlord to make repairs to the interior surfaces of the structural portions of the Demised
Premises.
8. NON-LIABILITY OF LANDLORD.
8.1 Indemnity. Tenant, as a material part of the consideration to
Landlord for this Lease, will and does hereby assume all risk of bodily injury, wrongful death
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and/or property damage occasioned by any accident or nuisance made or suffered in the Demised
Premises or resulting from any failure on the part of Tenant to maintain the Demised Premises in
a safe condition. Tenant hereby waives all claims in respect thereof against Landlord and its
officers, directors, partners, trustees, employees, agents, licensees, contractors and invitees
(herein collectively called "Employees"), and acknowledges that this assumption of risk by
Tenant has been bargained for in determining rent and other obligations of Tenant under this
Lease. Tenant hereby agees to indemnify and save harmless Landlord and the Employees from
and against any and all claims, loss, cost and liability for bodily injury, wrongful death and/or
property damage (but excluding property damage to the extent actually insured against under
policies maintained by Landlord under the terms of this Lease) suffered by any persons
(including, without limitation, Tenant's employees and the Employees) arising out of, caused or
occasioned by, or resulting from any accident, fire or nuisance in the Demised Premises, or
failure to maintain the Demised Premises. Tenant further agees that in case of any claim,
demand, proceeding, action or cause of action, threatened or actual, against Landlord, Tenant,
upon Landlord's written request, shall defend Landlord at Tenant's expense by counsel
satisfactory to Landlord. If Landlord does not request such defense or Tenant does not provide
such defense, then Tenant will reimburse Landlord as aforesaid, and agrees to cooperate with
Landlord in such defense, including, but not limited to, providing of affidavits and testimony
upon request of Landlord. The provisions of this Section shall survive the termination of this
Lease with respect to any damage, injury or death occurring prior to such termination.
8.2 Assumption of Risk. Tenant, as a material part of the
consideration to Landlord for this Lease, will and hereby does assume all risk of loss or damage
to furniture, fixtures, supplies, merchandise, and other property, by whomsoever owned, stored or
placed in, upon or about the Demised Premises, and does hereby agree that Landlord will not be
responsible for loss or damage to any such property, and waives all claims in respect thereof
against Landlord and the Employees and acknowledges that this assumption of risk by Tenant has
been bargained for in determining rent and other obligations of Tenant under this lease.
9. INSURANCE.
9.1 Public Liability and Pr~erty Damage. Tenant shall, during
Tenant's period of construction and throughout the entire term hereof, keep in full force and
effect a Commercial General Liability Policy and property damage insurance with respect to the
Demised Premises and the business operated by Tenant and/or any subtenants or concessionaires
of Tenant in the Demised Premises together with such endorsements and/or insurance coverage as
a reasonable and prudent operator operating the same business as Tenant would carry naming
Landlord, Landlord's mortgagee and all Bound lessees as may be designated by Landlord as
additional insureds, with limits not less than the following for the specified categories: Bodily
Injury and Property Damage Combined Single Limit of $1,000,000 per occurrence, subject to
$2,000,000 general aggegate per policy year. Tenant shall provide Landlord a Certificate of
Insurance and an Additional Insured endorsement for each of the additional insured designated by
Landlord prior to occupancy and annually thereafter upon renewal of Tenant's property and
racnalfy inenran~e 'nrnnram, dll inenra nra regiiire{I to ha mainta inrA nnrtrr chic l.race chall hr
primary and noncontributing by an insurance coverage which may be carried by Landlord.
9.2 Coverage For Improvements. Fixtures, Equipment and
Merchandise. Tenant shall procure and, during the entire period of this Lease, keep in full force
and effect a Commercial Property insurance policy on its improvements, fixtures, equipment and
merchandise in the Demised Premises in the full insurable value thereof without deduction for
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depreciation against risks covered under causes of loss special form, including hurricane
coverage, which leas a deductible of not greater than $2,000 for any single occurrence.
9.3 Qualification of Insurer and Copies of Policies. Whenever
Tenant is hereby required to insure against any risk, said insurance shall be in an insurance
company qualified to do business in Hawaii and a certificate of insurance shall be delivered to
Landlord with a commitment from the insurance carrier endorsed thereon providing that said
policy shall remain in full force and effect until Landlord and Landlord's mortgagee are given at
(east thirty (30) days prior notice in writing of any change or cancellation. The policy of
insurance as required in this lease shall be written by an insurer acceptable to the Landord.
9.4 Waiver of Claim. Landlord and Tenant do hereby respectively
waive and release on their own behalf and on behalf of their respective insurers any claim either
may have against the other, or the insurer of the loss payee may have by way of subrogation,
arising out of any loss or damage to property to the extent required to be insured (or actually
insured, if greater) against by the fire and extended coverage risk policy maintained by Landlord
or Tenant, as the case may be.
10. PROTECTION OF LANDLORD'S MORTGAGEE.
10.1 Subordination: Offset Statements. This Lease shall be subject to
and subordinate at all times to such mortgages and other liens and encumbrances as are now on or
as Landlord may hereafter impose on Landlord's interest or estate herein, without the necessity of
any further instrument or act on the part of Tenant to effectuate such subordination, provided,
however, that so long as Tenant shall not be in default hereunder, the mortgagee or lien-holder
shall recognize this Lease and shall not disturb Tenant in its possession of the Demised Premises
upon foreclosure of the mortgage or other lien. This Lease is further subordinate to any
amendment or modification to any mortgage, lien or encumbrance entered into by Landlord and
any mortgagee or holder of such lien or encumbrance. The subordination of Tenant's interest as
herein provided shall be self-operating, and no further instrument or subordination shall be
required. In confirmation of such subordination, Tenant agrees promptly to execute and to
deliver any instrument that a mortgagee or its successors in interest may require to evidence such
subordination, and Tenant hereby irrevocably appoints Landlord its attorney-in-fact to execute
and deliver such instrument on behalf of Tenant should Tenant refuse or fail to do so within ten
(10) days after request is made. Said power of attorney is coupled with an interest and shall be
irrevocable. Within ten (10) days after the request therefore by Landlord, or in the event that
Landlord's mortgagee, or a prospective purchaser of Landlord, or a prospective purchaser of
Landlord's mortgage or of the Landlord's interest in the Center, shall desire a statement from
Tenant as to claims against Landlord on account of prepaid rent or otherwise, Tenant agrees to
deliver such statement (in recordable form, if requested) to the party demanding the same,
certifying (if such be the case) that this Lease is in full force and effect and unmodified (or stating
the modifications), that there are no defenses or offsets thereto or stating those claimed by
Tenant, the then current amount of the security deposit, the dates to which each item of the rent
have been paid, and acknowled¢ine that there aze not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, and that there are no events or conditions then in
existence which, with the passage of time or notice or both, would constitute a default on the part
of Landlord hereunder, or specifying such defaults, events or conditions, if any are claimed
10.2 Priority of Lease and Attomment. In the event any mortgagee of
Landlord shall elect to have this Lease prior to its mortgage, then and in such event, upon such
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mortgagee notifying Tenant to that effect, this Lease shall have priority over the lien of such
mortgage to the same extent as if the same had been placed on record prior to such mortgage.
t WASTE, COMPLIANCE WTH GOVERNMENTAL REGULATIONS.
11.1 Waste. Tenant shall not commit or suffer to be committed any
waste upon the said Demised Premises or any nuisance or other act or thing which may disturb
the quiet enjoyment of any other tenant on the Center.
11.2 Governmental Regulations. Tenant shall, at Tenant's sole cost
and expense, comply with all of the requirements of all county, municipal, state and federal
authorities now in force, or which may hereafter be in force, pertaining to the Demised Premises,
and shall faithfully observe in the use of the Demised Premises all municipal ordinances and state
and federal statues, rules and regulations now in force or which may hereafter be in force
including but not limited to the provisions of the Americans with Disabilities Act and the
provisions of any law, statute, rule or regulation which may relate to hazardous materials.
12. ENTRY BY LANDLORD.
12.1 Access to Demised Premises. Tenant shall permit Landlord and
its agents to enter into and upon said Demised Premises at all reasonable times for the purpose of
inspecting the same or for showing the Demised Premises to prospective purchasers or for
maintaining the building in which said Demised Premises are situated, or for making repairs,
alterations or additions to any other portion of said building, including the erection and
maintenance of such scaffolding, canopies, fences and props as may be required, without any
rebate of rent and without any liability to Tenant for any loss of occupation or quiet enjoyment of
the Demised Premises thererby occasioned; provided that except in case of emergencies,
Landlord shall enter for the purpose of repaving and maintaining the building only during non-
business hours, and all such work shall be done in such manner as to cause as little interference as
reasonably possible.
12.2 Mezzanine. Tenant understands and expressly acknowledges
that Landlord intends to construct an approximately 16,000 square foot mezzanine within the
building in which said Demised Premises are situated, which shall be used solely as office and
retail spaces. In accomplishing such construction, Landlord reserves the right to enter into and
upon the Demised Premises for the purpose of constructing permanent supports, columns, beams
and such other structural improvements as may be reasonably necessary with respect thereto.
Landlord shall use its best efforts to minimize any interference with or disruption of Tenant's
business, but Landlord shall in no event be liable to Tenant for any inconvenience or disruption
resulting from such construction nor shall any such inconvenience or disruption serve as the basis
for any abatement in rent. However, if Tenant cannot use any portion of the Demised Premises
during the construction of the mezzanine, Landlord shall waive the rent for such portion of the
Demised Premises during the time Tenant is unable to use such portion of the Demised Premises.
13. REAL PROPERTY TAXES AND A55ESMENTS.
13.1 Tenant's Pro Rata Share. Tenant shall pay Tenant's pro rata
share of all real property [axes which are levied or assessed by any lawful authority against the
Demised Premises and the land under the Demised Premises and the Center during the Lease
term and of all assessments or charges made under any betterment or improvement law or
otherwise which may be legally imposed upon the Demised Premises, the land or any part thereof
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or to which the Demised Premises, the Center, the land or any part thereof or Landlord or Tenant
are now or may during the Lease term become liable.
13.2 Rieht to Contest. Tenant may contest by appropriate
proceedings the amount or validity of the State Tax Assessor's assessments upon the Demised
Premises and the land under the Demised Premises for real property tax purposes or the amount
or validity of any assessment or chazge made under any betterment or improvement law or
otherwise applicable to the Demised Premises, and the land under the Demised Premises or any
part thereof. If such proceedings are instituted, however, Tenant shall pay its pro rata share of
such tax or such assessment or charge or shall deposit with Landlord the amounts so contested
and unpaid, together with a sum sufficient to cover all charges including penalties that may
accrue or be assessed against the Demised Premises as a result of such proceedings, unless such
proceedings operate to prevent or stay the collection of such tax or such assessment or charge.
Upon the termination of such proceedings and upon proof of the amount of the tax or the amount
of the assessment or charge so determined, Landlord shall pay such tax or such assessment or
charge out of the funds deposited with it and refund any balance to Tenant. If said funds are
insufficient, Tenant shall immediately pay any deficiency. Landlord, at Tenant's sole expense,
shall join in such proceedings if any law shall so require.
l4. DESTRUCTION OF OR DAMAGE TO BUILDINGS.
14. ] Repairs by Landlord. If the Demised Premises or any portion of
the building in which the Demised Premises are located should be damaged or destroyed during
the term hereof by any casualty insurable under the standard fire and extended coverage insurance
policies, or should such building be damaged to an extent less than twenty-five percent (25%) of
the then tax assessed value thereof by any other casualty, Landlord, subject to any delay or
inability from causes beyond Landlord's control, shall repair and/or rebuild the same to
substantially the condition in which the same were immediately prior to such damage or
destruction. If Tenant cannot use any portion of the Premises during such period, Landlord shall
waive and the rent for such portion of the Demised Premises during the time Tenant is unable to
use such portion of the Demised Premises.
14.2 Non-Insured Casualri. If the building in which the Demised
Premises are located should be damaged or destroyed by a casualty not insurable under the
standard fire and extended coverage policies to the extent of twenty-five percent (25%) or more
of the then tax assessed value thereof, then Landlord may either terminate this Lease or elect to
repair or restore the damage or destruction, in which latter event Landlord shall repair and/or
rebuild the same as provided above and the Minimum Rent shall be abated proportionately.
15. EMINENT DOMAIN.
15.1 Automatic Termination of Lease. If the whole of the Demised
Premises shall be taken by any public authority under the power of eminent domain, then the term
of this Lease shall cease as of the day possession is taken by such public authority, and all rentals
shall be paid up to that date. If only a part of the Demised Premises shall be taken under eminent
domain, the Lease shall terminate as to the portion taken, and unless this Lease shall be
terminated, as hereinafter provided, it shall continue in full force and effect as to the remainder of
the Demised Premises and the Minimum Rent shall be reduced in the proportion of the Gross
Leasable Area taken bears to the total Gross Leasable Area demised, and Landlord, at its own
cost and expense, shall make all necessary repairs and alterations to the Demised Premises
required by such taking.
10
]5.2 Option to Cancel. If the remainder of the Demised Premises
cannot be made tenantable for the purposes for which Tenant has been using the Demised
Premises, Tenant shall have the option, to be exercised within thirty (30) days after the filing of
such eminent domain action, of canceling this Lease effective as of the date the condemning
authority shall take possession; provided, however, that if more than fifty percent (50%) of the
Gross Leasable Area of the Demised Premises shall be taken under power of eminent domain,
either party, by written notice to the other delivered on or before the date of surrendering
possession to the public authority, may terminate this Lease, effective as of such surrender of
possession. All compensation and damages of any type whatsoever awarded for any taking,
whole or partial, shall belong to and be the property of Landlord except as hereinafter provided.
15.3 Tenant's Dama¢es. Tenant shall have the right to claim and
recover from the condemning authority, but not from Landlord, such compensation as may be
separately awarded or recoverable by Tenant in Tenant's own right on account of any cost or loss
to which Tenant might be put in removing Tenant's merchandise, furniture, fixtures and
equipment, and a portion of any compensation separately awarded with respect to Tenant's
improvement equal to the total of such compensation multiplied by a fraction of which the
numerator is the number of months remaining under the original term of the Lease and the
denominator is the total number of months under the original term of the Lease.
15.4 Temporary Taking. In the event of a condemnation of a
leasehold interest (i.e., a temporary taking) in all or a portion of the Demised Premises without
the condemnation of the fee simple title also, this Lease shall not terminate and such
condemnation shall not excuse Tenant from full performance of all of its covenants hereunder,
but Tenant in such event shall be entitled to present or pursue against the condemning authority
its claim for and to receive all compensation or damages sustained by it by reason of such
condemnation, and Landlord's right to recover compensation or damages shall be limited to
compensation for and damages, if any, to its reversionary interest; it being understood, however,
that during such time as Tenant shall be out of possession of the Demised Premises by reason of
such condemnation, that Lease shall not be subject to forfeiture for failure to observe and perform
those covenants not calling for the payment of money.
16. ASSIGNMENT AND SUBLETTING.
16.1 Restriction on Assignment and Subletting. Tenant shall not
assign this Lease, or any interest therein, and shall not sublet the said Demised Premises or any
part thereof, or any right or privilege appurtenant thereto, or suffer any other person (the agents
and servants of Tenant excepted) to occupy or use the Demised Premises, or any portion thereof,
without the written consent of Landlord first and obtained, which consent may be withheld by
Landlord at its sole discretion, and a consent to one assignment, subletting, occupation or use by
any other person shall not be deemed to be a consent to any subsequent assignment, subletting,
occupation or use by another person.
17. DEFAULT.
17.1 Right to Re-enter. In the event of any failure of Tenant to pay
any rental due hereunder when the same shall be due, or if Tenant becomes insolvent or bankrupt,
or if Tenant fails to perform any other of the terms, conditions or covenants of this Lease to be
observed or performed by Tenant for more than fifteen (15) days after written notice of such
longer period to cure the default, any such happening shall be considered a default by Tenant, and
Landlord besides any other rights or remedies it may have, shall have the immediate right to (i)
11
terminate this Lease and/or (ii) re-enter the Demised Premises, with or without termination.
Upon re-entry by Landlord, Landlord may remove all persons and property from the Demised
Premises, and such property may be removed and stored in a public warehouse or elsewhere at
the cost of, and for the account of Tenant, all without service of notice or resort to legal process
and without being deemed guilty of trespass, or becoming liable for any loss or damage which
may be occasioned thereby.
17.2 Non-waiver. The waiver by Landlord of any breach of any term,
covenant, or condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of rent hereunder by Landlord shall not
be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition
of this Lease, other than the failure of Tenant to pay the particular rental so accepted, regardless
of Landlord's knowledge of such preceding breach at the time of acceptance of such rent.
17.3 Interest on Past Due Amounts. Any amounts owing by Tenant to
Landlord under the terms of this Lease shall bear interest from the date the same become due
until paid at twelve percent (12%) per annum.
18. SURRENDER OF LEASE AND HOLDING OVER.
18.1 Surrender Unon Termination. At the expiration of the tenancy
hereby created, Tenant shall surrender the Demised Premises in the same condition of cleanliness,
repair and sightlines as the Demised Premises were in upon the commencement of business under
the Lease, reasonable wear and tear and damage by uninsurable casualty excepted. Tenant shall
surrender all keys for the Demised Premises to Landlord at the place then fixed for payment of
rent and shall inform Landlord of atl combinations on locks, safes and vaults, if any, in Demised
Premises. On such day, unless Landlord requests Tenant to remove any of the following, all
alterations, additions, improvements and all fixttres on the Demised Premises other than Tenant's
trade fixtures and operating equipment, shall become the property of Landlord and shall remain
upon and be surrendered with the Demised Premises as a part thereof, without disturbance,
molestation or injury, and without credit to Tenant, its sublessees, concessionaires or licensees.
On or before the last day of the term or the sooner termination thereof, Tenant, if not then in
default, shall remove all trade fixtures, operating equipment and other personal property of
Tenant from the Demised Premises and repair arty damage occasioned by any such removal.
Property not so removed shall be deemed abandoned by Tenant. If the Demised Premises be not
surrendered at such time, Tenant shall indemnify Landlord against loss or liability resulting from
delay by Tenant in so surrendering the Demised Premises, including, without limitation, any
claims made by any succeeding tenant founded on such delay. Tenant's obligations to perform
this covenant shall survive the expiration or other termination of the term of this Lease.
18.2 Liquidated Damages. If Tenant shall, at the expiration or other
termination of this Lease, fail to yield up possession to Landlord, Landlord shall have the option
to require Tenant to pay and Tenant shall pay as liquidated damages for each day possession is
withheld, an amount equal to three times the amount of the daily Minimum Rent computed on a
thirty-day-month basis.
18.3 Holdine Over. Any holding over after the expiration of the said
term, with the consent of Landlord, shall be construed to be a tenancy from month to month at
twice the monthly rentals herein specified, so far as applicable.
12
19. ATTORNEY'S FEES.
19.1 Tenant's Liabilitv. In case Landlord shall, without fault on its
part, be made a party to any litigation commenced by or against Tenant arising out of Tenant's
occupancy of the Demised Premises or any act of Tenant concerning the Demised Premises or
this Lease, or in case suit shall be brought for recovery of possession of the said Demised
Premises, for the recovery of rent or any other amount due under the provisions of this Lease, or
because of the breach of any other covenant herein contained, on the part of Tenant to be kept or
performed, and a breach shall be established, Tenant shall pay to Landlord all expenses incurred
in connection therewith, including reasonable attorney's fee.
19.2 Landlord's Liabilitv. In case suit shall be brought by Tenant
against Landlord for breach of any of Landlord's covenants herein contained and a breach shall
be established, Landlord shall pay to Tenant all expenses incurred therefore, including reasonable
attorney's fee.
20. GENERAL.
20.1 Notices to Tenant. All notices to be given to Tenant may be
given in writing personally to Tenant, if Tenant is an individual, or to an officer of Tenant, if
Tenant is a corporation, or by depositing the same in the United States mail, registered or certified
and postage prepaid, and addressed to Tenant at the said Demised Premises whether or not Tenant
had departed from, abandoned or vacated the Demised Premises.
20.2 Notice to Landlord. Notice to Landlord shall be given in writing
personally to an officer of Landlord or by depositing the same in the United States mail,
registered or certified and postage prepaid, and addressed to Landlord at the address of Landlord
set forth in Section A, or at such other address as Landlord may give to Tenant in writing from
time to time.
20.3 Time of Service. All written notice shall be delivered to Tenant
and Landlord. However, if personal delivery is not possible in the serving party's reasonable
judgment, any written notice sent by mail shall be deemed to have been served on the date three
(3) days after it is mailed in accordance with the foregoing provisions.
20.4 Covenant of Ouiet EnLoyment. Upon the payment by Tenant of
the rental as aforesaid and upon the observance and performance of the covenants by Tenant
herein contained, Tenant shall peaceably and quietly hold and enjoy the said Demised Premises
for the term hereby demised without hindrance or interruption by Landlord or any other person or
persons (other than Landlord's mortgagee), lawfully or equitably claiming by, through or under
Landlord.
20.5 Tenant Taxes. Tenant shall be responsible for and shall pay
before delinu_uencv all municipal, state or county taxes assessed durine the term of this Lease
against it by reason of the conduct of its business in the Demised Premises or with respect to
personal property of any kind, owned by or placed in, upon or about the Demised Premises by
and/or at the expense of Tenant.
20.6 Force Maieure. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lock-outs, labor troubles, inability to procure materials, failure of power,
13
restrictive governmental laws or regulations, riots, insurrection, war or other reason of a like
nature not the fault of the party delayed in performing work or doing acts required under the
terms of this Lease, then performance of such act shall be excused for the period of the delay and
the period for the performance of such act shall be extended for a period equivalent to the period
of such delay. It is understood, however, that this provision shall not operate to excuse Tenant
from the prompt payment of rental or any other payments required by the terms of this Lease.
20.7 Waiver of Jury Trial and Counterclaim. The parties hereto shall
and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other on any matters whatsoever arising out of or in any
way connected with this Lease, the relationship of Landlord and Tenant, Tenant's use or
occupancy of the Demised Premises, and/or any claim of injury or damage. In the event Landlord
commences any proceedings for nonpayment of rent, additional rent or other fees and charges
payable under this Lease, Tenant will not interpose any counterclaim of whatever nature or
description in the proceedings. This restriction shall not, however, be construed to prohibit
Tenant's assertion of compulsory counterclaims or Tenant's right to assert such claims in a
separate action or actions.
20.8 Waiver of Rights of Redemption. Tenant hereby waives any and
all rights of redemption ganted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of
the Demised Premises, by reason of the violation by Tenant of any of the covenants or conditions
of this Lease, or otherwise.
20.9 Broker's Commission. Each of the parties represents and
wan•ants that there are no claims for brokerage commissions or finder's fees in connection with
the execution of this Lease, and each of the parties agrees to indemnify the other against, and hold
it harmless from, all liabilities arising from any such claim (including, without limitation, the cost
of attorneys' fees in connection therewith).
20.10 Short-Form Confirmation Lease. Upon request of either party,
the parties hereto, after the term has commenced, will join in the execution of an appropriate
recordable short-form lease setting forth the date of commencement and the date of termination of
this Lease and describing the Premises Demised. The party requesting such short-form lease
shall pay the attorney's fees and recording fees in connection with drafting and recording the
short-form.
20.11 Miscellaneous Matters. The necessary grammatical changes
required to make the provisions of this Lease apply in the plural sense when there is more than
one Tenant and to either corporations, associations, partnerships, or individuals, males or females,
shall in all instances be assumed as though in each case fully expressed. If any term, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term,
covenant or condition to persons or circumstances other than those as to which it is held invalid
nr itnnnFnrrrahle~ g]iall not hn affe~te~i Chereby anti each tefm~ rn~~s•na nt nr CCndj/jnn pf thjg i race
shall be valid and be enforced to the fullest extent permitted by law. This Lease contains the
entire agreement between the parties, and any executory agreement hereafter made shall be
ineffective to change, modify, discharge or effect an abandonment of it in whole or in part unless
such executory agreement is in writing and signed by the party against whom enforcement of the
change, modification, discharge or abandonment is sought. The covenants and conditions herein
contained shall, subject to the provisions as to assignment, apply to and bind and inure to the
14
benefit of the respective successors, and assigns of the parties hereto; and in any case where there
shall be more than one Tenant, each Tenant shall be jointly and severally liable hereunder.
20.12 Time of Essence. Time is of the essence in this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed these presents the day and year
first above written.
BF HILO PARTNERS,
a Hawaii limited partnership
By Maui Varieties Investments, Inc.
a Hawaii corporation
Its General Partner
By
Print
Name:
Its
"Landlord"
By
Print
Name:
Its
"Tenant"
15
EXHIBIT A
(diagram /rendering of lease space)
16
EXHIBIT B
LANDLORD CONSTRUCTION:
Landlord shall provide the Demised Premises to Tenant in an "as is" condition.
17
EXHIBIT C
TENANT CONSTRUCTION:
Tenant shall construct al[ interior improvements. Tenant shall submit genera( plans for
Landlord's review and approval prior to commencing any work on the premises.
18
COUNTY O F HAWAI ~ I
DRAFT LEASE
LEASE AGREEMENT
THIS LEASE made and entered into on this day of
200_, by and between BF HILO PARTNERS, a Hawaii Limited Partnership whose address is
2810 Paa Street, Building A, Honolulu, Hawaii 96819, herein called "Landlord" and the
COUNTY OF HAWAII, a municipal corporation of the State of Hawaii, by Harry Kim, its
Mayor, with its principal place of business and mailing address at 25 Aupuni Street, Hilo,
Hawaii 96720, herein called "Tenant".
WITNESSETH:
That in consideration of the covenants and agreements hereinafter set forth the parties
hereby agree as follows:
SECTION I
DEMISE, DESCRIPTION AND USE OF PREMISES
A. Landlord leases to Tenant, and Tenant hires from Landlord, for the purpose of
conducting in and on the subject premises County of Hawaii business, those certain premises in
the BF Hilo Center, herein called the "Center", located at 333 Kilauea Avenue, Hilo, Hawaii
96720, together with the rights in parking and other common areas set forth in Sections 5.1 to 5.5
hereof, SUBJECT, HOWEVER, to all encumbrances now of record; said Center is depicted on
the attached site plan marked Exhibit A, attached hereto and made a part hereof, and the location
of the Demised Premises is marked in cross-hatch.
B. As used in this Lease agreement, the term "premises" refers to the real property
above described and to any improvements which Tenant may locate upon the property during the
term of this Lease agreement.
SECTION II
TERM
A. The initial term of this Lease shall be for ( )years,
commencing on and ending on
B. As used in this Lease agreement, the expression "term of this lease agreement"
refers to the initial term and to any renewal of the Lease agreement as provided below.
SECTION III
RENT
A. Subject to adjustment as provided below, the total rent for the initial term shall be
DOLLARS ),which Tenant shall pay to
Landlord, without deduction or offset, at the place or places as may be designated from time to
time by Landlord, in installments as further set forth in Section IV(3) of this Lease agreement
herein, in the installment amount of DOLLARS
1
B. The first installment shall be due on ,hereinafter
referred to as the Rental Commencement Date.
C. Landlord agrees to waive the collection of any security deposit.
SECTION IV
GENERAL LEASE PROVISIONS
1. TERM.
1.1 Duration & Commencement. The term of this Lease shall be for the period
set forth in Section II above. The Demised Premises shall be ready for occupancy when
Landlord shall deem, in its sole discretion, that the work on improvements required
hereunder on the part of the Landlord has been substantially completed and the Demised
Premises are in such condition as to permit Tenant to enter thereron for the purpose of
installing Tenant's leasehold improvements, trade fixtures and equipment without
material hindrance or interruption by Landlord's contractors.
1.2 Delay of Lease Commencement Date. If the work required to be performed by
Landlord under the terms and provisions of this Lease in order to make the Demised Premises
ready for occupancy depends in whole or in part upon plans to be prepared by or work performed
by Tenant, then, and in such event, the Demised Premises shall be "ready for occupancy" on the
date that the Demised Premises would have been ready for occupancy if Tenant had prepared
such plans and/or performed the work required of Tenant in a diligent and timely manner and in
accordance with the schedule of performance therefore established by Landlord.
2. LANDLORD AND TENANT IMPROVEMENTS.
2. ] Construction by Landlord. Landlord's total obligation in connection with the
construction of the Demised Premises shall be limited to the scope of work as defined and
specified in Exhibit B, attached hereto and made a part hereof. Landlord shall use its reasonable
efforts to give Tenant written notice thirty (30) days in advance of the date the Demised Premises
shall be available to Tenant to commence the construction of Tenant's improvements.
Notwithstanding the above, upon completion of Landlord's construction, with prior written notice
to Landlord, Tenant may enter Demised Premises for the purpose of commencing Tenant
improvements.
2.2 Construction b~Tenant. The work to be performed by Tenant, as outlined in
Exhibit C, attached hereto and made a part hereof, shall be the sole responsibility of Tenant.
23 American with Disabilities Act. Landlord and Tenant understand Tenant, as a
government entity, is required to comply with the American with Disabilities Act, more
specifically described in .Landlord herein expressly warrants that all access from
the parking area and common areas to the Demised Premises are in compliance with the aforesaid
Americans with Disabilities Act, and that if there are comfort stations in the common areas open
2
to the public, those comfort stations are in compliance with the aforesaid Americans with
Disabilities Act.
3. RENT.
3.1 Minimum Rent. For each and every calendar month during the term of this Lease
commencing on the Rental Commencement Date, Tenant shall pay to Landlord, in advance and
without further notice or offset, and on or before the first day of each month thereafter, at
Landlord's office, the monthly installment as set forth in Section IIIA herein, exclusive of any
State of Hawaii general excise taxes.
3.2 Late Charge. Tenant shall pay a late charge equal to ten percent (10%) per month
of the amount of any payment which is not paid when due under this Lease, which amount Tenant
and Landlord agree is a reasonable estimate of the additional administrative costs for processing
late payments.
4. OPERATION OF TENANT'S BUSINESS.
4.1 Use of the Demised Premises. Tenant shall use the Demised Premises solely for the
purpose of County of Hawaii business. Tenant and Tenant's concessionaires, licensees and
subtenants shall not use the Demised Premises for any other purpose whatsoever, unless agreed
upon in writing by the parties hereto.
4.2 Disposal of Rubbish. Tenant shall not perform any acts or carry on any practices
which may injure the Demised Premises or any part of the property or be a nuisance or menace to
other tenants on the property. Tenant shall keep the Demised Premises under its control,
including the loading areas allocated for the use of Tenant, clean and free from rubbish and dirt at
all times, and shall store all trash and garbage within the Demised Premises and either arrange for
the pickup of such trash and garbage at Tenant's expense or pay a pro rata share of the charge
incurred by Landlord, together with gross income taxes thereon, for garbage removal service.
Tenant shall not burn any trash or garbage of any kind in or about any part of the property
without the prior written consent of Landlord.
5. PARKING AND OTHER COMMON AREAS.
5.1 Parkin [t is understood and agreed that the employees of Tenant, of Landlord and
of other tenants within the Center shall be permitted to park their automobiles in the automobile
parking areas until such time as the Landlord shall determine that the total parking space is
inadequate to fill the needs of customers and employees. In such event, Landlord shall have the
right to limit employee parking on a uniform pro rata basis. At all times Landlord shall have the
right to designate the particular parking areas to be used by any such employees and any such
designation may be changed from time to time, and the use of said automobile parking areas by
any of such employees shall at all times be secondary and subordinate to the use by customers
and patrons of Tenant, and of other occupants of said Center.
3
5.2 Definition of Common Areas and Facilities. The term "common areas and facilities"
as used in this Lease shall be deemed to include those portions of the Center as are designated
and/or designed for the non-exclusive use of Tenant in common with other authorized users and
shall include, but not be limited to, parking areas, roadways, service areas, driveways, areas of
ingress and egress, landscaped and planted areas, sidewalks and other pedestrian ways, roofs,
corridors, courts, open mall, public washrooms, drinking fountains, community rooms, toilets,
stairs, ramps, loading docks, buildings or structures used in connection with the maintenance of
said common area, and all other similar facilities from time to time provided for the joint use and
convenience of such authorized users. Without limiting the generality of the foregoing, "common
areas and facilities" shall specifically include, the exterior walls, roofs and foundations,
downspouts and gutters, (but not the store fronts or show windows of Demised Premises used or
intended for the exclusive use of tenants of the Center) and the common utility systems, lines, and
conduits up to the Demised Premises. Anything herein to the contrary notwithstanding, it is
agreed and understood that the common areas and facilities shall not be deemed to include the
Demised Premises, nor the facilities which, under the terms of any Lease or Leases, are required
to be maintained at the sole cost or expense of a tenant.
5.3 Right to Use Corrtmon Areas. It is understood that Tenant and Tenant's employees
and customers shall have the right in common with other tenants of the Center and their
employees and customers to use the common areas in connection with the business to be
conducted upon the Demised Premises; provided that Tenant shall not at any time park, or allow
its vendors or suppliers to park, its trucks or other delivery vehicles except during actual loading
or unloading and then only in designated loading and unloading areas. The common areas shall
be subject to the exclusive management and control of Landlord, and Landlord shall have the
right, from time to time, to designate, withdraw, redesignate, relocate and limit as common areas
such areas as Landlord shall at any time select, and to enter into, modify and terminate easements
and other agreements pertaining to the operation and maintenance of the common areas.
Landlord shall have the further right to close all or any portion of said common areas to such
extent as may, in the opinion of Landlord, be legally sufficient to prevent dedication thereof or
the accrual of any rights to any person or the public therein, and to do and perform such other acts
and things relating to the common areas as it deems necessary or advisable. Without limiting the
generality of the foregoing, Landlord also reserves the right to use the common areas for the
purpose of conducting thereon promotional events.
5.4 Common Maintenance Char¢es. Tenant shall pay to Landlord during the term of
this Lease, as additional rent, its pro rata share of the costs and expenses which may be incurred
by or on behalf of Landlord each calendar year in maintaining and operating the Center and the
common area and facilities therein. Tenant's share of such costs and expenses shall be computed
by multiplying the total thereof by a fraction, the numerator of which is the Gross Leasable Area
of the Demised Premises and the denominator of which shall be Gross Leasable Area of the
Center at a given time. The "Gross Leasable Area" shall be the total square footage measured
from the interior walls, including mezzanines, if any, but excluding the common areas and
permanent columns. Tenant's share of the cost and expenses for each calendar year during the
term hereof shall be paid in monthly installments beginning on the Rental Commencement Date
and thereafter on the first day of each month, in advance, in an amount estimated by Landlord
from time to time. CAM Payments and any other payments made to Landlord by Tenant shall be
subject to the prevailing State of Hawaii general excise tax.
5.5 Expenses for Maintenance and Operation. Landlord shall operate and maintain the
Center and the common area and facilities therein in a manner deemed by Landlord as reasonable,
appropriate and in the best interests of the tenants of the Center, but all such expenses for
4
maintenance and operation shall be charged to Tenant and prorated in the manner hereinabove set
forth. The phrase "expense for maintenance and operation", as used herein, shall include, but
shall not be limited to, all sums paid or incurred by Landlord with respect to the operation,
cleaning, repair, safety, management, security and maintenance of the Center and the common
areas and facilities therein.
6. STORE FIXTURES SIGNS. ALTERATIONS.
6.1 Alterations Revert to Landlord. All alterations or improvements to the Demised
Premises shall revert to Landlord upon termination of this Lease and shall not be removed unless
otherwise expressly requested or consented to by Landlord in writing.
6.2 Abandoned Fixtures Belong to Landlord. Notwithstanding the provisions of
Section 6.1 hereof, Tenant shall have the right, if not in default under this Lease, to replace and,
during the last thirty (30) days of the term, to remove any trade fixtures, signs and other personal
property installed or placed in the Demised Premises, as long as Tenant promptly repairs any
damage caused by such removal. If Landlord shall be required to repair any damage caused to
the Demised Premises by such removal, Tenant shall repay the cost of the same together with a
mark-up of ten percent (10%) on said cost to cover Landlord's overhead. Any trade fixtures,
signs and other personal property left in the Demised Premises by Tenant after the termination of
this Lease shall be deemed abandoned by Tenant and shall become the property of Landlord.
6.3 Protection Against Liens. Tenant shall promptly pay all contractors and materialmen
so as to minimize the possibility of a lien attaching to the Demised Premises or to the land under
the Demised Premises.
6.4 Signs. Exterior signs shall be erected in accordance with Exhibit C. Landlord
reserves the absolute right and power to prohibit Tenant from erecting, installing, painting,
inscribing or placing on any exterior walkway, door, wall, window or other surface, whether
interior or exterior, visible from the sidewalk, mall or other area outside the Demised Premises
any sign, lettering, picture, placard or other visible mode of communication which Landlord in its
sole discretion deems detrimental to the aesthetics or commercial purpose of the property or
potentially dangerous or hazazdous to person or property and Tenant shall, immediately upon
being directed in writing by Landlord to do so, remove forever any such prohibited item as
Landlord shall direct.
7. MAINTENANCE OF BUILDING.
7.1 Repairs by Tenant. Tenant shall at all times keep the Demised Premises (including
exterior entrances, all glass and show window moldings) and all partitions, doors, fixtures,
equipment and appurtenances thereof in good order, condition and repair (including reasonably
periodic painting of the interior), damage by uninsurable casualty excepted, Tenant may, but is
not required to, construct certain improvements on the leased premises ancillary to the permitted
use.
7.2 Structural Renairs by Landlord. In the event repairs become necessary to the
structural portions of the Demised Premises during the term of this Lease, then upon written
notice from Tenant to Landlord stating the necessity therefore and the nature thereof, Landlord,
with reasonable promptness, and at its own expense (utilizing insurance proceeds from an insured
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casualty, if available) and after receipt of such written notice, shall make any such necessary
repairs specified in such notice. If Landlord is required to make repairs to structural portions by
reason of Tenant's negligent acts or omissions to act (if not then insured against Tenant's
negligent acts or omissions to act), Landlord may add the cost of such repairs, including interest
on such cost at the rate usually charged Landlord for borrowing on the amount of such costs to
the rent which shall thereafter become due, and Tenant shall pay the same as additional rental.
The phrase "structural portions of the Demised Premises", as above used, shall not be so
construed as to include the roof which is part of the common area, nor to require Landlord to
make repairs to the interior surfaces of the structural portions of the Demised Premises.
8. NON-LIABILITY OF LANDLORD.
8.1 Indemnity. Tenant, subject to the laws of the State and County of Hawaii, and
subject to all appropriations duly made, will and does hereby assume all risk of bodily injury,
wrongful death and/or property damage occasioned by any accident or nuisance made or suffered
in the Demised Premises or resulting from any failure on the part of Tenant to maintain the
Demised Premises in a safe condition.
8.2 Assumption of Risk. Tenant, as a material part of the consideration to Landlord for
this Lease, will and hereby does assume all risk of loss or damage to furniture, fixtures, supplies,
merchandise, and other property, by whomsoever owned, stored or placed in, upon or about the
Demised Premises, and does hereby agree that Landlord will not be responsible for loss or
damage to any such property.
9. COUNTY AS SELF INSURED ENTITY.
9.1 Public Liability and Property Dama>?e. Landlord and Tenant acknowledge and
agree that Tenant is aself-insured political subdivision of the State of Hawaii, and as such, shall
not be required to obtain or maintain any insurance policy whatsoever.
10. PROTECTION OF LANDLORD'S MORTGAGEE.
I0. I Subordination: Offset Statements. This Lease shall be subject to and subordinate
at all times to such mortgages and other liens and encumbrances as are now on or as Landlord
may hereafter impose on Landlord's interest or estate herein, without the necessity of any further
instrument or act on the part of Tenant to effectuate such subordination, provided, however, that
so long as Tenant shall not be in default hereunder, the mortgagee or lien-holder shall recognize
this Lease and shall not disturb Tenant in its possession of the Demised Premises upon
foreclosure of the mortgage or other lien. This Lease is further subordinate to any amendment or
modification to any mortgage, lien or encumbrance entered into by Landlord and any mortgagee
or holder of such lien or encumbrance. The subordination of Tenant's interest as herein provided
shall be self-operating, and no further instrument or subordination shall be required. In
confirmation of such subordination, Tenant agrees promptly to execute and to deliver any
instrument that a mortgagee or its successors in interest may require to evidence such
subordination, and Tenant hereby irrevocably appoints Landlord its attorney-in-fact to execute
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and deliver such instrument on behalf of Tenant should Tenant refuse or fail to do so within ten
(10) days after request is made. Said power of attorney is coupled with an interest and shall be
irrevocable. Within ten (10) days after the request therefore by Landlord, or in the event that
Landlord's mortgagee, or a prospective purchaser of Landlord, or a prospective purchaser of
Landlord's mortgage or of the Landlord's interest in the Center, shall desire a statement from
Tenant as to claims against Landlord on account of prepaid rent or otherwise, Tenant agrees to
deliver such statement (in recordable form, if requested) to the party demanding the same,
certifying (if such be the case) that this Lease is in full force and effect and unmodified (or stating
the modifications), that there are no defenses or offsets thereto or stating those claimed by
Tenant, the then current amount of the security deposit, the dates to which each item of the rent
have been paid, and acknowledging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder, and that there are no events or conditions then in
existence which, with the passage of time or notice or both, would constitute a default on the part
of Landlord hereunder, or specifying such defaults, events or conditions, if any are claimed.
10.2 Priority of Lease and Attomment. In the event any mortgagee of Landlord shall
elect to have this Lease prior to its mortgage, then and in such event, upon such mortgagee
notifying Tenant to that effect, this Lease shall have priority over the lien of such mortgage to the
same extent as if the same had been placed on record prior to such mortgage.
11. WASTE COMPLIANCE WTH GOVERNMENTAL REGULATIONS.
11.1 Waste. Tenant shall not commit or suffer to be cornmitted any waste upon the said
Demised Premises or any nuisance or other act or thing which may disturb the quiet enjoyment of
any other tenant on the Center.
11.2 Governmental Reeulations. Tenant shall, at Tenant's sole cost and expense, comply
with all of the requirements of all county, municipal, state and federal authorities now in force, or
which may hereafter be in force, pertaining to the Demised Premises, and shall faithfully observe
in the use of the Demised Premises all municipal ordinances and state and federal statues, rules
and regulations now in force or which may hereafter be in force including but not limited to the
provisions of the Americans with Disabilities Act and the provisions of any law, statute, rule or
regulation which may relate to hazardous materials.
12. ENTRY BY LANDLORD.
12.1 Access to Demised Premises. Tenant shall permit Landlord and its agents, subject
to reasonable notice given to Tenant, to enter into and upon said Demised Premises at all
reasonable times for the purpose of inspecting the same or for showing the Demised Premises to
prospective purchasers or for maintaining the building in which said Demised Premises are
situated, or for making repairs, alterations or additions to any other portion of said building,
including the erection and maintenance of such scaffolding, canopies, fences and props as may be
required, without any rebate of rent and without any liability to Tenant for any loss of occupation
or quiet enjoyment of the Demised Premises thererby occasioned; provided that except in case of
emergencies, and subject to reasonable notice given to Tenant, Landlord shall enter for the
purpose of repairing and maintaining the building only during non-business hours, and all such
work shall be done in such manner as to cause as little interference as reasonably possible.
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12.2 Mezzanine. Tenant understands and expressly acknowledges that Landlord
intends to construct an approximately 16,000 square foot mezzanine within the building in which
said Demised Premises are situated, which shall be used solely as office and retail spaces. In
accomplishing such construction, Landlord reserves the right, subject to reasonable notice given
to Tenant, to enter into and upon the Demised Premises for the purpose of constructing permanent
supports, columns, beams and such other structural improvements as may be reasonably
necessary with respect thereto. Landlord shall use its best efforts to minimize any interference
with or disruption of Tenant's business, but Landlord shall in no event be liable to Tenant for any
inconvenience or disruption resulting from such construction nor shall any such inconvenience or
disruption serve as the basis for any abatement in rent. However, if Tenant cannot use any
portion of the Demised Premises during the constmction of the mezzanine, Landlord shall waive
the rent for such portion of the Demised Premises during the time Tenant is unable to use such
portion of the Demised Premises.
13. REAL PROPERTY TAXES AND ASSESMENTS.
13.1 Tenant's Pro Rata Share. Tenant shall be liable for it's pro rata share of real
property taxes to be paid as part of operating costs and utilities. However, the Tenant may obtain
an exemption from real property tax under Hawaii Revised Statutes Section 246-36(2) and
Section 19-84(2), Hawaii County Code 1983 (2005 edition), and upon granting of the exemption,
the Tenant's real property tax will be reduced by the Tenant's pro rata share. Accordingly, after
the effective date of the Tenant's tax exemption, neither the pro rata shaze nor the real property
taxes of others shall be actually assessed to or collected against the Tenant in any form. Said
exemption shalt effectively reduce the Tenant's pro rata share of the operating costs and utilities.
Currently, the real property tax exemption is not in place and real property taxes are included in
the operating expenses.
14. DESTRUCTION OF OR DAMAGE TO BUILDINGS.
14.1 Renairs by Landlord. If the Demised Premises or any portion of the building in
which the Demised Premises are located should be damaged or destroyed during the term hereof
by any casualty insurable under the standard fire and extended coverage insurance policies, or
should such building be damaged to an extent less than twenty-five percent (25%) of the then tax
assessed value thereof by any other casualty, Landlord, subject to any delay or inability from
causes beyond Landlord's control, shall repair and/or rebuild the same to substantially the
condition in which the same were immediately prior to such damage or destruction. [f Tenant
cannot use any portion of the Premises during such period, Landlord shall waive and the rent for
such portion of the Demised Premises during the time Tenant is unable to use such portion of the
Demised Premises.
14.2 Non-Insured Casualty. If the building in which the Demised Premises are located
should be damaged or destroyed by a casualty not insurable under the standard fire and extended
coverage policies to the extent of twenty-five percent (25%) or more of the then tax assessed
value thereof, then Landlord may either terminate this Lease or elect to repair or restore the
damage or destruction, in which latter event Landlord shall repair and/or rebuild the same as
provided above and the Minimum Rent shall be abated proportionately.
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15. EMINENT DOMAIN.
15.1 Automatic Termination of Lease. If the whole of the Demised Premises shall be
taken by any public authority under the power of eminent domain, then the term of this Lease
shall cease as of the day possession is taken by such public authority, and all rentals shall be paid
up to that date. If only a part of the Demised Premises shall be taken under eminent domain, the
Lease shall terminate as to the portion taken, and unless this Lease shall be terminated, as
hereinafrer provided, it shall continue in full force and effect as to the remainder of the Demised
Premises and the Minimum Rent shall be reduced in the proportion of the Gross Leasable Area
taken bears to the total Gross Leasable Area demised, and Landlord, at its own cast and expense,
shall make all necessary repairs and alterations to the Demised Premises required by such taking.
15.2 Option to Cancel. If the remainder of the Demised Premises cannot be made
tenantable for the purposes for which Tenant has been using the Demised Premises, Tenant shall
have the option, to be exercised within thirty (30) days after the filing of such eminent domain
action, of canceling this Lease effective as of the date the condemning authority shall take
possession; provided, however, that if more than fifty percent (50%) of the Gross Leasable Area
of the Demised Premises shall be taken under power of eminent domain, either party, by written
notice to the other delivered on or before the date of surrendering possession to the public
authority, may terminate this Lease, effective as of such surrender of possession. All
compensation and damages of any type whatsoever awarded for any taking, whole or partial, shall
belong to and be the property of Landlord except as hereinafter provided,
15.3 Tenant's Damages. Tenant shall have the right to claim and recover from the
condemning authority, but not from Landlord, such compensation as may be separately awarded
or recoverable by Tenant in Tenant's own right on account of any cost or loss to which Tenant
might be put in removing Tenant's merchandise, furniture, fixtures and equipment, and a portion
of any compensation separately awazded with respect to Tenant's improvement equal to the total
of such compensation multiplied by a fraction of which the numerator is the number of months
remaining under the original term of the Lease and the denominator is the total number of months
under the original term of the Lease.
15.4 Temporary Taking. In the event of a condemnation of a leasehold interest (i.e., a
temporary taking) in all or a portion of the Demised Premises without the condemnation of the
fee simple title also, this Lease shall not terminate and such condemnation shall not excuse
Tenant from full performance of all of its covenants hereunder, but Tenant in such event shall be
entitled to present or pursue against the condemning authority its claim for and to receive all
compensation or damages sustained by it by reason of such condemnation, and Landlord's right
to recover compensation or damages shall be limited to compensation for and damages, if any, to
its reversionary interest; it being understood, however, that during such time as Tenant shall be
out of possession of the Demised Premises by reason of such condemnation, that Lease shall not
be subject to forfeiture for failure to observe and perform those covenants not calling for the
payment of money.
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I6. ASSIGNMENT AND SUBLETTING.
16.1 Restriction on Assignment and Subletting. Tenant shall not assign this Lease, or
any interest therein, and shall not sublet the said Demised Premises or any part thereof, or any
right or privilege appurtenant thereto, or suffer any other person (the agents and servants of
Tenant excepted) to occupy or use the Demised Premises, or any portion thereof, without the
written consent of Landlord first and obtained, which consent may be withheld by Landlord at its
sole discretion, and a consent to one assignment, subletting, occupation or use by any other
person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation
or use by another person.
17. DEFAULT.
17.1 Ri¢ht to Re-enter. In the event of any failure of Tenant to pay any rental due
hereunder when the same shall be due, or if Tenant becomes insolvent or bankrupt, or if Tenant
fails to perform any other of the terms, conditions or covenants of this Lease to be observed or
performed by Tenant for more than fifteen (15) days after written notice of such longer period to
cure the default, any such happening shall be considered a default by Tenant, and Landlord
besides any other rights or remedies it may have, shall have the immediate right to (i) terminate
this Lease and/or (ii) re-enter the Demised Premises, with or without termination. Upon re-entry
by Landlord, Landlord may remove all persons and property from the Demised Premises, and
such property may be removed and stored in a public warehouse or elsewhere at the cost of, and
for the account of Tenant, all without service of notice or resort to legal process and without
being deemed guilty of trespass, or becoming liable for any loss or damage which may be
occasioned thereby.
17.2 Non-waiver. The waiver by Landlord of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of such term, covenant or condition
or any subsequent breach of the same or any other term, covenant or condition herein contained.
The subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of
any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular rental so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of acceptance of such rent.
17.3 Interest on Past Due Amounts. Any amounts owing by Tenant to Landlord under
the terms of this Lease shall bear interest from the date the same become due until paid at twelve
percent (12%) per annum.
18. SURRENDER OF LEASE AND HOLDING OVER.
] 8.1 Surrender Unon Termination. At the expiration of the tenancy hereby created,
Tenant shall surrender the Demised Premises in the same condition of cleanliness, repair and
sightlines as the Demised Premises were in upon the commencement of business under the Lease,
reasonable wear and tear and damage by uninsurable casualty excepted. Tenant shall surrender
all keys for the Demised Premises to Landlord at the place then fixed for payment of rent and
shall inform Landlord of all combinations on locks, safes and vaults, if any, in Demised Premises.
On such day, unless Landlord requests Tenant to remove any of the following, all alterations,
additions, improvements and all fixmres on the Demised Premises other than Tenant's trade
fixmres and operating equipment, shall become the property of Landlord and shall remain upon
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and be surrendered with the Demised Premises as a part thereof, without disturbance, molestation
or injury, and without credit to Tenant, its sublessees, concessionaires or licensees. On or before
the last day of the term or the sooner termination thereof, Tenant, if not then in default, shall
remove all trade fixtures, operating equipment and other personal property of Tenant from the
Demised Premises and repair any damage occasioned by any such removal. Property not so
removed shall be deemed abandoned by Tenant. If the Demised Premises be not surrendered at
such time, Tenant shall indemnify Landlord against loss or liability resulting from delay by
Tenant in so surrendering the Demised Premises, including, without limitation, any claims made
by any succeeding tenant founded on such delay. Tenant's obligations to perform this covenant
shall survive the expiration or other termination of the term of this Lease.
18.2 Liquidated Damaces. If Tenant shall, at the expiration or other termination of this
Lease, fail to yield up possession to Landlord, Landlord shall have the option to require Tenant to
pay and Tenant shall pay as liquidated damages for each day possession is withheld, an amount
equal to three times the amount of the daily Minimum Rent computed on athirty-day-month
basis.
18.3 Holding Over. Any holding over after the expiration of the said term, with the
consent of Landlord, shall be construed to be a tenancy from month to month at twice the
monthly rentals herein specified, so far as applicable.
19. ATTORNEY'S FEES.
19.1 Tenant's Liability. In case Landlord shall, without fault on its part, be made a
party to any litigation commenced by or against Tenant arising out of Tenant's occupancy of the
Demised Premises or any act of Tenant concerning the Demised Premises or this Lease, or in case
suit shall be brought for recovery of possession of the said Demised Premises, for the recovery of
rent or any other amount due under the provisions of this Lease, or because of the breach of any
other covenant herein contained, on the part of Tenant to be kept or performed, and a breach shall
be established, Tenant shall pay to Landlord all expenses incurred in connection therewith,
including reasonable attorney's fee.
19.2 Landlord's Liability. In case suit shall be brought by Tenant against Landlord for
breach of any of Landlord's covenants herein contained and a breach shall be established,
Landlord shall pay to Tenant all expenses incurred therefore, including reasonable attomey's fee.
20. GENERAL.
20.1 Notices to Tenant. All notices to be given to Tenant may be given in writing
personally to Tenant, if Tenant is an individual, or to an officer of Tenant, if Tenant is a
corporation, or by depositing the same in the United States mail, registered or certified and
postage prepaid, and addressed to Tenant at the said Demised Premises whether or not Tenant had
departed from, abandoned or vacated the Demised Premises.
20.2 Notice to Landlord. Notice to Landlord shall be given in writing personally to an
officer of Landlord or by depositing the same in the United States mail, postage prepaid, and
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addressed to Landlord at the address of Landlord set forth in Section A, or at such other address
as Landlord may give to Tenant in writing from time to time.
20.3 Time of Service. All written notice shall be delivered to Tenant and Landlord.
However, if personal delivery is not possible in the serving party's reasonable judgment, any
written notice sent by mail shall be deemed to have been served on the date three (3) days after it
is mailed in accordance with the foregoing provisions.
20.4 Covenant of Quiet Enjoyment. Upon the payment by Tenant of the rental as
aforesaid and upon the observance and performance of the covenants by Tenant herein contained,
Tenant shall peaceably and quietly hold and enjoy the said Demised Premises for the term hereby
demised without hindrance or interruption by Landlord or any other person or persons (other than
Landlord's mortgagee), lawfully or equitably claiming by, through or under Landlord.
20.5 Force Maieure. In the event that either party hereto shall be delayed or hindered in
or prevented from the performance of any act required hereunder by reason of strikes, lock-outs,
labor troubles, inability to procure materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, war or other reason of a like nature not the fault of the party
delayed in performing work or doing acts required under the terms of this Lease, then
performance of such act shall be excused for the period of the delay and the period for the
performance of such act shall be extended for a period equivalent to the period of such delay. It
is understood, however, that this provision shall not operate to excuse Tenant from the prompt
payment of rental or any other payments required by the terms of this Lease.
20.6 Waiver of Jurv Trial and Counterclaim. The parties hereto shall and they hereby
do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the Demised
Premises, and/or any claim of injury or damage.
20.7 Broker's Commission. Each of the parties represents and warrants that there are
no claims for brokerage commissions or finder's fees in connection with the execution of this
Lease.
20.8 Short-Form Confirmation Lease. Upon request of either party, the parties hereto,
after the term has commenced, will join in the execution of an appropriate recordable short-form
lease setting forth the date of commencement and the date of termination of this Lease and
describing the Premises Demised. The party requesting such short-form lease shall pay the
attorney's fees and recording fees in connection with drafting and recording the short-form.
20.9 Miscellaneous Matters. The necessary grammatical changes required to make the
provisions of this Lease apply in the plural sense when there is more than one Tenant and to
either corporations, associations, partnerships, or individuals, males or females, shall in all
instances be assumed as though in each case fully expressed. If any term, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of such term, covenant or
condition to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or condition of this Lease
shall be valid and be enforced to the fullest extent permitted by law. This Lease contains the
entire agreement between the parties, and any executory agreement hereafter made shall be
ineffective to change, modify, discharge or effect an abandonment of it in whole or in part unless
such executory agreement is in writing and signed by the party against whom enforcement of the
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change, modification, discharge or abandonment is sought. The covenants and conditions herein
contained shall, subject to the provisions as to assignment, apply to and bind and inure to the
benefit of the respective successors, and assigns of the parties hereto; and in any case where there
shall be more than one Tenant, each Tenant shall be jointly and severally liable hereunder.
20.10 Time of Essence. Time is of the essence in this Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have executed these presents the day
and year first above written.
BF HILO PARTNERS,
a Hawaii limited partnership
By Maui Varieties Investments, Inc.
a Hawaii corporation
Its General Partner
By
Print
Name:
Its
"Landlord"
COUNTY OF HAWAII
By
HARRY KIM
Its Mayor
"Tenant"
RECOMMEND APPROVAL:
STACY HIGA
Chair, Hawaii County Council
APPROVED AS TO FORM AND LEGALITY:
LINCOLN S. T. ASHIDA
Corporation Counsel
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EXHIBIT A
(diagram /rendering of lease space)
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EXHIBIT B
LANDLORD CONSTRUCTION:
Landlord shall provide the Demised Premises to Tenant in an "as is" condition.
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EXHIBIT C
TENANT CONSTRUCTION:
Tenant shall construct all interior improvements. Tenant shall submit general plans for
Landlord's review and approval prior to commencing any work on the premises.
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