HomeMy WebLinkAboutCOM 0478.002 2004-2006 ,o~"••••".+k+ Lincoln S.T. Ashida
y L6i„v
Harr Kim `y Corporation Counsel
Mayor " Gerald Takase
„ ; • ~ Assistant Corporation
a.'~~a 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 17, 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
Enclosed please find an updated version of the proposed lease between
the County of Hawaii and BF Hilo Partners. In discussions with BF Hilo
Partners' attorney, Alan Okamoto, the proposed amendments discussed in the
enclosed email communication were incorporated.
The Council will need to discuss and decide on the liquidated damages
clause and attorney fee provisions highlighted in the enclosed email.
I look forward to discussing these matters with the full Council on
Tuesday, October 18, 2005.
/Very~trul~y-y~o'ur~s,
VU
LINCOLN S. T. ASHIDA
Corporation Counsel
Encls.
S: Depts/Council/LSA Misc./Letter to Council re BF lease 10-17-05/LSAmr
Comrn. Wo. 70 . Z
Ref. To:P
Hawaii County is an Equal Opportunity Employer and Provider{taf, Date
Page 1 of 2
Ashida, Lincoln
From: Ashida, Lincoln
Sent: Monday, October 17, 2005 9:57 AM
To: Oshiro, Rodney;'alan@noy.hawaii.com'
Cc: Smith, William; Higa, Stacy; Rodillas, Martha; Kiriu, Connie
Subject: RE: Lease-County and BF Hilo Partners
Aloha Alan,
It was nice speaking with you on Friday. I made the suggested changes in Rodney's email below. Please
review the attached draft carefully.
Also, FYI, Sections 18.2, 18.3, 19.1, and 19.2 (highlighted in my draft) will be discussed at the Council meeting
tomorrow. I need to see haw the Council feels about liquidated damages, the holding over provision, and the
payment of attorneys fees and costs.
Let me know what you think about our draft so far.
Thanks,
Linc
Lincoln S. T. Ashida
Corporation Counsel
County of Hawai' i
Hilo Lagoon Centre, Suite 325
101 Aupuni Street
Hilo, Hawaii 96720
Tel. (808) 961-8304, ext. 118
FAX (808) 961-8622
E-mail Lashida@co.hawaii.hi.us
From: Oshiro, Rodney
Sent: Friday, October 14, 2005 12:09 PM
To: Ashida, Lincoln
Cc: Smith, William; Higa, Stacy
Subject: FW: (no subject)
Hi Lincoln:
Below please find changes from BF Hilo Partners in regards to the Lease for 333 Kilauea Avenue, Hilo.
Rodney 8492
-----Original Message-----
From: WLDNK@aoLcom [mailto:WLDNK@aol.com]
Sent: Friday, October 14, 2005 11:13 AM
To: Oshiro, Rodney
10/17/2005
Page 2 of 2
Subject: (no subject)
Dear Rodney:
Our attorney, Alan Okamoto, reviewed the proposed changes to the lease and here are the changes we would
like to place back into the (ease form you earlier submitted:
1. 8.1 Indemnity. Tenant, subject to the laws of the
State and County of Hawaii, 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.
2. On 16.1, we would like to add language to the end of the paragraph such as:
"If such consent is given, Landlord may condition consent on amending
the lease terms relating to rent, CAM, security deposit, indemnity and
insurance."
3. Please add back the GET clause to the rent payment.
Please let me know if there are any questions or comments to the above.
Thank you,
Wayne Kamitaki
10/ 17/2005
COUNTY OF HAWAII
DRAFT LEASE
LEASE AGREEMENT
TH[S 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 Hany 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 [
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 Leasc 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 N(3) of this Lease agreement
herein, in the installment amount of _ DOLLARS )
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B. The first installment shall be due on ,hereinafter
referred [o as the Rental Commencement Date.
C. Landlord agrees to waive the collection of any security deposit.
SECTION IV
GENERAL LEASE PROVISIONS
1. TERM.
L l 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.
2.1 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.
2.3 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
[he 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
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to the public, those comfort stations are in compliance with the aforesaid Americans with
Disabilities Act.
3. RENT.
3. l 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, and the applicable
effective and prevailing State of Hawai' i 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 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. I 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 Disnosal 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 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 even[, 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.
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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
[o be maintained at the sole cost or expense of a tenant.
5.3 Rieht 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 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 Charles. 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 Exnenses for Maintenance and Oneration. 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 afrer the termination of
this Lease shall be deemed abandoned by Tenon[ 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 Tenon[ 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 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, 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 Repairs by Landlord. In the event repairs become necessary to the
structural portions of the Demised Premises during the term of [his Lease, then upon written
notice from Tenon[ 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 [ndemnity. Tenant, subject to the laws of the State and County of Hawaii, and
subject to all appropriations duly made as required by law, 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 Damage. 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.
]0. 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
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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 Attornment. In the event any mortgagee of Landlord shall
elect to have this Lease prior Yo 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.
1 ].l 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.
1 1.2 Governmental Regulations. Tenant shall, at Tenan['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 [he 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 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 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 share nor the real property
taxes of others shall be actually assessed to or collected against the Tenant in any forru. Said
exemption shall 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 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 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. [f 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.
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 afrer 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 Damaees. 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 no[ 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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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. If such consent is given, Landlord may condition consent on amending
the lease terms relating to rent, CAM, security deposit, indemnity and insurance.
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 Che 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 lass 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 Upon 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 fixtures on the Demised Premises other than Tenant's trade
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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 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 Damaees. 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 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, 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 Ouiet Enioyment. 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 acf. 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 Chis 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 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.
20.7 Broker's Commission. Each of the parties represents and warcants 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, lnc.
a Hawaii corporation
Its General Partner
By
Print
Namc:
Its
"Landlord"
COONTY OF HAWAII
By
HARRY K[M
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 CONSTRHCT[ON:
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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