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HomeMy WebLinkAboutCOM 0575.001 2004-2006 CONSTANC[. R. KIRIU Nworp WILLIAM E. SMI~CH ('nunp' (7erA •."T~~ Depnh' ('ow~n~ (7erA Ind. J •',Tl pj~Mr,M; County of Hawai `i Office of the County Clerk 23 Aupuni .Street lulu, /IaHnii 96720 l elr~~hone (h'ONl ~~(/.YZ.55 Fac.eimile~ I~YOd~i 961-R9/7 December 2.2005 TO: Council Mem~~b~~c~~rs~~ FROM: Constance R5'lgfFiii County Clerk RE: Elections Division I.icensc This is to transmit a copy of a draft license for the Elections Division space. The license is under review by the Off ice of the Corporation Counsel and the licensors. Exhibits would be attached to the final license as applicable. nu. Comm. No_ SZS • 1 Ref. To: ~e~~~s(.0 Ref. L°ote nor. 7 Hcrnai'~ Coa~rN l.~ An Ec/ual Opporluniry Prnvider end Empluver LICENSE AGREEMENT THIS License Agreement ("Agreement") made and entered into on this day of , 200_, by and between HO RETAIL PROPERTIES I., Limited Partnership, an Illinois limited partnership whose address is 111 East Puainako Street, Hilo, Hawaii 96720, herein called "Licensor" 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 "Licensee". 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. Licensor leases to Licensee, and Licensee hires from Licensor, for the purpose of conducting in and on the subject premises County of Hawaii business, those certain premises in the Prince Kuhio Plaza, herein called the "Plaza", located at 111 East Puainako Street, Hilo, Hawaii 96720, specifically designated as Space Number 655, constituting 10,569 square feet, together with the rights in parking and other common areas, SUBJECT, HOWEVER, to all encumbrances now of record; said premises at the Plaza 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 Agreement, the term "premises" refers to the real property above described and to any improvements which Licensee may locate upon the property during the term of this Agreement. SECTION II TERM A. The initial term of this Agreement shall be for one (1) year, commencing on January 1, 2006, and ending on December 31, 2006. Notwithstanding anything to the contrary contained in this Agreement, Licensor shall have the unconditional right to terminate this Agreement by giving Licensee ninety (90) days advance written notice and this Agreement will terminate ninety (90) days following the date of Licensor's termination notice ("Termination Date"). Effective as of the Termination Date, the rights and obligations of Licensor and Licensee under this Agreement will cease provided, however, that Licensee will remain liable for any and all unpaid charges which accrued prior to the Termination Date which Licensee is obligated to pay Licensor under this Agreement. 1 B. As used in this Agreement, the expression "term of this Agreement" refers to the initial term and to any renewal of the Agreement as provided below. SECTION III RENT A. Subject to adjustment as provided below, the total rent for the initial term shall be NINETY-NINE THOUSAND DOLLARS ($99,000.00), which Licensee shall pay to Licensor, without deduction or offset, at the place or places as may be designated from time to time by Licensor, in installments as further set forth in Section IV(3) of this Agreement herein, in the installment amount of EIGHT THOUSAND, TWO HUNDRED AND FIFTY DOLLARS ($8,250.00), exclusive of sales tax, electrical charges, and air conditioner utility maintenance charges. B. Licensee agrees to pay for monthly electrical charges and air conditioner utility maintenance charges incurred during the term of the Agreement. C. The first rent installment shall be due on January 1, 2006, hereinafter referred to as the Rental Commencement Date. D. Licensor agrees to waive the collection of any security deposit. SECTION IV GENERAL AGREEMENT PROVISIONS 1. TERM. 1.1 Duration & Commencement. The term of this Agreement shall be for the period set forth in Section II above. The Demised Premises shall be ready for occupancy when Licensor shall deem, in its sole discretion, that the work on improvements required t7ereunder on the part of the Licensor has been substantially completed and the Demised Premises are in such condition as to permit Licensee to enter thereon for the purpose of installing Licensee's leasehold improvements, trade fixtures and equipment without material hindrance or interruption by Licensor's contractors. 1.2 Delay of Agreement Commencement Date. If the work required to be performed by Licensor under the terms and provisions of this Agreement 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 Licensee, 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 Licensee had 2 prepared such plans and/or performed the work required of Licensee in a diligent and timely manner and in accordance with the schedule of performance therefore established by Licensor. 2. LICENSOR AND LICENSEE IMPROVEMENTS. 2.1 Construction by Licensor. Licensor'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. Licensor shalt use its reasonable efforts to give Licensee written notice thirty (30) days in advance of the date the Demised Premises shall be available to Licensee to commence the construction of Licensee's improvements. Notwithstanding the above, upon completion of Licensor's construction, with prior written notice to Licensor, Licensee may enter Demised Premises for the purpose of commencing Licensee improvements. 2.2 Construction by Licensee. The work to be performed by Licensee, as outlined in Exhibit C, attached hereto and made a part hereof, shall be the sole responsibility of Licensee. 2.3 American with Disabilities Act. Licensor and Licensee understand Licensee, as a government entity, is required to comply with the American with Disabilities Act, more specifically described in the United States Code. Licensor herein expressly warrants that all access from the parking area and common areas to the Demised Premises is in compliance with the aforesaid Americans with Disabilities Act, and that if there are comfort stations in the common areas open 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 Agreement commencing on the Rental Commencement Date, Licensee shall pay to Licensor, in advance and without further notice or offset, and on or before the first day of each month thereafter, at Licensor's office, the monthly installment as set forth in Section IIIA herein, and the applicable effective and prevailing State of Hawaii general excise taxes upon the rent received by Licensor from Licensee each month (the effective rate now prevailing is 4.166 percent), specifically set forth below: Total sales tax $4,124.40, payable in monthly installments of $343.70 on or before the first day of each month. 3 3.2 Late Charge. Licensee shall pay a late charge of $100 per day, as liquidated damages for each and every day the rent remains delinquent. 4. OPERATION OF LICENSEE'S BUSINESS. 4.1 Use of the Demised Premises. Licensee shall use the Demised Premises solely for the purpose of County of Hawaii business. Licensee and Licensee's concessionaires, licensees and sublicensees shall not use the Demised Premises for any other purpose whatsoever, unless agreed upon in writing by the parties hereto. Licensee 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 licensees on the property. Further, Licensor and Licensee agree that the normal business hours of Licensee may not coincide with the normal business hours of the Plaza. It is understood that Licensee and members of the public having official business with Licensee shall have the right to enter the Demised Premises, during these hours. 5. PARKING AND OTHER COMMON AREAS. 5.1 Parking. It is understood and agreed that Licensor shall allow Licensee's employees to park in the areas designated for Plaza customer parking. Such parking is shown on Exhibit D attached hereto and made a part hereof. It is further understood and agreed that the employees of Licensee, of Licensor and of other Licensees within the Plaza shall be permitted to park their automobiles in the automobile parking areas until such time as the Licensor shall determine that the total parking space is inadequate to fill the needs of customers and employees. In such event, Licensor shall have the right to limit employee parking on a uniform pro rata basis. At all times Licensor 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 Licensee, and of other occupants of said Plaza. 5.2 Definition of Common Areas and Facilities. The term "common areas and facilities" as used in this Agreement shall be deemed to include those portions of the Plaza as are designated and/or designed for the non-exclusive use of Licensee 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, enclosed mall, open mall, public washrooms, drinking fountains, community rooms, toilets, stairs, ramps, loading docks, buildings or structures used in connection with the maintenance of said 4 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 Licensees of the Plaza) 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 Agreement or Agreements, are required to be maintained at the sole cost or expense of a Licensee. 5.3 Right to Use Common Areas. It is understood that Licensee and Licensee's employees and customers shall have the right in common with other Licensees of the Plaza and their employees and customers to use the common areas in connection with the business to be conducted upon the Demised Premises; provided that Licensee 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 Licensor, and Licensor shall have the right, from time to time, to designate, withdraw, re-designate, relocate and limit as common areas such areas as Licensor 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. Licensor shall have the further right to close all or any portion of said common areas to such extent as may, in the opinion of Licensor, 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, Licensor also reserves the right to use the common areas for the purpose of conducting thereon promotional events. 5.4 Expenses for Maintenance and Operation. Licensor shall operate and maintain the Plaza and the common area and facilities therein in a manner deemed by Licensor as reasonable, appropriate and in the best interests of the Licensees of the Plaza. 6. STORE FIXTURES SIGNS ALTERATIONS. 6.1 Alterations Revert to Licensor. All alterations or improvements to the Demised Premises shall revert to Licensor upon termination of this Agreement and shall not be removed unless otherwise expressly requested or consented to by Licensor in writing. 5 6.2 Abandoned Fixtures Belong to Licensor. Notwithstanding the provisions of Section 6.1 hereof, Licensee shall have the right, if not in default under this Agreement, 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 Licensee promptly repairs any damage caused by such removal. If Licensor shall be required to repair any damage caused to the Demised Premises by such removal, Licensee shall repay the cost of the same together with amark-up of ten percent (10%) on said cost to cover Licensor's overhead. Any trade fixtures, signs and other personal property left in the Demised Premises by Licensee after the termination of this Agreement shall be deemed abandoned by Licensee and shall become the property of Licensor. 6.3 Protection Against Liens. Licensee 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. In the event a lien is attached to the Demised Premises or to the land under the Demised Premises, Licensee shall promptly cause the lien to be released or bonded by a cash or surety bond in a form and with a company reasonable satisfactory to Licensor in amount equal to twice the amount of the contested lien or claim. If Licensee fails to cause a lien to be discharged or bonded within 30 days after being notified of the filing of the lien, in addition to any other right or remedy, Licensor may discharge the lien by paying the amount claimed to be due. The amount paid by Licensor, including any costs and expenses incurred in discharging such lien, shall be due and payable by Licensee to Licensor as additional rental on the first day of the next following month. Licensee shall promptly give Licensor written notice of the recording of a lien against the Demised Premises or the land under the Demised Premises arising out of work done by or at the direction of Licensee. 6.4 Signs. Exterior signs shall be erected in accordance with Exhibit C and shall be subject to local code and rr~.unicipal approval. Licensor reserves the absolute right and power to rrohibit Licensee 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 Licensor 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 Licensee shall, immediately upon being directed in writing by Licensor to do so, remove forever any such prohibited item as Licensor shall direct. 6 7. MAINTENANCE OF BUILDING. 7.1 Repairs by Licensee. Licensee 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. Licensee may, but is not required to, construct certain improvements on the leased premises ancillary to the permitted use. 7.2 Structural Repairs by Licensor. In the event repairs become necessary to the structural portions of the Demised Premises during the term of this Agreement, then upon written notice from Licensee to Licensor stating the necessity therefore and the nature thereof, Licensor, with reasonable promptness, and at its own expense and after receipt of such written notice, shall make any such necessary repairs specified in such notice. 8. NON-LIABILITY OF LICENSOR. 8.1 Indemnity. Licensee, 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 Licensee to maintain the Demised Premises in a safe condition. 8.2 Assumption of Risk. Licensee, as a material part of the consideration to Licensor for this Agreement, 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 Licensor 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. Licensor and Licensee acknowledge and agree that Licensee 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. 7 10. ENTRY BY LICENSOR. 10.1 Access to Demised Premises. Licensee shall permit Licensor and its agents, subject to reasonable notice given to Licensee, 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 Cemised Premises are situated, or for making repairs, alterations o~ 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 Licensee for any loss of occupation or quiet enjoyment of the Demised Premises thereby occasioned; provided that except in case of emergencies, and subject to reasonable notice given to Licensee, Licensor 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. 11. ASSIGNMENT AND SUBLETTING. 11.1 Restriction on Assignment and Subletting. Licensee shall not assign this Agreement, or any interest therein, and shall not sublet the said Demised Premises or any part thereof, or any right or privilege of Licensee thereto, or suffer any other person (the agents and servants of Licensee excepted) to occupy or use the Demised Premises, or any portion thereof, without the written consent of Licensor first and obtained, which consent may be withheld by Licensor at its sc,le 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, Licensor may condition consent on amending the lease terms relating to rent. CAM, security deposit, indemnity and insurance. 12. DEFAULT. 12.1 Right to Re-enter. In the event of any failure of Licensee to pay any rental due hereunder when the same shall be due, or if Licensee becomes insolvent or bankrupt, or if Licensee fails to perform any other of the terms, conditions or covenants of this Agreement to be observed or performed by Licensee 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 Licensee, and Licensor besides any other rights or remedies it may have, shall have the immediate right to (i) terminate this Agreement and/or (ii) re-enter the Demised Premises, with or without termination. Upon re-entry by Licensor, Licensor may remove all persons and property from the Demised Premises, and 8 such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Licensee, 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. 13. SURRENDER OF DEMISED PREMISES AND HOLDING OVER. 13.1 Surrender Upon Termination. At the expiration of the tenancy hereby created, Licensee 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 Agreement, reasonable wear and tear and damage by uninsurable casualty excepted. Licensee shall surrender all keys for the Demised Premises to Licensor at the place then fixed for payment of rent and shall inform Licensor of all combinations on locks, safes and vaults, if any, in Demised Premises. On such day, unless Licensor requests Licensee to remove any of the following, all alterations, additions, improvements and all fixtures on the Demised Premises other than Licensee's trade fixtures and operating equipment, shall become the property of Licensor and shall remain upon and be surrendered with the Demised Premises as a part thereof, without disturbance, molestation or injury, and without credit to Licensee, its sublessees, concessionaires or licensees. On or before the last day of the term or the sooner termination thereof, Licensee, if not then in default, shall remove all trade fixtures, operating equipment and other personal property of Licensee from the Demised Premises and repair any damage occasioned by any such removal. Property not so removed shall be deemed abandoned by Licensee. If the Demised Premises be not surrendered at such time, Licensee shall indemnify Licensor against loss or liability resulting from delay by Licensee in so surrendering the Demised Premises, including, without limitation, any claims made by any succeeding Licensee founded on such delay. Licensee's obligations to perform this covenant shall survive the expiration or other termination of the term of this Agreement. 13.3 Holding Over. The length of this Agreement shall be for a period of one (1) year. At least sixty (60) days prior to the end of the term, Licensee shall notify Licensor whether Licensee wishes to enter into an extension of the Agreement beyond the one year lease period. Such holding over shall be on a month-to-month basis, and the parties agree to negotiate in good faith as to the rent amount and other terms, provided, however, if such negotiations do not result in an extension within sixty (60) days after Licensor's receipt of Licensee's notice, Licensee shall vacate and surrender the Demised Premises at the end of such second sixty (60) day period. 9 14. GENERAL. 14.1 Covenant of G2uiet Enioyment. Upon the payment by Licensee of the rental as aforesaid and upon the observance and performance of the covenants by Licensee herein contained, Licensee shall peaceably and quietly hold and enjoy the said Demised Premises for the term hereby demised without hindrance or interruption by Licensor or any other person or persons (other than Licensor's mortgagee), lawfully or equitably claiming by, through or under Licensor. 14.2 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 Agreement, 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. 14.3 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 Agreement, the relationship of Licensor and Licensee, Licensee's use or occupancy of the Demised Premises, and/or any claim of injury or damage. 14.4 Time of Essence. Time is of the essence in this Agreement. 10 IN WITNESS WHEREOF, Licensor and Licensee have executed these presents the day and year first above written. HO RETAIL PROPERTIES I LIMITED PARTNERSHIP, an Illinois limited partnership., By: PRINCE KUHIO PLAZA, INC., a Delaware corporation, its general partner By: Authorized Officer "Licensor" COUNTY OF HAWAII By HARRY KIM Its Mayor "Licensee" RECOMMEND APPROVAL: STACY HIGA Chair, Hawaii County Council APPROVED AS TO FORM AND LEGALITY: LINCOLN S. T. ASHIDA Corporation Counsel 11 EXHIBIT A (diagram /rendering of lease space) 12 EXHIBIT B LICENSOR CONSTRUCTION: Licensor shall provide the Demised Premises to Licensee in an "as is" condition. 13 EXHIBIT C LICENSEE CONSTRUCTION: Licensee shall construct all interior improvements. Licensee shall submit general plans for Licensor's review and approval prior to commencing any work on the premises. i4 EXHIBIT D PARKING 15