HomeMy WebLinkAboutRES 033 Draft 01 1994-1996COUNTY CiF HAWAII STATE OF ttAWAlI
RESOLUTION
WHEREAS, Article X, Section 10-11 of the Hawaii County Charter requires that any
contract, lease, or other obligation requiring payment of funds from the appropriations of a later
fiscal year or more than one fiscal yeaz be approved by resolution; and
WHEREAS, the County of Hawaii desires to lease office space of approximately 816
squaze feet at 77-6399 Nalani Street belonging to Lenders Document Service, Inc. in Kailua-
Kona, Hawaii; and
WHEREAS, the said space shall serve as the West Hawaii County Council Office and
will be occupied by the Council Members of District 7 and District 8; and
WHEREAS, the County of Hawaii wishes to enter into a lease with Lenders Document
Service, Inc. for approximately one (1) yeaz, with the County's option to renew for a period of up
to one additional yeaz.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF
HAWAII that the Mayor is hereby authorized to enter into a lease agreement with Lenders
Document Service, Inc., said lease in substantially similiaz form as described in Exhibit A,
attached hereto.
BE IT FURTHER RESOLVED that sufficient funds be budgeted in future fiscal yeazs to
cover the obligation of the County under the lease agreement.
BE IT FURTHER RESOLVED that the Clerk of the County of Hawaii transmit a copy of
this resolution to Mayor Stephen K. Yamashiro, the Director of Finance and Lenders Document
Service, Inc.
DATED: Hilo, Hawaii, this 15th day of February ,1995.
INTRODUCED BY:
OUNCIL MEMBER, COUNT OF HAWAII
COUNTY COUNCIL
County of Hawaii
Hilo, Hawefi
Moss 1 ass
I hereby oertity that the foregoing RESOLUTION was by the
vote indicated to the right hereof adopted the COUNCIL of
the CountyotHawafion February 15, 1995 ,
ATTEST:
!~~'~""1 ~ ~~
CO ~ CLERK CHpIRbIAN & PRESIDING OFFICER
RESOLUTION NO. 33 s3 tDRAFT ? ~
THIS INDENTURE OF LEASE made this day of
1995, effective, however, February 1, 1995, by and between LENDERS
DOCUMENT SERVICE, INC., a California corporation registered to do
business in the State of Hawaii, with its mailing address at Post
Office Box 4546, Kailua-Kona, Hawaii 96745-4546, hereinafter called
"Landlord", and the COUNTY OF HAWAII, for the use of
with its mailing address at 25 Aupuni Street, Hilo, Hawaii 96720,
hereinafter called "Tenant";
W I T N E S S E T H:
(1) Landlord is the sole owner of the business premises
described below, having office space therein to let.
(2) Tenant desires to lease office space from Landlord.
(3) The parties desire to enter into a lease agreement
defining their respective rights, duties and liabilities relating to
the premises.
In consideration of the mutual covenants contained herein,
the parties agree as follows:
Section 1 Description of Premises: Landlord does hereby
demise and lease to Tenant, and Tenant, does hereby hire and lease
from the Landlord a portion of the first floor of the premises
situate at Holualoa 4th, District of North Rona, Island and County
of Hawaii, State of Hawaii, known as Lot Numbers 57 and 58 of the
"Sunset View Terrace Lots, Unit 1", and commonly known as the
"LENDERS DOCUMENT SERVICE BUILDING , which portion contain 816
square feet, and is designated Bay 1 on the sketch attached hereto
as Exhibit "A" and incorporated herein by reference, hereinafter
called the "premises", together with the full right of access to
said premises in common with others over, across and through any
alleys, common entrances, lobbies, stairways, halls, escalators,
elevators and corridors in or around said building, subject to the
terms, covenants and conditions contained herein.
2
LENDERS DOCUMENT 'SERVICE BUILDING
LEASE
Table of Contents
Item Pia ,e
Section
1 Description of Premises Z
3
Z Tenn of Lease
3 Delivery of Possession 3
3
4 Base Rent
5 Payment of Costs and Security Deposit 3
6
Restrictions on Use
4
7
Abandonment of Premises
5
5
8 Utilities
9
Condition of Premises
5
5
10 Maintenance
11 Certain Rights Reserved by Landlord 6
12
Liability of Landlord 6
~
13 Destruction of Premises ~
~
14 Condemnation
15 Assignment and Subletting 8
16 Breach or Default 8
17
Effect of Breach 8
9
18 Option to Renew
lg Subordination and Financing
9
10
ZO Liability Insurance
10
yl Attorneys' Fees
10
22 Partial Invalidity
10
23 Captions and Pronouns
Y4 Successors and Assigns
it
11
Zg Binding Effect
11
26 Entire Agreement
EXHIBIT A
The premises shall be used for the purpose of business
offices and for no other purpose.
Section 2. Term of Lease. The term of the lease shall be
for a period of one (1) year from February 1, 1995, unless sooner
terminated as provided herein, or unless extended as provided
herein. Tenant shall surrender the premises to Landlord immediately
on termination of the Lease.
Section 3. Delivery of Possession. Landlord agrees to
have the premises ready for occupancy on February 1, 1995.
Section 4. Base Rent. Tenant shall pay to Landlord at
the offlc.e of Landlord or at such other place as Landlord shall
designate, the annual net rent of SEVENTEEN THOUSAND ONE HUNDRED
THIRTY-SIX AND NO/100 DOLLARS (;17,136.00), plus General Excise Tax,
in equal monthly Installments of ;1,428.00 each, plus General Excise
Tax, in advance on the first day of each and every calendar month
during the term of this Lease. If the term commences or ends other
than on the first day of a month, then the rent for such month shall
be prorated for such fractional period and paid promptly to
Landlord. Any and all soma due hereunder which are unpaid when due
shall draw interest at the rate of one percent (13) per month until
fully p~sid.
~~ Section 5 Payment of Coats and Security Deposit.
A. Payment of Costs. Landlord shall pay when due all
real property taxes and shall provide and pay for common area
lights, fire and public liability insurance on the building and
common areas with limits of ;1,000,000.00, air conditioning, water,
trash pickup, yardwork, repairs, maintenance, management services.
and all other operating coats of the building ("annual operating
costs"), except those specifically agreed to be provided by Tenant
but all such annual operating costa incurred by Landlord shall be
charged proportionately to the tenants of the building upon the
following terms and conditions:
(1) Landlord has estimated the annual operating
costs for the first year to be 24 cents per square foot per month.
The cost per square foot is determined and shall be determined
3
hereunder by dividing the monthly cost by the total leasable space
of the building.
(2) During the first year of this Lease, Tenant shall
pay the sum of ;195.84 per month (;0.24 X 816 square feet), plus
General Excise Tax, along with the monthly base rent payment, for
its total share of the estimated annual operating coats. At the end
of the first year, Landlord shall compute the actual operating costs
for that year. If the actual operating coats are greater than the
estimated coats, Tenant shall pay its proportionate share of the
difference within thirty (30) days after Landlord notifies Tenant of
the amount due. If the actual operating costs are less than the
estimated costa, Landlord shall promptly refund Tenant its
proportionate share of the difference.
(3) During each succeeding year, the previous year's
actual operating costs shall be used as a basis for determining
Tenant's estimated costs for the succeeding year. Similarly, at the
end of each succeeding year, the actual operating costs will be
computed and Tenant shall pay its proportionate share of any
shortage or shall be refunded its proportionate share of any
overage.
(4) Optional three days per week janitorial services
for the demised premises are available at an additional cost of
;204.00 per month, plus Hawaii General Excise Tax.
Tenant's utility costs are set forth in Section 8 of this Lease.
Any and all soma due hereunder which are not paid when due shall
draw interest at the rate of one percent (1S) per month until fully
paid.
B. Security Deposit. No security deposit shall be
required.
Section 6. Restrictions on Uae. Tenant shall not use nor
permit the premises, or any part thereof, to be used for any
purposes other than those set forth herein. Tenant shall neither
permit on the premises any act, sale or storage that may be
prohibited under standard forms of fire insurance policies, nor use
the premises for any such purpose. In addition, no use shall be
made nor permitted to be made that shall result in (1) waste on the
premises, (2) a public or private nuisance that may disturb the
quiet enjoyment of other tenants in the building, (3) improper,
unlawful or objectionable use, including sale, storage, or
preparation of food, alcoholic beverages, or materials generating an
odor on the premises, or (4) noises or vibrations that may disturb
other tenants. Tenant shall comply with all governmental
regulations and statutes affecting the premises either now or in the
future. Tenant shall also comply with such rules and regulations as
may be adopted by Landlord from time to time and made available in
4
written form to Tenant; said rules. and regulations may affect not
only occupancy of leased premises, but also use of common and public
area, but in any event shall be uniform as to all tenants of the
building. No animals or birds of any kind shall be permitted in or
around the building.
Section 7. Abandonment of Premises. Tenant shall not
vacate nor abandon the premises at any time during the term, but if
Tenant does vacate or abandon the premises or is dispossessed by
process of law, any personal property belonging to Tenant other than
the business files and records of Tenant and left on the premises
shall be deemed abandoned at the option of Landlord and shall become
the property of Landlord.
Section 8. Utilities.
A. Telephone. Tenant shall, in its own name, contract
for and obtain telephone services for the demised premises at its
own liability and expense and shall indemnify Landlord from any
liability thereunder.
H. Electric. Landlord shall install a separate
electrical submeter for the premises demised in this Lease for all
electrical nse and shall bill Tenant for its submetered amount each
month.
Tenant shall pay its share of electric costs within thirty (30) days
after receipt of a statement therefor. Any and all sums due
hereunder which are not paid when due shall draw interest at the
rate of one percent (lt) per month until fully paid.
,~ Section 9. Condition of Premises. If Tenant takes
posae~sion of premises after completion of construction and
remodeling, the taking of possession by Tenant shall be conclusive
evidence as against the Tenant that the premises were in good order
and satisfactory condition when Tenant took possession.
Section 10. Maintenance.
A. Tenant's Duties. Tenant will, at its own expense,
keep the interior of the premises in good repair and tenantable
condition during the term of this Lease, and Tenant shall promptly
and adequately repair all damage to the interior of the premises and
replace or repair all damaged broken glass, fixtures, and
appurtenances under the supervision and with the approval of
Landlord and within any reasonable period of time specified by
Landlord. If Tenant does not do so, Landlord may, but need not,
make such repairs and replacements, and Tenant shall pay Landlord
the coat thereof forthwith upon billing for same. Landlord may, but
shall not be required to do so, enter the premises et all reasonable
times to make such repairs, alterations, improvements and additions.
Tenant shall, at the termination of this Lease, surrender the
5
premises to Landlord in as good condition and repair as reasonable
and proper use thereof will permit.
H. Landlord's Duties. Landlord shall keep the exterior
and common areas of the building in which the premises are located
in good condition and repair, reasonable wear and tear excepted, the
coats of which, however, shall be borne proportionately by the
tenants of the building.
Landlord shall have the following rights, exercisable without notice
except as provided herein and without liability to Tenant for damage
or injury to property, persons or business and without effecting an
eviction, constructive or actual, or disturbance of Tenant's use or
possession or giving rise to any claim for set-off or abatement of
rent:
(a) To install, affix and maintain any and all signs on
the exterior and interior of the building.
(b) To designate and approve, prior to installation, all
types of window shades, blinds, drapes, awnings, window ventilators
and other similar equipment, and to control all internal lighting
that may be visible from the exterior of the building.
(c) To inspect the premises at reasonable hours and,
during the last sixty (60) days of the term, to show them to
prospective tenants at reasonable hours and, if they are vacated, to
prepare them for re-occupancy.
(d) To retain at all times, and to use in appropriate
instances, keys to all doors within and into the premises; no locks
shall be changed or added without the prior written consent of
Landlord which consent shall not be unreasonably withheld. It is
hereby understood by Landlord that Tenant has a duty of
confidentiality to its clients and, therefore, Landlord may never
enter the premises without Tenant's presence except in cases of
imminent danger to life or property.
(e) To prohibit the placing of vending or dispensing
machines of any kind in or about the premises without the prior
written permission of Landlord.
(f) So long as Tenant's use of the premises and rights
created under this Lease era no substantially affected, Landlord may
from time to time adopt such rules and regulations as in its
discretion are required and as may affect not only the occupancy of
the leased premises, but also the use of common and public areas;
said rules and regulations shall be uniform and written notice
thereof given. Landlord slay enter upon the premises and may
exercise any or all of the foregoing rights hereby reserved without
being deemed guilty of an eviction or disturbance of Tenant's use or
possession and without being liable in any manner to Tenant.
Section 12. Liability of Landlord. Tenant waives all
claims against Landlord for damages to goods or for injuries to
persona on or about the premises from any cause arising at any time
except those actions resulting from the negligent acts or omissions
6
of Landlord or his agents and employees. Tenant will indemnify
Landlord on account of any damage or injury to any person, or to the
goods of any person, arising from the use of the premises by Tenant,
or arising from the failure of Tenant to keep the premises in good
condition as provided herein. Tenant agrees to pay for all damage
to the building, as well as all damage or injury suffered by tenants
or occupants thereof caused by misuse or neglect of the premises by
Tenant.
Section 13. Destruction of Premises. In the event of a
partial destruction of the premises during the term from any insured
cause, Landlord shall forthwith repair the same provided the repairs
can be made within sixty (60) days under the laws and regulations of
applicable governmental authorities. Any such partial destruction
from any insured cause shall neither annul nor void this Lease,
except that Tenant shall be entitled to a proportionate reduction of
rent while the repairs are being made, any proportionate reduction
being based on the extent to which the making of repairs shall
interfere with the business carried on by Tenant in the premises.
If the repairs cannot be made in the specified time, Landlord may,
at his option, make repairs within a reasonable time, this Lease
continuing in full force and effect and the rent to be
proportionately rebated ae previously set forth in this paragraph.
In the event that Landlord does not elect to make repairs that
cannot be made in the specified time, this Lease may be terminated
at the option of either party. Upon such termination, Landlord
shall be liable to Tenant !or the depreciated replacement value of
all improvements and fixtures made by Tenant and not covered by
insurance. The market value of the improvements and fixtures shall
be determined by assuming the building has not been destroyed. In
the event of any partial destruction of the premises during the term
from an uninsured cause, then Landlord may, at Landlord's option,
termin a this Lease upon written notice to Tenant. A total
destru ion of the building in which the premises are situated shall
terminate this Lease.
Section 14. Condemnation. A condemnation of the entire
building or a condemnation of the portion of the premises occupied
by Tenant shall result in a t®rmination of this Lease. Tenant's
share of the compensation award will be determined by taking the
fair market value of the remaining term of the lease including the
option term and the replacement value of Tenant's improvements,
fixtures and alterations less the amount due under the lease, over
the fair market value of the building times the actual condemnation
award. The fair market values referred to above shall be determined
by assuming there has been no condemnation.
For example, assume ae follows: the fair market value of
the remaining term of the lease less the amount due under the lease
is 65,000.00; the replacement value of Tenant's improvements,
fixtures and alterations is 65,000.00; the fair market value of the
7
building is ;100,000.00; the actual condemnation award is
;60,000.00. Then Tenant's share shall be ;6,000.00, i.e.:
(;10,000 divided by ;100,000) x ;60,000.
Section 15. Assionment and Subletting. Tenant shall not
assign any rights or duties under this Lease nor sublet any part of
the premises without the prior written consent of Landlord, which
consent shall not be unreasonably withheld. A consent to one
assignment or sublease shall not waive Landlord's rights hereunder.
This Lease shall not be assignable by operation of law without the
written consent of Landlord, which consent shall not be unreasonably
withheld.
Section 16. Breach or Default. Tenant shall have
breached this Lease and shall be considered in default hereunder if
(1) Tenant files a petition in bankruptcy or insolvency or for
reorganization under any bankruptcy act or makes an assignment for
the benefit of creditors, (2) involuntary bankruptcy proceedings are
instituted against Tenant under any bankruptcy act and such
proceedings adjudge Tenant a bankrupt, (3) Tenant fails to pay any
monthly rent or operation costa when due and Landlord has given
Tenant fifteen (15) days written notice to pay the rent or operation
coats, or (4) Tenant fails to perform or comply with any of the
covenants or conditions of this Lease and such failure continues for
a period of thirty (30) days after written notice thereof is given
to Tenant.
Section 17. Effect of Breach. In the event of a breach
of this Lease as set forth in Section 16, the rights of Landlord
shall be as follows:
(1) Landlord shall have the right to cancel and terminate
this Lease, as well as all of the right, title and interest of
Tenant hereunder, by giving to Tenant not less than ten (10) days'
written notice of the cancellation and termination. On expiration
of the time fixed in the notice, this Lease and the right, title and
interest of Tenant hereunder shall terminate in the same manner and
with the same force and effect, except as to Tenant's liability, as
if the date fixed in the notice of cancellation and termination were
the end of the term herein originally determined.
(2) Without affecting Landlord's duty to mitigate
damages, on termination Landlord may recover from Tenant all damages
proximately resulting from the breach, including the cost of
recovering the premises and the worth of the balance of this Lease
over the reasonable rental value of the premises for the remainder
of the lease term, which sum shall be immediately due Landlord from
Tenant.
Without affecting Landlord's duty to mitigate damages
and after reasonable time allowed Tenant to release the premises,
Landlord may relet the premises or any part thereof for any term
8
without terminating the lease. Landlord may make alterations and
repairs to the premiaea. The duties and liabilities of the parties
if the premises are relet as provided herein shall be as follows:
(a) In addition to Tenant's liability to Landlord
for breach of the lease, Tenant shall be liable for all expenses of
the relettinq, for the alterations and repairs made, and for the
difference between the rent received by Landlord under the new lease
agreement and the rent installments that are due for the same period
under this Lease.
(b) The rent received from relettinq the premises
shall be applied: (1) to reduce Tenant's indebtedness to Landlord
under this Leese, (2) to expenses of the relettinq and alterations
and repairs made, (3) to rent due under this Lease, or (4) to
payment of future rent under this Lease as it becomes due.
If the new tenant does not pay a rent
installment promptly to Landlord and the rent installment has been
credited in advance of payment to the indebtedness of Tenant other
than rent or if rentals from the new tenant have been otherwise
applied by Landlord as provided for herein and, during any rent
installment period, are leas than the rent payable for the
corresponding installment period under thin Leaee, Tenant shall pay
Landlord the deficiency separately for each rent installment
deficiency period and before the end of that period.
Section 18. Option to Renew. Tenant shall have the
option to renew thin Lease for a period of up to one additional
year; provided, however, that this option is conditioned upon Tenant
delivering written notice to Landlord of its intent to exercise this
option~~ot leas than sixty (60) days prior to the expiration date of
this_I~Base. If the renewal period is for leas than one year, either
party y terminate thin Leaee upon sixty (60) days' advance written
notice. The rental shall be subject to adjustment at the time of
any renewal, but all other terms and conditions shall remain se
provided herein. The rent shall be adjusted so that the per square
foot rental paid for the renewal period will reflect the increase in
the coat of living index during the term of this Lease. The cost of
living index to be used shall be that established for Honolulu,
Hawaii. In no case shall the rent be reduced.
Section 19. Subordination and Financing. Tenant agrees
upon request of Landlord to subordinate this Lease and its rights
hereunder to the lien of any mortgage, deed of trust or other
encumbrance, together with any conditions, renewals, extensions or
replacements thereof, now or hereafter placed, charged or enforced
against the Landlord's interest in this Lease and the leasehold
estate hereby created, the premiaea or the land, building or
improvements included thereon or of which the premises are a part,
and to execute and deliver (but without coat to Tenant) at any time
and from time to time upon demand by Landlord such documents as may
9
be required to effectuate such subordination, and, in the event that
Tenant shall fail, neglect or refuse to execute and deliver any such
document within ten (10) days after Landlord has given written
notice to do so, Tenant hereby appoints Landlord, its successors and
assigns, the attorney-in-fact of Tenant irrevocably to execute and
deliver any and all such documents for and on behalf of Tenant;
provided, however, that Tenant shall not be required to effectuate
such subordination nor shall Landlord be authorized to effect such
subordination on behalf of Tenant, unless the mortgagee or
beneficiary named in such mortgage, deed of trust or other
encumbrance shall first agree in writing for the benefit of Tenant
that, so long as Tenant is not in default under any of the
provisions, covenants or conditions of this Lease on the part of
Tenant to be kept and performed, neither this Lease nor any of the
rights of Tenant hereunder shall be terminated or modified or be
subject to termination or modification nor shall Tenant's possession
of the premises be disturbed or interfered with by any trustee's
sale or by an action or proceeding to foreclose said mortgage, deed
of trust or other encumbrance.
Section 20. Liability Insurance. The parties agree and
acknowledge that the County of Hawaii is a self-insured entity for
the purpose of liability, premises, fire and hazard insurance.
Section 21. Attorneys' Fees. In case suit shall be
brought for an unlawful detainer of the premises, for the recovery
of any rent due under the provisions of this Lease or for breach of
any condition contained herein by either party, the prevailing party
in such action shall recover in addition to damages and coats a
reasonable attorney's fee which shall be fixed by the court.
Section 22. Partial Invalidity. If any term, provision,
covenant or condition of this Lease shall be held by a court of
competent jurisdiction to be invalid, void or unenforceable, the
remainder of this Lease shall continue in full force and effect and
shall in no way be affected, impaired or invalidated thereby.
Section 23. Captions and Pronouns.
(1) Captions. The captions appearing at the beginning of
the articles, sections and paragraphs hereof are descriptive only
and intended for convenience in reference to this Lease and should
there be any conflict or inconsistency between any such caption and
the text of any such article, section or paragraph at the head of
which it appears, the text of the article, section or paragraph, as
the case may be, and not such caption shall control and govern in
the construction of the terms of this Lease.
(2) Pronouns. Masculine or feminine pronouns shall be
substituted for the neuter form and vice versa, and the plural shall
be substituted for the singular and vice versa in any place or
10
places herein in which the context_requires such substitution or
substitutions.
Section 24. Successors and Assigns.
provisions, covenants and conditions contained
apply to, bind and inure to the benefit of the
representatives, administrators, legal represe~
and assigns (where assignment is permitted) of
respectively.
The terms,
in this Lease shall
heirs, personal
ztatives, successors
Landlord and Tenant,
Section 25. Binding Effect. This Lease shall supersede
prior proposals to lease, lease and any previous amendments and
shall be binding upon and inure to the benefit of the parties hereto
and to their respective legal representatives and successors in
interest.
Section 26. Entire Agreement. This Lease constitutes the
entire agreement of Landlord and Tenant and supersedes all oral and
written agreements and understandings made and entered into by the
parties hereto prior to the date hereof, except any agreements
entered into by Landlord and Tenant relating to the construction of
improvements by Landlord for the benefit of Tenant concerning the
premises. Except as herein and otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be
binding upon Landlord and Tenant unless reduced to writing and
signed by each of them. Without limiting the generality of the
foregoing, this Lease may not be amended or modified without the
written consent of all beneficiaries under any mortgages or deeds of
trust constituting a lien on the fee or all or any portion of the
premises demised to Tenant.
IN WITNESS WHEREOF, the parties hereto have caused this
instru~t to be executed in duplicate, thereby giving it effect the
day an year first above written.
"Landlord" LENDERS DOCUMENT SERVICE, INC.
By
I Vic President
"Tenant" COUNTY OF HAWAII
By
Stephen K. Yamashiro
Its Mayor
11
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