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HomeMy WebLinkAboutRES 418 Draft 01 1994-1996COUNTY OF HAWAtt =STATE OF HAWAII RESOLUTION N0. 418 9 ~ RESOLUTION AUTHORIZING THE MAYOR TO ENTER INTO AMULTI-YEAR SUBLEASE AGREEMENT WITH THE BOYS AND GIRLS CLUB. WHEREAS, Section 10-11 of the 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 year be approved by resolution; and WHEREAS, the County currently has a sublease agreement with the Boys and Girls Club of Hilo on a month-to-month basis with a minimum of thirty days notice of termination; and WHEREAS, the term of the existing sublease agreement is contingent upon the annual availability of funds to the County Police Department; and WHEREAS, it is in the best interest of the Police Department, the Boys and Girls Club and the youngsters using the facilities that a longer lease agreement be arranged. NOW, THEREFORE, BE IT RESOLVED by the Council of the County of Hawaii: 1. That the Mayor is hereby authorized to enter into a sublease agreement with the Boys and Girls Club of Hilo, said lease in substantially similar form as described in Exhibit A, attached hereto. ~ 2. That sufficient funds be budgeted in future fiscal years to cover the obligation of the County under the lease agreement. BE IT FURTHER RESOLVED that a copy of this resolution be forwarded to Mayor Stephen K. Yamashiro, the Director of Finance, the Police Department, and the Boys and Girls Club of Hilo. Dated at Hilo, Hawaii, this 21st day of November , 1996. INTRODUCED BY: l COUNCIL M MBER, COUNTY OF HAWAII crt\boysgirl COU Coy I hereby certify that the fc vote indicated to the right the County of Hawaii on ATTEST: ~~~ R OLL CAL L VOTE NTY COUNCIL of Hawaii int AYES NOES ABS EX y kilo, Hawaii Aralcaki X Easley X RESOLUTION was by the re oin Q" l~ X g g COUNCIL f d b th h f d ~ Llma X o opte y e ereo a 1996 21 Domingo X , Novanber Osorio X ~ Van De Car X ~1-- Ray X Smith }t 9 0 0 0 ` i Reference C -14 7 8 ._~~.'. ,, ~~ _~_:..~; ~. i COUNTY CLERK CHAIRMAN & PRESIDING OFFICER RESOLUTION NO. 4 1 8 9 6 THIS SUBLEASE AGREEMENT, made and entered into this day of by and between the BOYS AND GIRLS CLUB OF HILO, hereinafter referred to as "Sublessor," and the COUNTY OF HAWAII, by and through its Mayor, Stephen K. Yamashiro, hereinafter referred to as "Subleassee." W I T N E S S E T H• ' ARTICLE I DEMISE Section 1.1 Premises. Sublessor does hereby demise and sublease to Sublessee, and Sub le sublease from the Sublessor, on a certain property identified as Taa said property being hereinafter ref Said Premises shall include all i....~~e.a Vhe.~e.,..nn inrli,Ainn_ hnt see does hereby hire and non-exclusive basis, that Kap Key No. (3)2-3-20:01, rred to as the "Premises." provements and facilities ,nt hP limited to. a main building, a gymnasium, a swimming pool, playfields and ballparks. Section 1.2 Term. The term of this sublease and Sublessee's obligation to pay the rent hereunder shall commence on July 1, 1995 and shall be for a period of five years; PROVIDED, HOWEVER, that said term shall be contingent upon the annual availability of funds toy the County of Hawaii, Police Department, to pay such rent. "EXHIBIT A" Section 1.3 Quiet Eniovment. Upon payment by Sublessee of the rent hereinafter reserved and upon observance and performance of the terms, covenants and conditions herein contained and to be observed and performed by Sublessee, Sublessee shall peaceably hold and enjoy the Premises for said term and any extensions thereof without hindrance or interruption by Sublessor or any other person lawfully or equitably claiming by, through or under the Sublessor, except as herein otherwise expressly provided. Section 1.4 Priority of Use. Notwithstanding the nonexclusive basis of this sublease, it is specifically understood that Sublessee shall have priority over all others, including the Sublessor, in its use of the Premises. it is specifically understood, however, that in order to maaimize the use of the Premises, the Sublessor shall be allowed to schedule activities thereon upon the availability of said Premises and upon the prior written approval of the Sublessee. ARTICLE II Section 2.1 Rent. Sublessee will pay to Sublessor, without any deduction and without any notice or demand, for each and every month of said term, net over and above all other charges hereunder payable by Sublessee, a rental of FOUR THOUSAND AND NO/100 DOLLARS ($4,000.00) per month. The rental shall be payable on the first day mf each and every month during the term hereof. -2- ARTICLE III ~~ Section 3.1 Use of Premises. The Premises shall be occupied and used by Sublessee for its Police Youth Activities League. Sublessee will not use or permit, or suffer the use of the Premises for any other business or purposes without the written consent of the Sublessor. Section 3.2 Use of Swimming Pool. Sublessee's use of the swimming pool shall be conditioned upon its having, at its own cost, a lifeguard with current Red Cross certification and employed by the Boy's and Girl's Club of Hilo on duty at all times during the use thereof. Section 3.3 Common Areas. The common areas shall consist of all areas designed for common use or benefit, including, without limiting the generality of the foregoing, parking lot, delivery areas, curbs, drains, walkways, corridors, hallways, gardens, landscaped and vacant areas and public facilities such as washrooms, lounges, toilets, drinking fountains, shelters, stairs and ramps. Sublessee and its employees, agents and invitees shall have the right at all times during said term, subject to applicable rules and regulations, made by Sublessor and as approved by the Sublessee as herein provided, to the reasonable use of the common areas in common with Sublessor and others entitled to use such areas. -3- Section 3.4 Observance of Laws. Sublessee will at all times during said term observe and comply with all laws, ordinances, and rules and regulations now or hereafter made by any governmental authority and applicable to the occupancy or use of the Premises or the conduct of any business therein or to the use of the common areas. Section 3.5 Rules and Regulations. Sublessor may from time to time adopt or amend such reasonable rules and regulations as Sublessor deems necessary or desirable for the operation or use of the Premises, such as but not limited to, the use of the common areas and other matters which may be of benefit or protection of the Sublessor and the Sublessee; PROVIDED, HOWEVER, that such rules and regulations shall not be inconsistent with the terms, convenants and conditions of this sublease and shall be subject to the approval of the Sublessee. The Sublessee shall observe and comply with such rules and regulations. Section 3.6 Waste. Nuisance or Unlawful Activity. Sublessee agrees that it will not commit or permit any waste on the Premises, or maintain or permit to be maintained a nuisance thereon, or use or permit the Premises to be used in an unlawful manner. Section 3.7 Assignment and Subletting. Sublessee will not assign this sublease or any interest hereunder, or subrent or sublease said Premises or any portion thereof, without the -4- prior written consent of the Sublessor. Such consent shall not be unreasonably withheld, nor shall Sublessee be released from further liability hereunder by reason thereof. ARTICLE IV MAINTENANCE. REPAIRS AND ALTERATIONS Section 4.1 Sublessee's Maintenance and Reuair of the Premises. The Sublessee will at its own cost during the term of this lease and any extensions thereof keep the Premises in a good and safe condition, reasonable use and wear and tear and unavoidable casualty excepted. Section 4.2 Sublessor's Insvection. The Sublessee will allow the Sublessor and the agents of the Sublessor, at reasonable times, to enter upon said premises and eaamine the condition thereof. Section 9.3 Fire or Other Casualty. In the event the premises shall be partially destroyed or damaged by fire or other casualty during the term of this sublease or any extension thereof, the Sublessor shall forthwith repair the same. Any such partial destruction shall neither annul nor void this sublease, except that Sublessee shall be entitled to a proportionate reduction in rent during the period the repairs are being made; any such proportionate reduction being based on the eatent to which the making of repairs shall interfere with the full use of the Premises by the Sublessee. PROVIDED, HOWEVER, that should the Premises be substantially or totally destroyed or damaged by fire or other -5- casualty, either party may terminate this sublease as of the date of such destruction or damage. Section 4.4 Fire Insurance. The Sublessor will carry fire and eatended coverage insurance of the Premises. Such insurance shall cover the structural portion of the building, plus all structural improvements constructed by the Sublessee, if any. To the eztent that coverage of Sublessee's structural improvements shall increase the insurance premium otherwise payable by the Sublessor, Sublessee shall upon demand, reimburse the Sublessor for the increased cost. Section 4.5 Alterations. Sublessee will not make any alterations or additions whatsoever to the Premises without first obtaining Sublessor's written approval of the plans and specifications thereof. All alterations, improvements and/or additions shall be in compliance with all governmental regulations including, without limitation, all building permit requirements. Section 4.6 Maintenance and Repairs by Sublessor. Sublessor shall make all reasonably necessary repairs to the structure of the building and to the Premises to maintain the same in good condition and shall maintain the public and common areas of the building such as lobbies, corridors, landscaping, common restrooms, stairs and parking lot, in reasonably good order and condition. Such repairs and maintenance shall be made at Sublessor's eapense ezcept for damage occasioned by the -6- act of Sublessee or Sublessee's employees, agents and invitees. Section 4.7 Entrv for Repairs and Alterations. Without in any manner obligating the Sublessor so to do ezcept as to structural repairs, and without modifying the obligations of the Sublessee under the nett preceding paragraph, the Sublessor shall further have the right to enter the Premises at all reasonable hours for the purpose of ezamining the same and making any repairs, decorations, alterations, or additions which the Sublessor shall deem necessary or advisable for the safety, preservation, or improvement of the premises or of the building, and the Sublessor shall be allowed to take all material into and upon the Premises that may be required to make such repairs, decorations, improvements and additions or any alterations without in any way being deemed or held guilty of an eviction of the Sublessee; and the rent stipulated to be paid shall in no wise abate while said repairs, decorations, alterations, or additions are being made, nor shall the Sublessee be entitled to maintain a setoff or counterclaim for damages against the Sublessor by reason of loss or interruption to the business of the Sublessee because of the prosecution of any such work. All such repairs, decorations, alterations, additions and improvements shall be made during ordinary working hours, or if any such work is, at the request of the Sublessee, to be done during any other hours, the Sublessee shall pay for any eztra cost occurring because of such request. -7- ARTICLE V Section 5.1 Liabilitv of the Parties. Sublessee shall be liable in the same manner and to the same extent as a private individual under like circumstances, for all claims and demands for property damage, loss, personal injury or death on the Premises caused by the negligent or wrongful act or omission of any officer and employee of the Sublessee while acting within the scope of his office or employment, or persons acting for a County agency in an official capacity, temporarily whether with or without compensation. It is specifically understood, however, that the Sublessee shall in no way be held liable for any claims, damages, causes of action resulting from any acts, activities or omissions of the Sublessee, including but not limited to any damage, loss, personal injury or death on the Premises which may be sustained during an activity or event scheduled by the Sublessor, as provided in Section 1.4, and the Sublessor shall indemnify, defend, and save harmless the Sublessee, its officers, agents and employees from any actions, claims, suits, damages, or costs arising out of or resulting from such acts, activities or omissions. Section 5.1 (a) indemnification. The Sublessor agrees and stipulates to indemnify the Sublessee, its agents, representatives and employees, for any and all claims, damages, loss, property damage, personal injure, involving inadequate, -8- dangerous and/or hazardous conditions on the subject property, whether known or unknown at the time the original sublease agreement was executed. The sublessee and its agents, representatives and employees shall notify the Sublessor in writing, of any inadequate, dangerous and/or hazardous conditions on the subject property as soon as they are known. The Sublessor shall make every reasonable effort to address, correct and repair any inadequate, dangerous and/or hazardous conditions on the subject property. Section 5.2 Liability Insurance. Sublessee is self-insured and liability insurance is therefore not required. ARTICLE VI CONDEMNATION Section 6.1 Condemnation. In the event during the term of this sublease or any extensions thereof, the Premises or any part thereof shall be taken or condemned by any authority having the power of eminent domain, then and in such event, this sublease shall cease and terminate as of the date Sublessee is required to vacate the Premises, and the rent reserved shall be apportioned and paid up to that date. All compensation and damages payable for or on account of said Premises and common areas and the sites thereof, eacept for improvements constructed or owned by the Sublessee, shall be payable to and be the sole property of the Sublessor. Sublessee shall be compensated for all improvements constructed -9- or owned by the Sublessee. The Sublessee shall not be entitled to any claim against the Sublessor for condemnation of or indemnity for the leasehold interest of the Sublessee. Section 6.2 Partial Taking. In case only part of the Premises shall be so taken or condemned, the rent thereafter payable for the unexpired remainder of said term shall be reduced in the same proportion that the area of said Premises so taken or condemned bears to the total area of said Premises hereby demised. In the event, however, that the Premises is rendered unfit for Sublessee's use by reason thereof, then this sublease may be terminated by written notice by Sublessee effective 60 days from the date of receipt. ARTICLE VII Section 7.1 Remo,~;o~ nn Suhlc±ssee's Default. This demise is upon the express condition that, if Sublessee shall fail to pay the rent herein reserved or any part thereof as the same becomes due, or shall fail to faithfully observe and perform any other term, covenant or condition of this sublease, or shall abandon the Premises, or shall suffer this sublease or any estate or interest hereunder to be taken on execution, or shall suffer mechanics' or materialmen's lien to attach said Premises, and shall fail to secure the discharge or release thereof within a reasonable time after the entry of any judgment or order of a court of competent jurisdiction for the -10- foreclosure or other endorsement of such lien and such breach or default shall continue for a period of thirty (30) days after delivery of a written notice of any such breach or default by personal service, registered mail or certified mail, then in such event, Sublessor may at once re-enter the Premises and, upon or without such entry, at its option terminate this sublease without any further service or notice or legal process, and may ezpel and remove from said Premises Sublessee and those claiming under it and its effects, without being deemed guilty of~any trespass or becoming liable for any loss or damage which may be occasioned thereby, and may then or at anytime thereafter bring an action or summary possession of said Premises, all without prejudice to any other remedy or right of action which Sublessor may have for arrears of rent or other breach of contract. Section 7.2 Nonwaiver. The acceptance of rent by Sublessor or its agent shall not be deemed to be a waiver by it of any breach by Sublessee of any covenant contained herein or of Sublessor's right to re-enter for breach of condition. ARTICLE VIII ~=F'NERAT• COVENANTS . Section 8.1 r~t;l, v and Other Charges. The Sublessor shall pay for all utility (water and electricity) charges and costs for reasonable janitorial services. -11- Section 8.2 DamaQP to Sublessee's Property. The Sublessor shall not be responsible for loss or damage to furniture, fiztures, supplies, leasehold improvements and other property on the Premises, by whomsoever owned, other than damage caused by the willful act or gross negligence of the Sublessor. Section 8.3 Surrender of Premises. At the end of the term of this sublease or other sooner termination of this sublease, Sublessee will peaceably deliver up to the Sublessor possession of the Premises together with all improvements thereon by whomsoever made, which under the terms of the contract cannot be removed by the Sublessee, in good repair, order and condition, reasonable wear and tear and unavoidable casualty ezcepted. Section 8.4 Removal of Fiztures. Sublessee may at anytime during said term, with the prior written consent of the Sublessor which shall not be unreasonably withheld, remove any fiztures and personal property installed by Sublessee in or about the Premises if such removal does not damage any structural portion of said Premises. Sublessee will at its own ezpense promptly repair to Sublessor's satisfaction all damage caused by such removal. Section 8.5 Holding Over. If Sublessee shall remain in possession of said Premises after the expiration of said term without ezecutinq a document eate'nding or renewing this -12- sublease, Sublessee shall be deemed to occupy said Premises as a tenant from month to month at the rent herein reserved, subject to all the other terms, covenants, and conditions herein contained insofar as the same are applicable to a month-to-month tenancy. It is specifically understood, however, that such tenancy shall be valid insofar as a proper appropriation for the payment thereof has been made by the Hawaii County Council. Section 8.6 Time is of the Essence. Time is of the essence in all provisions of this sublease. Section 8.7 Notices. Any notice or demand to be given to or served upon either Sublessor or Sublessee in connection with this sublease shall be deemed to have been sufficiently given or served for all purposes by being sent by registered mail or certified mail, postage prepaid, addressed to such party at its post office address as such party may from time to time designate in writing to the other party, or by being delivered personally to Sublessee or Sublessor or any of its officers, as the case may be, and any such notice or demand shall be deemed to have been given or served on the date of the receipt of such mail or on the date of personal delivery. Section 8.8 Headings. The article and paragraph headings herein are inserted only for convenience and reference and shall in no way define, describe or limit the scope or intent of any provision of this sublease -13- Section 8.9 Successor and Assigns. The term "Sublessor" as used herein shall include the Sublessor, its successors and assigns, and the term "Sublessee" as used herein shall include the Sublessee, its successors and permitted assigns. ARTICLE XI SPECIAL PROVISIONS Section 9.1 Sublease Subordinate to Mortgages. This sublease shall be~subject and subordinate to any encumbrance now of record affecting the building, other improvements, or the land of which the Premises are a part and the lien of any mortgage in any amount or amounts whatsoever now eaistinq or hereafter placed on the land and buildings of which the Premises form a part without the necessity of any further instrument or act on the part of the Sublessee to effectuate such subordination, provided the mortgagee named in any such mortgage shall agree that in the event of foreclosure it will not join the Sublessee as a party defendant in the foreclosure action and will not take any action to terminate this sublease so long as the Sublessee is not in default hereunder. The Sublessee covenants and agrees to ezecute and deliver upon demand such further instrument or instruments evidencing such subordination of this sublease to the lien of any such mortgage or mortgages as may be required by the Sublessor. -14- Section 9.2 Riaht to Estovvel Certificates. Each party, within ten (10) days after notice from the other party, shall execute and deliver to the other party, in recordable form, a certificate stating that neither party is in default under the sublease (is such is the case), that this sublease is unmodified and in full force and effect, or in full force and effect as modified, and stating the modifications. The certificate also shall state the amount of minimum monthly rent, the dates to which the rent has been paid in advance, and the amount of any security deposit or prepaid rent. Failure to deliver the certificate within the ten (10) days shall be conclusive upon the party failing to deliver the certificate for the benefit of the party requesting the certificate or any successor to the party requesting the certificate, that this sublease is in full force and effect and has not been modified ezcept as may be represented by the party requesting the certificate. If a party fails to deliver the certificate within the ten (10) days, the party failing to deliver the certificate irrevocably constitutes and appoints the other party as its special attorney-in-fact to ezecute and deliver the certificate to any third party. Section 9.3 Oueratina Eaoenses. Sublessor shall pay for all operating costs associated with the Premises. As used herein, operating ezpenses shall include all direct costs of repair, operating and maintenance as determined -15- by standard accounting practices and shall include the following costs by way of illustration but not limitation: real property tazes and assessments, the cost of water and electricity, gardening and landscaping, including replanting and relandscaping, the cost of hazard insurance, property damage insurance, any other insurance which Sublessor may maintain, restriping and resurfacing of parking areas, rebuilding of parking areas, maintenance, repairs, line painting, painting of all ezterior walls, maintenance of all roofs, refuse removal, directional signs and markers, janitorial services, purchase and maintenance of refuse containers, repairs to lighting fiztures and equipment, repairs to pavement, repairs to water, sewer, and storm drain lines, sanitary control, depreciation on machinery and equipment used in such maintenance services, the cost of services contracted out, such as but not limited to security, direction of parking, grounds keeping and tree trimming. Section 9.4 Force Maiure. 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, lockouts, inability to procure materials, failure of electrical power, governmental laws or regulations, riots, insurrections or other reason of a like nature not the fault of the other party, or delayed in performing the work or doing the acts required under the sublease, then such performance shall -16- be ezcused for the period of the delays and the period for performance of such act shall be eztended for a period equivalent to the period of such delay. It is understood that this provision shall not operate to ezcuse Sublessee from the prompt payment of rent or any other payment due hereunder. Section 9.5 Attornevs' Fees. If either party becomes a party to any litigation concerning this sublease, the Premises, or the building or other improvements in which the premises are located, by reason of any act or omission of the other party or its authorized representatives, and not by any act or omission of the party that becomes a party to that litigation or any act or omission of its authorized representatives, the party that causes the other party to become involved in the litigation shall be liable to that party for reasonable attorneys' fees and court costs incurred by it in the litigation; provided, however, that no such liability shall accrue unless and until an actual breach of covenant shall have been established. -17- IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly ezecuted on the day and year first above written. BOYS AND GIRLS CLUB OF HILO Its "SUBLESSOR" -18- STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this day of 19 before me appeared to me personally known, who, being by me duly sworn, did say that he is the of the BOYS AND GIRLS CLUB OF HILO, a Hawaii corporation; that the seal affized to the foregoing instrument is the corporate seal of said corporation; that said instrument was signed and sealed in behalf of said corporation by authority of its Hoard of Directors; and the said acknowledged said instrument to be the free act and deed of said corporation. Notary Public, State of Hawaii My commission ezpires: -19- STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this day of 199_, before me personally appeared STEPHEN K. YAMASHIRO, to me personally known, who, being by me duly sworn, did say that he is the Mayor or the County of Hawaii, a municipal corporation of the State of Hawaii; that the seal affixed to the foregoing instrument is the corporate seal of -the said County of Hawaii; that the foregoing instrument was signed and sealed in behalf of the County of Hawaii by authority given to said Mayor of the County of Hawaii by Section 5-1.5 of the County Charter, County of Hawaii (1991), as amended; and said STEPHEN K. YAMASHIRO acknowledged said instrument to be the free act and deed of said County of Hawaii. Notary Public, State of Hawaii My commission eapires: -20-