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HomeMy WebLinkAboutRES 115 Draft 01 1992-1994COUNTY OF HAWAII STATE OF HAWAII RESOLUTION WHEREAS Section 10-11 of the County Charter requires that any contract lease, or other obligation rgquiring payment of funds from tie appropriations of a later fiscal year or more than one fiscal year be approved by resolution; and spaceHofEapproxmatelyy2~450asgauareefeetsatoalMakaalarStreet building belonging to THY and Associates in Hilo, Hawaii; and WHEREAS, the Office of the CauntY Clerk, Elections Division, will occupy said space; and WHEREAS the County wishes to enter into a multi-year lease with THY and` Associates for approximately two (2) years ending on January 31, 1996, NOW,.THEREFORE, BE IT RESOLVED by the Council of the County of Hawaii: 1. That the M~por is hereby authorized to enter into a lease agreement with THY and•Associates, 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. forwarded toRMayorRStephen KhaYamashiio~fDirectorsofuFinance and THY and Associates. DATED: Hilo, Hawaii, December 22. t99't introduced by: COUNTY COUNCIL County of Hawaii Hilo, Hawaii I hereby certify that the foregoing RESOLUTION was by the vote indicated to the right hereof adopted by the COUNCIL of the County of Hawaii on Decemb 9 7 ATTEST: CHAIRMAN & PRESIDING OFFICER .. COIdNCIL MEMBER LL CALL V07 ~ _.~ AYES ~ NOES ~ ABS ~ EX Reference C-622/Res. 116/FC-130 RESOLUTION NO. 12S 93 2351K TMK: (3) 2-2-60-16 THIS SUBLEASE AGREEMENT made and entered into this day , , of 19 by and between THY & ASSOCIATES, INC., a Hawaii corporation, whose mailing address is P.O. Box 358, Keaau, Hawaii 96749, hereinafter referred to as "SUBLESSOR," and the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii, by and through its Mayor, Stephen K. Yamashiro, whose mailing address is 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter referred to as "SUBLESSEE," WHEREAS, Sublessor entered into that certain lease agreement with the State of Hawaii, Department of Hawaiian Homes, dated January 15, 1971; and Office of the Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 WHEREAS, Sublessor and Sublessee are desirous of entering into an agreement for the sublease of a portion of the property covered by the above-referenced lease agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the parties hereto hereby agree as follows: WITNESSETH: 1. Pr m~ Sublessor shall sublease to Sublessee, Space B. consisting of 2,450 square feet within the building located at 210 Makaala Street, Hilo, Hawaii 96720, as shown on the diagram attached hereto as Exhibit A. 2• Term. The term of this Sublease shall be starting on and ending on January 31, 1996. 3• Rent. For the period to January 31, 1996, Sublessee shall pay Sublessor rent of ONE THOUSAND TWO HUNDRED TWENTY-FIVE AND NO/100 DOLLARS ($1,225.00) per month, plus general eacise taa, payable in advance on the 1st day of each month, eacept for the first and last month of rent which shall be prorated. If rent is not paid by the 10th day of each month, Sublessee shall pay a late fee of 5$ of the late payment. 4. Security D uo ~* Sublessee shall, upon ezecution of this Sublease deposit with Sublessor the sum of ONE THOUSAND TWO HUNDRED TWENTY-FIVE AND NO/100 DOLLARS ($1,225.00) to secure the -2- faithful performance by Sublessee of all the terms, covenants, and conditions of this Sublease by Sublessee to be kept and performed during the term of this Sublease. If at any time during the term of this Sublease any of the rent herein reserved shall be overdue and unpaid, or any other sum payable by Sublessee shall be overdue an unpaid, then Sublessor, at his option, may appropriate and apply any portion of said deposit to the payment of any such overdue rent or other sum. In the event of the failure of Sublessee to keep and perform all of the terms, covenants and conditions of this Sublease to be kept and performed by Sublessee, then at the option of Sublessor, Sublessor may appropriate and apply said entire deposit, or so much thereof as may be necessary, to compensate Sublessor for all loss or damages sustained or suffered by Sublessor due to such breach on the part of Sublessee. In the event the entire deposit or any portion thereof is appropriated and applied by Sublessor for the payment of overdue rent or other sums due and payable to Sublessor, then Sublessee shall, upon the written demand of Sublessor, forthwith remit to Sublessor a sufficient amount in cash to restore said security to the amount of one month's rent, and Sublessee's failure to do so within ten (10) days after the receipt of such demand, shall constitute a breach of this Sublease. In the event Sublessee shall comply with all the terms, covenants and conditions of this Sublease and promptly pay all of the rentals herein provided for as it falls due and all -3- other sums payable by Sublessee the said deposit shall be returned to Sublessee, without interest, at the end of the term of this Sublease, or upon any earlier termination of this Sublease. 5. Taxes and A caccman In addition to the monthly rent, Sublessee shall pay to Sublessor 31$ of all real property taxes and other assessments imposed against the entire premises of which the demised premises are a part. Sublessor shall have the option to demand payment in monthly prorata installments or when due. 6. Utilities. Sublessee shall pay for all utilities used by Sublessee including, but not limited to, electricity, telephone and gas. Sublessee shall reimburse Sublessor one-third (1/3) of the water and sewer bill within 20 days of Sublessor's demand. 7. Maintenance an Obcer~ance of Lawc, Sublessee will at all times during this Sublease, at Sublessee's own cost, and without eapense to sublessor, keep and maintain the subleased premises or any improvement thereon in a good, clean, orderly and sanitary condition and repair and observe and perform all laws, ordinances, rules and regulations made by any governmental authority and will indemnify and hold Sublessor harmless against all actions, suits, damages and claims by whomsoever brought or made by reason of the nonobservance or nonperformance of the laws, ordinances, rules and regulations included in this -4- paragraph. Sublessor is permitted to enter onto the subleased premises at any reasonable time for inspection purposes. Sublessor, however, will be responsible for maintaining the common areas shared by all the tenants of the building. 8. 4uier r, ~ F Upon payment by Sublessee of the rent, and upon observance and performance of all of the terms, covenants and conditions of this Sublease, Sublessee shall peaceably hold and enjoy the subleased premises during the term hereof without hindrance or interruption by Sublessor or anyone lawfully of equitably claiming by, through or under Sublessor. 9. ImDrOVemsanfc by thl cco (a) Sublessee shall have the right at Sublessee's own expense to make such improvements or alterations of the subleased premises as Sublessee may desire for carrying o^ Sublessee's business; provided, however, that the plans and specifications for all such improvements or alterations shall be submitted to Sublessor for approval prior to the commencement of any construction, which approval may not be unreasonably withheld. Should Sublessee fail to so submit the plans and specifications, Sublessor may require the removal or alteration of the improvements by Sublessee at Sublessee's expense. (b) Such improvements or alterations shall be made in a good and workmanlike manner and in compliance with all laws and regulations of all governmental authority having -5- jurisdiction over the subleased premises. In making such improvements or alterations, Sublessee shall hold Sublessor and the subleased premises harmless from all claims and demands of every kind and character which result from or arise out of the construction. Unless waived in writing by Sublessor, Sublessee will, before commencing such construction, deposit with Sublessor a bond or certificate in a form and amount satisfactory to Sublessor guaranteeing the completion of such construction free and clear of all liens. (c) At Sublessor's option, at the expiration or termination of this Sublease, Sublessee may be required to remove any building or other improvement erected or made by Sublessee. Sublessee shall also repair any damage to the subleased premises caused by such removal. 10. Indemn:fica ion -nd R io cp Sublessee shall indemnify and hold harmless Sublessor from any and all claims by or on behalf of any person or persons for personal injuries, wrongful death or property damage arising out of any act or occurrence committed or happening in or from the subleased premises, except claims: (a) Sase on the gross negligence or willful conduct of Sublessor, Sublessor's employees, agents or independent contractors; or -6- (b) Based on a defect which Sublessor has failed to remedy within a reasonable period of time after having been given notice in writing thereof. Indemnification shall include, but is not limited to, all costs, attorneys' fees, expenses and liabilities incurred in connection with the defense of such claim. 11. Fire or D ctr,irtinn of Pr 'c In case the subleased premises are damaged by fire, earthquake, or other unavoidable casualty so as to render the subleased premises untenantable for a period exceeding one hundred eighty (180) days, or in the event the building shall be damaged or destroyed by fire, earthquake or other unavoidable casualty to the extent of one-half (1/2) or more of its then replacement cost and the insurance proceeds are insufficient to replace the building, this Sublease may be terminated by either Sublessor or Sublessee, effective as of the date of the casualty, provided the party desiring to terminate shall give notice of such termination within sixty (60) days after such casualty. In the event of such termination, any prepaid but unearned rent shall be refunded to sublessee. Unless so terminated, this Sublease shall continue in full force and effect, and Sublessor, as soon as reasonably possible after such casualty, shall restore the subleased premises to substantially the same condition as the same were in prior to such casualty; but this obligation to restore shall not apply to any improvements, additions, fiztures, alterations, decorations, -7- installations, fixtures, furniture, furnishings, equipment, or machinery made installed or placed by Sublessee in and upon the subleased premises. Sublessee shall be excused from payment of the rent during the time and to the extent the subleased premises are unfit for occupancy, provided such damage or injury occurred through no fault of or neglect of Sublessee, Sublessee's agents, servants or anyone upon the subleased premises with Sublessee's express or implied consent. Nothing herein shall be construed as obligating Sublessor to restore any damage caused by risks not covered by the standard fire and extended coverage insurance policy, regardless of the extent of damage. No compensation or claim will be allowed by Sublessor by reason of inconvenience or annoyance arising from the necessity of reconstructing, repairing, altering or improving any portion of the building of which the subleased premises are a part, however the necessity may occur. 12. Prohibition on c„hi° Sublessee shall not, without the prior written consent of Sublessor, which may not be unreasonably withheld, assign this Sublease or sublease all or any part of the subleased premises, or allow other businesses or persons to occupy the subleased premises or any portion thereof. 13. Inso7vencv o* nca;n Any of the following shall constitute a breach of this Sublease by Sublessee. (a) Sublessee filing a voluntary petition in bankruptcy, pr -8- (b) The filing of an involuntary petition in bankruptcy or the filing of a petition for the appointment of a receiver against Sublessee, neither of which is dismissed within thirty (30) days after its filing, or (c) A general assignment for the benefit of creditors including Sublessee's interest in this Sublease. Should Sublessor elect to terminate this Sublease for breach of the terms of this paragraph, Sublessee shall be liable to Sublessor for the difference between the balance of the rent due or to become due hereunder and the rental value of the subleased premises for the remainder of the term. 14. Pub ~ It is agreed that if the whole or any part of the subleased premises shall be required, taken or condemned by any competent authority for any public or quasi-public use or purpose, then in any such event this Sublease and any renewal and all rights and liabilities of the parties shall cease and expire and become null and void from and after the date when such possession shall be required or titled be vested, without apportionment to Sublessee of the award or other compensation, if any, by reason of such requisition, taking or condemnation except a portion of such award specifically allocated to the unexpired term of this Sublease. Nothing herein shall deprive Sublessee of the right, if any, to demand and if entitled, to receive from the requisitioning, taking or condemning authority award or -9- compensation for loss of or damage to any of Sublessee's tangible property or business, provided that the same is not in dimunition of the award or compensation payable to Sublessor. Sublessee shall make payment of all rent and other charges accrued and prorated to the date of such requisition, taking or condemnation. 15. Sublease Subiect to Hawaiian Hom ommi ;nn I acP. This Sublease shall be subject to the terms and conditions of State of Hawaii, Department of Hawaiian Homes General Lease No. 174 dated January 15, 1971, and Sublessee agrees to comply with all such terms and conditions. 16. Default. In the event of any breach of this Sublease by Sublessee, then Sublessor, besides other rights or remedies Sublessor may have, shall have the immediate right of reentry and may remove all persons and property from the subleased premises. Such property may be removed and stored in a public warehouse or elsewhere at Sublessee's expense. Should Sublessor elect to reenter, or should Sublessor take possession pursuant to legal proceedings or pursuant to any notice provided by law, Sublessor may either terminate this Sublease or Sublessor may from time to time without terminating this Sublease and with the right to make alterations and repairs, relet said premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Sublease) and at such rental or rentals and upon such other terms and conditions as Sublessor in Sublessor's sole discretion may deem advisable. -10- Upon each such reletting (a) Sublessee will be liable to pay to sublessor immediately, in addition to any indebtedness other than rent due hereunder, the cost and expense of such reletting and of such alterations and repairs, incurred by Sublessor and the amount, if any, by which the rent reserved in this Sublease for the period of such reletting (up to but not beyond the term of this Sublease) exceeds the amount agreed to be paid as rent for the subleased premises for such period on such reletting; or (b) at the option of Sublessor exercised within thirty (30) days after receipt, rents received from such reletting shall be applied: first, to the payment of any indebtedness, other than rent due hereunder from sublessee to sublessor; second, to the payment of any costs and expenses of such reletting and of such alterations and repairs; third, to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. if Sublessee has been credited with any rent to be received by such reletting under option (a) and such rent shall not be promptly paid to Sublessor by the new Sublessee, or if such rentals received from such reletting under option (b) during any month be less than the rental reserved in this Sublease to be paid during that month by Sublessee hereunder, Sublessee shall pay any such deficiency to Sublessor. Such deficiency shall be calculated and paid monthly. -11- No such reentry or taking possession of said premises by Sublessor shall be construed as an election on Sublessor's part to terminate this Sublease unless a written notice of such intention be given to Sublessee or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Sublessor may at any time thereafter elect to terminate this Sublease for such previous breach. Should Sublessor at any time terminate this Sublease for any breach, in addition to any other remedy he may have, he may recover from Sublessee all damages he may incur by reason of such breach, including the worth at the time of such termination of the ezcess, if any, of the amount of rent and charges equivalent to rent reserved in this Sublease for the remainder of the stated term over the then reasonable rental value of the premises for the remainder of the stated term all of which amounts shall be immediately due and payable from Sublessee to Sublessor. 17. Hazardo~ Ma ials. Sublessor represents and warrants that the subleased premises are in compliance with all Hazardous Materials Laws. Sublessee shall not take any action during the demised term to cause or permit the subleased premises to be in violation of, any Hazardous Materials Laws." (As used herein, the term "Hazardous Materials Laws" shall mean and include all federal, state and local laws, ordinances and regulations now or hereafter in effect relating to environmental conditions, -12- industrial hygiene and/or Hazardous Materials on, within, or about the subleased premises, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. the Hazardous Materials Transportation Act of 1975, 49 U.S.C. Section 1801, et seq., the Clean Water Act, 33 U.S.C. Section 1251, et seq., the Clean Air Act, 42 U.S.C. Section 7401, et seq., The Toxic Substances Control Act, 15 U.S.C. Sections 2601-2629, the Safe Drinking Water Act, 42 U.S.C. Sections 300f-300j, all as amended, and any similar state and local laws, ordinances•~and regulations now or hereafter adopted, published and/or promulgated pursuant thereto). Except as may be reasonably required in the operation of an air conditioning, plumbing, and sheet metal service and contracting business, Sublessee shall not use, generate, manufacture, treat, handle, refine, produce, process, store, discharge, release, dispose of or allow any Hazardous Materials to exist on or about the subleased premises. (As used herein, the term "Hazardous Materials" shall mean and include any and all flammable explosives, radioactive materials, asbestos, organic compounds known as polychlorinated biphenyls, chemicals known to cause cancer or reproductive tonicity, pollutants, contaminants, hazardous wastes, tonic substances or related materials, and any and all other substances or materials defined as or included in -13- the definition of "hazardous substances," "hazardous wastes," "hazardous materials," and/or "tonic substances" under or for the purposes of the Hazardous Materials law aforesaid.) Sublessee shall immediately advise Sublessor in writing of (a) any and all enforcement, clean up, removal litigation or other governmental or regulatory action instituted, contemplated or threatened pursuant to any Hazardous Materials Law affecting the Premises, (b) all claims made or threatened by any third party against Sublessee or the premises for damages, compensation, loss or injury resulting from any Hazardous Materials, and (c) Sublessee's discovery of any occurrence or condition on the subleased premises or on any area adjoining or in the vicinity of the subleased premises which could subject Sublessee or the subleased premises to any restrictions on ownership, occupancy, transferrability or use of the subleased premises under the Hazardous Materials Laws. Sublessee shall indemnify Sublessor, its employees, agents, successors and assigns from and against any loss, damage, cost, expense or liability directly or indirectly arising out of or attributable to Sublessee's use, generation, manufacture, treatment, handling, refining, production, processing, storage, release, discharge or disposal of Hazardous Materials on or about the subleased premises, including without limitation: (i) all foreseeable and unforeseeable consequential damages; (ii) the costs of any required or necessary repair, clean up or detoxification of the -14- subleased premises, and the preparation and implementation of any closure, remedial or other required plans; and (iii) all reasonable costs and expenses incurred by Sublessor in connection with clauses (i) and (ii), including without limitation, reasonable attorney's fees. The indemnification provision of this paragraph 17 shall survive the expiration or termination of this Sublease. 18. A orn yc' F In case suit shall be brought for an unlawful detainer of the subleased premises, for the recovery of any rent due under the provisions of this Sublease, or because of the breach of any other covenant herein contained on the part of Sublessee to be kept and performed, Sublessee shall pay to Sublessor all costs in connection therewith including all reasonable attorneys' fees, and Sublessor shall have judgment therefor. 19. Surrender of S~bl aca, Upon termination of this Sublease, Sublessee shall peaceably deliver up to Sublessor possession of the premises, together with all improvements, additions, fixtures and alterations thereof, by whomsoever made or installed, in good order, repair and condition, excepting ordinary wear and tear and loss; PROVIDED, HOWEVER, that if Sublessee shall have observed and performed all of the covenants and conditions herein contained and on Sublessee's part to be observed and performed, Sublessee may remove all trade fixtures, furnishings, equipment or machinery installed or placed by -15- Sublessee in or upon the premises, but Sublessee shall at Sublessee's own expense repair any damage required by such removal and shall reimburse Sublessor for any loss of rent occasioned by such repair. 20. Waiver f Br a h, Sublessee agrees that in the event of a breach of any of the covenants or conditions of this Sublease Agreement by Sublessee, Sublessor may with the knowledge of such breach permit Sublessee to continue in possession of said premises and accept the rent herein stipulated, but such possession or acceptance of rent shall not operate as a waiver of such or any other or future breach. 21. Definitionc_, The terms "Sublessor" and "Sublessee" herein, or any pronouns used in place thereof, shall mean and include the male or female, the singular or plural number, and joint and several individuals, firms or corporations, and their and each of their respective successors, personal representatives and assigns, according to the contest hereof. As used herein, the terms "subleased premises" refers to the real property above described and to any improvements located therein from time to time during the term hereof. 22. Sublease Subiect to Hawaiian x OmmiCCinn !` n and Lease. This Sublease is subject to Sublessor's obtaining consent from the Department of Hawaiian Home Lands. If, for whatever reason, said consent is not obtained or the Lease cancelled for reasons beyond the control of Sublessor, this -16- STATE OF HAWAII COUNTY OF HAWAII On this SS. day of 19_, before me appeared and to me known, who, being by me duly sworn, did say that they are the and respectively, of THY & ASSOCIATES, INC., a Hawaii corporation, and that the seal affixed to the foregoing instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors, and said and severally acknowledged said instrument to be the free act and deed of said corporation. Notary Public STATE OF HAWAII My Commission Expires: -18- Sublease shall be cancelled. In the event of such cancellation, Sublessor shall have no liability to Sublessee. IN WITNESS WHEREOF, the parties have executed this Sublease Agreement on the day and year first above written THY fi ASSOCIATES, INC. By Its By Its SUBLESSOR COUNTY OF HAWAII By Stephen K. Yamashiro Its Mayor SUBLESSEE -17- STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this day of 19 before me personally appeared STEPHEN K. YAMASHIRO, to me personally known, who, being by me duly sworn, did say that he is the Mayor of 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 5-1.3(g) 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: -19-