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HomeMy WebLinkAboutRES 098 Draft 02 1988-1992COUNTY OF HAVII'gk~„ ;:;STATE OF HAWAII RESOLUTION No. ~$ 89 (ABAFT 2) WHEREAS, in November, 1977, Boise Cascade deeded to the County of Hawaii a lot located in the Waikoloa Subdivision in South Kohala, TMK: 6-8-13:01, containing an area of approximately four (4) acres, to be used as a public park; and WHEREAS, the Waikoloa Village Association, a non-profit organization exempt from federal income tax by the Internal Revenue Service, pursuant to Internal Revenue Code ~501(c)(4), is desirous of leasing said real property, subject to the control of the County of Hawaii, for the purpose of developing, constructing, maintaining, and operating the Waikoloa Community Park on the property to be made available for public use and recreation; and WHEREAS, the County of Hawaii is desirous of leasing the property to the Waikoloa Village Association for such purposes in order to reduce the County of Hawaii's financial burden in operating public park facilities; and WHEREAS, the County of Hawaii and the Waikoloa Village Association intend that Waikoloa Community Park to the County of Hawaii expense to the Waikoloa Hawaii and the Waikoloa determining the most ap such goals. the operation and maintenance of the shall be conducted at no cost or expense and, if possible, at a minimum net cost or Village Association, and the County of Village Association intend to cooperate in propriate fee and use policies in achieving NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that in accordance with Chapter 2, Article 19, Hawaii County Code 1983, as amended, the County Director of Finance is hereby directed to negotiate a lease in the form substantially attached hereto of those public lands set aside for the Waikoloa Community Park to the Waikoloa Village Association for purposes of constructing, operating, and maintaining the Waikoloa Community park. BE IT FURTHER RESOLVED that the Clerk of the County of Hawaii transmit copies of this Resolution to the Mayor of the County of Hawaii, the Director of Parks and Recreation, the Finance Director, and to the Waikoloa Village Association. Dated at Hilo, Hawaii, this 18th day of October 1989. INTRODUCED BY: COU L MEMBER, COUNTY OF HAWAII 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 October 18, 1989 ATTEST: ~ ~Wd , s. COUNTY LERK CHAIRMAN & PR IDING OFFICER LA/HAT ROLL CALL VOTE AYES NOES ABS EX DOMINGO X HALE INOUYE KOKUBUN LAI MAKUAKANE RUDDLE g SCHUTTE YAMASHIRO Reference RJAV-LV/ V-7'+'a RESOLUTION NO. ~~ ~~ (Draft 2) Office of the Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 LEASE AGREEMENT THIS INDENTURE OF LEASE, made as of the v~'S~`~-day of ~~~t~`tfr-C_i 1989, by and between the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii, with its principal place of business and post office address at the County Building, 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter called the "Lessor," and the WAIKOLOA VILLAGE ASSOCIATION, a Hawaii non-profit organization, whose post office address is P. O. Box 3008-WVS, Kamuela, Hawaii 96743, hereinafter called the "Lessee," Witnesseth• WHEREAS, in November, 1977, Boise-Cascade set aside for a county park, the Waikoloa Community Park, containing an area of 4 acres, more or less, to be under the control of the Lessor; and WHEREAS, the Lessee, a non-profit organization exempt from federal income tax by the Internal Revenue Service, pursuant to Internal Revenue Code §501(c) (4), is desirous of leasing said real property, subject to the control of Lessor, for the purpose of developing, constructing, maintaining, and operating a Waikoloa Community Park on the property to be made available for public use and recreation; and WHEREAS, the Lessor is desirous of leasing the property to the Lessee for such purposes in order to reduce Lessor's financial burden in operating public park facilities, and Lessor will endeavor to assist Lessee in the construction of said Waikoloa Community Park by providing to Lessee any materials, supplies, or equipment which may become available to Lessor; and WHEREAS, Lessor and Lessee intend that the operation and maintenance of the Waikoloa Community Park shall be conducted at no cost or expense to Lessor and, if possible, at a minimum net cost or expense to Lessee, and Lessor and Lessee intend to cooperate in determining the most appropriate fee and use policies in achieving such goals. NOW, THEREFORE, Lessor and Lessee, in consideration of the mutual covenants and agreements hereinafter contained, agree as follows: 1. Demise. The Lessor, in consideration of the rent hereinafter reserved and of the covenants herein contained and on the part of the Lessee to be observed and performed, and upon and subject to the terms and conditions hereinafter set forth, does hereby demise and let unto the Lessee, and the Lessee does hereby -2- lease from the Lessor, for the purpose of developing, constructing, maintaining, and operating for public use the Waikoloa Community Park in Waikoloa, South Kohala, Island and County of Hawaii: Described as follows: 4.341 acres Lots (1-C)286 through 291, File Plan 1190, Tax Map Key 6-8-13-01, bordering the following streets: Puu Nui, Lanikila, and Pau Nani. TO-HAVE AND TO HOLD the same, together with all improvements, rights, easements, privileges, and appurtenances thereon or thereunto belonging or appertaining or held and enjoyed therewith unto the Lessee for the term hereinafter set forth. 2. Term. The term of said agreement shall be for a period of five (5) years from the date first above written, provided that the agreement may be terminated at any time by mutual agreement between the Lessor and the Lessee; provided further, that the Lessor may terminate the agreement at anytime upon Lessee's breach of or failure to perform any of the terms, conditions, provisions, and covenants contained in this agreement. Upon the expiration of the five (5) year term, this agreement will be deemed automatically renewed and binding in all its terms and conditions for an additional one (1) year period after such expiration date, and this agreement shall so continue in operation and effect from year to year unless either the Lessor or the Lessee gives to the other at least ninety (90) days' written notice of the intention to terminate this agreement, said extended term(s) and any holdover period(s) to be subject to all of the terms, conditions, provisions and covenants contained in this agreement. Nothing herein shall prevent the -3- undersigned parties from mutually modifying this agreement in writing before the expiration of the five (5) year period, or each succeeding one (1) year period, if such modification is desirable for funding or other purposes. 3. R n The Lessee hereby covenants and agrees to pay the sum of ONE AND NO/100 DOLLAR ($1.00) per year during the term of this agreement. 4. Ouiet Enjoyment. Lessor hereby covenants and agrees with the Lessee that upon payment of the rent as aforesaid and upon observance and performance of the covenants by the Lessee herein contained, Lessee shall peaceably hold and enjoy the demised premises for the term hereby demised without hindrance or interruption by the Lessor or any person or persons lawfully or equitably claiming, by, through, or under it, except as herein expressly provided. 5. Design and Construction of Waikoloa Community Park. Lessor and Lessee covenant and agree that Lessee shall design and construct a community park facility and activity area to be designated as the Waikoloa Community Park (hereinafter referred to as "the park") on the premises, subject to the following conditions: (a) The park shall be designed and constructed with playing fields for soccer, baseball, or basketball, etc., and restroom facilities. (b) Lessee's design of the park and surrounding areas shall include detailed plans and drawings of the park and -4- detailed descriptions of the materials to be used in the construction of the park facilities subject to the acceptance of Lessor and any reasonable modifications requested by the Lessor. (c) Upon Lessor's acceptance of Lessee's final design, plans and descriptions and upon Lessee's procurement of all necessary permits and licenses, Lessee shall notify Lessor of such fact in writing with an immediate notice to proceed with construction of the park. (d) Lessor will endeavor to provide any available materials, supplies, or equipment which may become available to assist Lessee with such construction. All other costs and expenses associated with the construction of the facility shall be the sole responsibility of the Lessee, including the procurement and payment for all labor (voluntary or otherwise), tools, machinery, and other equipment or services necessary for the completion of construction. Control and direction over the work to be performed during construction shall be the direct responsibility of Lessee subject to advice and recommendations given by Lessor's Chief Engineer and Director of Parks and Recreation. (e) Lessee's design and construction of the park and the surrounding area shall conform to established -5- engineering and architectural principles and practices and all applicable building or other code requirements. (f) Lessee shall endeavor to use qualified personnel in the design and construction of the center, including registered and qualified engineers, architects, electricians, plumbers, carpenters, etc., to be in charge of all phases of the work to be performed. (g) Lessee shall be responsible for initiating, maintaining, and supervising all safety and security precautions and programs in connection with the work and shall further institute all safety and security precautions recommended by the Chief Engineer, Department of Public Works, County of Hawaii. (h) Lessee shall provide a competent superintendent and necessary attendants who shall be in attendance at the construction site during the progress of construction. The superintendent shall represent Lessee, and all communications to the superintendent from Lessor shall be as binding as if given to the Lessee. The Chief Engineer and the Director of Parks and Recreation shall be responsible for all communications to Lessee on behalf of Lessor. (i) Lessee shall provide Lessor with the final design plans, drawings, and specifications on or by and shall commence -6- construction on the premises 30 days after receiving all necessary permits. (j) Lessee certifies that its board of directors has appropriated up to ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) for the purpose of developing, constructing, maintaining, and operating the Waikoloa Community Park. (k) Lessee shall erect and maintain, as required by existing conditions and progress of the construction, all reasonable safeguards for safety, security, and protection, including posting danger signs and other warnings against foreseeable hazards, promulgating safety regulations, and notifying owners and users of adjacent properties or utilities. 6. Maintenance and Operation of Waikoloa Communitv Park. Upon completion of the construction of the park, Lessee shall maintain and operate the park solely for public use and recreation. Lessee's maintenance and operation of the park shall be subject to the following conditions: (a) Fee and Use Policies. All fee and use policies governing the use of the park which are established by Lessee, shall not be implemented unless the prior written approval of Lessor, through its Director of Parks and Recreation, is obtained. Such policies include, but are not limited to, user fees or rate -7- schedules, hours of use, reservation policies, permitted and prohibited uses, and all other policies affecting the use of the park. To the extent not inconsistent with such approved policies, Lessee's operation of the park shall be conducted in accordance with all applicable rules and regulations adopted or to be adopted by the Department of Parks and Recreation of the County of Hawaii and pertaining to the use and enjoyment of parks and recreation facilities administered and maintained by said department. (b) Eaual Eniovment. All members of the public shall be entitled to the equal benefit and enjoyment of the park and the premises. Lessee shall not favor or discriminate against any person or group of persons on the basis of race, religion, color, sex, age, disability, or national origin regarding such use and access. Reservations for the exclusive use of the park or a specific area of the park and/or the premises shall be taken on a first-come, first-served basis through the Waikoloa Village Association office or person designated by the Lessee. Use of the park by Lessee or its members shall be subject to the same use policies and restrictions as are applicable to persons and members of the public who are not associated with Lessee. -$- 7. General Requirements: (a) Non-Discrimination Clause. Lessee, in performance of its duties under this agreement, shall not discriminate against any employee, worker, or applicant for employment, or any member of the public, because of race, creed, color, religion, sex, disability, or national origin. A notice setting forth the provisions of this non-discrimination clause, furnished by Lessor, shall be posted in at least two conspicuous places at the park by the Lessee. (b) Utilities and Other Charges. Lessee shall pay promptly, when due, all rates, assessments, impositions, duties, charges, and other outgoings of every nature and kind, whatsoever, including all utility charges, such as water, gas, and electricity, which shall, during the term of this agreement, be lawfully charged, assessed, imposed, become a lien upon, or become due and payable upon or on account of each and every part and parcel of the premises leased by the Lessee; provided, however, that where such rates, assessments, impositions, duties, charges, or other outgoings may be paid in installments, the Lessee shall pay only those installments, together with interest -9- included therein or payable thereon, in respect of periods which fall wholly within the term of the conditions thereof, Lessor shall provide Lessee with written notice of any repairs required to be performed under the provisions of this agreement. Within ninety (90) days of such notice or such other reasonable time as may be specified within said notice, Lessee will repair and make good at its own expense all defects required by the provisions of this agreement to be repaired by Lessee. (c) Further Construction. After completion of the construction of the park, Lessee shall not cause to be built any additional structure or building on the premises without the prior written approval of the Lessor. (d) Condemnation. In the event of the whole or any portion of the premises hereby demised shall be taken or condemned by any duly constituted authority other than Lessor, the Lessee shall peaceably surrender and deliver up to the Lessor possession of the premises so taken or condemned, and all compensation and damages payable on account of such taking or condemnation shall be payable to and be the sole property of the Lessor, -10- except such portions as may represent the interest of the Lessee over the remaining term of the agreement in improvements and fixtures which shall be paid to the Lessee. Lessor shall, at Lessee's request and on its behalf, make reasonable claim to the condemning authority for the value of such improvements and fixtures. Lessor shall keep Lessee reasonably informed of the inception and progress of any condemnation proceedings. If the area remaining after such taking no longer includes the premises upon which the park is constructed, then the Lessee may, at its option, terminate this agreement. (e) Notices. All notices to be given under the terms of this agreement shall be in writing and shall be given by actual delivery or by mailing the same, postage prepaid, certified mail, to Lessee at P. O. Hox 3008-WVS, Kamuela, Hawaii 96743, and to Lessor's Director of the Department of Parks and Recreation at 25 Aupuni Street, Hilo, Hawaii 96720. (f) Indemnification. Lessee shall defend, save, indemnify, and hold harrnless Lessor and the State of Hawaii, their officers, agents, and employees from and against any and all loss or damage, -11- claims, demands, actions, or proceedings, including claims for property damage, workers' compensation, personal injury, or death resulting from, arising out of, or in connection with the premises, the use or occupancy of the premises by the public, Lessee, or any other person under Lessee, all work done upon or about the premises, any accident, explosion, or fire on said premises, any nuisance made or suffered thereon, or any failure by Lessee to keep said premises in a safe condition. Lessee's duty of indemnification shall include claims asserting or alleging negligence or other fault of Lessor and its servants, agents, officers, or employees, excepting claims arising out of the sole and active negligence of Lessor. (g) Risk of Loss. All inventory, equipment, and supplies owned by Lessee and located on the premises shall be at the sole risk of Lessee, and Lessor shall not be responsible or liable for any loss of, or damage to, the aforesaid property while on the premises. (h) Insurance. Lessee shall procure and maintain, at its own cost and expense, throughout the term of this agreement insurance as is appropriate for its activities at the park and the premises, including, but not limited to: -12- (1) workers' compensation insurance covering all workers' compensation claims made by "employees" of Lessee (as that term is defined by Chapter 386, HRS, as amended), working in any capacity, whose duties require their presence or work on the premises or whose duties require service connected with the operation of the park; (2) comprehensive general liability insurance, which has a minimum coverage of FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) per occurrence for property damage; and'THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) per person up to an aggregate of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) per occurrence for bodily injury and which includes "medical payments to others" coverage in a minimum amount of ONE THOUSAND AND NO/100 DOLLARS ($1,000.00); (3) fire insurance which has a minimum coverage equal to the cash value of the entire premises (including the restroom/storeroom to be constructed), plus the actual cash value of any and all future renovations and improvements made to the premises. Losses -13- related to fire and other damage to the park and all improvements made thereon shall be payable to Lessee. Lessee shall cause copies of all insurance policies, amendments, or alterations thereto to be filed with the Director of Finance through the Director of Parks and Recreation, with the County of Hawaii, its officers, agents, servants, and employees to be named as additional insureds on each such policy. Each policy shall contain a clause requiring the insurer(s) to give notice in writing to the Director of Finance through the Director of Parks and Recreation of any cancellation or alteration of the policy no less than thirty (30) days prior to such cancellation or alteration. (i) Observation of Laws. Lessee shall at all times during said term keep said premises in a clean and sanitary condition and observe and perform all laws, ordinances, rules, and regulations hereafter made by any governmental authority applicable to said premises or any improvement thereon or use thereof, and all recorded protective covenants and restrictions affecting said premises, and to the extent permitted by law, shall defend, save, -14- indemnify, and hold Lessor harmless against all loss, damages, actions, suits, claims, and liability to persons or property by whomsoever brought or made by reason of the nonobservance or nonperformance of said laws, ordinances, rules, and regulations or of this covenant. (j) Surrender upon Termination. Upon the expiration of the term hereby demised or any extension thereof or upon sooner termination thereof as in this agreement provided, the Lessee shall peaceably and quietly leave, surrender, and deliver up to the Lessor possession of all of the demised premises, all improvements thereon, and equipment affixed thereto. Lessee shall be entitled to remove its furniture, supplies, materials, and equipment not affixed to the park or the premises within thirty (30) days after the effective date of termination. (k) Incorporation of Terms. This agreement constitutes the entire agreement between Lessor and Lessee. No term, provision, or condition of this agreement may be altered, amended, or added except upon the execution of a written agreement in the same manner as this lease agreement. -15- (1) Interpretation. The parties hereto agree that the Director of Parks and Recreation of the County of Hawaii shall"have the sole power to decide and resolve matters not covered herein. (m) Applicability to Successors. That the covenants and conditions herein contained shall apply to and bind the successors, legal representatives, and assigns of the parties hereto. (n) Non-waiver. It is expressly agreed and declared that the acceptance of rent by the Lessor shall not be deemed to be a waiver by it of any breach by the Lessee of any covenants herein; that the term "premises," wherever it appears herein, includes improvements now or at any time hereafter built on said land hereby demised, whether built or constructed by Lessor or Lessee; and that the term "Lessor" shall include the Lessor, its successors, and permitted assigns. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first above written. COUNTY OF HAWAII BERNARD K. AKANA Its Nayor Lessor -16- WAIKOLOA VILLAGE ASSOCIATION OND A. SANTORO I s President Lessee APPROVAL: ;~ :~- „~__. ~i§i~&~F 'F&NiMOT ~ rc,-;~~- ~~Sh,ri~`. :~,^.r:~ Director, Department of Parks J and Recreation APPROVED AS TO FORM AND LEGALITY: l.._....--- ~, ~~ Deputy Corporation Co se County of Hawaii Date: !a- !9- ~~ -17- STATE OF HAWAII ) SS. COUNTY OF HAWAII ) nn thi ~ ~~%~i,r~av of ~''~i`r~<..~ 19A9. hefore me personally appeared BERNARD K. AKANA, 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; and said BERNARD K. AKANA acknowledged said instrument to be the free act and deed of said County of Hawaii. //'' --yy ~L~~/~K -t-L•. ~~ ~liiti~lJ Notary Public, State of Hawaii STATE OF HAWAII COUNTY OF HAWAII My commission expires: SS. /~ ~':. On t is ~- "` ay Hof ~L~ ~_, 1989, before me appeared tQ~ e personally known, who, g b me my sworn, did a that~is the of W IIOLOA VILLAGE ASSOCIATION, a Hawaii non-profit anization; that he seal affixed to the foregoing instrumen is t e corporate seal of said orga zation; that said instrume t was igned and sealed in behalf o s id o anization by authorit s Board of Directors; and the e6~~ said acknow g d aid i st ument to be the free act and deed of said org, i n Notary Public.., Hof Hawaii1 My commission expires: _ ~ ~ ` -18- Bernard K Akana Mayor •.V Of „~ •'••"'•"•:w, George Yoshida `~ • ~~- Department of Parks and Recreation Acting Director !r ~ C. ~~~• ~ 25 Aupuni Street, Rm. 210 • Hilo, Hawaii 96720 • (808) 961-8311 e • r • o. x. October 26, 1989 Mr. Raymond Santoro President, Waikoloa Village Association P. 0. Box 3008-WVS Kamuela, Hawaii 96743 Dear Mr. Santoro: Enclosed is a fully executed copy of the Waikoloa Community Park Agreement Por your Piles. We appreciate all of the cooperation we have received thus far and look forward to working with your association closely in the very near future. If you have any questions, please do not hesitate to call. Sincerely, (~J'"~. George Yoshida Acting Director Enc. cc:,~County Clerk Corporation Counsel JOHN A. WACNER County Clerk OFFICE OF THE COUNTY CLERK County of Hawaii Hawaii County Building 25 Aupuni Street Hilo, Hawaii 96720 October 19, 1989 Waikoloa Village Association George Baker P.O. Box 3221 Waikoloa Village Station Kamuela, Hawaii 96743 Robert S. Shio,ji Deputy County Clerk HARRY A. TAKAHASHI Isgislative Auditor Enclosed is a copy of Resolution 98-89, Draft 2 which was adopted by the Council of the County of Hawaii on October 18, 1989. o n a'grie u OUNTY CLERK Encls. 1 ~... ~ ~~ COUNTY OF HAW,A~~ :: i :S"fATE OF HAWAII RESOLUTION No. 98 89 WHEREAS, in November, 1977, Boise Cascade deeded to the County of Hawaii a lot located in the Waikoloa Subdivision in South Kohala, TMK: 6-8-13:01, containing an area of approximately four (4) acres, to be used as a public park; and WHEREAS, the Waikoloa Village Association, a non-profit organization exempt from federal income tax by the Internal Revenue Service, pursuant to Internal Revenue Code §501(c)(4), is desirous of leasing said real property, subject to the control of the County of Hawaii, for the purpose of developing, constructing, maintaining, and operating the Waikoloa Community Park on the property to be made available for public use and recreation; and WHEREAS, the County of Hawaii is desirous of leasing the property to the Waikoloa Village Association for such purposes in order to reduce the County of Hawaii's financial burden in operating public park facilities; and WHEREAS, the County of Hawaii and the Waikoloa Village Association intend that Waikoloa Community Park to the County of Hawaii expense to the Waikoloa Hawaii and the Waikoloa determining the most ap such goals. the operation and maintenance of the shall be conducted at no cost or expense and, if possible, at a minimum net cost or Village Association, and the County of Village Association intend to cooperate in propriate fee and use policies in achieving NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that in accordance with Chapter 2, Article 19, Hawaii County Code 1983, as amended, the County Director of Finance is hereby directed to negotiate a lease of those public lands set aside for the Waikoloa Community Park to the Waikoloa Village Association for purposes of constructing, operating, and maintaining the Waikoloa Community park. BE IT FURTHER RESOLVED that the Clerk of the County of Hawaii transmit copies of this Resolution to the Mayor of the County of Hawaii, the Director of Parks and Recreation, the Finance Director, and to the Waikoloa Village Association. Dated at Hilo, Hawaii, this 18th day of October 1989. INTRODUCED BY: ~_ _ - ~~ L~ (..- COUN lL MEMBER, COUNTY OF HAWAII COUNTY COUNCIL County of Hawaii Hilo, Hawaii I hereby certify that the foregoing RESOLUTION was by the vote indicated to the right J}ereof~dopter}ky thC~Q~NCIL of the County of Hawaii on VCtO eY 11 tt55 1 aa7 ATTEST: COUNTY CLERK CHAIRMAN & PRESIDING OFFICER ROLL CALL VOTE AYES NOES ABS EX DOMINGO HALE INOUYE KOKUBUN LAI MAKUAKANE RUDDLE SCHUTTE YAMASHIRO Reference C-944/HSRC-« RESOLUTION NO. 9B S9