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HomeMy WebLinkAboutRES 439 Draft 01 1988-1992!~ COUNTY OF HAWAII STATE OF HAWAII RESOLUTION 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 of Hawaii desires to lease office space of approximately 1,500 square feet at the Halekii Street building belonging to CALVIN and AMY RATA in Kealakekua, Hawaii; and WHEREAS, the Office of the Corporation Counsel, Family Support Division, will occupy said space; and WHEREAS, the County wishes to enter into a multi-year lease with CALVIN and AMY RATA for ten (10) years ending on June 30, 2002, NOW, THEREFORE, BE IT RESOLVED by the Council of the County of Hawaii: 1. That the Mayor is hereby authorized to enter into a lease agreement with Calvin and Amy Hata, 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. DATED: Hilo, Hawaii, May 6, 1992 _ INTRODU ED B COUNCIL 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 Maw F, 1 992 ATTEST: /~~_ COUNTY C~ LERK HAIRMAN & PRESIDING OFFICER ROLL CALL VOTE AYES NOES ABS EX ARAKAKI X DE LIMA DOMINGO HALE KOKUBUN X LAI MAKUAKANE X RUDDLE SCHUTTE s o 1 0 R.~ference C-3579/F0.553 RESOLUTION NO. 439 92 RECORDATION REQUESTED BY: AFTER RECORDATION, RETURN TO: RETURN BY: MAIL ( ) PICKUP ( ) LEASE AGREEMENT THIS INDENTURE OF LEASE made this day of , 19 , by and between CALVIN T. RATA and AMY ASHZKAWA HATA, Husband and Wife, whose mailing address is Post Office Hox 4026, Kailua Kona, Hawaii 96745, hereinafter called "Lessor," and the COUNTY OF HAWAII, a municipal corporation of the State of Hawaii with principal place of business and post office address at the County Building, 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter called the "Lessee." W I T N E S S E T H: That 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, does hereby demise and lease unto the Lessee that certain area outlined in red in Exhibit A, attached hereto and by reference incorporated herein, containing an area of approximately 1500 square feet, and located on Lot No. C-2-B-2-A on Halekii Street, Kealakekua, Hawaii TMK: 8-1-03:67. IT IS FURTHER AGREED: TERM. The term of this lease shall be ten (10) years commencing July 1, 1992 and ending June 30, 2002, PROVIDED, HOWEVER, that said term shall be contingent upon the annual availability of funds to the County of Hawaii, to pay such rent. The lease will become effective upon occupancy, presently established to be on or before July 1, 1992. If the occupancy is delayed, the commencement and terms of this lease shall be similarly delayed. OPTION TO RENEW. Provided Lessee is not then in default, Lessee shall have the option to extend this lease for an additional two five year terms. Lessee shall experience any of the options within one hundred twenty days (120)of the expiration of the lease term. Rent will be negotiated by the parties if rent cannot be agreed upon, rent shall be determined by arbitration as herein after disribed. ARBITRATION. That if at any time during the term of this lease or after the termination thereof, any dispute, difference or question shall arise between the parties heteto touching this lease or the construction, meaning or effect of these presents or anything herein contained, or the rights or liabnilities of the parties hereto under these presents or ortherwise in relation to the premises hereby demise, then each and every such dispute, difference or question shall at the desire of either party, be submitted to and determined by three (3) arbitrators, in which case either party may give to the other written notice of the appointment of an arbitrator, where upon the other party shall, within ten (10) days after the receipt of such notice, name a second arbitrator, and in case of failure to do so, the arbitrator already appointed shall name such second arbitrator, and the two (2) arbitrators so appointed (in either manner) shall select and appoint a third arbitrator, and in the event the first two (2) arbitrators shall fail to appoint the third arbitrator within ten (10) days after the naming of the second arbitrator, either may apply to the senior judge of the Circuit Court of the Third Judicial -2- Circuit to designate and appoint the third arbitrator, and the three (3) arbitrators so appointed shall thereupon proceed to determine the matter in dispute, difference or question, and the decision and award of any two (2) of them (including the disposition of the costs of arbitration) shall be final, conclusive and binding upon all parties, unless the same shall be vacated, modified, or corrected, all as provided in Chapter 658, Hawaii Revised Statutes, as the same now is or from time to time may be amended. The arbitrators shall have all the powers and duties prescribed by said Chapter and judgment may be entered upon any such decision and award in said Circuit Court as provided in said Chapter. RENT. Tenant shall pay to Lessor for each calendar year during the term hereof, rentals at the rate as follows: $3,000.00 for the period 7/1/92 to 9/30/92 $2,550.00 for the period 10/1/92 to 6/30/97 $1,500.00 for the period 7/1/97 to 6/30/98 $1,575.00 for the period 7/1/98 to 6/30/00 $1,650.00 for the period 7/1/00 to 6/30/02 The obligation to pay rentals shall commence on July 1, 1992 and on the first day of each month thereafter, unless notified, otherwise, without notice or demand or deduction. All invoices shall be submitted to the Office of the Corporation Counsel, Family Support Division, 688 Kinoole Street, Suite 214, Hilo, Hawaii 96720. GENERAL EXCISE TAX. Lessee further covenants and agrees to pay as additional rent the State general excise tax. PROPERTY TAX. It is further agreed that for and during the term of the lease hereof, Lessee will be responsible to pay as additional rent, a prorata portion of the property taxes assessed against the land and the improvements. It is agreed that Lessee will be utilizing 50~ of the land area, and 40$ of the building area. it is also understood that Section 246-36(2), Hawaii Revised Statutes 1985, as amended, grants to the Lessee exemption from taxes for real property leased to it under conditions requiring the payment of taxes thereon. -3- Should Lessor build an additional structure or add to the existing building as outlined in Exhibit A attached hereto, Lessor and Lessee will renegotiate the proration of real property taxes. AND THE LESSOR hereby covenants with the Lessee as follows: QUIET ENJOYMENT. That, upon payment by the Lessee of the rent as aforesaid and upon observance and performance of the covenants by the Lessee hereinafter contained, the Lessee shall peaceably hold and enjoy the demised premises for said term and any extensions thereof, without hindrance or interruption by Lessor or any other person or persons lawfully or equitably claiming by, through or under the Lessor, except as herein otherwise expressly provided. TERMINATION. Lessor will allow Lessee to terminate the lease without penalty anytime after the passage of 5 years, that is, after June 30, 1997. Lessee may terminate the lease upon sixty (60) days written notice to the Lessor, provided that Lessee shall be obligated for rental payments up to a three-month period commencing with the date that notice of lease temrination is sent to the Lessor. AIR CONDITIONING. Lessor covenants with Lessee that the Lessor will provide air conditioning for the premises and make all repairs to the air conditioning system. RULES AND REGULATIONS. Lessor may from time to time adopt or amend such reasonable rules and regulations as Lessor 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 Lessor and the Lessees; PROVIDED, HOWEVER, that such rules and regulations shall not be inconsistent with the terms, covenants and conditions of this lease and shall be subject to the approval of the Lessee. The Lessee shall observe and comply with such rules and regulations. -9- 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 lease or any extension thereof, the Lessor shall forthwith repair the same. Any such partial destruction shall neither annul nor void this lease, except that Lessee 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 extent to which the making of repairs shall interfere with the full use of the premises by the Lessee. PROVIDED, HOWEVER, that should the premises be substantially or totally destroyed or damaged by fire or other casualty, either party may terminate this lease as of the date of such destruction or damage. FIRE INSURANCE. The Lessor will carry fire and extended coverage insurance of the building of which the premises are a part. Such insurance shall cover the structural portion of the building plus all structural improvements constructed by the Lessee. To the extent that coverage of Lessee's structural improvements shall increase the insurance premium otherwise payable by the Lessor, Lessee shall upon demand, reimburse the Lessor for the increased cost. The term "structural improvements" as used herein shall not include "trade fixtures." MAINTENANCE AND REPAIRS BY LESSOR. Lessor shall make all reasonably necessary repairs to the structure, electrical system plumbing and painting, interior and exterior, of the Building to maintain the same in good condition and shall maintain the public and common areas of the Building such as landscaping, walkways and parking lot, in reasonably good order and condition. Such repairs and maintenance shall be made at Lessor's expense except for damage occasioned by the act of Lessee or Lessee's employees, agents and invitees. AND THE LESSEE hereby covenants with the Lessor as follows: PAYMENT OF RENT. That it (the Lessee) will pay the said rent in lawful currency of the United States of America to Lessor, in manner aforesaid, upon receiving a bill from Lessor at least three weeks prior to the month in which payment is due; -5- USE OF THE PREMISES. That Lessee shall use the demised premises solely as general office space. Lessee will not use or permit, or suffer the use of the premises for any other business or purposes without the written consent of the Lessor. OBSERVANCE OF LAWS. Lessee 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. WASTE, NUISANCE OR UNLAWFUL ACTIVITY. Lessee 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. ASSIGNMENT AND SUBLETTING. Lessee will not assign this lease or any interest hereunder or sub-rent or sub-lease said premises or any portion thereof, without the prior written consent of the Lessor. Such consent shall not be unreasonably withheld, nor shall Lessee be released from further liability hereunder by reason thereof. LESSEE'S MAINTENANCE OF THE PREMISES. The Lessee will, at its own costs 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 expected. LESSOR'S INSPECTION. The Lessee will allow the Lessor and the agents of the Lessor, at reasonable times, to enter upon said premises and examine the condition thereof. ALTERATIONS. Lessee will not make any alterations or additions whatsoever to the demised premises without first obtaining Lessor'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. -6- SURRENDER OF PREMISES. At the end of the term of this lease or other sooner termination of this lease, Lessee will peaceably deliver up to Lessor possession of the Lessor possession of the demised premises together with the improvements thereon by whomsoever made, which under the terms of the contract cannot be removed by the Lessee, in good repair, order and condition, reasonable wear and tear and unavoidable casualty excepted. The Lessee will allow the Lessor during the last month of the term hereof to affix to or keep on said premises "To Let" notice, and will allow the Lessor to show the premises during business hours to prospective lessees. REMOVAL OF TRADE FIXTURES. Lessee may at any time during said term, with the prior written consent of the Lessor which shall not be unreasonably withheld, remove any trade fixtures and personal property installed by Lessee in or about the demised premises if such removal does not damage any structural portion of said premises. Lessee will at its own expense promptly repair to Lessor's satisfaction all damage caused by such removal. HOLDING OVER. If Lessee shall remain in possession of said premises after the expiration of said term without executing a document extending or renewing this lease, Lessee 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 month-to-month tenancy. IT IS FURTHER COVENANTED, UNDERSTOOD AND AGREED by the parties hereto as follows: 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, gardens, landscaped and vacant areas. Lessee and its employees, agents, customers -7- and invitees shall have the right at all times during said term, subject to applicable rules and regulations, made by Lessor and as approved by the Lessee as herein provided to the reasonable use of the common areas in common with Lessor and others entitled to use such areas; PROVIDED HOWEVER, that Lessee shall have the right to utilize twelve of the parking stalls at all times for the use of its employees, agents, customers and invitees. TIME IS OF THE ESSENCE. Time is of the essence in all provisions of this lease. NOTICES. Any notice or demand to be given to or served upon either Lessor or Lessee in connection with this lease shall be deemed to have been sufficiently given or served for all purposes by being sent as 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 Lessee or Lessor or any of its officer, 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. 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 lease. SUCCESSOR AND ASSIGNS. The term "Lessor" as used herein shall include the Lessor, its successors and assigns, and the term "Lessee" as used herein shall include the Lessee, its successors and permitted assigns. LEASE SUBORDINATE TO MORTGAGES. This lease 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 existing or hereafter placed on the land and buildings of which the premises form a -8- part without the necessity of any other instrument or act on the part of the Lessee 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 Lessee as a party defendant in the foreclosure action and will not take any action to terminate this lease so long as the Lessee is not in default hereunder. The Lessee covenants and agrees to execute and deliver upon demand such further instrument or instruments evidencing such subordination of this lease to the lien of any such mortgage or mortgages as may be required by the Lessor. FORCE MAJURE. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lock outs, inability to procure materials, failure of electrical power, governmental laws or regulations, riots, insurrection or other reason of a like nature not the fault of the other party delayed in performing the work or doing the acts required under the lease, then such performance shall be excused for the period of the delays and the period for performance of such act shall be extended for a period equivalent to the period of such delay. It is understood that this provision shall not operate to excuse Lessee from the prompt payment of rent or any other payment due hereunder. ATTORNEYS' FEES. If either party becomes a party to any litigation concerning this lease, 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 litigation; provided, however, that no such liability shall accrue unless and until an actual breach of covenant shall have been established. -9- IN WITNESS WHEREOF the parties hereto have caused this instrument to .be duly executed on the day and year first above written. CALVIN T. HATA AMY ASHIKAWA HATA LESSORS COUNTY OF HAWAII By Its Mayor LESSEE APPROVED AS TO FORM AND LEGALITY: MICHAEL J. MATSUKAWA Corporation Counsel County of Hawaii DATE: -10- ~'ifi~ ii /~- O ~ O ~~ ii r~ ii.l~s L1~ ~ ASr',.,- OG V1T'1=S E"7U 1 L L~ I IJG~ O cC~op~Tl~ COUf~3)rL_ OP1sICt~ O2 I~IMLSCRLY ~ A9~CGV~TS9 ~@ ~T ~_ a